MR. K v. PRELIMINARY INVESTIGATION COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG

HCAL 1669/2018

[2020] HKCFI 321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1669 OF 2018

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J U D G M E N T

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INTRODUCTION

1.  This is the rolled-up hearing of an application for judicial review of the decision of the Preliminary Investigation Committee (“the PIC”) of the Medical Council of Hong Kong (“the Council”) made on 18 May 2018 not to proceed with the Applicant’s complaints against Dr Tam.

2.  In what follows, unless the context otherwise indicates, references to (i) sections (“s” or “ss”) shall be to the Medical Registration Ordinance, Cap 161 (“the Ordinance”); and (ii) regulations (“r” or “rr”) shall be to the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap 161E (“the Regulation”).

BASIC FACTS

3.  According to the Applicant, on 26 January 2015, while he was working in his office, he accidentally hit his private parts against the armrest of a chair.  Immediately after the accident, he felt pain on the dorsal (or upper) side of his penis.  He examined himself, and found no hematoma, bruising or other wounds on his penis.  He was also able to urinate normally and could continue his work, which he did for the rest of the week.

4.  However, over the next few days after the accident, the Applicant felt occasional discomfort in his penis, including a “squeezing sensation”.  Due to the persistence of the discomfort, on 1 February 2015, he sought medical treatment at the Accident & Emergency Department of the Prince of Wales Hospital (“PWH”).  The triage nurse at PWH, being the first point of clinical contact for patients visiting the Accident & Emergency Department, recorded, amongst other things, that the Applicant suffered a penile injury during sexual intercourse when his penis was erect. This description of the injury is disputed by the Applicant.

5.  Later that day, the Applicant was examined by Dr Wong.  In Dr Wong’s clinical notes, it was recorded that the Applicant suffered penile injury when it hit a hard object 5 to 7 days ago.  Physical examination did not reveal swelling or redness over the Applicant’s penis. Dr Wong was of the view that the Applicant might be suffering from urethral injury, and admitted him to the Urology Division of the Department of Surgery of PWH for further management.

6.  The Applicant was admitted to the Urology Ward of PWH on the same day (1 February 2015), and was examined by Dr Chan. Her records stated that the Applicant was admitted because of “suspected penile injury” when “[d]orsal surface of penis hit hard surface during erection”. This description of the injury is also disputed by the Applicant.

7.  On 2 February 2015, the Applicant was seen by Dr Tam.  According to the Applicant:

(1)     Dr Tam advised him that he was in a serious condition, that he had come to the hospital too late and his injury might not be salvageable.

(2)     Dr Tam told him that an urgent surgery (“the Surgical Process”) was needed.

(3)     The Applicant requested to try less invasive investigative measures such as ultrasound or MRI before resorting to surgery. Dr Tam did not and/or refused to conduct such less invasive investigative measures, but persisted and repeatedly emphasized to the Applicant that he was in a serious condition and surgery was the only option.  She further told the Applicant that he would not be able to have an erection in the future if the proposed surgery was not performed.

(4)     Relying on Dr Tam’s aforesaid advice, the Applicant signed a consent form for the proposed surgery.

8.  In the consent form, the following possible complications arising from the Surgical Process were listed: “bleeding, infection, erectile dysfunction, penile numbness, penile shortening”[1].

9.  The Surgical Process was carried out on 2 February 2015.  In the Operation Record signed by Dr Tam dated 2 February 2015, it was stated, inter alia, that:

(1)     the “Preoperative Diagnosis” was “penile fracture”;

(2)     the Surgical Process was for the purpose of “exploration for suspected penile fracture”, and involved, inter alia, degloving the penile skin down to Buck’s fascia and exposing the penile face;

(3)     under the sub-heading “Findings” -

“Left penile base injury (hit on hard object during erection) 1/52 ago, sudden detumescence and bruising

Fail erection since then. No gross hematuria and voiding difficulties

Clinically suspected penile fracture

No defect or hematoma seen at Buck’s fascia and tunica

Likely rupture of superficial veins only: resolved now”;

(4) the “Operative Diagnosis” was “Disorder of penis (no penile fracture)”.

