Chan King Pan v. The Medical Council of Hong Kong
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CACV000013/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 13 OF 1973 (On appeal from a decision of the Medical Council of Hong Kong) -----------------
----------------- Coram: Huggins, McMullin & Pickering, JJ. Date of Judgment: 17th January, 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 1. This is an appeal by a registered medical practitioner against a finding by the Medical Council of Hong Kong that he was guilty of infamous conduct in a professional respect and against an order that he be reprimanded. 2. The charge against him was in these terms:
This badly drafted charge was followed by a hearing which equally was open to serious criticism. There has been much argument as to the effect of the words "as read in conjunction with paragraph 7 of the Warning Notice ......". My own view is that these words purported to be part of what in an indictment would be the statement of offence. It is for the Council to decide in any particular case whether acts proved constitute professional misconduct within the meaning of s.21(1)(b) of the Medical Registration Ordinance, but they cannot by issuing a "Warning Notice" alter the scope of the statutory provision. For this reason I regard the last 3 ½l lines of the charge as mere surplusage and as having no effect. If that be correct we then have to consider the particulars of the alleged offence as they appear in the charge. Section 21(1)(b) does not define professional misconduct and it is clear that where misconduct is alleged the Medical Council must give particulars of the acts which are said to amount to misconduct. We see that the act complained of here was canvassing, but the Council went on to say that the canvassing consisted of printing on his visiting cards matter which included more than the basic details allowed. It was undoubtedly open to the Council to find that canvassing was professional misconduct but in my view it was not open to them to define canvassing in a manner which was totally unreasonable. The normal meaning of the word "canvass" is to solicit votes or business and there can be no canvassing without some form of communication to third parties. Had the charge alleged the use of the cards the position might have been different, but the mere printing of the cards could not possibly constitute professional misconduct. 3. Mr. Lee has, however, conceded that it was necessary, before the Council could find the Appellant to be guilty of misconduct, that any canvassing should have been for the purpose specified in the Warning Notice. That seems to me to involve a further concession that, contrary to the opinion I have expressed, the last 3 ½ lines of the charge do have some effect, and I think the only possible interpretation is that the Appellant was alleged to have canvassed "within the meaning" of the Warning Notice, the only form of canvassing rendering a practitioner liable to have his name erased from the register being "canvassing, whether directly or indirectly, for the purpose of obtaining patients or promoting his own professional advantage". It is contended on the Appellant's behalf that there was no evidence of such a purpose, but Mr. Lee submits that the nature of the printed matter objected to and the evidence that the cards were displayed in two boxes in the Appellant's surgery with the direction "Take the card please" entitled the Council to draw an inference that the purpose was to promote the Appellant's own professional advantage. His explanation was that he sought to indicate the limitations on his practice and Mr. Lee has conceded that the phrases "Orthopaedic Surgery" and "Hand Surgery" might be explained in this way. However, I agree with him that the words "Honorary Lecturer in Orthopaedic Surgery, University of Hong Kong" cannot be explained in this way and I think the only reasonable inference was that the Appellant was seeking to promote his own professional advantage. If that was his purpose it matters not whether his purpose succeeded. However, it then becomes necessary to consider the manner in which the hearing was conducted. Many complaints are made, some of which might not have been fatal. It is enough to say that the Appellant may have been seriously misled as to the manner in which it was open to him to present his defence. The conduct of the hearing was governed by the Medical Practitioners (Registration and Disciplinary Procedure) Regulations and in particular by Regs. 21, 22 and 28. At the close of the case against him it was open to the Appellant to make a submission -
and he would have been well advised to do so in the present case. However, the Regulations do not state that a person charged must be told of his right to make a submission and I would not criticise the Chairman for having failed to do so. What I think does lay him open to criticism is that when the Appellant began to speak in his defence the Chairman did not ascertain whether he was speaking with a view to giving evidence or with a view to addressing the Council. Mr. Lee has been driven to argue that what the Appellant said was a blend of evidence and address. That is not good enough. Mr. Jackson-Lipkin rightly points to the proviso to Reg. 22(d), which states:
That requires that evidence and address shall be kept distinct. Moreover, the Appellant was obviously seeking to introduce new facts and that could only be done in the manner prescribed by Reg. 28(1). That reads:
Mr. Lee submits that there was a discretion to allow oral evidence to be given otherwise than upon oath, because the word "may" appears. Even if that were correct the Chairman (on the advice of counsel who was advising him) should have insisted that evidence and comments be kept separate, but it was not correct: on the proper interpretation of the paragraph, where oral evidence is given at a hearing before the Council it must be taken on oath. Nevertheless I regard the failure to ensure that evidence and comments were kept separate as the more damaging error, whether or not the breach of Reg. 28(1) was fatal in itself, for the Appellant was thereby allowed to put forward his defence in an improper manner which would inevitably carry less weight. Moreover, he was subjected to questioning which at two points was open to objection. First, the Chairman in the course of his questions concerning an advertisement of commencement of practice interposed a prejudicial comment to the effect that the Appellant had obtained his information and advice from a colleague rather than from consulting his own Warning Notice. Secondly, a member of the Council was unfortunately provoked into an exchange with the Appellant concerning a visiting card of hers which the Appellant had produced, with the object, presumably, of showing that such conduct was not "reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competence". The Chairman fairly intervened to prevent an enquiry into the conduct of the other member, but that member later made a further interjection which indicated that her mind was still on what she took to be a suggestion that she had been equally guilty of misconduct rather than on the issue which had to be decided. 4. There is this further point, that if the Appellant had duly given evidence that his mistake "was entirely unintentional" the Secretary would probably have been given an opportunity to cross-examine and if no question were put to the Appellant with a view to challenging that evidence the Appellant would have had good ground for contending that his evidence ought to be believed. As it was, the Secretary was not given an opportunity to cross-examine, (although, strangely, the Appellant was offered an opportunity to question the Secretary at the close of the Appellant's evidence). 5. Although the Appellant may, perhaps, be fortunate that the proceedings against him were not instituted and conducted with stricter attention to the statutory provisions, I have come to the conclusion that the finding of the Medical Council cannot stand and that the order that the Appellant be reprimanded must be set aside. From what we have been told there seems to be an urgent need for revision of the Notes which have apparently been prepared for the guidance of Chairman of these disciplinary enquiries. 17th January 1975 Representation: |