Dr Li Wang Pong Franklin v. The Medical Council of Hong Kong and Another
Read the full judgment text of HCAL 12/2008 on BabelCite. This High Court CFI judgment was delivered on 7 January 2009.
1. The applicant is a registered medical practitioner in private practice. On 28 August 2003, he performed a liposuction procedure on a patient, Madam Lam King Fong. Unfortunately, the patient collapsed during the procedure and passed away shortly thereafter. An inquest was held (Coroner Case No CCDI 1002/2004) and the deceased was found to have died as a result of misadventure.
Cited by 8 cases · Cites 9 cases
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HCAL 12/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 12 OF 2008 ---------------------- BETWEEN
---------------------- Before: Hon A Cheung J in Court Date of Hearing: 15 December 2008 Date of Judgment: 7 January 2009 ------------------------ J U D G M E N T ---------------------- Facts 1.The applicant is a registered medical practitioner in private practice. On 28 August 2003, he performed a liposuction procedure on a patient, Madam Lam King Fong. Unfortunately, the patient collapsed during the procedure and passed away shortly thereafter. An inquest was held (Coroner Case No CCDI 1002/2004) and the deceased was found to have died as a result of misadventure. 2.The matter was reported in an article dated 1 March 2006 on Apple Daily online. The English translation of the article reads:
3.By an e-mail dated 1 March 2006, a certain Mr Wong wrote to the Medical Council of Hong Kong about the case. The writer attached a copy of the Apple Daily article to his e-mail and wrote that he believed the article constituted professional misconduct under the Professional Code and Conduct of the medical profession. He pointed out that according to the article, the applicant had claimed in an interview that he had been practising as a medical practitioner for many years; he had previously worked as an attending doctor in the Accident and Emergency Department of Queen Mary Hospital where he had performed emergency resuscitation or treatment on many occasions each week; but he seldom did so after he had become a medical practitioner in private practice. Mr Wong therefore complained that the applicant had made references to his experience, skills, qualifications, practice, clinic and equipment which could be construed as promotional, contrary to Part B, art 5.1 of the Professional Code and Conduct. Mr Wong concluded that the applicant had ‘sanctioned, acquiesced in or failed to take adequate steps to prevent the publication of the article in question’. 4.After receipt of the e-mail, the Secretary of the Medical Council duly submitted the case to the Chairman of the Preliminary Investigation Committee (PIC) established under Part IIIE of the Medical Registration Ordinance (Cap 161) for consideration. 5.On 18 March 2006, the Chairman of the PIC identified a number of problems in the case in addition to the self-promotion issue specifically pointed out by the writer of the e-mail, and directed the Secretary to obtain the Coroner’s report before a further decision was made, which was duly done by the Secretary on 23 May 2006. 6.On 27 May 2006, the Chairman of the PIC directed that the case be referred to the PIC for its consideration and indicated a total of seven charges or allegations to be addressed. Self-promotion was one of the issues, but the other six all related to the liposuction procedure carried out by the applicant and his management of the patient. 7.A draft notice of meeting of the PIC (the PIC notice) was prepared by the Secretary which was sent to the Department of Justice for comment. 8.On 18 September 2006, the Chairman of the PIC directed that the advice of Professor Matthew Chan, an expert who had given evidence at the inquest, be sought with respect to some further matters raised by government counsel. A letter dated 25 September 2006 requesting for assistance was therefore sent to Professor Chan, who gave a substantive reply by letter dated 30 September 2006. 9.Having considered the reply from Professor Chan, on 1 December 2006, the Chairman of the PIC provided further comments on the draft PIC notice to be issued to the applicant. 10.On 8 January 2007, the Secretary formally issued a notice of meeting of the PIC to the applicant. Amongst other things, the PIC notice informed the applicant that:
