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 has been granted an anonymity order and shall be referred to as Dr Q to protect his identity. Dr Q has succeeded in 2 applications for judicial review against the respondent (“HC”) which arose out of an incident in 2008. He now seeks to commit HC for contempt in failing to obey an order of mandamus. He asks that the HC be fined and that it do pay costs on indemnity basis.

THE PARTIES

2.  Dr Q is a registered medical practitioner.

3.  HC is a committee of the Medical Council of Hong Kong (“the Council”) established under section 20BA(2)(e) of the Medical Registration Ordinance, Cap 161 (“the Ordinance”).

4.  The members of the HC are stated in section 20U(1) of the Ordinance as including: (a) a chairman who shall be elected by the Council from among its members; and (b) 8-10 other persons including registered medical practitioners (majority) and lay members.

5.  Paragraph 3 of schedule 2 to the Ordinance provides for appointment of temporary members:

“Where for any reason a person elected or appointed to a committee...is or will be unable temporarily to perform his functions as such member, another person qualifying for election or appointment to that committee...may be appointed by the Chairman or by the chairman of the committee, as may be appropriate, to be temporarily a member of the committee...”

6.  The function of the HC is neither to investigate nor discipline a registered medical practitioner for professional misconduct but to conduct a hearing into any case or matter concerning his/her health or physical or mental fitness to practise: section 20V(1)(a) of the Ordinance.  It may make a recommendation to the Council after the hearing that the name of the registered medical practitioner be removed from the General Register permanently or for any period not exceeding 12 months: section 20V(1)(c) of the Ordinance.

7.  The chairman and 4 members are required to form a quorum of a meeting of the HC: section 20U(3) of the Ordinance.  The meeting is held in private: section 37(1).  It may be adjourned: section 37(9) or further heard: section 39(2).

THE UNDISPUTED BACKGROUND

8.  On 1 July 2008, Dr Q was posted on rotation from one hospital to the Department of Anaesthesiology, Pain Medicine and Operating Services of another hospital.

9.  On 4 November 2008, Dr Q was found semi-conscious in the male changing room of the operating suite at the second hospital. He had injected himself intravenously with the drug, Propofol, commonly used as parenteral anaesthetic agent and is administered intravenously by an anaesthetist to induce unconsciousness at the commencement of anaesthesia.  Propofol is not a dangerous drug under Part I of the Dangerous Drugs Ordinance, Cap. 134.

10.  On 30 July 2009, the secretary of the Council wrote to Dr Q notifying him that information had been received which might raise question over his professional conduct.  On 14 September 2009, the Preliminary Investigation Committee (the “PIC”) held a hearing, which was adjourned.  On 9 November 2009, the PIC met and considered that there appeared to be a question as to whether Dr Q’s fitness to practise medicine was impaired by reason of a physical or mental condition.

11.  According to a psychiatric report, Dr Q was said to have suffered from depressive disorder since 2004, which tended to be exacerbated when he changed his working environment; and as having developed a dependence on Propofol which he had initially used to overcome insomnia.

12.  On 23 December 2009, the PIC gave notice that the matter has been referred to the HC (pursuant to section 20T(1)(c)) to conduct a hearing and make a recommendation to the Council. 

13.  HC conducted a hearing on 26 January 2010, which was adjourned.  Dr Q was denied legal representation.

14.  Dr Q applied for judicial review against the HC for the first time under HCAL 32/2010.  By a judgment dated 5 October 2010[1], Fok J (as he then was) held that section 24(2) of the Ordinance and section 35(1)(c) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations, Cap 161E, prohibiting legal representation before the HC was unconstitutional.  Fok J also remarked upon the vigorous cross-examination of Dr Q by the PIC chairman as an example of the prejudice that could arise in the absence of legal representation, especially given Dr Q’s circumstances. 