10.  The Applicant was discharged from PWH on 6 February 2015.  As a result of and after the Surgical Process, the Applicant developed serious complications (including extensive infection of the wounds with abscess formation, gangrene and full thickness loss of skin in the penis), the details of which it is not necessary to set out in this judgment. Subsequently, the Applicant received further medical treatment (including plastic and other surgeries) from PWH/Queen Mary Hospital/Baptist Hospital.

11.  According to the medical report of Dr Lo dated 19 February 2016 (“Dr Lo’s 1^st Report”) obtained by the Applicant in connection with his civil action against the Hospital Authority, the Applicant is currently suffering from the following conditions:

(1)     deformity of the penis, with loss of coronal sulcus from scarring;

(2)     erectile dysfunction;

(3)     loss of sensation over the penis;

(4)     emotional issues including worries about future sexual function and fertility;

(5)     urethral stricture which is likely to recur; and

(6)     major depressive disorder.

The Applicant now requires the insertion of a foley catheter in order to discharge urine.

12.  In Dr Lo’s 1^st Report, he also expressed the following views:

(1)     The mechanism of injury (as described by the Applicant) was not consistent with Dr Tam’s presumptive diagnosis of penile fracture, which would be associated with buckling of the penis during sexual intercourse or vigorous masturbation with the penis erect and shown by marked ecchymosis and swelling indicative of tunica tear (which were absent in the Applicant’s case).

(2)     Even if there had been a tunica albuginea laceration in the Applicant’s injury episode, involving the more superficial structures like the skin, Buck’s fascia and blood vessels, the absence of extensive (and in the present case, any) ecchymosis indicated minimal bleeding, and therefore an injury of minor magnitude only.  The treatment of choice would have been conservative, and close observation only.

(3)     The preoperative management given to the Applicant fell below the standard of care in terms of absence of indication for exploration.  There was no evidence of severe bleeding caused by impact, nor evidence of ongoing or anticipated further bleeding.  Surgery was thus unnecessary.

(4)     The intraoperative and postoperative care fell below the standard of care in terms of severe infection, and inadequate observation and care, resulting in severe gangrene requiring skin grafting.

13.  In 22 May 2016, the Applicant lodged a complaint of professional misconduct against Dr Tam to the Council (“the First Complaint”).  In summary, the Applicant complained that:

(1)     Dr Tam was negligent in her wrongful preoperative diagnosis of penile fracture;

(2)     Dr Tam was negligent in failing to (i) consider and propose alternative treatments (such as clinical observations, ultra sound or MRI) but instead recommending an invasive procedure, and (ii) properly treat his wounds resulting from the Surgical Process;

(3)     Dr Tam was negligent in failing to explain the potential risks of the Surgical Process and improperly influencing him to consent to undergo the Surgical Process; and

(4)     Dr Tam failed to provide full or sufficiently full medical records and even falsified medical records.  This allegation related to 2 aspects:

(i)     Dr Tam’s medical records made after the operation were inconsistent with other medical records made before the operation.  Dr Wong’s clinical notes made on 1 February 2015 recorded that there was no swelling and no hematoma.  In Dr Chan’s “Progress Note” dated 1 February 2015, it was also stated that there was “no hematoma” and “no swelling”.  However, in Dr Tam’s “Operation Record” dated 2 February 2015, it was stated that the Applicant had “sudden detumescence and bruising”.

(ii)     Dr Tam wrote, in the medical records for 8 March 2015 (after the Applicant’s readmission to PWH for further treatment), that the Applicant’s conditions were stable even though she had not examined his wounds.

The Applicant did not, at that stage, provided Dr Lo’s 1^st Report to the Council in support of the First Complaint.

14.  In June 2016, the First Complaint was considered by the Chairman of the PIC (“the Chairman”), who took the view that the Applicant’s allegations of (i) mis-diagnosis of penile fracture, and (ii) failure to offer proper post-operative management did not appear to be frivolous or groundless, and might give rise to a prima facie case of professional misconduct against Dr Tam.  The Chairman was not, however, satisfied that there were grounds for a charge of professional misconduct against Dr Tam in respect of the allegations relating to (i) her pre-treatment advice, and (ii) falsification of medical records.  The Chairman further considered that an expert opinion in the field of urology should be obtained to comment on the treatment given by Dr Tam.

