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CACV 23/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 23 OF 2011
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BETWEEN
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DR TO CHUN FUNG ALBERT |
Appellant |
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and |
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THE MEDICAL COUNCIL OF HONG KONG |
Respondent |
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Before: Hon Tang VP, Kwan JA and Lunn J in Court
Date of Hearing: 17 November 2011
Date of Judgment: 17 November 2011
Date of Handing Down of Reasons for Judgment: 22 December 2011
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REASONS FOR JUDGMENT
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Hon Tang VP:
Introduction
1.The Appellant (Dr To Chun Fung Albert) ("Dr To") was found guilty of the following charges after hearing by a Medical Council chaired by Professor Felice Lieh-Mak. The charges are:
"He, being a registered medical practitioner:
(a) on or about 9 July 2005, failed to ensure that 2 medicine bags containing medications dispensed to his patient Madam X were properly labeled with (i) name of doctor or means of identifying the doctor who prescribed the medications; (ii) a name that properly identified the patient; (iii) the date of dispensing and (iv) the trade names or pharmacological names of the drugs;
(b) during the period between 15 February 2006 and 11 April 2006, he failed or refused to provide copies of medical notes/records of the patient upon the request made by Madam X through her solicitors;
(c) on or about 8 July 2005, he used phosphatidylcholine for mesotherapy injections on Madam X, which was not a registered drug or allowed to be used in Hong Kong;
(d) in or about July 2005, he associated with a beauty institute, namely MBH Beauty Institute, to provide medical treatment to Madam X.
In relation to the facts alleged, either individually or cumulatively, he has been guilty of misconduct in a professional respect."
2.He received the following sentences:
"(i) in respect of charge (a), the Defendant's name be removed from the General Register for a period of 6 months;
(ii) in respect of charge (b), the Defendant be reprimanded;
(iii) in respect of charge (c), the Defendant's name be removed from the General Register for a period of 15 months;
(iv) in respect of charge (d), the Defendant be reprimanded;
(v) the removal orders in respect of charges (a) and (c) to run concurrently, given that they arose from the same treatment;"
3.The facts of the case have been stated fully in the decision of the Medical Council in paras. 4 to 11 which are set out below:
"4. On 8 July 2005, Madam X went to MBH Beauty Institute ('MBH') for mesotherapy treatment to deal with her problem of abdominal and gluteal adiposity (i.e. fat pads). She was given mesotherapy injections by a doctor. The staff of MBH had not told Madam X the name of the doctor. After the injections, Madam X developed serious swelling and pain of the abdomen. On 9 July 2005, she went back to MBH to see the same doctor. The doctor told her that those were normal reactions, and prescribed pain killers for her. The medicines dispensed to Madam X were not labeled with the necessary information except the patient's name.
5. The pain persisted and Madam X went to the Accident and Emergency Department of Prince of Wales Hospital on 10 July 2005. The diagnosis was allergic reaction or abdominal wall infection.
6. On 12 July 2005, Madam X went back to MBH for follow up by the same doctor. The doctor said that there was no infection and told Madam X not to take the medicine prescribed by the hospital, as the swelling would subside even without the medicine. As Madam X had doubts about what the doctor told her, she consulted another doctor on 15 July 2005 and that doctor diagnosed inflammation and fat necrosis (i.e. death of fat cells).
7. On 18 July 2005, Madam X telephoned MBH asking for the name of the doctor who administered the injections to her. As she got no reply, she chased up for the doctor's name in the morning of 25 July 2005 and demanded a medical report setting out the contents of the injections. In the afternoon MBH told her over the telephone that the treating doctor was Dr. To Chun Fung and the medical report would be prepared later. On 26 July 2005, MBH told her to collect the medical report at around 6 p.m. When she went to MBH to collect the medical report, her friend overtly recorded her conversation with the MBH staff. The medical report stated that phosphatidylcholine mixed with deoxycholate and lignocaine were injected.
8. On 27 July 2005, Madam X made a complaint to the Medical Council. She also complained to a newspaper about the treatment she received from the Defendant. She said that there was subsequent report of her complaint in that newspaper a few weeks later.
