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Hui Wei Lee v The Medical Council Of Hong Kong

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date15 February 1994
Year1994
Judgement NumberCACV114/1993
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000114/1993 HUI WEI LEE v. THE MEDICAL COUNCIL OF HONG KONG

CACV000114/1993

H E A D N O T E

Disciplinary charge against a doctor - Charge arose out of what passed between her and a patient - That formed part of a course of dealings of which what passed between the doctor and her colleagues about that patient was likewise a part - Whole course of dealings constituted the res gestae - What passed between the doctor and her colleagues was therefore admissible as part of the res gestae

IN THE COURT OF APPEAL

1993, No. 114
(Civil)

________________

BETWEEN
HUI WEI LEE Appellant
AND
THE MEDICAL COUNCIL OF HONG KONG Respondent

_________________

Coram: Bokhary, Mortimer and Godfrey, JJ.A.

Date of hearing: 15 February 1994

Date of judgment: 15 February 1994

_________________

J U D G M E N T

_________________

Bokhary, J.A.:

1. This is an appeal, pursuant to section 26 of the Medical Registration Ordinance Cap.161, from an order made by the Medical Council.

2. The appellant is a registered medical practitioner. In May last year, she appeared before the Council on a disciplinary charge. The charge was one of misconduct in a professional respect.

3. At the conclusion of the inquiry on May 27, 1993, the Council, finding the charge proved, orally announced its order. The order was that the appellant's name be removed from the register for a period of 18 months. A week later, a copy of the order as drawn up was served on the appellant under cover of a letter dated June 3, 1993, from the Registrar of the Council.

4. In this Court, three main contentions were raised on the appellant's behalf. The first is that the Council wrongly excluded relevant evidence. The second is that the finding of guilt against the appellant is generally unsafe or unsatisfactory. And the third is that the penalty imposed upon her is manifestly excessive.

5. We are at this stage dealing with the appeal in so far as it relates to what might be called "conviction". If the appellant succeeds thereon, that will be the end of the matter.

6. Before coming to the particulars of the charge on which the appellant was found guilty, it is necessary to mention subsections (3) and (4) of section 47A of Offences against the Person Ordinance, Cap.212. It is laid down in subsection (3) that:

" Except as provided by subsection (4), any treatment for the termination of pregnancy must be carried out in a hospital or clinic maintained by the Crown or declared by the Director of Health by notice published in the Gazette to be an approved hospital or clinic for the purposes of this section."

Subsection (4) provides that:

" Subsection (3) shall not apply to the termination of a pregnancy by a registered medical practitioner if 2 registered medical practitioners are of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman."

7. The charge is framed in these terms:

" That on 1 November 1988 you, being a registered medical practitioner did agree to perform an operation to terminate a pregnancy on Woman Detective Police Constable 11146 Leung Yee-ling at your clinic, Hui Wei Lee Clinic at 28 Wei Yan Street, Tai Po, New Territories such clinic not being an approved hospital or clinic pursuant to Section 47A(3) of the Offences Against the Person Ordinance, Chapter 212, Laws of Hong Kong; and that in relation to the facts alleged, you have brought disrepute to the profession and have been guilty of misconduct in a professional respect."

8. It is not suggested that the appellant's clinic was an approved hospital or clinic for the purposes of subsection (3) or that the exception provided under subsection (4) applied in the present case.

9. Shortly stated, the "undercover" officer, WDPC Leung's evidence was to this effect. On November 1, 1988, at the appellant's clinic, on the occasion of the last of WDPC Leung's three visits to that clinic, the other two visits having been on October 10 and 31, 1988, the appellant agreed to perform an illegal abortion on her for $2,000, and had gone so far as to instruct her to lie down on a bed for her to be anesthetized for that abortion.

10. The appellant denied agreeing to perform an abortion on WDPC Leung. As to instructing her to lie on a bed, this is what the appellant said in answer to her own counsel:

" The reason for my asking her to lie on the bed, I was trying to cheat her into permitting me to try to find out what was wrong with her, because in a clinic some children might also be cheated of taking some tablets which they claim to be bitter. But, in any event, I could not carry out an abortion at all under those circumstances in my clinic."

Under cross-examination, this exchange took place:

"Q. You see, I suggest to you, Dr Hui, that on the 1st November 1988 you did agree to perform an abortion upon Madam Leung believing that she was pregnant.

A. In fact, I did not formally promise her to do so.

Q.that, what does it mean? You didn't write Can you explain it down, or what?

A. I only wanted to cheat her into lying on the bed so that I could carry out a test on her."

11. The evidence which was excluded was of telephone conversations between the appellant and two doctors, one of them a colleague of hers who used the same clinic and the other a surgeon to whom she from time to time referred patients. Their testimony, it was said, would have been of telephone conversations with the appellant after WDPC Leung's second visit to the appellant's clinic but before the last one. And the suggestion was that these gentlemen, if called, would say that the appellant had said to them that she had a strange patient whom she suspected was not really pregnant but might have a psychological problem, and that she intended to induce her to submit to a physical examination with a view to seeing what the real problem was.

12. Apart from the testimony of those two gentlemen, the excluded evidence would of course have included the...

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