Albert Wou v. The Medical Council of Hong Kong

IN THE COURT OF APPEAL

Civil Appeal
No. 35 of 1987

Coram : Hon. Cons, V.-P., Clough & Power, JJ.A.

Date of hearing : 10^th November, 1987.

Date of handing down of judgment: 26^th November, 1987.

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REASONS FOR JUDGMENT

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Clough, J.A. :

1.  On the 10^th November 1987 we dismissed this appeal (from the order of the respondent Medical Council of Hong Kong made on the 5^th March 1987 pursuant to section 21 of the Medical Registration Ordinance (Cap. 161) whereby the Council, having found the appellant guilty, as a registered medical practitioner, of a charge of misconduct in a professional respect, ordered the removal of his name from the register for three months but suspended the application of that sentence for a period of one year with a direction that upon the expiry of that period the sentence was to lapse, subject to the observance by the appellant of the conditions of a probation order affecting him and to his being assessed at four monthly intervals by a consultant psychiatrist of his choice in a government hospital.  We now give our reasons for our decision.

2.  The Council’s order was made at the conclusion of an inquiry under section 21 of the Ordinance into a case which had been referred to the Council by the Preliminary Investigation Committee pursuant to regulation 14 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations in consequence of a complaint having been made against the appellant that he had been guilty of misconduct in a professional respect.  Having found the appellant guilty of such conduct the Council was empowered to sentence him in the manner it did by virtue of section 21(1)(b), (ii) and (iv) of the Ordinance.

3.  The appellant’s appeal against the Council’s order was brought in exercise of his right in that behalf conferred upon him by section 26(1) of the Ordinance which empowers this court to affirm, reverse or vary the order made by the Council against him under section 21.  The appellant did not appeal against the sentence imposed on him, but he sought to have the Council’s order against him set aside on the ground that he was not guilty of misconduct in a professional respect for the purposes of section 21(1)(b) of the Ordinance.

4.  This appeal raised the question whether, on the evidence before the Council, it was justified in finding that the appellant had been, in the terms of section 21(1)(b) “guilty of misconduct in any professional respect”.  In issue was the true scope and extent of section 21(1)(b) which in terms relates to misconduct in any professional respect and is a provision which may be contrasted with the more general language of section 2(1)(a) which confers disciplinary powers on the Council in relation to a registered medical practitioner whom it is satisfied has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment.

5.  The amended charge against the appellant which the Council was satisfied had been established was as follows:-

“That, being a registered medical practitioner, you, on 5 March 1986, at the Victoria District Court, were found guilty of an offence punishable with imprisonment namely unlawful wounding contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212, Laws of Hong Kong; and have therefore been guilty of misconduct in a professional respect.”

6.  The charge was the sequel to the prosecution of the applicant on a charge of unlawful wounding of his wife contrary to section 19 of the Offences against the Person Ordinance (Cap. 212) which carries a maximum penalty of 3 years’ imprisonment.  The appellant had pleaded guilty to the charge in the Victoria District Court. After consideration of medical and psychiatric reports and of a comprehensive Probation Officer’s report the District Court Judge decided on the 5^th March 1986 to exercise his power under section 3(1) of the Probation of Offenders Ordinance (Cap. 298) (which has since been amended to remove that power) to make a probation order without proceeding to conviction of the appellant.  This removed any possibility of disciplinary action against the appellant under section 21(1)(a) of the Medical Registration Ordinance.

7.  In the subsequent inquiry by the Council under section 21 of the Ordinance into the case against the appellant based on the charge under section 21(1)(b) the Council had before it the various reports and the summary of facts which had been before the District Court Judge when he put the appellant on probation on the 5^th March 1986 without recording a conviction.  The same material was before us at the hearing of the appeal.  Together with information mentioned by leading counsel for the appellant on instructions, that material disclosed the following matters.

