Dr Wong Tak Lun v. The Medical Council of Hong Kong

CACV 57/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 57 OF 2013

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL
OF HONG KONG MADE ON 28^th FEBRUARY 2013)

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JUDGMENT

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Hon McWalters J (giving the judgment of the Court):

Introduction

1.The appellant was charged with professional misconduct in respect of his failure to exercise due care in issuing medical documents to one of his patients on five different occasions between 26 April 2010 and 20 May 2010.  The medical documents were receipts for payments for consultations, medicines and an operation.  The reason for disciplinary action being taken against him was because he issued to the patient, in response to the patient’s request, a second set of receipts without indicating on the second set that they were copies or duplicates.

2.At a Disciplinary Inquiry held pursuant to section 21 of the Medical Regulation Ordinance, Cap 161 (“the Ordinance”) the appellant admitted the facts and did not challenge the allegation that they constituted professional misconduct.  The respondent found that the appellant was in breach of section 26.4 of the Code of Professional Conduct and found him guilty of professional misconduct.

3.Under the misapprehension that the appellant had a clear record the respondent determined that the appropriate sentence was an order that a warning letter be served on the appellant.

4.Shortly after the conclusion of the hearing and on the same day, the respondent became aware that the appellant did not, in fact, have a clear record but had been convicted of professional misconduct in respect of far more serious misconduct for which he had been ordered to be removed from the General Register for a period of 6 months but which order had been suspended for 2 years.

5.The respondent thereupon initiated a review under section 21(4B) of the Ordinance of its earlier decision to order that a warning letter be sent to the appellant in respect of this present offence of professional misconduct.

6.After hearing submissions from the appellant’s counsel the respondent revoked its original order in respect of the current offence and substituted for it an order that the appellant’s name be removed from the General Register for 1 month.  It then went on to consider whether it should activate any part of the suspended removal order that had been imposed in respect of the earlier, more serious, professional misconduct.  It decided it should activate the suspended removal order and determined that 3 months of the 6 months order should be activated and that this 3 months should run consecutively to the 1 month removal order imposed in respect of the current episode of professional misconduct.

7.The effect of these orders was that the appellant’s name was to be removed from the General Register for a total period of 4 months.

8.In the course of making these orders the respondent made a recommendation in respect of any future application the appellant might make to have his name restored to the General Register.  The recommendation was that should it be decided to restore his name to the General Register that two conditions be imposed on his right to practice. The first condition is that he shall not practice in situations involving any financial arrangements with third parties, including insurance companies and employers, either directly or indirectly.  The second condition is that he provide a report every 6 months on his practice to the respondent and this report must include the payment method involved for each patient.  It was further recommended that these conditions be reviewed by the respondent after 2 years with a view to the respondent deciding whether the conditions should be continued, varied or lifted.

9.The appellant appealed against the orders of the respondent.  At the hearing of the appeal we reserved our judgment which we said we would hand down at a later date.  This we now do.

The Current Offence

10.The appellant was treating a patient who purportedly sustained injury to her back in an accident at work on the last day of her employment.  She consulted the appellant on 26 April 2010 who referred her to a surgeon for an operation to treat a separate pre-existing ailment.  This operation was performed on 29 April 2010 and the patient was subsequently seen by the appellant in follow-up consultations on 6 May, 12 May and 20 May 2010.

11.Receipts for the operation and consultations were issued by the appellant and the surgeon.  However, the patient requested an additional set of receipts which both doctors provided, the surgeon in response to the appellant’s request.  The additional receipts that were issued by both doctors were in the form of originals bearing no indication that they were duplicates of earlier issued documents.

12.As a consequence of his actions the patient had in her possession two sets of original receipts which could be used to make claims for reimbursement or compensation from different persons or bodies for the same medical treatment.

13.The patient had her own medical insurance and sought compensation under that policy using for that purpose one of the sets of receipts.  In due course she received payment from her insurer.

14.The second set of receipts was given by the patient to her employer for transmission to the employer’s insurer in connection with her claim for employee compensation.  However, this claim failed although the patient was pursuing it through civil litigation.

