PATIENTS of Dr Patrick Shiu Kin-ying will today launch legal action to prevent the Inland Revenue Department from opening their medical records to see whether the doctor owes any tax. A number of patients had decided to band together in an application for a judicial review of the department's seizure of their files from Dr Shiu's office, revealed exclusively by the South China Morning Post yesterday. Investigators last Wednesday had sealed and removed the files of all 9,000 patients under Dr Shiu's care and would have opened and started photocopying them yesterday but for the Post's article. The Commissioner of Taxation, Anthony Au Yeung Fu, moved to defend the department's right to take whatever action it saw fit to recover taxation, but postponed the examination of the contents of the files until tomorrow. The patients' lawyer had notified the department about their plan to challenge the seizure of their records, which they said was a gross violation of their privacy and civil rights. They were also worried that their treatment could be jeopardised if the records were not available to their doctor. The department had informed Dr Shiu that it would provide photocopies of any files he needed for the care of patients. Dr Shiu, also the chairman of the Hong Kong Democratic Foundation, said the feelings among his patients ranged between fear and anger. 'Some, especially the elderly, feel afraid they will not be able to get medication without their cards,' he said. 'The younger patients are complaining of injustice and concern about their rights to preserve their privacy.' Mr Au Yeung said the seizure was lawful and did not contravene the Bill of Rights. 'We recognise it is a serious matter to launch such a search, as we have to first get the warrant granted from the court magistrate,' he said. 'And the magistrate will not give it to us until he is convinced that there is reasonable ground for suspicion in the case.' Mr Au Yeung said officers consulted the Legal Department on whether the move was in breach of the Bill of Rights that prohibited the 'arbitrary' or 'unlawful' interference with privacy. 'Our legal advisers have confirmed that seizures carried out under a search warrant are neither arbitrary nor unlawful,' Mr Au Yeung said. 'There is nothing arbitrary as it was done with the consent from the court and based on the satisfactory rationale to chase back the lost tax returns.' He revealed the department had conducted searches related to doctors' income on one or two cases in the past. 'Experience has shown us that many Hong Kong doctors do not issue receipts but record details of charges on individual patient cards. 'Consequently, attendance records may not provide sufficient information to establish accurately the amount of income earned by a doctor. Often, individual patient cards are the only reliable source of information about income earned,' he said. While accepting that the relationship between a doctor and patient was confidential, Mr Au Yeung said this did not mean that a doctor could prevent the department from obtaining details of his income simply because the information was recorded on patient records. 'From the legal point of view, it is not right to say so and it is unfair to the taxpayers and the public,' he said. Mr Au Yeung said they had also considered that inconvenience might be caused to the patients. 'We are ready to give back to Dr Shiu any records when needed by photocopying or faxing them.' Mr Au Yeung said the cost of tax evasion suspected to be committed in the 1994-95 financial year had already amounted to about $1.1 billion. On how to strike the balance between the patients' rights and the public rights, he said: 'We are based on the principle that our investigation only concentrates on tax issues, and the patients privacy will not be infringed. 'And our staff will also oblige strictly the rule of secrecy during the investigation.' Mr Au Yeung also ruled out the need to have a review of the Inland Revenue Ordinance to see whether it conflicts with the Bill of Rights provision. 'When the Bill of Rights was drafted, we had already considered whether there was a need to review the existing ordinance, but we did not find the law infringed any of the bill.' Legal experts, however, claimed there was a good chance the seizure would be successfully challenged under the Bill of Rights. Professor Raymond Wacks from the Hong Kong University said Article 14 of the Bill of Rights prohibits the arbitrary interference with 'privacy' and the taxman's seizure could be seen as a violation of the patients' privacy. He said that section 51B (i) of the Inland Revenue Ordinance granted the department very broad powers. 'It is of course up to the court to decide whether the power should be limited,' he said, 'but I think there's a good chance for a successful challenge.' Dr Leong Che-hung, Legislative Council representative of the medical profession, said he would submit an urgent question next week to ask the Government to clarify the policy. He said the seizure of a doctor's medical records did raise concerns about patients privacy and their well-being. Liberal Party legislator Dr Lam Kui-chun said the Medical Council had written to the Government last week demanding an explanation on the case.
