Pui Hing Sang v. Medical Council of Hong Kong

HCAL 1729/2023

[2024] HKCFI 153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1729 OF 2023

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D E C I S I O N

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A. Introduction

1.By his Form 86 dated 27 September 2023, the Applicant seeks leave to apply for judicial review to challenge what the Applicant says was the decision of the Medical Council of Hong Kong made by its email dated 7 July 2023 to refuse to handle his ‘Internship’.

2.An Internship is a period of assessment in an approved hospital or institution, such that the person being assessed can be registered as a medical practitioner under section 14 of the Medical Registration Ordinance Cap 161 (“MRO”).  The relief sought in the Form 86 is for an order of mandamus, requiring the Medical Council to agree with the Applicant’s Internship application.

3.On 6 October 2023, I gave directions for the Medical Council to have leave to file and serve an Initial Response to the application, and for the Applicant to have leave to file and serve a Reply to the Initial Response.  I also indicated that depending on the contents of those documents, I would decide whether to deal with the application for leave to apply for judicial review on paper, and that I might decide the application on paper without further notice to the parties.

4.The Medical Council’s Initial Response – signed by Ms Carmen Siu, Senior Government Counsel – was filed on 6 November 2023. The Applicant’s Reply was filed on 26 November 2023.

5.Having considered those documents, it seems to me to be appropriate for this application to be decided on paper.  This is my Decision.

B.  Background

6.The MRO underwent a major reform in 1995, after the passing of the Medical Registration (Amendment) Bill 1995 and the Medical Registration (Amendment) (No. 2) Bill 1995.  One of the results of the reform was the abolition of the previous Licentiate Examination, a professional qualification examination prescribed by the earlier pre-amendment version of the MRO (“Old MRO”), and its replacement by a new Licensing Examination to be set by the Medical Council under section 7 of the MRO.

7.Under section 7(1) of the Old MRO, the persons who should be entitled to be registered as medical practitioners included (a) any person who holds a Hong Kong diploma; (b) any person who holds a United Kingdom or Irish diploma or a recognised Commonwealth diploma; and (c) any Licentiate.  The requirements for becoming a Licentiate were set out under section 8A(1) of the Old MRO, being (a) having passed such examinations as may from time to time be determined by the Council (the exam being known as the Licentiate Examination); and (b) having completed the period of assessment provided for in section 10A (known as the “Externship”).

8.The Applicant is not a local medical graduate.  He took and obtained a pass in Part I (Multiple-Choice-Question Paper on Professional Subjects) and Part II (Written Professional English Paper) of the Licentiate Examination on 23 January 1990 and 19 March 1990 respectively.  Part III (Oral Examination) candidates were given 15 minutes oral examination in each discipline and were required to pass in all subjects at one sitting.  The Applicant originally failed Part III in the same year, 1990.  However, he passed Part III of the Licentiate Examination on 19 July 1991.

9.Thereafter, the Applicant was invited by the Licentiate Committee Secretariat (“LCS”) to undergo an 18-month period of Externship in an approved hospital as required by section 8A(1) of the Old MRO.

10.The Applicant commenced his Externship at Kwong Wah Hospital on 2 September 1991.  However, the Externship was terminated by the then Externship Sub-Committee with effect from 3 March 1992, because the Applicant had failed to furnish a satisfactory explanation for his absence from duty without leave or permission since that date.  The Applicant did not lodge any review against that decision.

11.Before commencing his Externship, the Applicant’s name had been recorded in Part IV of the medical register under section 12(1A) of the Old MRO.  As a result of the termination of Externship, the Applicant’s provisional registration was cancelled from Part IV of the medical register kept under the Old MRO.

12.In passing, I note that the Applicant requests – but only in his Reply – that the Court should now rule that the cancellation of his provisional registration in 1992 was illegal.  However, I will not countenance in these proceedings a proposed challenge to (1) a decision which is not identified in the Form 86, and (2) where that decision was made more than 30 years ago (not least in the absence of any good explanation for any part of the delay).  In any event, it is obvious that the purpose of the provisional registration pending completion of the Externship ceased to exist once the Externship was abandoned by the Applicant, so that it was only logical (legally and otherwise) for the provisional registration to cease and/or be cancelled.  The idea that the Applicant should somehow have remained provisionally registered as a medical practitioner in Hong Kong over the past 30-odd years is, with respect, unconvincing.

