Dr. Leung Shu Piu v. The Medical Council of Hong Kong

CACV 374/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 374 OF 2008

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL

OF HONG KONG MADE ON 23^RD NOVEMBER 2008)

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BETWEEN

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REASONS FOR

JUDGMENT

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Hon Yuen JA (giving the Reasons for Judgment of the Court):

1.There were three applications before us arising from the judgment of this court (Tang Actg CJHC, Yeung and Yuen JJA) dismissing the appeal of Dr Leung Shu Piu (“the Applicant”) from a decision of the Medical Council given on 23 November 2008. The judgment of this court was given on 8 March 2011 and the order was sealed on 4 April 2011.

2.The first application in point of time was an application, filed on 4 April 2011 by the Applicant, for leave to appeal to the Court of Final Appeal.  It is said on behalf of the Applicant that questions of great general or public importance are involved.

3.The second application, filed on 29 July 2011 by the Applicant, was to re-open the appeal for the Applicant to argue a new ground of appeal in relation to one of the charges, viz Charge (b). 

4.The third application, filed on 20 February 2014 by the Medical Council of Hong Kong (“the Respondent”), was for leave to file an affirmation to exhibit correspondence which was said to be relevant to the application to re-open the appeal.

5.At the hearing on 24 February 2014, we dealt with the third application first and refused leave with costs.  We then heard the second application and dismissed the application to re-open with costs with certificate for two counsel.  We then heard the first application and declined to grant leave to appeal to the Court of Final Appeal with costs with certificate for two counsel. 

6.Our reasons for these decisions appear below.

Application for leave to adduce correspondence in evidence 

7.We can deal with this briefly.  The Applicant’s application to re-open the appeal was filed on 29 July 2011.  The Applicant’s affirmation in support of his application was filed on the same day.

8.No evidence was adduced in opposition by the Respondent.  It was not until a week before the hearing on 24 February 2014, when the Applicant’s solicitors objected to the Respondent’s solicitors including certain documents in the hearing bundle, that the latter made the application for leave to adduce new evidence. 

9.That was a very substantial delay.  No explanation was forthcoming other than that the Respondent did not instruct counsel until about a fortnight before the hearing.  As the Respondent has been legally represented throughout, this is not a satisfactory explanation for the delay.  For this reason alone, we exercised our discretion not to give leave to adduce the evidence. 

Application to re-open appeal

10.Taylor v Lawrence [2003] QB 528 (CA) is authority for the proposition that the court of appeal has a residual jurisdiction to re-open an appeal, even after it has given a final judgment and that judgment has been drawn up.  This residual jurisdiction may be exercised where it was necessary to achieve the court’s two principal objectives - the private objective of correcting wrong decisions so as to ensure justice between the litigants involved and the public objective of ensuring public confidence in the administration of justice, not only by remedying wrong decisions but also by clarifying and developing the law and setting precedents (para. 26).  The jurisdiction referred to there has since been refined.  In Jaffray v Society of Lloyd’s [2008] 1 WLR 75, it was held that the jurisdiction to re-open does not extend to a situation where fraud has been perpetrated on the court by one of the parties.

11.Taylor was referred to by this court (Mayo VP, Stock and Cheung JJA) in In the matter of a solicitor CACV2/2001, 23 October 2002, unrep. (para.8) andwas followed by this court (Le Pichon and Yuen JJA and Waung J) in Aqua-Leisure Industries Inc and anor v Aqua Splash Ltd No.2 [2003] 2 HKLRD 422(para.2). 

12.In HKSAR v Tin’s Label Factory Ltd (2008) 11 HKCFAR637, the Court of Final Appeal held (para. 56):

“Whilst the question of the residual discretion does not arise for consideration in the present case, the approach in Taylor v Lawrence merits serious consideration for adoption in Hong Kong for an intermediate court of appeal dealing with civil or criminal cases as the appropriate solution for reconciling the tension between the two principal objectives referred to above for such a court. However it is plain that the residual discretion is a wholly exceptional jurisdiction and the occasions when it may properly be invoked would be extremely rare”. (Emphasis added).