15.Section 26.4 of the Code of Professional Conduct regulates the issuing of receipts by doctors.  It provides:

“Doctors must not issue more than one original receipt in respect of the same payment. Copy receipts must be clearly stated to be copies or duplicates. If it is necessary to issue separate receipts for fractions of the payment for a single item of service, it should be clearly stated in each receipt the amount of the full payment and that the receipt is in respect of the part payment only.”

16.Both the surgeon and the appellant were charged with professional misconduct arising from their alleged breach of section 26.4.  The charge against the appellant was drafted as follows:

“He, being a registered medical practitioner, failed to exercise due care in issuing medical documents in respect of his patient Madam CHAN Kit Wai (“the Patient”) in that:-

(a) he issued 2 receipts both dated 26 April 2010 and in the amount of $500 to the Patient for the payment of a single consultation and the same medicine;

(b) he issued 2 receipts both dated 3 May 2010 and in the amount of $6,120 to the Patient for the payment of the same consultations and operation(s) on 28 April 2010 to 3 May 2010;

(c) he issued 2 receipts both dated 6 May 2010 and in the amount of $1,500 to the Patient for the payment of a single consultation and the same medicine;

(d) he issued 2 receipts both dated 13 May 2010 and in the amount of $1,500 to the Patient for the payment of a single consultation and the same medicine; and

(e) he issued 2 receipts both dated 20 May 2010 and in the amount of $1,500 to the Patient for the payment of a single consultation and the same medicine.

In relation to the facts alleged, he has been guilty of misconduct in a professional respect.” (Emphasis added)

17.It is important to note that the disciplinary offence was not drafted, as it could have been, as simply being a failure to comply with section 26.4 of the Code of Professional Conduct.  It went further and particularized this failure as being a failure “to exercise due care”.

The Disciplinary Inquiry

18.Both the surgeon and the appellant, in effect, pleaded guilty before the respondent and their legal representatives advanced mitigation on their behalf.

19.After referring to the provisions of section 26.4 the respondent described the gravity of the two doctors’ conduct as follows:

“We must emphasize that doctors are required to issue reports and certificates on the basis that the truth of the contents can be accepted without question, and they must exercise care in issuing such documents. In respect of payment for medical services, the issue of multiple original invoices or receipts for the same payment is misleading in that they suggest that multiple payments have been received. When duplicate invoices or receipts are required to be issued, there is no reason for not stating that they are duplicates. Given the direction of section 26.4 of the Code, it is clear to every doctor what must be done when issuing duplicates.”

20.The respondent then went on to consider sentence.  It noted that both the surgeon and the appellant had clear records.  In respect of the appellant this was not true.  The respondent gave credit to both doctors for their cooperation and said of the appellant:

“In respect of the 2^nd Defendant, we accept that there is no evidence of bad faith or improper advantage in issuing the additional original receipts. Although he initially challenged the charges during preliminary investigation, he sensibly admitted the charges in this inquiry after further legal advice. We accept that this is an isolated incident. We are of the view that he has learned a hard lesson, and the likelihood of re-offending is low.” (Emphasis added)

The comments of the respondent in italics are consistent with the prosecution being based, in terms of the drafting of the charge, on a failure to exercise due care in the issuing of medical documents.

21.The respondent then proceeded to impose sentence saying:

“Having regard to the gravity of the case and the mitigating factors, we make the following orders:-

…

(b) In respect of the 2^nd Defendant (i.e. the appellant), a warning letter be served on him.  The order shall be published in the Gazette.”

22.The respondent appears to have regarded the orders it made in respect of both doctors as rather lenient for it said in its concluding paragraph:

“As we have indicated earlier, we make these lenient orders in the belief that the Defendants will not re-offend. We advise them to treasure the opportunity that we have given them and take particular care to prevent committing the same mistake again.”

23.The leniency that the respondent extended to the appellant was no doubt heavily influenced by its belief that the appellant was of clear record but it would undoubtedly also have been heavily influenced by the fact that the professional misconduct was committed through a failure to exercise due care, rather than through the appellant deliberately acting in a dishonest way.

24.With these remarks the Disciplinary Inquiry came to an end.  But, shortly afterwards the respondent became aware that the appellant had previously been convicted of a disciplinary offence which had not been brought to its attention.  It thereupon reconstituted itself and conducted a review under section 21(4B) of the Ordinance of the orders it had made.  Before discussing what transpired at the review hearing we shall briefly describe the facts of the appellant’s previous disciplinary offence.

