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Dr Kwan Chee Keung v The Medical Council Of Hong Kong

Judgment Cited authorities 2 Cited in 1 Precedent Map Related
Vincent
Judgment Date20 November 1998
Year1998
Citation[1999] 2 HKLRD 224
Judgement NumberCACV101/1998
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000101/1998 DR KWAN CHEE KEUNG v. THE MEDICAL COUNCIL OF HONG KONG

CACV000101/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 101
(Civil)

DR KWAN CHEE KEUNG Appellant
AND
THE MEDICAL COUNCIL OF HONG KONG Respondent

--------------------------

Coram: Hon Nazareth, V.-P., Godfrey and Rogers, JJ.A. in Court

Date of Hearing: 20 November 1998

Date of Judgment: 20 November 1998

---------------------

J U D G M E N T

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Nazareth, V.-P.:

1. This is an appeal by Dr Kwan Chee-keung, the appellant, against the order of the Medical Council of Hong Kong in which it ordered the removal of his name from the medical register for a period of three months consecutive to an earlier period of removal in relation to other matters.

2. That order was made after a hearing of two days in the course of which the Medical Council found him guilty of two of four charges of professional misconduct. The charges were specified in the following way:

"That you, being a registered medical practitioner, at your surgery at Shop H, Kiu Hing Mansion, 14 King's Road, Hong Kong, did .

(i) on 18 September l995, dispense improper dosage of medicine to your patient, minor CHIN Nga-yee for treatment of her abdominal pain;

(ii) on 26 October 1995, dispense improper dosage of medicine to your patient, minor LAM Oi-yee for treatment of her cold and influenza.

(iii) on 18 September 1995, fail to properly label the medicine dispensed to your patient, minor CHIN Nga-yee for treatment of her abdominal pain; and

(iv) on 26 October 1995, fail to properly label the medicine dispensed to your patient, minor LAM Oi-yee for treatment of her cold and influenza;

and that in relation to those facts alleged, you have been guilty of misconduct in a professional respect."

As I say the Council found the doctor guilty of misconduct in a professional respect in respect of charges (iii) and (iv), but they acquitted him on charges (i) and (ii). He now appeals to this Court against the severity of the order made against him.

3. The order was made under s21 of the Medical Registration Ordinance (Cap 161). So far as material its provisions are as follows:

"21. Disciplinary powers of Council

(1) If, after due inquiry into any case referred to it by the Preliminary Investigation Committee, the Health Committee or the Education and Accreditation Committee in accordance with regulations made under section 33, the Council is satisfied that any registered medical practitioner -

(a) has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment;

(b) has been guilty of misconduct in any professional respect;

(c) has obtained registration by fraud or misrepresentation; or

(d) was not at the time of his registration entitled to be registered;

(e) has breached a condition previously imposed under paragraph (iv);

(f) is physically or mentally unfit to practise medicine, surgery or midwifery; or

(g) where applicable, has procured his name to be included in the Specialist Register by fraud or misrepresentation,

the Council may, in its discretion -

(i) order the name of the registered medical practitioner to be removed from the General Register; or

(ii) order the name of the registered medical practitioner to be removed from the General Register for such period as it may think fit; or

(iii) - (v) ..."

The appellant has appealed on a number of grounds. There is no need to list these. Before us Mr Macrae, who did not appear before the Council, pursues on his behalf two main points on the basis of the several grounds specified in the notice of appeal. The first is that the order by way of sentence or penalty was excessive and second that there was a failure to give reasons.

4. Before I turn to address these two points, it is helpful to touch upon the limited nature of the scope for intervention by this Court in orders made by domestic tribunals like the Medical Council and in their proceedings. It is convenient to take that legal position from the case of Libman v General Medical Council [1972] AC 217 where Lord Hailsham LC at pp. 220G and 221E dealing with statutory provisions materially similar to ours which conferred jurisdiction upon the court there, said this:

"Notwithstanding the generality of the above language, the actual exercise of the jurisdiction [of the court] is severely limited by the circumstances in which it can be invoked. ...

