Sze Hei Fa Helena v. Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong
Read the full judgment text of HCAL 10/2003 on BabelCite. This High Court CFI judgment was delivered on 18 July 2003.
1. This is an application of the Applicant, a Chinese medicine practitioner, for judicial review of the decision of the Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong.
Cited by 8 cases · Cites 3 cases
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HCAL000010/2003 HCAL 10/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST __________
__________ Coram: Deputy High Court Judge A Cheung in Court Date of Hearing: 23 June 2003 Date of Judgment: 18 July 2003 _______________ J U D G M E N T _______________ 1.This is an application of the Applicant, a Chinese medicine practitioner, for judicial review of the decision of the Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong. 2.In 1989, the Working Party on Chinese medicine was set up with a view to introducing a comprehensive regulation of the profession of Chinese medicine practitioners. In 1995, the Preparatory Committee on Chinese medicine appointed to make recommendation on the regulation conducted an enrolment exercise to survey the number and profile of Chinese medicine practitioners. In 1997, a consultation exercise on the proposed regulatory measures was conducted. In February 1999, the Chinese Medicine Bill was introduced to the Legislative Council. On 14 July 1999, the Chinese Medicine Ordinance (Cap. 549) was enacted. 3.The Ordinance, inter alia, provides for: establishing a Chinese Medicine Council of Hong Kong ("the Council") (section 3); establishing a Chinese Medicine Practitioners Board of the Council ("the Practitioners Board") (section 12(a)); registration of Chinese medicine practitioners (Part VII); transitional arrangements for Chinese medicine practitioners (Part IX); and appeals against certain decisions of the Board (section 97). 4.In August 2000, the Council published a "Handbook for the Registration of Chinese Medicine Practitioners", which contained information for those who wished to apply to be registered through the transitional arrangement provisions. 5.The Applicant was born in Hong Kong in 1957. According to the Applicant, in 1984, she started to learn Chinese medicine under a master, Mr Law Saint Wan, a Chinese medicine practitioner. From 1984 to 1989, she practised Chinese medicine under the supervision and instruction of Mr Law. In 1986, the Applicant started attending the Ching Wah Chinese Medical Institute in the evenings on a part-time basis. In August 1989, the Applicant successfully completed a three-year comprehensive course in the theory and practice of Chinese medicine at the Institute, and completed the prescribed period of bedside practice at the Institute. After graduation, the Applicant practised independently as a Chinese medicine practitioner in the employ of her master at his clinic. In April 1990, the Applicant applied for a business registration certificate to continue her practice in Chinese medicine as a sole proprietress at her master's clinic. In September 1999, the Applicant set up her own clinic. 6.Part VII of the Ordinance, as mentioned above, deals with registration of Chinese medicine practitioners. Section 59 provides that the Practitioners Board established under section 12(a) of the Ordinance shall set and conduct an examination ("the Licensing Examination"), the passing of which shall qualify a person to apply to be registered as a "registered Chinese medicine practitioner" in Hong Kong. 7.Section 67 reads as follows:
8.Section 68 sets out the administrative procedure for making an application for registration. Section 69 reads:
9.Section 70 sets out various grounds (such as criminal conviction, professional misconduct, fraud and misrepresentation) based on which the Practitioners Board may refuse to approve the application of a person for registration. Section 71 deals with cases involving previous conviction and professional misconduct. 10.As mentioned above, Part IX contains the "Transitional arrangements for Chinese medicine practitioners". Sections 90, 92, 93 and 94 read as follows:
11.It is reasonably clear from the above provisions that existing Chinese medicine practitioners may take advantage of the transitional arrangements in a number of ways. However, in order to be able to do so, he must first be practising Chinese medicine on 3 January 2000 and must apply to the Practitioners Board for his name to be included in the list of Chinese medicine practitioners; he must also pay the prescribed fee: section 90(1). 12.Once his name is entered on the list, the Practitioners Board will be under a statutory duty to make assessment in relation to his qualifications: section 90(2). Such a listed Chinese medicine practitioner may, depending on his qualifications and experience, take advantage of the transitional arrangements in basically 5 different ways (categories I to V respectively):
13.In the present case, the Applicant successfully got her name entered on the list of Chinese medicine practitioners. However, according to the Applicant's Form 86A,
