Case Summaries

Pang Ah San v Singapore Medical Council [2021] SGHC 116

 

SUPREME COURT OF SINGAPORE

12 May 2021

Case summary

Pang Ah San v Singapore Medical Council   [2021] SGHC 116
Originating Summons No 5 of 2020

------------------------------------------------------------------------------------------------

Decision of the General Division of the High Court (delivered by Justice Chao Hick Tin):

Outcome: High Court dismisses doctor’s appeal against conviction and sentence imposed by the Disciplinary Tribunal.   

 

Introduction

1 The appeal concerned disciplinary proceedings taken by the Singapore Medical Council (“SMC”) against Dr Pang Ah San (“Dr Pang”), who faced three charges (“1st Charge” to “3rd Charge” respectively) under s 53(1)(c) of the Medical Registration Act (Cap 174, 2014 Rev Ed) (“MRA”). Dr Pang was convicted of the three charges and sentenced. Originating Summons No 5 of 2020 was Dr Pang’s appeal against his conviction and sentence.

Background

 

2 Between 2007 and 2009, Dr Pang used a loop Percutaneous Endoscopic Gastronomy (“loop-PEG”) tube to treat four patients. In May 2009, pursuant to complaints received, a Complaints Committee ordered a formal inquiry to be held before a Disciplinary Committee (“DC”), which was held between September 2011 and March 2012. He was found guilty of professional misconduct on 23 July 2012 by the DC (“DC1”), as DC1 found that the loop-PEG procedure was not generally accepted by the medical profession. He was fined $10,000 and censured. Dr Pang appealed against this decision.

3 In this same period, between June 2012 and April 2013, Dr Pang sent numerous emails to many recipients (up to 153 recipients per email, with most emails being sent to more than 100 recipients). The statements made in these emails formed the basis of the 1st Charge.

4 The appeal against the DC1’s decision was heard by the High Court on 3 May 2013, and was dismissed. On 15 May 2013, a second Complaints Committee ordered a formal inquiry to be held before another DC (“DC2”) to conduct a formal inquiry into complaints arising out of the use of the loop-PEG tube on three other patients in 2007–2009. These proceedings were conducted between July and October 2014, and on 15 October 2014, DC2 found Dr Pang guilty of professional misconduct. Dr Pang was suspended for six months, fined $10,000, and censured.

5 In December 2014, Dr Pang began writing blog posts about the SMC and the disciplinary proceedings. From February to November 2015, Dr Pang sent 11 distinct emails (some of which were sent multiple times) to between 320 to 548 recipients per email, which included links to the blog posts written from December 2014 onwards. These statements formed the basis of the 2nd Charge.

6 On 22 March 2016, the SMC made a complaint against Dr Pang pursuant to s 39(3)(a) of the MRA. On 13 September 2016, a Notice of Complaint was sent to Dr Pang pursuant to s 44 of the MRA.

7 In May 2017, Dr Pang sent four emails to the Executive Secretary of the SMC. On 12 June 2017, the SMC referred additional information relating to these emails to the Chairman of the Complaints Panel. In September 2017, Dr Pang sent three distinct emails (not counting duplicates) to between 37 and 198 recipients each. On 13 October 2017, the SMC again referred additional information pertaining to these statements. These statements made in May and September 2017 formed the basis of the 3rd Charge.

8 A Complaints Committee was convened and, on 12 January 2018, it ordered the matter to be referred to a Disciplinary Tribunal (“DT”).

The inquiry by the DT

 9 The DT conducted its inquiry in July, October 2019, January and March 2020. The DT found that the emails contained statements that were “highly derogatory”, and that Dr Pang’s repeated acts of sending out these emails to numerous recipients constituted a course of conduct that was improper and brought disrepute to the medical profession. It rejected the various points raised by Dr Pang in his defence. Applying the test enunciated in Low Chai Ling v Singapore Medical Council [2013] 1 SLR 83 (“Low Chai Ling”) at [72], it found that the charges were proved beyond reasonable doubt and convicted Dr Pang of all three charges.

10 The DT found that Dr Pang’s culpability was high, given the language used, the prolonged period of activity, his recalcitrance, and his persistence despite the finality of the prior disciplinary proceedings. The DT also concluded that the harm caused would be significant. It found that there were no mitigating factors in this case. The DT therefore ordered that: (a) Dr Pang be suspended for a period of ten months; (b) Dr Pang pay a penalty of $10,000; (c) Dr Pang be censured; (d) Dr Pang give a written undertaking to the SMC that he will not engage in the conduct complained of or any similar conduct; and (e) Dr Pang, within seven days, remove all posts on Facebook or any other social media that contained derogatory statements against the SMC and persons appointed by the SMC in connection with its past and pending disciplinary processes.

