To Chun Fung v. The Medical Council of Hong Kong

HCAL 71/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 71 OF 2008

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BETWEEN

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Before: Hon Andrew Cheung J in Chambers

Date of Hearing: 15 September 2009

Date of Judgment: 15 September 2009

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J U D G M E N T

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1.It is quite true that leave to apply for judicial review was granted last year by Hartmann J, as he then was. At that time, the substantive complaint of the applicant was that he was denied access to a report comprising three pages which was supposed to have been signed and made by him, which he strenuously denies.

2.But the grant of leave has since been overtaken by subsequent events because, at a hearing held before this Court in January this year, the parties, with some active encouragement from the Bench, came to a consent order with a view to moving things forward. The agreement embodied in the consent order was aimed at resolving the differences between the parties without resorting to a substantive hearing of the application for judicial review.

3.In short, the parties agreed that if the complainant was agreeable to the release of the subject report to the applicant for forensic examination, no inquiry would be held pending the preparation of the expert’s report and the submission of the applicant’s further explanation following the obtaining of such report. On the other hand, if the complainant was not agreeable to the release of the subject report, the matter would proceed to the inquiry stage before the Medical Council but, in such event, the Secretary of the Medical Council, who would have the responsibility of prosecuting the complaints before the Council, would not contest before the Council that the report was not signed by the applicant.

4.Certainly, at least the Court, if not the parties, had in mind also the provisions in regulation 15 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap 161E, which empowers the Council to refer back a complaint or inquiry to the Preliminary Investigation Committee (PIC) for further inquiry. So, for instance, if the applicant should manage to come up with a favourable expert examination report regarding the subject report, the applicant might wish to make use of the regulation to persuade the Council to refer back the whole matter to the PIC for further inquiry.

5.What the consent order did not envisage is the present situation where the complainant is willing to release the subject report to the applicant for examination, but she is unable to tell which are the original pages and which are the copy pages comprising the subject report, the facts being that she has, according to her, since obtaining the subject report, made photocopies of the report and supplied the photocopies to various entities. In the process, she now suggests, she may have mixed up some of the pages.

6.What was also not foreseen, at least by the Court, at the time of the consent order is the intended approach of the Secretary in the proceedings before the Council, namely, that even in the event that the Secretary has to accept that the report has not been signed by the applicant, some residual use may still be made of the report in proving the complaints against the applicant. That renders the forensic examination of the report quite important from the perspective of the applicant.

7.The first meeting of the Medical Council has been fixed for 30 September. Thus far, no forensic examination of the various pages, original or copy pages, of the report has been made by the applicant because the applicant wants the complainant to answer several questions which can be found on page 117 of the hearing bundle for today before conducting the forensic examination.

8.Having looked at those questions, in my view, at least questions 1 to 3 are reasonable questions to be asked of the complainant, given her latest story – I am using the word ‘story’ in a neutral sense – and given the importance of the report, whether it was signed by the applicant or not, to both the case of the Secretary as well as to the case of the applicant regarding the complaints in question.

9.At today’s hearing, Mr Mak, appearing for the Secretary, has informed the Court that the complainant is now prepared to answer those three questions by means of a statutory declaration within seven days from the date hereof. In those circumstances, there is less than half a month’s time between today’s hearing and the scheduled hearing before the Medical Council. Originally, the consent order envisaged giving the applicant one month plus seven days to come up with the expert examination report and his further explanation. The short time now available is plainly insufficient for the purpose.

10.I have seriously considered the point urged upon me by Mr Mak that the Court should not micro-manage the proceedings of a disciplinary tribunal. That must be very true. The legislature has not entrusted the task of conducting disciplinary proceedings to the court sitting in its public law jurisdiction. The court only plays a supervisory role and should not intervene prematurely.

11.However, in the peculiar circumstances of the present case, in my view, the correct way to approach the matter is to look at today’s application for a stay of the Medical Council’s inquiry as, in substance, an application for further directions from the Court for the purposes of working out the consent order. As I said, the consent order aimed at progressing the matter to its logical conclusion in a sensible way. What it did not envisage was the situation that has happened, as I have just described, but that should not be allowed to defeat the purpose of the consent order.

12.In my view, in light of what has happened, further directions should be given by the Court to work out the provisions contained in the consent order. On that basis, in my view, the directions to be given are that the applicant should be given the time originally envisaged, namely, one month plus seven days, to come up with the examination report and his further explanation. Given it is late now, time should start to run from tomorrow.

13.As I said, the complainant’s statutory declaration will be forthcoming within seven days. There is no need for the applicant to wait for her declaration before starting work. In other words, the applicant shall have one month plus another seven working days from tomorrow to put forward his examination report plus his further explanation to the Medical Council.

14.In the meantime, the Medical Council should not hold any inquiry. This would only cause a delay of slightly more than one month, although I have been told that, obviously for administrative reasons, the next sitting of the Council will not be held until March next year. However, given the importance of the matter to the applicant and given the fact that the applicant is not responsible for arranging the sittings of the Medical Council, I do not think this should stand in the way of the directions that I have described, the purposes of which are to enable the applicant to fully put forward his side of the story and to allow a proper and meaningful inquiry to be conducted, if required.

15.For the avoidance of doubt: even if the complainant should fail to come up with her statutory declaration within the time suggested, or at all, it should not prevent the applicant from conducting the document examination and coming up with the report and explanation because neither the Medical Council nor the Secretary are responsible for the conduct of the complainant. But in that eventuality, there is nothing to stop the applicant from drawing the Council’s attention to that fact at the hearing before the Council.

16.I hope I have, by those directions, dealt with the substantive matter before the Court today. I should add this. At one stage, the Secretary sought to resolve the difficulty created by the unforeseen event described by conceding that, at the hearing before the Council, the Secretary would not contest that the subject report was not signed by the applicant.

17.Superficially, it has the effect of removing the need for the forensic examination of the report but, as I have explained, the intended approach of the Secretary really is that some residual use of the report will still be made at the hearing before the Council. That makes the forensic examination of the report quite essential from the perspective of the applicant. That also means that the answering by the complainant of the three questions (which the applicant insists), is an important matter. I do not regard that as a delaying tactic on the part of the applicant.

18.Having said all that, the Secretary, in making the concession, was not to blame; as I see it, it was a genuine attempt on the part of the Secretary to resolve the difficulty that had unexpectedly popped up.

19.Those are the directions and my reasons.

[Submissions on costs]

20.Unfortunately, the parties, after the unforeseen difficulty had arisen, did not immediately come back to court for further directions; so in the circumstances, the scheduled hearing of the Medical Council has to be postponed. As I see it, today’s application is really an application to the court for further directions. With the benefit of hindsight, certain steps could have been taken, or taken earlier. Looking at the matter globally, I think the fairest order would be costs in the cause.

Mr Peter Duncan SC and Miss Angela Gwilt, instructed by Lawrence K Y Lo & Co, for the applicant

Mr Andrew Mak, instructed by the Department of Justice, for the Secretary of the Medical Council of Hong Kong