1. We find that Dr Hoong Pan Sze-Tho engaged in professional misconduct under the Health Practitioner Regulation National law (Victoria) Act 2009, ("The National Law")

1. We find that Dr Hoong Pan Sze-Tho engaged in professional misconduct under the National Law.

1. Dr Hoong Pan Sze-Tho is reprimanded under section 196(2)(a) of the National Law
2. Dr Hoong Pan Sze-Tho's registration is cancelled under section 196(2)(e) of the National Law.
3. Dr Hoong Pan Sze-Tho is disqualified from applying for registration as a medical practitioner for a period of five years from the date of these orders pursuant section 196(4)(a) of the National Law.

1. Dr Hoong Pan Sze-Tho is reprimanded under section 196(2)(a) of the National Law
2. Dr Hoong Pan Sze-Tho's registration is cancelled under section 196(2)(e) of the National Law.
3. Dr Hoong Pan Sze-Tho is disqualified from applying for registration as a medical practitioner for a period of ten years from the date of these orders pursuant section 196(4)(a) of the National Law.
4. The above cancellations are cumulative such that the total period in which Dr Hoong Pan Sze-Tho is disqualified from making application to apply for registration as a medical practitioner is 15 years.

1. On 27 September 2018 the Medical Board of Australia, ("the Board"), referred matters relating to Dr Hoong Pan Sze-Tho's conduct to this Tribunal. It did so as required under s193(1)(a)(i) of the Health Practitioner Regulation National Law (Victoria ) Act 2009 (Vic), ("the National Law") once it reasonably believed that he had engaged in conduct that constituted professional misconduct.
2. Dr Sze-Tho subsequently advised both the Tribunal and the Medical Board of Australia that he did not intend to participate in these proceedings[1]. In those circumstances we proceeded to hear the matter in his absence and will accordingly make our findings as to the facts and the appropriate categorisation of his conduct together with our final determination.
3. The allegations pertaining to Dr Sze-Tho relate to two separate and distinct instances of serious criminal conduct. On 22 November 2018, the Tribunal gave leave to the Board to file an Amended Notice of Allegations reflecting the criminal convictions arising from the conduct.
4. We turn then to examine the factual matrix surrounding the conduct engaged in by Dr Sze-Tho.

Allegation 1 - Offences under the Drugs Poisons and Controlled Substances Act 1981 and the Drugs Poisons and Controlled Substances Regulations 2006

1. In 2017, Dr Sze-Tho was convicted of various offences under the Drugs Poisons and Controlled Substances Act 1981 (Victoria) and the Drugs Poisons and Controlled Substances Regulations 2006 in the County Court of Victoria.
2. On 29 June 2017 Her Honour Judge Campton said in DPP v Sze-Tho [2017] VCC 1105:

[1] Hoongpan Sze-Tho, you have pleaded guilty to 4 charges of prescribing a drug of dependence, contrary to s. 8 (1) of the Drugs, Poisons and Controlled Substances Regulations of 2006 and s. 129(2) of the Drugs, Poisons and Controlled Substances Act 1981. In addition you have pleaded guilty to a charge of prescribing a Schedule 4 poison, contrary to s. 8(2) of the Regulations and s.129(2) of the Act. The maximum penalty for these offences is five years imprisonment, and/or 200 penalty units.

[3] In summary, in January 2013, investigators commenced an investigation into the alleged sale of anabolic steroids, human growth hormones and peptides, by Robin James Taylor, through his business known as Melbourne Sports and Anti-ageing in Mount Alexander Road in Moonee Ponds. This investigation revealed that Robin Taylor, two other people and yourself, were all involved in obtaining the schedule drugs and providing them to numerous customers at the clinic.

[5] Your involvement with the clinic commenced in early 2013, when Robin Taylor approached you and offered you a position. Your job was to see patients who had medical problems and write prescriptions for them. Taylor would pay you $50 for each patient you consulted and you would only have to attend the clinic once a week to discuss the patient with him. He told you that the prescriptions you wrote would be processed by a compound pharmacy in Sydney and would not be billed by Medicare. You signed an employment agreement to this effect on 3 February 2013.

[6] You then commenced to attend the clinic on a weekly basis and you wrote prescriptions out in the names supplied by Taylor, for drugs specified by him. These drugs were predominantly testosterone injections and far exceeded the therapeutic needs of patients requiring hormone replacement therapy.