13.It is therefore clear that there is a residual jurisdiction.  The question is when it should be exercised.

14.In Taylor, the proceedings were between neighbours for trespass.  The claimants were represented by a firm of solicitors “MAB”.  The defendants were unrepresented. The trial judge disclosed to the parties that MAB had acted for him in drafting a will but that he had not had any dealings with them for a long time.  There was no objection to the judge proceeding with the trial.  Subsequently he gave judgment in favour of the claimants. 

15.The defendants appealed on the ground of apparent bias.  On appeal it was revealed that the evening before giving judgment, the trial judge had used MAB’s services to amend his will.  The appeal was dismissed.

16.Subsequently however it was discovered that the trial judge had not paid for MAB’s services.  This had not been revealed at any stage during the trial or even during the appeal.  The defendants sought permission to reopen the appeal.  The English Court of Appeal gave permission to the defendants to make the application but dismissed the application.

17.The extraordinary facts of that case demonstrate the sort of exceptional circumstances that would be required before an appellate court would exercise its jurisdiction to re-open an appeal. 

18.In our view, for the reasons set out below, the present case did not fall within the sort of exceptional circumstances where, taking into account the two principal objectives discussed above, this court should exercise its residual jurisdiction to re-open the appeal.

19.Before we discuss the merits of the application however, we should first point out that the procedure for making an application to the Court of Appeal to re-open an appeal was set out in Taylor at para. 56: 

“... [A] party seeking to re-open a decision of this court, whether refusing permission to appeal or dismissing a substantive appeal, must apply in writing for permission to do so. The application will then be considered on paper and only allowed to proceed if after the paper application is considered this court so directs. Unless the court so directs, there will be no right to an oral hearing of the application. The court should exercise strong control over any such application, so as to protect those who are entitled reasonably to believe that the litigation is already at an end”. (Emphasis added).

20.Although directions were given early in these proceedings for the application to re-open to be heard together with the application for leave to appeal to the Court of Final Appeal without consideration of whether leave should be given for the application to re-open, we would record that the registry has since been instructed that in future, any applications to re-open appeals (which in any event we expect to be rare) will not be set down for hearing without leave being granted first.

21.We then come to the merits of the application.  Charge (b) stated as follows:

“On or about 24 May 2006, upon enquiry of the patient’s father on whether Celestamine contained steroid, [the Applicant] did not reply him in the positive and instead, he told him that Celestamine was not regarded as a steroid.

In relation to the facts alleged, you have been guilty of misconduct in a professional respect”.

- Background

22.It is necessary to set out some relevant background first in order to understand the aspect on which the Applicant sought to re-open the appeal. 

23.The Applicant’s patient was a boy born in 2000.  Between 2004 and 2006, the Applicant had prescribed Celestamine (which, it was agreed at the hearing, contained steroid) for the child on more than 20 occasions.  It was not disputed that the parents had never been told that it contained steroid. 

-  The father’s evidence

24.In May 2006 the boy was taken to see the Applicant again for an illness.  Antibiotics and Celestamine were prescribed.  The father considered that the medicines prescribed were not effective, so on 23 May 2006 he went to a pharmacy and asked the pharmacist about them.  The pharmacist said words to the effect that Celestamine contained hormones, such as steroid.  This made the father concerned, so he telephoned the nurse at the Applicant’s clinic and asked if Celestamine contained steroid, but he was not given a direct reply.  The father decided to stop giving Celestamine to the child.

25.The next day (24 May 2006) the parents took the child to see the Applicant.  The father asked the Applicant if Celestamine contained steroid.  According to the father, the Applicant said that

- Celestamine was not regarded as a steroid;

- as the child had taken antibiotics for a number of days       without improvement, he proposed to prescribe a course       of steroids. 

The father refused the proposed course of steroids.  The child was then prescribed the same dose of Celestamine which the father accepted.

26.Subsequently the father made further inquiries which led to the complaint in Charge (b).

