Dr Chan Kai Ming v. The Medical Council of Hong Kong

cacv 326/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 326 of 2007

(on appeal from THE ORDER OF THE MEDICAL COUNCIL
OF HONG KONG MADE ON 23 AUGUST 2007)

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BETWEEN

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Before: Hon Rogers VP, Suffiad and Barma JJ in Court

Date of Hearing: 18 September 2008

Date of Handing Down Judgment: 8 October 2008

J U D G M E N T

Hon Rogers VP:

1.This was an appeal from a decision of the Medical Council.  Following an enquiry the Council had found the doctor, the appellant, guilty of misconduct in a professional respect namely that he had issued a misleading and untrue receipt in the amount of $2,000 to his patient in that it was stated on the receipt that that amount was for payment for consultation fees when in fact it was in respect of payment for skincare products sold to the patient.

2.The Medical Council had ordered that the doctor should be removed from the General Register for a period of nine months.  At the conclusion of the hearing of this appeal judgment was reserved which we now give.

The facts

3.The patient had suffered a shoulder injury on 1 August 2005.  After treatment at a medical centre she was given a 2-day sick leave certificate.  She had intended to see an orthopaedic specialist on 3 August 2005.  For reasons unconnected with the case she was unable to do so and so consulted the appellant.  The appellant worked in what appears to have been a clinic with other doctors.   He prescribed some medicine and arranged for the patient to undergo an x-ray examination following day.  The patient was to return for a follow-up consultation two days later.  The doctor issued a 3-day sick leave certificate.

4.Apparently at the end of the consultation, the patient asked about skincare products which were displayed at the clinic.  The patient wished to purchase some of the products and the total price was $3,130.  The fee for the medical treatment including the consultation and the medicine amounted to $580.  The patient paid a total of $3,710 by two credit cards but the defendant issued a receipt to her for the amount of $2,000.  It matters not who instigated this but it is clear that it was the intention of both the doctor and the patient that that receipt would be used by the patient to make a claim from an insurance company.

5.It is clear that within an hour or so of the patient leaving the clinic, the nurses at the clinic telephoned the patient asking her to return.  Eventually the patient did return later that day, the credit card transaction was cancelled and the products were returned.

6.On the findings of the Council it is clear that the doctor had been involved in what was clearly a scheme to defraud an insurance company but, quite possibly because the matter had been noted by the nurses or other staff at the clinic, the appellant had thought better of what he had done and tried to undo what had happened before any claim was made.  There were aggravating factors to the extent that it appears that the appellant had tried to dress up his medical records.  More importantly, the doctor tried to defend the case before the Council on the basis that he had been tired and had simply made a mistake.  That was rejected by the Council.

This Appeal

7.Initially, the appellant appealed both against the finding of misconduct and against sentence.  Prior to the hearing of this appeal, the appeal against the finding of misconduct was abandoned.  Furthermore, when the appeal was opened, Miss Shine who appeared on behalf of the appellant, presented the case on the basis that the appellant could not resist an order for immediate disqualification.  The case was put on the basis that the period of nine months was too long.

8.In approaching this matter it is undoubtedly the case that the appellant had been complicit in a dishonest transaction designed to defraud an insurance company.  The best that might be said about it is that it was an act of stupidity which the appellant soon came to realise should never have taken place.  The appellant’s conduct when eventually challenged by his professional body also reveals a very disquieting approach to the truth.

9.Reference has been made in recent cases to the approach of the courts to findings of fact by the disciplinary tribunals of professional bodies.  In particular the approach of courts to findings of fact was considered and particularly by Lord Cooke in the case of Preiss v General Dental Council [2001] 1 WLR 1926.  The passage on pages 1935G-1936A is in point.  Naturally, this court will pay close attention to the views of the Council in relation to professional matters.  In the present case, the integrity of the profession is particularly important.  It is important for any profession, not least the medical profession, that the members of the profession should be scrupulously honest.

10.Nevertheless, consideration of those factors has to take into account the fact that a right of appeal exists.  This court cannot abdicate its responsibility in that regard.  If having taken all relevant factors into account this court comes to the conclusion that the sentence imposed is manifestly excessive then it is the court’s duty to reduce the sentence.

11.In this case I consider that the sentence is considerably heavier than would be appropriate.  As indicated in the course of argument, should the appellant be found guilty of dishonest conduct again, his position could be very precarious, but, on the footing that he is to be allowed to continue to practice, nine months deprivation of the right to earn a living as a doctor goes well beyond a severe mark of disapproval and penalty.  I consider that a 4-month suspension is ample in the present circumstances.  Comparison with other penalties that have been imposed in the cases that have been drawn to attention does not indicate otherwise.  I would therefore reduce the sentence to four months disqualification and make an order nisi of costs of the appeal in favour of the appellant.

Hon Suffiad J:

12.I agree.

Hon Barma J:

13.I agree.

Ms Lynda M A Shine, instructed by Messrs Richards Butler, for the Appellant

Mr Sanjay A Sakhrani, instructed by Department of Justice, for the Respondent