11.It should be noted that the issue of self-promotion did not feature in the PIC notice. This was apparently because by then, the Court of First Instance had already held that the relevant provisions in the Professional Code and Conduct against practice promotion were constitutional: Dr Kwok-hay Kwong v The Medical Council of Hong Kong, HCAL 46/2006, Reyes J (11 August 2006). 12.In response to the invitation made in the PIC notice to provide explanation, the applicant through solicitors lodged a written explanation on 31 May 2007. It included a challenge to the vires of the notice of meeting. I will presently return to the applicant’s complaint. 13.The PIC considered the applicant’s written explanation, including the complaint regarding vires, and eventually came to the conclusion that the latter complaint was unmeritorious. Having given the applicant a further opportunity to provide a further written explanation on the merits of the case, and not having received any such further explanation from the applicant, the PIC determined in a meeting held on 8 October 2007 that the case be referred to the Medical Council for inquiry. On 23 November 2007, a notice of inquiry before the Medical Council was issued to the applicant. 14.On 25 January 2008, the applicant applied for leave to apply for judicial review of the decision of the PIC to refer the charges and matters to the Medical Council for inquiry; the referral of the charges and matters by the PIC to the Medical Council for inquiry; the decision by the Medical Council to hold an inquiry in relation to the charges and matters; and the service of the notice of inquiry before the Medical Council on the applicant. The applicant sought relief accordingly. 15.On 1 February 2008, the Court granted leave to the applicant to apply for judicial review. Applicant’s case 16.The applicant’s case is based on ultra vires. He complains that under the Medical Registration Ordinance and the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (the Regulation) made under s 33 of the Ordinance:
17.The applicant therefore complains, on the facts of the present case, that the PIC notice was unlawfully issued because it related to six charges or matters that were not complained about in the e-mail received by the Secretary. Further, the Chairman of the PIC was wrong in causing investigations and enquiries to be made with Professor Chan and the Coroner’s Court regarding the procedure the applicant had carried out on the patient and his management of her, which were unrelated to the substance of the complaint received by the Secretary. The Chairman of the PIC was also wrong to formulate the charges contained in the PIC notice. Relevant provisions 18.The case turns on statutory construction. 19.S 21 under Part IV of the Medical Registration Ordinance sets out the disciplinary powers of the Medical Council. Amongst other things, if, after due inquiry into any case referred to it by, amongst others, the PIC, the Council is satisfied that a registered medical practitioner has been guilty of misconduct in any professional respect, the Council may, in its discretion, make various orders of sanction against the medical practitioner. 20.The functions of the PIC and its Chairman are to be found in s 20T of the Ordinance. Amongst other things, the PIC has the function to make preliminary investigations into complaints or information touching any matter that may be inquired into by the Medical Council and to make recommendations to the Medical Council for the holding of an inquiry under s 21. S 20T(2) provides that a matter brought to the attention of the PIC for determining whether the Medical Council should be recommended to hold an inquiry shall first be considered by the Chairman of the PIC or, in his absence, the Deputy Chairman. S 20T(3) provides that the PIC, its Chairman and Deputy Chairman shall act in accordance with such regulations in relation to their procedure made under s 33, namely, the Medical Practitioners (Registration and Disciplinary Procedure) Regulation. 21.The more relevant provisions in the Regulation are as follows:
22.Rather confusingly, the provisions in the Regulation are numbered as ‘sections’. Unless the context otherwise indicated, all references to ‘sections’ in the remainder of this judgment are references to the sections in the Regulation. Applicant’s interpretation 23.It is the contention of Mr Russell Coleman SC (Ms Elizabeth Cheung with him), appearing for the applicant, that s 6(1)(a) refers to ‘a complaint’ being made to the Secretary that a registered medical practitioner has been guilty of misconduct in a professional respect, and the Secretary submitting ‘the complaint’ to the Chairman of the PIC for consideration. If the Chairman and Deputy Chairman of the PIC consider ‘the case’, that is to say, the complaint, to be frivolous or groundless and should not proceed further, they may dismiss it: s 6(2)(a) and (3). 24.Furthermore, if the Chairman requires clarification of the complaint from the complainant or requires the complainant to make a statutory declaration in support of the complaint, he may require the complainant to do so: s 8(1). If the complainant refuses to comply with the requirement, the Chairman of the PIC may decline to proceed with the investigation of the case (s 8(3)). 