Wee Teong Boo v Singapore Medical Council

• Jurisdiction: Singapore
• Judge: Dedar Singh Gill J
• Judgment Date: 19 July 2022
• Docket Number: Originating Summons No 127 of 2022
• Court: High Court (Singapore)

Wee Teong Boo

and

Singapore Medical Council (Attorney-General, intervener)

[2022] SGHC 169

Dedar Singh Gill J

Originating Summons No 127 of 2022

General Division of the High Court

Administrative Law — Disciplinary tribunals — Interpretation of s 51(4) Medical Registration Act 1997 (2020 Rev Ed) — Whether evidence permissible under scope and application of s 51(4) Medical Registration Act 1997 — Section 51(4) Medical Registration Act 1997 (2020 Rev Ed)

Administrative Law — Judicial review — Judicial review of decision of disciplinary tribunal — Whether threshold for leave to commence judicial review met

Evidence — Admissibility of evidence — Hearsay — Doctor contesting admissibility of statements recorded under criminal investigations in disciplinary proceedings — Whether hearsay evidence admissible in disciplinary proceedings

Held, dismissing the application:

(1) Disciplinary tribunals are quasi-criminal in nature. An important feature of disciplinary tribunals is the presence of strong public interest considerations which underpin their inception, processes and outcomes: at [41] to [47].

(2) Where oral evidence is provided on assertions made outside of court and tendered in court as evidence as to the truth of the contents therein, but the maker of the assertion is not called as a witness, it is not admissible. The Evidence, in so far as it was relied on to establish the truth of its contents without calling the maker (ie, the Applicant) as a witness, constituted hearsay evidence: at [48] to [52].

(3) The main intent behind s 147(3) of the Evidence Act 1893 (2020 Rev Ed) (the “EA”) is to permit the use of prior statements made by a witness in his cross-examination during a trial. To rely on the provision for the admission of the Evidence ahead of the cross-examination of the Applicant did not comport with the textual and contextual meaning of s 147(3) of the EA. The requirement to prove a previous inconsistent statement made by a person called as a witness in the proceedings did not refer merely to the one-sided assertion of inconsistencies between at least two statements (as suggested by the SMC). It required that the Applicant be confronted with his previous contradictory statements: at [57] and [58].

(4) Pursuant to s 51(4) of the Medical Registration Act 1997 (2020 Rev Ed) (the “MRA”), the Disciplinary Tribunal was granted autonomy to admit evidence in proceedings, even when the evidence might be excluded by the rules of evidence. The ordinary meaning of s 51(4) of the MRA was unambiguous: the plain words showed that the Disciplinary Tribunal was at liberty to consider evidence which would otherwise be excluded pursuant to the EA or any other law on evidence. The parliamentary intention of strengthening and streamlining the disciplinary process was coherent with the ordinary meaning of s 51(4) of the MRA, which facilitated the expeditious resolution of proceedings by conferring a broad discretion to admit all relevant evidence without impediment by traditional rules of evidence: at [63] to [70].

(5) The limits to the exercise of the Disciplinary Tribunal's discretion to admit evidence under s 51(4) of the MRA are relevance and the rules of natural justice. Hearsay evidence is generally admissible under s 51(4) of the MRA if it is relevant and probative. Any other considerations as to the reliability of its content would go towards the weight accorded to the evidence in the determination of the issue: at [95], [107], [122] and [132].

(6) Natural justice consists of the right to a fair hearing and the rule against apparent bias. Of particular relevance is the right to a fair hearing, which relates to procedural fairness in the entire proceedings. What suffices to comport with the practitioner's right to a fair hearing turns on the particular circumstances of the case. Cross-examination is one of the ways in which the practitioner deals with the adverse evidence. The practitioner also has an opportunity to comment on or contradict the evidence at the close of the Prosecution's case. He may do so by submitting that there is no case to answer. The Disciplinary Tribunal then rules on whether the Prosecution has discharged its burden of proof at that juncture, and determines if the defence should be called. If the defence is called, the practitioner may choose to respond to the contents of the evidence by electing to give evidence: at [89], [124] and [127].

(7) The Applicant's right to a fair hearing was not abrogated by the admission of the Evidence as he could elect to respond to the Evidence and, in so doing, raise his own evidence to comment on or challenge it. The Applicant was the maker of the Evidence and it did not lie in his mouth to assert that the Evidence was hearsay. No unfairness was occasioned by the admission of the Evidence. It was well within the public interest for the Disciplinary Tribunal to have admitted the Evidence: at [127] to [129].

(8) The rules of evidence should not be entirely disregarded by a disciplinary tribunal. Consistent with such an observation, the legal burden remained on the Prosecution (ie, the SMC) to prove, beyond a reasonable doubt, that the charge against the medical practitioner was made out: at [120] and [123].

(9) Section 258 of the CPC only provides for the admissibility of statements given by an accused person in his criminal trial. It is otherwise silent on their admissibility (or exclusion) in other non-criminal proceedings. The Statements were therefore not excluded by virtue of s 258(1) of the CPC: at [148] and [149].

