Readers will have to judge for themselves the right or wrong of the issues here. As to who is right, wrong or to be blamed, Dr. Basmullah Yusom’s predicament has to be evaluated in relation to two issues:-

First, whether Ministry of Health (“MOH”)’s decision to prosecute him was right; second, assuming he is guilty, whether the punishment meted to him was proportionate to the gravity of the offence.

On first issue, Director-General of Health Tan Sri Dr Ismail Merican Dr. Ismail Merican’s rests his allegedly ‘heartless’ defence of Ministry of Health (“MOH”)’s prosecution on 3 grounds, which are set out here in (what by my personal view) is the inverse order of cogence & logic: –

1. the general defence by Dr. Ismail Merican that Private Healthcare Facilities and Services Act 1998 (Act 586) (“PHFSA”) was a settled issue accepted by the medical community and the fact that “the ministry has so far approved the registration of 6,322 clinics, 1,439 dental clinics and 51 clinics which offer aesthetic procedures” “spoke volume of support” for it by the community. This kind of statistics is not very enlightening when we don’t know how they stand in relation to the total number of private clinics that require registering, and the number that are not yet registered; secondly, the number of registration per se does not speak volume of support when it is done grudgingly and in protest just to avoid the kind of hassle from MOH that Basmullah Yusom has gone through so far.

2. Dr. Ismail Merican also said Dr Basmullah had declined MOH’s offer to pay installments of fine of RM120,000 as option to stay out of jail. But how many installments was offered by MOF, it being clear that 12 monthly installments of RM10,000 each (which Dr Basmullah couldn’t afford to pay) is vastly different from 1,200 monthly installments of RM100/- each that Dr Basmullah might be able to afford to pay!

3. Dr. Ismail Merican further said that Dr Basmullah Yusom was given a chance, after his Al-Hilal Medical Centre Sdn Bhd was sealed on July 11, last year, to register” and procure license at cost of RM1,500 but he still didn’t.

Explanation no. 3 places the onus on Dr Basmullah Yusom why after MOH has evinced seriousness in enforcing PHFSA by sealing off his polytechnic on July 11 2007, he still refused or failed to register and procure the additional license from MOH. MOH here argues that it had given Dr Basmullah Yusom an opportunity to rectify his omission but he refused still to be regulated which in MOH’s eyes tantamount to defiance of MOH and PHFSA law, which whether good or bad law, is still law in force. On this ground alone MOH argues that it is fully entitled to enforce the PHFSA by prosecution and ask for deterrent sentence on Dr Basmullah’s conviction.

There are gaps in information here regarding Dr Basmullah Yusom’s behaviour. If he had known the consequences of being prosecuted with fine of max RM500,000 or jail sentence, would he not have raised RM1500 for additional MOH’s license, and why didn’t he? We would expect with so many banks aggressively pushing their credit cards to consumers, it wouldn’t be difficult for a professional doctor like him to raise RM1500-00 even if he were otherwise impoverished.

There may well be other explanations in mitigation of Dr Basmullah Yusom’s offence if Dr. Ismail Merican would bother to look closer.

Here are five of them, which although are (I admit) speculations on my part, may well nigh be the real situation:-

The first concerns the point on financial implications raised by poster Dranony in earlier thread on this subject. Dranony said that the PHFSA “came along with some new regulations, called “Regulations 2006? which were signed into effect by Chua Soi Lek on 1st May 2006, totally WITHOUT discussion or consultation with private Sector doctors. He said Regulations2006 required clinics to undergo renovations and modifications and additions as well as purchase emergency equipment of disputed efficacy – implying without incurring these costs, one still could not obtain the MOH’s license required by PHFSA. So the financial cost implicated is far more than the sum of RM1500 here, and Dr Basmullah could not afford this even if he could afford RM1500 borrowed from (say) the credit card.

Secondly, Dr Basmullah might not actually know the consequences of ensuing prosecution; he thought that if clinic was sealed, prosecution won’t follow.

Thirdly, it may be asked if MOH gave Dr Basmullah a chance in the sense of sealing his clinic first before prosecuting, then in the natural order of things how could it prosecute Basmullah for running a private clinic without MOF’s license when the clinic was already sealed by then – unless one suggests that Basmullah forcibly ‘unsealed’ the clinic, which I don’t think was likely case. Or unless MOH finding that he had still not applied for a license after sealing decided to charge and prosecute him for practising without MOH’s licence before the sealing on July 11 2007. If this were the case, it is odd because after the sealing of his clinic, Basmullah could not be guilty of practising in a private clinic without a MOH license in contravention of PHFSA when the private clinic was already sealed! And if MOH now charged him for practicing without a license before the sealing, then MOH cannot rely on the sealing of his premises on 11th July as an act of giving him an opportunity to correct his contravention, which he was fully entitled to correct by cessation of practice (after the sealing).

