Dix v Lin

[2007] NSWSC 846

CITATION:	Dix v Lin [2007] NSWSC 846
HEARING DATE(S):	31/07/07, 01/08/07, 03/08/07
JUDGMENT DATE :	3 August 2007
JUDGMENT OF:	Mathews AJ
DECISION:	1.In relation to charges (a) and (b) in the amended summons I sentence the defendant to imprisonment for six months, to date from 3 August 2007 and to expire on 2 February 2008. 2.In relation to charges (c) to (g) in the amended summons I sentence the defendant to imprisonment for three months, to date from 3 February 2008 and to expire on 2 May 2008. 3. In relation to charges (h) to (ee) in the amended summons I sentence the defendant to imprisonment for four months to date from 3 May 2008 to expire on 2 September 2008. 4.I order that the combined sentences, of one year and one month, be suspended for the whole of that period and that the defendant be released from custody upon his entering into a bond to be of good behaviour for a period of one year and one month. 5.I specify a non-parole period of four months. 6. I dismiss summonses 14596 of 2006 and 13052 of 2007.
CATCHWORDS:	S 105 Medical Practice Act — 31 charges for breach of section — plea of guilty — defendant a Chinese herbalist not a registered medical practitioner — had passed himself of as “doctor” on numerous occasions — handed out abortion drug RU486 — general deterrence a significant factor — suspended sentence imposed
LEGISLATION CITED:	Medical Practice Act 1992 s 105
PARTIES:	Andrew Edward Dix - Registrar of the New South Wales Medical Board v Yao Guo Lin (aka David Lin)
FILE NUMBER(S):	SC 14596/06; 12885/06; 13052/07
COUNSEL:	G Craddock - Plaintiff In person - Defendant
SOLICITORS:	I V Knight (Crown Solicitor) - Plaintiff In person - Defendant

IN THE SUPREME COURT

OF NEW SOUTH WALES
COMMON LAW DIVISION

MATHEWS AJ

FRIDAY 3 AUGUST 2007

14596/06 ANDREW EDWARD DIX – REGISTRAR OF THE NEW SOUTH WALES MEDICAL BOARD v YAO GUO LIN (AKA DAVID LIN)
12885/06 ANDREW EDWARD DIX – REGISTRAR OF THE NEW SOUTH WALES MEDICAL BOARD v YAO GUO LIN (AKA DAVID LIN)
13052/07 ANDREW EDWARD DIX – REGISTRAR OF THE NEW SOUTH WALES MEDICAL BOARD v YAO GUO LIN (AKA DAVID LIN)

JUDGMENT

1 HER HONOUR: Three separate summonses have been taken out by the prosecutor, the Registrar of the New South Wales Medical Board, against the defendant Yao Guo Lin. Each of them alleges breaches of s 105 of the Medical Practice Act 1992. In all, 31 charges have been laid against the defendant for offences said to have occurred between June 2004 and November 2006. The hearing of all three summonses was set down before me on Tuesday 31 July 2007.

2 At the outset of those proceedings Mr Craddock, who appeared for the prosecutor, sought to amend the first summons, number 12885/06, so as to incorporate all charges previously brought under all three summonses. This was done primarily for purposes of clarity. Mr Lin, who was unrepresented in these proceedings, said that he had no objection to this course, and leave was duly given to amend that summons. It now contains all 31 charges laid against the defendant. The remaining two summonses are therefore redundant and will be dismissed.

3 All 31 charges relate to offences under s 105(1), (2) or (3) of the Medical Practice Act. As relevant to this case, sub-section (1) makes it an offence for a person who is not registered as a medical practitioner in New South Wales to use any initials, words, titles, descriptions or symbols which might lead members of the public to infer that the person is a registered practitioner or is qualified to be one. Under sub-section (2) such a person is not to advertise himself or hold himself out to be a doctor of medicine or a medical practitioner. Nor, under sub-section (3), should such a person advertise or hold himself out to be qualified or able to practise medicine or to give medical advice or perform a medical service.

4 The offences committed by the defendant essentially fall into two categories. The first relates to events which took place between 16 and 20 September 2005. The second category relates to numerous occasions upon which the defendant at least implicitly held himself out to be a doctor, in addition to giving medical certificates on which he signed his name after the letters Dr.