8.  At the time of the conduct which resulted in the disciplinary charge under section 21(1)(b) the appellant was 45 years of age and a radiologist employed by the Government as a Senior Medical Officer in the Department of Diagnostic Radiology.  On the 18^th October 1985 he stabbed his wife with a 5-inch kitchen knife.  She sustained a stab wound in the left breast and lacerations about her head.  The incident was the culmination of long standing marital difficulties between the appellant and his wife.  There were personality problems and the appellant had required psychiatric treatment since 1975 when he had had a nervous breakdown followed by depression and neurosis. The wife was the dominant character in the marriage.  The appellant was of a timid and retiring disposition.  This had led to friction and unhappy incidents between the couple.  The reports disclosed that there were occasions when the appellant had been driven out of the home by his wife, he had had his wallet thrown out of the window and had been hit with pots and pans by her.

9.  On the day when the wounding incident occurred the appellant, who was then residing with his elderly parents, had received a letter from his wife’s solicitors stating that she wanted a separation and that he was required to remove his personal belongings.  He had then gone with his secretary to the flat which was the matrimonial home to do this.  On the way he had stopped at a departmental store where he purchased two 5-inch kitchen knives.  At the hearing before the Council his leading counsel, Mr. Rodway, informed the Council on instructions that the appellant had made these purchases at the request of her mother.

10.  The appellant’s wife and their two sons aged 13 and 10 were in the flat when the appellant and his secretary arrived.  He was told by his wife that his clothes were already packed.  He did not then leave, but locked himself in the bathroom.  After about 15 minutes the younger son forced open the door.  When the wife went into the bathroom the appellant began striking her with a wrench.  His wife grabbed the wrench whereupon the appellant took one of the knives from his pocket, pushed her into the bath tub and began stabbing her left breast.

11.  The elder son sustained cuts on two of his fingers when he intervened.  He then struck the appellant with the shower nozzle and this made him drop the knife. Security guards were summoned.   They overpowered the appellant.  While the wife was awaited the appellant attempted to climb out of a window and threatened to commit suicide.  He was forcibly restrained.

12.  The case for the appellant before the Council and on appeal was that his conduct on the occasion of the wounding, as established by the agreed facts, did not warrant a finding of misconduct in any professional respect, because the misconduct contemplated by section 21(1)(b) must be related in some sense to the practice of the appellant’s profession.

13.  It was contended that the conduct complained of in the present case had occurred within the privacy of the matrimonial home within the context of a purely matrimonial dispute and that the conduct was the culmination of a series of prior incidents in which there had been an exchange of some degree of physical violence. It was stressed that the victim of the wounding was not a patient of the appellant nor was the wounding in any way connected with the pursuit of the profession of the appellant.  Accordingly, it was argued, his conduct could not be said to reflect upon his professional capacity and was in that sense no different from conduct which might have been alleged against a lawyer or accountant.

14.  In summary, as Mr. Rodway put it, what the appellant did was done as a husband, not as a doctor, to his wife and his conduct had no connection with the pursuit of his profession as a doctor.  There having been no dispute of fact, Mr. Rodway contended that on the totality of the evidence of the Council ought to have found the appellant not guilty of misconduct in any professional respect contrary to section 21(1)(b) of the Ordinance.

15.  We were unable to accept this argument because it seemed to us that it was based on too narrow a construction of section 21(1)(b).  In our judgment, whilst the words “misconduct in any professional respect” occurring to that provision clearly contemplate misconduct in the pursuit of his practice by a registered medical practitioner, they must also be wide enough in their context to include misconduct by such a practitioner otherwise than in the pursuit of his practice which the Council, as his disciplinary body, reasonably determines to be misconduct of such a character and degree of seriousness that it tends to damage the reputation of his profession because it has been committed by such a practitioner.

16.  In the present case the facts outlined above indicate that there were mitigating factors which were made known to the Council at the inquiry.  However the stark fact remained that the appellant, who was a member of a profession whose primary purpose is to heal humanity, had wounded the woman who was his wife in the breast with a 5-inch knife in circumstances amounting to an offence of unlawful wounding contrary to section 19 of the Offences against the Person Ordinance.

