Wan Ming Yeung v. The Dental Council of Hong Kong

HCAL 1294/2019

[2019] HKCFI 3047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1294 OF 2019

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.This is the rolled-up hearing of an application for judicial review of the decision (“the Decision”) of the Dental Council of Hong Kong (“the Council”) dated 29 April 2019 refusing to stay what has been referred to as the “Part I Inquiry” in connection with the Applicant’s application for the restoration of his name to the General Register of dentists kept under Section 7(1) of the Dentists Registration Ordinance, Cap 156 (“the Ordinance”).

2.In what follows:

(1)  references to “Section” shall be to the Ordinance; and

(2)  references to “Regulation” shall be to the Dentists (Registration and Disciplinary Procedure) Regulations (“the DRDPR”) made under Section 29(1C) of the Ordinance.

BASIC FACTS

3.The Applicant was formerly a registered dentist.  On 15 September 2014, the Council found the Applicant guilty of four disciplinary charges of unprofessional conduct arising out of his orthodontic treatment of an 11-year old patient between July 2010 and August 2012, and ordered (inter alia) the Applicant’s name to be removed from the General Register for a period of 3 months.  The Council’s order for the removal of the Applicant’s name from the General Register took effect on 21 November 2014, and expired on 21 February 2015.

4.On 24 February 2015, the Applicant applied to the Council for the restoration of his name to the General Register under Section 22(3).  According to the Assistant Secretary of the Council, the practice of the Council is that in considering an application for restoration under Section 22(3), the Council would hold an inquiry and, if there is any outstanding complaint against the applicant, the inquiry would be divided into two parts: Part I is for the consideration of the outstanding complaint, while Part II is for the consideration of the application for restoration.  The findings in Part I will be taken into account in Part II of the inquiry.

5.At the time of the Applicant’s application for restoration, there was an outstanding complaint (“the Complaint”) against the Applicant made by another patient (“the Complainant”) dated 26 August 2014 (“the Complaint Letter”), which had not yet been dealt with by the Council.  By a letter dated 9 November 2015, the Secretary of the Council (“the Secretary”) informed the Applicant that in view of the fact that his name had been removed from the General Register, it would not be appropriate to institute fresh disciplinary proceedings against him arising out of the Complaint, but the Council would take that matter into account whether considering the Applicant’s application for restoration.  The Secretary further stated that the Complaint would be referred to the Preliminary Investigation Committee for consideration, which would decide whether to recommend the Council that (i) his name should be restored to the General Register, or (ii) there should be a full inquiry before the Council.  The letter set out 8 charges, or allegations, against the Applicant.  Enclosed with the letter was, inter alia, a copy of the Complaint Letter.  The Applicant was required to provide his response to the Complaint on or before 11 December 2015.

6.Subsequently, the Applicant, through his former solicitors, applied to the Council on 30 November 2015, 6 January 2016 and 24 February 2016 respectively for extension of time to provide his response and to produce an expert report, which applications were acceded to by the Council.  Eventually, on 8 April 2016, the Applicant’s former solicitors sent to the Council a written statement of the Applicant dated 26 February 2016 and an expert report of Dr Danny Low dated 5 April 2016, and made written submissions on behalf of the Applicant in answer to the Complaint.

7.By a letter dated 22 July 2016 (“the Notice of Inquiry”), the Council gave notice to the Applicant that his application for restoration would be considered at a meeting of the Council scheduled for 2 and 8 March 2017.  In the letter, the Council also informed the Applicant that the following four charges, or allegations, against him would be inquired into at the meeting (ie the Part I Inquiry):

“In 2014, you, being a registered dentist, disregarded your professional responsibility to adequately treat and care for your patient … (‘the Patient’) or otherwise to have neglected your professional duties to the Patient in that –

(a)  you embarked on the endodontic treatment on tooth ‘48’ without carrying out proper and adequate pre-operative examination and assessment;

(b)  you failed to have adequately and properly explained to the Patient about the possible risks and complications associated with the endodontic treatment prior to embarking on the endodontic treatment;

(c)  your failed to perform the endodontic treatment on the Patient properly and competently; and/or

(d)  you failed to make timely referral of the case to a specialist when the circumstances so warranted.”

