Pang Ah San v Singapore Medical Council

JurisdictionSingapore
JudgeSundaresh Menon CJ,Andrew Phang Boon Leong JCA,Chao Hick Tin SJ
Judgment Date12 May 2021
CourtHigh Court (Singapore)
Docket NumberOriginating Summons No 5 of 2020
Pang Ah San
and
Singapore Medical Council

[2021] SGHC 116

Sundaresh Menon CJ, Andrew Phang Boon Leong JCA and Chao Hick Tin SJ

Originating Summons No 5 of 2020

General Division of the High Court

Constitutional Law — Fundamental liberties —Freedom of speech —Doctor convicted in disciplinary proceedings for making derogatory statements —Whether freedom of speech infringed —Article 14 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Professions — Medical profession and practice —Professional conduct —Disciplinary proceedings —Whether disciplinary proceedings brought in abuse of process —Whether Disciplinary Tribunal erred in inviting Singapore Medical Council to amend charges —Whether Disciplinary Tribunal erred in not preventing counsel from acting for Singapore Medical Council —Whether Disciplinary Tribunal excessively interfered with doctor's cross-examination of witness

Professions — Medical profession and practice —Professional conduct —Doctor sending numerous e-mails containing statements about Singapore Medical Council and people involved in prior disciplinary proceedings against him —Whether amounted to improper conduct bringing disrepute to profession —Whether charges proved beyond reasonable doubt —Section 53(1)(c) Medical Registration Act (Cap 174, 2014 Rev Ed)

Professions — Medical profession and practice —Professional conduct —Doctor sending numerous e-mails containing statements about Singapore Medical Council and people involved in prior disciplinary proceedings against him —Whether volunteering should be treated as mitigating factor —Whether there was delay warranting reduction in sentence —Whether there was piecemeal prosecution —Whether sentence of ten-month suspension and fine manifestly excessive

Held, dismissing the appeal:

(1) One aspect of the doctrine of abuse of process in the context of criminal proceedings was the use of the criminal process for a purpose for which it was not intended. This applied in the quasi-criminal context of disciplinary proceedings as well. There was no abuse of process in this case. First, Dr Pang's arguments assumed a binary choice between a defamation suit or disciplinary proceedings, but this dichotomy did not exist as a matter of law or logic. Second, it was not apparent why the SMC would have wished to take the route of disciplinary proceedings under the MRA rather than pursue a claim in defamation, if the latter was its true intention: at [37] to [39].

(2) The charges were not legally defective. The charges addressed the very gravamen of s 53(1)(c) of the MRA which concerned the protection of the medical profession's integrity and good name. In the present case, the alleged conduct fell within the scope of s 53(1)(c) of the MRA: at [42] to [44].

(3) The charges were proved beyond a reasonable doubt. First, the DT had not misdirected itself as to the burden of proof, as the evidential burden had shifted to Dr Pang to show why the statements should not be treated as derogatory or, in the alternative, that he was justified in making those attacks. Second, the DT did not err in taking into account the tone and language of Dr Pang's criticisms. Third, there was no ground for criticising the DT's finding that the e-mails were essentially public. Fourth, it was not necessary for the DT to have led evidence to show that the e-mails had lowered the public's estimation of the medical profession. Fifth, the DT had correctly applied the test in Low Chai Ling v Singapore Medical Council[2013] 1 SLR 83 at [72] in determining whether Dr Pang's conduct brought disrepute to the medical profession: at [48] to [52].

(4) There were no procedural irregularities in the DT proceedings. The DT's suggestion to the SMC to amend the charges to refer to “derogatory” instead of “defamatory” statements was not objectionable, but was only fair to Dr Pang. The amendments also did not enable the SMC to get around any fatal flaw in its case. In addition, there were also no grounds for Dr Pang's complaints that the DT should have prevented the SMC's counsel from acting for the SMC at the DT proceedings, or that the DT had excessively interfered with his cross-examination of the SMC's witness: at [56] to [58].

(5) Dr Pang's convictions were not unconstitutional in relation to Art 14 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Constitution”). Members of the medical profession enjoyed a privileged position in society. It followed that the profession had to be regulated. Thus, when a person was admitted to the privileges of membership of a profession, he or she had to be taken to agree to abide by the norms and standards required by the profession. Furthermore, as membership in a profession was a privilege, it would also follow that it could be taken away if the conditions of membership were not met or observed. It was within the powers of the regulatory body – subject to the safeguards of administrative law – to determine what conditions had to be met before the privileges of membership could be bestowed on an individual, or what situations would result in the withdrawal of those privileges: at [61] to [64].

(6) In any event, Art 14 of the Constitution was not relevant as between Dr Pang and the SMC. The Constitution, especially Pt IV concerning fundamental liberties, was largely directed at regulating the relationship between citizens and the State. While the State could not restrict a citizen's freedom of speech or expression except for the reasons identified in Art 14(2) of the Constitution, nothing in the Constitution prevented an individual from making his or her own arrangements with others in such a manner as would appear to restrict his or her right to free speech. Membership in a profession, and in turn the profession's self-regulation, was essentially an arrangement between the individual and the professional body in question: at [65].

(7) While the precedents for s 53(1)(c) of the MRA showed that the usual punishment for such improper conduct was a fine, the facts of those cases were very different. These precedents were not helpful in this case, which was more serious than the normal range of cases which had been decided thus far and called for a commensurate sentence: at [71].

