Case Document

100%Judiciary

HCAL000033/2003

HCAL 33/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATOVE REGION

COURT OF FIRST INSTANCE

CONSITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 33 OF 2003

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BETWEEN
	WONG CHI SUNG	Applicant

	AND

	THE CHINESE MEDICINE PRACTITIONERS BOARD OF THE CHINESE MEDICAL COUNCIL OF HONG KONG	Respondent

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Coram: Hon Chu J in Court

Date of Hearing: 25 July 2003

Date of Judgment: 20 February 2004

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J U D G M E N T

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1.In this application, the applicant seeks to judicial review the decisions of the Chinese Medicine Practitioner Board ("the Board") of the Chinese Medical Council of Hong Kong ("the Council") requiring the applicant to undertake the licensing examination before being eligible to apply to be registered as a Chinese medicine practitioner, and also declining to accept further information from the applicant and to reconsider its decision.

Factual background

2.The applicant was born in 1957 in Mainland China. His father was a Chinese medicine practitioner in the Mainland. The applicant received his secondary school education in Shenzhen. He migrated to Hong Kong in about 1975. He returned to the Mainland in 1978. In about the end of 1979, he returned with his father and brothers to live in Hong Kong.

3.The applicant's father continued to practise Chinese medicine after coming to Hong Kong. It is the applicant's case that he underwent training and practice in Chinese medicine under the supervision of his father since 1978.

4.In about May 1983, the applicant and his elder brother, Mr Wong Tai Fu, set up the Lucky Star Medicine Company ("Lucky Star"). The applicant's eldest brother, Mr. Wong Tai Tung joined Luck Star in September 1985. In about May 1986, the applicant and his brothers opened a branch in Yuen Long. Between 1986 and 1988, their father practised as a consultant in the Yuen Long branch.

5.In about 1992, the applicant's brothers set up Keystar Medicine Company Limited ("Keystar") in Yuen Long that engaged in the manufacture of Chinese medicines. The applicant became a shareholder and director of Keystar in March 1995. In about 1996, Keystar changed its name to Luckystar Hall Limited.

6.By an application dated 29 August 2000, the applicant applied to have his name entered on the list of Chinese medicine practitioners ("the List") maintained by the Board under section 90(1) of the Chinese Medicine Ordinance, cap. 549 ("the Ordinance") on the ground that he had been practising Chinese medicine in Hong Kong for a continuous period of not less than 15 years. He gave no information on any academic qualifications obtained or to be obtained, and indicated that his other training in Chinese medicine was acquired by family heritage.

7.In the application form, the applicant gave his practising experience as follows:

(1) May 1981 to April 1983

Underwent study of Chinese medicine and the preparation of Chinese medicine, and also receiving bedside training in Chinese medicine from his father at a medicine company in Yuen Long where his father was practicing.

(2) May 1983 to April 1986

Treating patients at Lucky Star (Sheung Shui Main Office) on a self-employed basis, and also managing the business of the company.

(3) May 1986 to date of application

Treating patients at Lucky Star (Yuen Long Branch) on a self-employed basis, and also managing the business of the company.

8.In support of this application, the applicant attached, under a covering letter that summarized his experience in Chinese medicine, the following documents:

(1) The Business Registration Certificates and records of Lucky Star (Sheung Shui) and Lucky Star (Yuen Long);

(2) Summary of profits tax assessments of Lucky Star for the years 1995 to 2000;

(3) Four prescriptions issued by the applicant between May 1997 and April 2000;

(4) A Chinese medicine practitioner certificate and a provisional business licence issued to the applicant's father in 1953 and 1955 by the authority of Bao An County, Shenzhen.

9.By a letter dated 28 October 2000, the applicant was requested to attend an interview on 10 November 2000 to verify the documents he had submitted with his application, and to provide the business registration extract of Lucky Star for the year 1983. The applicant did attend the interview and he signed a Reply Slip stating that he had no other document to submit by way of supplement.