8.Enclosed with the Notice of Inquiry were copies of:

(1)  the DRDPR;

(2)  a document titled “Procedure at Restoration Inquiry”; and

(3)  a document titled “Practice Directions on Disciplinary Inquiries”.

9.It was also stated at the end of the Notice of Inquiry that:

“Although this is not a disciplinary inquiry, Part 1 of the inquiry will deal with the allegations and will follow the same procedures and directions set out in the ‘Practice Directions on Disciplinary Inquiries’”.

10.The hearing of the Part I Inquiry was subsequently adjourned twice upon the Applicant’s requests made on 1 March 2017 and 21 November 2018 respectively.  Eventually, it was listed for hearing on 28 February 2019.

11.Starting from about December 2018, the Applicant repeatedly pressed the Secretary to provide a statement of the brief facts of the case against him (“the Brief Facts”).  On 5 and 7 January 2019 respectively, the Applicant, through his current solicitors (Messrs Yu Sun Yau Mak & Lawyers, (“YSYM”)) sent to the Secretary drafts of the Brief Facts for his consideration.  By a letter dated 14 January 2019, the Secretary informed YSYM that the drafts of the Brief Facts prepared by them were substantially different from the “patient’s complaint letter”, and stated his belief that the parties would not be able to reach consensus on an agreed version of the Brief Facts.  Further correspondence followed between the Secretary and YSYM concerning the Brief Facts, as well as the provision by the Secretary of particulars in respect of the four charges against the Applicant and a witness statement of the Complainant.

12.By a letter dated 25 February 2019, the Secretary asked YSYM to confirm whether the Applicant agreed or disagreed with certain facts set out therein relating to the Complaint (“the Proposed Agreed Facts”) with a view to narrowing down the differences between the parties.  In reply, on 26 February 2019, YSYM wrote to the Secretary and stated that the Applicant would rely exclusively on his statement dated 26 February 2016 and his medical records and no additional information would be provided.

13.In a letter also dated 26 February 2019 to YSYM, the Secretary stated, inter alia, that –

“[t]he Complainant Letter comprises self-contained statements of facts prepared by [the Complainant]. We cannot see why those statements cannot be formally adopted as her testimony.”

The Secretary again invited the Applicant to indicate his position in respect of the Proposed Agreed Facts.

14.On 28 February 2019, at the commencement of the hearing of the Part 1 Inquiry, the Applicant applied for a stay of the proceedings on the ground that the Notice of Inquiry failed to give proper or sufficient particulars of the charges against him thereby depriving him of the right to know the case that he had to meet.  The Legal Adviser to the Council gave advice to the effect that the Council could invite or direct the Secretary to give particulars of the charges under Regulation 23 of the DRDPR.  On the other hand, the Legal Officer (for the Secretary) stated that while the Council had a discretion to order the Secretary to give the particulars sought by the Applicant, such discretion was not derived from the DRDPR.  At the conclusion of the hearing, the Council announced that it agreed that clearer particulars should be given in respect of the four charges set out in the Notice of Inquiry, and made the following order:

“the Secretary has to file and serve a statement of particulars by 15 March 2019 in respect [of] the four charges, along the line as requested by the Applicant as set out in Paragraph 17 of their written submissions for stay application”.

15.Pausing here, it may be noted that it is the Applicant’s contention that the Council made a decision on 28 February 2019 that the Notice of Inquiry was defective for lack of particulars and ordered the Secretary to amend the Notice of Inquiry pursuant to Regulation 23(1) of the DRDPR.

16.On 15 March 2019, the Secretary provided to the Applicant particulars of the four charges pursuant to the Council’s aforesaid order by way of a letter.  The Secretary did not, however, agree to amend the Notice of Inquiry by incorporating the particulars into it.

