Chu Chun Pu v. Chiropractors Council of Hong Kong

HCAL 75/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTTITUTIOAL AND ADMINISTRATIVE LAW LIST

NO 75 OF 2011

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Before : Hon Au J in Court

Date of Hearing : 19 January 2012

Date of Judgment : 21 March 2012

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J U D G M E N T

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A. INTRODUCTION

1.The applicant is a registered chiropractor in Hong Kong, registered with the Chiropractors Council (the respondent) under the provisions of the Chiropractors Registration Ordinance (Cap 428) (“the CRO”).

2.By a decision dated 7 June 2011 (“the 1^st Decision”), the applicant was found by the inquiry committee of the respondent guilty of professional misconduct in instigating the publication of an untrue statement in a local magazine in November 2007.  By way of sentencing, the respondent also ordered that (a) the applicant be reprimanded in writing and the Secretary to record the same in the register of registered chiropractors (“the 2^nd Decision”), and (b) the order be published in one Chinese and one English newspaper (“the 3^rd Decision”).

3.The applicant in this judicial review now asks the court to quash all the above three decisions.

B. THE FACTS

4.The applicant acquired his chiropractic degree in July 2002 and was first registered as a chiropractor in British Columbia, Canada in September 2003.  He was later registered and has been practising in Hong Kong.

5.Before his chiropractic study but after obtaining his first degree, he worked as a research intern for four months at NASA in the United States in 1998[1]. In other words, when he worked as an intern at NASA, he had not even started his chiropractic study and was not a chiropractor.

6.However, in November 2007, an article (“the Article”) was published in the Next Magazine in Hong Kong, and its website regarding an interview held by its reporter Mr Ngan (“Mr Ngan”) with the applicant.  In the Article, there were these two statements:

(1) As a headline of the Article: “香港首個太空人脊醫” (“Statement A”).

(2) In the body of the Article: “當年是二OOO年，…，朱君璞[ie, the applicant] 是唯一一個香港人脊醫” (“Statement B”).

7.Following the publication of the Article, a complaint was made to the respondent that these two statements were respectively misleading or indicating superiority (for Statement A) and untrue (for Statement B).，

8.After preliminary inquiry, the respondent laid the following two professional misconduct charges against the applicant:

(1) He, being a registered chiropractor, instigated, sanctioned, acquiesced in or failed to take adequate steps to prevent the use of [Statement A], which in the context of the Article is misleading and/or indicates or implies superiority (“Charge A”).

(2) He, being a registered chiropractor, instigated, sanctioned, acquiesced in or failed to take adequate steps to prevent the publication in the Article of an untrue statement that “當年是二OOO年，…，朱君璞是唯一一個香港人脊醫” (ie, Statement B), but in 2000 he was not a registered chiropractor (“Charge B”).

9.The hearing of the charges took place on 7 June 2011 before the inquiry committee of the respondent.  The applicant was represented but did not give evidence.  However, Mr Ngan (the reporter) gave evidence for the applicant at the hearing.  Mr Ngan’s evidence was in gist that the information stated in the two statements was not given to him by the applicant, and the statements were only mistakes made by him and his editor in writing up the Article in an attractive presentation[2].

10.After the hearing, the inquiry committee:

(1) Acquitted the applicant of Charge A as it accepted that it was not reasonably foreseeable to the applicant that Statement A (being intended to be an eye-catching phrase and the actual wording might not be supplied by the applicant to Mr Ngan) would be published and there was little that he could and should have done to prevent its publication. 

(2) By way of the 1^st Decision, convicted the applicant on Charge B, for instigating the publication of Statement B, which was a conduct falling below the standard expected amongst registered chiropractors.  The conviction was premised on the finding that the applicant provided to Mr Ngan for the purpose of publication the information that he was a chiropractor when he worked at NASA[3].

(3) Further made the 2^nd and 3^rd Decisions for sentencing.

11.On 7 September 2011, the applicant applied for leave to apply for judicial review against the 1^st to 3^rd Decisions.  Without prejudice to the respondent’s right to contend that the applicant has not exhausted the alternative remedy, this Court granted leave on 7 October 2011.

