Fung Man Chee Maggie and Another v. Hong Kong Institute of Clinical Psychologists Ltd

HCAL 279/2020

[2020] HKCFI 2810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 279 OF 2020

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Before: Hon Chow J in Court

Date of Hearing: 3 November 2020

Date of Decision: 3 November 2020

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D E C I S I O N

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1.There are two bodies which both wish to be the accreditation body under the Pilot Accredited Registers Scheme for Healthcare Professions (Clinical Psychologists) launched by the Department of Health, namely:

(1)  The Division of Clinical Psychology, Hong Kong Psychological Society (“HKPS-DCP”), whose members are primarily graduates of the Master or Doctoral clinical psychology programmes of the HKU or CUHK, and

(2)  The Hong Kong Association of Doctors in Clinical Psychology (“HKADCP”), whose members are mostly graduates of the clinical psychology programme (“the Programme”) offered by the School of Continuing and Professional Education at the CityU (“CityU SCOPE”) in collaboration with the California School of Professional Psychology, Alliant International University.

2.HKPS-DCP established the Putative Respondent (Hong Kong Institute of Clinical Psychologists Limited) in September 2017 for this purpose, and was eventually chosen ahead of HKADCP by the Department of Health upon the recommendation of The Jockey Club School of Public Health and Primary Care of CUHK (Accreditation Agent) to be the accreditation body on 31 October 2019.

3.In order to be registered as a clinical psychologist directly under the “Long Term Arrangement” on the Register maintained by the Putative Respondent, he/she has to meet the requirements set out in the “Membership Registration and Handling Policy of Hong Kong Institute of Clinical Psychologists Limited” and “Education Standards of Clinical Psychology in Hong Kong” issued by the Putative Respondent dated 31 July 2019.  Those requirements exclude holders of the qualification of Doctor of Psychology acquired under the Programme.  The Applicants are holders of such qualification and feel aggrieved by the said requirement, and now launch the present application for leave to apply for judicial review of the relevant requirement as formulated or promulgated by the Putative Respondent on three grounds, namely, (i) apparent bias, (ii) mistakes of fact, and (iii) Wednesbury unreasonableness.

4.The rolled up hearing of the application is scheduled to be heard today.  Yesterday, the Putative Respondent issued a summons seeking leave to rely upon the 4^th Affidavit of Poon Mak Sui Man to answer a point which apparently was raised for the first time by Mr Pun SC (for the Applicants) in his skeleton arguments dated 27 October 2020, namely, that the Putative Respondent made no attempt to verify with CityU SCOPE on the question of whether the Programme was a full-time or part-time programme, being one of the matters which it is said the Putative Respondent made a mistake of fact relevant to ground 2 of judicial review.  The 4^th Affidavit of Poon discloses a memorandum dated 23 January 2007 which, according to Mr Pun, shows or reinforces bias on the part of the Putative Respondent, and refers to a number of other yet undisclosed documents which would assist the Applicants in advancing the ground of bias and other grounds of judicial review.  Accordingly, Mr Pun asks the court to split the present rolled-up hearing and deal with the leave application first so that, if leave is granted, the Putative Respondent would, in accordance with the duty of candour, make full discovery of the said outstanding documents and possibly other relevant documents thereby enabling the Applicants to deploy them at the substantive hearing of the judicial review.

5.Having considered the materials before the court and the submissions of the parties, I consider that the Applicants have satisfied the threshold of reasonable arguability with a realistic prospect of success such that leave to apply for judicial review should be granted.  It would not be appropriate for me to go further into the merits of the application at this stage, which will have to be fully argued at the substantive hearing.  There is also some prima facie validity to Mr Pun’s arguments that the documents referred to in the said memorandum are relevant to the issue of bias and possibly other grounds of judicial review. It is not necessary for me to come to a final conclusion on this issue because, as submitted by Mr Pun, if leave to apply for judicial review is granted, the Putative Respondent can be trusted to comply with the duty of candour.

6.I appreciate the force of Professor Chan, SC’s argument that the court should refuse to grant leave to apply for judicial review because there is currently an on-going appeal by HKADCP against the decision of Department of Health which granted the accreditation status to the Putative Respondent.  Mr Pun argues, however, that the Applicants are not parties to that appeal, and have no locus to appeal the decision of the Department of Health.  Also, the decision under challenge in the present application is one that was made by the Putative Respondent, whereas the subject matter of the appeal concerns a decision made by the Department of Health.  In my view, there is a sufficiently serious argument raised on the issue of alternative remedies which makes it inappropriate for a final decision to be reached at this stage. The question of whether relief on the present application for judicial review should be refused because of the existence of alternative remedies should be left for further consideration at the substantive hearing.

7.For the foregoing reasons, I am persuaded by Mr Pun to split the rolled-up hearing and grant the Applicants leave to apply for judicial review.  I shall now hear the parties on the directions to be given for the further conduct of this matter.

Mr Hectar Pun, SC, Mr Anson Wong Yu Yat and Mr Jason Kung, instructed by JCC Cheung & Co, for the 1^st and 2^nd Applicants

Mr Johannes Chan, SC and Ms Allison Wong, instructed by Ho, Tse, Wai & Partners, for the Putative Respondent