9. On 2 August 2005, a staff of MBH telephoned Madam X saying that they had instructed lawyers to handle the matter and they reserved their legal rights to sue in respect of Madam X recording the conversation. On 4 August 2005, another staff of MBH telephoned Madam X apologizing for what the other staff had said over the telephone, offered free slimming treatment to her, and asked about her physical condition.
10. On 23 August 2005, MBH issued a registered letter to Madam X saying that her treating doctor was not Dr. To Chun Fung but a 'Dr. Chan'.
11. On 15 February 2006, Madam X through her solicitors requested the Defendant to provide a copy of the entire medical records/notes in respect of Madam X's consultations and treatment, for the purpose of advising Madam X in respect of the Defendant's mesotherapy injections to Madam X on 8 July 2005. On 28 February 2006, the solicitors delivered by hand a letter repeating the same request. On 14 March 2006, when Madam X's solicitor telephoned to chase up for the medical records, the Defendant replied that he could comply with the request within the 40-day period ending on 8 April 2006. The Defendant had not provided any medical record or notes pursuant to the request."
4.The principal defence of Dr To is that he was not involved in any treatment which the Complainant (Madam X) had received. As was his right, he did not give evidence, but an alibi witness was called.
Identification
5.Mr Philip Dykes, SC, who appeared for Dr To in this Court but not below, submitted that there was no proper identification evidence. With respect, it is a hopeless submission. The evidence of identification is overwhelming. More importantly, I can see no basis upon which this Court can say that the Medical Council had erred when they found that it was Dr To who had treated Madam X.
6.First, there was Madam X's evidence that she was treated on three occasions by Dr To. The Medical Council said:
"16. Madam X had the opportunity to observe the doctor who administered the mesotherapy injections on 3 separate occasions: (i) during the mesotherapy injections on 8 July 2005; (ii) during the follow-up consultation on 9 July 2005; and (iii) during the follow-up consultation on 12 July 2005. On each of the 3 occasions, Madam X saw the same doctor face to face, at very close distance, in good lighting, and for a significant period of time. On each occasion, Madam X had face to face discussions with the same doctor. In the circumstances, we find that Madam X recognized the appearance of the doctor who administered the mesotherapy injections clearly. Madam X did not know the name of the treating doctor until she was told by the MBH staff on 25 July 2005 on the telephone that the Defendant was the treating doctor."
7.Mr Dykes made the point that although there had been three treatments, the treating doctor wore a mask during part of each of the occasions. Even so, Madam X had ample opportunity to observe Dr To.
8.Mr Dykes also complained about the Madam X's identification of Dr To from a magazine article. He has referred us to passages in Hong Kong Archbold 2012 paras. 14-34, 14-35, 14-37 and paras. 24-27 in the judgment of Stuart-Moore VP, giving the reasons for judgment of the Court in HKSAR v Leung Wai Hong, CACC 383/2003 (unreported, dated 24 September 2004).
9.I do not believe that these authorities help. Obviously, identification by a witness from photographs must be handled with care, especially in a trial before a jury. That is why Stuart-Moore VP, in paras. 26 and 27 of his reasons for judgment, suggested that the judge may wish to discuss with counsel before the summing up in order to find an acceptable formula to direct the jury so that they "must not draw any adverse inference from the fact that the police did select a picture of the applicant for identification purposes". In criminal cases, sometimes an identification by photograph is followed by an identification in an identification parade. We are not concerned with a criminal trial and there is no question of an identification parade.
10.The Medical Council went on to deal with other evidence of identification. The Medical Council said :
"14. The evidence identifying the Defendant as the treating doctor includes the following:-
(i) on 25 July 2005 an MBH staff informed Madam X that the Defendant was her treating doctor;
(ii) on 26 July 2005 a nurse who explained the contents of the medical report confirmed that the Defendant was the treating doctor;
(iii) the medical report provided by MBH bears the Defendant's letterhead; and
(iv) Madam X identified the Defendant in various photographs published in newspapers and magazines.