15.  Since that judgment, Dr Q’s solicitors had persistently requested for a fresh hearing at which (i) Dr Q would have the assistance of lawyers; (ii) a different person do represent the PIC (in view of the wholly inappropriate questioning at the earlier hearing); and (iii) other HC members replace those who had sat in the first hearing.  Dr Q’s solicitors tried to impress upon the HC the urgency of the matter as the outstanding HC proceedings had adverse impact on Dr Q’s career.  However, the hearing before the HC had never moved forward.

16.  Except for a letter dated 9 November 2010 which requested Dr Q to substantiate the right to be legally represented, no material correspondence has emanated from the HC until the day leave to apply for committal for contempt was granted.  Dr Q’s solicitors had addressed that letter at length on the 15^th but there was no reply from the HC.

17.  Two years since Fok J’s judgment, Dr Q applied for judicial review for a second time in HCAL 150/2012, seeking a mandamus to compel HC to hear and determine his case; and a declaration that the HC was in breach of statutory duty and has caused prejudice to him.  The Department of Justice (“DOJ”) represented the HC.  The parties agreed to dispose of the proceedings on agreed terms.  On 17 December 2012, Anthony Chan J ordered (“the order of mandamus”)  that:

(i) There be an order of 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”.

18.  The Order was drafted by the DOJ and served on Dr Q and the HC.  No hearing date has since been fixed.  The last letter from HC regarding a fresh HC hearing remained that of 9 November 2010.

19.  Between the order of mandamus and the application for leave to commit for contempt (“the leave application”), all that HC did were: (1) circulation of a committee paper; (2) seeking legal advice; and (3) sending out 4 chasers for the legal advice.

20.  The committee paper dated 7 February 2013 (“the HC Paper”) was circulated among members for the purpose of considering: (a) Dr Q’s application for legal representation; and (b) whether updated medical report of Dr Q should be obtained for the fresh hearing.

21.  The seeking of legal advice was through an email from the secretary, Ms Ho, dated 20 March 2013 (“the March email”).  The ex-Legal Adviser was informed that, amongst others, the HC has agreed to grant approval for Dr Q’s application for legal representation at the fresh hearing; that Dr Q should be asked to submit to any 2 of 5 designated doctors for medical reports.  Advice was sought as to:

(i) Whether HC’s draft letter (“the draft letter”)  was legally in order;

(ii) Whether the HC should refer to Dr Q by his full name;

(iii) What documents to give to the medical doctors whom Dr Q chose to attend to;

(iv) Any other observations the ex-Legal Adviser had on the subject; and

(v) An unidentified 5^th issue.

The HC paper was enclosed with the March email to the ex-Legal Adviser, but the draft letter was omitted out of inadvertence of Ms Ho.

22.  In the March email, Ms Ho emphasized to the ex-Legal Adviser:

“We know you are under a very busy schedule but the case of Dr Q was complicated by a court order to conduct the hearing as soon as possible, we should be very grateful if you would let us have your advice by 25 March 2013.”

23.  On 26 March 2013, the HC resolved that Dr Q’s application for legal representation be approved and that Dr Q would be asked to submit medical reports for the fresh hearing (“the March decision”).

24.  There then followed four monthly chasers (dated 2 April, 21 May, 5 June and 7 August 2013) from Ms Ho to the ex-Legal Adviser.

25.  On 9 August 2013, Dr Q took out the leave application.  It was heard on 28 August 2013.

26.  On 29 August 2013, the leave application was reported in the press.  On the same day, the HC sent out a 5^th chaser at 5:13 pm and the ex-Legal Adviser gave a half-page legal advice by 6:20 pm. 

27.  On 30 August 2013, leave was granted.  Immediately, HC wrote to Dr Q, referring to the letter of his solicitors dated 2 November 2010 (ie 33 months ago) and informing him of the March decision.

