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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Before: Hon Andrew Cheung J in Court

Date of Hearing: 29 March 2010

Date of Judgment: 29 March 2010

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J U D G M E N T

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1.This is the third time that the parties appear before the Court.  I would not repeat what I have said on the last occasion regarding the proceedings and how the original leave granted to apply for judicial review has been overtaken by subsequent events, particularly by the making of the consent order. 

2.After clarifications made today, the parties are agreed that the matter should be left to be dealt with by the Medical Council.  That was indeed the underlying intention of the consent order.  It would have the effect of making the determination of the original challenge quite unnecessary.

3.For that reason, Ms Gwilt, on behalf of the applicant, has asked for leave to withdraw paragraphs 1 to 6 of her client’s summons dated 11 August 2009.  For the same reason, Mr Mak, for the Medical Council, does not insist on the Court dealing further with the earlier summons to set aside leave which has been adjourned sine die by the Court as part of the consent order.

4.Indeed, the parties agree with the Court that this is the right time to bring to an end the present proceedings.  Certainly, the Court does not hope that there will be further judicial review proceedings to be taken out arising from the outstanding Medical Council inquiry, but any application for leave to apply for judicial review against any future decisions of the Medical Council should best be dealt with in fresh proceedings.

5.Indeed, apart from the question of costs, there is nothing else to be dealt with in these proceedings.  As I said, the original challenge has been completely overtaken by subsequent events.

6.The matter will be dealt with before the Medical Council, and the applicant will, no doubt, make his full submissions before the Council in defence of the complaint.

7.In those circumstances, I would simply give the applicant leave to withdraw his application for judicial review.  For that reason, I need not make any order regarding the respondent’s summons to set aside leave which has been adjourned sine die with liberty to restore.

8.The only outstanding matter is the question of costs.  Costs have either been reserved or been made in the cause in previous orders of the court, and in that regard, I regard the costs of the application for leave before Hartmann J on 24 July 2008 as having been reserved by the court, although no express order has been made to that effect.

9.I have listened carefully to Ms Gwilt’s arguments on behalf of her client.  She has said everything that could be said in support of his application for the costs of these proceedings.  However, this is one of those cases in which the substantive merits of the underlying dispute have an overwhelming effect on the question of costs.

10.I am prepared, for the sake of argument, to assume that the applicant had a prima facie case to apply for leave to challenge the relevant decisions made by the Preliminary Investigation Committee (“the PIC”) and to seek relief against the Medical Council.  However, that challenge must be viewed in the larger context of the complainant’s allegation that she had indeed been treated by the applicant, which led to all her sufferings and the complaint, as well as the applicant’s denial that he was the treating doctor or was the maker of the relevant medical report in question.

11.This dispute between the complainant and the applicant gave rise to the complaint that the PIC had refused the applicant access to the original report for examination purposes.  In my view, this challenge cannot be sensibly separated from the underlying dispute between the applicant and the complainant as to whether the applicant was the treating doctor and the maker of the report in question.

12.Ms Gwilt argues that her client should be given the costs of these proceedings regardless of the outcome of the disciplinary proceedings.  Of course, if the applicant should be successful in the disciplinary proceedings, then even under Mr Mak’s proposed order, ie costs in the cause of the disciplinary proceedings, he would get the costs of these judicial review proceedings anyway.  So in other words, the order proposed by Ms Gwilt and the one contended for by Mr Mak would make no difference in that eventuality.  The different orders would make a difference only in the scenario where the applicant should fail in the disciplinary proceedings.  In that eventuality, one asks whether it would be right and fair, in the overall situation of the case, to award the applicant with the costs of these proceedings, even though in fact he had been the treating doctor and the maker of the report, and even though (ex hypothesi) he had falsely alleged that the report was a forgery and he had, I should add, quite wrongfully denied that he had been the treating doctor of the complainant.

13.As I said, this is one of those cases where the merits of the underlying dispute really have an overwhelming or overshadowing effect on the question of costs regarding the proceedings before the court.  In my view, the answer to my earlier question would be in the negative.  It would not be right and fair to award the applicant with the costs of these proceedings if he really was the treating doctor of the complainant and the maker of the report.

14.So for these reasons, I am not with Ms Gwilt.  In my view, the fairest order to make is one which would tie the costs of these proceedings with the ultimate result in the disciplinary proceedings.  The disciplinary proceedings may be resolved at a full inquiry, or it may be resolved by a referral back to the PIC by the Medical Council pursuant to regulation 15 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap 161E).  Of course, if a referral is made, I should add, it does not mean that the proceedings would come to an end necessarily.  It would only mean that the PIC would have to consider afresh the complaint, and of course if the PIC should come to the view that the complaint is not sustainable at all and dismiss the complaint, at that stage it would mean the end of the proceedings.

15.But regardless of how the complaint is to be resolved in the disciplinary proceedings, the fairest order would be to make the costs of these proceedings dependent on the outcome of the disciplinary proceedings.  In other words, I would make the costs of these proceedings, including all costs previously reserved, in the cause of the outstanding disciplinary proceedings against the applicant.

16.I would make one clarification in relation to those previous orders as to costs which made costs in the cause.  Since leave is now given to the applicant to withdraw the proceedings, for the purposes of those previous costs orders, the Court would clarify and direct that they should be regarded as costs in the cause of the outstanding disciplinary proceedings as well.

17.Just to be fairly clear, I have said, “costs in the cause of the outstanding disciplinary proceedings”.  If the current disciplinary proceedings should, for any reason (including any technical reasons) come to an end, that would be determinative of the incidence of costs regardless of whether any fresh disciplinary proceedings would be brought against the applicant, because in my view, consideration of certainty and finality of the matter would override any possible argument that costs should be made to be dependent on any such fresh disciplinary proceedings.  I say this just to avoid any possible dispute in the future.

18.And, one last clarification just to avoid any possible doubt:  when I say “in the cause of the outstanding disciplinary proceedings”, I include the result of any possible appeals from the decision and findings of the Medical Council as well.  So, for instance, if the findings or determination of the Medical Council is reversed on appeal, then of course it should be the result of the appeal which would determine the incidence of costs.

Ms Angela Gwilt, instructed by Lawrence K Y Lo & Co, for the applicant

Mr Andrew Mak, instructed by the Department of Justice, for the  respondent