The court's decision

Conviction

Whether the DT proceedings were an abuse of process

11 Dr Pang claimed that the DT proceedings were an abuse of process as they were initiated for the ulterior purpose of litigating the SMC’s own claim in defamation. The Court disagreed. Whether a party’s conduct constituted an abuse of process was a very fact specific inquiry. One aspect of the doctrine in the context of criminal proceedings was the use of the process for a purpose for which it was not intended. This applied to the quasi-criminal context of disciplinary proceedings as well: at [37].

12 Applying that definition, there was no abuse of process. First, the argument assumed that there was a binary choice between a defamation suit or disciplinary proceedings, or between the tort of defamation or misconduct that would give rise to disciplinary sanction. This dichotomy did not exist as a matter of law or logic. Second, it was not shown 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 [38] and [39].

Whether the charges were legally defective

13 Dr Pang argued that s 53(1)(c) of the MRA only addressed shameful conduct and did not cover the content of critical speech. By focusing on the content of Dr Pang’s statements as opposed to his conduct bringing shame to the profession by association, the charges were legally defective. The Court disagreed. Any conduct, whether by actions or words, which would bring disrepute to the profession would come within the ambit of s 53(1)(c) of the MRA. Further, the charges addressed the very gravamen of s 53(1)(c) of the MRA which was the protection of the medical profession’s integrity and good name: at [42] and [43].

14 In the present case, the alleged conduct fell within the scope of s 53(1)(c) of the MRA. The medical profession was a regulated one, and the body entrusted with the regulation of the profession was the SMC. The SMC’s reputation was inextricably tied to the reputation of the medical profession, since the public’s confidence in the medical profession as a whole would inevitably and necessarily be affected by its confidence in the body regulating the members of that profession: at [44].

Whether the charges were proved beyond a reasonable doubt

15 It was not disputed that Dr Pang made the relevant statements. Dr Pang’s appeal centred on a number of complaints about the DT’s reasoning. First, he argued that the DT had misdirected itself in law by holding that he had to prove the truth of the assertions he was making. The Court accepted that the legal burden was on the SMC throughout to prove its case. However, as the statements made in this case were prima facie derogatory, the evidential burden shifted to Dr Pang to show why the statements should not be treated as derogatory or that he was justified in making those statements. He had failed to do so: at [47] and [48].

16 Second, Dr Pang argued that the DT had improperly taken into account the tone of his criticisms and the language used. The Court disagreed. It was clear that the language in some of the statements was vulgar and obscene. The DT was conscious of the distinction between honest critical comments and scurrilous attacks. The tone and nature of the criticisms were invariably elements that went towards demonstrating the true nature of the statements: at [49].

17 Third, Dr Pang criticised the DT’s findings that the emails were essentially public. However, in the first place, it was not clear what the distinction between “public” and “private” added to Dr Pang’s case. In any event, the emails were sent to many recipients, including members of the press and government agencies, and he had even requested recipients of some of the emails to “spread the word”. Hence, it was clear that Dr Pang wanted his emails to be read by as wide a section of the public as possible. The DT’s reliance on the blog posts could not be criticised as they were linked to in his emails and were referred to in the relevant charges: at [50].

18 Fourth, Dr Pang argued that the SMC had failed to lead evidence to show that the emails had in fact brought disrepute to the medical profession. The Court observed that the test applied in Low Chai Ling was an objective one, and it was open to the DT to look at the nature of the criticisms and decide if the criticisms would have that effect, based on how a reasonable person would react. The test was also objective as members of the profession had to be held to an objective standard. This was also supported by the language of s 53(1)(c) of the MRA: at [51].

19 Fifth, Dr Pang argued that the test in Low Chai Ling was applied incorrectly. However, based on the facts, the Court held that the DT was entitled to conclude that a reasonable person would conclude that Dr Pang ought not to have done what he did: at [52].

Whether there were procedural irregularities in the DT proceedings

20 There was nothing objectionable about the DT’s suggestion that the SMC consider amending the charges to refer to “derogatory” instead of “defamatory” statements. The principle was that an accused person should know with certainty the case advanced against him. The amendments clarified the SMC’s case against Dr Pang. The amendments also did not enable the SMC to get around a fatal flaw in its case, as the DT would have been able to come to a conclusion on whether the statements were “defamatory” in the ordinary sense of the word: at [56].

