General Medical Council v Jonathan Edward Gar-Wai Mok
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 29 June 2022 |
| Neutral Citation | [2022] EWHC 1651 (Admin) |
| Docket Number | Case No: CO/275/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1651 (Admin)
Mrs Justice Lang DBE
Case No: CO/275/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ivan Hare QC (instructed by GMC Legal) for the Appellant
Simon Cridland (instructed by Gordons Partnership Solicitors) for the Respondent
Hearing date: 14 June 2022
Approved Judgment
The Appellant (“the GMC”) appeals under section 40A of the Medical Act 1983 (“MA 1983”) against the determination of the Medical Practitioners Tribunal (“the MPT”) on 23 December 2021 to suspend the Respondent (“Dr Mok”) from the Register for 12 months, following a determination that his fitness to practise was impaired by reason of misconduct, namely, sex without consent with his male partner. The GMC appeals on the ground that this sanction is not sufficient to protect the public.
Facts
Dr Mok is aged 28 (date of birth 10 October 1993). He qualified as a doctor in 2018. In August 2019, when the misconduct occurred, he was completing his Foundation Year 1 at the Gloucestershire Royal Hospital and the Bristol Royal Infirmary. He subsequently completed his Foundation Year 2 training at the Bristol Royal Infirmary between August 2020 and August 2021 before commencing GP training. At the time of the MPT's determination he was undertaking his Speciality Year 1 Training as a specialist registrar on the Northwick Park GP Vocational Training Scheme.
The allegation against Dr Mok was as follows:
“1. On or around 26 August 2019, you penetrated the anus of Person A with your penis, and:
a. Person A did not consent to the penetration;
b. you did not reasonably believe that Person A consented to the penetration.
2. Your actions at paragraph 1 were sexually motivated.
And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.”
The facts were in dispute before the MPT. The MPT heard live evidence from Person A and from Dr Mok himself, his mother, father and aunt. The MPT also had regard to covert recordings of conversations between Dr Mok and Person A on 13 October 2019 and 18 November 2019.
The facts as found by the MPT were that Dr Mok and Person A met in around July 2018, and had begun a sexual relationship by October 2018.
Dr Mok and Person A went on holiday together to France in August 2019. On the evening of 26 August 2019, they had been drinking alcohol ( 4 or 5 glasses of wine each at a wine tasting, followed by a shared bottle of wine with dinner). Soon after they returned to their holiday apartment, Person A fell asleep. Dr Mok was still awake and was playing on his mobile phone. Person A woke up later that night, between 10.00 pm and 12 midnight. He found himself on his stomach with Dr Mok having initiating sexual intercourse with him whilst he was asleep, and penetrated him. In the MPT proceedings, Dr Mok denied that any sexual intercourse had taken place with Person A that evening.
The MPT had particular regard to the video recording made covertly by Person A on 13 October 2019 where he confronted Dr Mok regarding what had happened in Bordeaux. The MPT quoted the following passages from it in its determination on the facts:
“PA I remember passing out and falling asleep and then I remember waking up, turned on my front, you inside of me fucking me, and when I felt down you'd lubed me up. (Pause) I thought, did I remember things differently or is that how —-
JM No.
PA — things happened? So what was going through your mind when I fell asleep that you decided to just fuck me?
JM (Pause) I thought it would have been hot and that you'd have found it quite hot.
…..
JM Well, we'd done stuff in bed before so you had always —-
PA We had done stuff in bed, we've had sex when we're half asleep or whatever, but, John, I was asleep, passed out drunk…'
PA Because if we're being honest about everything, what's that?
JM I thought you would have found it a bit hot.
PA You don't think it's important that, you know, someone's sober, someone's awake, whatever, when you're having sex with them?
JM (Pause) I'm sorry.
PA Sorry for what John? What did you do – because tell me, I want to hear it, what did you do?
PA Touched you inappropriately and was inside of you when I shouldn't have been.”