C. THIS JUDICIAL REVIEW APPLICATION

C1. Preliminary objection

12.Ms Chow for the respondent first opposes the judicial review on the ground that the applicant has not exhausted the appeal mechanism provided under s 22 of the CRO in relation to the three Decisions. 

13.S 22 of the CRO provides as follows:

“ (1) Any person who is aggrieved by any decision or order made in respect of him under section 11(1) or 18 may appeal to the Court of Appeal.

(2) The Court of Appeal may affirm, reverse or vary the decision or order appealed against.

(3) Where a person appeals against a decision of an inquiry committee, the Court of Appeal shall consider the reasons of the inquiry committee and submissions upon the findings of fact and law of the inquiry committee made on behalf of the parties to the inquiry and may call for the original record of the evidence taken and a record of any advice tendered by the Legal Adviser to the inquiry committee under section 7(3) and any document put in evidence before the inquiry committee.

(4) The Court of Appeal may, upon special grounds being shown, consider any additional evidence not adduced before the inquiry committee.

(5) The practice in relation to any appeal shall be subject to any rules of court made under the High Court Ordinance (Cap 4).

(6) The Court of Appeal shall not have power to hear any appeal against a decision made under section 11(1) or against an order made under section 18 unless notice of such appeal is given within 3 months of the decision or of the service of order under section 20.

(7) In deciding any appeal under this section the Court of Appeal may make such order for the payment of costs as it considers reasonable.”

14.Thus, under s 22 of the CRO, a person aggrieved by any decision or order made under ss 11(1) or 18 of the CRO may appeal to the Court of Appeal.

15.Only s 18 of the CRO is relevant for the present purposes.  It relates to the types of orders that the inquiry committee could make upon finding that a registered chiropractor committed a disciplinary offence.  The section provides as follows:

“ Where an inquiry committee finds that a registered chiropractor committed a disciplinary offence, the inquiry committee may make any one or more of the following orders-

(a) order the Secretary to remove the name of the registered chiropractor from the register;

(b) order the Secretary to remove the name of the registered chiropractor from the register for such period as the inquiry committee may think fit;

(c) reprimand the registered chiropractor in writing and order the Secretary to record the reprimand on the register;

(d) order that an order made under this section be suspended, subject to such conditions as the inquiry committee may think fit, for a period not exceeding 2 years;

(e) order that the Council shall not accept an application from the person being the subject of an order under paragraph (a) or (b) for registration as a registered chiropractor either for a fixed period or until that person satisfies the Council that he should be so registered;

(f) make any other order as it thinks fit, but no such order shall be of greater severity than those in paragraphs (a) to (e).”

16.It is also relevant to look at parts of s 17 of the CRO:

“ (1) The Council may refer any complaint alleging a disciplinary offence to an inquiry committee for decision, and for that purpose the Council may establish an inquiry committee of not less than 3 of its members, one of whom shall be a person appointed under section 3(2)(b), to determine whether or not the registered chiropractor against whom the complaint is made has committed a disciplinary offence.

(2) …

(3) …

(4) …

(5) …

(6) …

(7) …

(8) ...

(9) The inquiry committee may, in deciding whether a person has committed a disciplinary offence, have regard to any rules of professional conduct or Code of Practice made or issued by the Council.”

17.Thus, Ms Chow says if the applicant is aggrieved by the three Decisions, the proper remedy for him is to appeal them to the Court of Appeal instead of applying for judicial review. 

18.Mr Shek for the applicant however submits that the appeal procedure provided under s 22 of the CRO only relates to an appeal made against sentencing orders (ie, the 2^nd and 3^rd Decisions in the present case) but not a decision on conviction (ie, the 1^st Decision) made by an inquiry committee.

19.Mr Shek’s contentions on the said scope of s 22 of the CRO are as follows:

(1) S 22(1) refers to appeal relating only to decisions or orders made under ss 11(1) and 18 of the CRO. 

(2) But s 18 of the CRO relates only to sentencing orders but not conviction decisions. Conviction decisions are to be made by the inquiry committee under s 17 of the CRO. 

