RE THE HONG KONG MEDICAL ASSOCIATION

HCAL 70/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 70 OF 2012

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D E C I S I O N

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1. On the 8 and 10 February 2012 Dr Lwin, Winnie appeared before a Medical Council inquiry on a charge alleging that she had been guilty of misconduct in a professional respect. On 10 February 2012, the Medical Council found the terms of the charge made out and ordered that the name of Dr Lwin be removed from the General Register for a period of 1 month; such order be published in the Gazette in accordance with section 21(1) (iva) of the Medical Registration Ordinance, Cap 161 (the Ordinance).

2. On 20 February 2012, the Applicant wrote to the Chairman of the Medical Council requesting a review of the decision of 10 February 2012 under section 21(4B) of the Ordinance.  It seems that all of the 10 signatories to the letter were themselves members of the Medical Council.  Section 21(4B) stipulates as follows:

“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 enquiry.”

3. On 2 March 2012, the Secretary to the Medical Council wrote to the Applicant on behalf of the Chairman declining the request.  Amongst other reasons, the Secretary informed the Applicant that the term “Council” in section 21(4B) of the Ordinance “refer(ed) to the inquiry panel (i.e. the Council consisting of the Members/Assessors at the inquiry), and that a review can only be conducted on the inquiry panel’s own initiative but not otherwise.”

4. At the heart of this application for Judicial Review is whether the term “Council” in section 21(4B) refers to the Medical Council as constituted for the purpose of conducting an inquiry (as the proposed Respondent by letter of 2 March contended) or whether it means (or can mean) the members of the Medical Council as a whole as constituted under section 3 of the Ordinance (as the Applicant contends).

5. I would observe at the outset that the Applicant’s argument, if it be right, would have rather startling consequences.  It would mean that the decision of the Medical Council at an inquiry properly constituted under section 21B could be reviewed by all members of the Medical Council (provided a quorum of 13 members was constituted under section 4(2)).  It follows that the decision of those members of the Council who had conducted the inquiry and observed the witnesses (lay and expert) over, in some cases, several days of evidence (some of it requiring findings of disputed fact as well as assessments of competing expert evidence to be made) could be reviewed and overturned by other members of the Council who had neither heard nor seen the witnesses.  It could also lead to the unedifying spectacle of one or more of the minority in a decision of the Medical Council at an inquiry enlisting other members of the Medical Council at large in a bid to review the decision of the majority at the inquiry.  It would also necessarily mean, if the Applicant’s argument be correct, that the power to initiate a review of the decision under section 21(4B) reposes in the Medical Council at large rather than the members of the Council who made the decision at the inquiry.

6. Startling though these consequences may be, I would not be dissuaded from giving leave if I thought it reasonably arguable that the legislation was open to such interpretation.

7. Part IV of the Ordinance is headed ‘Inquiries, Disciplinary Proceedings, and Offences’.  Section 21 deals with the disciplinary powers of the Council and section 21B sets out who may constitute an inquiry.  Section 21B stipulates:

“(1) At any meeting of the Council held for the purpose of an inquiry under section 21, either –

(a) 5 members of the Council; or

(b) not less than 3 members of the Council and 2 assessors, on a rotational basis, from the panel appointed under subsection (2),

at least 1 of whom shall be a lay member but subject to the majority being registered medical practitioners, shall be a quorum.

(2) The Council shall appoint the following persons who are not members of the Council to form a panel of assessors for the purpose of conducting an inquiry under section 21-

(a) 2 registered medical practitioners nominated by the Director;

(b) 2 registered medical practitioners nominated by the Hospital Authority;

(c) 2 registered medical practitioners nominated by the Academy of Medicine;

(d) 2 registered medical practitioners nominated by the University of Hong Kong;

(e) 2 registered medical practitioners nominated by The Chinese University of Hong Kong; and

(f) 4 lay persons nominated by the Secretary for Food and Health.

(3) An inquiry conducted by members of the Council and assessors forming a quorum under subsection (1)(b) is deemed to be an inquiry by the council and is as valid and effectual as an inquiry conducted by members of the Council forming a quorum under subsection (1)(a).

……….”

8. It is true that section 21B(1) and (3) deal with what constitutes a quorum, but it is the quorum of a “meeting of the Council held for the purpose of an inquiry under section 21”.  The quorum of any other meeting of the Medical Council, except an inquiry under section 21 or an appeal hearing under sections 20F, 20O or 20W, is 13 members of the Medical Council: section 4(2) of the Ordinance.  Where a meeting for “the purpose of an inquiry” is engaged, a quorum is established by either 5 members of the Medical Council or at least 3 members and 2 assessors: section 21B(1) of the Ordinance.

9. If the Applicant’s argument is correct, the meaning of ‘Council’ in the critical section 21(4B) has to be read as meaning the wider Medical Council membership at a meeting constituted by a quorum of 13 members; which could mean, since there are a total of 28 members of the Council, that those 13 were entirely different from the 5 which formed the quorum of the “meeting of the Council held for the purpose of an inquiry under section 21”.  Moreover, the Applicant’s argument results in the word ‘Council’ bearing two different meanings or senses in section 21(4C).  The argument requires the subsection to be read as follows:

“For the purposes of a review under subsection (4B), the Council (at large) may invite the parties to the inquiry, and such other persons who have appeared before the Council in the inquiry to appear again before the Council (at large), by themselves or by their counsel or solicitors.” (Emphasis supplied)

I cannot accept this dual construction of the word ‘Council’ in the subsection.  Indeed, the subsection only makes sense contextually if ‘Council’ is uniformly understood to mean the Council conducting the inquiry.

10. In this regard, I note in respect of a kindred power of review by a Magistrate under section 104 of the Magistrates Ordinance, Cap 227, that the Court of Final Appeal has held in Yeung Siu Keung v HKSAR [2006] 1 HKLRD 895, at 905 D:

“The statute plainly requires that the review must be conducted by the same magistrate who made the decision which is to be reviewed. It is after all a review.” (Emphasis supplied)

While, of course, the terms of section 21(4B) of the Ordinance are clearly different from section 104 of the Magistrates Ordinance, the process which it likewise envisages “is after all a review”.  It seems to me axiomatic that the body reviewing a decision (as distinct from a body sitting on appeal) should be the one which made it.

11. In my judgment, the Applicant has not established a reasonably arguable case that the Ordinance, in particular section 21(4B), is open to the interpretation for which it contends.

12. The application for leave is refused.