Dr. Fung Yee Leung Wilson v. The Medical Council of Hong Kong

CACV 35/2017

[2018] HKCA 647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 35 OF 2017

(ON APPEAL FROM THE ORDER OF THE MEDICAL

COUNCIL MADE ON 17 JANUARY 2017)

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Before:  Hon Cheung CJHC, Cheung and Yuen JJA

Date of Written Submissions:  21 August, 4 September and 11 September 2018

Date of Judgment:  26 September 2018

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J U D G M E N T

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Hon Cheung CJHC:

1.By a judgment dated 11 July 2018, this court, by a majority, dismissed Dr Fung’s appeal with costs. He now seeks leave to appeal to the Court of Final Appeal.

2.Dr Fung contends that the intended appeal involves the following questions of great general or public importance:

“(1) The first question concerns what the Hon. Cheung JA in his dissenting judgment calls ‘the rationale of Dr. Wu Hing Ting v. Medical Council of Hong Kong [2004] 2 HKC 367’: see §§ 46.18 and 46.19 of the Judgment. In particular, what modifications, if any, should be made to the ‘earlier broad brush’ approach in the giving of reasoned decisions by a professional disciplinary body such as the Medical Council (‘the Council’)(especially when assisted by a Legal Adviser)?

(2) The second question (related to or alternatively independent of the first) arises from the approach of the Court of Appeal itself to the issues of adequacy or sufficiency of the reasons given by the Council. In particular, is it legally and as a matter of general principle correct to presume or otherwise proceed on the basis that the professional disciplinary body must have considered all the arguments and/or properly analysed all the evidence even though the particular pieces of evidence or arguments are not mentioned in its decision?

(3) The third question (affecting, inter alia, the issue of whether any particular finding of fact is assailable on appeal) concerns the correct approach of an appellate body to findings of fact and/or inferences that can properly be made by ‘a professional tribunal of fact’ (vide §§ 36 and 37 of the Judgment) especially in the context of cases where relevant evidence has not been mentioned and/or expressly evaluated in the tribunal’s decision.

(4) The fourth question concerns the legal and/or evidential burden of proof, adverted to by the Hon. Cheung JA at §46.9 of the Judgment and giving rise to fundamental issues of procedural fairness and affecting or capable of affecting generally the way in which the Council deals with similar cases, for example, the correct understanding of the principle that ‘primary facts must be proven on the evidence before reasonable inference can be drawn’. More particularly, whether by invoking that principle in this and similar contexts the burden of proving innocence is in effect unfairly and wrongly placed on the person charged.

(5) The fifth question concerns what is the correct approach which should be adopted to sentencing, both by the professional tribunal and by the appellate court, especially in the context of a case where there are multiple charges requiring relevant findings of fact on the evidence (such as whether any quantity of the medicine prescribed is ‘high and excessive’) and/or otherwise requiring consideration of relevant expert evidence. In particular whether it is sufficient or correct in principle for the appellate court to adopt an approach reflected in §39 of the Judgment that ‘Sentencing is essentially a matter for the professional Tribunal, not this court sitting on appeal….’”

3.Dr Fung also seeks leave on the “or otherwise” limb.

4.The facts and issues involved in the appeal, and the reasons for our decision, were fully set out in our judgment. They will not be repeated here.  I think it is fair to say that the appeal was decided on the facts, and no legal principle of any great general or public importance was involved.

5.Questions 1 and 2 can be taken together.  They go to the Medical Council’s duty to give adequate reasons for its decision.  That was not an issue in the appeal.  The parties’ dispute, and the difference in view amongst the members of this court, turned on what they considered to have been found and decided by the council on a proper reading of its decision.  It did not involve any general principles regarding how detailed or comprehensive the reasons of the council – a professional disciplinary body – should be.

6.In particular, nobody has suggested that as a matter of general principle, this court has to “presume or otherwise proceed on the basis that the professional disciplinary body must have considered all the arguments and/or properly analysed all the evidence even though the particular pieces of evidence or arguments are not mentioned in its decision” (Question 2).  What I said was that:

“It must be remembered that a tribunal of fact is not obliged to set out all facts and evidence pertaining to a factual dispute in its judgment or decision. This would be an impossible task. This court does not easily accept that a tribunal of fact, including a professional tribunal like the Medical Council, has forgotten any material or relevant evidence placed before it, unless there is good reason to doubt it. In the present case, I have no good reason to entertain such a doubt.” (para 37)

7.Questions 1 and 2 simply do not arise from the appeal.

8.As for the third question, likewise, no such question arises in the appeal.  What I said in paragraphs 36 and 37 simply reflects the general, established approach of this court to challenges against findings of fact on appeal.  I drew no distinction between a trial court and a professional disciplinary tribunal like the Medical Council for that purpose.

9.As to the fourth question, it can be seen from the judgment that nothing really turned on the statement in paragraph 26 of the council’s decision that “primary facts must be proven on the evidence before reasonable inferences can be drawn”.  As I said, the appeal turned on what issues the council had dealt with and what findings it had made on a proper reading of its decision, and whether those findings were assailable on appeal on established principles.  It did not turn on the statement made in paragraph 26 of the decision.

10.In any event, it is difficult to see how that statement made by the council in this particular case – which was, in any event, never adopted by this court in deciding the appeal – could become an issue of great general or public importance.

11.As for the fifth question, this court’s approach to sentencing in professional disciplinary matters is well established.  It is not an issue of great general or public importance calling for re‑consideration by the Court of Final Appeal.

12.As for the “or otherwise” limb, it is the usual practice of this court not to grant leave on this limb but to leave it to the Appeal Committee of the Court of Final Appeal to decide whether that exceptional course should be taken.  In any event, having considered the arguments put forward in support of Dr Fung’s application for leave on the basis of this limb, all I would say is that the application is no more than an attempt to reargue submissions that have been rejected by this court.

13.For these reasons, I would dismiss the application for leave to appeal with costs which I would summarily assess at $140,000.

Hon Cheung JA:

14.For my part, I consider the issue of great general or public importance is engaged by the following question (as reformulated in paragraph 16(i) of the ‘Skeleton Submission of Applicant’):

“Is the approach of the CA in Dr Wu Hin Ting regarding the Council’s duty to give reasons in its decisions on serious disciplinary charges still good law or does it require modifications and if so what?”

Hon Yuen JA:

15.I agree with the judgment of the Chief Judge.

Hon Cheung CJHC:

16.By a majority, we dismiss the application for leave to appeal to the Court of Final Appeal with costs which are summarily assessed at $140,000.

Mr Denis Chang SC, Mr Nelson Miu and Ms Jolie Kung, instructed by Godwin Chan & Co, for the applicant

Mr Stewart KM Wong SC and Mr Wilson Leung, instructed by Department of Justice, for the respondent