15. The Defence denied that he had administered the injections, relying on:-
(i) the registered letter dated 23 August 2005 from MBH saying that the Defendant was not the treating doctor;
(ii) handwriting expert opinion that the signature on the medical report was not made by the Defendant;
(iii) the alibi evidence from his cousin who allegedly was present with the Defendant at his birthday dinner in Mong Kok from around 6 p.m. to 10 p.m. on 8 July 2005;
(iv) the statement by Madam X, at the mediation meeting on 13 May 2010 in respect of the personal injury civil action, that she 'could not be 100% sure' that the Defendant in the meeting was the treating doctor."
11.The registered letter dated 23 August 2005 from MBH which said that the Defendant was not the treating doctor bears examination. It reads:
"According to the telephone conversation between you and me on 4th August 2005 at about 8:30 pm, you confirmed that you saw two doctors in the operating theatre where your concerned treatment was carried out and where you were followed up with the ultrasound scanning. You then made enquiry as to the name of the actual doctor who carried out the treatment and subsequent prescription for you.
It is with this letter that you are formally informed that the doctor who carried out the concerned treatment is Dr. Chan, a registered Hong Kong doctor, and it is also this Dr. Chan who prescribed the medication that you received. Our sales lady, Ms. Ng, who attended you before the treatment did not actually know the fact and might have mis-informed you, since you actually did not know who was the doctor treating you.
It was because you requested an urgent medical report on 25th July 2005, when the said Dr. Chan was on Summer Vacation for 2 weeks, therefore another doctor wrote the report for you."
12.The letter stated that it was a Dr Chan who provided the treatment. That doctor was not further identified. The letter also claimed that the medical report provided by MBH was written by another doctor because Dr Chan was unavailable. Not surprisingly, although Mr Dykes relies on this letter insofar as it stated that Dr Chan was the treating doctor, he would not accept the obvious inference from the letter that it was Dr To who provided the medical report. Mr Dykes stressed that although the medical report bore the letterhead of Dr To and contained what purported to be a signature of Dr To over his typewritten name, there was expert handwriting evidence that the signature which appeared in the report was not Dr To's signature.
13.But, in my view, the Medical Council was perfectly correct when it said:
"60. The medical report is evidence relevant to the issue of whether the Defendant was the treating doctor, irrespective of whether the signature thereon was the Defendant's signature."
14.Mr Dykes called the report "a forged report". But, the fact that the signature, which purported to be the signature of Dr To, was not in fact signed by him, would not make it a forged report. There was no evidence that it was not issued with the authority of Dr To. All that we know, as a matter of expert evidence, is that the signature was not Dr To's. The Medical Council went on to explain:
"20. We note that a handwriting expert engaged by the Defendant was of the opinion that the signature on the report was not the signature of the Defendant. However, this does not affect our finding that the report was written by the Defendant for the following reasons:-
(i) in medical practice medical reports are sometimes written or dictated by the doctor and signed on his behalf by the clinic staff;
(ii) any person may use different signatures for different purposes, such as for cheques, official documents, and professional purposes. Depending on the sample signatures submitted for handwriting comparison, the questioned signature may be different from the sample signatures even if both are written by the same person."
15.Mr Dykes submitted that para. 20(ii) is inconsistent with the accepted evidence that the signature on the medical report was not Dr To's signature. But I agree with Mr John Bleach SC, who appeared for the Medical Council on appeal, that:
"para 20 of the ruling did not make a finding that D had signed the report using a different signature. The point being made by the MC was that the fact that the handwriting expert was of the view that the signature was not that of D did not mean that D was not responsible for the report."
Also, that para. 20(i) is well within the knowledge and expertise of the Medical Council.
16.I also agree, with respect, with Le Pichon JA's comment (CACV 23/2011, Reasons for Decision, 25 February 2011) on a similar argument advanced on behalf of Dr To when he applied for a stay of the Medical Council's sentence pending appeal, where she said:
"In para 20 (about which complaint is made), the Council proffered reasons why the acceptance that the signature was not that of the appellant did not affect the finding made in para 19. The complaint is that those reasons were not matters that had been put to the appellant or canvassed at trial. But the reasons proffered do not appear to matter for the critical issue is whether the Council was correct in drawing the inference that it did from the matters set out in para 19. Para 20 does not impinge on that issue."
