Case Detail

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)

________________________

BETWEEN

	DR. LEUNG SHU PIU	Applicant
	and
	THE MEDICAL COUNCIL OF HONG KONG	Respondent

________________________

Before: Hon Yeung VP, Yuen JA and Poon J in Court

Date of Hearing and Judgment: 24 February 2014

Date of Reasons for Judgment: 28 February 2014

_______________

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 replyto 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’sevidencebefore 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 hadasked 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 DrHui 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.

(W. YEUNG)	(MARIA YUEN)	(JEREMY POON)
Vice President	Justice of Appeal	Judge of the Court of First Instance

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

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 23RD NOVEMBER 2008)

________________________

BETWEEN

	DR. LEUNG SHU PIU	Appellant
	and
	THE MEDICAL COUNCIL OF HONG KONG	Respondent

________________________

Before: Hon Tang Ag CJHC, Yeung JA and Yuen JA in Court

Date of Hearing: 25 January 2011

Date of Judgment: 8 March 2011

_______________

JUDGMENT

_______________

Hon Tang Ag CJHC:

Introduction

1. Dr Leung, the Appellant, is a paediatrician registered on both the General and Specialist Registers of practicing doctors in Hong Kong.

2. The patient, a boy, was born in August 2000. In the two years between May 2004 and May 2006, there were 47 consultations with the Appellant. In 26 consultations, Celestamine was prescribed. In relation to the consultations, according to the Medical Council the diagnoses recorded on the Appellant’s hand-written medical record were:

“9. (a) ‘upper respiratory tract infection’ in 17 consultations;
(b) ‘upper respiratory tract infection with sputum’ in 2 consultations;
(c) ‘upper respiratory tract infection, acute bronchitis with expiratory rhonchi’ in 4 consultations;
(d) ‘cough, decreased running nose, stuffy nose, fever, good appetite’ in 1 consultation;
(e) ‘running nose, cough increased, sputum decreased’ in 1 consultation; and
(f) ‘cough, running nose’ in 1 consultation.”

The charges of misconduct

3. As a result of a complaint by the father of the patient, Dr Leung was charged with the following:

“That he, being a registered medical practitioner, disregarded his professional responsibility to his patient A, a minor, in that:-
(a) in the period between May 2004 and May 2006,
(i) without proper justifications, he prescribed to the patient Celestamine which contained steroid for treating the patient's upper respiratory tract infection on about 26 occasions;
(ii) he prescribed to the patient Celestamine which contained steroid without advising the patient's parent about the nature and side effects of Celestamine;
(b) on or about 24 May 2006, upon enquiry of the patient's father on whether Celestamine contained steroid, he 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, he has been guilty of misconduct in a professional respect.”

(a)(i)

4. It is not disputed that Celestamine contained steroid or that Dr Leung had not advised the parents about the nature or side effects of Celestamine. In relation to (a)(i), the issue is whether there was proper justification for the prescription of Celestamine, in other words whether the wrong medicine had been prescribed in the light of the diagnosis made. It was Dr Leung’s case that he prescribed Celestamine for the patient because he was suffering from Pre-school Viral Wheeze (“PVW”).

5. The Council had the benefit of expert evidence, for the Secretary of the Medical Council, Dr Daniel Kwok-keung Ng; and for Dr Leung, Dr Alfred Yat-cheung Tam.

6. There was broad agreement that Celestamine would have been justified if the patient had PVW but not upper respiratory tract infection (“URTI”). The dosage of Celestamine given to the patient was 5 milliliters (“ml”), three times a day, amounting to a daily dose of 6 milligram (“mg”) of Dexchlorpheniramine and 0.75 mg of Betamethasone. Both experts agreed that on such dosage, assuming the patient took all the doses given, he would have taken 58.5 mg of Betamethasone in total, or roughly 1.46 mg/kg/year on the assumption that his body weight was between 18 and 20 kg. The experts were agreed and it has not been contended to the contrary that the Celestamine in the dosage and for the duration prescribed has no serious side effect.

7. On diagnosis, according to Dr Ng:

“The most important part of pre-school wheeze is the existence of wheeze.” See Dr Ng’s evidence at page 174.

8. It was also his evidence that if the patient suffered from wheezing, that would not have been missed on a proper examination. See his evidence at page 203.