25.Most importantly, Mr Coleman submits that if the Chairman does not dismiss the case (for being frivolous or groundless etc), he must direct that the case be referred to the PIC for its consideration: s 9(1). And in this regard, ‘the case’ simply means the ‘complaint’ made to the Secretary referred to in s 6(1)(a) (or the ‘information’ received by the Secretary, or the ‘matter’ referred by a Committee of the Medical Council to the Secretary, as the case may be: see s 6(1)(a), (b) and (c)). 26.Leading counsel therefore contends that ‘the case’ referred to by the Chairman of the PIC to the PIC for consideration cannot go outside the complaint that has been made by a complainant to the Secretary. If, upon consideration of the case so referred to the PIC, the PIC should consider that the charges or matters contained in the PIC notice require amendment, the PIC may direct the Secretary to make the necessary amendments and advise the doctor of the same and invite him to give any further explanation which he may offer: s 11(6). It is at that stage only that the PIC may bring in new charges or allegations against the doctor, but not earlier, and certainly not by the PIC Chairman of his own volition at the PIC notice stage. 27.Mr Coleman further submits that it is also at the stage of the PIC consideration that the PIC may cause further investigations or further clarification to be made and may obtain such additional advice or assistance as it may consider necessary: s 11(7). Certainly, the Chairman of the PIC has no power of his own, counsel submits, to cause such investigations or clarification to be made or to obtain such advice or assistance prior to the PIC consideration stage. Anomalous results 28.It is quite apparent from Mr Coleman’s construction of the relevant provisions that some anomalies would arise. For instance, a complainant makes a specific complaint against a doctor to the Secretary and supplies materials in support of his complaint. The Chairman of the PIC finds the specific complaint frivolous or groundless and should not proceed further. However, he finds in the materials supplied by the complainant some other matter or allegation which may raise a question whether the doctor has been guilty of misconduct in a professional respect. According to Mr Coleman, the Chairman and the Deputy Chairman must dismiss the case for being frivolous or groundless etc. The Chairman may not and indeed has no power to refer the other matter or allegation which appears to raise a question of professional misconduct to the PIC for consideration, and no PIC notice about that other matter or allegation can be issued. Mr Coleman submits that in such a hypothetical case, what the Chairman may do is to make a complaint about the other matter or allegation to the Secretary in his personal capacity, as a member of the general public. 29.Needless to say, this last submission, which involves the Chairman of the PIC making a complaint to the Secretary in his personal capacity, sounds odd. 30.The matter becomes stranger if the facts of the example are varied slightly. Suppose a member of the public simply supplies the same materials to the Secretary without making a specific complaint against the doctor. In that situation, according to Mr Coleman’s interpretation of the provisions, ‘the case’ that the Chairman has to consider is the ‘information’ received by the Secretary, namely, the materials supplied by the member of the public. The Chairman has to consider whether ‘the case’ is frivolous or groundless, and should not proceed further. Now, ex hypothesi, the materials contain a matter or allegation which raises a question whether the doctor has been guilty of misconduct in a professional respect. In those circumstances, the Chairman cannot possibly dismiss the case summarily. Rather, he must refer the case to the PIC for consideration and the PIC notice will have to specify the matter or allegation that appears to the Chairman to give rise to the question about the doctor’s professional conduct. 31.In short, whether the real matter or allegation going to possible professional misconduct can be referred to the PIC for consideration depends fortuitously on whether the member of the public in my two examples chooses to make a specific complaint against the doctor or simply to leave everything to the Chairman of the PIC to consider. 32.A further anomaly is easily apparent by again varying the facts of the example slightly. Two complainants, both relying on the same materials, make specific complaints against the same doctor to the Secretary. Assume that the materials, when properly considered by a trained medical practitioner, appear to disclose several possible complaints of professional misconduct against the doctor. One of the two complainants successfully makes one of them, which is, by definition, not frivolous or groundless. According to Mr Coleman’s construction, the Chairman must refer that complaint (and nothing else) to the PIC for consideration. However, counsel accepts that the PIC, when considering the referred complaint, has power to include other charges or allegations in the PIC notice by way of amendment: s 11(6). In those circumstances, all the possible complaints can be before the PIC which the PIC is free to consider. 