17.Mr Dykes also relied on Madam X's admission in her declaration made on 24 June 2010, after a mediation session on 13 May 2010, that she was "not 100% certain" of Dr To's identity.
18.I do not believe that the law requires 100% certainty. Nor should the proceedings before the Medical Council be approached as if they were criminal proceedings. See Dr. Siu Ting Wing v. The Medical Council of Hong Kong, CACV 235/2008 (unreported, 16 December 2010, para. 15). This aspect of Madam X's evidence was considered by the Medical Council. On the totality of evidence, they were satisfied with Madam X's identification of Dr To.
19.Furthermore, as Mr Bleach submitted and I agree, Madam X's declaration was made on 24 June 2010, and the issue was not whether on that date she could be certain of the identification of Dr To; the issue (as the Medical Council was well aware) was the reliability of Madam X's identification of Dr To from the Next Magazine's photos published in July 2008. As to that, Madam X's evidence was unqualified.
20.Mr Dykes also complained that the Medical Council had relied on hearsay evidence or double hearsay evidence e.g. the evidence set out in para. 14(i), (ii), (iii) of the decision quoted in para. 10 above.
21.But as Mr Bleach for the Respondent has correctly pointed out:
"(1) Section 21(1) of the Medical Registration Ordinance, Cap. 161 ('the MRO') sets out the disciplinary powers of the Medical Council of Hong Kong ('MC') after a 'due inquiry'.
(2) MRO s. 21(2), provides that for the purpose of section 21(1) of the MRO, 'due inquiry' means an inquiry by the MC conducted substantially in accordance with the procedure prescribed by regulations made under MRO s. 33.
(3) One of the procedural regulations made under MRO s. 33 are the Medcial Practitioners (Registration and Disciplinary Procedure) Regulation ('MP(RDP)R').
(4) MP(RDP)R reg. 31(1) states that 'The rules of evidence do not apply to the proceedings of an inquiry'.
(5) MP(RDP)R reg. 31(6) states that 'The Council may at the hearing of an inquiry admit or take into account any statement, document, information or matter whether or not it would be admissible in a court of law."
22.The Medical Council also relied on Dr To's connection with MBH. The connection is not disputed. The evidence dealing with the Defendant's relationship with MBH has been set out in paras. 31 to 40 of the decision, amply justified the conclusion by the council at paras. 38 to 40 of the decision that:
"38. Put simply, the various organizations under the MBH Group were entirely controlled by the Defendant's family.
39. The Defendant was the President, Secretary and 'Official Spokes-person' of ACCS-HK [Australasian College of Cosmetic Surgery Hong Kong Chapter]. He was responsible for promoting the training services of ACCS-HK. The address of ACCS-HK was 9-10th Floor, Sino Cheer Plaza. It had the same telephone number of MBH. Its email address was under MBH's website domain.
40. To all intents and purposes, the premises and telephone number of MBH were used by the Defendant both for his medical practice and the services of ACCS-HK. The operations of the MBH Group and the Defendant's clinic and ACCS-HK were so intricately connected that their separate corporate identities were more apparent than real. Given that degree of cooperation, the only logical inference is that the MBH staff and the nurse were telling the truth as to the authorship of the medical report and the identity of the treating doctor."
23.As for Dr To's alibi witness, he was not regarded as a reliable witness by the Medical Council for reasons which are entirely convincing.
24.Indeed, in CACV 235/2008 Le Pichon JA also said in para. 24, and I respectfully agree:
"15. … by a process of elimination or logical deduction, the ineluctable conclusion is that the appellant was the treating doctor. In my view, the Medical Council had ample evidence to support its finding that the appellant was the treating doctor. In the circumstances of this case, any other conclusion would have been an affront to common sense. In my view, the appellant's case on identification is wholly devoid of merit."
Specific charges
25.In relation to charges (b), (c) and (d), it is submitted that the Medical Council had no jurisdiction because the Medical Council was only concerned with medical practice, and no medical treatment had been provided.
26.The Medical Council is a specialist tribunal which is entitled to apply its own knowledge and expertise when considering the evidence: see O Ting Yuen v The Medical Council, CACV 820/2000 (unreported, dated 21 March 2001) at page 11.