9. Such evidence was not disputed on behalf of Dr Leung. Mr Macrae, SC (as he then was) who acted for Dr Leung, made it clear in his examination of Dr Tam (at page 195) as well as in his final submission, that wheezing (or expiratory rhonchi), was an essential characteristic (as one might expect) of pre-school viral wheeze. In his written final submission at para.12, Mr Macrae submitted:

“Simply because (Dr. Leung) did not record ‘wheezing’ every time in his clinical notes does not mean that he did not diagnose recurrent PVW (as it is now better known) in this patient.”

10. However, as Dr Tam agreed in answer to questions posed by the Chairman, PVW “is episodic” and “not continuous”, such that:

“… the child may have one episode, the child is OK, and the child may have other problems, not necessarily (PVW).”. See Transcript of 17 February 2008 at pages 232-233.

11. It followed that even on the basis of Dr Tam’s report that:

“9. … there is a good chance that this patient suffered from some airway allergy, may be even asthma.
10. If indeed the patient had some airway allergy, steroid treatment would of course be justified.”,

it does not follow that a prescription of Celestamine would have been justified on each occasion that it was prescribed.

12. According to Dr Leung, he used the abbreviation “AB”, short for “acute bronchitis”, loosely for bronchial allergy. It is clear from para. 10 of the findings that the Medical Council was prepared to proceed on the basis that whenever the Appellant had recorded AB, with or without expiratory rhonchi, in his notes, his diagnosis was that the patient was (or might have been) suffering from PVW. For that reason they were of the view that Celestamine might be justified for the consultations on 28 June 2005, 30 June 2005, 18 May 2006 and 22 May 2006. On the 22 occasions on which the Appellant was convicted of prescribing Celestamine without proper cause, Dr Leung’s notes did not record any “AB” with or without “expiratory rhonchi”.

13. This is what the Council said:

“10. The Defendant said that he prescribed Celestamine for the patient in question because he was suffering from Pre-school Viral Wheeze (‘PVW’). However, contrary to his claim there was no record of PVW or bronchial allergy in the medical record. He explained that he had been seeing the patient for such a long time and remembered the patient's history, therefore he would not make a full record of the diagnoses. That explanation is contrary to the medical record in which he repeatedly recorded ‘URI’, and added in additional diagnoses of ‘acute bronchitis’ and ‘expiratory rhonchi’ where appropriate. 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. We reject that explanation. We are satisfied that the diagnoses made by the Defendant at the time of prescription were those recorded in the medical record. We shall decide whether the prescription of Celestamine was justified on that basis.
11. It is common ground that Celestamine is not justified if a patient had only upper respiratory tract infection, but is justified if a patient had PVW. We are satisfied that the prescription of Celestamine might be justified in 4 consultations, namely, 28 June 2005, 30 June 2005, 18 May 2006, and 22 May 2006. However, the prescription was not justified in 22 consultations, namely, 21 May, 11 September, 14 September, 28 October, 1 November and 12 November in 2004; 26 February, 25 April, 28 April, 25 June, 7 July, 11 August, 12 September, 15 September, 28 October, 31 October and 12 December in 2005; 20 February, 5 March, 8 March, 11 April and 15 May in 2006.”

14. Just what the Appellant had diagnosed at each of the material consultation, was a matter of fact for the council to find. I can see no basis upon which I can interfere with the finding. So I have no doubt that the appeal in respect of charge (a)(i) must be dismissed.

(a)(ii)

15. I turn to charge (a)(ii) which concerned a failure on the part of the Appellant to inform the patient’s parents “about the nature and side effects of Celestamine”.

16. On the question whether Dr Leung should have told the parents although the dose of steroid was small, Dr Tam said:

“12. Although I would always explain to my patients and parents about the effects and possible side effects of steroid if I ever prescribe it, I also understand that there may be a spectrum of practice, ranging from what I do, to some who never inform patients unless they ask. Where one stands along the spectrum is perhaps an individual matter. The doctor will have to make a judgment according to the dosage given, the possibility of side effects, and the possible acceptance of the parents.
……
16. Nevertheless, I would still opine that Dr. LEUNG should preferably have given parents some information on steroid. This should be done regardless of the dosage given. However, I would suggest that Dr. LEUNG has not fallen short of a general professional standard as long as he has taken careful consideration of the factors as mentioned above and exercised his judgment for the benefit of the patient. I do not think that we should establish any ‘black and white’ rule for these circumstances which would take away any discretion and judgment that a doctor could exercise. Each case must be considered on a case by case basis.”

17. Later, Dr Tam made the point that:

“19. If the parents ever asked, it is important that the doctor tell them completely about the steroid prescribed and its effects and side effects.”