15.  On 15 September 2016, an expert report from Dr Man (a specialist in Urology) was obtained (“Dr Man’s 1^st Report”) by the Secretary to the PIC.  In Dr Man’s 1^st Report, he opined that:

(1)     There was no investigation that could absolutely exclude penial fracture.  A patient with suspected penile fracture based on history and physical examination would be advised to have surgical exploration with a view to repairing the fracture that might be present in order to avoid a long term erectile dysfunction or penile curvature.  The diagnosis of penile fracture before exploration could only be a working diagnosis.  The actual diagnosis, which could only be confirmed with exploration and induction of artificial erection, could sometimes turned out to be pathologies other than penile fracture, such as rupture of dorsal penile veins.  Patients should understand that a negative exploration was possible but the risk of a negative exploration was much less than that of leaving a fracture undiagnosed and unrepaired.  Dr Tam worked with a proper working diagnosis, although it did not turn out to be the actual pathology.

(2)     A working diagnosis of penile fracture was usually made based on history and physical examination.  Adjunctive imaging studies were usually unnecessary.  Cavernosography was discouraged because it was time consuming and unfamiliar to urologists and radiologists. Ultrasonography had been associated with significant false negative studies (missing penile fractures).  Magnetic resonance imaging, even though more sensitive than ultrasound and cavernosography, was to be used with caution for excluding the diagnosis of penile fracture.  Imaging study was therefore not routinely done before exploring a penis with suspected penile fracture.  It was not unreasonable for Dr Tam not to perform imaging on the Applicant before the operation.

(3)     The photographs seen by Dr Man showed that there was necrosis on the degloved penile skin over its ventral aspect that required subsequent partial thickness skin cover.  This could have resulted from infection of the penile skin after mobilization.  Penile skin infection and necrosis were known complications of mobilization of penile skin.  If the infection and necrosis required another operation for skin cover, the complication could be considered to carry significant morbidity to the patient.

(4)     Multiple contemporary publications indicated that suspected penile fracture should be promptly explored and surgically repaired.  Immediate surgical repair resulted in faster recovery, decreased morbidity and lower incidence of penile curvature and erectile dysfunction. Earlier operation carried better results.  Those undergoing repair within 8 hours of injury had significantly better long term results than those having surgery 36 hours after injury.  Surgical intervention up to 7 days could still yield results comparable to those operated within 24 hours.  The risk to the patient of a negative exploration was much less than that of leaving a fracture undiagnosed and unrepaired.  Dr Tam’s decision to carry out an exploratory surgery about one week after the Applicant’s injury was therefore not unreasonable.

16.  On 30 September 2016, the Chairman directed that the First Complaint should be referred to the PIC for consideration.

17.  On 21 November 2016, the PIC received Dr Tam’s written representations to the First Complaint, the relevant parts of which stated as follows:

“I saw [the Applicant] in Ward 8C of [PWH] at around 7:40 am on 2 February 2015 during my ward round. [The Applicant] told me that the dorsal side of his penis had been hit by a hard object during erection one week before which had resulted in sudden penile detumescence. He told me that he had had some initial bruising but since then had not been able to achieve erection. On … physical examination, no tunica defect can be felt, nor any bruising was present. Based on [the Applicant’s] history, in particular the sudden penile detumescence and the inability to erect afterwards, I made the provisional diagnosis of suspected penile fracture. I explained to [the Applicant] that a penile injury during erection could have possibly caused a penile fracture which, if left untreated, might result in erectile dysfunction and/or deviation in erection angle due to the formation of scar tissue. I advised penile exploration and repair surgery to [the Applicant].

In view of the delayed presentation and the atypical physical findings for suspected penile fracture, I consulted Prof. Ng Chi Fai (Professor, Division of Urology, Department of Surgery, CUHK). The history of present illness and physical findings were presented to him. Prof. Ng agreed that the operation would be appropriate for [the Applicant]. I explained to [the Applicant] that the purpose of the surgery was to open the skin to check if there was penile fracture, and make repairs as necessary. [The Applicant] enquired if an ultrasound could be performed to confirm the penile fracture. I explained to him that penile fracture would not show up on ultrasound. [The Applicant] asked if he could decide not to have the operation. I explained to him that if he did not have the operation, his penis might not recover fully should … penile fracture [be] present. The risks of the operation including bleeding, infection, erectile dysfunction, penile numbness and penile shortening have been explained to [the Applicant] and documented in the consent form.

