Dr U v. The Preliminary Investigation Committee of the Medical Council of Hong Kong and Another

CAC v 151/2016

[2018] HKCA 96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 151 OF 2016

(ON APPEAL FROM HCAL NO. 195 OF 2015)

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J U D G M E N T

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Hon Lam VP:

1.I agree, for the reasons given by Yuen JA that leave should not be granted for the intended appeal to the Court of Final Appeal.  It seems to me, with respect, the Applicant’s submission is just an attempt to revive the argument on res judicata, which he failed before Zervos J and did not repeat before us.  Once the res judicata point is abandoned, there is simply no scope for comparison with the Rule 7 regime in the Court of Final Appeal.

Hon Yuen JA:

2.On 24 November 2017 this court handed down a Judgment (“the Judgment”) in which we dismissed the Applicant Dr U’s appeal from Zervos J’s Judgment given on 23 June 2016. The judge had dismissed his application for judicial review of a decision of the Preliminary Investigation Committee (“PIC”) of the Medical Council of Hong Kong.

3.The Applicant has now applied for leave to appeal the Judgment to the Court of Final Appeal on the “great general and public importance” ground.

4.The Judgment contains detailed reasons but it is relevant to this application to note the following matters:

-   although the Secretary of the Medical Council had informed the patient’s solicitors on 8 February 2012 that the complaint would not be pursued further and that its action on the complaint has been concluded[1], on 3 April 2012 the patient’s solicitors had added a new complaint (“the Revised Complaint”)[2];

-   further materials included in the Revised Complaint included Dr U’s own affidavit in which he accepted he had given negligent advice; this affidavit was made subsequent to the lodging of the complaint[3];

-   the chairman of the PIC was of the opinion that the Revised Complaint contained “new information and materials warranting further investigation”[4];

-   on appeal before this court, the Applicant did not pursue res judicata and cause of action estoppel arguments raised before the judge[5], and the Applicant’s Leading Counsel accepted that even if the patient had not brought a revised complaint but had merely provided the Medical Council with the new materials, those new materials may still be regarded as “information” suggestive of professional misconduct which would have to be submitted to the chairman of the PIC for consideration under s.6[6]; and

-   once the case is extant (whether as a result of a new complaint, or of the receipt of new information), it would be unrealistic and contrary to the spirit and purpose of professional misconduct investigations to suggest that only the new complaint may be considered, for the case only involved one course of treatment over a single period[7].

5.Accordingly this court took the view that the Applicant’s argument, that there was no express power in the Regulation for a chairman of the PIC to revoke or modify a decision to dismiss a case, was not engaged in the present case[8].

6.I have read the submissions of the Applicant and the Respondents in respect of the Applicant’s application for leave to appeal to the CFA.  It seems to me that the Applicant is seeking leave to appeal to the Court of Final Appeal on the very ground which this court has held was not engaged in this case.  The question on which the decision of the CFA is sought is of no consequence to the two parties in this case.

7.I would therefore dismiss the application with costs which I would assess at $95,000[9].

Hon Macrae JA:

8.I agree with the judgments of Lam VP and Yuen JA.

Mr Gerard McCoy, SC and Mr Albert Wong, instructed by Mayer Brown JSM, for the Applicant

Mr Stewart Wong, SC and Mr Jenkin Suen, instructed by Department of Justice, for 1^st and 2^nd Respondents