Fourthly, in Basmullah’s own words he was negotiating for sale of his practice or a part of it to some prospective buyer who was in position and was supposed to pay for MOH’s licence under PHFSA. There was therefore a misunderstanding of procedures and timing – not a deliberate act of defiance of MOH or PHFSA.

Lastly, whatever the real circumstances, if as what YB Kit said that “the previous Health Minister and Director-General of Health Services had given repeated assurances that no doctor would be jailed over a technicality under the PHFSA”, then MOH should not have, with alacrity, pursued a prosecution, much less pressed for deterrent sentence. One of the main misgivings of the medical profession about PHFSA is that the Act requires doctors to be regulated by bureaucrats in civil service like MOH who are quick to shot the moment they perceive their powers or authority questioned. Besides in promoting the passing and enforcement of PHFSA, MOH has cited the principal object of PHFSA was to weed out bogus doctors and charlatans, and Dr Basmullah being in possession of a practising certificate from Medical Council of Malaysia was certainly not the target group that the full rigours of PHFSA were meant to be directed especially in his case there was no mention of mal-practice or illegal and unethical medical practices on Dr Basmullah’s part to compound his technical infraction of the PHFSA. On the contrary unrepresented Dr Basmullah did not avail himself opportunity to bring his ex patients to testify his professional work in mitigation of his offence.

On the second broad issue of sentencing procedures – whilst MOH bears brunt of blame, the court/judge presiding, ought, with due respect, consider on its won some of the above mitigating factors above raised. The fact that Dr Basmullah was a first offender, and not represented by legal counsel and therefore could not put the best case forward to mitigate his offence should be given consideration in Dr Basmullah’s favour.

The court/judge should, in such circumstances, weigh against imposing custodial sentence by not imposing such a heavy fine of RM120,000.

Who is to say for example that RM12,000 is not sufficient?

Here the judge/court ought not to heed too much MOH prosecutor’s pressing for deterrent sentence on public policy grounds when, all the factors above being considered, the opposite (ie leniency than deterrence) would have served the cause of justice more.

BlackEye – I concur with observations in your two postings. You seem to have insights into how the lower courts work. :)

But just FYI, Medical is different from Legal Profession here. The Malaysian Bar is like Malaysian Medical Association (MMA) but by no means the Bar Council (by Legal Profession Act) is like Malaysian Medical Council (MMC) Medical Act 1971. Whereas Bar Council’s members are elected by the members of Malaysian Bar and therefore champions and articulates position of the lawyers, I am not to sure the same relationship subsists between MMA and MMC though both concern with reulating and disciplining those in medical profession. Take for example, Dr Basmullah’s plight which MMA is sympathetic and has made an appeal for leniency via its president Datuk Dr Khoo Kah Lin who also said the association was disappointed with the strict implementation of PHFSA – something that Datuk Dr Hj Mohd Ismail Merican, the president of MMC is not sympathetic to. By Para 1(1) of the First Schedule of the Medical Act, the President of MMC – the curent one being Ismail Merican – is also the Director General of Health (under Ministry of Health), and hence he wears two hats on one head, which sometimes make me wonder if it may be fraught with oportunities of conflict of interest developing in some instances.

Law should be upheld but there is always just or unjust exercise of prosecutorial discretion or sentencing (which is different issue from upholding the law). Where law is itself contentious and the party promulgating it admits it so, then the application of the law should be tampered with discretion favouring leniency. Proof that “the law (PHFSA) is itself contentious and the party promulgating it admits it so can be found in what ex Health Minister admitted in today’s NST where it was reported “Dr Chua said that when he brought the Act into force on May 1, 2006, he had held talks with the Malaysian Medical Association, the Private Medical Practitioners’ Association of Malaysia and the Malaysian Dental Association. During the talks, the director-general and I agreed on giving doctors some flexibility, and we did”. Dr Chua himself held the view “Nobody is above the law” but he qualified it by saying “although I was shocked and surprised when I read that Dr Basmullah was in jail” which Dr Basmullah would not be if there were proper exercise of prosecutorial discretion on MOH’s prosecutor’s part and proper aplication (at court level) of sentencing principles of not imposing custodial sentence on first offender having regard that PHFSA, though gazetted as enforceable law, is still in a state of contention amongst the various stakeholders in the health industry where all sides agree that there are rucks in the fabric of this law that needs ironing out to remove the iniquities, and pending this ought nopt toi have been rigorously enforced without heed to extenuating circumstances like for eg Dr. Basmullah had a practising certificate which made him an otherwise fully licensed physician licensed by the Medical Medical Council.