27.The definition of practice in Medical Registration Ordinance, Cap. 161 ("MRO"), section 2(1) is wide and "includes the diagnosis of any form of disease whether the cases so diagnosed be treated medically or surgically or not".
28.The medical report described Madam X's treatment thus:
"She was explained of the Checklist before the treatment and signed a consent form. … She was advised of the necessity of a series of treatments together with other modalities of treatments in order to achieve optimal result. She was given subcutaneous injection with special techniques to precisely inject into subcutaneous fat only. Phosphatidylcholine (PC) with deoxycholate mixed with equal volume of 1% lignocaine were injected. 500mg of PC was injected into each side of the midline under strict aseptic condition in the operating theatre. She was followed up on 9th July 2005, and ultrasound scanning was done for her abdomen showing normal scan with some edema of the lower abdominal wall. …"
29.It is a desperate argument that a doctor is not acting in and about his medical practice when he gives (under local anaesthetic) the treatment described above.
30.I also note the following passages from the Medical Council's decision:
"44. Injection of any substance into the human body must be considered as medical treatment. Mesotherapy using phosphatidylcholine is an invasive procedure with injection of medicines into the patient's body. This must be considered as a form of medical treatment, for which proper documentation of the procedure is necessary.
45. We see no excuse for the Defendant to refuse to provide the medical records and notes of Madam X. The Defendant's conduct in this respect is below the standard expected. We find him guilty of professional misconduct as set out in charge (b).
Charge (c)
46. Given our finding that the medical report was issued by the Defendant and the contents correlated with the events of the mesotherapy treatment to Madam X, we accept that phosphatidylcholine mixed with deoxycholate and lignocaine was injected as stated in the medical report.
47. The Department of Health has confirmed that there has never been any registered pharmaceutical product containing phosphatidylcholine. Any person wishing to import unregistered pharmaceutical products for use in a particular patient has to apply for a licence from the Department with a letter from a registered medical practitioner stating the name of the patient and other related information. The Defendant has never applied personally or through an agent to import a pharmaceutical product containing the injectable form of phosphatidylcholine for use in any patient.
48. Defence Counsel argued that as phosphatidylcholine was not used for treatment of illness or abnormal physical or physiological state, it did not fall within the definition of pharmaceutical products and medicine set out in section 2 of the Pharmacy and Poisons Ordinance.
49. Abdominal and gluteal adiposity is classified as a disorder by the World Health Organization (i.e. WHO) in the International Classification of Diseases. Substance used in the treatment of a disease falls within the statutory definition of pharmaceutical products and medicines in the Pharmacy and Poisons Ordinance.
50. It should also be noted that the statutory definition in the Pharmacy and Poisons Ordinance also includes 'any substance or mixture for use in altering, modifying, correcting or restoring any organic function in human beings or in animals'. Substance used in mesotherapy to dissolve subcutaneous fat in the human body falls within such definition. The fact that phosphatidylcholine was mixed with 2 other drugs (i.e. deoxycholate and lignocaine) for injection into Madam X's body speaks for itself.
51. We must point out any product for injection into the human body must be a pharmaceutical product, including water for injection.
52. It is a criminal offence to distribute or possess any unregistered pharmaceutical product or substance which has not been imported with a licence from the Department of Health. It is also dangerous practice for a doctor to use an unregistered drug on a patient, because the safety, efficacy and quality are not known.
53. We are satisfied that the Defendant had used a drug which was neither registered nor allowed to be used in Hong Kong in the injections on 8 July 2005. This is dangerous conduct and is far below the standard expected amongst registered medical practitioners. We find the Defendant guilty of professional misconduct as set out in charge (c).
Charge (d)
54. On both 8 July 2005 and 12 July 2005, the Defendant told Madam X that she must undergo the mesotherapy treatment in conjunction with the body slimming programmes of the beauty parlor in order to expel the dissolved fat out of the body. Given that the whole arrangement was made by MBH, the Defendant must be referring to the body slimming programmes of MBH.