The Previous Offence

25.Section 21(1) of the Ordinance empowers the respondent to make a variety of orders in response to proof of various kinds of misconduct.  Section 21(1)(a) and (b) contain the forms of misconduct that the Code of Professional Misconduct describes as the two most common disciplinary offences.  These are “misconduct in any professional respect” (section 21(1)(b)) and conviction “of any offence punishable with imprisonment” (section 21(1)(a)).  The former disciplinary offence underlies his current conviction and the latter his previous conviction.

26.His previous conviction arose from his participation in three conspiracies to defraud insurance companies by issuing false medical receipts and for which he was sentenced to serve 240 hours of community service. The charge alleged:

“He, being a registered medical practitioner, was convicted at the Kwun Tong Magistrates’ Courts on 20 March 2008 of three counts of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Chapter 200, Laws of Hong Kong, which is an offence punishable with imprisonment.”

27.The facts of the case were as follows:

“The Defendant Doctor, being a registered medical practitioner, was convicted at the Kwun Tong Magistrates” Courts on 20 March 2008 of three counts of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Chapter 200, Laws of Hong Kong, which is an offence punishable with imprisonment. The Defendant Doctor was sentenced to 240 hours of community service for each count, and the sentences were ordered to run concurrently.

Between 2003 and 2004, three patients of the Defendant Doctor, namely Madam Yeung, Madam Wong, and Madam Chan respectively took out insurance policies with CMG Asia Limited (“the Company”), which was subsequently merged with Sun Life Hong Kong Limited in March 2006, for insurance coverage including accidental medical expenses and temporary disability allowance.

Shortly after their insurance policies had been approved, Madam Yeung, Madam Wong and Madam Chan all started to submit to the Company claims for compensation with supporting medical receipts issued by the Defendant Doctor.

Between October 2004 and June 2007, the three patients submitted to the Company altogether 50 receipts issued by the Defendant Doctor.

Some of the medical receipts were false in that the amounts stated in those receipts were deliberately inflated.  Other receipts were false in that there had been no such consultation on the dates in question and no fee was paid by the patients.

These facts are not disputed.  The Defence admitted that he was convicted of the offences set out in the charge.”

28.These offences being offences of dishonesty, the respondent, not surprisingly, took a very serious view of the appellant’s conduct.  It nevertheless extended leniency to the appellant and ordered that his name be removed from the General Register for 6 months but that this order be suspended for 2 years.  It indicated that it was adopting such a lenient course “Due to the contribution of the factors unique to this case” and that “the suspension order should not be taken as a precedent case”.

29.Because the respondent adopted such a lenient course it is worth having regard to some of the comments it made in the course of sentencing the appellant.  It said:

“With regard to the mitigation that there was no financial gain from the offence, we must point out that it is the ethical conduct rather than the gain which is of significance. The Medical Council has repeatedly emphasized that honesty and integrity are of paramount importance for the medical profession.

Having regard to his previous record, the gravity of the case and the mitigation, we order that the Defendant Doctor’s name be removed from the General Register for a period of six months and such an order be suspended for a period of two years.

We have considered whether the order should not be suspended from operation.  But in view of the Defendant Doctor’s clear record, his admission of the facts, his demonstration of genuine remorse, his full cooperation with the Inquiry and no evidence to indicate a personal financial gain resulting from the offences, we consider that a suspension order is more appropriate.”

Having been sent away with these comments ringing in his ears the appellant should have felt very fortunate indeed and, of all things, should have realized the importance of compliance with section 26.4 and of the serious view the respondent takes of doctors failing to heed its provisions.

The Review Proceedings

30.The review proceedings were initiated when the media alerted the respondent to the fact that the appellant had a prior record.  After the Legal Officer, who was the prosecutor in the case, informed the respondent of the previous disciplinary offence the Chairman of the respondent said:

“Thank you. Before I listen to mitigation on this case, needless to say, the previous sentence is revoked and we will have to consider the charges that we have found the 2^nd defendant guilty of, in addition to the new information that was made available to us.”

31.Some time was then spent by Mr McGowan in explaining his position and why he was of the view that he was under no professional ethical obligation to bring his client’s previous record to the attention of the respondent.  This was done not just to explain his own position but also to ensure that no prejudice flowed to his client as a result of a professional judgment that he, and not the client, had made.

