Li Sum Wo v. Medical Council of Hong Kong

HCMP002191/1992

1992, No. MP 2191

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram : The Hon. Mr. Justice Mayo in Court

Dates of hearing: 22 and 23 February 1993

Date of delivery of judgment: 4 March 1993

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J U D G M E N T

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The Applicant seeks to judicially review the determination of the Medical Council (the Respondent) dated the 12th April 1990 that he was guilty of professional misconduct by advertising with a view to promoting his own professional advantage. He seeks an Order of Certiorari to quash the decision.

One matter which can be disposed of immediately is the question of delay. Mr. McNamara for the Respondent accepted that the delay which had occurred would not prejudice his client's rights nor would it be detrimental to good administrative practice. This being the case I accept that this is no longer an issue.

Probably the most satisfactory method of dealing with the very helpful submissions made by Mr. Dykes for the Applicant is to consider each of the main complaints he makes under their separate heads.

1.The withdrawal of the complaint made by Dr. Chow.

Dr. Chow was the original complainant to the Respondent. Following the procedure which is normally adopted, Mr. Brennan, the Secretary for the Respondent requested Dr. Chow to make a statutory Declaration formally setting out the complaint he was making. He did as requested.

It would appear that Dr. Chow then changed his mind and wanted to withdraw his complaint. His solicitors wrote the following letter.

"	PAUL KWONG & COMPANY
Our ref. PK/049/88 Your ref. MC 594/4/E	Solicitors Rooms 602-3, 6th Floor, Kowloon Building, No. 555 Nathan Road, Kowloon, Hong Kong. Tel : 3-325648 (3 lines) Fax: 3-7704956

The Secretary, Date : 29th April 1988 The Medical Council of Hong Kong, 6th Floor, Sunning Plaza, 10 Hysan Avenue, Causeway Bay, Hong Kong. Dear Sir,

Re: Dr.LI Sum-wo

We now act for Dr. David S.S. Chow in place of Messrs. So & Karbhari.

Our instructions is that after further investigation in the matter, Dr. Chow is satisfied (1) that the circular in question was intended to be a private and confidential matter between the doctor and the school principal; (2) that the said circular has never been made public; (3) that in fact the Dr. Chow's reputation has not suffered any damage.

Such being the current state of affairs, Dr. Chow has no further intention to proceed with the complaint and by this letter notify you of his desire to withdraw the same.

Dr. Chow's signature appended hereon confirms his views on this matter.

I confirm the accuracy of the letter.

Signed

Dr. David S.S. Chow"

This was followed subsequently by a letter he wrote himself on the 24 April 1989.

"DR. DAVID S. S. CHOW
Shop G21, KA WAH ARCADE,
YAU TONG CENTRE, KOWLOON.
Tel: 3-478161

24th April 1989

The Chairman, Preliminary Investigation Committee, The Medical Council of Hong Kong, Sunning Plaza, 6th Floor, 10 Hysan Avenue, Causeway Bay, Hong Kong. Dear Sir,

Re: Dr. Li Sum ho

I am aware that in September 1987. I had formally laid a complaint against Dr. Li Sum wo for advertising and canvassing and I further understand that a preliminary investigation Committee will be held on 16th May 1989 to inquire into the matter.

With the advantage of hind sight and having given more thought into the matter, I regret to say that I should not have made the complaint in the first place.

The truth of the matter is as follows :-

a) Dr. Stanley Ma and I intended to have Dr. Li to be our assistant to take care of school medical service for Baptist Rainbow Primary School.

b) I met Dr. Li in March 1987 and discussed with him the school medical service. With the concurrence of Mr. Samuel Leung, principal of Baptist Rainbow Primary School. A.M. Section, I suggested to Dr. Li that he should pay the principal a visit.

c) I learnt from Hr. Leung that Dr. Li did have paid him a visit in March 1987 and during that meeting Mr. Leung had suggested to Dr. Li that Dr. Li should write a letter to the school for its internal records.

d) Dr. Li had not written any letter until 6 months later in August 1987 by which time I had thought Dr. Li was no longer interested in my proposal.

e) When Mr. Leung showed me Dr. Li's letter dated 22nd August 1987, my first reaction was one of anger and I referred the matter to the Medical Council.

f) My memory of the matter had since been refreshed by Dr. Li, Dr. Ma and Mr. Leung and I have no doubt that in writing the letter to the school, Dr. Li did not either advertise or canvass.