13.Because the Applicant was not provisionally registered under Part IV of the medical register immediately prior to the commencement of the Medical Registration (Amendment) Ordinance 1995, his name was not transferred to Part II of the General Register by virtue of the transitional provisions in section 35(1)(b) of the MRO.  Hence, section 35(4) is also not applicable to the Applicant, and he would not be treated as if he had passed the Licensing Examination.

14.On 8 June 2023, the Applicant sent an email to the Secretariat of the Medical Council.  It was headed “Inquiring the examination result of Licensing Examination 1991 of [the Applicant]”, and was materially in the following terms (sic):

I sat and passed the Hong Kong Medical Licensing Examination (HKMLE) Part 1 and Part 2 in 1990 and failed Part 3 of 1990.

I took the Part III examine 1991 and passed.  …  I hope to acquire the result of my examination (HKMLE) in 1991 from you so that I can look for a job.

I got an externship in Hong Kong Hospital Authority in 1991.  After half year of externship in the orthopaedics department of Kwong Wah Hospital, I did not continue my externship because of family problems.  I am now eager to continue my internship or externship in Hong Kong in order to be fully registered in Hong Kong.

Please tell me how can I continue my internship in Hong Kong.  I look forward to hearing from you soon.  Thank you for your help and great kindness.

15.By email dated 16 June 2023, the LCS attached the results of the Applicant’s Licentiate Examination in 1990 and 1991.  The email also stated that the Applicant would be informed on the progress regarding further details of his externship, in due course.

16.By email dated 7 July 2023, the LCS further replied to the Applicant as follows (italics in original):

I refer to your email of 8 June 2023 and please find below our reply –

According to our record, you passed the Licentiate Examination in 1991 and commenced your externship training on 2 September 1991. Subsequently, your employment with the Hospital Authority was terminated and your provisional registration had come to an end on 3 March 1992.

It is stipulated in section 12 of the current Medical Registration Ordinance (“MRO”) that –

“(1) A person who has passed the Licensing Examination or a qualifying examination may be provisionally registered, on application to the Registrar and production to the Registrar of evidence to the satisfaction of the Registrar that –

(a) he has been engaged in employment as is mentioned in section 9(1);

(b) he has been engaged to undergo a period of assessment as mentioned in section 10A(1),

…”

In this connection, “Licensing Examination” is defined in section 2 of the current MRO to mean “the examination set by the Council under section 7”.  Since section 7 of the current MRO only came in force after the enactment of the Medical Registration (Amendment) Ordinance 1995, your passes in the Licentiate Examination in 1991 would not be counted towards the fulfilment of the said prerequisite under section 12 of the current MRO.  Therefore, you must apply to sit for and pass all parts of the Licensing Examination before you can apply for provisional registration and to complete such period of assessment as the Medical Council may determine under section 10A of the current MRO.

17.This is the email which the Applicant says contains the intended impugned decision of the Medical Council (“Decision”), which he says was a refusal to handle his Internship.

C.  Intended Grounds of Review

18.The Applicant says that the reason given by the Medical Council for the Decision – namely that his passes in the Licentiate Examination in 1991 would not be counted towards the fulfilment of the prerequisite under section 12 of the MRO – was illegal in four aspects, being:

(1)  Ground 1: The Licensing Examination stipulated in section 7 of the MRO and the Licentiate Examination conducted before the passing of the Medical Registration (Amendment) Bill 1995 are the same exam.

(2)  Ground 2: The professional qualification examination is still organised by the Medical Council, and there is no essential difference between the Licentiate Examination before and the Licensing Examination after the 1995 revision.

(3)  Ground 3: The examination method has not changed, and the Applicant has passed all three examinations.

(4)  Ground 4: The MRO does not require individuals who pass the Licentiate Examination to re-sit the Licensing Examination.

19.It seems to me that Grounds 1, 2 and 3 raise essentially the same point, namely that there is no real difference between the former Licentiate Examination and the current Licensing Examination.  Those three Grounds can conveniently be dealt with together.  Ground 4 is perhaps overlapping but slightly different, and can be dealt with separately.

