Cecilia Young Yau Yau v. Preliminary Investigation Committee of Dental Council of Hong Kong

HCMP 2412/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2412 OF 2007

(ON AN INTENDED APPEAL FROM HCAL NO. 118 OF 2007)

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BETWEEN

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Before : Hon Tang VP in Chambers

Date of Hearing : 13 December 2007

Date of decision : 19 December 2007

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DECISION

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1.By a Form 86A dated 10 October 2007, the applicant applied for judicial review “to quash the decision of the Preliminary Investigation Committee of Dental Council of Hong Kong to refer the case to inquiry DC 2/510/9HII”.

2.By letter dated 11 October 2007, the applicant was informed of the following directions made by Lam J.

“	1.	The Applicant has not produced the necessary evidence to support her grounds for judicial review. She should clearly set out the full history of the matter leading to the decision she complained about and produce all the necessary documents, including her correspondence with the PIC and the secretary, as evidence.
	2.	Further, the Applicant has not explained why her contentions about the lack of merits in the complaint against her cannot be fairly and satisfactorily canvassed at the inquiry so that it is necessary to have the court’s intervention by way of judicial review at this stage.
	3.	The Applicant is directed to file supplemental affidavit within 14 days to deal with these matters. If no further affidavit is filed by the end of the 14 days, this court shall proceed on the basis that the Applicant does not wish to add anything to substantiate her application and shall dispose of the matter accordingly.”

3.In response the applicant filed her affidavit on 17 October 2007, as a result of which the following further directions were made by Lam J on 23 October 2007.

“	1.	The Applicant should have considered the point raised in paragraph 2 of the letter of 11th October 2007 before she filed her application with court.
	2.	According to the correspondence produced, the Dental Council will hold the disciplinary inquiry on 15th November 2007.
	3.	As a general rule, judicial review should be proceeded with promptly.
	4.	Dr. Young has had the benefit of legal advice all along.
	5.	Taking all these into account, this court will not accede to the request for 6 weeks’ extension for preparation of reply in Dr. Young’s letter of 16th October 2007.
	6.	This court will make a decision on whether leave for judicial review should be granted on the basis of the materials before it by 25 October 2007 as stated in paragraph 3 of the letter of 11th October 2007”

4.By an affidavit dated 25 October 2007, the applicant informed Lam J that she was applying for legal aid.

5.A memorandum of notification of an application for legal aid was filed by the Director of Legal Aid on 22 October 2007.  Under section 15(4) of the Legal Aid Ordinance, Cap. 91, unless otherwise ordered by the court, the proceedings would be stayed for 42 days.

6.On 13 November 2007 Lam J lifted the stay and refused leave to apply for judicial review.

7.His reasons were:

“	1.	In view of the following, I deem it appropriate to lift the legal aid stay,
		(a)	The applicant should have filed all the documents and made all submissions she wishes this court to consider in support of her application by 25 October;
		(b)	The application for legal aid was made at a late stage and there is no explanation why she did not make such application right at the beginning. She has been legally advised at least up to 10 August 2007. This smacks of a tactical move on the part of the applicant;
		(c)	The aim of the judicial review is to interfere with the conduct of the disciplinary hearing to be held on 15 November 2007 and to allow the legal aid stay to continue could disrupt the disciplinary hearing irrespective of the merits of the application for judicial review;
		(d)	The lack of merits in the application for judicial review.
	2.	I am of the clear view that the application has no merit.
		(a)	The gist of the complaint of the applicant is set out in the letter dated 10 August 2007 from Messrs. Henry Fok & Co to the Chairman of the Hong Kong Dental Council;
		(b)	Rule 19(1) of the Dentists (Registration and Disciplinary Procedures) Regulations gives the Council the power to refer the case back to the PIC for further consideration when further information subsequently produced suggests that ‘an inquiry should not be held’;
		(c)	The Council declined to exercise such power in the letter of 5 October 2007;
		(d)	Based on the materials presented by the Applicant, I do not see how it is arguable that the subsequently produced information suggests that an inquiry should not be held. Given the disputes revolved around areas of professional competence, it is eminently suitable for determination by the peers of the Applicant. The Applicant has not advanced any basis to challenge this decision of the Council;
		(e)	The Applicant has not presented a case which on further investigation might show that the decision of the Council in refusing to refer the case back to the PIC is susceptible to public law challenge;
		(f)	The Applicant’s challenge to the previous decision of the PIC based on subsequently produced information is misconceived. She should have presented all the documents she wished the PIC to consider before the matter was referred by the PIC for inquiry;
		(g)	The merits of the complaints could and should be canvassed at the disciplinary hearing and there should not be delay to the same.”

8.This is the applicant’s application by summons dated 30 November 2007 for leave to appeal out of time.

9.This is not a case that time should be extended.  The judge exercised his discretion to lift the legal aid stay.  I see no basis upon which his exercise of discretion could be faulted.

10.I am also satisfied for the reason given by Lam J that this is case where leave to apply for judicial review should not be granted.

11.The application dated 30 November 2007 is dismissed.

The Applicant, in person, present.