I request the Committee to allow me to withdraw all my complaints or to dismiss them.

	Yours faithfully,
	Signed
	Dr. David S.S. Chow"

Notwithstanding these letters being sent to the Respondent a decision was made to carry on with the disciplinary proceedings. Dr. Chow was requested to attend as a witness but did not do so.

At the hearing the Secretary was represented by Crown Counsel who conducted the case on his behalf.

Mr. Dykes submitted that Medical Registration Ordinance Cap. 161 and its subsidiary legislation contemplated an adversarial form of proceeding at the Inquiry and that this being the case the person who initiates them generally has the right to bring them to an end without a hearing on the merits.

Although there was no specific reference to there being a power to withdraw a complaint in the statutory scheme, this should readily be implied as this could be considered as being an incidental feature of the legislation.

Mr. Dykes cited a number of authorities for this proposition but I consider that passage at p.946 of the speech of Lord Lowry in R. v. Richmond L.B.C. 1991 3 WLR 941 to most satisfactorily set out the position.

" In the Court of Appeal Sir Stephen Brown P., delivering the judgment of the court, adverted, at p. 784, to Attorney-General v. Great Eastern Railway Co. and, having set out section 111(1), said, at p. 785:

"Standing by itself, this subsection would not seem to give rise to any particular difficulty. We agree with the Divisional Court that in this subsection the word 'functions,' which is accompanied by no statutory definition, is used in a broad sense, and is apt to embrace all the duties and powers of a local authority: the sum total of the activities Parliament has entrusted to it. Those activities are its functions. Section 111(1) confirms that, subject always to any contrary statutory provision, a local authority has power to do all the ancillary things requisite for carrying out those activities properly. This construction accords with the codifying purpose for which the subsection was enacted."

In this House Lord Templeman said [1991] 2 W.L.R. 372, 383:

"In Attorney-General v. Great Eastern Railway Co., 5 App. Cas. 473, Lord Blackburn said, at p. 481: 'where there is an Act of Parliament creating a corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorise is to be taken to be prohibited; ...' In the same case Lord Selborne L.C. said, at p. 478, that the doctrine of ultra vires: 'ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.' In the same vein Lord Blackburn said, at p. 481: 'those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited.' Section 111 embodies these principles. I agree with the Court of Appeal [1990] 2 Q.B. 697, 785c that in section 111 the word 'functions' embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions."

The observations of my noble and learned friend, Lord Ackner, were to the same effect where he said, at p. 398: "I accept that 'functions' in section 111(1) covers the powers and duties of the local authority under the various provisions of the Act." (Emphasis supplied.)

It is, accordingly, clear that the consideration and determining of planning applications is a function of the council, but the giving of pre-application advice, although it facilitates, and is conducive and incidental to, the function of determining planning applications, is not itself a function of the council."

I have no doubt that Mr. Dykes' proposition is correct.

However, the problem is that this in my view overlooks the statutory provisions contained in the Legislation.

Regulation 9 of The Medical Practitioners Registration and Disciplinary Procedure Regulations establishes a Preliminary Investigation Committee and Regulation 10 requires the Secretary to refer any complaint or information to the Chairman of that Committee.

Regulation 11 and 12 provide :-

" 11. (1) Where, in a complaint or information submitted by the Secretary to the Chairman of the Committee under regulation 10, any allegation is made which in the opinion of the chairman of the Committee gives rise to a question whether a registered medical practitioner has been guilty of misconduct in any professional respect, the Chairman of the Committee may require that the complaint or information be formulated in writing setting out the grounds thereof and, except where the complaint or information is in writing under the hand of a public officer or of the President of the Hong Kong Medical Association supported by one or more statutory declarations as to the facts of the case.

(2) Each statutory declaration referred to in paragraph (1) -

(a) shall state the address and description of the declarant; and

(b) if any fact declared is not within the personal knowledge of the declarant, shall state the source of the declarant's information and the grounds for his belief in the truth of the facts; and

(c) shall be duly stamped.