17.On 29 April 2019, upon the resumption of the Part I Inquiry, the Applicant made another application to stay the proceedings on three broad grounds:

(1)  the period of his suspension had been unduly prolonged as a result of the proceedings in relation to the Part I Inquiry;

(2)  the Notice of Inquiry was defective, and the Secretary had failed to amend the Notice of Inquiry by incorporating the particulars into it as (allegedly) ordered by the Council; and

(3)  abuse of process, by reason of (i) the Secretary’s failure to amend the Notice of Inquiry, (ii) the Secretary’s failure to provide the Brief Facts and a witness statement of the Complainant, and (iii) the particulars of the four charges provided by the Secretary were copied word for word from the Supplementary Report of the Secretary’s expert (Dr Bonnie Chiu) dated 3 January 2019, which the Applicant submitted affected, or would affect, the impartiality of the expert.

18.After hearing the parties, the Council ruled that there were no merits in respect of all the grounds raised by the Applicant, and dismissed the stay application.

(1)  In respect of the first ground, the Council agreed with the Secretary that the delay in the Applicant’s application for restoration was mainly attributable to his previous applications for (i) extension of time to file submissions, and (ii) adjournment of the inquiry.

(2)  In respect of the second ground, the Council noted that the Applicant had confirmed that he knew the Secretary’s case against him, and had not advanced any argument that the particulars provided by the Secretary were insufficient or deficient.  The Council stated that it had “no doubt” that the Applicant knew how to prepare his defence case.  The Council further clarified that it had never ruled that the Notice of Inquiry was defective, or that any amendment to the Notice of Inquiry was required.  At the hearing on 28 February 2019, in view of the Applicant’s complaint that the Secretary had not provided him with particulars of the four charges set out in the Notice of Inquiry, the Council considered that fairness required that particulars of the charges should be given to the Applicant and ordered the Secretary to do so.  The Council’s order made on 28 February 2019 was not in pursuance of Regulation 23 of the DRDPR, but was based on the Council’s own discretionary powers.  Given that (i) the Applicant knew what the Secretary’s case against him was, (ii) he was not saying that the particulars provided by the Secretary were insufficient or deficient, and (iii) there was no complaint about the timing of the provision of the particulars by the Secretary, the Council considered that no prejudice or injustice had been caused to the Applicant merely because the particulars had not been merged with the Notice of Inquiry.  The merging of the particulars with the Notice of Inquiry did not serve any valid purpose.

(3)  In respect of the third ground, the Council accepted the Secretary’s explanation regarding the Brief Facts and did not see how the Applicant would be prejudiced in the preparation of his case by not being provided with the Brief Facts by the Secretary.  The Council also considered that the Applicant would not be prejudiced by not being provided with a witness statement of the Complainant, having regard to the fact that the Secretary would be relying on the Complaint Letter as her evidence.  As regards the impartiality of the Secretary’s expert, that was a matter which the Applicant could pursue in cross examination.  Overall, the Council did not consider that there was any abuse of process on the part of the Secretary.

APPLICATION FOR JUDICIAL REVIEW

19.On 14 May 2019, the Applicant made the present application for leave to apply for judicial review of the Decision.  In the Form 86 dated 10 May 2019, repeated in Mr Dykes, SC’s written submissions dated 21 August 2019, four main issues are raised for determination in this application:

(1)  whether the Part I Inquiry was a “due inquiry” as defined in Section 2 of the Ordinance, and thus was regulated by the DRDPR;

(2)  if the Part I Inquiry was not a “due inquiry” as defined in Section 2 of the Ordinance, what significance is to be attached to the fact that the Secretary had represented before the hearing that the provisions of the DRDPR were treated as being applicable to the inquiry;

(3)  whether the Secretary’s deliberate refusal to amend the Notice of Inquiry to incorporate the “necessary” amendments under Regulation 23(2) or by reason of that regulation’s deemed application required that the Council should stay the proceedings in the Part I Inquiry; and

(4)  whether the other complaints raised by the Applicant (including prejudicial delay, and the Secretary’s refusal to provide a witness statement of the Complainant and the Brief Facts) warranted the Council granting a stay of proceedings.

THE REGISTRATION, REMOVAL AND RESTORATION OF DENTISTS

20.The Ordinance provides a statutory framework for the registration, removal and restoration of dentists in Hong Kong.  In broad terms:

(1)  Section 3 makes it an offence for anyone who is not registered as a dentist under the Ordinance from practising dentistry in Hong Kong.