10.By a letter dated 19 December 2001, the Board notified the applicant that his name had been entered on the List and that he may continue practising Chinese medicine as a listed Chinese medicine practitioner.

11.By a letter dated 15 May 2002, the applicant was informed that pursuant to sections 92 to 95 of the Ordinance, the Board would conduct an assessment of all listed Chinese medicine practitioners to determine whether they satisfy any of the alternative qualifying requirements. The applicant was requested to provide by 5 June 2002 the following supplemental documents or information:

(1) Treatment records and patient records and membership of Chinese Medicine Society for the years 1983 to 2000;

(2) Working hours for major occupation and other occupation from May 1983 to 2000; and

(3) Other documentation proof or information that may assist in proving the practical experience or academic qualification stated in the application.

12.On 29 May 2002, the applicant submitted two certificates issued by the HK and Kowloon Medicine Merchants Association Ltd in February 1996 certifying that the applicant was a member and the president of the association. The applicant also submitted a certificate certifying that the applicant had attended the International Congress of Traditional Medicine held in Beijing in April 2000. The applicant also stated in the Reply Slip his working hours as a Chinese medicine practitioner and in respect of other occupations for the period from May 1983 to 2000. In the same Reply Slip, the applicant confirmed that, other than the documentary proof that he had submitted, he had no further information to provide.

13.By a letter dated 5 September 2002 ("the 5.9.2002 letter"), the Board informed the applicant that the Board had determined that he was required to undertake the licensing examination in order to be eligible for registration as a registered Chinese medicine practitioner.

14.By a letter dated 13 September 2002, the applicant requested the Board to reconsider its decision. He also enclosed a letter dated 12 September 2002 from a Mr Tsang Fu Shing, a member of the Council ("Mr Tsang's letter"). In it, Mr Tsang's company confirmed that the applicant had been practising Chinese medicine since he started Lucky Star, and had since 1983 been purchasing Chinese medicine from the company. Mr Tsang also stated in this letter that he could confirm that the applicant did in fact practise Chinese medicine.

15.By a letter dated 23 November 2002 ("23.11.2002"), the Board explained its determination. The Board also stated that it had no power to review or alter the assessment results and that it was not in a position to accept further information submitted by the applicant.

16.By a proforma letter dated 20 December 2002 ("the 20.12.2002 letter") to all listed Chinese practitioners who were required to take the licensing examination, the Board gave notice that the 2003 licensing examination would be held in mid-2003.

17.On 8 April 2003, the applicant commenced these proceedings. Leave to apply for judicial review was granted on 28 April 2003. The applicant issued the Notice of Motion on 9 May 2003. Although there had been delay in bringing the proceedings, the respondent has taken no issue on it.

The relief sought

18.By his Form 86A and Notice of Motion as amended at the hearing, the applicant seeks the following relief:

(1) An order of certiorari to quash the decisions of the Board of 5 September, 23 November and 20 December 2002 requiring the applicant to undertake the licensing examination;

(2) An order of certiorari to quash the decision of the Board of 23 November 2002 refusing to consider further documentations and information submitted by the applicant by letter of 13 September 2002; and

(3) An order of mandamus requiring the Board to reconsider its decision dated 23 November 2002 and to decide whether the applicant fulfils the requirements of substantial experience, knowledge and skills in the practice of Chinese medicine within the meanings of section 92(1)(b) and section 92(2)(c) of the Ordinance for the purpose of registration as a Chinese medicine practitioner. The reference to section 92(2)(c) is probably a clerical error. What the applicant probably intends to refer to is section 92(2)(a).

The grounds for the application

19.The applicant relies on two grounds to support his application:

(1) Procedural impropriety: Failure of duty to give reason

It is said that the Board has failed to give any or any adequate reason as to why the objective evidence submitted by the applicant was insufficient to prove that the applicant had, immediately before 3 January 2000, been continuously practising Chinese medicine in Hong Kong for not less than 15 years.

