Chan Tak Kui Christopher v. The Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong

CACV 385/2003

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 385 of 2003

(on appeal from HCAL No. 29 of 2003)

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BETWEEN

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Before: Hon Rogers VP, Le Pichon JA and Waung J in Court

Date of Hearing: 22 July 2005

Date of Handing Down Decision: 29 July 2005

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D E C I S I O N

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Hon Rogers VP:

1.This was an application for leave to appeal to the Court of Final Appeal.  At the conclusion of the hearing of this application this court reserved its decision.

2.The application for leave to appeal to the Court of Final Appeal could only come under the provisions of section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484 since there is no monetary value to the matter in issue.  The appeal to this court was an appeal from a decision of A Cheung J dismissing the applicant’s application for judicial review of the respondent’s decision that the applicant was not qualified to be registered under section 69 of the Chinese Medicine Ordinance, Cap. 549 (“the Ordinance”).  It would appear from the applicant’s submissions that his case is that the matter should be considered by the Court of Final Appeal because there has been a miscarriage of justice.

3.It is trite law that applications for judicial review are to be distinguished from appeals on questions of fact.  The matter in issue before the respondent was whether the applicant was entitled to be registered as a practitioner under the Ordinance.  As set out in the judgment of this court there are five groups or classes into which an applicant might fall.  It was, therefore, the respondent’s function to decide whether the applicant fell within any of those groups or classes. 

4.It would appear from the applicant’s submissions that it is his contention that he is entitled to be regarded as having practised Chinese medicine in Hong Kong for a continuous period of not less than 15 years.  However, it was the respondent’s function to assess all applications for registration under the Ordinance.  The respondent filed evidence in the court below setting out the evidence that was submitted by the applicant and stating that after considering it the respondent was not satisfied that the objective evidence submitted by the applicant was sufficient to show that immediately before 3 January 2000 he had continuously practised Chinese medicine in Hong Kong for not less than 10 years.  Neither was the respondent satisfied that the applicant had obtained an academic qualification in Chinese medicine practice acceptable by the respondent.

5.Quite apart from whether there were grounds for challenging that decision on judicial review, it seems to me having considered the evidence that was put before the court below, that there would have been no grounds for challenging the decision of fact, even if an appeal as to fact had been allowable.  Quite simply, the applicant has not produced either before the respondent or in the court below, or even before this court in submissions, any evidence to show that he had been practising Chinese medicine continuously in Hong Kong for the requisite periods.

6.I set out the above because, I regret I cannot see that there has been any miscarriage of justice, still less do I see that there are grounds for considering that there is any valid reason for this matter to be heard by the Court of Final Appeal.

7.In those circumstances I consider that this application must be refused.  I would also make an order nisi as to costs in favour of the respondent.

Hon Le Pichon JA:

8.I agree.

Hon Waung J:

9.I agree.

The Applicant in person (present)

Mr Kwok Sui Hay, instructed by Messrs Lo & Lo, for the Respondent