Dr Cheung Ying Kit Eric v. The Medical Council of Hong Kong

CACV 166/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 166 OF 2010

(ON APPEAL FROM THE ORDER OF THE
MEDICAL COUNCIL OF HONG KONG MADE ON 14 JULY 2010)

________________________

BETWEEN

________________________

Before: Hon Rogers VP, Le Pichon and Kwan JJA in Court

Date of Hearing: 7 December 2010

Date of Judgment: 7 December 2010

________________________

________________________

Hon Rogers VP:

1.This is an appeal from a decision of the Medical Council given following a hearing on 14 July of this year. The doctor concerned had been convicted on three separate occasions. Two of those occasions might be linked together because they involve events in August 2007 when three of his surgeries were visited and it was found that his records of dangerous drugs were not in order. The discrepancies on those occasions might be regarded as particularly serious.

2.One of his surgeries was visited again, this time in January 2008.  On that occasion discrepancies were discovered in his registers.  He was charged with offences relating to four of those registers.  I will read one of those.

“Information has been laid that you, on 11^th January 2008, [at such an address,] being a person authorized by the Dangerous Drugs Ordinance, Cap 134, to supply dangerous drugs, failed to, in accordance with Regulations 5 and 6 of the Dangerous Drugs Regulations made under the said Ordinance, enter in a register you kept the chronological sequence in the form specified in the First Schedule true particulars with respect to every quantity of dangerous drugs, namely, Nalion 0.5 mg. tablets containing alprazolam, obtained by you and/or supplied by you, whether to persons within or outside Hong Kong.”

3.Following his convictions, the matter came before the Medical Tribunal and in respect of the first two offences the Medical Council disqualified the doctor for a period of 3 months.

4.Coming to the third occasion, what the Medical Council said was:

“As for the October 2008 convictions, the quantities of discrepancy cannot be ascertained. However, we must have regard to the large stock of drugs involved. Changes to the dangerous drugs register have been made in a prohibited manner, thus rendering it impossible to trace the movement of the drugs as well as the quantities involved.”

5.This court, not being as familiar as the Medical Council is with such things as the drug register, asked to see copies of the register involved.  Copies have been produced in the course of this hearing and it has been accepted that these are copies of the relevant registers which were the subject of the charges.

6.It is true that what appears to have happened, when one looks at the copies of the registers, is that the address of the supplier has not been included in the register itself, although apparently the doctor kept all the invoices and indeed the invoice number is recorded on the register.

7.It is true that there have been some corrections, but these seem to be arithmetical corrections and it is clear from the rough checks which have been carried out in the course of the hearing that it is possible to trace the quantities and as far as been ascertained there has been no discrepancy in the quantities involved.

8.It is material, in my view, that the Medical Council, which did not have the advantage of seeing copies of the register in question, and the magistrate himself, who also apparently did not have the advantage of seeing the relevant copies, were seemingly under a misconception that there was a difficulty in the numbers.  But there is no difficulty in the quantities and that is by far the most important aspect of the present case.

9.On a very few occasions, the identity card of a patient was not recorded and that is, apparently, because they were foreign nationals and the record of their passport number was not put into the register, no doubt because they did not have their passport with them on that occasion, but the doctor kept a record of the passport number and that was on the patient’s record.

10.There have been occasions when changes have been made not in the prescribed form; the prescribed form being, apparently, that there have to be footnotes or side notes.  When a wrong number was inserted what appears to have happened is that it was simply crossed out and the correct number put in beside that which was crossed out.

11.When the matter is looked at in the round, these are all very minor matters compared with the importance of being able to trace the movement of the drugs.  In my view, there was clearly an error on the part of the Medical Council in assuming that it was impossible to trace the movement of drugs.

12.In respect of that, it seems to me that this court has no alternative but to allow this appeal and set aside the sentence of 6 months which was imposed in respect of the third occasion and substitute a period of 3 months, which appears to be the normal period in cases such as this.  I have to say, having looked at the register, that is a heavy enough penalty in itself.

13.Because the offence in respect of the October convictions was separate from the previous two and the occasions took place several months after, it is appropriate that the sentences should run consecutively.

Hon Le Pichon JA:

14.I agree.

Hon Kwan JA:

15.I also agree.

(Submissions on costs)

16.I think the doctor has suffered enough.  I think he can have his costs today.

Mr Gerard McCoy SC and Ms Kim Rooney, instructed by Messrs Richards Butler, for the Appellant

Ms Juliana Chow, instructed by Department of Justice, for the Respondent