18. Mr Huggins, SC, who appeared for Dr Leung in the appeal, submitted that as Dr Tam pointed out, the Appellant’s failure, or decision not to inform the parents, fell within a spectrum of practice.

19. Dr Tam was questioned about this aspect of his evidence by Professor Grace Tang. I will set out the exchange between Dr Tam and Professor Grace Tang in full:

“PROF. GRACE TANG:

Now, your report, page 86, ‘Should Dr Leung not tell the parents as the dose of steroid was small?’ At paragraph 12, you said that there may be a spectrum of practice. That means you see that as a possibility, that there are really paediatricians, your colleagues, who will not tell the parents of their patients about the use of steroids?
DR ALFRED TAM (witness):

I must confess I have never actually conducted a study.
PROF. GRACE TANG:

It is just guesswork?
DR ALFRED TAM (witness):

No. I think in our daily conversations among doctors I do come up with doctors who do not always tell patients about this.
PROF. GRACE TANG:

During your conversations, under what circumstances would they not tell the parents?
DR ALFRED TAM (witness):

Of course, this is not going to be very detailed.
PROF. GRACE TANG:

The major reason?
DR ALFRED TAM (witness):

Usually because parents may resist or usually because parents may be worried.
DR ALFRED TAM (witness):

Usually because parents may resist or usually because parents may be worried.
PROF. GRACE TANG:

Can the paediatricians not convince the parents about the need?
DR ALFRED TAM (witness):

It depends on a lot of factors, whether you have enough time, whether you have the patience, and whether the patient or the parent is easy to talk with, and so on.
PROF. GRACE TANG:

I am not a paediatrician, so I will defer to your expertise, but I still think that one should not keep information from –
DR ALFRED TAM (witness):

I agree with you, I agree with you in general.”

20. I have to say that this is a very slender basis for the so-called spectrum of practice. I do not wish to give the impression that I accept as sufficient justification for not telling a parent or a patient that steroid is being prescribed that the doctor does not have the time or the patience to do so. Furthermore, given Dr Tam’s evidence about the difficulty in diagnosing the cause of the wheeze (depending on which steroid might be appropriate or not) one would have thought that a parent would be acting entirely reasonably if he/she wishes to have a second opinion before embarking on a steroid based treatment. So withholding such information because of a parent’s or the parents’ resistance or worry does not appear to me to be an acceptable reason.

21. Mr Huggins relied on the Bolam test. In Sidaway v Board of Governors of the Bethlem Royal Hospital & the Maudsley Hospital [1985] AC 871 at 881F. Lord Scarman describe the Bolam test as follows:

“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.
The Bolam principle has been accepted by your Lordship’s House as applicable to diagnosis and treatment …”

22. The judgment of the majority in Sidaway (Lord Scarman dissenting) can be gathered from the headnotes at page 872:

“… the question whether an omission to warn a patient of inherent risks of proposed treatment constituted a breach of a doctor's care towards his patient was to be determined by an application of the Bolam test; save that although the degree of disclosure required for a particular patient was an issue to be judged primarily on the basis of medical evidence, there might be circumstances where the proposed treatment involved a substantial risk of grave consequences in which a judge could conclude that, notwithstanding any practice to the contrary accepted as proper by a responsible body of medical opinion, a patient's right to decide whether to consent to the treatment was so obvious that no prudent medical man could fail to warn of the risk save in emergency or some other sound clinical reason for non-disclosure.”

23. Mr Huggins rightly submitted that here, the medical evidence was that no serious adverse side effect could be expected from Celestamine in the dosage and duration prescribed. It follows, he submitted that Dr Leung could not be blamed for not informing the parent of any side-effect, because none was expected. However, as Mr John Bleach, SC, for the Medical Council, pointed out, Dr Leung had failed to inform the parent of the nature of Celestamine, namely, that it contained steroid.