The MPT evaluated the evidence, and reached the following conclusions:
“26. The Tribunal considered the context and circumstances of the video in which the video was recorded. The Tribunal noted that the recording was made the morning after Person A and Dr Mok had been arguing about their relationship. Person A's evidence was that he had previously raised the incident in conversation with Dr Mok on the day after its occurrence. However, Dr Mok's evidence was that this recorded conversation on 13 October 2019, was the first time that Person A had made the allegation to him. The Tribunal noted that Dr Mok did not express any surprise or shock when the serious allegation was put to him by Person A. It was also noted that Dr Mok did not question the accusation further, ask for further information about it or display any confusion about the topic as one would expect if hearing it for the first time, as stated by Dr Mok. In addition, the Tribunal were of the view that Dr Mok went further than simply agreeing with Person A, as he attempted to justify the act that had occurred by saying, ‘I thought you would have found it a bit hot’ and said ‘no’ when Person A asked if he had recalled the incident incorrectly.
27. The Tribunal took into account Dr Mok's evidence that he simply had accepted everything Person A had challenged him about to placate him out of fear for his safety at the time. Dr Mok suggested that he felt under threat of violence at the time from Person A. The Tribunal noted that there was evidence of Person A having anger issues, as noted in his medical records, and had accepted himself breaking things and swearing at Dr Mok's parents in a telephone call regarding Dr Mok's birthday party. However, even so, the Tribunal considered that Dr Mok could have responded in a variety of ways, rather than admitting the very serious accusation being raised by Person A. The lack of questioning or denial in Dr Mok's response did not indicate that no sexual activity occurred that evening in Bordeaux nor that this issue was only being discussed between the two for the first time.
28. The Tribunal had regard to Mr Cridland's submissions that there had been discrepancies between the two accounts given to the GMC and to the French police. It was highlighted that the description given in the email to the GMC of how Person A woke up turned onto his stomach was starkly different to the account in the French police report where he stated ‘I was facing up and Jonathan flipped me over. I was then laying facing down’. The Tribunal carefully considered the various accounts given by Person A and did take the view that in the GMC complaint email dated 2 December 2019, the complaint by Person A was embellished, as the Tribunal did not accept that the reasons given in that email for making the complaint at that time were genuinely held, namely the concerns for those under his care and supervision. Had such concerns been genuinely held, it would have expected the complaint to have been made much earlier, rather than on the day the relationship ended. The Tribunal however took the view that although Person A may have embellished his complaint in some aspects to the GMC, it was mindful that credibility is divisible and that it does not necessarily follow that his evidence ought to be rejected in relation to the facts of the Allegation, which are corroborated by the admissions made by Dr Mok in the video recording.
29. The Tribunal bore in mind Person A's evidence that there were some slight differences in the French notes due to issues of translation and interpretation. The Tribunal agreed that there were discrepancies in some of the statements made by Person A however, the essential element of the allegation, namely that Dr Mok penetrated the anus of Person A with his penis without his consent, has been consistent throughout the events. In addition, in the covertly recorded conversation of 13 October 2019, which is the first recorded account of the incident by Person A, the description that Person A puts to Dr Mok is consistent with his GMC complaint.
30. The Tribunal reasoned that, on the balance of probabilities, such an incident was more likely than not to have occurred, as Dr Mok stated in the video recording, ‘I thought you would have found it a bit hot’ and apologised at the end, explaining what he was apologising for. The Tribunal was of the view that if nothing unusual had occurred during their holiday, there would be no reason for Person A to believe that he needed to confront Dr Mok about it and record it.
31. The Tribunal determined that none of the accounts given by Person A included his consent nor does it indicate that Dr Mok reasonably believed that person A consented to the penetration. It therefore found paragraph 1(a) and (b) proved.”
In the light of its findings, as set out above, the MPT concluded that Dr Mok's actions were sexually motivated. Therefore both paragraphs 1 and 2 of the allegation were proved.
Soon after their return from France, in early September 2019, Dr Mok and Person A moved into a flat together. Their relationship was troubled and, on 2 December 2019, Dr Mok ended it, and moved out of their shared flat. On the same day — 2 December 2019 — Person A sent an email to the GMC and Dr Mok's employer, making the allegation of rape which became the subject of these disciplinary proceedings.
Person A also made complaints to the British and the French police after Dr Mok left him. Neither police force...
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