Re The Hong Kong Medical Association

CACV 164/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 164 OF 2012

(ON APPEAL FROM HCAL 70/2012)

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JUDGMENT

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Hon Cheung CJHC (giving the judgment of the court):

1.This is an appeal from Macrae J’s refusal of leave to the applicant, the Hong Kong Medical Association, to apply for judicial review.

2.The facts have been set out in the judge’s written decision dated 11 July 2012.  They need not be repeated here.  Suffice it to say, a medical practitioner has been found guilty of a disciplinary matter after an inquiry by the Medical Council.  The question now arises as to whether the Medical Council (as a full body) has the power to review the result of the inquiry, or whether only the specifically constituted Council which conducted the inquiry has the power to do so.

3.Central to the intended application for judicial review is the proper interpretation of section 21(4B) of the Medical Registration Ordinance (Cap 161), which reads:

“Within 14 days after the conclusion of an inquiry under this section, the Council may, of its own initiative but not otherwise, review any decision or order made in the inquiry.”

4.The issue is whether “the Council” refers to the Medical Council established under the Ordinance at large, or the Medical Council, constituted in accordance with the specific requirements on quorum set out in section 21B(1) of the Ordinance, which has conducted the inquiry.

5.Having heard Professor Johannes Chan SC (Hon), for the applicant, and having considered his very thorough written submissions, we have come to the view that there are reasonable arguments for the applicant’s contention that section 21B(1) merely sets out a quorum requirement but does not constitute a fixed council to conduct the inquiry and any subsequent review.

6.It seems to us that that is the central issue of construction in the present case.

7.In the course of arguments many other issues concerning the law and practice of how the Medical Council conducts inquiries and reviews have been mentioned.  These are also matters that should be fully thrashed out after all the relevant evidence has been placed before the court.

8.For these reasons, we take the view that leave to apply for judicial review should be granted.  We therefore allow the appeal and give leave to apply for judicial review.

9.We would add that these arguments which have persuaded us to give leave today were not fully ventilated before the judge who merely decided the matter on paper after reading the Form 86 and the supporting affirmation.

[After hearing counsel, the court further ordered and directed that:

(1) Costs of the application for leave, including the costs of this appeal, be in the cause;

(2) Leave to the applicant to file an additional affirmation within 14 days from 13 March 2013; and

(3) The papers in these proceedings be served on the doctor affected.]

Mr Johannes Chan SC (Hon), instructed by Howse Williams Bowers, for the applicant