- The Applicant’s reply to PIC

27.The Applicant’s first reply to this charge was set out in his solicitors’ letter to the Preliminary Investigation Committee (“PIC”) dated 31 January 2007:

“33. Dr Leung cannot recall if the father had enquired about whether Celestamine contained steroid. As far as Dr Leung could recollect, the whole dialog during that visit was related to the possible side effect of Prednisolone which he intended to prescribe. However, if the father did ask the question, Dr Leung would not have denied it. There is no reasons why Dr Leung should deny it. Further it is simply not possible to deny the fact that Celestamine contains steroid. One can easily obtain such information from the internet, pharmacy or any other doctors with the name and dosage of the medicine labelled on the syrup bottle.

36. On 24 May 2006 Dr Leung might have told the father that the Celestamine prescribed to [the child] for the past three consultations were not generally regarded as equivalent to a prescription of full dose of steroid for treatment of bronchial allergy. This is not equivalent both in terms of potential side effects and therapeutic effect on bronchial allergy. According to the complainant, it is alleged that ‘Dr Leung said that Celestamine is not considered a steroid’ but not ‘Dr Leung said that Celestamine is not a steroid’. There may have been misunderstanding on the part of the father on Dr Leung’s explanation”.

(Emphasis added).

28.Pausing there, the Applicant’s case then was that

-   he did not recall if the father had asked him if   Celestamine contained steroid;

-   he might have told the father that Celestamine was “not generally regarded as equivalent to a prescription of full dose of steroid”, a statement which in our view would not be reasonably understood to mean that Celestamine contained steroid.   

-  Applicant’s evidence before the Medical Council

29.However at the hearing before the Medical Council on 17 July 2008, the Applicant’s evidence was first, that if the father had “challenged [him] that Celestamine contained steroid”, he would have remembered, and he did not remember that that had taken place (Transcript Day 3 p.74).  In other words, the Applicant’s evidence was that the father had not asked him if Celestamine contained steroid.

30.Further, the Applicant’s evidence was that the father was unhappy because the child had not responded to treatment and he (the Applicant) proposed steroid treatment which the father refused.  It was after this that he told the father that Celestamine contained steroid (Transcript Day 3 pp.72 - 73):

“Before he [the father] went out [to the waiting area], I explained to him in detail what my plan is going to be. I also explained to him what medicine I have been giving him. In that sort of setting, that he explicitly said ‘I don’t want steroid’, I explained to him, “Look, these are the medicines I have been giving you, antibiotics, bronchodilator, and this Celestamine contains steroid, but that steroid is not equivalent to the Prednisolone that I am going to give you because this is a full dose steroid, this is a very low dose steroid, and it is not the same thing”. I certainly told him at this juncture. What I mean is that before he goes out of the consultation room he knew that Celestamine contained steroid”. (Emphasis added).

31.The impression given there is that – without enquiry from the father as to whether Celestamine contained steroid, and after the father had already explicitly refused steroid treatment for the child (as noted in the record) – the Applicant volunteered the information that there was a steroid in Celestamine, which he had given the child on many occasions previously (without having informed the parents). 

32.The Applicant’s evidence was that when the father received this information, which must have come as a surprise, he (the father) made no further enquiry and accepted the same dose of Celestamine as treatment, despite his refusal of steroid treatment even after the Applicant’s explanation that it would not have side effects. According to the Applicant (Transcript Day 3 p.138)

“ ... I told him that this medicine [Celestamine] contained steroid, he went out, and he comes back and said ‘I want to get some medicine’, ‘I will give you the same medicine, is that OK?”, ‘OK, that’s all right. Give me the same medicine’. ...”

That was the Applicant’s evidence before the Council.  It was contradictory to the father’s evidence that he had asked the Applicant if Celestamine contained steroid (it is notable that the Applicant himself accepted in evidence that the father was an honest man who had not made anything up Transcript Day 3 p.144). It was also contradictory to the father’s evidence that the Applicant told him that Celestamine was not regarded as steroid. 

33.The Applicant’s evidence was also inconsistent with his own reply to the PIC in which he said he did not recall if the father asked if Celestamine contained steroid, and that he might have given a somewhat enigmatic statement about its non-equivalence to a full dose of steroid.  This inconsistency was directly put to the Applicant by the Legal Officer and he had the opportunity of addressing it (Transcript Day 3 p.101).