14.In other words, the Applicant put forward a case under category IV above. In those circumstances, the Practitioners Board duly determined that the Applicant was exempted from the Licensing Examination, but had to undergo and pass the registration assessment under section 94. The decision was communicated by the Board to the Applicant on 5 September 2002 by letter. 15.According to the Applicant, by the end of September 2002, she learned from other practitioners and realised for the first time that the practising experience she gained when she was employed by Mr Law would also be accepted as practising experience of Chinese medicine within the meaning of the Ordinance. She learned that as a matter of fact, the period during which a person practised as an employed practitioner would be counted by the Practitioners Board when it assessed that person's experience. 16.Therefore, by a letter dated 16 October 2002, the Applicant through her solicitors wrote to the Council to point out the mistake that she had made in her application form for entry of her name on the list, submitted further documents in support of her claimed earlier experience and practice in Chinese medicine, and asked the Practitioners Board to reconsider her case. 17.On 23 November 2002, the Practitioners Board wrote in reply to set out the reasons for its assessment. It also advised the Applicant that her request for a reconsideration of her case was refused on the ground that there is no statutory provision for review or appeal against the determination by the Practitioners Board in question under the Ordinance. 18.In these proceedings, the Applicant does not challenge the original determination or assessment by the Practitioners Board under section 92 of the Ordinance, by which the Applicant is exempted from the Licensing Examination but is required to undergo and pass the registration assessment (i.e. category IV above). The Applicant accepts that on the case and material put forward by the Applicant at the material time, the determination was correctly made. Rather, the Applicant seeks to challenge the later decision of the Practitioners Board, as communicated in its letter dated 23 November 2002 to the Applicant, that it has no power to revisit the situation notwithstanding the mistake alleged to have been made by the Applicant. The Applicant seeks relief accordingly. 19.In my judgment, it is important to define the issue precisely. First, the issue raised is not whether the Applicant has, as a matter of fact and evidence, been practising Chinese medicine for a continuous period of not less than 10 years prior to 3 January 2000. Certainly this is the Applicant's assertion in the present proceedings, in support of which she has put in evidence. The position is not accepted by Mr Ambrose Ho SC, counsel for the Respondent. But Mr Ho does not go so far as to argue that on the material before this Court, the assertion of the Applicant is unbelievable or should not be believed. This question need not be decided in these proceedings. 20.Secondly, the issue raised in these proceedings is not the general question of whether the Practitioners Board has the power to review its determination under section 92 generally. In this regard, Chu J has on three occasions said that no such power to review generally exists: 洪作炅訴香港中醫藥管理委員會中醫（註冊）組HCAL 128/2002 (24 October 2002); 陳厚裕訴香港中醫藥管理委員會HCAL 9/2003 (20 June 2003); 黃華安訴香港中醫藥管理委員會HCAL 18/2003 (20 June 2003). 21.Rather, the issue raised in the present proceedings is a very narrow one: whether the Practitioners Board has the power to reconsider its determination or assessment under section 92 of the Ordinance if the determination or assessment was based on or affected by a material mistake of fact (or mixed law and fact). In none of the three cases dealt with by Chu J was any mistake of fact involved or alleged to have been involved by the applicants. Rather, the cases were concerned with applicants who were dissatisfied with the determination or assessment of the Practitioners Board and who sought to adduce further material in an attempt to persuade the Board to change its mind. 22.It is the Applicant's contention that the Practitioners Board does indeed have such a power to revisit the situation if the original determination or assessment was based on or affected by a material mistake of fact. The Board was therefore wrong in refusing to even consider reviewing the case on the erroneous ground of lack of jurisdiction. For this reason, as I said, it is unnecessary to determine in the present proceedings whether the alleged mistake was actually made (as to which the Respondent has not put forward any real challenge in these proceedings), or whether the Applicant had really been practising for over 10 years immediately prior to 3 January 2000 as claimed. 23.Once the issue raised in these proceedings is properly narrowed down, the picture becomes clearer. A general review of the statutory framework and the provisions of the Ordinance, particularly those express statutory provisions regarding review and appeal, and the legislative background of the whole Ordinance, is of some general, but also only limited, assistance. It is true that the Ordinance contains express provisions for review of a number of decisions: see for instance, section 66 (review of decision in relation to the Licensing Examination), section 96 (review of the result of registration assessment), section 140 (review of a number of decisions made by the Chinese Medicine Committee or the Chinese Medicine Traders' Committee), section 97 (appeals against the decision of the Practitioners Board made under various provisions), and section 141 (appeal to the Court of First Instance against the decision of the Medicine Board made under various sections). It is true that the determination or assessment of the Practitioners Board under section 92 is not amongst the many decisions that the Ordinance expressly provides an aggrieved person may apply to review or appeal against. 