(3) Thus, any conviction decisions are not covered by or subject to a s 22 appeal mechanism. This is underlined by the reference in s 22(6) to “an order made under s 18” for the purpose of fixing the time of appeal, which shows that it is only a sentencing order made under s 18 of the CRO that is subject to the appeal regime.

20.As such, Mr Shek further says, there is no alternative remedy available for the 1^st Decision, and the applicant has to resort to judicial review for his purpose of seeking to quash the 1^st Decision.  In this application, the applicant is only seeking also to quash the 2^nd and 3^rd Decisions on the basis that if the 1^st Decision is quashed, a result which must follow.  In the premises, there is no question that the applicant has not exhausted any alternative remedy under this application.

21.I am unable to accept Mr Shek’s submissions. 

22.In my view, on an objective reading and proper construction of s 22, it is clear that the Court of Appeal in hearing an appeal brought under this provision have jurisdiction to look at and determine a conviction decision or order made by the inquiry committee of the respondent, which resulted in any sentencing orders made under s 18 of the CRO.  

23.My reasons are as follows:

(1) S 22(3) of the CRO provides expressly that the Court of Appeal in hearing such appeals shall consider the reasons of the “inquiry committee” and submissions upon the findings of fact and law of the inquiry committee made on behalf of the parties to the “inquiry”.  The Court of Appeal may also look at all the evidence and record of legal advice given by the inquiry committee’s legal adviser for that purpose. 

(2) “Inquiry committee” is defined under s 2 of the CRO to be the inquiry committee established under s 17(1) of the CRO for the purpose of holding an inquiry to determine whether a registered chiropractor has committed a disciplinary offence or not.

(3) Any sentencing orders made under s 18 of the CRO must invariably be premised upon a finding of conviction of a disciplinary offence under s 17, as the opening words of s 18 provide.

(4) In the premises, reading objectively and together with ss 2, 17 and 18, s 22(3) must be intended by the legislature to mean and to give the Court of Appeal the power and jurisdiction to look at the correctness (on the facts and/or law) of the underlying conviction decision made under s 17 of the CRO for the purposes determining in an appeal whether to affirm, reverse or vary a sentencing order made under s 18.  

(5) This interpretation in my view also accords with commonsense and logic for a purposive construction of s 22 of the CRO:

(a) First, unless there is clear language to show otherwise (and there is none here), it is very difficult to imagine why the legislature would have intended giving a chiropractor a right to only appeal on the degree and extent of a sentencing order, which must be based on a conviction of a disciplinary offence, but not the conviction itself.  It must be noted that the conviction itself, in particular in relation to the facts as found for the conviction, would be in many circumstances something relevant (or even highly relevant) to which types of sentencing orders that shall be made under s 18 of the CRO, and any disturbance on such finding of facts by the Court of Appeal may well affect the propriety or validity of the underlying conviction itself. 

(b) Second, it would also be very difficult to understand why the legislative would have on the one hand intended to give an aggrieved chiropractor the general right to challenge the sentence on the facts and law as permitted under the general law, including looking a new evidence, but on the other hand, only to restrict and leave him to challenge the underlying conviction (which is in every respect probably the more fundamental and important decision) on the limited public law grounds available under judicial review.

(c) Third, if there were a right of appeal against sentence only but not the underlying conviction itself (as Mr Shek now submits), a chiropractor aggrieved with the conviction and thus necessarily the sentence itself would have to take out two separate legal procedures, one being the judicial review to challenge the underlying conviction, and the other a s 22 appeal to the Court of Appeal to challenge the sentence.  Both of these would have to be taken out within 3 months of the decisions.  This would not only result in unnecessary procedural complexity, but would also be very cumbersome, and time and costs consuming.  Objectively, this could not have been intended by the legislature.

24.For these reasons, I am of the view the 1^st Decision is covered by and subject to the appeal mechanism provided under s 22 of the CRO.  In other words, at the time when the applicant took out the present judicial review application, there existed an alternative appeal remedy provided under s 22 of the CRO against all the 1^st, 2^nd and 3^rd Decisions.