21 There was also no basis for Dr Pang’s argument that the SMC’s counsel should have been prevented by the DT from representing the SMC. There was also no case of excessive interference by the DT – far from preventing Dr Pang from pursuing his case, the DT was seeking to guide Dr Pang as to how he could do so effectively: at [57] and [58].

Whether Dr Pang’s convictions were unconstitutional

22 The Court rejected the contention that Dr Pang’s conviction and sentence infringed his constitutional right to freedom of speech under 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 was a profession regulated by law. When a person was admitted to the privileges of membership of that profession, he or she must be taken to agree to abide by the norms and standards required by the profession, and it rang hollow for that person to claim that the Constitution prevented the regulatory body from regulating his or her conduct: at [60] to [63].

23 Furthermore, as membership in a profession was a privilege, it could be taken away if the conditions of membership were not met or observed. It was well within the powers of the regulatory body (subject to the safeguards of administrative law) to determine the conditions that must 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 [64].

24 In any event, Art 14 of the Constitution was not relevant between Dr Pang and the SMC. The Constitution, especially Part IV, was largely directed at regulating the relationship between citizens and the state. While the state could not restrict a citizen’s right to freedom of speech or expression except for the reasons identified in Art 14(2), 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 professional body in question. Hence, Art 14 did not apply: at [65].

Sentences

25 While the precedents showed that the usual punishment for improper conduct under s 53(1)(c) of the MRA was a fine, the facts of those cases were very different, and they were hence not helpful precedents in this case. This case was more serious than the normal range of cases under s 53(1)(c) of the MRA and called for a commensurate sentence: at [71].

26 Contrary to Dr Pang’s complaint, the DT did not improperly rely on precedents from the legal profession, but only referred to them as indications of the approach that the DT should take. That was not objectionable: at [72].

27 The DT had correctly assessed the alleged mitigating factors. The fact that Dr Pang had volunteered to evacuate Singaporeans from Wuhan, China, at the onset of the COVID-19 pandemic was of little mitigating value. That fact did not indicate that the sentencing objectives of specific and general deterrence would be satisfied by a lighter sentence: at [73].

28 The DT’s conclusions as to potential harm could not be disturbed. The harm which could arise would be obvious. The test to be applied here would be an objective one. The DT’s inferences were supported by the facts and could not be faulted: at [74].

29 There was no significant delay that warranted a reduction in sentence. While the SMC did not make a complaint immediately after the first set of emails was sent, and only did so after the second set (later forming the basis of the 2nd Charge) was sent, it appeared that the SMC was waiting for some threshold to be crossed before it initiated disciplinary proceedings. Once the complaint was made, matters proceeded at a relatively brisk pace. Any subsequent delay was not significant and was in any event contributed to by Dr Pang given the need for the SMC to refer additional information following Dr Pang’s further emails in May and September 2017. The large number of emails involved also justified the time that was taken. The facts did not support a complaint of piecemeal prosecution, as the second set of emails could only be dealt with at new disciplinary proceedings since the DC2 proceedings had concluded before those emails were sent: at [75] and [76].

30 The Court upheld the ten-month suspension. While it would have been helpful if the DT had provided a breakdown of the individual sentences, it was not necessary in this case as the misconduct in all three charges was of the same nature. In the present case, Dr Pang had made disparaging and abusive comments about the SMC and the doctors and individuals involved in the disciplinary process on numerous occasions to a large number of recipients. Many of the statements were offensive, and some were even vulgar and obscene. The comments were aimed at reducing the standing of the SMC and the people involved. Further, the statements represented a continued and sustained refusal to submit to the outcomes of earlier disciplinary proceedings. Persistent disrespect and disregard for the body tasked with maintaining professional standards must be taken very seriously. Dr Pang also proved himself to be recalcitrant and continued making such statements despite being warned numerous times by the SMC’s lawyers not to do so, and even after receiving the first Notice of Complaint. There were even indications of escalating conduct. Therefore, the ten-month suspension was not manifestly excessive: at [77] to [79].

31 The fine of $10,000 was upheld. The DT was entitled to infer that Dr Pang had received financial contributions because he had asked the recipients for financial help in the emails. The DT’s reasoning was that Dr Pang should not be allowed to benefit from what he had done. There was no reason to depart from the DT’s reasoning: at [81].

32 The appeal was therefore dismissed: at [83].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

YOU MAY ALSO BE INTERESTED IN