…

With regard to the accusation of event dated 8 March 2016, the entry ‘Stable’ was based on the vital signs chart of [the Applicant]. From my clinical judgment, wound inspection was not necessary on that day as firstly, there was stable improvement of the wound, which has been examined by another doctor the day before, and secondly, he would soon receive wound dressing by the nursing staff. I subsequently inspected [the Applicant’s] wound upon his request. This was my last encounter with [the Applicant].

To conclude my account of the incident, I operated based on the presumptive clinical diagnosis after consulting my senior and explanation of the surgical risks to [the Applicant].  It was a misfortune that [the Applicant] suffered from complications leading to irreversible physical and emotional damage which I am deeply apologetic about.”

18.  On 10 January 2017, the PIC met to consider the First Complaint.  The PIC agreed with the opinion of Dr Man and considered that there was no evidence to substantiate the Applicant’s complaint of professional misconduct against Dr Tam.  Accordingly, the PIC decided that his case should not be pursued and no inquiry under Part IV of the Ordinance would be held.

19.  On 8 March 2017, the Secretary to the Council informed the Applicant of the decision of the PIC not to refer his complaint against Dr Tam to the Council for inquiry.

20.  The Applicant was not satisfied with the PIC’s decision.  On 8 August 2017, the Applicant lodged supplemental information, including Dr Lo’s 1^st Report and medical records obtained from PWH, to the Council in support of his complaint against Dr Tam (“the Second Complaint”).  In his letter to the Council, the Applicant complained or contended that:

(1)     the PIC failed to explain why Dr Tam had come to her recommendation, regardless of the lack of clinical evidence in support of a preoperative diagnosis of penile fracture;

(2)     the PIC failed to deal with his allegation regarding Dr Tam’s post-operative treatment (in particular, re-using the gauze that had been exposed for a substantial period of time and failing to exercise a reasonable standard of care in handling his wounds 1 day after the surgery); and

(3)     the PIC failed to consider his complaint that Dr Tam had improperly influenced him to sign the consent form and falsified medical records.

21.  On 21 October 2017, the Chairman directed that a further opinion should be sought from Dr Man on the Second Complaint.  On 4 December 2017, the PIC received a further report from Dr Man (“Dr Man’s 2^nd Report”).  Essentially, Dr Man came to the same views as before, and considered that there was not sufficient evidence to show that Dr Tam’s management of the Applicant was improper.

22.  On 10 April 2018, the PIC met to consider the Second Complaint.  The PIC again agreed with the opinion of Dr Man and considered that there was no evidence to substantiate the Applicant’s complaint of professional misconduct against Dr Tam.  Accordingly, the PIC decided that his case should not be pursued and no inquiry under Part IV of the Ordinance would be held.

23.  On 18 May 2018, the Secretary to the Council informed the Applicant of the PIC’s decision not to refer his complaint against Dr Tam to the Council for inquiry (“the Decision”).  The following was stated in the Council’s letter to the Applicant dated 18 May 2018:

“The complaint had been considered by the Preliminary Investigation Committee (‘PIC’) of the Medical Council of Hong Kong at its meeting held on 10 April 2018. Having carefully considered all the information available, including the further information provided by you and the opinion of an independent expert, the PIC noted/opined that:

(a) no investigation could absolutely exclude penile fracture. A patient with suspected penile fracture based on history and physical examination would be advised to have surgical exploration with a view to repairing a fracture that might be present in order to avoid long term erectile dysfunction or penile curvature. The diagnosis of penile fracture before exploration could only be a working diagnosis. The actual diagnosis, which could only be confirmed with exploration and induction of artificial erection, could sometimes turn out to be pathologies other than penile fracture, such as rupture of dorsal penile veins. A patient should understand that a negative exploration was possible but the risk of a negative exploration was much less than that of leaving a fracture undiagnosed and unrepaired. Dr TAM performed the surgical exploration based on a proper working diagnosis;

(b) a working diagnosis of penile fracture was made usually with history and physical examination, and adjunctive imaging studies were usually unnecessary. Ultrasonography had been associated with significant false negative studies (missing penile fractures). Magnetic resonance imaging, even though more sensitive, was to be used with caution when used to exclude diagnosis of penile fracture. Imaging study was therefore not routinely done before exploring a penis with suspected penile fracture. It was therefore not unreasonable for Dr TAM not to perform imaging before the operation;

(c) there was necrosis on the degloved penile skin over its ventral aspect that required subsequent partial thickness skin cover. This could result from infection of the penis after mobilization. Penile skin infection and necrosis were known complications of mobilization of penile skin.

