Chan Chuen Wai v. The Chinese Medicine Council of Hong Kong

HCAL 112/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 112 OF 2005

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BETWEEN

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Before: Hon A Cheung J in Court

Date of hearing: 29 March 2007

Date of judgment: 7 May 2007

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J U D G M E N T

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Facts

1.The applicant wishes to practise as a Chinese medicine practitioner in Hong Kong.  For that purpose, he has completed a 5-year full-time bachelor degree course in Chinese medicine at Xiamen University.  He commenced his study in 2000 and completed it in 2004.  In order to practise as a Chinese medicine practitioner in Hong Kong, he must first become a registered Chinese medicine practitioner.  In order to qualify for registration, he must undertake a licensing examination first.

2.Section 61 of the Chinese Medicine Ordinance (Cap 549) sets out the eligibility requirements for undertaking the licensing examination:

“(1)      A person shall be eligible to undertake the Licensing Examination if –

(a)   he satisfies the Practitioners Board that at the time of the application he has satisfactorily completed such undergraduate degree course of training in Chinese medicine practice or its equivalent as is approved by the Practitioners Board; or

…

(2)    Any person who seeks to undertake the Licensing Examination under subsection (1)(a) shall –

(a)    make an application to the Practitioners Board in such form as may be determined by the Practitioners Board; and

(b)     pay a prescribed application fee.”

3.In December 2004, the applicant submitted his application to the Chinese Medicine Practitioners Board established set up under the Ordinance to undertake the licensing examination, relying on his qualifications obtained from his studies at Xiamen University.  He submitted supporting documents to back his application.  Further documents were submitted and clarifications made upon the inquiries of the Examination Committee set up under the Practitioners Board regarding details of the bachelor degree course and his studies.

4.By letter dated 18 February 2005, the Chinese Medicine Council of Hong Kong, which supervises the activities of the Practitioners Board, notified the applicant that the Examination Committee was not satisfied with the applicant’s eligibility for undertaking the licensing examination and his application to undertake the examination was refused.

5.Dissatisfied with the decision, the applicant requested the Practitioners Board to review the decision of the Examination Committee (section 66(1) of the Ordinance).

6.By letter dated 17 March 2005, the Practitioners Board informed the applicant that the review had been unsuccessful as the bachelor degree course offered by Xiamen University was not a course approved by the Practitioners Board.

7.Aggrieved by the decision, the applicant lodged an appeal from the decision of the Practitioners Board to the Chinese Medicine Council.  The appeal was heard on 29 April 2005.

8.By letter dated 4 May 2005, the Chinese Medicine Council through its secretariat notified the applicant that his appeal was dismissed.  By letter dated 27 May 2005, written reasons for the Council’s decision were supplied to the applicant.

Application for judicial review

9.Although the form 86A which initiated these proceedings only seeks to challenge the decision of the Examination Committee communicated to the applicant by letter dated 18 February 2005, it is plain from the papers filed that the applicant seeks also to challenge the subsequent decisions made upon review and on appeal.  Indeed leave to challenge all relevant decisions has been given.

10.The Chinese Medicine Council’s written reasons set out two main grounds for dismissing the appeal.  First, the bachelor degree course of training undertaken by the applicant at Xiamen University is not an undergraduate degree course of training in Chinese medicine practice approved by the Practitioners Board, nor is it an approved equivalent of such a course.  Secondly, the basic requirements of an approved course require, amongst other things, that the course shall be a full-time on campus undergraduate degree course in Chinese medicine of no less than 5 years duration, comprising not less than 30 weeks of internship, or its equivalent.  Even if the Xiamen University’s course is a 5-year full-time course, because of some exempted subjects which the applicant was not required to take, he actually completed the course in 4 years.  The exempted subjects, totalling 1,078 study hours, included, amongst others, University English, University Language and Inter-discipline Basic Course (跨學科基本課程).