12 (1) Where a complaint or information is submitted to the Chairman of the Committee by the Secretary, the Chairman of the Committee shall, unless it appears to him that the complaint or information is frivolous or groundless and should not proceed further, direct that the complaint or information be referred to the Committee for its consideration and shall fix a date upon which it is proposed that the Committee shall meet to consider the complaint or information.

(2) Where the Chairman of the Committee directs that a complaint or information be referred to the Committee, he shall direct the Secretary to, and the Secretary when so directed shall -

(a) notify the defendant of the receipt of the complaint or information;

(b) inform him of the substance thereof;

(c) forward to him a copy of any statutory declaration furnished under regulation 11(1);

(d) inform him of the date upon which the Committee is due to meet for the purpose of considering the complaint or information; and

(e) invite him to submit to the Committee any explanation of his conduct or of any other matter alleged in the complaint or information which he may have to offer"

I find myself in agreement with the submission made by Mr. McNamara that it is evident from these Regulations that once a complaint has been submitted to the Secretary for the Respondent the statutory provisions have to be complied with and in effect the Respondent takes over the conduct of the Inquiry. The Chairman of the Preliminary Investigation Committee decides whether the complaint is frivolous or groundless and if it is not the matter is then referred to the Committee. The following Regulations then provide how the matter proceeds.

I accept that the drafting of the Regulations leaves much to be desired. For example, Regulation 22 clearly envisages that "the complainant" still has a role in the proceedings. Having regard to the procedure I have referred to this would appear to be rather unrealistic as the complainant is to a large extent relieved of an active role after the Secretary has become seized of the complaint.

Mr. Dykes referred to "the vanishing complainant" and it seems to me that this is a justified criticism. Notwithstanding this I have no doubt that the role of the complainant is a limited one and that in reality once a complaint is made it is mandatory to adhere to the scheme laid down in the Regulations.

The fact that the complainant may wish to withdraw the complaint is not relevant to the procedure which is outlined. It is perhaps noteworthy that after Dr. Chow's retraction the complaint was referred back to the Committee pursuant to Regulation 16 but still the proceedings went forward.

I do not consider that this ground has been made out by the Applicant.

2.The Appointment of the Legal Officer.

Regulation 22(a) is as follows :-

" 22. Subject to the provisions of regulations 20 and 21, the following order of procedure shall be observed -

(a) the complainant in person or his solicitor or counsel, or in their absence, or if there is no complainant, the Secretary of the Council, shall present the case against the defendant and adduce evidence in support thereof and shall close the case against the defendant:

Provided that, on the application of the Chairman, the Attorney General may appoint a legal officer within the meaning of the Legal Officers Ordinance to carry out the duties of the Secretary in respect of that inquiry in the absence of the complainant and his solicitor or counsel;"

Mr. Dykes submitted that though Dr. Chow was summoned to appear he did not do so. His non attendance could not have been known until the commencement of the hearing. Accordingly, the proviso could not lawfully be invoked as there were no grounds for supposing that the complainant would not attend and conduct the proceedings himself.

If Dr. Chow had attended he would have been entitled to present the case against the Applicant and no doubt this would have led to a conflict on the facts of this case.

In the event that Dr. Chow did not proceed with the case the Applicant could have applied to the Council to dismiss the complaint for want of prosecution.

This submission is in my view combined with the contentions advanced on the first ground. I believe that the role of the complainant has been misconceived in the light of the provisions contained in the Regulation. I consider it is possible to read the proviso to Regulation 22 in such a way that Crown Counsel could be instructed to appear without the necessity of awaiting to ascertain whether the complainant would appear at the hearing.

3.The failure to give reasons for the Decision.