20.I can address each of the Grounds in turn.  But, before doing so, it is helpful briefly to summarise the Medical Council’s ‘nutshell’ response offered by Ms Siu.  She says leave to apply for judicial review should be refused because:

(1)  The Applicant did not make, and is not required to make, an Internship application to the Medical Council.  As a result, there was no relevant decision of the Medical Council amenable to judicial review and it is inappropriate to grant the relief sought or any form of relief in the circumstances.

(2)  Notwithstanding the above, the Medical Council has correctly interpreted the MRO which requires a person to have passed a Licensing Examination set under section 7 of the MRO.  The former Licentiate Examination is not such an examination.  The Applicant cannot satisfy the requirements for registration prescribed by the MRO unless he takes and passes the Licensing Examination.

(3)  The Licensing Examination replaced the Licentiate Examination.  They are not the same examination in substance, and as intended by the Legislature.

D.  Grounds 1, 2 and 3

21.For the purposes of considering these three Grounds, it is necessary to consider the amendments to the Old MRO, and the intended new/different system brought into effect under the MRO as amended.

22.The purposes of the two amendment Bills were explained to be to revise the composition of the Medical Council and its procedures for transacting business, as well as the system of registration and examination of medical practitioners.

23.Ms Siu has highlighted – I accept, correctly – the changes brought about by the amendments as are most relevant to the present application.  They were as follows:

(1)  section 8A of the Old MRO was repealed, thereby abolishing the examination (which was known as the Licentiate Examination) prescribed under that section;

(2)  a new examination, called the Licensing Examination was introduced by a new section 7(1);

(3)  the category of Licentiate was removed, such that all overseas medical graduates including those from the United Kingdom, Ireland and other Commonwealth countries were required to undertake the Licensing Examination (unless granted an exemption);

(4)  the qualification requirements for registration are set out under section 8 of the MRO, which requires a person to have taken and passed the Licensing Examination and to have completed the period of assessment required under section 10A (i.e. Internship).

(5)  Section 3 of the Medical Registration (Miscellaneous Provisions) Regulation Cap 161D provides that the prescribed period of Internship is 12 months;

(6)  to safeguard the status of the then existing Licentiates and those in the process of achieving that status, a transitional provision was inserted in section 35.  In particular, a person whose name was recorded in Part IV of the register under the Old MRO (as a result of having passed the Licentiate Examination) would be automatically transferred to Part II of the General Register under the MRO, and for the purpose of registration such person would be treated as if he had passed the Licensing Examination.

24.I also accept that, in substance, the content of the Licensing Examination has also been modified from that which was in the Licentiate Examination.  In particular, whilst the format of the previous Part I was retained, Part I of the Licensing Examination was raised to a level comparable to that of Bachelor of Medicine and Bachelor of Surgery (MB BS) examination, and the number of questions was increased from 120 to 240.  Part II was retained, and should be taken by the candidate before Part III, but after having passed Part I.  Part III was revised to a “clinical examination” such that it could be of comparable standard with that of the local medical degree examination – and candidates would be tested on one long case and several short cases.

25.Therefore, it seems to me to be clear that the Licensing Examination was not intended by the Legislature to be the same examination as the Licentiate Examination.

(1)  First, the change was obviously not a mere re-labelling of the examination.

(2)  Secondly, section 8A of the Old MRO described the relevant professional qualification examination as “such examinations as may from time to time be determined by the Council”, whereas section 7(1) of the MRO provides for the newly defined “Licensing Examination”.  Hence, the Licensing Examination is provided for under the MRO, and was not necessarily equivalent to that previously provided for under the Old MRO.

(3)  Thirdly, the very existence of the transitional provision in section 35 emphasises the distinction between the Licentiate Examination and the Licensing Examination.  As Ms Siu submits, had the Legislature intended the Licensing Examination to be the same as or interchangeable with the Licentiate Examination, section 35 would have been redundant.