11.In his supporting affirmation, the applicant relied on a number of grounds to challenge the decisions.  At the hearing, Mr Benjamin Chain, appearing for the applicant, only pursued two points.  First, counsel argues that when a person applies to undertake the licensing examination on the basis that he has attended and completed an undergraduate degree course of training in Chinese medicine practice or its equivalent that has not been approved by the Practitioners Board before, the Board has a duty to assess the course or the equivalent and decide whether to approve it.  In the present case, Mr Chain argues that the Board has simply failed to do so.  It has a “predetermined mindset” against any course that has not been pre-approved.  No genuine effort has been made to assess the course offered by Xiamen University and its refusal to approve the course or treat the course as an approved one has been flawed.

12.Secondly, counsel submits that the Board has compounded its mistake by saying that the applicant has not completed a 5-year full-time undergraduate degree course.  Mr Chain argues that the course offered by Xiamen University is clearly a 5-year full-time degree course.  That due to exemption from certain subjects, the applicant has managed to complete, and complete satisfactorily, the course in 4 years time is neither here nor there.

Preliminary observations

13.The background to the Chinese Medicine Ordinance and the requirement for undertaking the licensing examination as a standard route for registration as a registered Chinese medicine practitioner has been explained in some detail in Law Sze Yan v The Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong, HCAL 41/2005, Chu J (26 June 2006) paras 2-15; affirmed on appeal: CACV 268/2006 (30 March 2007), paras 3-13.  I will not repeat the same here.

14.As regards section 61(1)(a) which this case is concerned with, I am of the view that, on its true construction, an applicant must have satisfactorily completed either an undergraduate degree course of training in Chinese medicine practice that is approved by the Practitioners Board, or a course, approved by the Practitioners Board, which is equivalent to an undergraduate degree course of training in Chinese medicine practice.  In other words, whether the course is an undergraduate degree course or an equivalent course, it has to be approved by the Practitioners Board.

15.In my view, the Chinese version of the Ordinance, which the applicant has placed some emphasis on, means the same on its proper construction (“該人令中醫組信納在他申請時，他已完滿地完成中醫組認可的中醫執業訓練本科學位課程或與該課程相當的課程”).

16.In my view, the present case falls within the so-called “undergraduate degree course” limb rather than the “equivalent” limb.  In other words, the course offered at Xiamen University was an “undergraduate degree course of training in Chinese medicine practice”.  It was not a course “equivalent” to an undergraduate degree course of training in Chinese medicine practice.

17.In my view, the “equivalent” limb is reserved for those courses that are not an undergraduate degree course.  This interpretation makes sense if one remembers, for instance and by way of analogy, that for the study of (Western) medicine or law, even though in Hong Kong, UK and many Commonwealth countries, it is achieved by means of an undergraduate degree course, that is not so in USA.  In the States, those professional courses are taught as post-graduate degree courses.  On the other hand, many Chinese medicine courses in the Mainland are offered by higher education institutions rather than universities.

18.In my view, the “equivalent” limb is applicable to those courses that are not undergraduate degree courses, but are equivalent to an undergraduate degree course in terms of training in Chinese medicine practice.

19.More importantly, as I said, in my view, whether it be an undergraduate degree course or its equivalent, it must be approved by the Practitioners Board.

20.“Approved” includes, of course, courses “pre-approved” by the Board.  According to the evidence, since 2002, the Board has published a list of a total of 30 full-time undergraduate degree courses or equivalent courses in Chinese medicine conducted by three local universities and 27 higher education institutions in the Mainland respectively, which have all been recognised and approved by the Practitioners Board.  One more full-time course was recognised and approved in 2005.  However, the undergraduate course undertaken by the applicant at Xiamen University was (and is) not amongst the pre-approved courses.

1^st ground: A continuing duty to assess?