17.  Such conduct would be reprehensible in any man.  It is true that it was not misconduct in the actual practice of the appellant’s profession.  The question is, however, whether it amounted nevertheless to misconduct in a professional respect when committed by a registered medical practitioner.  In our judgment the Council was entitled to find that it did.  It is clear that they came to the, in our view, reasonable conclusion that it was conduct of such a character and degree of seriousness that it tended to reflect adversely on the profession in which the appellant practised.

18.  The Council had the benefit of the citation of a number of relevant authorities at the inquiry by leading counsel for the appellant and by Crown Counsel, Miss Hartstein, who had been appointed by the Attorney General pursuant to the proviso to regulation 22(a) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations to carry out the duties of the Secretary at the inquiry.  Miss Hartstein relied, both below and on appeal, on Marten v. Disciplinary Committee of Royal College of Veterinary Surgeons(1).  That was an appeal to the Kings Bench Divisional Court pursuant to section 18 of the Veterinary Surgeons Act 1948 by a veterinary surgeon whose name had been ordered to be removed from the register by the Disciplinary Committee of the Royal College of Vetinerary Surgeons after a finding that he had been convicted of offences within the meaning of section 6 of the Veterinary Surgeons Act 1881 and that he had been guilty of “conduct disgraceful to him in a professional respect” within the same section in failing to give adequate nursing for sick animals in his care and allowing conditions to exist on his farm which were likely to bring disgrace on the veterinary profession.

19.  On the appeal two arguments were advanced on behalf of the veterinary surgeon. The main argument was not material to the present case.  The second argument was founded Allinson v. General Council of Medical Education and Registration(2) and was to the effect that conduct, however disgraceful, could not be disgraceful to a man in a professional respect unless at the time he was actively practising in that profession or acting in pursuit of his profession.  On this basis it was contended that the appellant in Marten’s Case(1) had not been acting as a veterinary surgeon but merely as a farmer, and that what he had done in effect had nothing to do with his profession.

20.  This argument was rejected by Lord Parker C.J. and Marshall and Widgery JJ. Delivering the judgment of the court Lord Parker pointed out that the argument had been based on the definition of “infamous conduct in a professional respect” for the purposes of section 29 of the Medical Act (21 & 22 Vict. c.62) which had been devised by Lopes and Cavey L.JJ. and adopted by Lord Esher in Allinson’s Case(2).  That definition, which was appropriate to the facts of the case before the court in Allinson’s Case(2), was confined to the conduct of a medical man “in the pursuit of his profession”. In Marten’s Case(1) at page 9 Lord Parker pointed out that the authors of the definition in question had themselves referred to it as dealing at any rate with one set of circumstances and that Lord Esher had adopted the definition as one kind of conduct amounting to infamous conduct in a professional respect.

21.  Lord Parker then continued as follows at page 90:-

“For my part I see no valid ground for limiting the words in the manner suggested. If, of course, the conduct complained of is equally reprehensible in any one, whether a professional man or not, as for example, conduct constituting some traffic offence, that conduct would not come within the expression. But if the conduct, though reprehensible in anyone is in the case of the professional man so much more reprehensible as to be defined as disgraceful, it may, depending on the circumstances, amount to conduct disgraceful of him in a professional respect in the sense that it tends to bring disgrace on the profession which he practises. It seems to me, although I do not put this forward in any sense as a definition, that the conception of conduct which is disgraceful to a man in his professional capacity is conduct disgraceful to him as reflecting on his profession, or in the present case, conduct disgraceful to him as a practicing veterinary surgeon.”

22.  This wider interpretation of the words “conduct disgraceful to him in a professional respect” is in our view also appropriate to the words “misconduct in any professional respect” which occur in section 21(1)(b) of the Ordinance.  We consider that it was rightly advanced before the Council by Miss Hartstein and that the Council rightly adopted it, as we have done above.  Whether or not particular conduct comes within misconduct in any professional respect as contemplated by section 21(1)(b) will always depend on the facts of each case but in the present case we had to consider the appeal in the light of the principles enunciated in Libman v. General Medical Council(3) and we were not persuaded that the Council had applied the wrong legal principles to the undisputed facts.

