Tan Tiang Hin Jerry v Singapore Medical Council

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 26 August 1999
• Neutral Citation: [1999] SGHC 219
• Docket Number: Originating Summons No 902 of 1999
• Date: 26 August 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Engelin Teh SC, Thomas Sim and Juliana Lee (Engelin Teh & Partners)
• Citation: [1999] SGHC 219
• Defendant Counsel: Philip Fong and Chang Man Phing (Harry Elias Partnership)
• Court: High Court (Singapore)
• Subject Matter: Remedies,Whether complaints committee in breach of statutory time limit in completing preliminary inquiry,Administrative Law,Certiorari,Statutory provisions for appointment of members to disciplinary committee,Complaints committee's decision to put applicant through disciplinary hearing,s 42(1) Medical Registration Act (Cap 174, 1998 Ed),Whether disciplinary committee offending rule against person acting as judge in own cause,ss 40(14), 41(3), 42 (18) Medical Registration Act (Cap 174, 1998 Ed),Whether charges against applicant warrants such recommendation -Whether correctness of decision challengeable,Wednesbury principles and of test of fairness,Whether complaints committee in breach of audi alteram partem principle,ss 40, 41 Medical Registration Act (Cap 174, 1998 Ed),Whether charges beyond scope of complaint,Prohibition,Complaints committee's discretion to choose statutory section under which to proceed,Application for order to prevent disciplinary committee from hearing charges against applicant,Complaints committee's recommendation to put applicant before disciplinary committee,Application to quash charges of infamous conduct,Whether complaints committee acted within powers,Whether delay in serving notice of inquiry and appointing disciplinary committee renders disciplinary process void,Whether applicant given prior notice and adequate opportunity to be heard,Administrative discretion,Exercise of right to be heard varying according to stage of inquiry,ss 41, 41(1)(a), 41(1)(b) Medical Registration Act (Cap 174, 1998 Ed)

Background

This is an application by Dr Jerry Tan Tiang Hin (`Dr Tan`) for judicial review of a decision by the Complaints Committee of the Singapore Medical Council (`SMC`). The Complaints Committee recommended that Dr Tan be submitted to a formal inquiry before the Disciplinary Committee on two charges of infamous conduct. By this action Dr Tan sought to have the two charges quashed and an order prohibiting the Disciplinary Committee of the SMC from proceeding to hear the said charges. Dr Tan is an ophthalmologist practising under the name of Jerry Tan Eye Surgery Pte Ltd at the Gleneagles Medical Centre. Jerry Tan Eye Surgery is a one-third owner of a company called Excimer Pte Ltd which owns a company called Specialist Eyecare Pte Ltd. That company, in turn, owns an optical shop known as Specialist Eyecare Centre (`the optical shop`), and a clinic known as Specialist Eyecare Clinic. The optical shop which carries on the business of providing spectacles, contact lenses and other optical products commenced business on 28 October 1997. The clinic commenced practice in opthomology under one Dr Daniel Sim. However, the clinic licence was at all material times under the name of Dr Tan. The optical shop was managed by one Francis Wong.

On 26 January 1998 the Business Times published an article on the optical shop in which, among other things, a reference was made to a licensed eye clinic being `under the same roof` as the shop. This prompted a complaint to be sent to the SMC by Dr Cheong Pak Yean who was the president of the Singapore Medical Association (`SMA`) at that time. In the statutory declaration that accompanied the complaint dated 8 April 1998, Dr Cheong declared the attached complaint to be his complaint although in the concluding paragraph of his four page complaint he stated that the SMA requests the SMC to `look into the matter`. I mention this only because Dr Tan, through his counsel Miss Teh, questioned the validity of this complaint. The point she makes is that there appears to be no sanction given by the SMA Council for Dr Cheong to lodge the complaint on its behalf. I do not think that the question of whether Dr Cheong`s complaint was authorised by the SMA is a relevant inquiry before me. It is quite clear that the complaint received by the SMC was a proper one on the face of it and satisfies the requirements under the Medical Registration Act (Cap 174, 1998 Ed). It was not necessary for the SMC to inquire whether the SMA had complied with its own constitution. The Medical Registration Act only requires a complaint to be supported by a statutory declaration in the form signed by Dr Cheong. If the SMA`s own procedure had not been followed that is a matter for Dr Tan to take up with them, and is outside the ambit of the present proceedings against the SMC. In these proceedings I will, solely for convenience, refer to the said complaint as the complaint of Dr Cheong. The SMC sent a copy of the said complaint to Dr Tan by letter dated 21 April 1998. The letter reads as follows:

1 The Complaints Committee (CC) of the Singapore Medical Council has received the attached complaint from Dr Cheong Pak Yean, Singapore Medical Association.

2 In accordance with s 40(20) of the Medical Registration Act, the CC invites you to submit a written explanation on the complaint. Please note that if any action should follow, your written explanation and any accompanying enclosures may be used as evidence in subsequent action. [My emphasis.]