21.This brings me immediately to Mr Chain’s major point, that even though the course offered at Xiamen University was not a pre-approved course, upon receiving the applicant’s application, the Practitioners Board had a duty to assess the course in order to decide whether to approve it.  Mr Chain argues that the duty to assess follows logically, and as a matter of statutory construction and commonsense as well, from the power to approve a course for the purposes of section 61.  Mr Chain expressly disavows any intention to put his client’s case higher – he accepts that there is no general duty for the Practitioners Board to seek out courses around the world in order to see whether they should be approved (or more correctly, pre-approved).  He argues, however, that when an application is received, which is based on a course that has not been pre-approved, the Practitioners Board has a duty to assess the course to see whether to approve it, in order to decide the application.

22.It is plain from the evidence that the Practitioners Board has not proceeded on such a basis.  In fact, its policy was (and still is) only to assess a non-local course if an application for assessment is received from the university or institution running the course.  Insofar as Mainland courses are concerned, when such an application for assessment is received, the Board will see whether the course fulfils the basic requirements of an approved course (ie a 5-year full-time on campus undergraduate degree programme comprising not less than 30 weeks clinical training and including 10 designated compulsory subjects, or its equivalent) – which basic requirements are not challenged in these proceedings.  The Board will also enlist the assistance of the State Administration of Traditional Chinese Medicine in the Mainland so that it will only recognise and approve the course if the same is recommended by the State Administration.

23.Mr Chain contends in his submission that this typifies the “predetermined mindset” approach of the Practitioners Board.

24.The policy of the Practitioners Board has been examined by the Council in its written reasons:

“19.     根據《條例》第61(1)(a)條，希望通過中醫執業資格試而成為註冊中醫的人士，須成功地滿足兩個入門條件：即(1)具備符合要求的學歷以符合資格參加執業資格試；及(2)於執業資格試中取得合格成績。上述兩個入門條件屬同等重要，原因是為了符合成為註冊中醫的資格，申請人除了必須擁有專業上的知識及技能外（這些專業知識及技能可以於考試中測試，但考試本身有其局限性），他們還需要曾經接受全面及基本的大學中醫本科教育。《條例》第61(1)(a)條明確訂明的第一個入門條件，確保參加中醫執業資格試的所有考生具備全面的大學本科教育訓練的要求。因此中醫組有責任訂定適當的中醫執業訓練本科學位課程的評核標準，而只有符合中醫組訂定的評核標準的中醫執業訓練本科學位課程或與該課程相當的課程的畢業生，才可以滿足第一個入門條件而符合參加中醫執業資格試的資格。

…

23.     當第一次中醫執業資格試舉行時，中醫組認可了30間舉辦全時間制中醫本科課程而又符合中醫組訂定的基本要求的中醫藥院校，而該名單亦已向公眾作出公布。有關課程均經過中醫組轄下中醫學位課程評審小組嚴格審核，或由中醫組委托的國家部門推薦。任何人士已於其他未在名單之列的院校修讀課程或修讀不符合認可課程基本要求的課程或報名修讀，將冒上可能不符合資格參加中醫執業資格試的風險，而他們並設有合理理由和期望中醫組只因其已經報讀該未被認可的課程而會作出例外處理。要成為認可課程須由其院校向中醫組申請認可，而這些未經中醫組認可的院校，須由中醫學位課程評審小組根據既定的嚴格及仔細評審程序進行評審，以便最終取得認可本科課程或認可相當課程的地位。

24.      為確保獲中醫組認可的課程達到中醫組的要求及一定的水平，管委會已於2001年6月在中醫組轄下成立中醫學位課程評審小組（下稱評審小組），成員主要包括來自本港大學中醫學院人士、中醫師、及業外人士。評審小組須根據中醫組訂定的課程基本要求及評審項目，包括：申請認可的院校須向中醫組提供十分詳盡的課程資料，供中醫組考慮其課程規模、招生要求、課程結構、教學宗旨、管理人員、教學管理、學術評審、輔助工作管理、教學質素監控、學生水平監控、師資年資學歷及專業結構、師資教學能力、臨床教學時間及要求、臨床考核、臨床教學基地，及科研人員及項目，全面地進行中醫學位課程審核工作。除考慮由院校提供有關其課程的書面資料外，評審小組或需進行實地視察，及邀請資深的中醫藥本科教育專家出任顧問，提供專業評審意見，然後向中醫組作出建議。