-  Council’s finding of professional misconduct

34.In the light of these different versions, the Council was entitled as a fact-finding tribunal to accept the father’s evidence and to reject the Applicant’s.  The Council further found (para.18):

“Having considered the entirety of the evidence, we are satisfied that the Defendant answered the question by saying that Celestamine was not regarded as a steroid. We do not accept that the Defendant misunderstood such a simple question. Furthermore the Defendant’s subsequent advice in the same conversation about Prednisolone being a steroid was clearly prompted by the question. We are satisfied that the evasive answer was intended to conceal the fact that he had been prescribing a steroid for many times without informing the patient’s parents. It is unethical for a doctor to give such an evasive and misleading answer to a patient’s parent who has shown concern for the medicine in question, and the Defendant’s conduct has certainly fallen below the standard expected. We are satisfied that this is professional misconduct”. (Emphasis added).

- Consideration of the mental element in charge (b) before the Medical Council

35.It would be noted that the Applicant’s counsel before the Council (Mr Macrae SC, now Macrae JA) did not at any stage challenge Charge (b) as being ambiguous or defective.  Nor did he argue that the Applicant’s state of mind was not relevant to Charge (b). 

36.Indeed the Applicant was asked in examination in chief whether he had made a “conscious deliberate attempt to add secrecy” in not informing the parents that Celestamine contained steroid (Transcript Day 3 p.62).  In relation to that question and answer, Mr Barlow SC (acting for the Applicant before us) is correct in saying that that they referred to charge (a)(ii) – but it must be noted that the Applicant’s case in answer to charge (b) was that he did inform the father on 24 May 2006 that Celestamine contained steroid.  If the Council rejected that evidence (as it did), then the situation on 24 May 2006 would have been no different from the previous 20+ occasions when Celestamine was prescribed without the Applicant telling the parents that it contained steroid – with the added element that on that occasion, he was asked a direct question about it and did not give a true answer.  

37.Mr Macrae was aware that the Applicant faced a charge of professional misconduct that included an allegation of deceit and  addressed the Council directly on the point.  In his closing submissions in respect of Charge (b), Mr Macrae wrote:

“If the allegation be that the [Applicant] purposely set out to mislead the patient’s father by deliberately withholding from him the truth that he had all along been prescribing a drug which was part steroid, then so be it. That sort of deceit could amount to misconduct in a professional respect” (para. 7).

“ ... the Council should properly give the [Applicant] the benefit of the doubt on the allegation that he deliberately misled the patient’s father on this matter” (para.23). (Emphasis added).

38.The Legal Adviser’s advice to the Council was that it should consider five questions in respect of charge (b) (Transcript Day 4 p.56):

“The first question is: What was the patient’s father’s question? Or, put it this way: Having regard to the context of the conversation on 24 May 2006 between the Defendant and the father, what was the father’s question about whether Celestamine contains steroid? Secondly: What was the Defendant’s answer to that question? Thirdly: Was that answer a deliberate concealment of the steroid component of Celestamine or was it a matter of misunderstanding or miscommunication between them? Fourthly: Was the Defendant’s conduct in this regard below the standard expected of registered medical practitioners? Finally: Did that amount to professional misconduct?” (Emphasis added).

39.No objection was raised by senior counsel for the Applicant to that advice.

-Original Ground (6)

40.In the Applicant’s first notice of appeal filed on 23 December 2008, ground 6 was as follows:

“The Council, in addressing the question whether the Appellant’s reply to the patient’s father’s enquiry on 24^th May 2006

‘was given deliberately to conceal the fact that Celestamine contained steroid’,

found that

‘the evasive answer was intended to conceal the fact that he had been prescribing a steroid for many times without informing the patient’s parents’

and, later during sentence, that he

‘acted dishonestly when the patient’s father asked whether the medicine contained steroid’.

Neither the question the Council posed itself nor their answer to it formed any part of the particulars of the Charge. Accordingly it was a material irregularity for the Council to have focussed on why the Appellant might have said what he did rather than what was in fact said and the circumstances which gave rise to such conversation. Furthermore, in as much as such reasoning contributed to the sentence passed upon the Appellant on this Charge, the sentence was unfair and inappropriate”.

