When’s the time to stay?

Mr Alfred Fung of Alfred K C Fung Chambers represented a psychiatrist in a disciplinary inquiry. After an application was made on behalf of the doctor to stay the proceeding, the case was resolved with an order for a permanent stay.

In 2011, a drug company sponsored a press conference on HPV and its prevention. The Doctor, then the president of the Society of Physicians of Hong Kong, together with a professor in gynaecology and a doctor representing the Family Planning Association, was one of the three speakers of this public health education event. In 2012, the Medical Council of Hong Kong received a complaint against the Doctor for claiming that “the HPV which causes cervical cancer has been found in many public places in Hong Kong.”

Due to numerous referrals back to the Preliminary Investigation Committee (PIC) and multiple adjournments of the hearing, this case was heard and concluded over a decade later, on 20 March 2024. Because of the particular circumstances of the case, the Panel ordered a permanent stay of the hearing in an unprecedented move.

The case has had a wild journey. Between 2013 and 2023, it was referred back to the PIC a few times, and the charges against the Doctor were revised on a number of occasions. The disciplinary hearing was also postponed due to the unavailability of chairpersons due to concerns about conflict of interest.

What is a permanent stay?

“Permanent stay of proceedings” is an established but extremely rare outcome of a case. Briefly, in a criminal context, it may be engaged in two situations:

1. Where a fair trial is impossible; or
2. Where it would amount to an abuse of process. 

In Hong Kong, the leading case of permanent stay in criminal cases is the Court of Final Appeal judgment of HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133. The Supreme Court of the United Kingdom also reviewed this area of law in R v Maxwell [2010] UKSC 48.

It is important to note that the Medical Council accepted the principles and reasoning expounded by Lord Dyson in Maxwell as applicable to disciplinary proceedings brought under the Medical Registration Ordinance (Cap 161):

“It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will “offend the court’s sense of justice and propriety” 

In the first category, a case will be stayed if a fair trial for the accused is impossible. The court should not “balance” this fundamental right with other interests. The second category is even rarer. 

In the end, the Inquiry Panel found that the Doctor could no longer receive a fair trial. This is because the press conference was not recorded, and there was a conflicting account of what the Doctor and two other doctors had said in different news reports. Furthermore, the complainant could no longer be found. After 12.5 years, the Doctor’s memory of what happened would fade.

In this case, the Inquiry Panel identified actual prejudice to the Doctor. It is interesting to note that in R v Telford Justices, ex p Badhan [1991] 2 QB 78, it was held that “where the period of delay is long, then it can be legitimate for the court to infer prejudice without proof of specific prejudice.” Hence, it appears that in certain cases where the delay is long, the accused does not need to prove that he suffered from a specific prejudice. However, the Panel did not rule on this point in their decision.

The ever-shifting goalposts

One special feature of this case is that the case went back to the PIC on several occasions, which resulted in amendments to the charges of professional misconduct that the Doctor had to face.

Initially, in 2013, the Doctor faced five charges. Those concerned the failure to prevent the publication of relevant statements in news articles and promotional materials, as well as the alleged inaccurate statements in the press conference that concerned the prevalence of HPV in public places in Hong Kong. In the face of the allegations, written explanations and reports from two experts were provided to the PIC.

Having considered the submissions, the PIC in 2016 dropped three of the charges, but two charges remained, both concerning the Doctor’s statements at the press conference as being “not accurate or factual or objectively verifiable”:

• That contact with HPV in environment … can lead to cancer related illness; and

• A scary scene that cancer causing virus can be found in many public places in Hong Kong.

Further expert report was submitted to the PIC. Then in 2020, the PIC remodelled the charges, now alleging that two statements are “misleading or exaggerating or arouse unnecessary public concern”:

• Contact with HPV in environment … can lead to HPV infection and/or cervical cancer; and

• HPV can be found in many public places in Hong Kong.

In 2022, the Secretary sought to amend the charges against the Doctor, claiming “minor textual amendments”. Thus in 2023, the PIC again remodelled the charges alleging the making of two misleading statements “without giving balanced views and/or reasoning”:

• Contact with HPV in public environment can lead to HPV infection and/or cervical cancer; and

• HPV can be found in public places commonly accessible by the public (including children and the youth) in Hong Kong.

This is the final basis of the disciplinary charges against the Doctor, which is quite far from the initial charges. This raises questions about whether the goalposts had shifted and about the function of the PIC as a procedural safeguard for an accused doctor.

In this case, multiple submissions, together with expert reports, were made to the PIC on behalf of the Doctor, explaining why he was not guilty of the charge he faced.  However, after considering the submissions, the PIC reformulated the charge and proceeded with the inquiry.

In the decision, the inquiry panel remarked in a broad brush that:

“Regardless of the underlying reasons, to refer this case to the PIC for reconsideration was indeed to do justice to the Defendant.”

While it is true that under the statutory framework of the Medical Registration Ordinance, the PIC serves as a procedural safeguard to screen out frivolous or unmeritorious complaints and to review cases referred back to it, much would depend on how that power was exercised. Arguably, moving the goalposts after a doctor has revealed his defence is an infringement of his right to a fair trial.

In R v JJ (2022 SCC 28), the Supreme Court of Canada warned against allowing the prosecution to “meet the case” after hearing the defence to fill in gaps or correct mistakes in the case to which the defence had started to respond. While this is a criminal case, its reasoning should apply to a disciplinary inquiry and at the PIC.

When submissions are made to the PIC, the doctor concerned typically persuades the PIC why a disciplinary inquiry should not be held. In doing so, a doctor inevitably reveals his defence. Thus, if the PIC decide to proceed with a reformulated charge after considering the submissions made, the doctor’s right to a fair trial is very much a live issue to be considered.

Permanent stays in disciplinary inquiries are exceptionally difficult and involve complicated legal issues. This case is a firm reminder that the right to a fair trial and natural justice is as important in a disciplinary hearing.