25.     因此，如果中醫組在接到個別人士申請參加中醫執業資格試的申請後，而須於考試舉行前的幾個月內開始及完成全部課程評審程序，是一項極度困難的工作。事實上，大部分（即使不是全部）認可評審的要求應由申請評審的教育機構本身主動提出，而評審工作亦需要院校與中醫組就被評核的課程進行溝通、視察、會談及詳細評估等，在正常情況下，中醫組有極大困難單靠審議個別考生在申請考試時提出的書面資料而信納在未有以上評審程序情況下認可之課程。”

25.With particular reference to the course offered at Xiamen University and the difficulties of carrying out an ad hoc assessment on the basis of the applicant’s application, the Council had this to say in its written reasons:

“26.   上訴人稱廈門大學是中國的重點大學，其規模遠遠勝過許多未取得大學資格但為中醫組認可的中醫學院，而廈門大學的課程已包括10科主要科目，上訴人亦已完成了中醫組所要求的不少於30周的畢業實習。上訴人的廈門大學學士學位證書是經審核符合《中華人民共和國學位條例》的規定，上訴人亦憑藉該資格獲廣州中醫藥大學錄取修讀碩士學位。管委會認為，依據《條例》第61條所訂明的認可機制，「中醫執業訓練本科學位課程或與該課程相當的課程」的認可評審工作須由中醫組進行，管委會亦不可能依據上訴人就廈門大學中醫學位課程提供的資料及一名證人於上訴聆訊中口述的資料，並且於短短的聆訊時間內，而能夠就廈門大學舉辦的中醫學位課程的水平作出有效的判斷，而事實上如上文所述，中醫組的認可課程評審過程涉及十分嚴謹、繁複及冗長的程序。廣州中醫藥大學錄取上訴人修讀其中醫碩士課程的考慮因素及決定，並不適用於香港中醫執業資格試。很清晰地，廈門大學目前並非列載於中醫組的認可院校名單中，因此管委會認為廈門大學舉辦的中醫學位課程並非中醫組認可的中醫執業訓練本科學位課程或與該課程相當的課程，而中醫組亦已考慮上訴人所提供的資料而評定該課程未能被接受為認可課程，管委會亦不能取代中醫組評審認可課程的職能。”

26.Mr Chain argues that the Practitioners Board/Chinese Medicine Council has committed an error of law in adopting the above policy or approach towards ad hoc assessment, thus resulting in a refusal to undertake such an assessment of the Xiamen University course.  Mr Chain says he sympathises with the Practitioners Board’s position which is necessitated by limited resources and time, but submits that as a matter of proper construction of the relevant provisions, the power to approve carries with it an unqualified and continuing duty to assess.

27.I do not agree.  In my view, section 61(1)(a) simply does not say so.  All it says is that if the applicant has satisfactorily completed such undergraduate degree course of training or its equivalent “as is approved” by the Practitioners Board, he is qualified to sit for the licensing examination.

28.All this means is that if the course that he has undertaken is on the Practitioners Board’s approved list of courses, he satisfies section 61(1)(a) and may undertake the licensing examination.  If the course is not an approved one, he is not qualified.  Whether upon receiving an application which is based on a course which has not been approved before, the Practitioners Board is prepared to assess the course and determine there and then whether it should be approved is entirely a matter for the Practitioners Board.  Likewise, the extent of such assessment, if any, is also in the discretion of the Board.  Of course, the Board cannot without valid reasons or for capricious reasons refuse to conduct the assessment or conduct it in a half-hearted manner.  However, the reasons that one is concerned with here are public law reasons in terms of irrationality, capriciousness, Wednesbury unreasonableness and the like.