28.  HC has filed affirmations of Dr Chow (its then chairman) and Ms Ho in the present proceedings.

ALLEGED BREACH OF THE ORDER OF MANDAMUS

29.  Up to the time of the leave application, no fresh hearing has been fixed by the HC since it was adjourned on 26 January 2010.  Till now the alleged contempt has not been purged.  On 25 November 2013, the HC has asked for the availability of Dr Q to hold a hearing in December 2013 or January 2014 but it was rejected by Dr Q as the persons who were to preside in that hearing were the chairman and members of the HC being sued in this case.  There was a clear question of apparent if not actual bias.

HC’S DEFENCE

30.  HC denies that it has been in contempt of the order of mandamus for the following reasons:

A. The time for compliance with the order of mandamus has not been specified;

B. No penal notice was endorsed on the order of mandamus;

C. Any delay in compliance with the order of mandamus was due to the delay in receiving legal advice;

D. There had been reasonable, bona fide attempts to comply by arranging the hearing (“the best endeavours defence”); and

Should there be a finding of contempt, the HC submits that that finding coupled with an order for costs would be sufficient penalty. There is no need to impose a fine.

GENERAL PRINCIPLES ON CONTEMPT

31.  Because of the summary and quasi-criminal nature of the jurisdiction, the courts have warned that the process of contempt should not be invoked in aid of a civil remedy where some other method of achieving the desired result is available: Arlidge, Eady & Smith on Contempt (4^th ed, 2011) §12-25.

32.  The principles on civil contempt can be distilled from the judgment of Sir Gerard Brennan NPJ in Kao, Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830:

(1) The penalty to which a person who fails or neglects to obey an order of the court is exposed imports many of the procedural safeguards which are characteristic of proceedings for a criminal offence and thus an allegation of civil contempt must be proved strictly: para 6 of the judgment.

(2) It is an elementary principle of justice and fairness that no order will be enforced by committal unless it is expressed in clear, certain and unambiguous language for if the Court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done : para 23.

(3) Strict proof of guilt beyond reasonable doubt is required: para 30.

(4) Orders of the court must be complied with strictly in accordance with their terms. It is not sufficient, by way of answer to an allegation that a court order has not been complied with, for the person concerned to say that he “did his best.” The only exception to that proposition is where the court order itself only orders the person concerned to “do his best.” But if a court order requires a certain state of affairs to be achieved, the only way in which the order can be complied with is by achieving that state of affairs: para 26, following Howitt Transport Ltd v Transport and General Workers’ Union [1973] ICR 1, at page 10D-E.

(5) Liability for civil contempt does not depend on an intention to disobey the order or otherwise to interfere or impede the due administration of justice.  Nor does it depend on contumacious intent.  However, conduct that was casual or accidental and unintentional would be excluded from civil contempt: paras 43-46, 53.

(6) Penalty must be distinguished from liability.  The bona fides of the contemnor, and his reasons, motives and understanding in doing the acts which constituted the contempt of court, may be highly relevant in mitigation of the contempt. Bona fide reliance on legal advice, even though the advice turns out to have been wrong, may be relevant, and sometimes very important, as mitigation. The extent of such mitigation must, however, depend upon the circumstances of the particular case, and the evidence adduced: para 53, following Re Mileage Conference Group of the Tyre Manufacturers' Conference Ltd's Agreement [1966] 1 WLR 1137 at p1162D-H,  per Megaw J.

33.  The court does have power to make a finding of contempt against a government body for contempt and punish a non-government department for contempt: In re M [1994] 1 AC 377, at 424G-426B per Lord Woolf:

“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. This jurisdiction is required to be coextensive with the courts' jurisdiction to make the orders which need the protection which the jurisdiction to make findings of contempt provides.

…

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.

…

In addition the object of the exercise is not so much to punish an individual as to vindicate the rule of law by a finding of contempt. This can be achieved equally by a declaratory finding of the court as to the contempt against the minister as representing the department. By making the finding against the minister in his official capacity the court will be indicating that it is the department for which the minister is responsible which has been guilty of contempt. The minister himself may or may not have been personally guilty of contempt. The position so far as he is personally concerned would be the equivalent of that which needs to exist for the court to give relief against the minister in proceedings for judicial review. There would need to be default by the department for which the minister is responsible.”