(8) The DT did not err in referring to cases relating to the legal profession, as it did not rely on them as precedents for the specific sentences to be imposed: at [72].

(9) The DT had correctly assessed the mitigating factors. Dr Pang's act of volunteering to evacuate Singaporeans from Wuhan, China, at the onset of the COVID-19 pandemic was of little mitigating value: at [73].

(10) The harm which could arise was obvious. The test to be applied here would be an objective one. The DT's observations on potential harm could not be faulted: at [74].

(11) There was no delay that would warrant a reduction in sentence. The timing of the complaint suggested that the SMC was waiting for some threshold to be crossed. Once the complaint was made, matters proceeded at a relatively brisk pace. In any event, subsequent delay was contributed to by Dr Pang due to the need for the SMC to refer additional information for the e-mails sent in May and September 2017. Given the large number of e-mails, the time taken did not disclose an inordinate delay. There was also no basis for a complaint of piecemeal prosecution as the second set of e-mails could only be dealt with at new disciplinary proceedings since the DC2 proceedings had concluded before those e-mails were sent: at [75] and [76].

(12) The ten-month suspension was not manifestly excessive. Apart from generally bringing disrepute to the profession, Dr Pang's comments were aimed at reducing the standing of the SMC and the people involved. Further, the statements represented a continued and sustained refusal to accept the outcomes of the earlier disciplinary proceedings. Dr Pang was recalcitrant as he continued sending those e-mails despite numerous warnings not to do so and even after receiving the first Notice of Complaint: at [78] and [79].

(13) The DT was entitled to infer that Dr Pang had received financial contributions from some of the recipients of his e-mails as he had therein sought financial help. There was no reason to depart from the DT's reasoning in imposing the $10,000 fine: at [81].

Case(s) referred to

Ang Peng Tiam v Singapore Medical Council [2017] 5 SLR 356 (folld)

Beh Chew Boo v PP [2020] 2 SLR 1375 (folld)

Dr Goh Seng Heng, Re [2018] SMCDT 1 (distd)

Dr Goh Yong Chiang Kelvin, Re [2018] SMCDT 2 (distd)

Dr Pang Ah San, Re [2012] SMCDC 8 (refd)

Dr Pang Ah San, Re [2014] SMCDC 5 (refd)

Dr Tan Yew Weng David, Re [2014] SMCDT 11 (distd)

Dr Wong Yoke Meng, Re [2015] SMCDT 3 (distd)

Gopalan Nair, Re [1992] 2 SLR(R) 969; [1993] 1 SLR 375 (folld)

Harbour Castle Ltd v David Wilson Homes Ltd [2019] EWCA Civ 505 (refd)

Koh Jaw Hung v PP [2019] 3 SLR 516 (folld)

Law Society of Singapore, The v Eugene Singarajah Thuraisingam [2018] SGDT 8 (refd)

Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239; [2008] 2 SLR 239 (folld)

Lee Tat Development Pte Ltd v MCST Plan No 301 [2018] 2 SLR 866 (refd)

Lim Geok Lin Andy v Yap Jin Meng Bryan [2017] 2 SLR 760 (refd)

Lim Mey Lee Susan v Singapore Medical Council [2013] 3 SLR 900 (folld)

Low Chai Ling v Singapore Medical Council [2013] 1 SLR 83 (folld)

Low Cze Hong v Singapore Medical Council [2008] 3 SLR(R) 612; [2008] 3 SLR 612 (refd)

Muhammad Nabill bin Mohd Fuad v PP [2020] 1 SLR 984 (folld)

Mui Jia Jun v PP [2018] 2 SLR 1087 (folld)

Pang Ah San v Singapore Medical Council [2014] 1 SLR 1094 (refd)

Stansilas Fabian Kester v PP [2017] 5 SLR 755 (folld)

Tan Eng Hong v AG [2012] 4 SLR 476 (refd)

Then Khek Khoon v Arjun Permanand Samtani [2012] 2 SLR 451 (folld)

Wong Meng Hang v Singapore Medical Council [2019] 3 SLR 526 (folld)

Yip Man Hing Kevin v Singapore Medical Council [2019] 5 SLR 320 (folld)

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2 books & journal articles
  • Administrative and Constitutional Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2021, December 2021
    • 1 December 2021
    ...bin Syed Zin v Attorney-General [2021] SGHC 274 at [73]. 188 Syed Suhail bin Syed Zin v Attorney-General [2021] SGHC 274 at [74]. 189 [2021] 5 SLR 681. 190 Pang Ah San v Singapore Medical Council [2021] 5 SLR 681 at [63]. 191 Pang Ah San v Singapore Medical Council [2021] 5 SLR 681 at [59]–......
  • Biomedical Law and Ethics
    • Singapore
    • Singapore Academy of Law Annual Review No. 2021, December 2021
    • 1 December 2021
    ...10 [2021] 2 SLR 1239. 11 (2020) 21 SAL Ann Rev 161 at 161–165, paras 6.2–6.12. 12 [2021] SGHC 243. 13 [2019] 3 SLR 1063 at [85]. 14 [2021] 5 SLR 681. 15 Cap 174, 2014 Rev Ed. 16 Cap 174, 2004 Rev Ed. 17 [2013] 1 SLR 83 at [72]. 18 Pang Ah San v Singapore Medical Council [2021] 5 SLR 681 at ......

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