Dr. Chan Hei Ling Helen v. The Medical Council of Hong Kong

CACV 403/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 403 OF 2006

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL
OF HONG KONG MADE ON 31^ST OCTOBER 2006)

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BETWEEN

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Before: Hon Le Pichon, Cheung JJA and Stone J in Court

Date of Hearing: 16 July 2009

Date of Judgment: 16 July 2009

Date of Handing Down Reasons for Judgment: 21 July 2009

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.This was an application by the Medical Council of Hong Kong (“the Council”) for leave to appeal to the Court of Final Appeal from an order of this court dated 30 April 2009 allowing an appeal by Dr Chan Hei Ling Helen (“the respondent”) from an order of the Council of 1 November 2006 made after a disciplinary inquiry. At the conclusion of the hearing, leave was granted pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, with written reasons to be handed down which we now do.

2.The appeal by the respondent was allowed not because of its intrinsic merits but because the new evidence adduced by the Council shortly before the appeal disclosed that the legal adviser had been present throughout the tribunal’s deliberations and had also prepared the first draft of the decision, albeit in the presence of the tribunal.

Questions of great general or public importance

3.Three such questions arise. As reformulated by Mr Bleach SC, who appeared for the Council, they read:

“(A) Whether the Court of Appeal erred in holding that the statutory scheme under the Medical Registration Ordinance (Cap. 161) and its Regulations (“the Ordinance”) does not allow the Legal Adviser to retire with the Council during its deliberation in a disciplinary inquiry and to assist in producing a first draft of its decision based on the deliberations of the Council (“the impugned practice”);

(B) Whether, in holding that the statutory scheme does not authorize the impugned practice, the Court of Appeal erred in proceeding from the incorrect premise that the role of the Legal Adviser was unfair to the defendant medical practitioner being the subject of the disciplinary inquiry, and/or gave rise to a perception of bias;

(C) Whether the Court of Appeal (particularly Mr. Justice Cheung, Justice of Appeal, to whose judgment Mr. Justice Stone agreed) erred in stating that the impugned practice offends against the right to a fair hearing under Article 10 of the Hong Kong Bill of Rights.”

4.The questions posed relate to the due administration of justice and the fairness of the procedures adopted by the Council, a self-regulating professional body, in the conduct of disciplinary proceedings which are brought to protect the public interest. In my view, the public as well as professional bodies generally will benefit from definitive guidance by the Court of Final Appeal by their answers to those questions.

Costs

5.Mr Bleach SC who appeared with Mr Wong applied for a certificate for 2 counsel pursuant to Order 62, First Schedule,Part II paragraph 2 (3). Mr Thong who appeared for the respondent did not oppose the application.The decision on costs was reserved to be dealt with in the reasons for judgment.

6.That provision was recently amended with the introduction of the Civil Justice Reform (“CJR”). Set out below is the marked up version showing the amendment made:

“(3) No costs shall be allowed in respect of counsel appearing before a master in chambers, or of more counsel than one appearing before a judge in chambers, unless the master or judge master in open court or a judge or the Court of Appeal, unless the master or judge or the Court of Appeal, as the case may be, has certified the attendance as being proper in the circumstances of the case.”

7.Prior to the introduction of the CJR, as Rogers VP explained in S v L, (unreported), CACV 205 of 2007, 20 November 2007, para 24,

“… the practice of this court is that no certificate for 2 counsel is given in this court as it is considered that parties are entitled to have leading counsel in the court of appeal should they so choose.”

See also para 10 of the judgment of Ma CJHC in PCCW-HKT Telephone Ltd v Telecommunications Authority, (unreported), CACV 274 of 2003, 7 September 2004, where a similar view was expressed, Ma CJHC opining that it would be surprising if the taxing master were to disallow the costs of 2 counsel.

8.While the amendment made to paragraph 2(3) gave effect to rule 247 of the Steering Committee’s Recommendation, the intention behind rule 247 would not appear to have been to effect any change of substance.That is apparent from the Consultation Paper issued by the Steering Committee in April 2006 inviting comments, inter alia, to the proposed amendment.Para 3.3 (c)(vii) of the Paper, in pertinent part, reads:

“(vii) First Schedule – Fees to Counsel

…

It is not the intention of the reform to affect the present position on rights of audience of the profession.The purpose of the amendment is to avoid argument on taxation as to entitlement of counsel’s fees.”

9.I consider that the amendment was not intended to effect a change of substance.The practice of this court subsisting prior to the introduction of the CJR remains unchanged: a party coming to this court is entitled to have leading counsel should they so choose.For those reasons, for my part, I would grant the certificate sought.

Hon Cheung JA:

10.I agree.

Hon Stone J:

11.I agree with the Reasons for Judgment of Le Pichon JA and have nothing to add.

Hon Le Pichon JA:

12.Accordingly, there is to be an order of costs in favour of the Council with a certificate for 2 counsel.

Mr K Y Thong, instructed by Messrs JSM, for the Appellant/Respondent

Mr John Bleach SC and Mr Wesley W C Wong DPGC, instructed by the Department of Justice, for the Respondent/Applicant