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    11:05 PM Janahan Thiru (Associate, Rajah & Tann Singapore LLP)

    Case Comment on Ang Pek San Lawrence v Singapore Medical Council [2015] SGHC 58

        

    Introduction

    In a judgment that has garnered significant interest from the medical community, the High Court explained its rare decision to order costs against the Singapore Medical Council (“SMC”) in respect of disciplinary proceedings instituted against a medical practitioner. This is a significant decision which would have implications not only on the SMC and the medical community, but possibly also on other regulatory and prosecutorial authorities (e.g. the Law Society). The judgment also touches on certain principles of statutory interpretation. 

    Facts

    The Appellant, a registered medical practitioner, was the subject of a complaint filed by one of his patients concerning the delivery of her child. Pursuant to Section 40 of the Medical Registration Act (“MRA”), the SMC constituted a Complaints Committee to inquire into the complaint. Ultimately, the Complaints Committee concluded that no formal inquiry was required and dismissed the complaint. 

    Dissatisfied with the decision of the Complaints Committee, the complainant appealed to the Minister for Health pursuant to what was then Section 41(7) of the MRA. The Minister acceded to the appeal and pursuant to what was then Section 41(8)(b), directed that the SMC appoint a Disciplinary Committee (“DC”) to hear and investigate the complaint. No reasons were given for the Minister’s decision. 

    Accordingly, a DC was appointed and the SMC formulated four charges against the Appellant. The DC acquitted the Appellant of three of the charges. With respect to the fourth charge however, the DC convicted the Appellant and ordered that his registration as a medical practitioner be suspended for a period of three months. The DC also ordered the Appellant to pay 60% of the costs of the proceedings. 

    The Appellant appealed to the High Court against the decision of the DC. The High Court allowed the Appellant’s appeal and set aside all orders made by the DC (including its costs order).

    What is important for the purposes of this comment is the decision in respect of the issue of costs. The High Court ordered costs of the appeal as well as the proceedings before the DC against the SMC. This decision on costs prompted the SMC to make further arguments to the High Court to the effect that it should not be subject to an adverse costs order whether in relation to the appeal or the proceedings before the DC. The judgment that is the subject of this comment was issued in response to the further arguments made by the SMC.

    Decision

    Three issues arose for the Court’s determination.

    Issue 1: Whether the High Court hearing an appeal against a decision of the DC has the power to order costs against the SMC 

    It was undisputed that the High Court had the power to order costs of the appeal against the SMC.

    The SMC however contended that the High Court did not have the power to order costs of the proceedings before the DC against it. The SMC submitted that while what was then Section 45 (now Section 53) of the MRA expressly empowered the DC to order costs against a medical practitioner in the event of a conviction, the MRA was silent on the costs orders that may be made in the event of an acquittal. This, the SMC contended, meant that the DC did not have the power to order costs against the SMC in the event of an acquittal, and if the DC did not have such power then neither would the High Court sitting on appeal from it.

    The High Court disagreed, holding that it did have the power to order costs of the proceedings before the DC against the SMC. 

    It held that although the MRA did not expressly provide the DC with the power to order costs against the SMC in the event of an acquittal, such a power was one of the implied ancillary powers that arose from the DC’s status as an adjudicative body as it “may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised”. 

    With this in mind, the question was then not so much whether the MRA expressly empowered the DC to order costs against the SMC in the event of an acquittal but rather whether the MRA limited the DC’s implied power to do so. For instance, the Court considered that Section 45(1) (now Section 53(1)) of the MRA was in fact a limiting provision. It restricted the powers exercisable by the DC against a medical practitioner in two ways: - (1) the only powers exercisable by the DC upon a finding of guilt are those provided by what was then Section 45(2) read with Section 45(4) (now Section 53(2) read with Section 53(5)); and (2) the DC can only exercise the powers contained in Section 45(2) and Section 45(4) upon a finding of guilt. In contrast, the Court found that the MRA’s silence as to the orders that the DC may make in the event of an acquittal, rather than circumscribing the DC’s powers in such a situation as contended by the SMC, meant that apart from Section 45(1), no express limits were placed on such powers. Accordingly, the DC (and consequently the High Court) has the power to order costs of the proceedings against the SMC. The Court considered that its conclusion was reinforced by several other factors including that it was implausible that Parliament intended to confer on the SMC absolute immunity from adverse costs orders and that such orders served an important function in discouraging behaviour that impedes the administration of justice.

    Issue 2: What were the principles governing whether costs should be ordered against the SMC

    Having established that it had the power to order costs against the SMC, the High Court proceeded to consider a number of English and local authorities concerning the principles governing the exercise of such a power against a regulatory authority. The High Court summarised the applicable principles as follows:

    • The ultimate objective of the court is to render a costs order that is just and reasonable.
    • The “event” (i.e. which party is successful in the proceedings) is one of the factors that may be taken into account but is not the only one.
    • Similarly, the fact that the SMC was exercising a regulatory function is also only one of the factors that may be taken into account although it will often be an important and sometimes even overriding one militating against an adverse costs order being made against the SMC.
    • The degree of weight to be placed upon the fact that the SMC has a regulatory function will depend on various factors. In particular, the court will consider whether the decision to bring charges was made honestly, reasonably, and on grounds that reasonably appeared to be sound in the exercise of its public duty. There is no need to prove egregious conduct to the level of “bad faith” or “gross dereliction” though that would undoubtedly suffice to justify the making of an adverse costs order.
    • The court will also consider the financial prejudice to the medical practitioner.
    • Finally, the court will also consider “any other relevant fact or circumstances”. 