34.  The above principles equally apply to a public body: Regina (JM) v Croydon London Borough Council [2010] 1 WLR 1658 at para 11 per Collins J.

ANALYSES OF THE GROUNDS OF DEFENCE

Ground A: lack of specification of time for performance

35.  The order alleged to be the subject of contempt (1) must be unambiguous and (2) must specify the time for compliance.  These are 2 distinct requirements.

36.  The first requirement is to let the alleged contemnor know, without doubt, what he must or must not do: para 32(2) above.  This is to ensure fairness to him: see Sino Wood Investment Ltd v Wong Kam Yin (2005) 8 HKCFAR 715 at paras 1-23 per Ribeiro PJ.  Any ambiguity or uncertainty must be resolved in his favour: Re A Solicitor (Paul Tse: No 1) [2006] 2 HKC 159 at paras 89-90 per Woo VP.

37.  The second requirement is to let the person know when to do the act required.  Save for an order to pay money, to give possession of land or to deliver goods, the time for compliance must be specified in the original order: Order 42, rule 2(1); or in a subsequent order: Order 45, rule 6(2).  In the latter scenario, an application for a subsequent order must be made by summons and must be served on the person required to do the act in question: Order 45, rule 6(3).  Contempt proceedings should only be taken if the subsequent order is breached: Order 45, rule 5(1)(b)(iii) and (2).

38.  Order 42, rule 2(1) is framed in mandatory terms by the use of the word “must”.  An order that does not specify the time for compliance can be set aside as invalid and cannot be enforced: Hong Kong Civil Procedure 2014, Vol 1, para 42/2/1. 

39.  The requirement for service of an order on the person to be cited for contempt can be dispensed with by the court if it thinks it just to do so: Citybase Property Management Ltd v Kam Kyun Tak & ors (No.1) [2003] 2 HKC 98; Order 45, rules 7(6) and (7).  However, there is no comparable power to dispense with the requirement for specifying a time for compliance.

40.  Mr Wong SC submits that the HC was not in contempt because:

(i) No specific date was stated in the order of mandamus as to when HC had to hear and determine Dr Q’s case.

(ii) The provision of “an early hearing date” is not an objective, specific time, and in itself creates uncertainty.  How early is early enough?

(iii) The meaning of an “early” hearing date is not capable of being determined objectively with certainty but must depend on all the circumstances of the case including what needs to be done, or can reasonably be done, by HC before the hearing can be resumed.  It is ultimately a subjective and judgmental issue which may differ from person to person.  If there is uncertainty as to when a date set is early enough, having regard to all the circumstances, then the matter must be resolved in HC’s favour.

41.  I agree with point (i).  This is fatal to the present application.

42.  With regard to points (ii) and (iii), the order of mandamus has to be interpreted objectively given its context and purpose:

(i) The PIC was able to hold a first hearing within 2 months of the Council’s first letter to Dr Q. 

(ii) The HC was able to hold a hearing within 1 month of PIC’s referral.

(iii) The second application for judicial review was based on HC’s extraordinary inaction for about 2 years since the hearing was adjourned part-heard on 26 January 2010.

(iv) When entering into the order of mandamus by consent, HC was advised by the ex-Legal Adviser that any outstanding issues could easily be decided and arranged by the HC itself and the outstanding issue was in fact “a policy decision which will have to be decided by the Council.”  The ex-Legal Adviser advised that the order of mandamus be agreed subject to the understanding that it would take about 3 months to arrange a hearing. 

(v) HC expressed urgency in 2 of the chasers (dated 21 May and 5 June 2013) to the ex Legal Adviser.