(2)  Section 7 provides for the Registrar of Dentists to keep, inter alia, a register of dentists to be called the General Register.

(3)  Section 8 sets out the basic qualification requirements for a person wishing to be registered as a dentist under the Ordinance.

(4)  Section 9(1) provides that a person qualified to be registered as a dentist may apply to the Registrar for registration, and Section 9(2) provides that a person who has complied with the provisions of subsection (1) and with any regulations relating thereto and who has paid the prescribed fee may be admitted by the Council to be registered in the General Register.

(5)  Section 9(3)(b) provides that if, after “due inquiry”, the Council is satisfied that any applicant for registration has been guilty of unprofessional conduct, the Council may, in its discretion, order that the name of the applicant be not entered into the General Register.

(6)  Section 18 makes provisions relating to disciplinary inquiries by the Council.  In particular, under Section 18(1)(b)(i), if, after “due inquiry” into any case referred to it by the Preliminary Investigation Committee in accordance with regulations made under Section 29, the Council is satisfied that any registered dentist has been guilty of unprofessional conduct, the Council may, in its discretion, order the name of the registered dentist to be removed from the General Register.  “Unprofessional conduct” is defined in Section 18(2) to mean “an act or omission of a registered dentist which would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency”.

(7)  Section 22(3) provides that –

“Any person whose name has been removed from the General Register under the provisions of this Ordinance, or whose name prior to the commencement of this Ordinance had been removed or erased under the provisions of the repealed Ordinance from the register kept in accordance with the provisions of that Ordinance may apply to the Council for the restoration of his name to the General Register, and the Council, in its absolute discretion and after such inquiry and subject to such conditions as it may consider desirable, may either allow or refuse the application, and, if it allows the same, shall order the Registrar to restore the name of the applicant to the General Register, and thereupon the Registrar shall restore the name accordingly.”

(8)  Section 29(1C) states that, subject to the approval of the Secretary for Food and Health, the Council may by regulation provide for –

“(b) the receipt of complaints or information about any registered dentist or any applicant for registration and the establishment and functions of a committee to be known as the Preliminary Investigation Committee to make such preliminary investigation as it considers appropriate regarding any such complaint or information and to determine whether or not there shall be an inquiry under section 9 or 18;

(d) the procedure to be followed in relation to -

(i) the submission of complaints or information to the Preliminary Investigation Committee;

(ii) the preliminary investigation of any complaint or information by the Preliminary Investigation Committee;

(iii) the formulation of charges arising out of complaints or information;

(iv) the reference to the Council by the Preliminary Investigation Committee of cases arising out of complaints or information;

(v) inquiries held by the Council under this Ordinance”.

21.Both Section 9 (which relates to applications for registration) and Section 18 (which relates to disciplinary inquiries by the Council against registered dentists) expressly refer to “due inquiry”, which is defined in Section 2(1) to mean –

“an inquiry by the Council conducted substantially in accordance with the procedure provided by regulations made under section 29(1C)(d)(v)”.

22.The DRDPR, which govern the procedure relating to matters for the registration of dentists and disciplinary inquires by the Council, are made by the Council pursuant to Section 29(1C).  The DRDPR consist of five parts: Part I contains definitions, Part II concerns registers and certificates, Parts III concerns proceedings preparatory to hearing by the Council, Part IV concerns proceedings at hearing of the Council, and Part V concerns the duties of the Legal Adviser:

(1)  Under Part III –

(a)  Regulation 12(1) provides for the establishment of the Preliminary Investigation Committee.

(b)  Regulations 13, 14, 15 and 15A make provisions for the reference to, and consideration by, the Preliminary Investigation Committee of a complaint or information against a registered dentist or an applicant for registration.

(c)  Regulation 17(1) provides that if the Preliminary Investigation Committee determines that an inquiry shall be held it shall refer the case to the Council.  Regulation 17(2) goes on to provide that where a case has been referred to the Council, it shall fix a date for an inquiry to be held and direct the Secretary to serve on the defendant a notice of inquiry in accordance with Form 6 in the First Schedule together with a copy of the regulations.