This has been referred to as “the Original Ground”.  

41.The original grounds of appeal had been drafted by Mr Macrae in 2008.  However the hearing of the appeal was adjourned as Mr Macrae was indisposed.  Subsequently he joined the bench and Mr Huggins SC was instructed in his place. 

- Re-re-Amended Notice of Appeal

42.The appeal was set down for hearing in January 2011.  The Applicant has exhibited correspondence passing between himself and his then legal representatives commencing in July 2010 and lasting some 6 months.  We do not intend to go into detail about this correspondence.  Suffice it to say that senior counsel’s view was that there was no real prospect of the Original Ground succeeding.  The Applicant sought to dissuade him but he was not successful.

43.In November 2010 the Original Ground was deleted in the Re-re-Amended Notice of Appeal.  In relation to Charge (b), two new grounds were added, ground (7) which dealt with standard of proof, and ground (8) which stated:

“The Medical Council erred in finding that a deliberate evasion by Dr Leung of the question posed by the patient’s father amounted to professional misconduct without differentiating between an improper motive for the evasion (namely self-protection) and another perfectly proper motive, namely a possible and understandable wish not to cause anxiety or worry to the parents in relation to the small steroid content of the drug (which Dr Leung believed would be beneficial to the child and not at all harmful). The latter motive did not necessarily reflect an improper and unprofessional intention to deceive the father in order to protect himself”.

44.This was the Applicant’s position at the hearing of the appeal which was dismissed for the reasons set out in the judgment handed down on 8 March 2011. 

-  Basis of the application to re-open the appeal

45.The basis of the Applicant’s application to re-open the appeal - some 4 months after the judgment was delivered and 3 months after the order was sealed - was that he wished to argue the Original Ground after all. 

46.We took the view that this was an unmeritorious ground for seeking to re-open the appeal.  It is fundamental to the administration of justice that there should be finality in arguments presented to the court, on the basis of which the court renders its judgments which are final once sealed, and short of exceptional circumstances (such as the new evidence in Taylor supporting the allegation of judicial bias), appeals should not be re-opened.  In our view the wish of an unsuccessful appellant to revive an abandoned argument - especially an argument which he has had ample time to consider with the benefit of advice from experienced legal representatives - is clearly not an exceptional circumstance.  This view is confirmed by the following.

47.In Re a Solicitor, Stock VP said (para. 9):

“In my judgment, this is decidedly not the sort of situation which Taylor v Lawrence had in mind at all. There was in the present case a deliberate decision taken by the appellant not to argue that the penalty was excessive. Nothing new emerged between the hearing before the Tribunal and the hearing before this Court, or indeed since, which affects the analysis of the merits open to the appellant and to his legal advisers”.

48.In Barclays Bank plc v Guy (No.2) [2011] 1 WLR 681, Lord Neuberger MR (now Lord Neuberger PSC) said (para. 36):

“ ... If a party fails to advance a point ... that would not, at least without more, justify re-opening a court decision”.

49.In Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, 143, the Court of Final Appeal quoted with approval the judgment of Gleeson CJ in R v Birks (1990) 48 A Crim R 385:

“As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to ... what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment. ...”

50.As noted earlier, there had been correspondence passing between the Applicant and his legal representatives 6 months before the appeal was heard.  The Applicant had ample time to consider together with experienced legal representatives what arguments to deploy and what to abandon.  He yielded to senior counsel’s views.  In our view, that is the end of the matter and the application to re-open the appeal to argue the Original Ground must be dismissed. 

51.In any event it is clear in our view that the Original Ground would not have assisted the Applicant had it been taken on appeal. 

52.First, as mentioned earlier, no challenge was raised at the hearing before the Council that Charge (b) was defective.  It seems to us that this was not surprising. 