(2) Procedural impropriety and/or illegality: Fettering of discretion

It is said that the Board had adhered strictly to the policy stated in its handbook of not accepting new supplemental information or document after the submission of the application form, and had refused to accept Mr Tsang's letter, which the applicant sent together with his letter of 13 September 2002. The applicant contends that the power conferred on the Board should be performed from time to time as the occasion requires and the Board was wrong in saying that it could not consider further information submitted by the applicant.

The Board's decisions

20.It is important to the understanding of this application to set out the relevant parts of the letters from the Board that form the subject matter of the applicant's complaints.

21.The relevant part of the 5.9.2002 letter reads as follows:

"In accordance with section 95 of the [Ordinance], the [Board] has determined that you are required to undertake the Licensing Examination held by the [Board]. You have to pass the Licensing Examination in order to qualify for application as a registered Chinese Medicine Practitioner."

22.As to the 23.11.2002 letter, the relevant part says as follows:

"As stipulated by the [Ordinance], the [Board] assesses the alternative qualifying requirements for registration of a listed Chinese medicine practitioner on the basis of the listed Chinese medicine practitioner's period of continuous practice in Hong Kong immediately before 3 January 2000, as accepted by the Board, and his qualification as accepted by the Board. The assessment criteria of and the documentary proofs required for establishing continuous Chinese medicine practice and qualification had been set out in sections (6) to (10) of Chapter 2 of the Handbook for the Registration of Chinese Medicine Practitioners. The main reason why the years of practice or the qualifications claimed by some of the listed Chinese medicine practitioners had not been accepted is that they had not adduced sufficient proof of objective information.

In assessing your alternative qualifying requirements for registration, the [Board] had considered the proofs and the information of your practice and qualification submitted by you at the time. The [Board] determines that you have to comply with the stipulations in section 92(2)(c) (namely, passing the licensing examination prescribed under section 95), so as to be qualified to apply for registration. The reasons are as follows:

(i) The [Board] considers that the objective proof you submitted is insufficient to prove that, immediately before 3 January 2000, you had been continuously practising Chinese medicine for 10 years; and

(ii) The [Board] considers that the objective proof you submitted is insufficient to prove that you possess academic qualifications acceptable to the Board.

Listed Chinese medicine practitioners who have to undergo licensing examination or registration assessment may continue to practise as listed Chinese medicine practitioners until they become registered or until the date to be announced by the Secretary for Health Welfare and Food.

As the [Ordinance] does not confer on the [Council] and the [Board] the power to accept appeal or review an assessments of alternative qualifying requirements for registration, the [Board] is therefore unable to review or alter the assessments results of your alternative qualifying requirements for registration, and is also unable to accept the other information further submitted by you. If you disagree with the decision of the [Board], you may apply to the court to judicial review the decision of the [Board]."

23.In respect of the 20.12.2002 letter, it states as follows:

"To all listed Chinese medicine practitioners who have to undergo the licensing examination:

The 2003 licensing examination will be held in mid-2003. The Handbook for Candidates of the Licensing Examination is sent herewith for your reference.

As you are already qualified to undertake the licensing examination, you do not have to apply to be qualified for the examination. If you wish to take this examination, you do not need to apply now. The Secretariat will inform you the date of application and the details between March and April 2003.

Please contact the staff of the Secretariat of the [Council] (contact telephone no. 2121 1888) if there is any enquiry. Please quote your listing no. when making enquiry."

24.It is plain from a reading of the 20.12.2002 letter, which is a proforma letter, that it neither amounts to a decision of the Board nor conveys a decision of the Board. It is difficult to understand why the applicant makes this letter a subject matter of the complaints herein and how relief can be granted against this letter.