(vi) In the chaser dated 21 May, 5 months after the order of mandamus, Ms Ho stated to the ex-Legal Adviser:

“Sorry to bother you again but we need your urgent advice on taking the captioned case forward since the court had ordered that the case for Dr Q should be conducted as soon as possible. We are worry (sic) that Dr Q’s side will backfire us for taking no action to take the case forward. …”

43.  The HC has been compelled to hear and determine Dr Q’s case. There could not be any other meaning for “early” except “as soon as possible and with full force”.  The order was not ambiguous.  That said, the order of mandamus fell short of the precision required for enforcement.  “An early hearing date” could mean “2 weeks after Dr Q’s medical report was made available to the HC”, or “6 months after the order of mandamus when the diaries of five suitable members could accommodate a hearing”.  Whilst I do not agree that determining an “early” date was a subjective and judgmental issue, I find that the precise “early date” could not be ascertained by a reader just by reading the order of mandamus itself.  Subject to this, points (ii) and (iii) are valid.

44.  Mr McCoy SC submits that the court need not decide when was “early” but need only to be satisfied that the HC was too late.  Whilst I agree, as a matter of fact, that the HC has unjustifiably delayed the fixing of a fresh hearing (detailed in Section C below), I do not agree that I can overlook the requirement under Order 42, rule 2(1).

45.  Without a time specified for compliance in the order of mandamus, there is a reasonable doubt as to whether or not the HC was in contempt of court.  This is borne out by events subsequent to the grant of leave.  HC was able very promptly to issue a letter to Dr Q on the day of the grant of leave and offered to fix a hearing within 3 months thereafter (although that offer had overlooked the issue of bias as alluded to in paragraph 29 above).  Had there just been a summons under Order 45 rule 6(3) to fix the time for compliance instead of these contempt proceedings, one cannot exclude the possibility that HC would have acted with the same promptness and fixed a hearing without the problem of bias.  Dr Q might still be able to get indemnity costs for the summons as a reflection of the court’s disapproval of HC’s delay.  The process of contempt should not be invoked since the summons will achieve the same result desired by Dr Q.

46.  In his submission in reply, Mr McCoy SC relies on various other statutory provisions like Order 52, rule 5 (power of the court to make an order of committal of its own motion) and rule 9 (power of the court to punish a contemnor with a fine or security for good behaviour).  In my view, those provisions cannot override the mandatory provisions in Order 42, rule 2(1) and Order 45, rules 5 and 6.

47.  Mr McCoy SC also relies on the case of Sino Wood Investment Ltd v Wong Kam Yin (2005) 8 HKCFAR 715 to impress upon this court to override matters of “technicality”.  However, the Sino Wood case is distinguishable.  Unlike the mandatory order in the present case, the injunction there was prohibitory in nature and expressly held by the Court of Final Appeal to have no ambiguity.  Moreover, the Court of Final Appeal was not dealing with the question of there being no time specified for performance of an act under Order 42 but whether the order was ambiguous.

48.  Ground A is substantiated.

Ground B: lack of penal notice

49.  Mr Wong SC originally complains about the failure to serve a penal notice but eventually concedes that a penal notice is required only if it is necessary to punish for contempt.

50.  Given that the order of mandamus was entered into on terms voluntarily agreed to by HC with the benefit of prior legal advice exactly on the term of fixing of “an early hearing date”, and that HC clearly understood the effect of the order of mandamus as evidenced by the March email and Ms Ho’s chaser dated 21 May 2013, the concession that a penal notice was not required is correctly made.

51.  In AXA China Region Insurance Co Ltd v Li Yu Ping v Ellen [2002] 3 HKC 339, it was held that:

(i) The court had the power (an unfettered discretion) under RHC, Order 45, rule 7(7), where the circumstances for the application of Order 45, rule 7(6) did not exist, and where there has been a failure to serve an order which required a person to do an act, to dispense with service and the court may do so retrospectively. 

(ii) It must follow that if the power to dispense with service of an order was properly exercised, the requirement to endorse a penal notice on the order would fall away even though there was no express power to dispense with a penal notice in the Rules of High Court.

52.  If sought in the present case, I would have no hesitation in giving an order for dispensation of service under Order 45, rule 7(7).