53.In Dr Hui Yat Ming v Medical Council of Hong Kong [2002] 1 HKC 218, the relevant particular was that the doctor had “recorded [his] assessment of the patient in her medical records as ‘no discomfort after the drug’ as at 13 July 1999 when in fact [he had] not seen or examined her on 13 July 1999".  The argument before this court (Mayo VP, Cheung JA and Seagroatt J) was that no allegation of dishonesty had been made in the charge and accordingly the Council was not entitled to find that the doctor’s action was “dishonest and misleading”. 

54.The court held (p.225):

“It was not necessary for the particular to contain anything more than an allegation of inaccuracy in the record. By implication it was a misleading entry whether made accidentally, carelessly or deliberately. The evidence, if and when it emerged fully, would determine whether it was so. ...

The professional misconduct was clearly made out on the strength of the entry and the evidence in relation to it. The fact that the Council concluded that it had been made dishonestly was an aggravating feature. It put the professional misconduct into sharper focus. It would be relevant to the penalty imposed”.

55.The present case is very different from Timothy Sim Chuan Teoh v The Hong Kong Medical Council CACV37/2007, 1 Feb. 2008, unrep..  In that case the particular of charge was that the doctor “issued 4 vouchers to [an insurer] for claiming consultation fees ... in respect of his patient ... by which act, he represented or implied that he was consulted by [the patient] on the said dates when in fact he was not”.  The Council found discrepancies in two photocopies of the same documents and, without drawing the discrepancies to the doctor’s attention to give him an opportunity of explanation, concluded on the basis of the discrepancies that he was guilty of professional misconduct.  This court (Rogers VP, Hartmann and Barma JJ) held that as the discrepancies had not been put to the doctor at the hearing to give him the opportunity of explanation, the decision must be set aside.  The judgment was based on the absence of due process, which is different from the present case where the Applicant was given every opportunity to explain why he had told the patient’s father that Celestamine was not regarded as a steroid. His case however was that he did tell the father that Celestamine was a steroid.  When his evidence was rejected by the Council, it was for the Council to decide, after considering all the circumstances, why he told the father that it was not regarded as a steroid.  

56.To support his arguments, Mr Barlow referred to two cases after the decision of the Council in the present case.  In  Dr Tan Ronald Francis v The Medical Council of Hong Kong CACV50/2010, 13 June 2011, unrep., the doctor was alleged to have deliberately used one Chinese term 激素 “kik so” instead of another Chinese term 類固醇 “lui ku shun” to conceal the fact that he was administering a steroid.  However it was not disputed that both Chinese terms were properly used for steroids.  On the face of it there was no inaccuracy. Notwithstanding this, it was not put to the doctor that he used 激素 “kik so” deliberately to conceal his administration of steroid.  This court (Kwan and Fok JJA and Chu J) held that the Council’s decision that he had deliberately done so should be set aside. 

57.In Dr Roderick Lo and anor v The Medical Council of Hong Kong CACV274/2011, 16 December 2013, unrep. the charges against two doctors were in respect of a surgical operation for a tumour.  The 1^st defendant was the patient’s regular doctor, and the 2^nd defendant performed the operation with the 1^st defendant’s assistance.  The charges (briefly) were that they had failed to do pre-surgical examinations and to provide proper post-surgical treatment. 

58.There were clear conflicts of evidence between the patient’s family and the defendants, especially as to pre-surgically, whether certain examinations had been done, and post-surgically, whether the doctors told the family the tumour had been completely excised, and whether the doctors failed to advise follow-up oncological treatment.

59.The Council found that both defendants had been dishonest and guilty of most of the charges.  However in arriving at this finding the Council ignored documentary evidence which would have been significant to their findings on the conflicts of evidence between the family and the defendants. 

60.This court (Lam VP and Barma and Macrae JJA) analysed the documents and found they were of direct relevance and significance to each of the conflicts of evidence.  Some documents were hospital records or written by third parties, so there could have been no doubt about their veracity.  As regards the defendants’ own clinical records, the Council did not evaluate them at all, so it was not known what views the Council took  of them.  That is a very different situation from the present case where there were no contemporaneous records of the discussions between the father and the Applicant.  Accordingly we did not consider that the quoted case assisted the Applicant. 