55. The preparation for the mesotherapy treatment was conducted by the non-medically qualified staff of MBH, including taking history from Madam X by the checklist and explanation of the treatment to Madam X. The medicines were dispensed with the stamp of Hong Kong IPL & Laser Institute Ltd. on the medicine bags.
56. Paragraph 20.1 of the Code [Professional Code and Conduct (2000 version)] provided that a registered medical practitioner should not associate himself with a non-qualified person in providing any form of healing or treatment for his patients. The Defendant in having MBH promote his dermatological services and making preparation for the mesotherapy treatment, instructing the patient to undergo mesotherapy treatment in conjunction with the body slimming programmes of a beauty parlour in order to achieve the intended treatment effect, and dispensing medicine to the patient under the name of Hong Kong IPL & Laser Institute Ltd. showed the collaboration between the Defendant and the various organizations of MBH in delivering the medical treatment to the patient. Such association with non-qualified persons is prohibited by the Code.
57. We are satisfied that the Defendant's conduct in this respect has fallen below the standard expected amongst registered medical practitioners. We find him guilty of professional conduct as set out in charge (d).
58. In conclusion, the Defendant is guilty of all charges, save that the reference to the patient's name in charge (a) is disregarded."
31.Mr Dykes also complained that charge (c) lacked particulars. Charge (c) states as follows:-
"(c) On or about 8 July 2005, he used phosphatidylcholine for mesotherapy injections on Madam X, which was not a registered drug or allowed to be used in Hong Kong."
32.This argument is devoid of merit. The sale, distribution and use of pharmaceutical product or substances is covered by the Pharmacy and Poisons Ordinance (Cap. 138) and the regulations made thereunder. Regulation 36 prohibits the use of any pharmaceutical product or substance unless it is registered or has been imported into Hong Kong for the purpose of treatment by a doctor of a particular patient.
33.Then, it is said that there is no evidence that Dr To had used phosphatidylcholine ("PC"). But the report made it quite clear that it had been injected into Madam X. There is nothing to suggest that the content of the report is unreliable. Certainly, the letter from MBH in para. 11 above does not say so. It claimed instead that because the treating doctor was on holiday, the report was prepared by another doctor. Indeed, it says that the doctor "prescribed the mediation that you received".
34.Mr Dykes has referred us to the Drug Registration and Import/Export Division, Guidance Notes on Classification of Products as "Pharmaceutical Products" under the Pharmacy and Poisons Ordinance ("Guidance Notes"). But it is not clear how the Guidance Notes help Dr To's case. It seems quite clear, as the Medical Council has noted in para. 50, that "pharmaceutical products" means "any substance … for use" in:
"c) altering, modifying, correcting or restoring any organic function …"
Legal Adviser
35.Mr Dykes also complained of the conduct of the legal adviser. He has referred us to various passages in the transcript where it is said the legal adviser had transgressed his proper function and that he acted as de facto chairman for all intents and purposes. It is said that made the Medical Council less than competent, independent and impartial. On the contrary, with respect, the chairman has behaved with commendable restraint, despite the extreme provocation by counsel Mr Peter P.C. Chow, who appeared for Dr To before the Medical Council. It is clear from the transcript that Mr Chow repeatedly ignored clear rulings by the Medical Council. There is the impression that Mr Chow was being deliberately provocative, perhaps hoping thereby to wrong-foot the Medical Council.
Curtailed cross-examination
36.I deal next with the complaint that the Medical Council had curtailed the cross-examination of Madam X by Mr Peter P.C. Chow. The hearing had spanned 10 days. They were:
(Day 1) 29 July 2010, (Day 2) 25 August 2010,
(Day 3) 7 September 2010, (Day 4) 26 October 2010,
(Day 5) 27 October 2010, (Day 6) 31 October 2010,
(Day 7) 22 December 2010, (Day 8) 28 December 2010,
(Day 9) 30 December 2010, (Day 10) 8 January 2011.
