Dr Q v. The Health Committee of the Medical Council of Hong Kong

HCMP 1970/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1970 OF 2013

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J U D G M E N T

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1.The applicant (“Dr Q”) applies for leave to commit the Health Committee (“HC”) of the Medical Council of Hong Kong for contempt of court in having breached a court order.

2.The order which HC is said to have breached was the one made by Anthony Chan J dated 17 December 2012 in HCAL 150/2012 (“the Order”).

The facts

3.Dr Q is a registered medical practitioner.

4.HC is a sub-committee of the Medical Council established under section 20BA(2)(e) of the Medical Registration Ordinance, Cap 161.  The HC is not a disciplinary committee.

5.The parties are the same as in HCAL 150/2012 in which the Order was made.

6.On 30 July 2009, the secretary to the Medical Council wrote to Dr Q notifying him that information had been received which might raise a question over whether Dr Q had been guilty of misconduct in a professional respect.  The secretary invited Dr Q to submit a written explanation of his conduct in respect of an incident in November 2008 for a meeting of the Preliminary Investigation Committee (“the PIC”).  The PIC referred the matter to the HC to conduct a hearing and make a recommendation to the Medical Council under section 20V(1)(c) of the Ordinance.  Dr Q was invited to attend a hearing held by HC on 26 January 2010, which was adjourned.

7.Solicitors for Dr Q made attempts to correspond with HC seeking confirmation that Dr Q be allowed legal assistance at the resumption of the adjourned hearing and that use of evidence already adduced be restricted.  No such confirmation was forthcoming. 

8.Dr Q applied for judicial review in HCAL 32/2010.  By a judgment dated 5 October 2010, Fok J (as he then was) held, amongst others, that the prohibition on Dr Q being represented by lawyers before the HC was unconstitutional.

9.Since that judgment, the hearing before the HC has never moved forward.

10.Dr Q then applied for and obtained leave in HCAL 150 of 2012 to apply for judicial review, seeking a mandamus to compel HC to hear and determine his case.  In those proceedings, the Department of Justice represented the HC.  By consent, Anthony Chan J made the Order, namely,

(i)  a mandamus to compel the HC to hear and determine Dr Q’s case before it; and

(ii) that the HC hearing be set down for an early hearing date.

11.The Order was drafted by the Department of Justice and served on Dr Q. No hearing date has since been fixed.  The last correspondence from HC regarding a new HC hearing was the letter of 9 November 2010.

Grounds for seeking leave

12.Dr Q says that the HC has defied an order of the High Court, is in contempt of court and is causing him prejudice.

13.Mr McCoy SC draws to my attention the lack of precedents on committing a statutory body for contempt of court, although there is authority in relation to a government department or a minister of the government in his official capacity.  In Re M [1994] 1 AC 377, 424D to E, 424G to 425A, 425 C-D, Lord Woolf, held,

“The Court of Appeal were of the opinion that a finding of contempt could not be made against the Crown, a government department or a minister of the Crown in his official capacity. Although it is to be expected that it will be rare indeed that the circumstances will exist in which such a finding would be justified, I do not believe there is any impediment to a court making such a finding, when it is appropriate to do so, not against the Crown directly, but against a government department or a minister of the Crown in his official capacity. …

Nolan L.J., at p. 311, considered that the fact that proceedings for contempt are "essentially personal and punitive" meant that it was not open to a court, as a matter of law, to make a finding of contempt against the Home Office or the Home Secretary. While contempt proceedings usually have these characteristics and contempt proceedings against a government department or a minister in an official capacity would not be either personal or punitive (it would clearly not be appropriate to fine or sequestrate the assets of the Crown or a government department or an officer of the Crown acting in his official capacity), this does not mean that a finding of contempt against a government department or minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice. In addition an order for costs could be made to underline the significance of a contempt. A purpose of the courts’ powers to make findings of contempt is to ensure that the orders of the court are obeyed. …

In cases not involving a government department or a minister the ability to punish for contempt may be necessary. However, as is reflected in the restrictions on execution against the Crown, the Crown’s relationship with the courts does not depend on coercion and in the exceptional situation when a government department’s conduct justifies this, a finding of contempt should suffice. In that exceptional situation, the ability of the court to make a finding of contempt is of great importance. It would demonstrate that a government department has interfered with the administration of justice. …”

14.Mr McCoy SC is able only to find a case of the Supreme Court of Ohio where a mandamus was directed to a government department.  In State ex rel. Doner v Zehringer(2012) 134 Ohio St 3d 326, the court granted a writ of mandamus to compel the Ohio Department of Natural Resources and its director (the respondents) to commence appropriation proceedings to determine the amount of their taking of the property of relators, being owners of land.  Settlement negotiation failed. The state filed appropriation cases for the property of 2 relators.  All the relators except the 2 filed a motion for an order for the respondents to show cause why it should not held in contempt of the court order of mandamus made 9 months ago.  By a majority decision of 5:2, the Supreme Court of Ohio found there to be a breach of the order for mandamus.

15.In the present case, the statutory tribunal has, for 8 months since the Order, failed to set a hearing date.  Dr Q has shown a case where the HC has defied an order of mandamus and wilful failure to comply with a consent order.  I am satisfied that this is a proper case to grant leave to apply for committal against the respondent.

16.The costs of this application is reserved.  The anonymity order that has been granted in these proceedings shall continue in the committal proceedings.

17.I thank Mr McCoy SC and Mr Albert Wong for their assistance.

Mr Gerard McCoy SC and Mr Albert Wong, instructed by Howse Williams Bowers, for the applicant