33.The other complainant, however, is not able to make even one of his specific complaints correctly. The specific complaints that he makes are all frivolous or vexatious. According to Mr Coleman, the Chairman must dismiss his case and has no power to refer any possible matters of professional misconduct to the PIC for consideration. 34.In other words, whether the real matters of possible professional misconduct can be referred to and considered by the PIC is again a fortuity. True intent and purpose 35.Given those anomalous results, which are plainly unattractive, one must look hard at the provisions and the underlying purpose that they seek to serve as well as the context in which they have been made, in order to see whether these anomalous results really reflect the true intention of the Regulation. 36.Put another way, one must, in interpreting the relevant provisions, fully and firmly bear in mind the purpose and context of the Ordinance and Regulation. HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, 606 (para 63); Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1, 13-14 (paras 28 & 29); the Interpretation and General Clauses Ordinance (Cap 1), s 19. 37.The function to be performed by the PIC has been commented upon by the Court of Appeal in Dr Leung Kam Chung Kenneth v Medical Council of Hong Kong, CACV 33/1996 (25 July 1996), in relation to the now repealed Medical Practitioners (Registration and Disciplinary Procedure) Regulations, which were replaced by the Regulation in 1996. Litton VP (as he then was) explained the matter as follows (at p 5):
38.In R v General Medical Council, Ex parte Toth [2000] 1 WLR 2209, Lightman J commented on the English disciplinary provisions in the following terms (at pp 2217-2219):
The approach in Toth has been followed thereafter, subject to minor qualifications, as is clear from the English Court of Appeal decision in Henshall v General Medical Council (2005) 88 BMLR 146, 154 to 157 (paras 25 to 33). 39.The parties are in agreement that although these cases deal with different provisions which set out procedures that differ in detail, the above extracts do provide a correct description of the true intent and purpose of the provisions currently in force in Hong Kong. 40.Mr Coleman submits that the screening function performed by the Chairman of the PIC as a screener is to filter out unmeritorious complaints, so as to ensure that medical practitioners are not vexed with complaints which might turn out, after inquiry, to be groundless. The provisions set out to provide a just balance between the legitimate expectation of the complainant that a complaint of serious professional misconduct will be fully investigated and the need for legitimate safeguard for the practitioner, who as a professional person may be considered particularly vulnerable to and damaged by unwarranted charges against him (Toth at para 10). The complainant, counsel submits, has no legitimate expectation beyond the full and fair consideration and disposal of the complaint that he makes. 41.In my view, Mr Coleman has taken too narrow a view of the true intent and purpose of the provisions under consideration. As has been pointed out by Lightman J in Toth (at para 10), the provisions are designed to protect the public from the risk of practice by practitioners who for any reason (whether competence, integrity or health) are incompetent or unfit to practice and to maintain and sustain the reputation of, and public confidence in, the medical profession. As the learned judge has pointed out, ‘the public have higher expectations of doctors and members of other self-governing professions, and their governing bodies are under a corresponding duty to protect the public against the incompetent as well as the deliberate wrongdoer’ (para 10). 42.In those circumstances, what the provisions aim to achieve is not only the fulfilment of the legitimate expectation of the complainant that a complaint of serious professional misconduct will be fully investigated, but also the wider question of protecting the public from the risk of practice by practitioners who are incompetent or unfit to practice and to maintain and sustain the reputation of, and public confidence in, the medical profession. 43.Viewed in that light, it is immediately apparent that the interpretation contended by Mr Coleman, which leads to the anomalous results that I have described, is counter-productive to the purpose that the provisions seek to achieve. 