The Chinese Medicine Ordinance, cap. 549

25.The Ordinance was enacted on 14 July 1999 to make provisions for the registration of practitioners in Chinese medicine, the licensing of traders in Chinese medicines, the registration of proprietary Chinese medicines, and other related matters. Section 3 provides for the establishment of the Council with the functions set out in section 11. In September 1999, the Board was established under section 12(a) to exercise the functions set out in Schedule 3 of the Ordinance. Pursuant to section 25(1)(a), the Council established, under the Board, the Registration Committee whose functions are set out in Part 1 of Schedule 4 of the Ordinance.

26.Part VII of the Ordinance, which came into effect on 16 August 2000, establishes a system of registration for Chinese medicine practitioners. Any person who wishes to practice Chinese medicine has to be registered as a registered Chinese medicine practitioner.

27.Under section 2, "practicing Chinese medicine" means performing any of the following act or activities:

" (a) the diagnosis, treatment, prevention or alleviation of any disease or any symptom of a disease;

(b) the prescription of Chinese herbal medicines or proprietary Chinese medicines;

(c) the regulation of the functional states of the human body,

on the basis of traditional Chinese medicine in general practice, acupuncture or bone-setting."

28.Under section 67, a person is qualified to apply to be registered as a registered Chinese medicine practitioner if he has passed the licensing examination administered by the Board ("the Licensing Examination") or if the Board has determined that he is so qualified under section 92.

29.Part IX of the Ordinance makes transitional arrangements to enable Chinese medicine practitioners who have been continuously practising Chinese medicine in Hong Kong on or immediately before 3 January 2000 to become registered Chinese medicine practitioners as follows:

(1) They may apply to the Board to have their names entered on the List maintained under section 90(1) of the Ordinance.

(2) A person whose name is entered on the List may continue his practice as a listed Chinese medicine practitioner during the transitional period.

(3) A listed Chinese medicine practitioner may be qualified for registration under the Ordinance if he satisfies the alternative requirements under section 92.

(4) By section 92(1), a listed Chinese medicine practitioner is qualified to be registered under the Ordinance if he satisfies the Board, after assessment, that he has "acquired substantial experience, knowledge and skills in the practice of Chinese medicine".

(5) Section 92(2) provides that no person shall be regarded as having acquired substantial experience, knowledge and skills unless he has:

(a) attained the standard which qualifies him to be exempted from the Licensing Examination under section 93;

(b) passed the registration assessment as required under section 94; or

(c) passed the Licensing Examination as required under section 95.

30.Under section 93, a listed Chinese medicine practitioner may be exempted from taking the Licensing Examination if he satisfies the Board that he fulfils either one of the following criteria:

(1) Immediately before 3 January 2000, he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 15 years; or

(2) Immediately before 3 January 2000, he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 10 years; and he has obtained a qualification in Chinese medicine practice acceptable to the Board.

31.Under section 94, a listed Chinese medicine practitioner who satisfies the Board that he had been in continuous practice in Hong Kong for not less than 10 years immediately before 3 January 2000, and has not obtained academic qualifications acceptable to the Board may be eligible to apply to for registration if he passes the Registration Assessment conducted by the Board. Section 94 further provides that a listed Chinese medicine practitioner who has been in continuous practice for less than 10 years, and possesses academic qualifications acceptable to the Board may also apply for registration if he passes the Registration Assessment.

32.In the case of a listed Chinese medicine practitioner who has been in continuous practice for less than 10 years immediately before 3 January 2000, and has not obtained academic qualifications acceptable to the Board, section 95 provides that he shall pass the Licensing Examination before he is qualified to apply for registration.

33.As noted above, the applicant's application is made on the basis of his practice immediately before 3 January 2000. The applicant had not asserted in his application that he possessed a qualification in Chinese medicine acceptable to the Board. Accordingly, if he could not satisfy the Board that he had been in continuous practice for not less than 15 years immediately before 3 January 2000, he would have to pass the Registration Assessment before being qualified to apply for registration. Further, if he could not satisfy the Board that he had been in continuous practice for not less than 10 years, he would have to pass the Licensing Examination before he could apply for registration.

34.I turn now to deal with the grounds for the application.