(4)  In any event, the content of what was the Licentiate Examination has been substantially modified in what is now the Licensing Examination, in particular as regards Part I and Part III.  This has been explained as having been, at least in part, specifically to raise the standard of the exam to be commensurate with the standard of local medical graduates. That further chimes with the fact that the prescribed period of assessment under section 10A(1) of the MRO is 12 months (instead of 18 months), which has been the requirement for local medical graduates.

26.I acknowledge that the then Secretary for Health and Welfare delivered a speech at the second reading of the amendment Bill, emphasising the proposed changes were to abolish the discriminatory rules that allowed automatic registration for those holding British, Irish and certain Commonwealth qualifications.  But – contrary to the submission made by the Applicant – I do not think that meant that there was no intention to abolish the past professional qualification examination and create a brand-new examination.  Indeed, the Secretary for Health and Welfare specifically identified the intention to introduce a universal licensing examination which practitioners seeking registration in Hong Kong will have to pass, no matter where they receive their training, so as to provide a level playing field to those seeking to enter the profession in Hong Kong – and the content of the new Licensing Examination was plainly intended to level the playing field between Hong Kong medical graduates and graduates from every other training location.

27.Lastly, the Applicant is simply incorrect when he suggests that the examination method has not changed.  There are indeed still three Parts to the Licensing Examination, but at least Part I and Part III are not the same exams (or Parts) as the Applicant took and passed in 1990 and 1991.

28.I note the Applicant’s suggestion in his Reply that the Licentiate Examination was “more demanding and stringent” than the new Licensing Examination, but I do not think I need to decide whether that is correct or not, or to go into the detail of the scoring or marking standards which the Applicant has sought to canvas.  This is because, in essence, that suggestion either emphasises the difference between the two examinations, or it simply misses the point that they are not the same.

29.Nor do the transitional provisions in section 35 of the MRO assist the Applicant.  First, the ‘grandfather’ provisions in that section do not mean that the old and new qualification examinations are necessarily equated.  Secondly, the Applicant’s name was not on Part IV of the register kept immediately before the commencement date of the amended MRO, such that his name would have been transferred to Part II of the General Register. Therefore, no such transfer occurred.

30.Grounds 1, 2 and 3 have no merit.

E.  Ground 4

31.The Applicant submits that the MRO does not provide for re-examination for individuals who have passed examination but do not complete their internship, so that the Medical Council’s decision had no legal basis.

32.But, with respect, that submission seems to me to miss the point.  The real point is that the Licentiate Examination undertaken by the Applicant all that time ago does not come within the meaning of the Licensing Examination defined in the MRO.  As already pointed out above, the two examinations are in substance different.  Further, Licensing Examination is defined under section 2 of the MRO as “the examination set by the Council under section 7” of the MRO.  That section specifically identifies that the examination set shall be called the Licensing Examination, and passing it is intended to show the achievement of a standard acceptable for registration under section 8(1)(b) as a medical practitioner. Section 8(1)(b) references the passing of the Licensing Examination and the completion of the period of assessment required under section 10A.

33.As Ms Siu correctly submits, when the Applicant passed the Licentiate Examination, section 7(1) of the MRO had not yet come into effect, so it is a simple fact that the Applicant could not have taken or passed the Licensing Examination whose founding provision had not yet been made law and taken effect.  The previous Licentiate Examination, being “an examination as may from time to time be determined by the Council” under section 8A(1) of the Old MRO is simply not the same examination – see, further, above.

34.Also, contrary to the suggestion made by the Applicant in his Reply, I do not think that the Medical Council has suggested that the Applicant’s test scores for the Licentiate Examination are “invalid” in the sense put forward by the Applicant.  Rather, the Medical Council is simply stating that having passed the Licentiate Examination is not the same as having passed the Licensing Examination as is now required.

35.Indeed further, as Ms Siu also correctly points out, the Applicant is required to be provisionally registered for the purpose of Internship, and the prerequisite for provisional registration is provided for under section 12(1) of the MRO, namely that the person has passed either the Licensing Examination or a qualifying examination.

36.In so far as the Applicant suggests that he has passed “a qualifying examination”, that submission is misplaced.  A qualifying examination is defined under section 2 of the MRO as an examination which has to be passed in order to qualify for the award of a degree specified in section 8(1)(a), namely a degree of medicine and surgery by a university in Hong Kong specified in Schedule 1 of the MRO.  Obviously, the Licentiate Examination is not within that definition.