37.29 July 2010 was taken up with an application for adjournment. The hearing was adjourned to 25 August 2010. In its ruling on the Defendant's application for adjournment, the Medical Council said:
"(d) The inquiry will proceed on 25 August 2010. Any further application for adjournment will unlikely be granted, unless for exceptional reasons supported by cogent evidence. Given that the Defendant has been given repeated warning and ample time to obtain legal representation for the inquiry, and that he has all along been able to secure legal representation, any further application on the ground of lack of legal representation will have no weight and is unlikely to be granted, as his deliberate decision not to obtain legal representation cannot be allowed to override the public interest."
38.Also:
"5. The case has dragged on for an inordinate period. The subject matters of the inquiry occurred in July 2005. …"
39.When the matter resumed for hearing on 25 August 2010, there was an application on behalf of Dr To for the recusal of all members of the inquiry panel and the Legal Adviser. That application was rejected. The Medical Council said in its written reasons:
"Further conduct of the inquiry
10. We are in the 2nd day of hearing, and we have not yet formally commenced the inquiry into the charges. Today the entire hearing is taken up by the application for recusal. We are of the view that the application could have been presented in a much more efficient manner by not referring to matters which are either irrelevant or of marginal relevance.
11. While we have given great latitude to the Defence in these 2 days of hearing, we must take a robust approach in the ensuing hearings to ensure that the inquiry will be conducted within reasonable limits. Both parties must take note accordingly."
40.The Medical Council is comprised of three doctors and two lay persons. It is obvious that if proceedings were allowed to drag on, an adjournment might be required and it would be difficult to reconvene on an early date. Mr Dykes complained that defence counsel Mr Chow was only permitted to cross-examine Madam X on Sunday 31 October 2010 from 11:30 am to 8:30 pm with breaks in between. From the transcript supplied, I have to say that the Medical Council had shown exemplary patience with Mr Chow. It is said that there were constant interruptions. But many of those interruptions were the result of Mr Chow's repeated refusal to abide by rulings made by the chairman. Such conduct reflects badly on Mr Chow. I think I should give fair warning that the court and the Medical Council cannot be expected to continue to tolerate such conduct.
Sentence
41.As for sentence, we have no doubt that the sentences totalling 15 months is entirely appropriate in the circumstances. They are not excessive at all.
Appeals dismissed
42.For the above reasons, we have dismissed the appeals against conviction and sentence with costs.
Hon Kwan JA:
43.I agree with the Reasons for Judgment of the Vice-President.
Hon Lunn J:
44.I agree with the reasons articulated in the Reasons for Judgment of the Vice-President for the disposal of these appeals. However, I wish to add a few words in respect of the complaint advanced on behalf of the appellant as to the curtailed cross-examination of Madam X by the appellant’s counsel.
Background
45.As noted in the Reasons for Judgment of the Vice-President, on the first day of the substantive hearing, 29 July 2010, in the absence of the appellant proceedings were adjourned by the Medical Council on the application of counsel who appeared for that purpose only. The Medical Council was informed that the appellant had sustained injuries in the course of a recent robbery in the Mainland and was in hospital. On the adjourned hearing on 25 August 2010 the entire hearing was concerned with an unsuccessful application made by Mr CY Li, who appeared with Ms Angela Gwilt on behalf of the appellant, that the entire panel of the Medical Council recuse themselves from conducting the proceedings on the basis of their apparent bias in the conduct of the first day's hearing.
46.On the adjourned hearing on 7 September 2010, the Medical Council refused an application made by Mr Oliver Davies, who appeared together with Ms Gwilt on behalf of the appellant, that the proceedings be adjourned in the absence of Mr CY Li, because of a professional engagement in the District Court. It had been asserted that Mr CY Li was the appellant's “counsel of choice", to whose services he had a "right". However, the Medical Council granted an adjournment of the proceedings at the request of Mr Mark Chan, the legal officer performing the duties of the Secretary of the Council, so that he could consider his position in the face of an allegation against him advanced by Mr Davies that prior to the proceedings on 25 August 2010 he had met with and "coached" Madam X, she being a prospective witness in the proceedings.
47.On 26 October 2010 the Medical Council refused an application advanced by Mr CY Li behalf of the appellant that the Council order that Mr Mark Chan cease to perform the duties of Secretary to the Medical Council in these proceedings. Similarly, the Council refused an application that it ‘stay’ the proceedings pending the resolution of enquiries by the police into the allegation of ‘coaching’ of a witness. There followed further lengthy submissions for the remainder of that day and for part of 27 October 2010 in respect of what material the Council might properly receive in evidence.
