Read the full judgment text of CACV 35A/2017 on BabelCite. This Court of Appeal judgment was delivered on 26 September 2018 before Cheung CJHC, Cheung JA, Yuen JA.
Civil appeal – leave to appeal to Court of Final Appeal – professional disciplinary proceedings – Medical Council of Hong Kong – whether questions of great general or public importance arise – duty to give reasons – appellate review of findings of fact by professional tribunal – burden of proof – sentencing in disciplinary matters. Dr Fung Yee Leung Wilson sought leave to appeal to the Court of Final Appeal from a majority decision of the Court of Appeal (Cheung CJHC, Cheung JA and Yuen JA) dated 11 July 2018 dismissing his appeal against an order of the Medical Council of Hong Kong made on 17 January 2017. Dr Fung framed five questions of great general or public importance, concerning: (1) the rationale of Dr Wu Hing Ting v Medical Council of Hong Kong [2004] 2 HKC 367 and whether the 'earlier broad brush' approach to reasoned decisions by a professional disciplinary body required modification; (2) whether the appellate court must presume that a professional disciplinary body considered all arguments and properly analysed all the evidence even where such arguments and evidence are not mentioned in its decision; (3) the correct appellate approach to findings of fact and inferences by a professional tribunal of fact, especially where relevant evidence is not expressly evaluated; (4) the legal and evidential burden of proof in disciplinary proceedings, including whether invoking the principle that primary facts must be proven on the evidence before reasonable inferences can be drawn unfairly places the burden of proving innocence on the person charged; and (5) the correct approach to sentencing by a professional tribunal and the appellate court, particularly where multiple charges require findings of fact and consideration of expert evidence. The Court of Appeal held, by majority, that no question of great general or public importance was involved. The appeal was decided on the facts on a proper reading of the Council's decision, and not on any general principle regarding the detail of reasons required. The established approach of the appellate court to challenges against findings of fact applies equally to a professional disciplinary tribunal like the Medical Council. Nothing in the appeal turned on the Council's statement in paragraph 26 of its decision regarding primary facts and inferences, and that statement was not adopted by the court. The court's approach to sentencing in professional disciplinary matters is well established and does not call for reconsideration. The application on the 'or otherwise' limb was refused as no more than an attempt to reargue submissions already rejected. The application for leave to appeal was dismissed with costs summarily assessed at $140,000. Counsel for the applicant: Mr Denis Chang SC, Mr Nelson Miu and Ms Jolie Kung, instructed by Godwin Chan & Co. Counsel for the respondent: Mr Stewart KM Wong SC and Mr Wilson Leung, instructed by Department of Justice.
Legal issues: Whether the rationale of Dr Wu Hing Ting v Medical Council regarding reasoned decisions by professional disciplinary bodies requires modification · Whether appellate court must presume professional disciplinary body considered all arguments and evidence even if not mentioned in its decision · Correct appellate approach to findings of fact by a professional tribunal of fact · Legal and evidential burden of proof in professional disciplinary proceedings · Correct approach to sentencing in professional disciplinary matters
Outcome: By a majority, the application for leave to appeal to the Court of Final Appeal is dismissed with costs summarily assessed at $140,000.
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