37.The Applicant cannot (yet) satisfy the prerequisite under section 12(1) for provisional registration.  Further, I have already dealt with above and dismissed the idea that the Applicant should somehow have continued to be provisionally registered over the past 30-odd years, even after the purpose of his provisional registration to complete Externship came to a premature end in March 1992.

38.I accept Ms Siu’s submission that the Applicant’s argument that the MRO did not expressly state that those who passed the Licentiate Examination have to retake the Licensing Examination is untenable.  The combined effect of sections 7, 8, and 35 of the MRO is that those who had passed the Licentiate Examination would not satisfy the criteria under the new provisions, unless they were deemed to have passed the Licensing Examination under section 35(4).  The Applicant does not fall into that category.

39.I see no reasonably arguable unfairness or illegality or procedural impropriety in the change of the law made in 1995, with the transitional provisions specifically potentially to cater for those who had passed the different Licentiate Examination under the previous qualification and registration regime.

40.There is no merit in Ground 4.

F.  Whether Any Decision Amenable to Review

41.In the circumstances that there are no merits in any of the intended Grounds of review, said by the Applicant to identify the illegality in the stance taken by the Medical Council in its email of 7 July 2023, I do not strictly need to deal with whether that email contained any decision even amenable to review.

42.Ms Siu submits that the Applicant’s email of 8 June 2023 was only an inquiry about his Licentiate Examination result, and how he could continue with Internship or Externship.  It was not an actual application for Internship.  Therefore the reply to that email did not constitute a decision refusing an ‘Internship application’, which is the presumed basis of the Applicant’s present application for leave to apply for judicial review.  Ms Siu further submits that, there is in any event no requirement under section 10A of the MRO for the Applicant to make an Internship application to the Medical Council, and that section does not empower the Medical Council either to approve or disapprove any such application.

43.Hence, it is up to the Applicant to apply for provisional registration, and to do so to the Registrar of Medical Practitioners (“Registrar”), as stated under section 12(1) of the MRO.

44.In his Reply, the Applicant argues that (1) his email of 8 June 2023 was to apply for Internship, which was essentially the same as an application for provisional medical registration as stipulated in section 12(1) of the MRO, and (2) the Medical Council’s reply clearly rejected the application in substance.  He says that the Medical Council fully understood his substantive intention was to obtain permission under section 12, and therefore the reply was to deny him that permission, which was an administrative decision and should be subject to review.

45.This is something of a sterile debate.  However, if necessary, I would tend to agree with Ms Siu. From the terms of the Applicant’s email of 8 June 2023 – which I have set out above – the email is an ‘Inquiry’ addressed to the Secretariat of the Medical Council (and, at least not specifically, to the Registrar) and it reads as though it (1) seeks the result of the examinations passed by the Applicant in 1991 and (2) makes an inquiry as to how he could continue his internship in Hong Kong.  I do not think it reads as something amounting to or equivalent to an application for provisional medical registration under section 12(1) of the MRO.

46.In any event, even if it was such an application, it felt to the Registrar (and not the LCS) to respond to any such application, which the Applicant would have known if he had truly intended to make an application under that section.  Hence, he would have known that the reply received was not from the relevant person who should have replied.

47.Lastly, I have already decided above that the Applicant does not appear to have satisfied section 12 of the MRO, and his reliance on having passed “a qualifying examination” entitling him to be provisionally registered is misplaced in light of the statutory definition of “a qualifying examination”.  As to the Applicant’s suggestion in his Reply that there has arguably been a violation of section 6 of the MRO, I disagree.

G.  Result

48.The Applicant has not identified any reasonably arguable grounds of review with any realistic prospects of success.  Therefore, his application for leave to apply for judicial review is dismissed.

49.On the basis that the Medical Council has incurred considerable time and cost in preparing this Initial Response to render assistance at the Court’s invitation, Ms Siu seeks an order that the Applicant should pay the Medical Council’s costs. Though I see some force in that point, in the exercise of my broad discretion as to costs, I will make no order as to costs.

The applicant, acting in person

Ms Carmen Siu, Senior Government Counsel, of the Department of Justice, for the putative respondent