24.It is also true that the number of (as it were) pre-existing Chinese medicine practitioners is great - over 8,000 persons applied for entry of their names on the list of Chinese medicine practitioners and about 8,000 of these applicants successfully got their names so entered on the list and thus required the assessment of the Practitioners Board in relation to their qualifications. A general right to review, after a determination or assessment has been made, on application by a dissatisfied listed Chinese medicine practitioner may create an intolerable or unworkable workload for the Practitioners Board, and thus may not have been the intent of the legislature in enacting the Ordinance. 25.Likewise, the transitional nature of the provisions under Part IX of the Ordinance which caters for the status quo also tends to suggest that there cannot be a general right of review after the determination or assessment by the Practitioners Board. 26.The above considerations, which have been succinctly submitted by Mr Ho, do tend to support his proposition that there is no right to review. 27.But one is concerned with a very peculiar situation in the present case. This is not a case where an applicant, who is not satisfied with the determination or assessment of the Board, and who has by correspondence obtained the reasons for the determination or assessment of the Board, seeks to put forward further arguments or submit further material and evidence to rebut or argue against the reasons of the Board, with a view to persuading the Board to change its mind. 28.This is a case where the Applicant says that she made a fundamental mistake from the outset, which resulted in her putting forward a wrong case, i.e. claiming herself to have been practising for 9 years and 9 months only, thus effectively placing her case within category IV. In other words, because of the mistake she was labouring under, she never put forward her true case, i.e. a case under category III - and the Practitioners Board never made any determination on her true case. 29.In my judgment, even in the absence of a general right to review, there is leeway to suggest that when a determination or assessment was based on or affected by a material mistake of fact, the Board has the power or jurisdiction to review the matter after the mistake has come to light. 30.This is indeed the contention of Mr Pun, counsel for the Applicant. Mr Pun relies on two provisions in the Interpretation and General Clauses Ordinance (Cap. 1) to overcome the absence of express provisions for review in the Ordinance. Sections 39 and 46 of the Interpretation and General Clauses Ordinance read as follows:
31.Section 46 of the Ordinance does not seem to have any English equivalent. But I tend to agree with Mr Ho that the section does not really assist the Applicant because it basically deals with public instruments. Although sections 92(2)(a) and 93 of the Ordinance refer to a listed Chinese medicine practitioner being "exempted" from the Licensing Examination, I am not persuaded that section 46 (which refers to "exemption") applies. One is concerned with whether a listed Chinese medicine practitioner is qualified to be exempted from the Licensing Examination by reason of the standard that he has attained - a matter to be determined by the Practitioners Board; one is not concerned with an "exemption" as such. In other words, one is concerned with a determination which may subsequently manifest itself in the form of an instrument, one is not concerned with the instrument itself. 32.As regards section 39, which does have an English equivalent (Interpretation Act 1978, section 12), this conveniently brings me to the crux of the issue. According to authorities, even in the absence of an express power to review, an administrative body may in certain circumstances re-open a decision on the ground of mistake and the like. The matter has been discussed in some detail in Wade, Administrative Law (8th ed) 235 to 236:
33.In my judgment, the present case does not involve a power of a continuing character. Rather, it involves a power which, once exercised, is expended so far as concerns the particular case. Nor is one concerned with a case where there is a power to decide questions affecting private rights but where there is also an inherent power to vary an order or power to entertain fresh proceedings and make a different decision, such as a power the exercise of which is based on policy which is essentially variable. One is not concerned with a case of correcting accidental mistake, fraud, or miscarriage of justice either. 34.However, Wade refers to an exception which concerns not the determination of an individual's pre-existing right, but rather the exercise of a discretion conferring on an individual a benefit which he or she otherwise would not have enjoyed. 35.This distinction is of crucial importance in the present case. 36.In Re 56 Denton Road, Twickenham [1953] Ch 51, the War Damage Commission classified the plaintiff's house as a "partial loss" in 1945. In 1946, the Commission tried to re-classify the house as a "total loss", which (interestingly) would have entitled the plaintiff to less compensation under the relevant legislation. The court held that the Commission could not do so. Vaisey J enunciated the principle as follows (at pages 56-57):