53.  However, I have reservation as to whether or not the proposition in paragraph 49 is correct as a general proposition for all statutory bodies.

54.  It has been held that a penal notice is not required where the party alleged to be in contempt is the government or a public body and only a finding of contempt is sought, but is required if punishment for contempt is sought: Regina (JM) v Croydon London Borough Council at para 11 per Collins J.

“2. It is not and has never been the practice of the Crown Office or of the Administrative Court to include a penal notice in its orders, whether in the form of injunctions or mandatory or prohibitory orders.

…

8. … no penal notice is necessary in orders against any such government department or officer of the Crown within any such department (usually a Secretary of State or minister). Nevertheless, as M v Home Office made clear, a finding of contempt could be made if there was a failure to obey an order against the Crown. …

9. The distinction is there drawn between the ability to make a finding of contempt, which will lead to no punitive sanction save for payment of costs, and the ability to punish for contempt as a means of enforcement. It is the latter which would be covered by RSC Ord 45. Thus it is only if it is considered that it should be possible to use the powers available to punish for contempt that a penal notice might be needed. The question is whether such a notice is indeed necessary to enable such powers to be used.” (emphasis added)

55.  The learned judge’s reasoning was based on the provisions of Order 45, rules 5(1) and 7(4), and Order 77, rule 15(1) (all similar to Hong Kong’s). Order 45, rule 5(1) provides that breach of a mandatory order by a body corporate can be enforced by way of committal.  Order 45, rule 7(4) lays down the requirement for a penal notice.  Noting that “body corporate” was not defined in Order 45, Collins J held that that expression was not confined to companies and included a local authority and any defendant against whom an order to take or to abstain from taking any action made by the Administrative Court (para 4 of the judgment).  So it will cover the HC.

56.  Collins J then referred to Order 77, rule 15(1) which provided that “nothing in Orders 45 to 52 shall apply in respect of any order against the Crown.”  Order 77 has been replaced by a similar provision in CPR Part 66.  CPR rule 66.6(2) defines “order against the Crown” to mean an order “against the Crown, a government department, or an officer of the Crown as such, made … in proceedings in the Administrative Court.”  The list of authorized government departments extends beyond what most would consider as obvious government departments to include, for example, the law enforcement agencies (Crown Prosecution Service, Serious Fraud Office, Assets Recovery Agency).  The list is set out in Civil Procedure 2009, Vol 1, part 66PD-004, pp 1801-1802. It was based on such reasoning that he held as he did in paragraph 8 of his judgment cited above.

57.  The HC is a statutory body composed of non-government officials.  Order 77 clearly does not cover such a statutory body.  I query if service of a penal notice on a statutory body like the HC can be dispensed with generally.  This issue may well be left for further debate in an appropriate case.

58.  Given HC’s concession, ground B does not constitute a defence in the circumstances of this case.  

Ground C: delay in receiving legal advice

59.  It was entirely reasonable for HC to have sought legal advice as its chairman and members had no legal background and were in no position to comment on whether an issue was significant or trivial. Having regard to the past 2 sets of judicial review, it was also reasonable for HC to be more cautious.  It was equally reasonable for them to ask the ex-Legal Adviser to settle the draft letter.

60.  It took 5 months for the ex-Legal Adviser to give advice.  Whilst commenting on Dr Chow’s 1^st affirmation, the ex-Legal Adviser stated (i) that he had not received the draft letter and (ii) that he was concerned with what was known as the “manpower austerity measure”. 

61.  On point (i), the ex-Legal Adviser did not say that the lack of the draft letter impeded the giving of his advice earlier. In any case, HC was not aware of the omission of the draft letter until the ex-Legal Adviser issued the letter commenting on Doctor Chow’s 1^st affirmation. 