5 The events of 16 to 20 September 2005, which are represented in the first two charges, were described in considerable detail during the hearing. The account I am about to give is in much more abbreviated form. On the morning of 16 September two private enquiry agents, Lisa Goodhand and Vladimir Krouglov, went to premises where the defendant was then working at 460 Pitt Street, Haymarket. Mr Krouglov was carrying a concealed video camera. Outside the door of the defendant’s premises was a sign saying “Chinese Medicine”. Introducing themselves as Boris and Carla, the two agents told the defendant that Ms Goodhand was pregnant and needed an abortion. The defendant was asked if he could “do the operation to get rid of the baby” to which he answered “Yes”. The defendant asked how long Ms Goodhand had been pregnant, and she said about seven weeks. He took her pulse and her blood pressure and sought to examine her to ascertain the length of the pregnancy. He also asked for a urine sample. Ms Goodhand said that she was unable to give one at that time. The defendant said that he would give Ms Goodhand tablets to take, and after three days “the baby will come out”. Ms Goodhand said she would be unable to take the tablets as she was constantly vomiting. The defendant said that he would give her tablets to prevent the vomiting which she should take before the other tablets. The defendant was asked how much the abortion medicine would cost. He initially said he would have to check how big the baby was before quoting a price. Later he said that it would cost $250. The agents told him at that point that they had to leave, but that they would return later that day. They then left. Later that afternoon they returned to the defendant’s premises. In the meantime, Ms Goodhand had obtained a urine sample from a pregnant woman. She gave it to the defendant saying it was her own. He conducted a stick test on the sample and then commented that Ms Goodhand was more than seven weeks pregnant. He gave her a number of tablets and directed her to take two of them twice daily for three days. He told her to return on the third day so that they could observe her “and make sure the baby comes out”. He also suggested that she return the following day. She was given other tablets to prevent her from vomiting. The defendant also gave her his mobile phone number and told her to ring him if she had any problems.

6 On 19 September 2005 the two agents returned to the defendant’s premises, still with the concealed camera. They told him that Ms Goodhand had taken only four of the tablets because they had made her sick. The defendant directed her to take several pills over the next 24 hours. Mr Krouglov asked what would happen if she was unable to take the pills. He asked if the defendant could operate on her. The defendant replied “No you have to go to the hospital. I can only give you back some of the money”. They left shortly afterwards.

7 The next day, 20 September, Ms Goodhand and Mr Krouglov returned to the defendant’s premises. Ms Goodhand told him that she had taken all the tablets. The defendant gave her three more tablets to take immediately, and asked her to wait until the baby came out. She said that she would rather rest at home. The two of them then left.

8 The tablets which were initially given to Ms Goodhand was in a box labelled “Misepristone”. Dr Robert Lyneham, an expert in reproductive endocrinology and infertility, described this as an oral abortifacient known internationally as RU486. This has been approved for use in many countries in the world. In Australia it is currently being evaluated by the Therapeutic Goods Administration. Dr Lyneham said that the provision of RU486 is a medical service which should only be accessed “under the supervision and advice of a doctor who would be responsible for managing the entire termination process”. A statement issued by the Royal Australian and New Zealand College of Obstetrician and Gynaecologists said that for at least 95 per cent of women up to nine weeks gestation, medical abortions using RU486 will be effective and uncomplicated. But in 5 per cent of cases women will need surgery to complete the abortion process. The statement specifies that the drug must be used under medical supervision. It indicates that several visits are usually required.

9 It is clear therefore that the provision of RU486 on demand, without appropriate medical assessment or supervision, is a very serious matter carrying significant potential hazards. I shall be returning to discuss this aspect of the matter very shortly. In the meantime I turn to the other category of charges laid against the defendant.

10 The first offence in terms of time was committed on 17 June 2004. On that date two officers from the South-eastern Sydney Public Health Unit attended the defendant’s then premises at 422 Pitt, Sydney. During a conversation with them the defendant handed them his business card which contained the following words “Dr Yao Guo Lin, Director of Chinese Medical Centre, Specialist in Orthopaedic Surgery, Prof. of Fujian Chinese Medical Uni, Vice President of ASA.” In using the letters “Dr” meaning doctor, and in describing himself as a specialist in orthopaedic surgery the defendant was in breach of s 105(1) of the Act.

11 The remaining 28 charges relate to occasions when members of the public came to the defendant’s premises complaining of various physical ailments. In all there were 20 visits to the defendant’s premises made by six different people. Most if not all of them were overseas students. Generally their complaints related to colds, flu, headaches and bad backs. Two of them went on one occasion only. Two others returned a second or a third time. One of them had six visits to the defendant’s premises and another, seven. On every occasion the defendant held himself out, explicitly or implicitly, to be a medical doctor. On all but one occasion the defendant provided the individual with a medical certificate on a standard printed form. The precise wording of the form changed during the period covered by the charges. However in all cases the form purported to be a certificate of incapacity for work or study with space for the diagnosis to be inserted. At the bottom of every form were the letters “Dr” followed by space for a signature. The defendant signed all these certificates. The provision of these certificates was a clear breach of s 105 of the Act.