32.At the invitation of the Chairman, Mr McGowan then proceeded to address the respondent in response to the newly revealed information on the appellant’s previous disciplinary offence.  He referred to the fact that even in respect of the previous offence there was no financial gain to the appellant and emphasized the difference between the conduct in those offences and the conduct in the current offence.

33.The conduct underlying the current offence did not give rise to any criminal proceedings and did not involve any dishonest attempt to obtain money.  The current disciplinary offence did not flow from a criminal conviction but was merely a breach of the Code of Professional Conduct.

34.Mr McGowan reminded the respondent that earlier that day it had specifically found in respect of the appellant’s conduct that there was no evidence of bad faith by the appellant or the improper obtaining by him of any advantage.  He submitted that  the only change was that the respondent was now aware of the previous disciplinary offence and he suggested that even if the respondent now felt a stronger response was called for, it had available to it the option of a reprimand.

35.Before the respondent retired the Chairman did invite Mr McGowan to address the respondent on whether, in response, to the current conviction, it should activate, in part or in whole, the suspended removal order made in respect of the previous offence.  In response, Mr McGowan argued that the power to activate was a discretionary power and in view of the period of time that had elapsed since those criminal offences were committed and that the appellant had not committed any such offences since that time, the fact that the current misconduct was far less serious, the good service provided by the appellant to the community, the respondent should exercise its discretion in a way which would not prevent the appellant from continuing to practice.

36.When it resumed the respondent gave its judgment saying:

“In view of the previous record of the 2^nd Defendant we have to re-assess whether there was mala fides when the 2^nd defendant committed the present misconduct.”

37.The respondent then referred to the previous conviction and noted that the current offence was committed 6 months after the previous disciplinary conviction.  The respondent concluded that given his previous misconduct there was no reason for him to issue the additional set of receipts in his current offence without stating that they were duplicates or copies.  It also concluded that from this background of a previous involvement in a fraudulent scheme his explanation of not being alert to any impropriety must be false.  The respondent then said:

“In the circumstances, it is an irresistible inference that he issued the additional original receipts at least with the intention of assisting the patient to make parallel insurance claims to separate insurers in a manner which would conceal the fact that there were parallel claims.”

38.After reminding itself that the purpose of a disciplinary order was to protect the public from doctors who are unfit to practice medicine and to maintain public trust in the medical profession the respondent said:

“In light of our fresh findings in the review, we are of the view that the 2^nd Defendant’s conduct involved breach, betrayal and abuse of the public trust in the medical profession. We cannot allow the misconduct of a delinquent doctor to undermine the public trust in the profession, and a clear message must be sent.”

39.The respondent then revoked the order it had previously made in respect of the appellant and substituted for it an order that he be suspended from the General Register for 1 month.

40.The respondent went on to consider whether it should activate the suspended removal order imposed in respect of the previous offence.  In determining this issue, the respondent noted that the appellant had not avoided committing further disciplinary offences and not taken advantage of the opportunity given to him to rehabilitate himself.  Furthermore, the fact that he committed the current offences so soon after his previous disciplinary enquiry rebutted his claim of being genuinely remorseful for his current misconduct.  After noting that the legislative intent behind a suspended removal order power must be to ensure that a defendant does not commit further disciplinary offences within the suspension period, it said:

“Having regard to the following factors, we are of the view that the suspended order should be activated:-

(a) soon after the suspended order the 2^nd Defendant committed the present misconduct;

(b) the previous case and the present case both involved dishonesty; and

(c) the mitigation of genuine remorse which was relied upon by the Council in the previous inquiry has been entirely rebutted.

Having regard to all the circumstances, we order that 3 months of the suspended order be activated.  As the previous and present disciplinary offences were committed 4 years apart, the activated order of 3-month removal and the present order of 1-month removal shall run consecutively.  In other words, the 2^nd Defendant’s name shall be removed from the General Register for a total of 4 months.”

41.In a separate part of the review headed “Other remarks” the respondent made the recommendation in respect of any application the appellant might in future make to be restored to the General Register and of the conditions that should be imposed on his right to practice that we have referred to earlier in this judgment.