In the result, although the jurisdiction conferred by the statute is unlimited, the circumstances in which it is exercised in accordance with the rules approved by Parliament are such as to make it difficult for an appellant to displace a finding or order of the committee unless it can be shown that something was clearly wrong either (i) in the conduct of the trial or (ii) in the legal principles applied or (iii) unless it can be shown that the findings of the committee were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread."

5. Turning then to the first of his two points Mr Macrae calls attention to the Professional Code and Conduct for the Guidance of Medical Practitioners published by the Medical Council of Hong Kong in March 1994 ("the Code"), which introduced the requirements for labelling that were brought into effect on 1 January 1995. He submits, therefore, that as the present offences were committed in September and October 1995, and the appellant was the first medical practitioner known to have infringed the new provisions although another medical practitioner was proceeded against first by the Council, he would not have fully appreciated the impact of the then recently implemented provisions nor become aware of the seriousness of the offences.

6. However, about 8 months had elapsed since the commencement of these new requirements. One would have thought that a medical practitioner would have been well placed to realise the importance of the simple requirements and the seriousness of their breach. That is particularly so since, as we have been made aware in the course of the hearing before us, this particular clinic, like many others we are told, was staffed by the doctor himself and two nurses who were unqualified. The conclusion, therefore, is inescapable that he was the only one in the clinic who was in a position to appreciate the importance of the requirements.

7. Reverting to Mr Macrae's submissions, he also points out in mitigation that it was established that the appellant had, since the breaches of the Code, implemented a computer system which printed out the names of the medicines dispensed and moreover changed his practice to ensure that actual brand names were used and all medicines personally approved by him before being given to patients. To that extent he had compiled with the most important of the requirements. He submits, therefore, that the situation had been rectified by the time of the inquiry and was unlikely to be repeated.

8. He also submits that upon the law, the Council was entitled to have regard to other orders of that sort made to ascertain whether the particular order contemplated was out of line or disproportionate to the particular circumstances. He relies in that respect upon in re H (A Barrister) [1981]1 WLR 1257, 1261. In that case which, as the title reveals was a disciplinary case against a barrister, the hearing was before the visitors, Latey J, Sir Robert Megarry VC and Ralph Gibson J. In their judgment they recognised that in general it is desirable that there should be consistency in such orders. They added, and this is perhaps relevant more to Mr Macrae's next ground, that the record of decisions made available to the sentencing disciplinary tribunal ought to state such matters relevant to the sentence as can readily be stated. They also addressed the question whether there was an established pattern or norm, deciding there was, in the three comparable cases all disclosing identical sentences.

9. Against that background I return to Mr Macrae's submission. He pointed out that by 1 April 1998 there had been two inquiries before the Council in relation to two medical practitioners charged with the same offence under paragraph 5 of the Code. The second medical practitioner had been acquitted on the basis that the inadequacies of her labelling which they found did not amount to professional misconduct. The first medical practitioner, however, was found guilty in relation to four packets of medicine dispensed to an unidentified number of patients for failing to label them with the name of the patient and the date of dispensing. By way of penalty he was served with a warning letter which, Mr Macrae points out, ranks as the least penalty open to the Council upon conviction.

10. In that respect, Mr Macrae refers to the specific labelling requirements of the Professional Code and Conduct. These are contained in paragraph 5.1 which reads:

"5.1 As from 1 January 1995, all medicines dispensed to patients directly or indirectly by a medical practitioner should be properly labelled with the following essential information:

(a) Name of patient

(b) date of dispensing

(c) trade name or pharmacological name of the drug

(d) dosage per unit

(e) method and dosage of administration and

(f) precaution where applicable."

He points out that in this case the deficiencies were in the date of dispensing, the trade name or pharmacological name of the drug, and the dosage per unit. But, he says, there was compliance as to the name of the patient, in that the Christian name of one of the minors was specified and the full name of the other. He contended that the requirement for dosage per unit to be specified did not...

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  • Dr Wu Hin Ting, Peter Brendan v The Medical Council Of Hong Kong
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 20 November 2003
    ...by this court in Dr Mu Lie Lian v Medical Council [1994] 3 HKC 8 and in Dr Kwan Chee Keung v Medical Council of Hong Kong (No.2) [1999] 2 HKLRD 224. It is also worth noting as a useful rule of thumb that an appellate court will only reverse the findings of the tribunal below if, on reviewin......

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