WU LEE TAT v. DIRECTOR OF HEALTH DEPARTMENT (DH) AND ANOTHER

HCAL 510/2025

[2025] HKCFI 1017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 510 OF 2025

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D E C I S I O N

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A. Introduction

1.  At the request of the Applicant, I fixed this oral hearing of his application for leave to apply for judicial review. The oral hearing was requested on the Applicant’s two stated bases (sic):

Because it is Not Only about the involvement in much complexity and great public interests, but also show the existence of the blurriness between the facts and the laws.

and:

I would like to request “Oral Hearing” in order to have a chance to let all parties to express their views, please considered approve.

2.  By his Form 86 dated 26 February 2025 (as amended), the Applicant seeks to impugn the decisions of the two Putative Respondents (“DH” and “MCHK” respectively), described by him as follows (sic):

1.)  Correct Department of Health (DH)H’s illegal decision who claim the Past Papers (PP) of the Licensing Examination (LE) belongs to Medical Council of HK (MCHK) private party only, and DH’s irrational act.

2.)  Correct MCHK illegal act (illegally occupied the PP which should be the property of HK Gov/DH.

3.)  Public interest in disclosing the PP in this case must overweigh.

3.  The first two points are repeated (without elaboration) in the body of the Applicant’s affirmation. Exhibited to that affirmation are various items of correspondence between the Applicant and the DH, by which in summary:

(1)  the Applicant sought, under the Code of Access to Information (“Code”): (a) copies of the licensing examination past papers for the past 20 years; (b) the marking scheme for those past papers; and (c) the syllabus of the above and its specifications, including guidelines of the questions setting, selections;

(2)  the DH responded explaining that: (a) the information requested is possessed by the MCHK, a statutory body independent of the DH albeit that the secretariat is publicly funded; (b) the MCHK had refused to give consent to disclosure; and (c) there was no overriding public interest in disclosure of the requested information, such that the request for access would be refused according to paragraph 2.14(a) of the Code on Access to Information; and

(3)  the Ombudsman responded to the Applicant’s complaint against the DH, expressing the view that the Ombudsman agreed with DH that the licensing examination past papers belong to the MCHK.

4.  The request for the past papers appears to be on the basis that, in light of a disagreement between the Applicant and his friend (see below), the Applicant would like to check whether the examination papers contain “unfair questions”.

5.  In his amendment/amending document, the Applicant set out what he described as ‘Case Background’, ‘Parties involved’, ‘Controversial points’, and ‘Fact findings’, before a ‘Conclusion’ essentially comprised of two questions as follows (sic):

i)  DH’s two final official replies spend total 102 days (51 days 1^st reply and 51 days 2^nd reply), normally it only takes 10 days as per the ‘Code on Access to Information” (Code). To trigger this long-time 51 days, it need meet 2 criteria, one is to give me the PP but need time to prepare, and other one is to seek the Legal Advice. But from DH’s reply and my emails to urge them to seek legal advice, they seem NO to do it or DO NOT intend to do it, they just say “consulted relevant parties”. Why?

ii)  Rationally and in Human common sense, the less competition in the closed market, the more benefits to the stakeholder get. So why the Non-Local Trained Doctors (NLTD), who passed the LE and entered the close market, bravely stand out to reveal the unfair questions in the LEs? Another whistleblower Snowden reveal ‘Prism Plan’ of NSA of US appear? The behaviour of NLTD seems opposite to “Wednesbury Unreasonableness”. Why?

6.  The ‘Case Background’ set out by the Applicant identifies the genesis of these proceedings. He says that in early 2024, he lunched with his friend and talked about how long it had taken (three years) for him to get a knee operation after the first doctor had been seen. The friend said that it was due to little supply of local doctors and unfair licensing examination to non-locally trained doctors. Whilst the Applicant first disagreed with the friend, and said that those “guys” are not ready in the exam, the friend later sent him some newspaper reports talking about this issue, in support of his views.

7.  At the oral hearing, and with the benefit of an interpreter, the Applicant made brief oral submissions, as well as handing up two further documents. First, it may be appropriate for me to state that I have no doubt as to the sincerity of the Applicant in bringing these proceedings. Secondly, as to the two further documents, they were:

(1)  A letter to the Court, stating that at the heart of the case lies “public interest”, “the transparency in managing government property”, and the “credibility of the medical regulatory system”. The letter also repeats points made by the Applicant in his correspondence with the DH and Ombudsman, including that (a) the past papers should be government property, to be disclosed in accordance with the Code, (b) if the content and grading criteria of examinations remain opaque, that would undermine public confidence in the professional competence of doctors, (c) disclosure of past papers would contribute to the fairness of medical licensing examinations, and (d) transparency in medical regulation is not merely about the rights of individual applicants, but it is a safeguard for the health and public interest of all Hong Kong citizens.