(d)  Regulation 23 makes provisions relating to the amendment of a notice of inquiry, and states as follows –

“(1)  Where before the hearing or at any stage of the hearing it appears to the Council that a notice of inquiry is defective, the Chairman may give such directions for the amendment of the notice as may be thought necessary to meet the circumstances of the case unless, having regard to the merits of the case, he is of the opinion that the required amendments cannot be made without injustice to the defendant.

(2)  The Secretary as soon as is practicable, after the amendment of a notice of inquiry, shall give notice in writing thereof to the defendant and to any complainant.”

(2)  Under Part IV, provisions are made in relation to proceedings of the Council, including matters concerning record of proceedings (Regulation 24), opening of inquiry (Regulation 25), objections on point of law (Regulation 26), order of procedure (Regulation 27), judgment (Regulations 28-29), mitigation and sentence (Regulations 30-32), evidence (Regulation 33), and voting (Regulation 34).

(3)  Regulation 37 relates to advice given by the Legal Adviser –

“(1)  When the Legal Adviser advises the Council on any question of law as to evidence, procedure or any other matter in any inquiry under section 9 or section 18 of the Ordinance he shall do so in the presence of every party to the proceedings or the person representing each party or, if the advice is tendered after the Council has commenced to deliberate as to its findings, every such party or person as aforesaid shall be informed of the advice that the Legal Adviser has tendered.

(2)  In any case where the Council does not accept the advice of the Legal Adviser on any such question as aforesaid, every such party or person shall be informed of this fact.”

WHETHER THE PART I INQUIRY WAS GOVERNED OR REGULATED BY THE DRDPR

23.Issues (1) and (2) can be dealt with together. The question which arises for determination is whether the conduct of the Part I Inquiry is governed or regulated by the provisions of the DRDPR.  The Ordinance refers to three different types of inquiries by the Council, namely, (i) an inquiry under Section 9(3) to determine whether the name of an applicant for registration should not be entered in the General Register, (ii) an inquiry under Section 18(1) to determine whether a registered dentist should be disciplined, and (iii) an inquiry under Section 22(3) to determine whether the name of a registered dentist which has been removed from the General Register should be restored to the General Register.

24.There is no doubt that inquiries under Sections 9 or 18 are “due inquiry” as defined in Section 2(1). Quite apart from the express references to “due inquiry” in Sections 9(3) and 18(1), it is clear that the DRDPR are regulations made under Section 29(1C)(d)(v) to provide for the procedure to be followed in applications under Section 9 or 18.  The detailed provisions in Parts III and IV of the DRDPR relating to proceedings, or inquiries, before the Council are applicable both to an inquiry under Section 9(3) (so far as relevant) and a disciplinary inquiry under Section 18 (see Regulation 13).  Further, Forms 2 and 2A in the First Schedule to the DRDPR are forms prescribed for applications for registration, whereas Forms 6 and 7 relate to forms prescribed for use in inquiries under Sections 9 or 18.

25.An inquiry under Section 22(3) is not described as a “due inquiry”.  Whether such inquiry by the Council should be regarded as a “due inquiry” as defined in Section 2(1) depends on whether it is “conducted” substantially in accordance with the procedure provided by regulations made under section 29(1C)(d)(v), ie the DRDPR, not whether those regulations are made, or designed, for the purpose of such inquiry.