37.In Rootkin v. Kent County Council [1981] 1 WLR 1186, the Court of Appeal distinguished Re 56 Denton Road. In Rootkin, the council committee had a wide discretion under section 55(2) of the Education Act 1944 to pay the transportation expenses of students. But because of the provisions in section 39 of the same Act, it effectively had (as per case law) a statutory duty to do so if the distance between the student's home and school was 3 miles or more. Originally, the applicant's daughter was issued with a season ticket on the ground that the distance between school and home was more than 3 miles. Subsequently it was discovered that the measurement was wrong, and the distance was about 175 yards less than 3 miles. The council committee reviewed the whole matter and decided not to issue a season ticket. The Court of Appeal held that the Committee had the right to do so. Lawton LJ said (at pages 1194G-1195D):
38.Eveleigh LJ agreed and said (at page 1197B-C):
39.In short, the Court of Appeal treated the case (on its true - as opposed to mistaken - facts) as one involving the exercise of a discretion by the council committee to confer a benefit on the applicant's daughter pursuant to its power under section 55(2) of the Education Act 1944, rather than a determination of the legal right of the applicant's daughter to the season ticket. Accordingly, the principle of irrevocability did not apply and the council committee was entitled to re-open the matter and consider how to exercise its discretion under section 55(2). 40.Wade (in the above extract) accepted Rootkin as providing a particular type of situations where an administrative tribunal may revisit its decision on the ground of mistake. 41.The two English decisions were examined in detail by M. Akehurst in Revocation of Administrative Decisions [1982] PL 613 (referred to by Wade on page 235 footnote 34). The learned author accepted the distinction drawn by the Court of Appeal in Rootkin, i.e. a determination of an individual's pre-existing legal right, as opposed to the exercise of a discretionary power. 42.The learned author analysed the situation (at pages 623-624) and concluded (at pages 626-627) as follows:
CONCLUSIONS
43.Mr Ho does not seek to challenge the above exposition of the law. For my part, I accept the learned author's analysis. 44.In the circumstances, the absence of an express power to review in the Ordinance should not necessarily be fatal in the present context. Moreover, as a matter of statutory interpretation of the Ordinance, there is room for construing the Ordinance as empowering the Practitioners Board to review its own decision in case of mistake, if the decision involves not the determination of an individual's pre-existing right, but rather the exercise of a discretion conferring a benefit on an individual which he otherwise did not have. 45.The next question is therefore the nature of a determination or assessment under section 92 of the Ordinance. Although "may determine" is used in the opening sentence of section 92, neither counsel argues that the Practitioners Board has any "discretion" to exercise here in respect of the assessment, in the sense that if the practitioner should fulfil both requirements (a) and (b) in section 92(1), the Practitioners Board may still have the power to make an adverse determination or assessment against the practitioner under section 92(1). The evidence filed does not suggest that a discretion in that sense is perceived to be in existence in practice either. 46.It is clear that section 92 must be read together with section 93 in the present context. On the face of it, reading the two sections together, one is concerned with the determination of a person's pre-existing legal right. In other words, the Practitioners Board is required to determine whether the listed Chinese medicine practitioner is qualified to be exempted from the Licensing Examination under section 93 by reason of 15 years' continuous practice or no less than 10 years' continuous practice plus the relevant qualification in Chinese medicine practice. 47.In short, the determination or assessment deals with the listed Chinese medicine practitioner's qualification "to be registered under section 69" as per section 92(1). No discretion is involved. Nor is one conferring on the listed Chinese medicine practitioner a benefit which he would not otherwise have possessed. 