44.One common thread in the examples I give, based on Mr Coleman’s construction of the provisions, is that the Chairman of the PIC, and thus the PIC itself, must turn a blind eye to any matters giving concern about the professional conduct of the medical practitioner in question, unless the complainant manages to make a specific complaint against the medical practitioner which is not frivolous or vexatious (or does not attempt to do so at all). In the event that the complaint made is wide off the mark, the only option open is for the Chairman to take off his hat as Chairman and make a complaint himself to the Secretary as an ordinary member of the public. Needless to say, one would be very slow to infer that this is what the Regulation intends to be the proper procedure to follow, whereby the interest of the public against medical professional misconduct is to be safeguarded. 45.The above anomalous results also highlight the absurdity that, from the perspective of the lay member of the public, it is better for him to simply supply all relevant materials to the Secretary without making any specific complaint against the doctor in question, rather than to try his hand on setting out a specific complaint which might be found by the Chairman and Deputy Chairman of the PIC to be off the mark. 46.It is difficult to see how the interest of the general public is protected by such a result. How things happen on the ground 47.In this regard, it is highly pertinent to look at the evidence, and see how matters actually operate on the ground, bearing always in mind that the current provisions were made in 1996 (LN 521/1996) when there had already been a long history of regulating professional conduct by the Medical Council and the PIC. In his affirmation filed on 8 April 2008, the Secretary of the Medical Council explained:
48.In an affidavit also filed on 8 April 2008, the Chairman of the PIC set out what actually happened on the ground:
49.In relation to this particular case, this is what the Chairman said (para 10):
50.I consider all this to be important factual background, which the then Governor in Council, no doubt with input from the medical profession, must have fully borne in mind when making the relevant provisions in 1996. There is no suggestion whatsoever that the situation back then was any better than it is now, as has been described by the Secretary of the Medical Council and the Chairman of the PIC in their evidence. Wording of the provisions 51.In my view, Mr John Bleach SC (leading Ms Roxanne Ismail), appearing for the respondents, is correct in submitting that the wording of the relevant provisions does not require, or indeed support, the interpretation advanced by Mr Coleman. 52.Mr Bleach is right in contending that Mr Coleman’s interpretation has too narrowly focused on the ‘complaint’ made by a complainant to the Secretary of the Medical Council, whereas s 6(1)(a) actually refers to a ‘complaint’ or ‘information’. Leading counsel submits that depending on the facts, one may simply have a ‘complaint’ made to the Secretary, or ‘information’ received by the Secretary, or both. In the present case, a specific complaint about self-promotion was made by the complainant to the Secretary. But not only that. Information in the form of the on-line article from Apple Daily was also supplied to and received by the Secretary. And in the information so supplied, various allegations were reported to have been made against the applicant, which appeared to raise a question about his professional conduct. They included his failure to keep a proper medical record of a patient, his need to receive training again on emergency resuscitation procedures, the possibility of the patient dying from an overdose of medication and the lack of sufficient facilities in the clinic for the performance of a complicated liposuction procedure. 53.Thus quite apart from the specific complaint made by the complainant regarding self-promotion, a number of allegations or matters that appear to raise a question of professional conduct have been disclosed in the information supplied to the Secretary. Together, they comprise the ‘case’ that the Secretary has submitted to the Chairman of the PIC for his consideration (s 6(1)). And it is that ‘case’ which the Chairman of the PIC must consider and decide in terms of whether it is frivolous or groundless and should not proceed further, in which event he and the Deputy Chairman should dismiss the ‘case’: s 6(2)(a) and (3). 54.Moreover, it is that ‘case’ which the Chairman of the PIC must refer to the PIC for consideration, if he does not take the view that it is frivolous or vexatious and should not proceed further: s 9(1). Upon such referral, the PIC must consider the ‘case’: s 11(2). At the end of the day, the PIC, in turn, must decide whether to refer the ‘case’, in whole or in part, to the Medical Council for inquiry: s 11(8) and s 13(1). Proper approach 55.In my view, in a case like the present one, the Chairman of the PIC is not bound to adopt a blinkered approach. He is not restricted to the specific complaint made by the complainant. He is entitled to consider the accompanying materials provided by the complainant to see whether they contain or disclose ‘any matters or allegations which may appear to raise a question whether the defendant has been guilty of misconduct in a professional respect’ (s 9(2)(b)). And if after consideration and investigation (infra), these matters or allegations do exist, the Chairman of the PIC is quite entitled to refer the case to the PIC for consideration in relation to them, whether in addition to or instead of the specific complaint originally made by the complainant. 