Ground 1: Failure to give reasons

35.By section 90(2), the Board is charged with the duty of assessing whether a listed Chinese medicine practitioner satisfies the alternative qualifying requirements for registration that are provided under sections 93 to 95. In the present case, the Board's determination, as communicated by the 5.9.2002 letter is that the applicant does not fulfil the requirements under sections 93 and 94, and is thus not exempted from taking the Licensing Examination.

36.Accordingly, the issues that arise for consideration under this ground are: Firstly, whether there is a duty on the Board to give reasons for its determination that the applicant does not qualify for an exemption. Secondly, if there is a duty to give reasons, whether the Board has properly discharged that duty.

37.On the first issue, it is not argued by the applicant that the Ordinance imposes an obligation on the Board to give reasons, whether expressly or by implication. As I understand it, Mr Pun argues on the basis that such a duty arises as a matter of common law. Implicit in his submission that natural justice and fairness requires in certain circumstances that reasons should be given, is the acceptance that there is no general duty to give reasons. Indeed, the common law does not presently recognize a general duty to give reasons: R v. Secretary of State for Home Department, ex parte Doody [1994] 1 AC 531, 564E. The growing judicial trend, however, is towards an insistence on greater openness of decision-making and the courts have increasingly found a duty to give reasons in various contexts. The Chief Justice acknowledged this development and had commented on the benefits of it in Oriental Daily Publishing Ltd v. Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279 at 290A, E-H.

38.The question of whether a duty to give reasons arises under the common law turns primarily on considerations of fairness and justice. In R v. Secretary of State for Home Department, ex parte Doody at 561A, it was pointed out that in the absence of a statutory duty to give reasons, the party seeking to argue that reasons should be given must show that it would be unfair if reasons were not given: see also Immigration Tribunal v. Lau Tak Pui & Others [1992] 1 HKLR 374, 384. The requirements of fairness and justice will vary with the process to which they are being applied. Thus in R v. Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242, it was held that academic judgments were not in the class of case where the nature and impact of the decision itself required that reasons be given as a routine aspect of procedural fairness but were in a class where some factor would be required to show that in the circumstances of the particular decision, fairness required reasons to be given.

39.In the present case, the applicant's contention that the Board is under a duty to give reasons is primarily premised on two grounds. Firstly, it is said that the Board's decision is "to a certain extent penal in nature as it involves taking away a right to earn a living as a Chinese medicine practitioner". Secondly, it is said that because all the documents submitted by the applicant show that he has been working full time as a Chinese medicine practitioner for more than 15 years, the Board must give reasons when its decision goes against all the documents.

40.I am unable to accept that the Board's determination can be regarded as penal in nature. It is no doubt a decision that carries considerable significance for the applicant in that it determines by which of the statutory routes the applicant may seek to be registered as a registered Chinese medicine practitioner. Plainly, had the Board decided that the applicant satisfied the requirements of section 93, he could then proceed to apply for registration without having to undergo the Licensing Examination or the Registration Assessment. The Board's present determination, however, means that the applicant has to take and pass the examination before being eligible to apply for registration. It is also true that, if the applicant is unable to pass the Licensing Examination, he cannot practise Chinese medicine when the transitional arrangements expire. Nevertheless, it is not correct to say that the Board's determination involves taking away a right to earn a living as a Chinese medicine practitioner. The entitlement or ability to practise Chinese medicine is subject to the legal requirement of registration. The Board has also not determined that the applicant cannot practise Chinese medicine.

41.It is also incorrect to say that the Board's determination has gone against the documents submitted by the applicant. What the Board had to determine was whether there was objective evidence to the effect that the applicant had been in continuous practice as a Chinese medicine practitioner in Hong Kong for not less than 15 years immediately before 3 January 2000. In the Handbook for the Registration of Chinese Medicine Practitioners ("the Handbook"), the assessment criteria and the documentary proofs required have been explained in details in Chapter 2. The Handbook was published in August 2000 to provide guidelines on registration through the transitional arrangements. It is available to the public free of charge. It is not the applicant's case that he was not aware of or had no access to the Handbook.