(10) Having dismissed the arguments against the substantive merits of the Admissibility Decision, the court found that the Applicant failed to meet the requirement of establishing a prima facie case of reasonable suspicion in favour of granting the remedies sought and therefore did not grant leave for judicial review of the Admissibility Decision: at [150] and [151].

Case(s) referred to

AG v Ting Choon Meng [2017] 1 SLR 373 (refd)

BNX v BOE [2017] SGHC 289 (refd)

Bushell v Secretary of State for the Environment [1981] AC 75 (refd)

Casey v Repatriation Commission (1995) 60 FCR 510 (refd)

CFJ v Office of the Children's Guardian [2016] NSWSC 1625 (refd)

Chai Chwan v Singapore Medical Council [2009] SGHC 115 (distd)

Chan v Kostakis [2003] VCAT 951 (refd)

General Medical Council v Spackman [1943] AC 627 (folld)

Gobinathan Devathasan v Singapore Medical Council [2010] 2 SLR 926 (refd)

Haw Tua Tau v PP [1981–1982] SLR(R) 133; [1980–1981] SLR 73 (refd)

Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530 (refd)

Kais Jewellery (Syd) Pty Ltd v Commissioner of Taxation, Re [2021] AATA 16 (refd)

Kay Swee Pin v Singapore Island Country Club [2008] 2 SLR(R) 802; [2008] 2 SLR 802 (refd)

Law Society of Singapore v Chiong Chin May Selena [2013] SGHC 5 (refd)

Law Society of Singapore v Shanmugam Manohar [2022] 3 SLR 731 (refd)

Lim Mey Lee Susan v Singapore Medical Council [2011] 4 SLR 156 (refd)

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

Nalpon Zero Geraldo Mario, Re [2012] 3 SLR 440 (refd)

Nursing & Midwifery Council v Ogbonna [2010] EWCA Civ 1216 (refd)

Pang Ah San v Singapore Medical Council [2021] 5 SLR 681 (refd)

PP v Low Kok Heng [2007] 4 SLR(R) 183; [2007] 4 SLR 183 (refd)

PP v Wee Teong Boo [2019] SGHC 198 (refd)

R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456 (refd)

R v General Medical Council [2011] EWHC 1585 (Admin), HC (Eng) (refd)

R v General Medical Council [2015] EWHC 299 (Admin), HC (Eng) (refd)

R v Secretary of State for Transport, ex parte Gwent County Council [1988] QB 429 (folld)

Roberts v Balancio (1987) 8 NSWLR 436; (1987) 11 Fam LR 669 (refd)

Russell v Duke of Norfolk [1949] 1 All ER 109 (refd)

Sammut v AVM Holdings Pty Ltd (No 2) [2012] WASC 27 (refd)

Shankar Alan s/o Anant Kulkarni, Re [2007] 1 SLR(R) 85 (folld)

Sulaiman bin Jumari v PP [2021] 1 SLR 557 (folld)

T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 (refd)

Tan Cheng Bock v AG [2017] 2 SLR 850 (refd)

Tan Eng Hong v AG [2013] 4 SLR 1059 (refd)

Victorian Bar Inc v Perkins Ruling No 4 (Legal Practice) [2006] VCAT 460 (refd)

Wong Keng Leong Rayney v Law Society of Singapore [2006] 4 SLR(R) 934; [2006] 4 SLR 934, HC (refd)

Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR(R) 377; [2007] 4 SLR 377, CA (refd)

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

Xu Yuanchen v PP [2021] 4 SLR 719 (refd)

Facts

This application concerned the admissibility of evidence in the disciplinary proceedings against the applicant (the “Applicant”), which had been commenced by the Singapore Medical Council (the “SMC”). The evidence consisted of: (a) two statements recorded from the Applicant pursuant to s 22 of the Criminal Procedure Code 2010 (2020 Rev Ed) (the “CPC”); and (b) his testimony pertaining to the said statements at the criminal trial of Public Prosecutor v Wee Teong Boo[2019] SGHC 198 (“HC/CC 85/2017”).

The Disciplinary Tribunal ruled that the Applicant's statements (the “Statements”) and testimony at the criminal trial (the “Testimony”, and collectively with the Statements, the “Evidence”) were admissible (the “Admissibility Decision”). For background, the Applicant was charged for rape and the Statements had been recorded pursuant to investigations pertaining to the charge. He claimed trial to the charge and provided the Testimony at the trial in HC/CC 85/2017. The Applicant was convicted of the amended charge of sexual assault by penetration in the High Court. On appeal in CA/CCA 15/2019 and CA/CCA 16/2019, the Applicant was acquitted.

Being dissatisfied with the Admissibility Decision, the Applicant brought the present application for, inter alia: (a) leave to seek a quashing order against the Admissibility Decision; and (b) if leave was granted, (i)...