Huang Danmin v Traditional Chinese Medicine Practitioners Board

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Tay Yong Kwang J
• Judgment Date: 18 May 2010
• Neutral Citation: [2010] SGHC 152
• Citation: [2010] SGHC 152
• Subject Matter: Statutory Interpretation,Administrative Law,Disciplinary Tribunals
• Date: 18 May 2010
• Hearing Date: 29 April 2010
• Published date: 19 May 2010
• Plaintiff Counsel: Ismail Hamid (Ismail Hamid & Co)
• Docket Number: OS No. 849 of 2008/S
• Defendant Counsel: Koh Swee Yen (Wong Partnership LLP) as amicus curiae,Rebecca Chew Ming Hsien and Mark Cheng Wai Yuen (Rajah & Tann LLP)

Tay Yong Kwang J: Introduction

This appeal is brought by the Appellant, a Singapore registered Traditional Chinese Medicine (“TCM”) practitioner, against the decision of the Respondent, the Traditional Chinese Medicine Practitioners Board (“the Board”), to cancel the Appellant’s registration as a TCM practitioner. The Board’s decision was made on 19 March 2008 after considering the findings and recommendations of the Investigation Committee No. 2005/1 (“IC 2005/1”) in respect of three complaints made against the Appellant.

The complaints made against the Appellant were as follows: (a) The first complaint was by Ms Eileen Tan Hui Kim to the Board on 1 July 2004 concerning allegedly questionable medical treatment rendered by the Appellant on her late father (“the Patient”) at the Appellant’s clinic in Johor Baru, Malaysia (“the Johor Clinic”). In addition, the first complaint also dealt with the Appellant’s conduct in allegedly shouting and yelling at her late father’s relatives during the treatment. (b) The second complaint was submitted by the Health Sciences Authority (“HSA”) on 5 January 2007 in respect of the Appellant’s conviction under section 5 of the Poisons Act (Cap 234) for possessing scheduled poisons for sale without a valid licence. The Appellant faced seven charges but the HSA proceeded on four out of the seven charges, with the remaining three charges taken into consideration for sentencing. The Appellant pleaded guilty and was convicted and fined a total of $10,000. (c) The third complaint was made by the Board on 10 August 2007 in respect of the Appellant’s failure to keep proper and accurate medical records of the Patient’s treatment at the Appellant’s Rochor Clinic in Singapore as required under Regulation 3 of the Traditional Chinese Medicine Practitioners (Practice, Conduct and Ethics) Regulations (Cap. 333A, Section 14(4)).

The findings of IC 2005/1 were: (a) in respect of the first complaint, the Appellant had performed improper treatment on the Patient and was guilty of professional misconduct under section 19(1)(i) of the Traditional Chinese Medicine Practitioners Act (Cap. 333A) (“the TCM Act”). The allegations concerning the Appellant’s rude behaviour were not made out. (b) for the second complaint, the Appellant’s conviction under the Poisons Act implied a defect in character which rendered him unfit to practise under section 19(1)(h) of the TCM Act because he had prescribed medicines other than TCM medicines to his patients and deliberately flouted the law by possessing the scheduled poisons for sale, thereby endangering the welfare and safety of patients and members of the public. (c) concerning the third complaint, the Appellant had admitted during the inquiry hearing that he did not keep proper records of the Patient’s treatment at the Rochor Clinic and such conduct fell within section 19(1)(f) of the TCM Act.

In the light of its findings, IC 2005/1, in a report dated 28 January 2008 (“the Report”), recommended that the Appellant’s registration as a TCM practitioner be cancelled. The Board informed the Appellant of its inclination to accept IC 2005/1’s recommendations and invited him to make representations before it on 28 February 2008. After that hearing, on 19 March 2008, the Board informed the Appellant that it was exercising its power under section 19(1) of the TCM Act to cancel his registration as a TCM practitioner.

The appeal

The Appellant, who is also a TCM practitioner in Malaysia, accepted the decision of the Board in agreeing with IC 2005/1’s findings in respect of the second and third complaints. However, being dissatisfied with the Board’s decision to accept IC 2005/1’s findings on the first complaint and with the Board’s decision to cancel his registration as a TCM practitioner, the Appellant filed this appeal on the following grounds: (a) The Board erred in taking into account the Appellant’s treatment of the Patient at the Johor Clinic in determining if he was guilty of professional misconduct under section 19(1)(i) of the TCM Act; (b) The Board erred in finding that the Appellant’s treatment of the Patient at the Johor Clinic was against TCM practice and that it amounted to professional misconduct under section 19(1)(i) of the TCM Act; and (c) The Board’s decision to cancel the Appellant’s registration as a TCM practitioner was manifestly excessive punishment and he should have been fined or suspended instead.