61.Secondly, as mentioned earlier, consistently with the absence of challenge to the wording of the charge, defence counsel adduced evidence from the Applicant on his state of mind and addressed the Council on the matter in his closing submissions.  We did not see any lapse in due process. 

62.Thirdly, in our view the Council was entitled, and indeed obliged, to consider the Applicant’s intention behind his answer to the father before it could decide whether it amounted to professional misconduct.  Given that it was common ground that Celestamine did contain steroid, the particulars of charge were concerned with the inaccuracy of the Applicant’s statement that it was not regarded as a steroid.  It was not necessary for the particulars to specify that the inaccuracy was imparted dishonestly for professional misconduct to be found.  However it was necessary for the Council to find what was the Applicant’s intention.  

63.If the Applicant’s evidence disclosed that at the end of a long day he was tired and he had carelessly said that Celestamine did not contain steroid in a slip of the tongue, the Council would have to decide whether the inaccurate statement – made inadvertently in circumstances of carelessness – did or did not amount to professional misconduct.  Or if the Applicant’s evidence had been that he had told a “white lie” in the exigencies of the situation because he wanted to avoid adding unnecessary stress for worried parents with a sick child, the Council might or might not have found that the inaccurate statement - made deliberately but benevolently – amounted to professional misconduct. 

64.But that was not the Applicant’s evidence, and on the evidence he did give – that he voluntarily offered the information that Celestamine was a steroid when the father had not asked him and had explicitly rejected a steroid course -- which the Council rejected, and in the light of the father’s evidence which the Council accepted, it was entitled to make the finding it did.  Accordingly we are far from persuaded that simply because the particulars of Charge (b) did not contain words like “intentional or deliberate concealment” or “dishonesty”, the Applicant’s state of mind was irrelevant to the Council’s decision and that it erred in finding that he had deliberately misled the father on the steroid content of the drug.  

65.In conclusion we do not see any merit in the application to re-open in any event.

Application for leave to appeal to the Court of Final Appeal

66.As for the application for leave to appeal to the Court of Final Appeal, the intended questions are as follows (presumably the original questions drafted by the Applicant himself in the Notice of Application filed on 4 April 2011 have been abandoned):

(1) relating to charge (a)(ii),

“Where a medical practitioner forms a clinical judgment that the correct treatment of the health of a minor patient requires the prescription of medicines which will not harm the patient and which present no risk of adverse side-effects, does he commit professional misconduct if he fails to advise the patient’s parents of the nature of the medicines plus the absence of side effects, if, in his professional judgment, doing so may not be in the best interests of the health of the patient?”

(2) relating to charge (a)(i),

“Can a medical practitioner be convicted of professional misconduct because, having made an initial diagnosis of his patient’s condition, during subsequent treatments in which he orally made the same diagnosis, he fails specifically to make another record repeating his original diagnosis?”

(3) relating to charge (b),

“Is a verdict of dishonest professional misconduct vitiated if no charge of dishonesty was unambiguously formulated and/or put to the Respondent during the hearing?”

67.We considered that the decisions of the Council and this court were fact-sensitive and questions (1) and (2) as formulated did not arise on the facts as found. 

68.In relation to question (1), it was common ground that Celestamine was not justified if the patient was not suffering from Pre-school Viral Wheeze (“PVW”), and the Council found on the facts (as confirmed by this court) that the patient was not suffering from PVW on 22 occasions when the Applicant prescribed Celestamine. 

69.As for question (2), the Council rejected the Applicant’s excuse that although he did not record “PVW” and only recorded “Upper Respiratory Tract Infection (“URI”) in his clinical records, his diagnosis was nevertheless that of “PVW”.  The Council held “we see no reason that he would have consistently chosen to singularly omit the most significant diagnosis of PVW but not those less significant diagnoses throughout the large number of consultations”.

70.As for question (3), as we have not re-opened the appeal, there is no decision of this court from which he could appeal to the Court of Final Appeal. 

Mr Barrie Barlow, S.C., instructed by Wong & Fok, for the Applicant

Mr John Bleach, S.C. and Mr Robin McLeish, instructed by the Department of Justice, for the Respondent