24. This is the finding of the Medical Council:

“14. For a medicine which has known potential side effects, patients should be advised of its nature so that they can make an informed choice as to whether to accept the medicine. Steroid is such a medicine, as it has been shown to have some significant side effects. There is general concern about the use of steroid, and patients should be given the proper advice before it is prescribed. This is so even if the dosage prescribed does not have any side effect. It must be borne in mind that patients are not medically trained and so are unlikely to understand technical medical terms. While it is neither necessary nor helpful to advise patients of the chemical composition of the medicine, patients should be informed in laymen terms what the medicines are.
15. We bear in mind that Celestamine in the dosage prescribed has no significant side effects. However, there was a danger that the patient might see other doctors and if the other doctors also prescribed steroid this might result in a dosage which would increase the risk of side effects. In the present case, the Defendant must have been well aware of the parents' concern about the use of particular medicines with side effects. In the circumstances, it was particularly obvious to the Defendant that the parents should be informed of any medicine with significant side effects before prescribing it. By failing to do so for 26 occasions when Celestamine was prescribed, the Defendant's conduct had fallen short of the standard expected. We are satisfied that this is professional misconduct. We find him guilty of charge (a)(ii)”

25. With respect, this is a finding which the Medical Council was entitled to make, and I can see no reason to disagree.

(b)

26. The third charge was that when asked by the father on 24 May 2006 whether Celestamine contained steroid, he did not reply in the affirmative. Instead, he told him the Celestamine was not regarded as a steroid. This is what the Tribunal said:

“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 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. We find him guilty of charge (b).”

27. Mr Huggins rightly accepted that the Medical Council was entitled to find that Dr Leung had been evasive. He submitted however, that the Medical Council erred in finding that the deliberate evasion by Dr Leung of the question 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 in the dosage prescribed).”

28. I have carefully considered the references to the transcripts relied on by Mr Huggins. With respect, I do not believe Dr Leung ever said that on 24 May 2006 that he was evasive because he did not want to cause anxiety or worry to the parent.

29. Nor do I think it has been shown that the Council had misunderstood the burden or standard of the proof. So there is also no basis to disturb the Medical Council’s decision in relation to (b).

Sentence

30. In respect of charge (a)(i), the Appellant’s name was ordered to be removed from the General Register for a period of two months; in respect of charge (a)(ii), his name was ordered to be removed from the General Register for one month; in respect of charge (b), his name to be removed from the General Register for a period of one month; and all the orders to be served concurrently.

31. In para. 25 of its decision, the Medical Council mentioned that the court has criticized its sentence in respect of the case of Dr Lam Kui Chun as being too lenient, therefore the sentence in that case would not be regarded by them as a benchmark against which other cases should be compared.

32. Given the seriousness of the charges, I can see no basis upon which to interfere with the decision of the Medical Council.

Conclusion

33. I would dismiss the appeal against the findings of professional misconduct as well as the appeal against sentence. I would also make an order nisi that the Respondent is to have the costs of the appeal to be taxed unless agreed.

Hon Yeung JA:

34. I agree.

Hon Yuen JA:

35. I agree with the judgment of Tang Ag CJHC.

(Robert Tang)
Ag Chief Judge, High Court

(Wally Yeung)
Justice of Appeal

(Maria Yuen)
Justice of Appeal

Mr Adrian Huggins, SC instructed by Messrs. Reed Smith Richards Butler, for the Appellant

Mr John Bleach, SC and Ms Abigail Wong, instructed by the Department of Justice, for the Respondent

Please refer to FAMV17/2014 for the relevant appeal(s) to the Court of Final Appeal.

DR. LEUNG SHU PIU v. THE MEDICAL COUNCIL OF HONG KONG

Related cases with same parties

Files (2)

“PROF. GRACE TANG:		Now, your report, page 86, ‘Should Dr Leung not tell the parents as the dose of steroid was small?’ At paragraph 12, you said that there may be a spectrum of practice. That means you see that as a possibility, that there are really paediatricians, your colleagues, who will not tell the parents of their patients about the use of steroids?
DR ALFRED TAM (witness):		I must confess I have never actually conducted a study.
PROF. GRACE TANG:		It is just guesswork?
DR ALFRED TAM (witness):		No. I think in our daily conversations among doctors I do come up with doctors who do not always tell patients about this.
PROF. GRACE TANG:		During your conversations, under what circumstances would they not tell the parents?
DR ALFRED TAM (witness):		Of course, this is not going to be very detailed.
PROF. GRACE TANG:		The major reason?
DR ALFRED TAM (witness):		Usually because parents may resist or usually because parents may be worried.
DR ALFRED TAM (witness):		Usually because parents may resist or usually because parents may be worried.
PROF. GRACE TANG:		Can the paediatricians not convince the parents about the need?
DR ALFRED TAM (witness):		It depends on a lot of factors, whether you have enough time, whether you have the patience, and whether the patient or the parent is easy to talk with, and so on.
PROF. GRACE TANG:		I am not a paediatrician, so I will defer to your expertise, but I still think that one should not keep information from –
DR ALFRED TAM (witness):		I agree with you, I agree with you in general.”