3 The CC would like to have your explanation by 20 May 1998.

On 20 May 1998 Dr Tan submitted a written explanation consisting of 32 paragraphs in nine pages and several enclosures. On 18 December 1998 the Complaints Committee wrote to inform Dr Tan that it has decided to place the matter before the Disciplinary Committee, and that he would be informed of the date of hearing at a later time. On 26 March 1999 M/s Harry Elias Partnership, the solicitors for the SMC wrote to Dr Tan notifying him of the two charges that he had to answer on the hearing date fixed at 21 May 1999. The two charges read as follows:

1 That you Dr Jerry Tan Tiang Hin are charged that sometime in January 1998, while the licensee of the Specialist Eyecare Clinic at [num ]01-38A, 1 Kim Seng Promenade, Great World City, Singapore 237994 (`the Clinic`), and whilst a shareholder and director of Specialist Eyecare Centre [num ]01-38, 1 Kim Seng Promenade, Great World City, Singapore 237994 which is a shop in the business of retail eyewear (`the Shop`), you did improperly attempt to profit at the expense of professional colleagues by advertising the services offered by the clinic, to wit, you allowed or acquiesced to the publication of an article dated 26 January 1998 in the Business Times entitled `New eyecare chain opens $2m shop in Singapore` containing laudatory statements about the clinic, and in relation to the facts alleged you have been guilty of infamous conduct in a professional respect.

2 That you Dr Jerry Tan Tiang Hin are charged that sometime in January 1998, while the licensee of the Specialist Eyecare Clinic at [num ]01-38A, 1 Kim Seng Promenade, Great World City, Singapore 237994 (`the Clinic`), and whilst a shareholder and director of Specialist Eyecare Centre [num ]01-38, 1 Kim Seng Promenade, Great World City, Singapore 237994 which is a shop in the business of retail eyewear (`the Shop`), you did bring the medical profession into disrepute, to wit, you allowed and/or acquiesced to the clinic being used in the promotion of the shop in an article dated 26 January 1998 in the Business Times entitled `New eyecare chain opens $2m shop in Singapore` and in relation to the facts alleged you have been guilty of infamous conduct in a professional respect.

Dr Tan takes the view that the Complaints Committee had not acted fairly and applies by this summons to set aside the decision of that committee in referring him to the Disciplinary Committee. His counsel Miss Teh sets out five grounds of complaint.

The first ground

The first ground of Dr Tan`s application before me is that the Complaints Committee had acted illegally and outside its powers under the Medical Registration Act. His counsel submitted that the Complaints Committee could only inquire into the matters set out in Dr Cheong`s complaint and no further. She submitted that Dr Cheong`s complaint only raised the question of whether Dr Tan`s shareholding in the optical shop compromised his independence as an ophthalmologist. She argued that instead, the charges preferred against Dr Tan `alleged "advertising" of the clinic`s services and allowing the clinic to be used in the "promotion" of the optical shop`.

Miss Teh submitted that unlike the Inquiry Committee under the Legal Profession Act (Cap 161, 1997 Ed), the Complaints Committee had no independent powers to inquire into matters that are not set out in the complaint. She relied also on the case of Re Seah Pong Tshai [1992] 1 SLR 399 for the proposition that the Complaints Committee cannot stray from the actual complaint. Seah`s case concerned a complaint by a client against his solicitor for overcharging and refusing to refund part of the brief fee. The matter was inquired by the Inquiry Committee and consequently, the Law Society charged the solicitor for grossly improper conduct in falsely denying receipt of the fee. The solicitor was found guilty as charged. However, the court of three judges found that the allegation that the solicitor had falsely denied receiving the fee was not the subject matter of the inquiry. Thus it concluded that the Disciplinary Committee was wrong to have convicted the solicitor on that charge. The basis of the court`s decision was summarised by Thean J at p 405 as follows:

The subject matter of the charge preferred against the respondent before the disciplinary committee was never inquired into by the inquiry committee. What was referred to and inquired into by the inquiry committee was the complaint as contained in the letter of 22 January 1988 of the complainant. That was the complaint on which the inquiry committee reported to the Council and it is in respect of that complaint that the council applied to the Chief Justice to appoint a disciplinary committee, and the disciplinary committee was in error in hearing and investigating the charge and making a determination thereon. That error, in our judgment, was unquestionably fatal to the entire proceedings. The order nisi that the respondent show cause must therefore be discharged, and we so ordered.

Miss Teh draws a comparison between ss 40 and 41 of the Medical Registration Act with s 86(8) of the Legal Profession Act (as it now stands) and concluded that under the former provisions, the Complaints Committee had no power to inquire, on its own motion, into matters which are not subject of the complaint.

I think that it is beyond dispute that the Complaints Committee must act within the scope of its powers as the Act may confer. Its duty under the Act obliges it to inquire into such complaint as the chairman of the Complaints Committee may lay before it. It follows as a matter of common sense that it should focus on the complaint and nothing more. It is obvious that the Complaints Committee must not take into account matters that are extraneous and irrelevant to the complaint. It does not follow, however, that the Complaints Committee must be restrained from taking a broad and sensible view of the nature and context of the complaint. The Complaints Committee must not be unreasonably fettered if it is to discharge its statutory duty effectively. How the balance is struck depends on the facts of each individual case.

In this case it was argued on Dr Jerry Tan`s behalf that the charges cannot arise from the complaint lodged by Dr Cheong because the `SMA`s sole concern is that [Dr Tan`s] involvement in the Optical Shop allegedly...