Dr Ip Kay Lo Vincent v. The Hong Kong Medical Council
Read the full judgment text of CACV 278/2005 on BabelCite. This Court of Appeal judgment was delivered on 24 January 2006 before Le Pichon JA, Tang JA.
Administrative law – judicial review – leave to appeal – Medical Council – disciplinary proceedings – regulation 23(3) – no case to answer – appeal dismissed – Criminal law – procedure – right to adduce evidence – insufficient evidence – acquittal – appeal misconceived
Legal issues: Leave to appeal against refusal of leave for judicial review
Outcome: Appeal dismissed; refusal of leave to apply for judicial review upheld.
Cited by 1 case
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cacv 278/2005 in the high court of the hong kong special administrative region court of appeal civil appeal no. 278 of 2005 (on appeal from hcal NO. 100 of 2005) BETWEEN
Before: Hon Le Pichon and Tang JJA in Court Date of Hearing: 24 January 2006 Date of Judgment: 24 January 2006 Date of Handing Down Judgment: 26 January 2006 __________________________ REASONS FOR JUDGMENT __________________________ Hon Le Pichon JA: 1.This was an appeal from the judgment of Hartmann J dated 31 August 2005 refusing leave to apply for judicial review of the order made by the Hong Kong Medical Council following an inquiry dated 11 July 2005. The appeal was dismissed after the hearing for reasons to be given later which we now do. 2.The background to the inquiry held on a 7 July 2005 appears in paragraphs 2 to 8 of the judgment below. For present purposes, it is unnecessary to set that out again. Suffice it to say that a week prior to the inquiry in question, the critical witnesses in respect of the charges brought against the applicant, Dr Andrew Koh and his wife, advised the Secretary that they would not be attending the inquiry to testify. 3.It is apparent from the transcript that after the Council ruled that the witness statements and the related documents of Dr and Mrs Koh were not admissible because the witnesses were not available for cross-examination, and further that it would not exercise its power to compel Dr and Mrs Koh to attend the inquiry, the Secretary called no evidence other than the relevant Gazette notice and a copy of the annual practising certificate of the applicant to prove the Council’s jurisdiction and closed his case. The Chairman of the Council had this to say this:
4.The applicant’s complaint before the judge and before this court was that he was denied the ability to speak on his own behalf at the hearing and adduce evidence in his own defence. He relied on regulation 23 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations, Cap. 161 which, in pertinent part, reads as follows:
It was contended that the Council ought to have followed the prescribed procedure under regulation 23(3) and allowed the applicant to adduce evidence in support of his case. 5.I do not see that regulation 23(3) assists the applicant. The purpose of the inquiry was to establish whether or not the charges brought against the applicant were made out. Its purpose was not for the applicant to prove his innocence when there was insufficient evidence before the tribunal to sustain the charges against him. What was evident was that the applicant’s stance was affected by a strong desire to re-open the findings made against him in 1999 in an action in the Court of First Instance which ultimately led to the disciplinary proceedings against him. 6.The applicant also referred to the annotation at 18/19/15 of the Rules of the High Court relating to the inherent jurisdiction of the Court of Appeal in exceptional cases in the context of a striking out application to allow an appeal to proceed even though it had been rendered academic. Leaving aside the issue whether the Rules are at all applicable to the inquiry under consideration, the inherent jurisdiction referred to simply does not arise. I regret to say that the appeal was misconceived. Hon Tang JA: 7.I agree.
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