42.Paragraph 46 of Chapter 2 of the Handbook explains the documentary proofs that an applicant should submit to establish his practice. It states that the objective evidence should show that he was practising Chinese medicine in such period of time. It goes on to say that for self-employed applicant, he should submit the Business Registration Certificate or extracts from the Business Register "showing the applicant's name, the date of practice and the practice of Chinese medicine". The paragraph also gives examples of other documents that may be submitted to prove the practice. Paragraph 47 states that the Board will not accept any proofs of practice or period of practice made by individual.

43.The applicant had given an account of his practising experience in his application form. He had also in the Reply Slip dated 29 May 2002 stated his working hours as a Chinese medicine practitioner. In terms of objective documentary proof, he had provided some prescriptions he had issued to his patients, the earliest of which was dated 11 May 1997. He had also provided the Business Registration Certificates and records of Lucky Star. They show that both branches of Lucky Star were engaged in the import and export of Chinese medicine and the applicant was engaged in the business of Lucky Star. As Mr Kwok submits, they are proofs of the applicant working as a Chinese medicine merchant, but they in no way prove that he had been practising as a Chinese medicine practitioner. Similarly, the profits tax assessments of Lucky Star do not prove that the applicant had been a Chinese medicine practitioner.

44.In short, the objective documentary proofs before the Board when it made its decision in September 2002 do not establish that the applicant had been in continuous practice as a Chinese medicine practitioner for 15 years immediately before 3 January 2000. It must also be pointed that the additional documents exhibited to the applicant's affirmation in these proceedings are irrelevant since they had never been submitted to the Board.

45.I am in agreement with the submissions of Mr Kwok that the applicant, like all other listed Chinese medicine practitioner who seek registration through the alternative qualifying routes, have been informed in advance of the assessment criteria and basis as well as the proofs required for establishing the practice and the qualifications claimed. I accept that what the Board is required to do in conducting the assessment is to evaluate the documents and information produced by the applicant. The Board's determination in the present case is no more than an informed exercise of judgment. There is also no oddity in the result of the assessment. In my view, the applicant has not made out a case that fairness and justice require that the Board gives reasons for the assessment result. There is no legal basis for implying a duty to give reasons.

46.I do not understand the applicant to be arguing that the determination of the Board is irrational because it had not given reasons for the assessment, which is a different proposition. In R v. Secretary of State for Trade and Industry ex parte Lonrho plc. [1989] 1 WLR 525 at 539-540, Lord Keith said that absence of reasons does not support a suggestion of irrationality. On the facts and circumstances in this case, it is not open to the applicant to contend that they point overwhelmingly in favour of a different decision such that if no reason was given, the court is entitled to infer that there was no rational basis for the decision.

47.What the applicant has sought to argue is that the 23.11.2002 letter is insufficient to discharge the duty to give duty, which in my judgment does not arise. Assuming that the duty does arise under the common law, I am of the view that the Board has already given adequate reasons for its determination. It must be accepted that what amounts to adequate reasons will depend on the context in which the decision maker is operating and the circumstances of each case. What is important is that the reasons given must show that the decision maker has gone through a process of reasoning in which the issues raised had been addressed: Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority at 292-3.

48.In the present case, the Board's reason for the determination is that the applicant has not adduced sufficient objective evidence to substantiate the period of continuous practice he claimed. This is the core question that the Board has to answer when determining whether the applicant satisfies the alternative qualifying requirements. It is true that the Board had not in the 23.11.2002 letter given an analysis of the documents submitted by the applicant. But it must be borne in mind that the Board was conducting assessment on more than 7,900 listed Chinese medicine practitioners. Further, the 23.11.2002 letter cannot be viewed in isolation when considering the adequacy of the reasons given by the Board. "Practising Chinese medicine" is defined in section 2 of the Ordinance. The Handbook has also given guidelines on the objective proofs required for satisfying the alternative requirements. In my view, the reasons given by the Board when viewed together with the statutory definition and the Handbook are sufficient to inform the applicant of the basis for its determination.