25.It is trite that only in rare or exceptional circumstances the Court would grant a relief for judicial review if and where there exists an alternative remedy.  As said by Lord Scarman in R v Inland Revenue Commissioners, Ex parte Preston [1985] AC 835 at 825D:

“… a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision.”

26.Mr Shek appears to suggest at the hearing that, since the applicant is now out of time to appeal under s 22 of the CRO, and there is authority to show that the Court of Appeal does not have any jurisdiction to extend time[4], this amounts to exceptional circumstances to justify the exercise of discretion not to refuse any remedy under the present judicial review.

27.With respect, I do not think this would amount to such exceptional circumstances in the present case which justifies me to exercise the discretion.  The present application for judicial review was taken out within that very 3 months’ time limit.  And as accepted by Mr Shek, it was the applicant’s own decision (whether on legal advice or not) not to take out any appeal under s 22 of the CRO against at least the 2^nd and 3^rd Decisions to preserve time.  If Mr Shek was right in his above submissions, then almost every case concerning the existence of an alternative remedy with a time limit (which has been lapsed by reason of the applicant’s own decision not to pursue it within time when he could reasonably have done so) would amount to exceptional circumstances.  That in my view cannot be right.

28.As a result, I see no exceptional circumstances in the present case to justify the court not to reject and dismiss the judicial review on the ground that the applicant has not exhausted an effective alternative remedy.

29.I would therefore refuse the judicial review on this basis alone.

C2.    The substantive grounds of judicial review

30.Given my above conclusion, strictly speaking I need not look at the substantive grounds of the judicial review.  But for the sake of completeness, and also in case if my above conclusion on alternative remedy was incorrect, I would now with the grounds raised in support of the judicial review briefly.

31.These grounds are only related to the 1^st Decision.

32.The general ground set out at paragraph 34 of the Form 86 is that the finding by the inquiry committee that the applicant had instigated the publication of the untrue Statement B was “unreasonable” because it had failed to take into account of relevant and material considerations. This is further elaborated into three bases as follows.

33.First, the inquiry committee failed to give due and proper consideration to the evidence and facts (as listed out in paragraphs 39 and 40 of the Form 86) adduced at the hearing, in that it had put “excessive weigh  [sic]” on its assumption that the applicant must have told Mr Ngan he was employed by NASA when as a chiropractor[5].

34.Second, at paragraph 14 of the Reasoned Decision, the inquiry committee said:

“14. The statement in the article that the Respondent worked in NASA in year 2000 was wrong, as the Respondent actually worked there in the year 1997. The ‘Participation Certificate’ issued by NASA to the Respondent was dated 28 May 2000. The reporter could have deduced from the certificate that the Respondent worked in NASA in the year 2000. Alternatively, the Respondent might have given the wrong date to the reporter. In any case, this is immaterial as for the case of 2000, 1987 as the Respondent was not a chiropractor before September 2003.”

35.The inquiry committee thus considered it a material issue as to whether the applicant was a chiropractor in 2000 as stated in the statement.  As such, in considering whether the applicant was guilty of “instigating” its publication, it must be a material issue as to whether the alleged information of he was practising as a chiropractor in 2000 came from the applicant himself. 

36.Mr Shek therefore submits that in setting out the above reason, the committee did not properly consider the central question of the charge as to whether the untrue statement came from Mr Ngan’s own deduction or from the applicant, but placed too excessive weight on the truthfulness of Statement B while placing insufficient weight on how the untrue information came about.

37.Thirdly, after finding that the applicant provided the untrue information to Mr Ngan for the purpose of publication, the committee then concluded that he instigated the publication of Statement B.  It had thus equated provision of the information with instigation.  This was wrong and unreasonable in that the committee had again failed to take into account of various facts and evidence adduced at the hearing (as set out in paragraphs 50 and 51 of the Form 86) to decide whether there was the necessary “instigation”. This also amounts to the committee looking at only one side of the picture and shutting its eyes to the applicant’s side of the case.