23.  For the appellant it was contended that we should not follow Marten’s Case(1) because the approach of Lord Parker was too wide and the decision in that case could, on the facts, be justified on the footing that Marten had misconducted himself in the course of acting in a professional capacity.  For our part we did not accept that any of the authorities cited by Mr. Rodway can properly be understood to conflict with or to have overruled Marten’s Case(1). 

24.  Allinson’s Case(2) is clearly distinguishable for the reasons given by Lord Parker in Marten’s Case(1).  The other three cases cited on behalf of the appellant were in our judgment not concerned with laying down definitive boundaries for the relevant statutory provisions relating to professional misconduct, but should be understood in the context of the facts with which they were concerned.

25.  In re Mudie(4), a case decided before Marten’s Case(1), McCarthy J. was concerned with a finding of the New Zealand Medical Council that a medical practitioner had been guilty of “grave impropriety in a professional respect” for the purposes of section 44(1) of the Medical Practitioners Act 1950.  The lady medical practitioner in question had falsely and knowingly certified to the appropriate medical officer concerned in the administration of the Social Security Act 1938 that she personally had rendered medical services to a number of persons named in schedules supplied by her in respect of certain dates.  The schedules had been supplied as a step in seeking payment by her as a medical practitioner from the Social Security Fund.

26.  When considering the words “in a professional respect” as qualifying “grave impropriety” McCarthy J. observed:

“There is, however, for consideration, the qualification created by the words ‘in a professional respect’. Were these acts of Dr Mudie performed in ‘a professional respect’, or are they to be considered as merely administrative and having no real professional character? One construction which can be given to those words is that the impropriety must arise in the course of the exercise of the doctor’s professional care of his patient, but I consider that a wider meaning should be given, and that any act which is performed by the practitioner as part of the conduct of his profession can be said to be ‘in a professional respect’. In this case, the certifying of the schedules was a task carried out by Dr Mudie in her capacity as a medical practitioner. It was only in that capacity that she was entitled to claim from the Social Security Fund, and the certificates given by her at the foot of schedules were signed by her in that capacity. I hold, therefore, that the conduct complained of was performed ‘in a professional respect’.”

27.  In our view McCarthy J. was here doing no more than holding, in the light of the facts under consideration, that Dr Mudie’s false schedules were not supplied as mere non-professional administrative acts, but as acts performed by her as part of the conduct of her profession.  Any such act was held to be conduct “in a professional respect”.  We do not understand McCarthy J. to have been intending to arrive at a comprehensive definition of the relevant qualifying words any more than the members of the court had intended to do so in Allinson’s Case(2).

28.  Felix v. General Dental Council(5) was concerned with a finding by the Disciplinary Committee of the General Dental Council that a registered dentist had been guilty of “infamous or disgraceful conduct in a professional respect” for the purposes of section 25(1) of the Dentists Act 1957 by overcharging for and wrongful certification of treatment of certain National Health Service patients.  As Lord Parker subsequently commented when distinguishing that case in Marten’s Case(1) at p.7E, the Judicial Committee held in the Felix Case(5) inter alia that careless mistakes in record keeping and unnecessary treatment given as a result of the dentist’s honest opinion of its necessity was insufficient to establish “infamous or disgraceful conduct in a professional respect” because, generally speaking, to make such a charge good there must be some element of moral turpitude or fraud or dishonesty in the conduct complained of, or, in the case of records, such persistent and reckless disregard of the dentist’s duty in regard to records as could be said to amount to dishonesty for that purpose.

29.  At page 720 Lord Jenkins, who delivered the judgment of the Judicial Committee, acknowledged that the reference to “infamous” and “disgraceful” conduct in section 25 of the Act “… must be qualified by the consideration that what is being judged is the conduct of a dentist in a professional respect, which falls to be judged in relation to the accepted ethical standards of his profession”. However, it is clear from the context that these observations were made when Lord Jenkins was emphasising that notwithstanding the qualification of the words “infamous” and “disgraceful” made by the words “in a professional respect”, section 25 was intended to apply to “… conduct deserving of the strongest reprobation, and indeed so heinous as to merit when proved, the extreme professional penalty of striking off”.

