A gentleman was brought to court
by the police for practising as a doctor without registration. Basically, he was a doctor before his name was
removed from the General Register by the Medical Council for his failure to pay
the annual registration fee. He was acquitted
by the Magistrate Court because the judge found him honestly believed that his
name was still on the Register. Some
doctors took this verdict very seriously, to the extent that the mere existence
of the Medical Council was challenged. This
was understandable as the main function of the Medical Council is to regulate
doctors through the formation of a register and to control the entrance, the
staying in, and the removal from the register. However, the prosecution did not lodge an
appeal against the decision.
Essentially, the fact of the case
was that the doctor, after practising for around 10 years, failed to renew his
annual practising certificate before June 30, 2007. His name was thus removed from the General
Register by the Medical Council in July 2007. He maintained that he did not receive any
letter concerning the notice of payment or his removal from the Register. He continued to practise until there were some
problems with the sick leave certificates issued by him in January 2008. He contacted the Medical Council and somehow
got a false belief that he could continue to practise two weeks after he paid
for the fee. Things turned out that his
name was then not on the Register and he only found this out when there was
again problem with sick leave certificates issued by him in April 2008. He stopped practising since then. By that time the Medical Council had referred
his case to the police and he faced charges of practising medicine or surgery
while not being registered. According to
S. 28(2) of the Medical Registration Ordinance, he was liable on summary
conviction to a fine at level 6 and to imprisonment for 3 years if he was found
guilty.
He succeeded in defending his
case by the “honest but mistaken belief” defense as in the case Attorney General
v Fong Chin Yue and Others ([1994] HKCFI 184; HCMA000604-1994, 25 October 1994).
This case concerned the Dutiable
Commodities Ordinance (DOC). The appeal
turned out to be complicated analysis of statues with strict liability, whether
there was any defense for such statutes, and the Bill of Rights. In simple terms, even for statues which
appeared to infer strict liability on the defendant, there existed a defense
for the accused to show (on a balance of probabilities) that he believed for
good and sufficient reason, though erroneously, that the provisions had been
complied with. This was because “to interpret the relevant provisions as requiring proof
by the prosecution of knowledge would leave a gap through which the guilty
could escape in droves. At the same
time, to interpret those provisions as precluding a defence of reasonable
belief would leave a gap through which the innocent may fall to their harm. By no proper canon of construction can the
intention to create either of those gaps be attributed to the Legislature.” And, “Magistrates will of course approach such defences with
fairness and common sense: being neither cynical on the one hand nor gullible
on the other hand. Generally, the less
sophisticated an accused and the more humble his position, the less is to be
expected from him for the purpose of making out his defence. And of course the relevant considerations
include: the quantity and value of the goods involved; whether the accused
gained or stood to gain by offending; the extent of any such gain; and how it
compares with what he could earn by honest means.” So
the defendant doctor was acquitted on the defence that he forgot to renew his
practising certificate and he honestly believed that he could practise
medicine. There was no motive for him to
avoid the payment of only $420 and he had never done it before.
Another interesting provision
about honest but mistaken belief is found in Section 4A of the Dangerous Drugs
Ordinance. This section deals with trafficking
in purported dangerous drug. It spells
out that it is an offence to traffic, or to offer to traffic, in any substance
represented or held out by him to be a dangerous drug but which is not a dangerous drug in fact. This
means that if someone honestly believes that he is in possession with him a
certain amount of say ketamine and confesses to the police when caught. He can be charged under this section of the
Dangerous Drugs Ordinance even if the substance eventually turns out to be some
harmless substance totally unrelated to ketamine.
Talking about dangerous drugs,
the Chief Executive announced during the Legislative Council’s Q&A session
on 7 July 2009 that the Government would escalate the campaign to fight the war
on youth drug abuse. He would personally
lead the administration and oversee a series of measures including community
awareness and mobilization, community support, drug testing, treatment and
rehabilitation and law enforcement. The
HKMA has always been in support of beat drugs activities. The recent focus is
on the formation and joining of district networks of beat drugs teams
comprising family doctors, social workers from Counseling Center for
Psychotropic Substance Abusers, school social workers and doctors from different
specialties including Substance Abuse Clinics from HA hospitals. We organized a
press conference to introduce our work to the mass media on 11 July 2009. And I shall report our work to the Chief
Executive at the Action Committee Against Narcotics (ACAN) special meeting on
16 July 2009.
(Source: HKMA News July 2009)