62.  On point (ii), There is a dispute between Doctor Chow and Ms Ho on the one hand, and the ex-Legal Adviser on the other, as to whether or not the latter had given oral advice over a “manpower austerity measure” (an issue arising in unrelated judicial review proceedings).  I find it quite hard to accept the ex-Legal Adviser’s version that on such a substantial issue, advice was given orally.  It is, however, not necessary to resolve the dispute because the manpower austerity measure is not a reason relied on by HC as holding up the fixing of a fresh hearing.  In any case, the HC relies on the fact of delay rather than the contents of the legal advice.

63.  The order of mandamus had clearly been in the minds of Doctor Chow and Ms Ho.  The former had numerous opportunities to meet the ex-Legal Adviser at Council meetings.  The latter did the liaison and clerical work.  However, save for the one dated 21 May 2013, their chasers only bore a superficial sense of urgency.  Even Ms Ho did not consider that the legal advice would have taken long, hence she asked for a reply from the ex-Legal Adviser within 5 days of the March email.  The legal advice was given within 1 hour of the 5^th chaser after a telephone conversation with Ms Ho.  Had there been more direct prompting of the ex-Legal Adviser, the delay might have been much reduced. 

64.  The delay in obtaining legal advice was unreasonable and avoidable.  HC as a party to the order of mandamus has to be held responsible for the delay.  Ground C does not constitute a defence but only goes to mitigation.

Ground D: the best endeavours defence

65.  Mr Wong SC submits that HC has acted reasonably at all times in a bona fide attempt to comply with the order of mandamus:

(i) The Chairman, Doctor Chow, has acknowledged and sincerely apologized at the first available opportunity for the fact that HC had not heard or determined Dr Q’s case since the order of mandamus.  (This was without prejudice to HC’s primary position that there had been no breach of the order.)

(ii) There were valid and legitimate reasons why the hearing has not yet been held, although the HC had taken positive steps immediately after the order of mandamus with a view to having the hearing held as soon as possible.

(iii) There was delay on the part of the ex-Legal Adviser in rendering advice and commenting upon the draft letter.

(iv) In November 2013, upon the advice of the new Legal Adviser, HC has, through the DOJ, proposed to hear Dr Q’s case in December 2013 or January 2014, however, Dr Q declined.

(v) As a result of Dr Q’s stance, Doctor Chow has recently resigned as Chairman of HC because even though Dr Q’s allegations of bias (actual or apparent) were not accepted, the HC and Doctor Chow did not want the composition of the HC to form the basis of any alleged impediment to the convening of a hearing.

66.  The law is well established: it is not enough for a person who has breached a court order to say that he has tried his best: para 32(4) above.

67.  The intention, efforts of HC, the delay of the ex-Legal Adviser and bona fide reliance on legal advice are only relevant to mitigation: para 32(6) above; M v Home Office, p.426D-H, citing Attorney-General v. Times Newspapers Ltd [1992] 1 A.C. 191.

68.  Once a failure to comply with an order is found, there is prima facie contempt.  It is for the contemnor to show that it has always been impossible of carry out the terms of the order: Lewis v Pontypridd, Caerphilly, and Newport Railway Company (CA) (1895) 11 TLR 203 per Lord Esher M.R.:

“Up to the present time they had not done the work so ordered. They were therefore prima facie in the position of having disobeyed a judgment. But it was said that they had not wilfully disobeyed the judgment so as to bring the case within order 42, rule 31. The directors said that the company had never been able to comply with the judgment, and therefore could not be said to have wilfully disobeyed it. If from the time when the judgment was given they had always been unable, through want of funds, to do the work, probably they could not be said to have wilfully disobeyed the judgment. But it was necessary for the directors to make that out. They said that they had never had any funds out of which they could do the work, because they had paid away all the money which they earned in the ordinary expenses of carrying on the railway. It might be that they were entitled to keep the railway going. But, in his opinion, they were bound, so long as this obligation was lying upon them, to keep down their expenses to the lowest point possible. They failed to show that they could not have obeyed the judgment if they had used proper economy. ”

69.  Even in those circumstances, the contemnor should have applied to the court for further time: M v Home Office, at page 424A-C:

“If, therefore, there is a situation in which the view is properly taken (and usually this will only be possible when the action is taken in accordance with legal advice) that it is reasonable to defer complying with an order of the court until application is made to the court for further guidance then it will not be contempt to defer complying with the order until an application has been made to the court to discharge the order. However, this course can only be justified if the application is made at the first practicable opportunity and in the meantime all appropriate steps have been taken to ensure that the person in whose favour the order was made will not be disadvantaged pending the hearing of the application.”