Based on all the information available, the PIC considered that there was no evidence to show that Dr TAM had been guilty of professional misconduct and the PIC decided not to proceed with the complaint further.”

24.  There are two other matters that I should mention here.  First, the Applicant has commenced a civil action for damages against the Hospital Authority in the High Court (HCPI 1277/2016).  That action is, I understand, ongoing.  Nothing that is said in this judgment should in any away affect that action.

25.  Second, the Applicant has obtained a second report from Dr Lo dated 16 May 2016 (“Dr Lo’s 2^nd Report”). It was not provided to the PIC prior to either of its meetings on 10 January 2017 and 10 April 2018 respectively, but has been produced as an exhibit to the Applicant’s First Affirmation filed herein on 17 August 2018.  In that report, Dr Lo states, inter alia, the following:

“2. The diagnosis of a penile fracture is a clinical one: with history of buckling of an erect penis, and the clinical sign of severe ecchymosis and edema of the penile skin, and a large hematoma underneath. Assuming the clinical presentation is consistent with penile fracture, an ultrasound or Magnetic Resonance Imaging will not be required or helpful for confirmation of the diagnosis. There will [be] so much hyperechogenic areas, a break in the tunica albuginea cannot be recognized by Ultrasound. MRI is usually not used in this scenario either. If there is minor bleeding only, and the diagnosis is in doubt, these imaging studies will not cinch the diagnosis. Rather, if the bleeding was to be so minimal, in a ‘minor case of penile fracture’ and a fracture diagnosis is in doubt, the patient should be observed and not explored.

3.     If penile fracture is ruled out, the minor pain [the Applicant] described can be from a contusion of the area only.”

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

26.  On 17 August 2018, the Applicant made the present application for leave to apply for judicial review of the Decision.  At §54 of the Form 86, the Applicant advanced 4 grounds of judicial review:

(1)     The PIC failed to provide adequate reasons for the Decision, which gave rise to a clear inference that the PIC failed to consider all the relevant facts and materials before it, and acted unlawfully and/or irrationally.

(2)     In reaching the Decision, the PIC failed to take into account all relevant facts or materials, including (i) Dr Lo’s 1^st Report; (ii) the Applicant’s allegation that Dr Tam failed to explain the potential risks of the Surgical Process to him; (iii) the Applicant’s allegation that Dr Tam improperly pressurized him into providing consent to the Surgical Process, (iv) the Applicant’s allegation that Dr Tam was negligent both during the Surgical Process and in the post-operation treatment, and (v) the Applicant’s allegation that Dr Tam failed to provide full or sufficiently full medical records and even falsified medical records.

(3)     Alternatively, the PIC misdirected itself in law in reaching the Decision when there was clear evidence in the form of Dr Lo’s 1^st Report showing that (i) the Surgical Process was not necessary, and (ii) in any event, Dr Tam’s conduct before, during and after the Surgical Process (including the Applicant’s post-operation care) might have fallen below the standard expected among registered medical practitioners.

(4)     Further or in the alternative, in reaching the Decision, the PIC acted irrationally or unreasonably in the Wednesbury sense.

APPLICABLE PRINCIPLES

(i)     The role of the Chairman/Deputy Chairman in disciplinary proceedings under the Ordinance

27.  For the purpose of disciplinary proceedings against a registered medical practitioner for professional misconduct under the Ordinance, the test of “misconduct in any professional aspect” is whether the doctor’s conduct has fallen short of the standard expected amongst registered medical practitioners (see Chan Po Sum v Medical Council of Hong Kong [2015] 1 HKLRD 330, at §50 per Kwan JA (as she then was)).

28.  The Ordinance, together with the Regulation, establishes a 3-stage process for determining whether a registered medical practitioner is guilty of professional misconduct, namely, (i) initial consideration of a complaint by the Chairman or Deputy Chairman of the PIC, (ii) preliminary investigation of the complaint by the PIC, and (iii) full investigation of the complaint by an Inquiry Panel.

29.  At the first stage, the Secretary to the Council, upon receipt of a complaint of professional misconduct against a registered medical practitioner, would submit the case the Chairman (or, in his absence, the Deputy Chairman) for initial consideration under r 6(1).