30.  Accordingly, in our judgment Felix’s Case(5) is clearly distinguishable from Marten’s Case(1) and from this case.  Section 25(1) of the Dentists Act 1957, with which Felix’s Case(5) was concerned, was replaced by subsequent legislation which gave rise to a recent decision of the Judicial Committee Doughty v. General Dental Council(6) upon which Mr. Rodway relied.

31.  In that case the Professional Conduct Committee of the General Dental Council had found a registered dentist guilty of “serious professional misconduct” in respect of 3 charges and directed pursuant to section 27(1) of the Dentists Act 1984 that his name be erased from the register.  The charges concerned (1) the dentist’s mishandling of the radiographs of 19 National Health patients, (2) his failure to exercise a proper degree of skill and attention when treating some of his patients and (3) failing to complete satisfactorily the treatment required by other patients.

32.  One of the grounds of appeal on behalf of the dentist in relation to charges (2) and (3), founded on the observations of Lord Jenkins in Felix’s Case(5) cited above, was that in order to prove those charges it was necessary to show that the opinion held by the dentist in relation to the treatment was not honestly held by him and could not honestly be held by a dentist.

33.  Lord Mackay, who delivered the judgment of the Judicial Committee, dwelt on the legislative changes which had taken place since Felix’s Case(5) was decided and, in particular, the substitution of the expression “serious professional misconduct” for the phrase “infamous or disgraceful conduct in a professional respect”.  He gave the reasons for the conclusion of the Judicial Committee that Parliament had intended by the change of wording to make a change of substance.  Then, at page 774G-H he observed:

“In the light of these considerations in their Lordships’ view what is now required is that the General Dental Council should establish conduct connected with his profession in which the dentist concerned has fallen short, by omission or commission, of the standards of conduct expected among dentists and that such falling short as is established should be serious. On an appeal to this Board, the Board has the responsibility of deciding whether the committee were entitled to take the view that the evidence established that there had been a falling short of these standards and also entitled to take the view that such falling short as was established was serious.”

34.  We understand this dictum as being primarily intended to lay down that the new legislative expression “serious professional misconduct” which occurs in section 27(1) of the Dentists Act 1984 is to be constructed as imposing a different and less onerous burden on the relevant disciplinary body to establish a charge against a registered dentist under that provision than the burden which was previously recognised in Felix’s Case(5) as having been imposed on that body under section 25(1)(b) of the Dentists Act 1957 in relation to a charge alleging “infamous or disgraceful conduct in a professional respect”.  We do not understand Lord Mackay to have been intending to define the boundaries of serious professional misconduct, nor do we understand him to have said or meant that professional misconduct was confined to misconduct related to the practice of a dentist’s profession.

35.  In so far as the dictum can be said to have any bearing on the expression “misconduct in any professional respect” occurring in section 21(1)(b) of the Ordinance we accept that there must be a connection between the misconduct of the registered medical practitioner and his profession but it seemed to us that this connection was recognised in the dictum of Lord Parker in Marten’s Case(1) cited above and that the same connection is readily recognisable in the circumstances of the present case.

36.  Accordingly we dismissed the appeal.  No application for costs was made on the Council’s behalf.

G. Rodway, Q.C. & G. Plowman (C. W. Leung & Co.) for Appellant.

Miss Hartstein (Legal Department) for Respondent.

(1) [1966] 1 Q.B. 1 (D.C.)

(2)  [1894] 1 Q.B. 750 (C.A.)

(3)  [1972] A.C. 217 (P.C.)

(4)  [1957] N.Z.L.R. 699

(5)  [1960] A.C. 704 (P.C.)

(6)  [1987] 3 W.L.R. 769 (P.C.)