56.This approach is in fact supported by what the Court of Appeal has done in the earlier case of Dr Leung Kam Chung Kenneth, supra, which dealt with the old regulations. In that case, the complaint made by the complainant was in respect of a liposuction procedure performed by the doctor on her legs. The charges that the PIC eventually formulated against the doctor at the hearing before the PIC were in relation to some fee sharing arrangements with a beauty centre. The Court came to the view that these charges were new charges that were not covered by the PIC notice, nor were they the subject matters of the ‘complaint or information’ originally placed before the PIC for consideration. In coming to that view, the Court of Appeal did not restrict itself to considering the complaint about the liposuction procedure. It looked at the letter of complaint as a whole to see whether, when fairly read, it contained or suggested any other matters or questions going to the doctor’s professional conduct, in order to determine what the ‘complaint or information’ was about. Thus the Court considered in detail the original letter of complaint written by the complainant, including the facts of the case set out in her letter, to see if it raised any possible suspicion of ‘canvassing’ and fee sharing against the doctor. The Court came to the conclusion that there was not the ‘thinnest possible suspicion’ of canvassing and fee sharing and the doctor was never asked to provide any explanation for such allegations before the meeting of the PIC. See pp 6, 7 and 11 of the judgment. 57.In my view, that illustrates the proper approach. After receiving a letter of complaint together with supporting materials, the Chairman of the PIC is entitled, not only to look at the specific complaint (if any) made by the complainant, but also to read the letter of complaint and the supporting documents as a whole fairly and reasonably, to see whether they may disclose any matter or allegation that may appear to raise a question about the doctor’s professional conduct. If after consideration and investigation, such a matter or allegation is indeed present, and the case is not frivolous or groundless, the Chairman must refer the whole matter to the PIC for consideration, and the doctor must be given an opportunity to offer his explanation on all matters concerned. 58.As Mr Bleach has submitted, no one is suggesting that the Chairman of the PIC has a free roving commission. However, there is no point in, and the public interest is not protected by, restricting the Chairman to the specific complaint made by a lay member of the public, when in the materials or information supplied by the complainant, matters that may go potentially to the doctor’s professional conduct are disclosed. It does not, with respect, make practical sense to suggest that all the Chairman can and should do, that being the intention behind the provisions, is that he should, in his personal capacity as a member of the public, lodge a complaint with the Secretary in relation to these other matters. There is no logical, rational or practical justification for this highly convoluted way of protecting the interest of the public. This is particularly so when one bears in mind that whatever the Chairman of the PIC may, through the Secretary, include in the PIC notice by way of charges or allegations, the doctor in question is always afforded an opportunity to offer his explanation in relation to the same (s 9(2)(f)), before the matter reaches the PIC for consideration. In other words, such a devious route (ie the Chairman making a complaint as a private person) would serve no real purpose at all, apart from making things unnecessarily complicated and cumbersome for everyone concerned. Proper interpretation 59.Bearing in mind the true intent and purpose of the provisions against its context and having considered the wording used, I have no doubt that Mr Coleman’s interpretation of the provisions is too narrow. In my view, on the true interpretation of the provisions, the Chairman of the PIC is quite entitled to look at the letter of complaint and all other materials received by the Secretary to determine, after consideration and investigation, whether they, including but not limited to the specific complaint (if any) made by the complainant, disclose any matters or allegations which may appear to raise a question whether the doctor has been guilty of misconduct in a professional respect. Interpreting the relevant provisions in such a way