30.  Under r 6(2), if the Chairman (or Deputy Chairman) to whom the case is submitted under r 6(1) considers that the case is “frivolous or groundless and should not proceed further”, he shall consult the Deputy Chairman (or Chairman) with a view to decide whether the proposed cause of action should be taken.

31.  If both the Chairman and Deputy Chairman consider that the case is frivolous, or groundless, and should not proceed further, they may dismiss the case under r 6(3).  Otherwise, the Chairman (or Deputy Chairman) shall refer the case to the PIC for its consideration under r 9(1) and (1A).

32.  The role of the first stage screeners is a narrow one which requires them to filter out any complaint which they are satisfied should not proceed further on the ground that the case is frivolous or groundless.  Wider questions, such as the prospects of success, or whether the complainant is acting oppressively, or the justice of the investigation proceeding further, do not lie within the remit of the first stage screeners (see Law Yiu Wai Ray v The Medical Council of Hong Kong, HCAL 46/2015 (12 October 2015), at §§123-124 per Zervos J (as he then was)).

33.  At §127, Zervos J summarized the salient tasks and functions of the first stage screeners as follows:

“(1) The first stage screeners consider whether the case is frivolous, or groundless, and should not proceed further. It can only be dismissed if they are both satisfied that is the case.

(2) The role of the first stage screeners is a narrow one which requires them to filter out complaints that should not proceed further. Wider questions as to the prospects of success of the complaint, or whether the complainant is acting oppressively, or the justice of the investigation proceeding further, do not lie within the first stage screener’s remit.

(3) The first stage screeners must be satisfied of a negative in that the normal course of the complaint to the PIC should not be followed because it is frivolous or groundless.

(4) The first stage screeners may carry out investigations to supplement the materials which are reasonably necessary to enable the first stage screeners to carry out their task.

(5) The first stage screeners should not assume the role assigned to the PIC and carry out any of its investigative functions, in particular, should not seek to resolve conflicts of evidence.

(6) The first stage screeners if of the opinion that there is an allegation that gives rise to a question as to whether the medical practitioner has been guilty of misconduct in any professional respect, may require the complainant to make clarification about the complaint or set out the specific allegations in writing and the grounds to it or require that the allegation be supported by a statutory declaration. Failure to comply with any of these requirements, it is open to the first stage screeners to decline to proceed with the investigation of the case.

(7)     If the case is not dismissed by the first stage screeners, it is referred to the PIC.”

(ii)     The role of the PIC in disciplinary proceedings under the Ordinance

34.  The second stage comes in after a case is referred to the PIC.  Under s 20T(1), the PIC’s functions are, inter alia, to make preliminary investigations into complaints or information touching on any matter that may be inquired into by an Inquiry Panel, and to refer a case to an Inquiry Panel for holding an inquiry under s 21.

35.  For the purpose of deciding whether to refer a case to an Inquiry Panel, the question for the PIC is whether, having regard to all relevant materials, the complaint has any real prospect of being established.  However, it is not for the PIC to resolve any conflicts of evidence.  In Law Yiu Wai Ray, at §135, Zervos J summarized the position as follows:

“The salient tasks and functions of the PIC during the second stage screening can be summarised as follows:

(1) The PIC’s role is to consider the case, having regard to all the materials put before it by the Secretary and any written explanation submitted by the medical practitioner.

(2) The PIC must determine that either no inquiry shall be held (with the option to issue a letter of advice to the medical practitioner) or that the case be referred to the Council for inquiry.

(3) The PIC has to consider and, if necessary, further investigate whether the materials placed before it, would justify referral of the case to the Council for inquiry.

(4) The PIC may examine whether the complaint has any ‘real prospect of being established’, and may themselves conduct preliminary investigation into its prospects, and may refuse to refer to the Council if satisfied that the real prospect is not present.

(5) The PIC must approach its task with the utmost caution bearing in mind the nature of the procedures where the complainant has no right of access to the medical practitioner’s response and the state of the material at that stage.  It is not the PIC’s role to resolve any conflicts of evidence.”