70.  Even if using best endeavours were the test, it was clear that HC has not tried its best.  Point 65(i) was not an act towards fixing a fresh hearing.  Except for Point 65(iii), the others points arose after the leave application was filed and would at best go towards purging the non-compliance with the order of mandamus.

71.  The 2 issues in the HC paper were resolved latest by 26 March 2013. Doctor Chow, the then chairman who had not sat in the prior hearings could have sat in the fresh hearing.  There were 10 other members of the HC of which only 4 (who had not sat in the previous hearings) were required. Temporary members could have been appointed if there were not sufficient members to avoid the bias and conflict of interest in hearing Dr Q’s case after the 1^st judicial review: para 3 of Schedule 2 to the Ordinance.

72.  Mr McCoy SC very fairly conceded that if HC had proceeded to fix a fresh hearing around March 2013, Dr Q would not have taken out these contempt proceedings.

73.  Even in the letter dated 30 August 2013, HC merely informed Dr Q of its decision made about 5 months ago.  It referred to the fact that chairmanship of the PIC had changed due to the passage of time.  It mentioned the change in chairmanship of the HC as well.  It just omitted the most important thing of fixing a hearing.

74.  The net position is this: for over 5 years since the incident first arose, over 4 years since HC first took up the matter, after 3 sets of court proceedings, the parties are back to square one.  It is true that the HC intended to obey the order of mandamus, but there has been but an indolent and inefficient attempt to comply with it.  The delay was particularly woeful and culpable given that over those 4 years, Dr Q’s case was the only case that HC had to deal with and to deal with expeditiously under the compulsion of an order of mandamus! 

75.  The delay affected a fellow doctor’s career and does not instill public confidence in the HC.  If Dr Q was not fit to practice, he has been left to practice for over 4 years since HC was first seized of the matter.  On the other hand, if he has been fit to practice, the medical issue has been left hanging over his head for over 5 years since it first arose.  It has caused him material prejudice in that the Council has held up the issue of a certificate of good standing to him due to the outstanding HC hearing.  The knock-on effect was that it has:

(i) insurance implications regarding his practice as a general practitioner and possible further medical practice;

(ii) posed significant hurdles against practising in an overseas jurisdiction; and

(iii) posed significant hurdles against undertaking fellowship examinations overseas.

76.  Whether one views the 8 months post-order on its own, or in the light of the whole 4 to 5 years, HC’s efforts could hardly be described as best endeavours.

77.  Ground D is not substantiated.

CONCLUSION

78.  The order of mandamus did not specify the time for compliance, which requirement cannot be dispensed with.  Contempt has not been proved beyond reasonable doubt.  Alternatively, the same desired result could have been reached by taking out a summons under Order 45, rule 6(3) to fix a time for compliance.  The process of contempt should not be invoked.  The application is dismissed.  It remains unnecessary to deal with the arguments on punishment.

79.  On costs, I have considered whether or not to deny costs to the HC.  An application for committal for contempt of court is to ensure that the court’s order is obeyed and not for the practical benefit of the applicant.  However, it is a serious application to take.  An application by a summons under Order 45 rule 6(3) could have been a substitute.  In the premises, the appropriate order should be for costs to follow the event and be borne by Dr Q, including costs of the 2 summonses for disclosure and inspection, with certificates for 2 counsel.  I make an order nisi accordingly.

80.  I thank counsel for their most thorough preparation and high standard of work.