    The Court added that while the above framework would be applicable to determinations relating to both costs of first instance proceedings and costs of appeals, due to the different nature of appeal proceedings compared to first instance hearings, certain additional factors, such as whether the errors made by the DC arose at least in part due to the way in which the case was prosecuted by the SMC, may also be considered when making a determination in relation to costs of appeals. 

    Issue 3: Whether applying the principles identified, costs should be ordered against the SMC in the present case

    Applying the above principles, the Court awarded the Appellant costs of the proceedings before the DC as well as costs of the appeal. This decision was based on three considerations.

    First, it did not appear that the proceedings were brought against the Appellant on grounds that were reasonably sound. In particular, no reason was given to explain the decision to commence proceedings before a DC despite the findings of the Complaints Committee. 

    Second, at least some of the errors of the DC were caused by the SMC failing to sufficiently particularise the charges and raising, for the DC’s consideration, extraneous facts that were irrelevant to the proceedings.

    Third, the Appellant was made to endure two tranches of proceedings which he should never have been put through. Depriving the Appellant of costs in such circumstances would unfairly cause him financial prejudice.

    Concluding Remarks

    There are several aspects of the High Court’s decision that are deserving of further discussion, but this comment would only be able to touch briefly on a few of them.

    First, while the Court’s finding that the DC has the implied power to order costs against the SMC appears to be a practically sensible one, it perhaps would have been helpful if the Court’s analysis of the MRA had been further elaborated upon. The force driving the Court’s reasoning with regard to this finding appears to come from the importance of the role that costs play in the fair and expeditious conduct of adjudicatory proceedings. However, it is not readily apparent, whether from the judgment or from the wording and structure of Section 45 itself, why the Court considered Section 45(1) to be a limiting provision. This is an important point given that if Section 45(1) was in fact an empowering provision, then to imply a power to order costs apart from that which has been expressly provided for under it may be contrary to the legislative intent made evident by the structure of the provision and the MRA as a whole. Further, the Court’s dicta that Section 45(1) operates to prevent the DC from ordering costs against a medical practitioner in the event of an acquittal (e.g. on account of behaviour that impedes the administration of justice) could also have been further explained. It is not clear how a limiting provision specifically addressing the powers exercisable in the event of a finding of guilt can limit the powers exercisable by the DC in the event of an acquittal. If the logic is that the inclusion of a power under Section 45(2) or Section 45(4) means that the circumstances set out in Section 45(1) are the only circumstances in which they can be exercised unless otherwise expressly provided, then this would be to treat Section 45(1) as an empowering provision. Also, if one considers the premise underlying the Court’s decision to be that costs orders play an important role in the adjudicative process, and that as such, an adjudicative body’s power to order them should not be readily presumed to be curtailed, then this dicta seems to be contrary to the general tenor of the decision.      

    Second, it appears that in ordering costs of the DC proceedings against the SMC, the Court had been primarily concerned with the substantial prejudice suffered by the Appellant rather than the extent to which the SMC had acted improperly. The SMC’s failure to adequately particularise the charges and the fact that it raised extraneous facts for the DC’s consideration appears to have only been relevant to the costs of the appeal and not the costs of the DC proceedings (see [59]). While the Court did consider the reasonableness of the decision to commence proceedings before a DC, the SMC did not have a choice in this matter as it was, as the Court noted, mandated by statute to comply with the Minister’s decision. It would no doubt continue to have a role in formulating the appropriate charges, but the Court’s criticism at least in this respect appears not to have been directed at specific charges but rather the very decision to bring proceedings as a whole (see [56] and [61]). Ultimately, it seems that the Court considered that notwithstanding whose decision it was, what would certainly be unjust would be for the Appellant to bear the financial burden of proceedings brought in such circumstances. It remains to be seen whether a similar philosophy focused on the prejudice of the accused may be adopted in proceedings brought by other regulatory bodies.

    Third, it also remains to be seen whether this decision would prompt a review of the disciplinary procedure under the MRA (for instance to require the Minister to provide reasons for his decisions). It is worth mentioning that both the Ministry of Health and the SMC have since indicated that they are reviewing their processes in light of the Court’s decision (see here  and here). Other professional regulatory bodies, such as the Law Society, would watch any steps being taken closely as they are usually also susceptible to being compelled to commence or continue proceedings against a member by other authorities (e.g. the Attorney-General or a Judge under Section 85(3)(b) of the Legal Profession Act).

    * This blog entry may be cited as Janahan Thiru, "Case Comment on Ang Pek San Lawrence v Singapore Medical Council [2015] SGHC 58", Singapore Law Blog (14 April 2015) (http://www.singaporelawblog.sg/blog/article/104)

    ** A PDF version of this entry may be downloaded here

Comment Section