(2)  A document headed (sic) ‘Questions: Base on DH’s replies, can we deduce to have below equations with the logic be rational and the equations be reversible?’, raising points such as that, if the power of the MCHK to “set” the licensing examination equals to giving “ownership” of the past papers to the MCHK, then MCHK might sell those property rights privately, where the Hong Kong Government is left in the position of being dependant on MCHK’s willingness to sell the property and earn money to be paid to the Hong Kong Government.

8.  At the end of the hearing, I reserved my decision to be handed down the following morning. This is my Decision.

B.  No Locus / No Standing

9.  Having carefully considered the question, it seems to me that this application can be dismissed on the preliminary point that the Applicant lacks standing.

10.  The governing provision is to be found in Rules of the High Court (“RHC”) Order 53 rule 3(7), which states that the Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates. At the leave stage, the Court should be satisfied as a threshold question that the applicant is prima facie a person with the necessary sufficient interest.

11.  At the hearing, and in answer to my question as to what might found the Applicant’s standing to bring these proceedings, he stated that he has several ‘roles’, including as (a) a patient who had to wait three years for treatment, (b) a person who is ageing, and might again become a patient with by then a potentially even longer wait for treatment, and (c) a father, whose daughter is receiving medical education overseas, but with the intent to come back to Hong Kong and sit the examination.

12.  I do not think that any of those points identifies the necessary sufficient interest. Though the Applicant is a member of the public who has undergone medical treatment, and who might in future require medical treatment, he clearly has no obvious or direct interest in the subject matter of the content of the examination past papers. Indeed, in light of the genesis of this application, and the general questions posed, whilst the Applicant is perhaps not simply a ‘busybody’, he is in my view seeking to interfere in matters that do not directly concern him, or where his interest is remote or contingent at best.

13.  As I do not accept the standing of the Applicant to bring this application for leave to apply for judicial review, leave must be refused.

C.  Academic

14.  It seems to me that this application can be dismissed on the further preliminary point that the application is in effect academic.

15.  The Applicant has sought access to certain information under the Code, but the DH of whom he made that request has declined it for the reasons explained above. Though the Applicant has, including by his additional document, sought to point out the potential consequences of the stance identified by the DH, the fact is that the denial of the request for access to information under the provisions of the Code does not logically lead to the wider questions which the Applicant seeks to ventilate, not least when those are substantially matters of policy. Further, after the Applicant subsequently complained to the Ombudsman, the Ombudsman supported the stance and reasoning of the DH. It can be noted that the application is not directed at any decision of the Ombudsman.

16.  The Court ordinarily does not exist to determine hypothetical or academic questions, nor to give advisory opinions on matters divorced from any relevant given set of facts. Yet, it seems to me that is precisely what the Applicant seeks from these proceedings. He poses and seeks answers to hypothetical questions, apparently because of his view that there is some blurriness between some facts and law, and because of his concern about the possible consequences of the stance taken by the DH. He has also asked for an oral hearing in part “to let all parties to express their views”. Indeed, his first oral submission at the hearing was that he wished for a three-party discussion to be organised in the future, in the Court.

17.  An application for leave to apply for judicial review is made by an applicant on an ex parte basis and, if leave is to be granted, the burden is on the applicant to demonstrate reasonably arguable public law grounds of review with a realistic prospect of success, as might give rise to the discretionary relief available at a substantive hearing upon judicial review. Such ex parte leave applications are routinely dealt with on paper, as well as at oral hearings. But the oral hearing is not provided as an opportunity for a general discussion and expression of views by all parties.

18.  It might also be said that the two conclusionary questions which the Applicant poses (see above) amount in effect to: (1) a consumer complaint – because the DH took a long time to respond to his access requests, and then refused to state expressly whether it had taken legal advice; and (2) a question directed at the hypothetical behaviour of persons who are not named as putative respondents – the NLTD (as he defined them). The additional documents handed up at the hearing also simply raised questions as to certain possible deductions from information received by the Applicant in response to his requests made under the Code.

19.  This is a further reason for dismissing the application for leave to apply for judicial review.

D.  No Merit

20.  Lastly, whilst the Applicant has suggested that the DH has made an “illegal decision” and that the MCHK has performed an “illegal act”, I do not think the Applicant has complied with the mandatory requirement under RHC Order 53 rule 3(2) to set out the public law grounds on which the intended relief is sought. Merely asserting that something is “illegal” does not properly identify a public law ground of intended review.

21.  In any event, that assertion is at best equivocal against the conclusionary open questions (namely “why?”) posed by the Applicant. Nor does the assertion that “public interests outweigh in this case” amount to a proper public law ground of review.

E.  Result

22.  It may well be that the Applicant is not the only person thinks that the topics touched on and questions raised by him are worthy of broader discussion in some forum. However, an intended judicial review, essentially arising out of the refusal to provide access to copies of the past papers under the application of the Code, does not provide that proper forum.

23.  By reason of the above matters, I dismiss the Applicant’s application for leave to apply for judicial review. I make no order as to costs.