Secretary, Nursing Council of Hong Kong v. Nursing Council of Hong Kong

HCMP 667/2007

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS no. 667 of 2007

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BETWEEN

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Before: Hon Rogers VP in Court

Date of Hearing: 13 April 2007

Date of Decision: 13 April 2007

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D E C I S I O N

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1.This is an application for leave to appeal a ruling on costs made by the Nursing Council.

2.The matter arises after an enrolled nurse had successfully defended an allegation before the Council that she had acted unprofessionally.  I can take the matter perhaps from paragraph 14 of the ruling of the costs by the majority, which sets out this:

“Apart from adjourning the hearings relating to costs and asking for further submissions from the parties in the light of the English authorities, this Council also requested representations from the complainant...”

And I will not name the complainant.

“...as to why it should not be asked to bear the costs of the disciplinary inquiry.  This was because from the evidence of its staff...”

Again, I will not name the staff.

“...it was suspected that the complaint might have been lodged as an act of reprisal against (the nurse) who made a complaint to the Social Welfare Department concerning certain misdeeds on the part of the complainant, part of the complaint being successful.  The complainant, there after dug up alleged misconduct of (the nurse), some of which occurred quite some time ago and in respect of which the complainant had initially decided not to take any further action about.”

3.Then it goes on that the complainant is, however, not a party to the inquiry and only one member of the staff was called by counsel for the secretary and testified as a witness.

4.So there the matter is.  I have not been informed what the particular charge against the nurse was save to say that, of course, the complaint was dismissed.  The upshot of the matter was that the decision was that the secretary of the Council should reimburse the nurse for her costs of the disciplinary proceeding.  There is one further matter.  There was an adjournment of part of the proceedings before the Council and that was caused because those presenting the case against the nurse had produced documents at the last minute and there had to be an adjournment.

5.That, of course, is a slightly separate matter but relates to particular costs.  It becomes relevant in this respect because in the affidavit, which supports this application for leave to appeal, it was said that on 30 March, out of courtesy, the person making the affidavit informed the solicitors who had acted for the nurse in the Council inquiry of the intended appeal.  There was a reply by way of an open letter and it stated that the nurse offered not to enforce the order against the secretary, save to the extent of the costs thrown away necessitated by the adjournment on 1 December 2005 on condition that the secretary does not proceed with the intended appeal.

6.In other words, this nurse, who was an enrolled nurse, not even a registered nurse, and therefore her salary can be expected to be a pittance or slightly more, has offered to wave the costs in front of the Council provided she is not dragged to the Court of Appeal.  Despite that, it is seen fit to pursue this appeal, not for any financial benefit on part of the Council or anybody else, because they stand to gain nothing, but, it is said, as a matter of principle.

7.Before I go to what is alleged to be the matter of principle, I raise this matter, which is another matter of principle.  That is whether there is any right of appeal at all by the secretary.  The Council is set up under the Nurses Registration Ordinance, Cap. 164, and it has three functions.  One is to keep a register of registered nurses, the other is to keep a roll of enrolled nurses, which this nurse is, and the other is to act as the disciplinary body.  When it acts as a disciplinary body, it sits in Council, so it itself is the disciplinary body.  These are its only functions.  Unlike the Law Society or any other professional body, it is not a representative body representing the profession.  It does not have members who are all members of the profession.  It is not financed by fees which are paid by the professionals.  It is financed by Government money.

8.When it comes to the disciplinary proceedings and offences, they are dealt with from section 17 onwards.  It is noteworthy that under section 20, it is provided that the complainant in any inquiry held in accordance with the provisions of section 17 and the registered nurse or enrolled nurse, whose conduct is the subject of the inquiry, shall be entitled to be represented by counsel or solicitor or a friend throughout the inquiry.

9.Under the Nurses (Registration and Disciplinary Procedure) Regulations, Regulation 31 provides that the following order of procedure shall be observed at a hearing:

“(a) the complainant, or his representative, or in their absence, or if there be no complainant, the secretary, shall present the case against the defendant and adduce the evidence in support thereof and shall close the case against the defendant.”

10.So unlike other professional proceedings, it is the complainant who can appear, whether by himself or by his counsel, and if he does not appear, then the secretary, in an administrative capacity, as part of his duties as secretary to the Council, presents the case but that is all.