12 On each of the 19 occasions that the defendant provided individuals with a medical certificate he sought and received payment in cash. The charges tended to vary according to the number of days for which exemption was sought. In the great majority of cases the defendant made no attempt to examine the person, to investigate the cause of the ailment or to provide treatment for it. It seems to have been assumed that the primary purpose of the visit was to obtain the certificate. On one occasion he provided a certificate for someone who said he had had a cold two months earlier and needed a certificate to explain his absence from work at that time.

13 I turn now to say something about the defendant himself. He is a native of Fujian province in China. In 1966 he graduated from Fujian University of Traditional Chinese Medicine. Thereafter he practised medicine until he came to Australia in 1988. He has undertaken no further course of study in this country. However he has obtained registration in Victoria to practise traditional Chinese medicine. Victoria is the only State which provides a registration procedure for practitioners of Chinese medicine. No comparable system exists in New South Wales. It is difficult to understand what benefit the defendant sought to derive from this registration as he has never lived or practised in Victoria.

14 The defendant describes himself as having practised medicine all his life. His practice, as I understand it, is – or should be – restricted to providing traditional non-medical Chinese remedies. However it is clear that he has ventured well beyond this. One of my real concerns is whether he understands even now where the boundary lies between providing traditional Chinese remedies on the one hand, and adopting the mantle of a medical practitioner on the other. Even during the hearing before me, he described himself more than once as a doctor. On another occasion he railed at the fact that although he “cured people’s diseases” he was unable to call himself a doctor.

15 At this point it is appropriate to mention a few aspects of the history of these proceedings.

16 The first summons against the defendant was taken out on 15 June 2006, and presumably served not long afterwards. It contained four charges. Two of them related to the various visits of Ms Goodhand and Mr Krouglov in September 2005. One of them related to the defendant handing out a business card describing himself as a doctor; and the last related to an occasion in February 2005 when a patient came seeking treatment for back pain and the defendant described himself as “the doctor.”

17 The second summons was taken out on 18 September 2006. It contained three charges relating to two occasions in May and June 2006 when the same person went to the defendant’s premises and obtained medical certificates from him.

18 Finally, the third summons contained charges relating to 16 occasions when four separate people went to the defendant’s premises, all of them more than once, and obtained medical certificates from him. These all took place between August and November 2006. In other words, all of these offences were committed after the defendant had been served with the first summons, and some of them after he had received the second summons. Perhaps more significantly, there were 10 charges relating to 5 visits which took place after 4 October 2006. On that day a preliminary hearing took place before Justice Barr in relation to the two summonses which at that stage had been taken out. The defendant told his Honour that he understood the nature of the charges against him, having asked a friend who was a Chinese interpreter to explain them to him. However he went on to describe himself as having practised medicine for 40 years; which would appear to indicate a fundamental lack of understanding of what these charges are all about. The fact that, within four weeks after that date, he committed 10 further offences on 5 different occasions, would tend to lead to the same conclusion.

19 The defendant displayed a similar lack of consistency in the hearing before me. It had been urged upon him by Barr J that he should obtain the services of a lawyer in these proceedings. However he declined to do so, citing financial reasons, notwithstanding that he had been told of a number of agencies which provide pro bono legal services. The combination of the defendant’s language difficulties and his somewhat volatile nature make it very difficult to discern whether these inconsistencies are the result of deliberate dissembling on his part, or a genuine inability to understand what is at the heart of these proceedings. By way of illustration, on the first day of the hearing before me, the defendant said that it was only that day that he had finally become aware of the terms of s 105. Until then he did not realise that he was not entitled to call himself a doctor. In response, Mr Craddock tendered an exchange of correspondence between Ms Anne Harvey, a legal officer with the NSW Medical Board, and the defendant, which pre-dated these proceedings. On 20 May 2003 Ms Harvey wrote to the defendant expressing concern that he might have been in breach of s 105. The letter quoted the terms of s 105, and attached a Mandarin translation of that section. It went on to inform the defendant that he was prohibited from using the title “Doctor” or the abbreviation “Dr” as he was not a registered medical practitioner in NSW. He was thus clearly told of this fact well before the commission of any of the offences currently before the Court. Somewhat ironically, however, and by way of aside, the very letter which informed the defendant of this fact was addressed to “Dr Yao Guo Lin”, and commenced with the words “Dear Dr Lin”.