The facts

As the grounds of the Appellant’s appeal relate to the Board’s findings with regards to the first complaint, I shall start by stating some of the salient facts concerning the Appellant’s treatment of the Patient at the Johor Clinic.

Essentially, the Patient had been diagnosed with terminal rectal cancer in late 2002 and was being treated by doctors from the Singapore General Hospital. In 2003, these doctors indicated to the Patient and his family that he had only three more months to live.

In January 2004, the Patient’s family approached the Appellant at his Rochor Clinic located at Block 1 Rochor Road, #02-528 Rochor Centre, Singapore 180001 to seek alternative treatment in order to prolong the Patient’s life and to relieve the symptoms of his illness. The Appellant agreed to provide medical services to the Patient.

Sometime in 2004, the Appellant informed the Patient and his family that he also operated a clinic in Johor and that he had certain special equipment there that might be able to help the Patient. The Patient agreed to go to the Johor clinic for treatment.

On the occasions when the Patient was treated by the Appellant at the Johor Clinic, the Appellant performed the following treatments on him: (a) On or around March 24 2004, the Appellant applied some form of soft gelatin on the Patient’s stomach. He then used an ultra sound therapy machine to sweep over the Patient’s stomach. (b) The Patient’s family members testified that the Appellant administered certain injections on the Patient on multiple occasions, including once at the Johor Clinic on 13 May 2004. . Although the Appellant denied having administered these injections, large quantities of syringes and needles were found in the Rochor clinic when a joint inspection was done by the Board with HSA officers on 25 February 2005. (c) On or around 4 June 2004, the Appellant used an “electro-thermal needle” machine (“the “Machine’) on the Patient. This consisted of a machine heated needle that was inserted into the Patient’s tumour area.

Should the Board take into account the Appellant’s treatment of the Patient at the Johor Clinic

Section 19(1) and (2) of the TCM Act state: (1) The Board may cancel the registration of a registered person if the Board is satisfied that he – (a) has obtained his registration by a fraudulent or incorrect statement; (b) has had any of his qualifications by virtue of which he was registered withdrawn or cancelled by the authority through which it was acquired or by which it was awarded; (c) has had his registration in any other country for the practice of traditional Chinese medicine, or for the prescribed practice of traditional Chinese medicine to which the registration relates, withdrawn, suspended or cancelled; (d) has ceased to carry on the prescribed practice of traditional Chinese medicine for which he is registered; (e) has failed to comply with any condition to which his registration is subject; (f) has contravened any regulation made under this Act relating to the practice and conduct of registered persons that applies to him; (g) has been convicted of an offence in Singapore or elsewhere involving fraud or dishonesty; (h) has been convicted of an offence in Singapore or elsewhere implying a defect in character which renders him unfit to remain on the Register; (i) has been guilty of any professional misconduct or negligence; (j) has been guilty of any improper act or conduct which renders him unfit to remain on the Register; or (k) is unable to carry out the prescribed practice of traditional Chinese medicine for which he is registered safely or effectively by reason of mental or physical disability. (2) Where a registered person is liable to have his registration cancelled on any of the grounds referred to in subsection (1)(e) to (k), the Board may, instead of cancelling his registration, take one or more of the following measures: (a) caution or censure him; (b) impose on him a penalty not exceeding $10,000; (c) order that his registration be subject to such conditions as may be imposed by the Board for a period not exceeding three years; (d) suspend his registration for a period not exceeding three years. There is nothing in section 19(1)(i) indicating whether the phrase “professional misconduct or negligence” is confined to acts committed within Singapore by a TCM practitioner.

Accordingly, the point of contention between the parties was whether section 19(1) of the TCM Act allows the Board to take into account the Appellant’s treatment of the Patient at the Johor Clinic for the purposes of determining whether he was guilty of professional misconduct. Due to the significance of this determination for future cases under section 19(1)(i) of the TCM Act and for disciplinary tribunals constituted under other Acts where similar wording appears, Ms Koh Swee Yen (“Ms Koh”) was invited as amicus curiae to make submissions on this specific issue.

The parties’ submissions

The essence of the Appellant’s submissions was that section 19(1)(i) of the TCM Act did not apply to acts committed by a TCM practitioner outside Singapore. In support of this, he invoked the following arguments. (a) It is a well known principle of statutory interpretation that a statute is not to be interpreted as having extra-territorial effect unless the statute expressly so provides (I shall henceforth refer to this as the “presumption against...