11.Now, in this case it is quite clear that there was a complainant.  It was the particular body in respect of whom the majority of the Council had suspicions that this complaint was brought out of vindictiveness.  They did not appear so the secretary simply presented the case but the secretary did that in an administrative capacity as part of the duties as secretary to the Council.  So how does it arise in this case that there is a right of appeal in any event because the secretary was ordered to pay the costs?  Really, what it amounts to is the Council ordered the secretary to pay the costs out of the Council’s own funds, albeit the Council’s funds come from the Government.  So that is the first question which will have to be decided on this appeal, as to whether there is a right of appeal in this instance in any event.

12.The next question which will have to be decided is whether the standard rule applies in respect of appeals as to costs, that the discretion as to costs is very rarely interfered with by a Court of Appeal.  The order was clearly within the powers of the Council since section 17 of the Ordinance specifically provides that payment may be ordered of the costs of the nurse.  The order made has the advantage of being entirely just, fair and reasonable in the circumstances.

13.Now, the third one, which is the issue which is sought to be raised on this application, is yet another one.  Here, the reliance is placed on what has been said in Baxendale-Walker v The Law Society.   Now, that is a case which was dealt with the Queen’s Bench Divisional Court and there is a report of that decision in [2006] 3 All.ER 675.  However, the matter has not rested there and there has since been a decision in the Court of Appeal because leave was given to bring an appeal to the Court of Appeal.  The judgment was given on 15 March this year.  The Court of Appeal was Sir Igor Judge P, Laws, and Scott Baker LJJ.

14.The point that is sought to be raised here is in relation to what was said in that case.  What has to be borne in mind is that what was involved there was a solicitor who had been prosecuted before the Solicitors’ Disciplinary Tribunal by the Law Society in England.  Those two are separate bodies and the Law Society, of course, in England, is not funded by the Government.  It is funded by its own professional members but it acts as a regulator to the extent that it brings disciplinary charges before the Solicitors’ Disciplinary Tribunal.  That case dealt with a thoroughly dishonest solicitor and reading the case, one is, perhaps, surprised that it is confined to professional proceedings and it does not concern criminal proceedings as well.  The solicitor was disqualified for a period of three years, in effect removing him from ever being a solicitor, one would imagine.

15.The point was said to arise from what was said by Moses LJ in the Divisional Court where he said:

“Absent dishonesty or a lack of good faith a costs order should not be made against a regulator unless there is good reason to do so.  That reason must be more than that the other party had succeeded.  In considering an award of costs against a public regulator, the court must consider on the one hand the financial prejudice to the particular complainant, weighed against the need to encourage public bodies to exercise their public function of making reasonable and sound decisions without fear of exposure to undue financial prejudice, if the decision is successfully challenged.”

16.I cannot see how that applies in this case at all.  One sees “financial prejudice to the particular complainant”.  One is dealing in our present case with an enrolled nurse.  Nurses’ pay is, except in exceptional cases, a pittance.  One is not dealing with a professional person such as a lawyer or accountant, who comes from a fee earning profession.  On the other side of the coin the case is presented before the Council by the secretary or, indeed, his counsel.  As Mr Wong, who appeared on behalf of the secretary, conceded his salary and costs are paid out of general revenue.  Again, there is no parallel with the Law Society in England and Wales.  There it is funded from membership fees paid by its members.  So what principle is it that should prevent a nurse being reimbursed costs for successfully defending a vindictive complaint?  What trepidation does the Nursing Council, its secretary, or anybody else go through in fear of having to pay costs?  Do they or the nursing profession suffer financial prejudice?

17.But now the situation is even worse, the nurse is being forced to come to the Court of Appeal when she has made a very reasonable offer to waive the costs, which had been awarded to her, on condition that she is not dragged here.  But, “No”, the Government says “This is a matter of principle.  We must come to the Court of Appeal and we must drag this nurse to the Court of Appeal.”

18.How is she going to pay lawyer’s costs on her enrolled nurse’s salary?  What is the undue financial prejudice to the Nursing Council that is financed out of Government funds?  Where is the equality in arms?  If the Court of Appeal is to be asked to say that as a matter of principle nurses who successfully defend themselves before the Council should not be awarded their costs, despite the provisions of the statute, should not the court have proper argument on both sides?

19.When looked at in the round, all I can say is that with very grave reservations I am prepared to give leave to appeal but the reservations are very grave because I see no merit in the case for the appellant whatever.  However, given the oppressive nature of this application, the only merit of having an appeal would be that this court should have an opportunity of preventing any further erosion of justice.  I am only prepared to give leave on conditions and the conditions will have to be that there will have to be a full indemnity given to the Respondent to the appeal, the enrolled nurse, and if that is not satisfied, I am not prepared to give leave to appeal.

Mr Wesley W C Wong, instructed by Department of Justice, for the Applicant