Mr. McNamara outlined the relevant law on this. He referred to the Judgment of Gibbs C.J. in Public Service Board of N.S.W. v. Osmond 1986 Vol. 60 Austr. L.J.R. 209 at p.211 :-

" With the greatest respect to the learned Judges in the majority in the Court of Appeal, the conclusion which they have reached is opposed to overwhelming authority. There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons. That this is so has been recognised in the House of Lords: Sharp v. Wakefield [1891] A.C. 173 at 183; Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997 at 1032-1033, 1049, 1050-1054 and 1061-1062 and the Privy Council: Minister of National Revenue v. Wrights' Canadian Ropes Ltd [1947] A.C. 109 at 123; in those cases, the proposition that the common law does not require reasons to be given for administrative decisions seems to have been regarded as so clear as hardly to warrant discussion. More recently, in considered judgments, the Court of Appeal in England has held that neither the common law nor the rules of natural justice require reasons to be given for decisions of that kind: Reg. v. Gaming Board; Ex parte Benaim [1970] 2 Q.B. 417 at 430-431; Payne v. Lord Harris [1981] 1 W.L.R. 754 at 764, 765; 2 All E.R. 842 at 850-851. It has similarly been held that domestic tribunals are not bound to give reasons for their decisions; see Mclnnes v. Onslow-Fane [1978] 1 W.L.K. 1520; 3 All E.R. 211 and earlier authorities collected in Pure Spring Co. Ltd. v. Minister of National Revenue [1947] 1 D.L.R. 501 at 534-535.

The contrary view appears to have been expressed by Lord Denning M.R. in Breen v. Amalgamated Engineering Union [1971] 2 Q.B. 175, but that was a dissenting judgment and if it was intended to suggest that reasons must be given for the decision of a statutory or domestic body whenever the circumstances make it fair to do so it is inconsistent with Reg. V. Gaming Board; Ex parte Benaim, in which the judgment of the Court was written by Lord Denning M.R. himself, and with Payne v. Lord Harris, a decision to which Lord Denning M.R. was a party. In Breen v. Amalgamated Engineering Union Lord Denning M.R. at 190-191, was discussing together three questions which, although they may be connected by the facts of a particular case, are in principle distinct - whether the statutory or domestic body should give reasons for its decision, whether the person likely to be affected by a decision should be given an opportunity to be heard before the decision is made and whether if a decision were given without reasons the court might infer that no good reason existed. Where the rules of natural justice require that a body making a decision should give the person affected an opportunity to be heard before the decision is made, the circumstances of the case will often be such that the hearing will be a fair one only if the person affected is told the case made against him. That is quite a different thing from saying that once a decision has been fairly reached the reasons for the decision must be communicated to the party affected. As the judgments in Padfield v. Minister of Agriculture, Fisheries and Food show, the fact that no reasons are given for a decision does not mean that it cannot be questioned; indeed, if the decision maker does not give any reason for his decision, the court may be able to infer that he had no good reason. That, again, is quite a different question from that which now concerns us."

This Judgment was accepted as good authority by the Court of Appeal in Lau Tak Pui & Others v. lmmigration Tribunal 1992 1 HKLR 374. Sir Derek Cons had this to say at p.382 :-

"It is well established that the common law, which enshrines the principles of natural justice, does not of itself require a public law authority or tribunal always, or even usually, to give reasons for its decision. The reported authority to that effect was said by Gibbs, C.J. in Public Service Board of New South Wales v. Osmond [1986] 60 ALJR 209 at 211, to be overwhelming. Nevertheless he accepted that notwithstanding the lack of any general obligation, circumstances might establish a special case in which natural justice would require reasons to be given. I take the recent case of R. v. Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310, upon which Mr. McCoy so fervently relies, to be no more than an illustration of such a special case, the majority finding appropriate circumstances in the operation of the Board in general, Leggatt, L.J., confining himself to those which pertained to Mr. Cunningham alone.

Authority for such a special case is to be found in the oft-quoted words of Lord Bridge in Lloyd v. McMahon [1987] AC 625 at 702-703:

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.""

Mr. Dykes did not disagree with this as being a correct statement of the law. He did, however, submit that the circumstances of the present case were such as to constitute "a special case in which natural justice would require reasons to be given". In support of this submission he argued that it was difficult or perhaps even impossible to prosecute an appeal unless his client knew what constituted "advertising" and "solicitation".

I do not consider that this submission is well founded. The issues ventilated before the Respondent were of a narrow compass. He was aware of the letter which was the subject of the complaint and of the nature of the charge brought against him.