[7] You also wrote prescriptions for significant amounts of Sustanon 250 and other Schedule 4 poisons that you knew, along with the testosterone injections would be sold to clients of the clinic who were involved in bodybuilding and other physical pursuits.

[8] You wrote 242 prescriptions between 5 March 2013 on 4 October 2013, that had been recovered by investigators. 69 of these were dispensed at pharmacies and the prosecution contends that you are fully aware that Taylor would have these prescriptions dispensed at pharmacies.

[9] Charges 1, 5, 6 and 9 on the indictment, relate to the period from 1 January 2013 to 8 October 2013, when you prescribed drugs of dependence 127 times for a person who was not a patient under your care, without taking reasonable steps to ascertain the identity of the person for whom you were prescribing and without taking all reasonable steps to ensure a therapeutic need.

[10] Charges 2, 3, 4, 7, 8, 10, 11 and 12 on the indictment relate to a period 13 March 2013 to 4 October 2013, when you prescribed a Schedule 4 poison 115 times for people who were not receiving medical treatment under your care and without taking sufficient steps to ensure the person for whom you had prescribed it, demonstrated a therapeutic need.

[11] The business records show that between 25 February 2013 and 21 June 2013, you were paid some $15,504 for consulting clients and you continued in this role until your arrest on 8 October 2013.

[12] You were interviewed by the police on two occasions. Full details of your answers to the questions in the interview are contained in the Crown summary, but in brief, at your second record of interview on 1 April 2014, you admitted that you were aware that some of the drugs you prescribed were abused by bodybuilders.

[13] While you claim that you had been misled by Taylor, you agreed that you had never enquired as to his qualifications to conduct this type of business. You also said that prior to your time at the clinic, you had never written a prescription for people who had not actually been physically examined by you. Also, that you had never written a prescription that was not given to the patient for dispensing at a pharmacy.

1. Dr Sze-Tho was convicted and ordered to serve a Community Corrections Order for a period of 18 months. The order commenced on 29 June 2017 and ended on 28 December 2018. Dr Sze-Tho was required to perform 80 hours of unpaid community work over a period of 18 months. He was further ordered to pay a pecuniary penalty order in the aggregate sum of $15,500.

1. On 21 March 2018, Dr Sze-Tho was convicted of two charges of rape.
2. On 21 March 2018 His Honour Judge Meredith said in DPP v Sze-Tho [2018] VCC:

[1] Hoong Pan Sze-Tho, your matter was listed for trial before me on Monday, 26 February 2018. The trial indictment which you faced alleged five charges of rape and one charge of indecent assault concerning three separate complainants. At the request of your counsel, I stood the matter over until Tuesday, 27 February, by which time a negotiated resolution of your case had taken place.

[2] You pleaded guilty before me to charge one of rape which occurred on 1 October 1974, against the first victim. You also pleaded guilty to charge two of rape, occurring between 9 July 1978 and 8 July 1979, against the second victim. Charge two is a representative count.

[5] At the time you were a general medical practitioner.

[6] Your offending against both the first victim and the second victim occurred at your practice which was located respectively in Sommerset Street and then in Stud Road, Wantirna.

[7] The first victim was 20 years of age and the second victim was 14 years of age at the time of your respective offending.

[8] The first victim had attended your practice and told you that she experienced headaches associated with her period and had concerns regarding her varicose veins. You asked her to get undressed and watched her as she removed her clothing. You directed her to lay naked on the examination table before positioning her so that she was lying on her side with her head facing the wall. She was covered, to some extent, with a sheet or some other form of covering, and this obscured her vision. You were standing next to the examination table on a set of steps.

[9] She asked you what you were doing and tried to raise her head and see what was happening. You responded by holding her head down. It was during this episode that you penetrated her vagina with your penis and ejaculated inside her.

[10] Shortly after these events, the first victim told her husband, reported your conduct in a telephone call to the Medical Board, and had a letter written to that Board outlining her complaint.

[11] She was examined by a district health officer on 11 October 1974. She recounts having her options explained to her including maintaining criminal charges. She was told that this would entail significant embarrassment and difficulty if she had to give evidence. She did not pursue her complaint and the medical board took no further action.