49.The first ground for the application therefore fails.

Ground 2: Fettering of discretion

50.What lies at the heart of the applicant's complaint under the second ground is the Board's refusal to consider Mr Tsang's letter submitted by the applicant after the determination was communicated to him, and the Board's refusal to reconsider its determination. It is the applicant's contention that had the Board accepted this further document, it would have concluded that the applicant has the requisite number of years of continuous practice as would entitle him to apply for registration without having to pass the Licensing Examination.

51.I pause here to observe that there is no basis for this contention. Paragraph 47 of the Handbook clearly states that the Board does not accept proof of practice or period of practice made by individual. The applicant has not challenged the guidelines on the requirements of objective proofs given in the Handbook, including paragraph 47. Mr Tsang's letter simply does not fall to be an objective proof of practice or period of practice.

It is not open to the applicant to say that the Board would have come to a different decision had it been prepared to reconsider its determination, taken into account Mr Tsang's letter.

52.That aside, the issue that arises for determination under this second ground is whether the Board is under a duty to review its determination upon the applicant's request. This in turn involves the question of whether the Board has a general power of review that may be exercised at the instance of a listed Chinese medicine practitioner.

53.The starting point is to note that the Ordinance has conferred no express power to review assessments and determinations made under sections 92 to 95. The absence of an express power to review is not a matter of no consequence when one considers that these are transitional arrangements to enable the existing practitioners to seek registration through alternative qualifying routes. It cannot be that the legislature intends an infinite process of assessment with unlimited reviews.

54.In Sze Hei Fa Helena v. Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong (unreported) HCAL 10 of 2003, after the Board had made a determination that she had to undergo the Registration Assessment to qualify to apply for registration, the applicant discovered that she had made a mistake in her application form with regard to the years of her practice. Deputy High Court Judge A. Cheung (as he then was) held 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.

55.As the Judgment points out (at paras. 21 & 27), Sze Hei Fa Helena is not about an applicant, who is dissatisfied with the determination or assessment of the Board, seeks to put forward further material and evidence in an attempt to persuade the Board to change its mind. The issue in that case is a narrow one: whether the Board has the power to reconsider its determination or assessment under section 92 if the determination or assessment was based on or affected by a material mistake of fact (or mixed law and fact).

56.The present case bears no similarity to Sze Hei Fa Helena where there was no dispute on the correctness of the Board's determination on the basis of the erroneous facts presented to the Board. The review was sought on the basis that there was a basic or fundamental mistake in the facts before the Board: see para.54 of the Judgment. In the present case, the applicant is not suggesting that the facts and materials before the Board contain a mistake. What the applicant seeks to do is to put forward further material for the purpose of improving his case and to have the Board re-open its determination. Unlike Rootkin v. Kent County Council [1981] 1 WLR 1186 where a mistake of fact had been established and the decision maker is reconsidering its decision for the purpose of rectifying the mistake, the applicant here is asking the Board to conduct a review in order to find out whether it might have made a mistake.

57.In my view, the existence of a power to review a determination that is based on or affected by a material mistake of fact is no support for the existence of a general power to review. I do not read Sze Hei Fa Helena as holding or supporting the proposition that there is a general power or duty to review on the part of the Board that can be exercised at the instance of an applicant. On the contrary, Deputy Judge Cheung acknowledged (at para. 25) that the transitional nature of the provisions under Part IX of the Ordinance tends to suggest that there cannot be a general right of review after the Board has made its determination.

58.Mr Pun relies on sections 39 and 46 of the Interpretation and General Clauses Ordinance, cap. 1 in arguing that the Board does have the power and jurisdiction to review determinations made under section 92. So far as section 46 is concerned, Deputy Judge Cheung had held in Sze Hei Fa Helena (at para. 31) that the section has no application in that it is dealing with public instruments, and that, when making an assessment under sections 93 to 95, the Board was not granting an exemption within the meaning of the section. I respectfully agree.