26.In the present case, the Notice of Inquiry expressly states that the Part I Inquiry, although not a disciplinary inquiry, “will deal with the allegations and will follow the same procedures and directions set out in the ‘Practice Directions on Disciplinary Inquiries’”.  In the Practice Directions on Disciplinary Inquiries issued by the Council dated September 2010, it is stated at the beginning that “[t]hese Practice Directions should be read in conjunction with Part IV (regulations 24-34)” of the DRDPR. Further, in the “Procedure at Restoration Inquiry” issued by the Council, it is stated that Part I “will basically follow the procedure of a disciplinary inquiry.”  All these documents were enclosed with the Notice of Inquiry sent by the Secretary to the Applicant on 22 July 2016.  It is, I consider, clear that the procedure provided by the DRDPR was intended to apply to the Part I Inquiry, and this appears to have been the common understanding of the parties.  There is no suggestion that the Part I inquiry up to the 29 April 2019 was not conducted substantially in accordance with the procedure provided by the DRDPR.  At §32 of the “Secretary’s objection to the Applicant’s requests for further particulars of the charges, ‘Brief Facts’ and witness statement” dated 24 April 2019, the Secretary also confirmed that the restoration hearing would “follow as far as possible the procedures of disciplinary proceedings”.  In these circumstances, I consider that the Part I Inquiry ought to be regarded as a “due inquiry” as defined in Section 2(1), and its conduct is governed or regulated by the provisions of the DRDPD, so far as applicable.

WHETHER THE SECRETARY’S REFUSAL TO AMEND THE NOTICE OF INQUIRY TO INCORPORATE THE PARTICULARS REQUIRED THE COUNCIL TO STAY THE PROCEEDINGS

27.The Applicant’s case is based on the premise that Regulation 23(2) and/or the Council’s order made on 28 February 2019 required the Secretary to amend the Notice of Inquiry[1].  This premise is, however, not well-founded.

28.Regulation 23(1) provides that where it appears to the Council that a notice of inquiry is defective, the Chairman may give such directions for the amendment of the notice as may be thought necessary to meet the circumstances of the case.  Regulation 23(2) goes on to provide that after the amendment of a notice of inquiry, the Secretary shall as soon as practicable give notice in writing thereof to the defendant and to any complainant.  It is clear that the obligation of the Secretary to amend a notice of inquiry only arises where (i) the Council has decided that the notice of inquiry is defective, and (ii) the Chairman has given directions for the amendment of the notice.

29.In the present case, the Council has confirmed, or clarified, at the hearing on 29 April 2019 that it never found the Notice of Inquiry to be defective, or gave any directions to the Secretary requiring him to amend the Notice of Inquiry.  That being the position, there is no question of the Secretary having acted contrary to Regulation 23(2) and/or the Council’s order made on 28 February 2019.

30.The Applicant argues that the Council’s order made on 28 February 2019 could only have been made on the basis that Regulation 23 applied because that was the advice given by the Legal Adviser which the Council did not reject.  My views on this argument are as follows:

(1)  It can be seen, from the transcript of the proceedings on 28 February 2019 (at lines 977 to 993 and 1011 to 1029), that the Legal Adviser’s advice was that if the Council considered that the particulars given by the Secretary so far were not sufficient, the Council might invite or direct the Secretary to give more particulars under Regulation 23.  The Legal Adviser did not say, or advise the Council, that the particulars provided were in fact not sufficient, or that the Notice of Inquiry was defective.  The Legal Adviser also did not say, or advise the Council, that the Notice of Inquiry ought to be amended.

(2)  As a matter of fact, there was no decision by the Council on 28 February 2019 that the Notice of Inquiry was defective, or that it should be amended.  The order made by the Council was that the Secretary should file and serve a statement of particulars by 15 March 2019 in respect of the 4 charges.  It has not been suggested, and cannot be suggested, that the Council did not have inherent jurisdiction to order the Secretary to provide further particulars of the four charges set out in the Notice of Inquiry in circumstances where fairness required such particulars to be given.

(3)  In any event, even if (contrary to my views above) the Legal Adviser should be taken to have advised the Council that the Notice of Inquiry was defective for lack of particulars, or ought to be amended, the Council was not bound to accept such advice.  It is now clear from what the Council said on 29 April 2019 that the Council did not, as a matter of fact, accept such advice (if any).  It is correct that where the Council did not accept the advice of the Legal Adviser, the Council ought to have given notice of that fact in accordance with Regulation 37.  However, there is no basis to suggest that the failure of the Council to observe the requirement of Regulation 37 could be turned into a finding or decision by the Council that the Notice of Inquiry was defective or a direction to the Secretary to amend the Notice of Inquiry, or would otherwise invalidate the proceedings.

