Sunday, 28 November 2010

Autrefois acquit?

In Dr Chan Choo Lip v Malaysian Medical Council, Ministry of Health Malaysia & Anor - [2010] 6 MLJ 574, it was held at paragraphs [18], [21],  to [24] as follows:-

"[18] Based on these authorities, I am satisfied that the acquittal by the sessions court of the applicant is not a bar to the disciplinary proceedings intended to be initiated against him. There is therefore no decision which is adverse to him which needs to be further examined and argued. On the same reasonings, the applicant lacks the locus standi to make this leave application and it must be refused."
"[21] The Medical Act is designed to regulate the conduct and practice of its member. The medical profession being a professional body is required to maintain a high standard of practice, ethics and discipline for the protection of the public that it serves. The Medical council is therefore entitled to enforce the rules regulating the conduct and practice of its members in the interest of not just its members but the public as well. Thus, the acquittal or conviction of any of its member in the court of law for criminal offences should not, given their supervisory and regulatory task, be binding on the council."
"[22] In this regard, the respondents' Code of Criminal Conduct under the title 'Convictions In A Court of Law' is pertinent and it provides as follows:
In considering convictions the Council is bound to accept the determination of any court of law as conclusive evidence that the practitioner was guilty of the offence of which he was convicted Practitioners who face a criminal charge should remember this if they are advised to plead guilty, or not to appeal against a conviction merely to avoid publicity or a severe sentence. It is not open to a practitioner who has been convicted of an offence to argue before the Preliminary Investigation Committee, or the Malaysian Medical Council that he was in fact innocent. It is therefore unwise for a practitioner to plead guilty in a court of law to a charge to which he believes that the has a defence. (Emphasis added.)"

[23] As rightly pointed out by the respondents' counsel, only convictions by the court are binding on the council but not acquittals and the reason is obvious. When a conviction is entered, there must already be proof beyond reasonable doubt of the offence alleged but an acquittal can be had for a myriad of reasons both technical and substantive. Thus the rationale behind the council's power to further enquire into the alleged misconduct of its member, despite the acquittals. The above represent my own view, of course, but in coming to it, I am enlightened by the quotation made in the Pharmaceutical Society of Great Britain's case from the decision of Viscount Simonds in Simpson v General Medical Council [1955] NZLR 271  (PC) The Times, November 9, 1955 in which His Lordship said this:
The Medical Acts are designed at the same time to protect the public and to maintain the high professional and ethical standards of an honourable calling. If a practitioner, having committed the grave offences of which the appellant has been guilty, can upon such a plea successfully resist the charge of infamous conduct and the erasure of his name from the register, the public will lack their proper protection and the honour of the profession may be endangered by the continued practices of one who can still claim to be of their number...."

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