The Grounds of Appeal

42.There are three grounds of appeal.  The first is that given the findings the respondent made at the Disciplinary Inquiry the respondent erred in making adverse findings at the Review Hearing in respect of the appellant’s claim to not being alert to any impropriety, the presence of dishonesty in the circumstances of the case, the appellant’s intention to assist his patient make parallel insurance claims and conceal that fact and in respect of the appellant being fit to practise medicine and his conduct undermining the public trust in the profession.

43.The second ground of appeal is that the respondent failed to give sufficient weight to:

(i) the appellant’s clear record;

(ii) that he was running a single doctor practice;

(iii) that he was a respected and well thought of Family Practitioner;

(iv) there was no indication he was unfit to practise or had undermined the public trust in the profession; and

(v) this was a regulatory breach not involving a criminal conviction by the courts and only involving small amounts of money from which the appellant derived no benefit.

Part of this ground of appeal complained that the conditions contained in the respondent’s recommendation would make it practically impossible to continue in practice should he be restored to the General Register.

44.The final ground of appeal is simply that as a consequence of the complaints in the first two grounds of appeal, the penalties imposed on the appellant were “manifestly excessive and/or disproportionate in all the circumstances”.

Discussion

45.At the hearing of this appeal it became apparent that the major complaint of the appellant is that he went to the disciplinary hearing expecting to face, and to admit, a regulatory offence in the form of a breach of the Code of Professional Conduct through a failure to exercise due care.  Despite admitting to only this he came away from the Inquiry having been punished for having misconducted himself in a way which revealed mala fides, dishonesty and assistance to a patient to make parallel insurance claims in a way that would conceal what was being done.

46.Three issues arise from this.  The first is whether the findings made by the respondent can be supported on the material before it; secondly whether it was open to the respondent when dealing with a conviction of failing to exercise due care to punish the offender on a basis of dishonesty and thirdly, even if the respondent was entitled to punish the offender on this different basis whether it was entitled to do so without first alerting the offender of what it was contemplating doing and giving an offender the opportunity to respond.

47.Because of the views we have taken on the second and third issues it is not necessary for us to address the first in any detail.  However, we do note that here there was no direct evidence on the adverse findings the respondent made. They were only inferences drawn from the evidence and, on the face of the statement provided by the patient, they appeared to conflict with it.  An inference as prejudicial as the one drawn by the respondent in respect of the appellant knowingly assisting the patient to make a parallel claim in a way that would conceal that fact cannot be sustained just by the fact of the appellant’s previous misconduct.

48.In respect of the second issue of whether the respondent could, in effect, punish the appellant for something he was not charged with, we are of the view it could not.  The words “failed to exercise due care” are not an element of the offence and do not need to be included in the pleading of the offence.  But, when they are included, they indicate to the offender that his prosecution is based upon his misconduct having been committed through, essentially, neglect, rather than an intent characterised by mala fides, such as dishonesty.  Punishing him for such an intent cannot be done without amending the charge, such as by deleting from it the words “failed to exercise due care”, and replacing them with simply a bare allegation of a failure to comply with section 26.4 of the Code of Professional Conduct.  Such an amendment would then have the effect of alerting the offender to the fact that the respondent was allowing for the possibility of making findings other than that the misconduct was a consequence of a failure to exercise due care.

49.Quite apart from the issue of whether the appellant could have been punished for a form of misconduct of which he had not been convicted there is the third issue of whether procedural fairness dictated that he should have been informed by the respondent that in light of the new information on the appellant’s disciplinary record it was contemplating not just reviewing its sentence but also revisiting its findings on the absence of mala fides and dishonesty.  Such an indication would then alert the appellant to the peril he might be in and to provide him with the opportunity of giving or calling evidence.

50.In view of these errors by the respondent, we must allow the appeal.

51.Insofar as the appellant seeks to appeal the recommendation of the respondent regarding any future application he may make to restore his name to the General Register and as to the conditions that should be imposed on his right of practice, we dismiss his appeal.  These recommendations are not part of the respondent’s order and are not binding upon the respondent when it sits in adjudicating any future application by the appellant for restoration to the General Register.

Disposition

52.Under section 26(1) of the Ordinance power is given to the Court of Appeal to “affirm, reverse or vary the order appealed against, or remit the case to the council for an, or another, inquiry”.

