Dr Leung Sik Chiu v. The Medical Council of Hong Kong

cacv 92/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 92 of 2004

(on appeal from the order of the medical council of

hong kong made on 25 february 2004 and

dated 26 february 2004 and served on 6 march 2004)

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BETWEEN

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Before: Hon Ma CJHC, Rogers VP and Reyes J in Court

Date of Hearing: 11 April 2005

Date of Judgment: 11 April 2005

Date of Handing Down Reasons for Judgment: 19 April 2005

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REASONS FOR JUDGMENT

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Hon Ma CJHC:

1.I agree with the reasons contained in the judgment of Rogers VP for dismissing the appellant’s application for leave to appeal to the Court of Final Appeal.

Hon Rogers VP:

2.This was an application for leave to appeal from a judgment of this court given on 17 December 2004 with reasons handed down on 4 January 2005.  At the conclusion of the hearing, this application was refused with costs with reasons to be given in writing.

3.The judgment of this court concerned the appellant’s appeal, under the provisions of section 26 of the Medical Registration Ordinance, Cap. 161, from an order of the Medical Council of Hong Kong.  For present purposes it is unnecessary to repeat the facts and matters set out in the Reasons for Judgment handed down on 4 January 2005 to which reference may be made. 

4.Section 26(2) of the Ordinance provides:

“(2)  Where the Court of Appeal affirms, reverses or varies the order appealed against, the decision of the Court of Appeal upon such appeal shall be final.”

5.This court has interpreted similar sections in other ordinances concerning appeals to this court from disciplinary tribunals of professional bodies as meaning that no appeal lies from the judgment of this court: see for example Peter P. F. Chan v Hong Kong Society of Accountants (16 March 2001, CACV 469 of 2000).  Recently, however, the Statute Law (Miscellaneous Provisions) Bill 2005 has been introduced into the Legislative Council and it has had its first reading and progressed to the Bills Committee stage.  There are a number of provisions in that Bill which, if enacted, would delete not only section 26(2) of the Ordinance but similar provisions in other ordinances dealing with appeals from disciplinary tribunals of professional bodies.  These amendments may have been instigated following the decision of the Court of Final Appeal in A Solicitor v The Law Society of Hong Kong [2003] 6 HKCFAR 570.  In these circumstances, it may be inappropriate for this court to comment further on the question of jurisdiction, which would involve an examination of the status of section 26(2) of the Ordinance.

6.However, even assuming there is jurisdiction to appeal to the Court of Final Appeal, there is no merit in the appeal sought to be launched by the appellant.  On this application the appellant appeared in person and sought to rely upon “new expert evidence” which was a statement made by a Dr. Lee Chiu-Tong dated 11 January 2005.  The purport of that statement was that the treatment which had been given to the patient at the Queen Elizabeth Hospital was inappropriate and had been the cause of the patient’s death.

7.As was pointed out to the appellant in the course of the hearing, the charges he faced and in respect of which he was found guilty did not charge him with the death of the patient but concerned instead the inappropriateness of the treatment which the appellant had administered to the patient and the failure to give appropriate treatment, given the patient’s condition, namely respiratory failure, whilst in the appellant’s practice premises.

8.In answer to a question from this court, the appellant confirmed what had been his original case that he had administered the hydrogen peroxide oxytherapy with a view to providing adjunctive treatment to the conventional treatment which the patient was receiving for his pneumonia infection.  In so saying the appellant sought to argue that the finding of fact by the Tribunal, (which had been confirmed by this court), namely that the patient was suffering from respiratory failure was an error.  In my view, the evidence which the appellant sought to rely upon for the first time on this application did not so establish.  This is quite apart from the fact that the introduction of such evidence would be far too late.  The appellant has been legally represented up until now and the introduction of new technical evidence on an appeal to the Court of Final Appeal would be most inappropriate to say the least in the absence of special circumstances which are not present in this case.

9.Furthermore, it emerged from the argument put forward by the appellant that one of his major reasons for seeking leave to appeal to the Court of Final Appeal was to establish that hydrogen peroxide oxytherapy was an effective and useful form of treatment which should be adopted, not deprecated, and would be useful in counteracting such ailments as SARS and bird flu virus.  Needless to say any such course would be wholly inappropriate.  The effectiveness or otherwise of hydrogen peroxide oxytherapy for the treatment of virus illnesses was not an issue in these proceedings and the Court of Final Appeal is not an appropriate forum for the appellant to establish the effectiveness of such treatment for those purposes nor to air his grievance against the perceived antagonism of the profession to such treatment, whether such antagonism is real or supposed.

10.Even assuming jurisdiction, none of the requirements of section 22(1) of the Hong Kong Court of Final Appeal Ordinance is satisfied.  For these reasons, the application had to be dismissed.

Hon Reyes J:

11.I agree.

The Appellant/Applicant, in person (present)

Mr Sanjay A Sakhrani, instructed by Department of Justice, for the Respondent/Respondent