29.I do not consider the policy considerations and reasons that the Practitioners Board has borne in mind, which have been fully discussed in the Council’s written reasons, can be challenged on public law grounds.  In my view, they are valid policy and practical considerations and reasons.  One may or may not agree with them, and there may or may not be better ways of handling things, but it is not the function of the Court sitting in its judicial review jurisdiction to decide on those mattes or, still worse, to substitute itself for the Board or Council in the discharge of their statutory functions.

30.I see no reason to interfere with the Board’s or the Council’s view that in view of limited resources and time, it was simply impracticable to carry out a full assessment of the undergraduate course offered at Xiamen University.

31.Mr Kwok, appearing for the respondent, submits that in fact there is good sense in not assessing a course in the absence of an application for assessment from the institution offering the course.  Counsel points to the obvious difficulties in properly assessing a course of training in Chinese medicine practice by the Board without the prior invitation, consent or co-operation of the institution offering it.  I agree, as a matter of commonsense. 

32.For those reasons, in my view, Mr Chain’s main argument falls away.

2^nd ground: 5 years or 4 years?

33.That being the case, whether Mr Chain is right in his secondary argument – that the Council has mixed up the question of whether the course is a 5-year course with that of whether the applicant has taken 5 years to complete the course – is neither here nor there.  The undeniable fact is that the Xiamen course was not an approved course at the time when the applicant applied to sit for the licensing examination.  And since the Board cannot be criticised for refusing to carry out an ad hoc assessment of the course, the refusal of his application was an inevitable conclusion. 

34.For the sake of completeness, I should add that according to the evidence, Xiamen University has since applied for recognition and approval of its undergraduate degree course of training for overseas students commencing their course in 2001.  The application however was unsuccessful mainly because the State Ministry of Education had only given approval to Xiamen University to enrol students in its undergraduate programme in Chinese medicine in or after 2002.

35.In the circumstances, I will be very brief with Mr Chain’s secondary argument. 

36.I accept that there is a distinction between whether a course meets the published basic requirements in terms of duration so that it is eligible for consideration for approval and how much time a particular student has taken or been allowed to take to complete it.  The two questions should not be mixed up.  Thus, for instance, it is not unheard of that for a variety of reasons, universities do allow students to complete a course of a fixed duration within a shorter period of time.  That does not make the course concerned a course of a lesser duration nor does that mean the degree obtained by the student is defective or deficient in any way.

37.On the facts of the present case, I do not think the fact that the applicant managed to complete the undergraduate course at Xiamen in 4 years time is by and of itself a reason for saying that the course is not a 5-year course or he has not satisfactorily completed the 5-year course.

38.However, what concerns me is that what happened to him is not something peculiar to him.  He has managed to complete the course in 5 years because as a rule, the university exempts all non-Mainland students from various subjects, the total study hours of which amount to over 1,000 hours.

39.In my view, it is highly arguable that the course thus offered at Xiamen University to non-Mainland students is, as a matter of course structure, not a “5-year” full-time degree course.  In fact, it is only a “4-year” full-time degree course.  According to the evidence, even if a student wishes to attend the exempted subjects (such as some political or military subjects), he or she is not allowed to do so.  In other words, as a matter of design or structure of the course for non-Mainland students, it is not a 5-year course.

40.For that reason, I am not at all sure if the course in question, so far as non-Mainland students are concerned, satisfies the basic requirements laid down by the Board.

41.However, it is not necessary for me to express any definite view on the matter, given my conclusion above on Mr Chain’s primary point.

Outcome

42.For the above reasons, the present application must be dismissed.  I so order.  The parties being in agreement that costs should follow the event, I also order that the costs of these proceedings be paid by the applicant to the respondent, to be taxed if not agreed.  I further order that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations (Cap 91).

43.I thank counsel for their assistance.

Mr Benjamin Chain, instructed by Messrs Y S Lau & Partners, assigned by the Director of Legal Aid, for the applicant

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