48.However, I must not overlook the fact that section 92 (and for that matter, sections 93 and 94) are just part of a larger picture of registration provided under Part VII of the Ordinance. Indeed, as has just been pointed out above, section 92(1) refers back to section 69 of the Ordinance. But the reference in section 92(1) to a person's being "qualified to be registered under section 69" should not mislead one into thinking that the registration under section 69 is a purely administrative or mechanical procedure. As has been pointed out earlier on, section 69 confers a discretion on the Practitioners Board to approve an application for registration. Being qualified to apply for registration is not equivalent to being entitled to be registered or registration itself. Section 69 is expressly subject to sections 70 and 71, which provide for situations where the Practitioners Board may refuse registration even though the person is qualified to apply. Furthermore, section 69(2) specifically gives the Practitioners Board the power to impose conditions and restrictions on the practice of a practitioner after registration who has been exempted from the Licensing Examination under section 93. 49.In Rootkin, there was no express statutory provision for the measuring by the council committee of the actual distance between school and home. However, depending on the distance, the council committee would decide how the applicant's case should be categorized and whether he or she should be given a season ticket as a matter of statutory duty (if the distance was 3 miles or more) or as the case may be (i.e. if the distance was less than 3 miles) as a matter of discretion. In Rootkin, nobody queried the council committee's power to re-measure the distance; the focus of contention was whether the council committee could, based on the re-measured distance, go back on its earlier (purported) performance of duty in granting the season ticket, and exercise its discretion instead under section 55(2). The Court of Appeal simply assumed (implicitly) - apparently regarding the point as trite - that firstly, the council committee had the power by necessary implication to measure and thus determine the distance between school and home, and secondly, it had the power (where appropriate) to re-measure and re-determine the distance between school and home. 50.In the present case, there is an express provision about the determination of the practitioner's years of practice (which is conceptually speaking equivalent to the distance between school and home in Rootkin): sections 92(2)(a) and 93. And the focus of contention is whether the Practitioners Board has the power to re-determine the length of practice (which is equivalent to the re-measuring of the distance between school and home in Rootkin). In a sense, in the present case, one has not reached the same stage of the scheme of things that the applicant had reached in Rootkin when she sought judicial review of the council committee's decision. 51.In my view, the answer must lie in the substance rather than the form of the matter. 52.The fact that section 92 (and sections 93 and 94) form part of a larger picture of registration under Part VII, the focal point of which in the present context is section 69, which involves the exercise of a discretion by the Practitioners Board, is of crucial importance in the present case. In my judgment, the determination under section 92 (by the Practitioners Board) is merely a preliminary step and forms part of the process by which the Practitioners Board decides (under sections 69 to 71) whether to exercise a discretion (whether conditionally or unconditionally) in favour of a listed Chinese medicine practitioner by registering him as a registered Chinese medicine practitioner, thereby conferring on him a benefit to be able to continue practising Chinese medicine in Hong Kong pursuant to the Ordinance (even after the expiry of the transitional arrangements). Viewed in that light, the determination of the Board under section 92 is not so much the determination of an individual's pre-existing right; rather it is merely a preliminary step in the process whereby the Practitioners Board's discretion is sought to be exercised by the individual for registration as a registered Chinese medicine practitioner pursuant to the registration provisions in the Ordinance. Thus analysed, the principle of irrevocability does not apply here and there is room for a re-determination of the necessary basic facts premised on which the Practitioners Board may ultimately exercise its discretion, and by the same token, a re-exercise of the discretion itself (where appropriate), on the ground of mistake. 53.Of course, as has been pointed out by Akehurst, the power to review based on mistake may be varied by the legislation itself. In the present Ordinance, I can discern no good reason for denying the Practitioners Board the power to re-visit its determination or assessment under section 92(1) (if it involves a determination under sections 92(2)(a) and 93) in the case of a genuine and basic mistake such as the one alleged to be involved in the present case. As the facts in Rootkin demonstrated, the mistake could be made by either side - the practitioner or the Practitioner Board, which if left uncorrected, could work injustice either way, depending on the facts. This is so particularly when mistake, unlike fraud or misrepresentation, is not a ground for refusing an application for registration under sections 69 and 70: see section 70(a) to (d). 