(4)  Ultimately, the issue is one of procedural fairness.  The Council’s view that the Applicant would not suffer any prejudice as a result of the non-incorporation of the particulars into the Notice of Inquiry seems to me to be correct.

31.At §§139 to 140 of the Applicant’s written submissions, it is argued that it is more than a matter of formality to require the particulars to be incorporated into the Notice of Inquiry, because (i) particulars enable both the Applicant and the Council to know the nature of the charges against him and to prevent the Secretary from “shifting ground” during the course of the hearing, and (ii) a fair trial could not be secured if the particulars are not incorporated into the Notice of Inquiry, because the Secretary may “change tack” in light of the evidence given, or the Council members may suggest a new line of inquiry in the course of the hearing.  In my view, these arguments are without merits.  In so far as enabling the Applicant and the Council to know the nature of the charges against him is concerned, it matters not whether the particulars are incorporated into the Notice of Inquiry or set out in a separate document.  In so far as it is suggested that the Secretary may shift his ground or change his case in the course of the hearing, the Secretary would be bound by the particulars provided on 15 March 2019 unless leave is given by the Council for them to be amended or modified. Whether the Secretary may be permitted to do so will be a matter to be determined by the Council.  It would be premature at this stage to speculate on what may happen in such eventuality.  The same comment applies to the suggestion that the Council members may raise further lines of inquiry in the course of the hearing.  Ultimately, the fairness of the proceedings before the Council would be subject to the supervisory jurisdiction of the court.

OTHER COMPLAINTS

32.I can deal with the other complaints raised by the Applicant briefly.

33.In so far as delay is concerned, I consider that the Council was entitled to find that the delay was mainly attributable to the Applicant’s previous applications for (i) extension of time to file submissions, and (ii) adjournment of the inquiry.

34.In so far as the lack of a witness statement of the Complainant is concerned, the Complainant has set out her complaint against the Applicant in detail in the Complaint Letter.  I see no reason why it cannot be treated as her witness statement for the purpose of §11(iii) of the Practice Directions on Disciplinary Inquiries, which states as follows:

“For each witness (including the defendant) who will give evidence, a written witness statement should be prepared and provided to the opposite party not less than 10 days before the inquiry.”

35.In so far as it is suggested that the Complaint Letter may contain irrelevant matters or allegations, the same could happen in relation to a witness statement.  In case of any genuine difficulty or problem, the Applicant can seek directions from the Council for the irrelevant parts of the Complaint Letter to be expunged or disregarded.

36.In so far as the Brief Facts are concerned, there is nothing in the regulations, rules or practice directions which the Applicant can point to which imposes an obligation on the Secretary to provide the Brief Facts as demanded by the Applicant.  As a matter of fact, the Secretary has produced a statement of facts (namely, the Proposed Agreed Facts) for agreement by the Applicant.  He is at liberty not to agree to them, just as the Secretary is not bound to agree to the draft Brief Facts prepared by the Applicant.

37.Further, the Council has found that the failure of the Secretary to provide a witness statement of the Complainant or the Brief Facts would not cause any prejudice to the Applicant.  It seems to me that it is open to the Council to come to such finding.

38.Lastly, I consider the Council to be correct to hold that the impartiality of the Secretary’s expert would not be affected merely because the Secretary has copied from the expert report for the purpose of providing the particulars of the four charges as ordered by the Council.

39.In all, none of the grounds of judicial review raised by Applicant is reasonably arguable or has a realistic prospect of success.  In any event, having regard to the Council’s view that the Applicant has not suffered any prejudice or unfairness arising out of the matters complained of, I would not be prepared, in the exercise of my discretion, to grant relief in this application for judicial review even if the grounds of judicial review, or some of them, raised by Applicant have some technical merits.

DISPOSITION

40.The application for leave to apply for judicial review is dismissed, with costs to the Secretary, to be taxed if not agreed.

Mr Philip Dykes, SC and Mr Stephen Tang, instructed by Yu Sun Yau Mak & Lawyers, for the Applicant

The Putative Respondent, absent

Mr Mark Chan, SC and Ms Carmen Poon, GC, instructed by Department of Justice, for the Putative Interested Party