[12] As far as the second victim is concerned, she had been paid to work in the garden of your medical practice in Wantirna South. She was 14 years of age at this time. Whilst working in the garden you approached her, telling her, amongst other things, that she was pretty. You also suggested to her that she could earn proper money if she would agree to meet your friends in a hotel, not the surgery.

[13] She attended on you a number of times, and you would examine her breasts and her vagina. On each of these occasions you would give her pills in the waiting area and attend to other patients. These would cause her to feel woozy, or strange, sort of like being asleep but conscious at the same time. In the course of examining her she could feel your penis rubbing up against her through the fabric of your clothes. These events are not the subject of charges however they contextualise the offending which constitutes charge two.

[14] Charge 2 relates to an occasion between the charged dates, when she was 14 and she attended at your medical practice suffering from tonsillitis. You took her into the consulting room and examined her mouth. You asked her about her involvement in sexual activity and told her she was a pretty girl. You told her that you needed to check her out to make sure everything was okay as she had been having sex.

[15] You directed her to remove her clothing and take up a position on an examination table. You placed a curtain covering her in a manner that obscured her vision and you were examining her vagina. Whilst this process was taking place, you penetrated her vagina with your penis and ejaculated inside her.

[16] Charge 2 is representative of two other similar occasions of you having raped her. On both of these you ejaculated inside her.

[17] On the last occasion she was about 15 years of age. She recalls having been given an unknown drug and feeling woozy after this. She recalls that she removed the covering from her eyes and observed you penetrating her vagina with your penis. You were observed to be standing on steps beside the examination table and she noticed you were not wearing a condom.

[18] The second victim became pregnant and was apprehensive that you may have fathered the child. She was relieved at the birth of the child to ascertain that this was not the case.

[19] Over the ensuing years she told a number of people about your conduct and ultimately in September 2014, the second victim contacted police and reported your offending against her. This was consequent upon her seeing media reporting of you regarding another matter. These investigators contacted the Regulatory Board of General Practitioners and learned of the first victim's earlier complaint against you.

[20] Following on from this, in July 2016 police attended at your home in Clifton Hill and arrested and interviewed you. During the course of this interview you declined to comment when the allegations were put you, however told investigators you were not aware of the allegations prior to your arrest. You made certain admissions regarding where you had practised, however did not admit committing the offences to which you have pleaded guilty before me.

[21] I have had appropriate regard to the victim impact material filed in this matter. In summary, your victims speak of the ongoing and profound effects of your offending conduct. The first victim references her feelings of embarrassment, humiliation and shame as a result of your conduct. The second victim speaks of her shame, isolation and the mental scars that she feels she still bears today.

[22] Your offending represents a gross and egregious breach of trust.

[23] Your victims were vulnerable and had come to you for resolution of their medical complaints. The second victim was still a child. You were in the trusted position of general practitioner and under the guise of examining young female patients offended in the manner that I have described. You were bound by the Hippocratic oath, and have betrayed it in an appalling manner. Members of the public are entitled to feel safe and to be treated with respect by health professionals. You offended against two vulnerable female patients who became your victims. Your unprotected sex aggravates your offending as it increased the risk of pregnancy and sexually transmitted disease. Your offending is undoubtedly serious and the sentences which I impose upon you must adequately denounce your conduct and deter others from offending in a similar way.

[24] The representative nature of charge 2 enables me to view this offending, having regard to the whole picture presented by your respective conduct, in determining the sentence to be passed upon this representative charge. The fact, however, that this charge is representative may not be used by me to increase what would otherwise be a proper sentence. It does, however, limit your ability to contend in mitigation that the offending conduct was isolated or an out of character incident. Consistently with established sentencing principle I will rely upon the representative nature of charge 2 for the limited purpose only of negating any mitigating circumstances which you might otherwise have drawn on. I will not and cannot aggravate the sentence which I have imposed on you as a result of the representative nature of the charge.