as to safeguard the public interest, even if it were to conflict with the interest of the individual, accords well with established rules of statutory interpretation: Bennion on Statutory Interpretation (5th ed) 790-792. Powers to seek outside assistance etc 60.This brings me to the further question of whether, in order to decide the above question and to properly identify and formulate the issue(s) of professional conduct that may be involved, the Chairman of the PIC is entitled to seek assistance and advice from outside sources. In this regard, I note that s 8 specifically empowers the Chairman of the PIC to seek clarification from the complainant and to require him to back his complaint or information by a statutory declaration, failing which the Chairman is entitled to decline to proceed further with the investigation of the case. 61.This issue of seeking assistance generally arises in the present case because the Chairman of the PIC has through the Secretary obtained papers from the Coroner’s Court and sought specialist advice from Professor Chan who has given expert evidence in the inquest. The applicant argues that the Chairman was not entitled to do so. His powers in this regard were restricted to that given under s 8, counsel submits. 62.With respect, I do not agree. I agree with Mr Bleach that in addition to the powers given under s 8, the Chairman of the PIC also has the general powers given by s 40(1) of the Interpretation and General Clauses Ordinance:
See also Bennion, op cit, at p 497; A v Securities and Futures Commission [2008] 1 HKLRD 591, 595 to 596 (paras 22 to 24). 63.In my view, the express and specific powers given in s 8 do not, upon the true and proper construction of all relevant provisions, prevent the Chairman of the PIC from having the deemed general powers given under s 40(1) of the Interpretation and General Clauses Ordinance. The powers in s 8, particularly the power in s 8(3) not to proceed with the investigation further if the complainant does not comply with the requirement made by the Chairman of the PIC under s 8(1), are plainly required in order to enable the Chairman to do his screening job properly. But it does not follow, whether as a matter of logical reasoning or practical reality, that he does not need any other power to discharge fully his function. 64.With the rapid advancement of medical science almost on a daily basis, and with so many specialties and sub-specialties in the medical field nowadays, it is impossible and completely unrealistic to expect the Chairman of the PIC to possess by himself all necessary expert knowledge to deal with each and every case of complaint of professional misconduct. It is simply natural and in fact, in my view, part of the duty of the Chairman of the PIC to seek expert assistance, where appropriate and necessary, from an outside source, in order to determine whether a particular case is frivolous or groundless and should not proceed further, or should be referred to the PIC for consideration, provided that he does not abdicate his duty to the outside expert: see Tam Chi Ming v The Medical Council of Hong Kong [2008] 1 HKLRD 24. 65.By the same token, a complaint made by a complainant or the information supplied by him to the Secretary may or may not contain all the facts, materials or other information that the Chairman may reasonably require in order to fulfil his statutory function. Some of the missing documents or information may well be obtainable from the complainant himself, and thus s 8. But it is just common sense that some of these materials or information may not be within the possession or reach of the complainant, in which case, it is simply natural that the Chairman should need to contact other sources where the materials or information may be available for access to the same. 66.Bearing in mind the true intent and purpose of the relevant provisions, particularly the high aim to safeguard public interest, the very restrictive interpretation advanced by Mr Coleman on behalf of the applicant is wholly unattractive. 67.Indeed, s 11(7) of the Regulation refers to the PIC causing to be made ‘further’ investigations or ‘further’ clarification from the doctor with regard to the case being considered by the PIC and with regard to his written explanation, and the PIC’s obtaining such ‘additional’ advice or assistance as it considers necessary. The wording clearly suggests that prior to the consideration of the case by the PIC, that is to say, at the stage of the Chairman’s consideration of the case, there can be made or caused to be made investigations and clarification generally, and advice or assistance may be obtained from outside sources. 