Ching Kit Ming v. Hospital Authority

CACV000220/2002

CACV 220/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 220 OF 2002

(ON APPEAL FROM HCAL NO. 3059 OF 2001)

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Coram: Hon Stock JA and Cheung JA in Court

Date of Hearing: 18 September 2002

Date of Judgment: 25 September 2002

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1The applicant is a psychiatrist who was employed for some years by the Hospital Authority at Castle Peak Hospital. On 9 August 2000 the Authority served notice of termination of her employment as Senior Medical and Health Officer, with immediate effect, on the grounds of gross misconduct. It is in respect of this decision that she sought leave to apply for judicial review. That application came before Hartmann J and, after several adjournments to enable the applicant to frame her application more precisely and to obtain documentation in support of her complaints, the judge ultimately, on 16 April this year, refused to grant leave; and the applicant now appeals against that decision.

2The applicant commenced work at Castle Peak Hospital in 1988, but in 1997 a complaint of misconduct was made in relation to the performance of her professional duties, and that was the subject of an inquiry. The allegations were held to be substantiated, and she was issued with a warning. It is her case that these findings substantially undermined her self-confidence. There then followed a new problem which was that she failed to see patients whom she was required by her schedules to see, and later stopped seeing new admissions. She was then given two written warnings, in January and in March 1999. The applicant accepted before the judge that she had not been able to fulfil her duties but placed the blame for this on the state of mind to which, she said, she was driven by the events of 1997.

3A Committee of Inquiry was duly appointed to determine three charges against the applicant:

(1)	Failure to see patients according to schedule;
(2)	Failure to see new admission cases; and
(3)	Improper work behaviour, which was constituted by a list of suggested breaches, such as unauthorized absence from work; the grant of home leave to a suicidal patient when that was unwarranted; delay in completing discharge summaries; refusal to work on specific occasions - matters of this nature.

4The Committee found the charges proved, but deferred a decision as to the appropriate disciplinary action so that the applicant might have a psychiatric assessment. That assessment showed that she was not in fact ill. In February 2000 the Committee decided that her employment should be determined.

5Her application for leave is dated 24 October 2001, and the decision which it is sought to challenge by that application is her dismissal from Castle Peak Hospital.

6There was, at first instance, some difficulty in discerning the core of her complaints but the judge, with the benefit of several hearings, has done so in his ruling or judgment of 16 April.

7The first is an attack upon the conduct of the committee that examined her behaviour in 1997. She said that there was procedural impropriety by that committee in that they should have examined case files which would have revealed that accusations against her were incorrect. This led to her loss of confidence, which in turn contributed to her not attending properly to her duties. The judge concluded that if there was any procedural impropriety by the first committee - as to which there was in any event no material before him which supported such a suggestion - it was far too remote (particularly since she had been permitted to return to work thereafter) to have any bearing on the lawfulness of the findings of the Committee which made its recommendations in 2000, and which led to her dismissal.

8The second complaint was that she was not allowed by the Committee to see a doctor of her own choice when the Committee called for a psychiatric assessment before making a decision. She was seen by a Dr Hung who came to the conclusion that she was not suffering from a psychiatric illness. The appellant suggested to the judge that reading between the lines the doctor concluded that she was in fact ill; a contention which not surprisingly the judge did not accept. The relevance of this is that if the applicant had been shown not to have been responsible for her actions or neglect that may have had, it is said, an impact upon the final decision. In any event, the fact is that the applicant did see a doctor of her own choice, a Dr Tam who, in essence, came to the same decision as the doctor appointed by the Committee. Furthermore, the Committee had specifically told the applicant that she could consult a psychiatrist of her choice and place his report before them. There was in the event, the judge found, no procedural impropriety shown, even on the leave threshold basis.

9There was a third complaint encompassed within the revised grounds which the judge addressed, and he suggested that it added nothing of substance to the first two.

10In giving his judgment, the judge referred to the fact that the applicant "has admitted that her conduct was such that in a person of normal emotional health, it would have been intolerable". She said however that she was not in normal health. The judge remarked that that suggestion went against the findings of the doctors who had examined her.

11We have heard the applicant who has presented herself with courtesy and calm in a situation which she no doubt finds distressing. She has shown us a number of documents of which we take note. We are satisfied that they do not advance her case. We have also heard her expansion of the third ground of application before the judge the essence of which, she said, he did not fully appreciate. Again we do not think that her contentions carry the case further for the purposes of judicial review. We have examined the grounds of appeal but in our judgment they reveal nothing to show that the judge has erred in his conclusion. It seems to us that his decision, taken after giving the appellant every opportunity to present and explain her case, was the only correct decision to make.

12Accordingly the appeal is dismissed. There will be no order as to costs.

Representation:

Applicant in person