1. In relation to the first charge, Dr Sze-Tho was convicted and sentenced to 5 years imprisonment. In relation to the second charge he was convicted and sentenced to 78 months imprisonment. The Court directed that 30 months of the sentence imposed on charge one was to be served cumulatively upon the sentence imposed upon charge to such that the total effective sentence was nine years imprisonment. The minimum term to be served before being eligible for parole was five years imprisonment. Pursuant to section 34 of the Sex Offenders Registration Act 2004, the length of the reporting period was set at 15 years.
2. Having read the Tribunal books prepared by the Board which incorporate the evidence led in the criminal courts including the Victoria Police Records of Interview with Dr Sze-Tho, together with witness statements pertaining to each of the allegations, and all other relevant related documentation, we are comfortably satisfied in accordance with the principles set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that the sentencing comments recorded above succinctly and accurately set out the relevant factual matrix relating to the allegations before us.

1. Having been so satisfied, we have no hesitation in further finding that the conduct of Dr Sze-Tho giving rise to each of the convictions in relation to each allegation, amounts to professional misconduct as defined in section 5 of the National Law. Section 5 of the National Law reads as follows:

Professional misconduct, of a registered health practitioner, includes-

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession

1. Dr Sze-Tho wrote prescriptions for Schedule 4 poisons and drugs of dependence in amounts which he knew exceeded the therapeutic needs of patients requiring hormone replacement therapy. He wrote prescriptions for clients of the clinic who he knew were involved in bodybuilding and other physical pursuits without even enquiring with the proprietor of the clinic as to his qualifications to conduct a business involving sale of Schedule 4 poisons and drugs of dependence.
2. Dr Sze-Tho did so for no other reason than to receive payment. He gave no consideration to the potential for the prescribed drugs to be abused; have an adverse side-effect and/or be redistributed.
3. Dr Sze-Tho's conduct was not isolated. It involved 242 instances of prescribing a drug of dependence/Schedule 4 poison to 141 individuals over the course of seven months. During this time, Dr Sze-Tho had time to reflect on his conduct and desist. He did not do so.
4. Dr Sze-Tho failed in his duties as a doctor.
5. Good Medical Practice: a Code of Conduct for Doctors in Australia, ("the Code"), as relevantly in force between 1 July 2010 to 16 March 2014 makes a number of matters very clear in relation to patient care
6. It is clear from the Code (at 1.4) that Doctors have a duty to make the care of patients their first concern and to practice medicine safely and effectively. Good medicine is patient centred.
7. Dr Sze-Tho did not make the care of patients his first concern. He did not practice medicine safely and effectively. He put financial gain before the needs of his patients.
8. It is clear from the Code (1.2) that in clinical practice, the care of the patient is a doctor's primary concern and that such care involves assessing the patient, taking into account the history, the patient's views and an appropriate physical examination. It involves formulating and implementing a suitable management plan (including arranging investigations and providing treatment and advice).
9. Dr Sze-Tho did not assess any of the patients. He attempted to mislead investigators into believing he had done so. He took no history. He took no account of patient's views. He gave no appropriate physical examination. He did not formulate any management plan.
10. It is further clear from the Code (2.2) that a medical practitioner must balance the benefit and harm in all clinical management decisions. No consideration whatsoever was given by Dr Sze-Tho to this balancing exercise.
11. Dr Sze-Tho did not ensure that the services he provided were necessary and likely to benefit the patient (5.2). He conducted himself dishonestly, rather than ethically (8.1).
12. Having only a financial interest in preparing prescriptions, Dr Sze-Tho created a conflict of interest - he was entrusted by virtue of his profession with the care of patients. He gave no consideration whatsoever to patient care.
13. His repeated conduct over many months is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and is inconsistent with him being a fit and proper person to hold registration in the profession of medicine.

1. We readily adopt the words of His Honour Judge Meredith that the conduct of Dr Sze-Tho represented a "gross and egregious" breach of trust, taking place as it did in the course of his professional practice at his rooms. His repeated conduct with separate victims under the guise of medical examinations is as serious as it is possible to imagine.
2. Dr Sze-Tho's conduct was unequivocally substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and is inconsistent with him being a fit and proper person to hold registration in the profession.
3. Dr Sze-Tho exploited his victims and his position of trust and power for his own sexual gratification. He has offered no explanation or indication of remorse in relation to his conduct. His offending was not isolated but occurred over a period of five years.
4. Dr Sze-Tho's victims were both very young. One was a child. Unsurprisingly their lives have been forever marked by his conduct.
5. Dr Sze-Tho's conduct amounts to professional misconduct of the most serious kind.

