The court determined an appeal against the MMC's decision cannot succeed without significant procedural error affecting the outcome; the appellant was unqualified for registration.

Introduction

[1] This is an appeal by the appellant pursuant to s 31 of the Medical Act 1971 against the decision of the Malaysian Medical Council which struck off the apellant from its register. The MMC decided the appellant did not possess an approved qualification under Schedule 2 of the Medical Act. Aside from the ground of not having a registrable qualification, the appellant alleges the MMC also held that she was guilty of fraud, misrepresentation and dishonesty.

[2] The facts are peculiar because the appellant was in fact registered by the MMC earlier. The appellant is a graduate of the Medical Faculty of Universitas Andalas, Padang, in Indonesia. She holds a Sarjana Kedoktoran (S.Ked), which she obtained after undergoing a medical course for five years in the said University. She was in fact on a Government Scholarship as a student in Universitas Andalas. When she was about 25 years old and had completed her degree of Sarjana Kedoktoran, she responded to a letter written on behalf of "Ketua Pengarah Perkhidmatan Awam" which apparently requested Malaysian medical students overseas to return to Malaysia to do their housemanship. She did just that. She returned to Malaysia and applied for provisional registration from the MMC, which he obtained. According to her, she returned to Malaysia for this purpose because of considerations of "Bangsa Dan Negara".

[3] She applied for provisional registration by filling in the required form (Borang 4). She wrote "MD" in the form instead of Sarjana Kedoktoran. Her actual degree was however appended to Borang 4. Apparently she thought the degree of "S.Ked" was the equivalent of "MD".

[4] Upon a full consideration of the facts of this appeal, and the several issues raised by the appellant, the fact still remains that this appeal concerns an issue of entitlement for registration as a Medical Practitioner in Malaysia under the Medical Act and the Malaysian Medical Council's jurisdiction to exercise disciplinary jurisdiction over the person who "was not at the time of its registration entitled to be registered". The relevant section here is s 29(2)(d) of the Medical Act. The MMC exercised this jurisdiction to strike off the appellant's name from the register under s 30(i) of the Medical Act after having conducted an enquiry under reg 31 of the Medical Regulations 1974. This was the legal foundation for the disciplinary decision, not s 29 (b) or (c), with its reference to "infamous conduct in a professional respect" or "obtaining registration by fraud or misrepresentation". On this basis that has been no finding of fraud or fraudulent misrepresentation in the appellant's procuring of the registration as a Medical Practitioner on the strength of the degree of Sarjana Kedoktoran, which is not the registered MD Degree (Ijazah Kedoktoran) as listed in the second schedule to the Medical Act. Whatever shortcomings there might be in the conduct of the disciplinary proceedings, this fact remains unaltered; she is not a qualified person by statue and therefore cannot be regarded as a person entitled to be registered.

[5] Although the Preliminary Investigation Committee under the Rules ("PIC") conducted its preliminary investigation on the basis of her non-entitlement to registration for which the PIC had no jurisdiction, this error does not infect the validity of the action taken by the Council, which made it clear to the appellant that it was not proceeding on the basis of the PIC enquiry but was undertaking its own enquiry.

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