20 The defendant replied to this letter on 1 June 2003. In it he railed against what he described as the “discrimination” in Australia against doctors from other countries, particularly those practising traditional Chinese medicine. He went on to say: “If the traditional Chinese doctor cannot use the word medical and cannot perform medical services or even use the title of “Doctor”, they will be driven to the wall.” In other words, at one level, he still appeared to be refusing to accept that the situation was as Ms Harvey had described it.

21 Were it not for the defendant’s obvious language difficulties, I would have had little difficulty in finding that he knew very well when he committed the current offences that he was not entitled to hold himself out as a doctor. But it is difficult to put to one side the fact that, even in the hearing before me, he referred to himself as a doctor, in apparent ignorance of the fact that he was not entitled to do so. He is clearly not a stupid man: quite the contrary. So I can only assume that there is a strong element of wilful blindness in his failure — or, perhaps, his refusal — to accept or understand the nature of the limitations imposed upon him as a non-registered medical practitioner.

22 My difficult task is to translate all this into an appropriate penalty. The maximum penalty for offences under s 105 is imprisonment for 12 months and/or a fine of $5,500. There being 31 offences, the potential penalty is very high indeed, although it would clearly be inappropriate to accumulate the penalties in relation to all charges.

23 Mr Craddock has referred to two principal aggravating factors: first, that the offences were committed without regard for public safety; secondly, that the defendant was in a position of trust or authority in relation to the victims. Both are clearly applicable here. There is no evidence of any actual harm suffered by any member of the public as a result of the defendant’s ministrations. But the potential for harm was certainly there, particularly in relation to the handing out of the abortion drug RU486. I should say at this point that I do not believe that the defendant was conducting an experiment when he handed Ms Goodhand this drug, notwithstanding that the word “experiment” was used in the “defence” that was filed in these proceedings.

24 There are also a number of mitigating factors in this case. The defendant’s prior good record is the most obvious one. He has shown his contrition by pleading guilty to all charges. As he himself said, he has never held himself out to be a registered medical practitioner. His problem is that he has not understood or accepted the limitations that this places upon him.

25 General deterrence is a major consideration in this case. The public is exposed to enormous risks if unqualified persons assume the role of medical experts, whether for gain or not. As for individual deterrence, the defendant, who is aged 65, says that he wants to retire. Indeed, on the second day of the hearing he dramatically declared his intention to close his clinic that very day. Whether he has in fact done so, or will do so in the near future, I am not in a position to know. However after a lifetime of dispensing his own brand of medicine I am not at all confident that he will be able to stop completely. There must therefore, in my view, be a strong element of individual deterrence in the penalties to be imposed for these offences.

26 The offender presents as a man of little means and low income. He lives alone in a mortgaged home at Flemington. In these circumstances, the imposition of a substantial fine might well be counter-productive, for it could lead to his going back to providing medically based services in order to obtain the necessary finances.

27 In the absence of this option, I think I have no alternative but to impose a sentence of imprisonment which will be suspended in its entirety. This will meet the needs of both general and individual deterrence. The defendant will be in no doubt whatsoever as to the consequences to him if he should offend in a similar way again.

28 I think it appropriate to accumulate the sentence in relation to three series of offences: first, the RU486 offences (if I can call them that); secondly, the other offences committed before the issue of the first summons against the defendant; and thirdly, the offences committed after that date.

29 The prosecutor has sought an order that the defendant pay its costs of these proceedings. Were the defendant a person of means I almost certainly would have acceded to this request. However for the same reason that I consider a fine would be inappropriate I propose not to make this order.

30 The orders I make are as follows:

1. In relation to charges (a) and (b) in the amended summons I sentence the defendant to imprisonment for six months, to date from 3 August 2007 and to expire on 2 February 2008.

2. In relation to charges (c) to (g) in the amended summons I sentence the defendant to imprisonment for three months, to date from 3 February 2008 and to expire on 2 May 2008.

3. In relation to charges (h) to (ee) in the amended summons I sentence the defendant to imprisonment for four months to date from 3 May 2008 to expire on 2 September 2008.

4. I order that the combined sentences, of one year and one month, be suspended for the whole of that period and that the defendant be released from custody upon his entering into a bond to be of good behaviour for a period of one year and one month.

5. I specify a non-parole period of four months.

6. I dismiss summonses 14596 of 2006 and 13052 of 2007.

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