38.Looking at the above, I think it is also only fair to say that the applicant is in fact also challenging the 1^st Decision on the basis that the finding, in light of all the evidence, was Wednesbury unreasonable and irrational or perverse.

39.I am not satisfied that any of these grounds are made out.  I will explain why.

40.The applicant’s case before the committee supported by the evidence of Mr Ngan was fundamentally that it was Mr Ngan himself who had mixed up the chronology of the events (ie, the applicant’s study of the first degree, the working as an intern at NASA and the study of chiropractic) in writing Statement B. 

41.After reading Mr Ngan’s witness statement and hearing him giving live evidence at the hearing, the committee rejected Mr Ngan’s evidence in this respect.  The reasons for the committee in rejecting his evidence are set out at paragraphs 4-10 of the Reasoned Decision as follows:

“4. The reporter who conducted the interview was called to give evidence. According to his evidence, he was a reporter focusing on medical topics. Around the time of the successful launch of a lunar exploration spacecraft by China in October 2007, he started looking for a story that covered both space research and medical research. He did not know the Respondent, but was told by a friend that the Respondent had worked in the National Aeronautics and Space Administration (‘NASA’) in the U.S.A.. He then approached the Respondent for an interview. The Respondent agreed, and had an interview for about 2 hours in his clinic, followed by another interview at the Respondent’s home the next day together with a photographer. That latter interview took 3 to 4 hours.

5. There is no dispute that the Respondent was a research intern at NASA for 4 months in the year 1997. He acquired his chiropractic degree in July 2002, therefore he started his chiropractic programme after 1997. He was first registered as a chiropractor in the Canadian province of British Columbia in September 2003. In other words, he was not and could not be a chiropractor at the time he worked as an intern in NASA. Any claim that he was a chiropractor working in NASA is untrue. We are satisfied that the statement in question in charge (b) is untrue.

6. The statement in question in charge (a) is that the Respondent was ‘香港首個太空人脊醫’, the natural and ordinary meaning of which is that the Respondent was the first chiropractor from Hong Kong to become an astronaut. The statement is not only misleading but also untrue, as the Respondent was never an astronaut. It is a far cry from an intern at NASA to an astronaut.

7. We have considered carefully how the 2 statements in question had come to be published in the article. The reporter claimed that the Respondent had not given him the information, and the 2 statements were only mistakes made by him and his editor in drawing up the article in an attractive presentation.

8. The reporter was inconsistent in his evidence about how some of the information came to be published in the article. He categorically said that the Respondent told him that (i) after obtaining the degree in genetics the Respondent studied chiropractic; and (ii) after graduation from the chiropractic programme the Respondent did not wish to practice chiropractic immediately and therefore looked for a job at NASA. However, when cross-examined that this was contradictory to his earlier evidence that the Respondent said that after working at NSASA the Respondent went to study chiropractic, the reporter changed his evidence and said that it was a mistake he made.

9. The article contained many items of specific information which could only have been provided to the reporter by the Respondent. For example, if not told by the Respondent the reporter could not have known the year and department in which the Respondent worked in NASA. The same applies to the number of workers in that department, the Respondent’s salary in NASA, his subsequent income from this chiropractic practice in Canada, the research project in which he was involved, the work of his colleagues, the names and occupation of his father and grandfather, the universities at which he studied and the programmes of his studies. The ‘Participation Certificate’ issued by NASA and the photograph showing the Respondent and his colleagues must have been provided by the Respondent to the reporter.

10.    Having regard to the article as a whole, we are satisfied that the substance of the whole article was provided by the Respondent to the reporter for the purpose of publication.”

42.Then, it explained the basis for convicting the applicant on Charge B at paragraphs 13 to 15 as follows:

“13. We then turn to charge (b). We have already made the finding that the statement in question in charge (b) is untrue. We then have to decide whether the Respondent instigated, sanctioned, acquiesced in or failed to take adequate steps to prevent the publication of the statement. The statement fittingly tied in with the whole story that the Respondent was engaged in research on osteopenia of astronauts and designing an instrument for measuring changes in the bone density of astronauts. The statement was also consistent with the chronology of the story that the Respondent had finished his chiropractic study before joining NASA. We are satisfied that the substance of the whole story including the statement in question was provided by the Respondent, and the only purpose for providing such statement was for the purpose of publication.