(iii)    Reasons

36.  In Wei Linghui v Hong Kong Federation of Insurers Insurance Agents Registration Board [2017] HKCFI 2094, at §§29 and 30, I set out some relevant principles relating to the giving of reasons by an administrative tribunal for its decision which, for the sake of convenience, are repeated here:

“[29] While reasons given by an administrative tribunal for a decision do not have to be lengthy or comprehensive, they should at least demonstrate that the tribunal has properly grasped the issues before it and dealt with them in a proper and intelligible manner.

(1) In The Queen v Director of Immigration and the Refugee States Review Board, ex p Do Giau [1992] 1 HKLR 287, where reasons were required to be given, Mortimer J (as he then was) said at p 312 that such reasons as were given ‘had to deal with the substantial issues before him and had to be proper, adequate and intelligible’.

(2) In Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279, where reasons again were required to be given, the following general principles were stated by Li CJ:

[42] First, the reasons given should show that the Tribunal has addressed the substantial issues before it and show why the Tribunal has come to its decision. There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered.

[44] Thirdly, the reasons may not require great elaboration and they may be brief. It is only when they are defective in substance that they should be considered inadequate. Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly.

(3) In Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, Stock JA (as he then was) stated that following:

[97] Sound public administration requires that when reasons are required or are provided for an administrative decision, they should be clear as well as sufficient to the circumstances. The provision of adequate and clear reasons, where reasons are required by law, is a function of sound administration because transparency is more likely to promote confidence in public administration than is opacity, and also because the very requirement to provide clear reasons against the background of the particular issues raised itself encourages a disciplined approach to the issues at hand. But, most obviously, the requirement is based on fairness, so that the person or body adversely affected by a decision should have an adequate indication of the reasoning process, enabling him to know whether the decision-maker has addressed his grievance and whether there may be a basis for challenging the decision. So too clarity and sufficiency of reasons enable a supervisory court in judicial review better to assess the legality of a decision under challenge. See Fordham’s Judicial Review Handbook, 4thed., paras. 62.1.5 to 62.1.9.

[98] What is sufficient will depend on the legal framework within which the body takes the decision and upon the case at hand. Sometimes a brief statement of reasons will suffice, because in context no more needs to be said. Sometimes, although the words employed in the reasons articulated might have been more clearly stated, a common sense approach in context of the reasons, or of the particular history, as a whole will readily reveal what was obviously intended and the courts should be loathe to permit scrutiny of reasons as if they constituted a statutory instrument. Reasoning must be examined with reality and contextual common sense. That said, where a real issue arises as to whether an allegedly material issue was or was not taken into account, or what was at the end of the day made of that issue by the decision-maker, the courts are entitled to expect the answer to be sufficiently clear from the evidence before it without having to resort to guesswork. That, so it seems to me, is the problem – in my judgment, the sole problem – with which the respondent is faced in this appeal.

(4) In Ng Wing Hung v Commissioner of Registration, HCAL 125/2006 (unreported, 4 July 2007), Chu J (as she then was) stated at [51] as follows –

‘While it is within the power and remit of the Tribunal to assess and to decide on the weight to be given to the evidence before it, it is equally the responsibility of the Tribunal to demonstrate by its reason and decision that it had properly addressed the issues raised before it as to the quality and reliability of the evidence. In light of the rather substantial and important challenges made by the applicant on the 4 BEEA letters and the documents attached to it, notably the application form and the statement of Mr Chan, it would not be sufficient for the Tribunal merely to indicate that full weight may be attached to the 4 BEEA letters and that with these letters, the Commissioner had discharged his burden of proof. The fact that the applicant had not given evidence may be a relevant factor when the Tribunal came to assess the evidence. However, it is simply unclear form the decision of the Tribunal whether this had been considered by it. In any event, this does not excuse the Tribunal from having to address the arguments and issues raised by the applicant on the reliability of the 4 BEEA letters and the documents provided by the BEEA. In my view, the Tribunal’s conclusion is therefore unreasonable in the Wednesbury sense.’

[30]     The judgment of Stock JA in Capital Rich Development Ltd shows that the same public law requirements on the adequacy of reasons are applicable where (i) reasons are required, or (ii) they are in fact provided.  The judgment of Chu J in Ng Wing Hung shows that where the reasons given are inadequate, the decision would be regarded as Wednesbury unreasonable.”