68.In other words, based on the true intent and purpose of the provisions, as well as the wording of the provisions in the Regulation and s 40(1) of the Interpretation and General Clauses Ordinance, and interpreting the provisions in the light of what generally happens on the ground, I have no doubt that the Chairman of the PIC has the general powers given under s 40(1) of the Interpretation and General Clauses Ordinance to carry out investigations, obtain materials and seek expert assistance from outside sources, which are reasonably necessary to enable the Chairman to decide whether the case is frivolous or groundless and should not proceed further, or whether the same should be referred to the PIC for consideration, and to properly identify and formulate the issue(s) of professional conduct that may be involved. Formulating charges in the PIC notice 69.Finally, as regards the Chairman’s taking part in the formulation of the actual charges or allegations in the PIC notice to be sent by the Secretary to the doctor in question, I have no doubt that the Chairman has the power and in fact the duty to do so. 70.It must be noted that the Secretary, in the statutory scheme under the Medical Registration Ordinance and the Regulation, is simply there to provide administrative assistance to the Medical Council as well as the PIC: see, for instance, ss 6(1), 9(1) and (2), 11(2), (3) and (6), 12(1), 13(2) and (4), and 16(1) and (3). He is appointed by the Chief Executive: s 3B of the Medical Registration Ordinance. He is not required to be medically qualified, and as a matter of fact, he is a civil servant. 71.On my reading of s 9(2)(b), which provides for the issue of a PIC notice by the Secretary, the role to be played by him is administrative. Since it is the Chairman who has considered the case and who has come to the view that the case should be referred to the PIC for consideration, as raising a question over the professional conduct of the doctor, it is simply natural and right that the Chairman should take part in formulating the charges or allegations in the PIC notice, which is required to ‘indicate any matters or allegations which may appear to raise a question whether the defendant has been guilty of misconduct in a professional respect’. It is difficult to imagine how the Secretary, a civil servant, who has not considered the case and who is not responsible for coming to the referral decision, can on his own formulate the charges or allegations in the PIC notice, which, of course, also invites the doctor to provide explanation on those charges or allegations as formulated. 72.To be fair to Mr Coleman, he has not advanced any substantive argument in support of this ground of complaint, which has been mentioned in the Form 86A. Discretionary refusal of relief 73.For all those reasons, the application for judicial review must fail. 74.This being the case, there is no need to deal with Mr Bleach’s fallback position that in any event relief should be refused on a discretionary basis because the outcome of the case is a foregone conclusion. Even assuming (for the sake of argument) that there had been procedural irregularities in the process, it would not have made any difference to the eventual outcome, counsel submits; if the proper procedure had been followed through, the same charges or allegations would have been made against the applicant, placed before the PIC and referred by the PIC to the Medical Council for inquiry. 75.Given my primary conclusion, I need not dwell on these further arguments. The discretion of the Court to refuse relief in an appropriate case cannot be doubted in Hong Kong: Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653; Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679. 76.Counsel has cited to me some English authorities to illustrate the English position. The position in England has been more fully summarised in Fordham, Judicial Review Handbook (4th ed) 496 to 498, where the issue of refusing relief in a case involving an ultra vires or wholly unlawful decision is highlighted. In fact, the matter has been discussed by Lightman J in Toth, supra, at p 2214 (para 6); see also my discussion in Kwong Ka Yin Phyllis v The Solicitors Disciplinary Tribunal, HCAL 93/2004 (12 July 2006), paras 40 to 43. 77.In the present case, to some extent, the matter depends on whether only procedural irregularities are involved or whether the decisions under challenge are wholly unlawful in the sense that they are ultra vires. 78.But as I said, given my primary conclusion, all this is academic. I prefer to rest my decision on the true interpretation of the provisions. Outcome 79.The application for judicial review is dismissed. I make an order nisi that the applicant pay to the respondents the costs of these proceedings, including costs that have been previously reserved. I also grant a certificate for two counsel. 80.I would like to thank counsel for their assistance.
Mr Russell Coleman SC and Ms Elizabeth Cheung, instructed by Richards Butler, for the applicant Mr John Bleach SC and Ms Roxanne Ismail, instructed by the Department of Justice, for the 1st and 2nd respondents |
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