14.    The statement in the article that the Respondent worked in NASA in year 2000 was wrong, as the Respondent actually worked there in the year 1997.  The ‘Participation Certificate’ issued by NASA to the Respondent was dated 28 May 2000.  The reporter could have deduced from the certificate that the Respondent worked in NASA in the year 2000. Alternatively, the Respondent might have given the wrong date to the reporter. In any case, this is immaterial as for the case of 2000, 1987 as the Respondent was not a chiropractor before September 2003.”

15.    As we have found that the Respondent provided to the reporter for the purpose of publication the information that he was a chiropractor when he worked in NASA, we satisfied that he instigated the publication of the statement in question in charge (b).  We are satisfied that the Respondent’s conduct in this respect has clearly fallen below the standard expected amongst registered chiropractors, and thus constitutes professional misconduct.  We find him guilty of charge (b).”

43.These are finding of facts.  The above grounds in support of the judicial seek in substance to challenge these finding of facts. 

44.However, it is well established that the court in judicial review is not hearing the matter on appeal, and generally finding of facts are not within the purview of judicial review unless it amounts to an error of law such as where in making the finding, the relevant authority or tribunal has failed to take into account of relevant factors or has taken into account of irrelevant factors, or the finding is so irrational or Wednesbury unreasonable that no reasonable tribunal would have come to the same conclusion.

45.After looking at the reasons of the inquiry committee set out above, I am of the view that these challenges must fail:

(1)     Insofar as the above grounds are premised on saying that the committee had failed to give sufficient or adequate weight to certain parts of the evidence adduced by the applicant, this is not an error of law nor is it irrational.  They do not come within any of the public law grounds recognised under judicial review.

(2)     Insofar as it is alleged that the committee had failed to take into account of some of the relevant facts or materials at all, it is simply not made out.  The committee had clearly looked at all the evidence (including the evidence set out in Mr Ngan’s witness statement together with the documents adduced) (see paragraphs 5, 7-9 of the Reasoned Decision) as whole in coming to its conclusion.  The fact that not every single piece of the evidence has been expressly listed out in the Reasoned Decision per se is not sufficient to show that such evidence had not been taken into account.  A reasoned decision or judgment is and should not be intended to be treated as a detailed transcript of everything adduced at the hearing.

(3)    At paragraphs 8 to 10 of the Reasoned Decision, the inquiry committee effectively made, inter alia, the finding that it was the applicant who told Mr Ngan that he worked as an intern at NASA after completing his chiropractic study.  Once this finding was made, for the purpose of deciding whether the applicant instigated the publication of the untrue (which is now accepted) Statement B under Charge B, the committee committed no error of law in saying at paragraph 14 that it was irrelevant whether the specific reference to year 2000 was a deduction made by Mr Ngan himself from the relevant certificate or not.  This is so as the relevant issue in this context was not whether the applicant specifically told Mr Ng he was a chiropractor in 2000 but whether for the purpose of publishing it, he told Mr Ngan that he was a chiropractor when working as a NASA intern. 

(4)     Finally, looking at all the reasons set out by the inquiry committee, I also do not think it can be said that rejection of Mr Ngan’s evidence and the finding that the applicant had provided all the relevant untrue information to Mr Ngan for the purpose of publication is one which is Wednesbury unreasonable or irrational in the public law sense.

46.The grounds in support of the judicial review are therefore not established. 

47.Therefore, I would have refused the application on merits in any event.

D.      CONCLUSION

48.The applicant is unsuccessful in this judicial review application.

49.I further make an order nisi that costs of this application be to the respondent, to be taxed if not agreed.  Unless any of the parties applies to vary it by summons, the order shall be made absolute 14 days from today.

Mr Randy Shek, instructed by Tung, Ng, Tse & Heung, for the applicant

Ms Juliana Chow, instructed by the Department of Justice, for the respondent