The standard of proof in the trial of professional misconduct – privilege or prejudice?

The crucial question in any trial is the standard of proof, that is how certain we need to be sure before we judge a person guilty of the offence charged. In an adversarial system of trial, the judges or juries are fed with opposing evidence aduced by both parties, each trying to persuade the judges or juries to rule in his favour. Being guilty or not guilty is an all or nothing phenomenon. There is no such thing as partially guilty. The degree of fault or guilt would only be reflected in sentencing after conviction. So a line, a hypothetical thin line with no grey area, needed to be drawn which serves to distinguish between conviction and acquittal.

The standard of proof concerns how and where this hypothetical line should be drawn.

There has always been different standards of proof applied to criminal and civil cases. The test for criminal case is more stringent: it has to be proved beyond reasonable doubt that the defendant has committed the offence charged before he can be convicted.
The test for civil case is: upon a balance of probability, if the defendant is more likely to have committed the offence charged, then he can be convicted.

This distinction is of course artificial and anything but perfect. This distinction attempts to solve the eternal conflict between individual freedom and public order by seeing an inherit difference between criminal and civil cases. The rationale behind this is the taking into account how serious the consequence is once convicted, and the logic that the more serious the offence charged, the less likely that it has actually been committed.

The natural response would turn on how cases be differentiated into criminal and civil in nature. This raises the central question in trials of professional misconduct of the medical profession: What should be the standard of proof?

The most probable solution is to look at statutes for any provisions spelling out the standard of proof required. The job of judges and members of tribunals (in this case the Hong Kong Medical Council) is to interpret statutes and to rule accordingly. There is no room for the making of laws no matter what believes they are holding.
However, as in the case of the Medical Registration Ordinance, Cap.161, this is not spelt out.

The next step would be to look for precedents. The question of standard of proof had been extensively analysed in Dr. Wu Hin Ting, Peter Brendan v. The Medical Council Of Hong Kong - [2003] HKCA 331; CACV000036/2003, 20 November 2003

“In the absence of any guidance provided by the relevant statute, the position can briefly be stated as follows:-

(1) The appropriate standard of proof in disciplinary proceedings depends on the charges faced by the person who is the subject of the inquiry. As Litton VP said in Tse Lo Hong v AG [1995] 3 HKC 428, at 440D-E, "The standard of proof must be commensurate with the gravity of the charge".

(2) The fact that the person charged faces serious consequences (whether a fine, suspension or some other form of punishment) is not by itself a factor which determines the standard of proof. All cases before the court are important or have important consequences for the parties before it. The standard of proof does not so much depend on the seriousness of the case or the consequences as on the seriousness of the charge. That said, it is nevertheless often the case that the more serious the charge, the more serious will be the consequences (although this is not invariably so). Accordingly, in disciplinary proceedings where suspension or being struck off are realistic penalties that can be imposed, a tribunal would not be in error in applying a stricter standard of proof than merely a balance of probabilities since the charges faced are likely to be of a more serious nature. As Culliton CJS said in Re Shumiatcher v Law Society of Saskatchewan (1966) 60 DLR (2d)318, at 328,

"When a complaint is made against a solicitor which may result in his suspension or disbarment, effect should not be given thereto unless the grounds of the complaint are established by convincing evidence, and when the complaint involves a criminal act, by evidence establishing the grounds beyond a reasonable doubt. In the assessment of the evidence, the solicitor's explanation should be accepted if there is a reasonable probability of it being true".

(3) The words "stricter standard of proof" involve a flexible concept. The only rule must be, as Litton VP said in the passage quoted above, the appropriate standard of proof should be commensurate with the gravity of the charge. This is not new law. The more serious the charge, the more cogent the evidence must be to prove it. The logic here is that the more serious the allegation, the less likely it is that the event occurred:- see Re H (Minors) [1996] AC 563, at 586E.

(4) Thus, where in disciplinary proceedings, the charges amount to serious charges of a criminal nature, the requisite standard of proof will be the criminal standard of proof:- see Tse Lo Hong at 442E (per Bokhary JA) and 444B (per Godfrey JA). The word "serious" is an interesting qualification and I leave open for a future case the consideration of disciplinary charges which coincide with crimes but which are on the lower end of the spectrum regarding seriousness. In Tse Lo Hong, of course, involving a charge of indecent assault, the criminal standard of proof had to be applied.

(5) In the case of the present inquiry, the Medical Council applied in relation to the charges the same standard that was applied by the Medical Council in Hui Yat Ming v. Medical Council of Hong Kong [2002] 1 HKC 218 (a case involving the negligent prescription of a steroid). The standard of proof was stated in these terms at 226H-I,

"It is higher than the civil standard of balance of probability but it may not be as high as the criminal standard of beyond reasonable doubt."


Notwithstanding the word "may", what was meant is that the standard of proof was higher than a balance of probabilities but not as high as the criminal standard. I do not quarrel with that formulation. The charge was a serious one (and this was the view taken by the Medical Council: see paragraph 24 above) and the consequences for the Appellant if he was found guilty, were also of course serious.”

In short, the characteristic of the standard of proof in trial of professional misconduct is that: "It is higher than the civil standard of balance of probability but it may not be as high as the criminal standard of beyond reasonable doubt."
This test is far from satisfactory. It fails both in terms of clarity and certainty. At first glance, we might be glad that we are better off when faced with a charge of professional misconduct. But a second thought would disclose the fact that the test applied is a mere empty promise. How high should the standard be set above the civil standard? In theory, the defendant can be convicted if the judge, on a balance of probability, finds that he is 51% sure that the defendant is guilty in civil trials. So in our case, how is the standard determined in different cases? Should it be 52% sure or 99% sure? Of course one would argue that every case is different and would turn on its own test. But how and by whom should this be decided? How can the same standard be applied among the Council Members?

Facing the serious charge of professional misconduct, are we privileged or prejudised upon?