Madam X’ evidence
48.Madam X began her testimony on 27 October 2010 but proceedings were adjourned, whilst Madam X was giving evidence in chief, to Sunday, 31 October 2010. At the outset on the latter date, the Chairman reminded the parties that the proceedings were now in its sixth day and said of Madam X :
".. we want to finish with this witness today, whatever it takes. There can be no further delay as far as this witness is concerned. It’s unfair to her, she has been waiting around for too long and, so, both sides should bear that in mind."
49.By way of rejoinder, Mr CY Li advised the Council that he estimated that cross-examination Madam X would last "about two days". The Chairman stated that the Council was prepared to see how the examination and cross-examination proceeded.
50.In the event, Mr Peter PC Chow began cross-examining Madam X at about 11:30 a.m. From time-to -time throughout the cross-examination the Chairman intervened informing Mr Chow either that the witness had answered the question and that he should move on to another matter, or that the issue was not relevant or that he should focus his questions on the relevant issue, or that the issue had been ruled irrelevant and he was to abide by the ruling. Those interventions were entirely justified. Eventually, the Chairman exhorted Mr Chow to have regard to time in the conduct of his cross-examination, advising him that the proceedings were scheduled to finish at 6 p.m. that day. At some time after 6 p.m. the Chairman's enquiry of Mr Chow, as to what areas of questioning remained, was met by Mr Chow's application for an adjournment to another date. In face of the Chairman's reminder that the Council wished to conclude the witnesses evidence that day Mr Chow asserted:
"I must state clearly that it is my duty to defend the case diligently, on behalf of the defendant. And I'm not bound by your rulings in any respect. Of course, you can stop me when I ask those questions you think it is irrelevant. But I cannot be pressed upon you (sic) to finish." [Emphasis added.]
51.Then, but only then, did Mr Chow provide an outline of the remaining areas of questioning of the witness. Of that, the Chairman described some of the remaining areas of questioning to be "very simple, and should not require more than two questions, at the most. And she has already given, practically, most of the answers to this." Those observations were accurate and entirely understandable. In that context, the Chairman stated that Mr Chow would be permitted another one and a half -hours to conduct his cross-examination of the witness. At 7:50 p.m., prior to taking a break in the proceedings, the Chairman advised Mr Chow, "make use of your time efficiently". In answer to a question from the Council, Madam X indicated that she wished to finish her evidence that day, rather than return on yet another day. In the result, at sometime after 8:25p.m., Mr Chow ended his cross-examination, protesting that he had not been given "sufficient chance to conduct my cross-examination."
52.I am satisfied that the Council had been more than generous in affording to Mr Chow the extended time that he was given to conduct his cross-examination of Madam X. Notwithstanding the oft-repeated exhortations of the Council, that he focus his cross-examination, it is clear from a reading of the transcript hat he did nothing of the sort. One is left to wonder whether, in truth, he was indulging in a filibustering technique. The observations in the joint judgment of Bokhary PJ and Chan NPJ in Raymond Chen v HKSAR (2010) 13 HKCFAR 728 are apposite to these circumstances (page 731, paragraph 2):
"It is not only within the power of trial courts but is their duty to take firm steps, including sometimes the setting of time-limits, to put a stop to time‑wasting whether by persons representing themselves, by solicitors or by counsel. Of course trial courts would not set time-limits until after tolerating some irrelevance, long‑windedness, repetition, circumlocution and the like. But there comes a time when such things – which are after all no part of what fair trials require – must be stopped."
(Robert Tang)
Vice-President |
(Susan Kwan)
Justice of Appeal |
(Michael Lunn)
Judge of the Court of First Instance |
Mr. Philip Dykes SC, Mr. C. Y. Li & Ms. Angela Gwilt, instructed by Messrs Y.T. Szeto & Co., for the Appellant
Mr. John Bleach SC & Mr. Anthony Ismail, instructed by Department of Justice, for the Respondent
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