1. Dr Sze-Tho is now aged 74. His career spanning some 48 years has ended in disgrace.
2. We agree with the submissions of the Board that in the circumstances of this case it is more appropriate that a separate rather than a "global" sanction be imposed in relation to each allegation as there is neither a factual nor contextual relationship between each allegation. The conduct underlying each conviction was separated by a significant period of time. The only connection that can reasonably be drawn between the two allegations is that both reflect the inherent unsuitability of Dr Sze-Tho to practice medicine.
3. The Board submitted that Dr Sze-Tho be reprimanded under section 196(2)(a) of the National Law in relation to each allegation.
4. We agree.
5. The Board further submitted that Dr Hoong Pan Sze-Tho's registration be cancelled under section 196(2)(e) of the National Law in relation to each allegation.
6. There was some confusion on this point as the materials placed before us suggested that Dr Sze-Tho had relinquished his registration. We were however assured by the Board that this was not the case and that his registration remains suspended in accordance with the immediate action taken against him on 24 October 2013.
7. In these circumstances we agree with the submissions of the Board, that it is appropriate to cancel Dr Hoong Pan Sze-Tho's registration.
8. We understand that Dr Sze-Tho is aged 74. He is currently imprisoned and has no intention of returning to medical practice upon his release.
9. Nevertheless we consider it appropriate for the purposes of both specific and general deterrence to impose lengthy periods within which Dr Sze-Tho should be formally disqualified from applying for registration as a medical practitioner.
10. In relation to allegation 1, we will therefore cancel Dr Sze-Tho's registration under section 196(2)(e) of the National Law.
11. We will further order that Dr Sze-Tho be disqualified from applying for registration as a medical practitioner for a period of five years pursuant section 196(4)(a) of the National Law.
12. In relation to allegation 2, we will cancel Dr Sze-Tho's registration under section 196(2)(e) of the National Law.
13. We will order that Dr Sze-Tho be disqualified from applying for registration as a medical practitioner for a period of ten years pursuant to section 196(4)(a) of the National Law.
14. We will make the cancellations cumulative upon each other making the total period in which Dr Sze-Tho is disqualified from making application to apply for registration as a medical practitioner 15 years.
15. We recognise that these are significant orders which will effectively mean that Dr Sze-Tho will, given his age, never practice medicine again.
16. The orders are however necessary in order to protect both the public and the reputation of the profession.
17. In relation to allegation one, we emphasise that other practitioners must be strongly deterred from attempting to obtain a financial advantage through the exploitation of their professional privileges.
18. There is clearly a market in the community for anabolic steroids and associated drugs. The potential for significant harm to individuals as a result of inappropriate drug use facilitated by unscrupulous medical practitioners cannot be understated.
19. In relation to allegation two, the harm caused by Dr Sze-Tho to the patients and harm caused to the reputation of the profession through his conduct is self-evident.
20. Whilst we are mindful that the period of some 35 years has elapsed since the sexual offending took place, we have not had any material placed before us to show remorse, or reformation of character during this period. We note that his plea of guilty only took place upon the commencement of the criminal trial. The objective seriousness in any event of his conduct cannot be overstated.
21. A strong message needs to be sent to Dr Sze-Tho and other practitioners that professional standards must be maintained. If they are not, and the conduct is as serious as Dr Sze-Tho's conduct, the sanctions imposed must be career ending.

1. We will reprimand Dr Sze-Tho under section 196(2)(a) of the National Law.
2. Dr Hoong Sze-Tho's registration will be cancelled under section 196(2)(e) of the National Law.
3. Dr Sze-Tho shall further be disqualified from applying for registration as a medical practitioner for a period of five years pursuant section 196(4)(a) of the National Law.

1. (a) We will reprimand Dr Sze-Tho under section 196(2)(a) of the National Law

(b) Dr Sze-Tho's registration is cancelled under section 196(2)(e) of the National Law.

1. Dr Sze-Tho shall further be disqualified from applying for registration as a medical practitioner for a period of ten years pursuant section 196(4)(a) of the National Law.
2. The cancellations will be made cumulative such that the total period in which Dr Sze-Tho is disqualified from making application to apply for registration as a medical practitioner 15 years.

[1] Confirmed in writing by Dr Hoong Pan Sze-Tho by letter dated 30 October 2018 and his former lawyers by letter dated 31 October 2018.