Bearing in mind that this was basically an informal body and that the Applicant had the advantage of legal representation, I do not think that this was the type of situation which could be described as an exceptional case. The application cannot succeed on this ground.

4.Judicial Review and alternative remedies.

The speech of Lord Scarman in Ex parte Preston 1985 AC 835 at p.852 contains the classic exposition on when Judicial Review may be appropriate.

" My fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision. In the first part of his speech my noble and learned friend, Lord Templeman, has set out in detail the ample appeal procedures available to a taxpayer aggrieved by a decision of the commissioners to exercise their powers and duties under Part XVII of the Act of 1970 to counteract a tax advantage alleged to have been obtained by him.

But cases for judicial review can arise even where appeal procedures are provided by parliament. The present case illustrates the circumstances in which it would be appropriate to subject a decision of the commissioners to judicial review. I accept that the court cannot in the absence of special circumstances decide by way of judicial review to be unfair that which the commissioners by taking action against the taxpayer have determined to be fair."

This case was considered a year later by the Court of Appeal with approval. At p.435 of Ex parte Calveley 1986 1 Q.B. 424 May L.J. says :-

" I respectfully agree with the Divisional Court that the normal rule in cases such as this is that an applicant for judicial review should first exhaust whatever other rights he has by way of appeal. In Reg. v. Inland Revenue Commissioners, Ex parte Preston [1985] A.C. 835, 852, Lord Scarman said:

"My fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision."

In the same case Lord Templeman, with whose speech all the other Law Lords agreed, said, at p. 862c: "Judicial review should not be granted where an alternative remedy is available."

To a normal rule there will of course be exceptions. One of these was exemplified in the decision of the Divisional Court in Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd. [1974] Q.B. 720 upon which counsel for the applicants relied and to which Glidewell L.J. referred in his judgment in Ex parte Waldron [1985] 3 W.L.R. 1090. The former was a case in which a planning authority had granted planning permission for the residential development of a particular parcel of land but had sought to impose conditions upon that permission which in the view of the Divisional Court were clearly illegal. After setting out the facts, Lord Widgery C.J. considered in his judgment whether judicial review would go at all to control the activity of a local planning authority. He concluded that it would and said, at p. 728: "In particular, it has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy."

However, in my view it would be wrong to conclude from this dictum that in every case where there is an alternative remedy, but one which is not as effective or as convenient as certiorari, this alone is enough to enable the court to put the alternative remedy on one side and to grant judicial review. This I think is clear from the following passage from Lord Widgery C.J. 's judgment in the Royco Homes case. He had considered the system of appeals in planning cases and why in many instances the statutory appeal route was the more convenient to follow, but he then returned to the question of speed and costs, at p. 729:

"An application for certiorari has, however, this advantage: that is speedier and cheaper than the other methods, and in a proper case, therefore, it may well be right to allow it to be used in preference to them. I would, however, define a proper case as being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law. Given those facts, I can well see that it may be more efficient, cheaper and quicker to proceed by certiorari, and in those cases when they arise it seems to me proper that that remedy should be available.""

It would appear that it is necessary to have regard to all the circumstances. In this connection it must be borne in mind that the Applicant is at the present time prosecuting an appeal against the Determination, albeit somewhat tardily. There can be no doubt that by virtue of being a Doctor the Applicant has no choice but to submit to the Respondent.

The question which in my view has to be considered is whether the Applicant would be able to obtain Justice if he follows the normal appeal process. While I appreciate that some of the matters which have been raised may fall outside the purview of matters usually considered in such appeals I am not satisfied that it was necessary for the Applicant to proceed by way of Judicial Review. One effect of proceeding in this way is to effectively provide the Applicant with 2 separate opportunities of raising what essentially amount to the same matter. I do not think that this is a case where he should be permitted to do this. I would have declined to grant the Applicant relief on this ground alone.

I have now covered all of the separate issues which were raised by the Applicant. For the reasons I have given I would dismiss this application. I propose making an order nisi that the Respondent is to have its costs.

Representation:

Mr. P.J. Dykes inst'd by Paul Kwong & Co. for Applicant.

Mr. John McNamara & Ms. Paula Scully inst'd by Attorney General's Chambers for Respondent.