53.The appellant’s previous misconduct took place between October 2004 and June 2007 and he was convicted of it by Kwun Tong Magistrates’ Courts on 20 March 2008.  This conviction was the basis of a disciplinary conviction by the respondent on 14 October 2009 and the imposition of a 6 months’ removal order suspended for 2 years.  The conduct underlying the current conviction occurred in April and May 2010 with the disciplinary proceedings taking place on 28 February 2013.  Given the age of the appellant (now 71 years) and the lapse of time since the misconduct took place, we do not think that the interest of justice would be served by remitting the matter to the respondent for another Inquiry.  We shall, therefore, determine for ourselves the appropriate order that should be made in respect of the appellant.

54.At the hearing of the appeal, we invited counsel to address us in anticipation that this might be the course we would decide to adopt. Mr McGowan, essentially, adopted and repeated all that he had advanced before the respondent.  He accepted that, realistically, it was open to this Court to find that, in the circumstances the appellant had acted recklessly in not complying with the requirement of section 26.4 of the Code of Professional Conduct.  Nevertheless, he submitted that there were disciplinary options available, such as reprimand, which would not result in the appellant losing his right of practice.  Depriving the appellant of his right of practice was, Mr McGowan contended, unnecessarily harsh and would have consequences to the appellant and his patients disproportionate to the gravity of his misconduct. Here, Mr McGowan referred to the appellant’s age, his past service to the community, the respect and affection of his patients that he enjoys and their need of his services.

55.It is clear to us that although the previous and current disciplinary offences are different in terms of their gravity, they both have at their heart the duty of a medical practitioner in issuing receipts for his service.  For the previous offence, the breach of duty was deliberate and dishonest and done to assist others in the commission of fraud.  For the current offence, there can be no doubt that the non-compliance was deliberate – the appellant knew of the requirements of section 26.4 and must have known that what he was doing was in breach of them.  He may not have known that any fraud was taking place but he did know that his patient was asking him to breach his Code of Professional Conduct and he did know that he was being asked to do so on the word of a patient with whom he had no previous dealings.  We are in no doubt that he acted in reckless disregard of his professional obligations and we are very disturbed by the clear indifference he displayed to those professional obligations.

56.The appellant is clearly a person who needs to have driven home to him the importance of compliance with section 26.4.  This can only be achieved through an order which has a more meaningful impact on him than a warning letter or reprimand.  Leniency has already been extended to him and it has clearly failed in the objective of ensuring he is aware of his duty in issuing medical receipts and of the need to fully comply with section 26.4.  In our view, given the past history of this appellant and the signal failure of a lenient penalty to encourage him to take his professional duty with regard to the issue of receipts seriously, the time has come for a sterner response.  We are of the view that the order made by the respondent removing the appellant’s name from the General Register for 1 month is the appropriate order and we would make such an order upon considering the matter afresh.

57.In respect of the previous conviction, we are in no doubt that the respondent correctly exercised its discretion in determining that the appellant’s conduct, occurring so soon after his past disciplinary conviction, warranted activation of the suspended removal order.  The only question is how long a part of the 6 months removal order should be activated.  The respondent determined that 3 months should be activated but its discretion in this respect miscarried as it resolved upon this figure by erroneously applying an improperly reached characterization of the appellant’s state of mind when committing the acts of professional misconduct.  Treating his state of mind as a reckless disregard of his professional obligation to comply with section 26.4 of the Code of Professional Conduct, we are of the view that an activation of 1 month of the suspended removal order is appropriate.  To ensure that such an activated period is meaningful, it must run consecutively to the 1 month removal order imposed for the current offence, and this we so order.

Conclusion

58.For the reasons set out in this judgment we allow the appeal.  Exercising the power afresh, we impose a 1 month removal order in respect of the current offence, we activate the suspended removal order made in relation to the previous offence and order that 1 month of the suspended removal order be served consecutively to the 1 month removal order imposed in respect of the current offence.  The effect of our order is that the appellant’s name shall be removed from the General Register for a period of 2 months.

59.The appellant having been successful on his appeal we see no reason not to award him his costs on appeal and accordingly make an order nisi to that effect.

Mr James H M McGowan, instructed by Tang, Wong & Cheung, for the appellant

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