54.Moreover, no opening of any floodgate need be feared here, as one is concerned with a very basic or fundamental (alleged) mistake in the present case. This is not a case where a listed Chinese medicine practitioner seeks to argue that he or she has mistakenly thought that some documents or information were not material to the categorisation and therefore has failed to supply them to the Board, or that he or she has simply by mistake omitted to submit certain useful or relevant information or material. The alleged mistake involved in the present case is much more fundamental or basic: the Applicant claims that she has by mistake incorrectly categorised her own case in the application form by (literally) ticking the wrong box (for practitioners who have a period of continuous practice of less than 10 years). 55.In those circumstances, I can see no sufficient warrant for ascribing to the legislature an intention to deny the Practitioners Board a power to re-visit the determination or assessment on account of mistake. Instead, I would conclude that the Practitioners Board has the necessary power to re-visit its own determination or assessment under section 92 (if it involves a determination under sections 92(2)(a) and 93) in a case of mistake. 56.In Rootkin, the mistake involved was a mistake of fact. It related to whether the distance between the applicant's home and his daughter's school was less than 3 miles or not. On the facts of the present case, the mistake or more correctly the alleged mistake is slightly more complicated, namely, whether the Applicant's continuous period of practice in Chinese medicine counting backwards from 3 January 2000 was less than 10 years or not, bearing in mind all the time the meaning of "practising Chinese medicine" as defined in section 2 of the Ordinance. 57.But in my view, the alleged mistake is no different from the hypothetical situation, borrowing the general facts in Rootkin, where a student's parent mistakenly thought that the distance between home and school was less than 3 miles "measured by the nearest available route" (per section 39(5) of the Act) - and the mistake was caused by his incorrect understanding of how one determined and measured the "nearest available route", and on that basis put forward his application for a season ticket before the council committee. In my judgment, in such a hypothetical situation, the parent should be entitled to ask the council committee to re-open the matter once the mistake was discovered. 58.In any event, Akehurst not only discussed the effect of a mistake of fact, but also discussed the effect of a mistake of law (at pages 621-622). The learned author suggested that following the decision in Rootkin, it would be possible to argue by analogy that the power of revocation also applies to errors of law in cases concerning the exercise of a discretion (contrary to previous case law based on Re 56 Denton Road). 59.I would not classify the mistake alleged by the Applicant in the present case as a mistake of law. Rather it is an alleged mistake of mixed law and fact at most, if not simply a mistake of fact. In my judgment, the same reasoning should apply with equal force to a mistake of mixed law and fact. 60.For all these reasons, I am of the opinion that the Practitioners Board was wrong in concluding that it had no power to revisit its determination or assessment under section 92 on the ground of mistake (as alleged by the Applicant). The Board ought to have considered whether to entertain the allegation of mistake (not as a matter of jurisdiction but as a matter of an exercise of its discretion and power) and if the answer was in the affirmative, it ought to have considered and determined whether the alleged mistake was real, and again if the answer was in the affirmative, it ought to have considered the further material and information submitted by the Applicant in order to determine which category her case should fall within. 61.In the circumstances, I make an order of certiorari to bring up and quash the decision of the Practitioners Board contained in its letter dated 23 November 2002 refusing the Applicant's request to reconsider its earlier decision or assessment under section 92. I also make an order of mandamus directed to the Practitioners Board requiring it to consider whether to entertain the allegation of mistake, (where appropriate) to determine the allegation of mistake, (where appropriate) to reconsider its determination or assessment under section 92 in the light of the further material and information submitted by the Applicant in her solicitors' letter dated 16 October 2002, and (where appropriate) to make a re-determination or re-assessment under section 92. (The letter of 23 November 2002 did not require the Applicant to undergo the registration assessment, and therefore the second relief sought in the Applicant's Form 86A is not applicable.) 62.Costs should follow the event. I order that the costs of these proceedings be paid by the Respondent to the Applicant, such costs to be taxed if not agreed. 63.I thank counsel for their helpful assistance.
Representation: Mr Hectar Pun, instructed by Messrs Peter K H Wong & Co., for the Applicant Mr Ambrose Ho, SC, instructed by Messrs Lo & Lo, for the Respondent Remarks: Appeal by applicant to Court of Appeal. Appeal allowed. Please refer to the appeal judgment of CACV236/2003. |
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