59.As regards section 39, subsection (1) provides that "where any Ordinance confers any power or imposes any duty, then the power may be exercised and the duty shall be performed from time to time as the occasion requires."

60.In Wade, Administrative Law (8th ed.), 235 to 236, there is a discussion on the rule under section 39(1). It is said that the rule gives a misleading view of the law where the power is a power to decide questions affecting legal rights. It is pointed out that a distinction should be drawn between powers of a continuing character and powers, which once exercised, are finally expended so far as concerns the particular case. In the second category, finality of decisions is required and the power once validly exercised cannot be recalled or revised. There is also a third category where inherent in the power to decide questions affecting private rights, is a power to vary an order or a power to entertain fresh proceedings and make a different decision.

61.This passage was considered in Sze Hei Fa Helena (at paras. 32-33). Deputy Judge Cheung held that the determination or assessment by the Board under section 92 does not involve a power within the first or third category, but one that falls within the second category.

62.In Rootkin v. Kent County Council, the Court of Appeal differentiated between the exercise of a power that determines an individual's existing legal right, and the exercise of a discretion that confers on an individual a benefit that he otherwise would not have enjoyed. In the case of the former, once the determination is made, it cannot be revoked. In the case of the latter, the principle of irrevocability does not apply and the decision maker may review its decision from time to time. The Court of Appeal held that since the original decision of the Council was made under a mistake of fact, the Council was duty bound to reconsider the matter when the mistake was discovered. The rationale is plain and obvious. Where an individual only has the benefit of the exercise of a discretion upon certain facts being established, then if the discretion was exercised as a result of a mistake as to the existence of those facts, it would tantamount to a nullity and the decision would have to be recalled. Conversely, where there is a failure to exercise the discretion consequent upon a mistaken assumption that the necessary facts do not exist, the decision maker must be under a duty to reconsider the position.

63.Rootkin was considered in Wade, op cit, as affording an exception that enables a decision maker to revisit its decision on the ground of mistake. It is said that the duty to exercise discretion when the true facts appeared is not affected by the principle of irrevocability. Rootkin however does not establish a general proposition that a discretionary power to confer a benefit carries with it a general power to revoke or review irrespective of circumstances. It would appear that the decision can only be revoked where (i) the person affected by the decision consents, or (ii) if the decision is based on a mistake of fact, or (iii) where the public interest in revoking the decision outweigh the person's interest in retaining the benefit which the decision has conferred on him: Akehurst, Revocation of Administrative Decisions [1982] PL 613, at 627. It would also appear that these 3 situations concern favourable decisions made by the decision maker.

64.In terms of the nature of the assessment or determination under section 92, counsel have no disagreement it does not involve any exercise of discretion. In Sze Hei Fa Helena, Deputy Judge Cheung considered that the determination under section 92 is merely a preliminary step and forms part of the process by which the Board exercises the power to approve registration under section 69. He also considered that the power under section 69 is a discretionary power conferring upon a listed medicine practitioner a benefit to be able to continue his practice under the Ordinance. It is to be appreciated that Deputy Judge Cheung was dealing with a decision said to be based upon a mistake of fact. As noted above, no such mistake arises in the present case. The analysis of the nature of the Board's determination in Sze Hei Fa Helena does not assist the applicant in his contention that there is a general power to review.

65.For the reasons set out above, I do not accept that it can be said that the Board has a general power and jurisdiction to review its determination or assessment made under sections 92 to 95. Accordingly, the Board has not acted to fetter its discretion by not accepting Mr Tsang's letter and not acceding to the applicant's request to reconsider his case in the 23.11.2002 letter. Ground 2 therefore fails.

Conclusions

66.In the premises, the applicant's application for judicial review has to be dismissed. I also make an order nisi that the applicant pays the respondent the costs of these proceedings, to be taxed if not agreed.