DISCUSSION

37.  The Decision is, in my view, Wednesbury unreasonable, for the following reasons.

38.  First, the PIC concluded that there was “no” evidence to show that Dr Tam was guilty of professional misconduct.  This conclusion was plainly incorrect on the materials before the PIC.  There was evidence before the PIC, namely, Dr Lo’s 1^st Report and the Applicant’s complaint letters, that Dr Tam might be guilty of professional misconduct in relation to her preoperative diagnosis of penile fracture, her intra-operative and post-operative care of the Applicant, and her failure to properly explain the risks of the Surgical Process to the Applicant, as well as her improperly influencing, or pressurizing, the Applicant into signing the consent form.  These complaints may not, of course, be proved to the requisite standard after a full investigation, but it cannot be said that there was no evidence at all to substantiate a case of professional misconduct against Dr Tam.  In this regard, the PIC was not saying that the Applicant’s allegations against Dr Tam had no real prospect of being established, but that there was simply no evidence of professional misconduct on the part of Dr Tam.  This conclusion of the PIC indicates, in my view, that the PIC failed to consider, or take into account, relevant materials in reaching the Decision, or improperly excluded them from consideration.

39.  Second, the reasons for the Decision contained in the Council’s letter dated 18 May 2018 are plainly insufficient.  In §38 of his Affidavit, the Chairman said that the PIC had taken into account Dr Lo’s 1^st Report and the Applicant’s complaints.  However, the Decision failed to show how the PIC came to reject those materials and came to the conclusion that there was no evidence of professional misconduct against Dr Tam.  The Council’s letter dated 18 May 2018 did not even state that the PIC rejected the opinions of Dr Lo or the allegations raised by the Applicant.  In this regard, it should be noted that: (i) there was (and is) no question raised regarding Dr Lo’s expertise or competence, and (ii) the Applicant’s allegations against Dr Tam raised factual disputes when viewed against the representations made by Dr Tam.  Before one can properly determine whether Dr Tam was guilty of professional misconduct, the evidence of Dr Lo should be properly considered, and the factual issues raised the Applicant should be properly resolved.  The evidence of Dr Lo and the Applicant cannot be brushed aside simply on the basis that there was no evidence of professional misconduct against Dr Tam.  The Decision shows that the PIC failed to properly grasp the issues before it and deal with them in a proper manner.  I pause to add that had the PIC attempted to resolve the conflicting evidence between Dr Lo/Dr Man and the Applicant/Dr Tam, the issue would arise as to whether it was open to the PIC to do so.  As it was, the PIC did not even purport to resolve the conflicts of evidence.  This issue does not therefore arise.

40.  The Chairman has, at §39 of his Affidavit, given some further reasons in support of the Decision.  However, those reasons, in particular §39(iii), (iv), (v), appear to be additional reasons which were not reflected in the Minutes of the meeting of the PIC held on 10 April 2018. Anyhow, they fail to show how the conflicts of evidence between Dr Lo/Dr Man and the Applicant/Dr Tam could be properly resolved without the PIC travelling beyond its proper functions.

41.  Third, the Decision did not deal with the Applicant’s allegations that (i) Dr Tam failed to explain the potential risks of the Surgical Process to him, (ii) Dr Tam improperly pressurized him into giving consent to the Surgical Process, and (iii) Dr Tam failed to provide full or sufficiently full medical records and might even have falsified medical records.  As earlier mentioned, the Chairman was not satisfied that there were grounds for a charge of professional misconduct against Dr Tam in respect of the allegations relating to (i) the pre-treatment advice, and (ii) falsification of medical records.  There is, however, no evidence that the Chairman ever consulted the Deputy Chairman on his view, or that both decided that those allegations were frivolous or groundless and should not proceed further.  There is also no evidence that the Chairman only referred a part of the Applicant’s complaint to the PIC for consideration.  Accordingly, this application ought to be approached on the basis that the whole of the Applicant’s complaint was before the PIC.  That being the position, I consider that the PIC should deal with each distinct allegation raised by the Applicant (even if such allegation was considered to be obviously unsustainable), and show how it was disposed of in the Decision.

42.  These having been said, the Applicant’s allegation that Dr Tam failed to provide full or sufficiently full medical records and might even have falsified medical records does not appear to me to have any proper or sufficient basis, and has, in my view, no real prospect of being established.  Since the remedy of judicial review is discretionary, I would not be minded to remit this allegation back to the PIC for fresh consideration.

DISPOSITION

43.  I grant the Applicant leave to apply for judicial review of the Decision. For this purpose, I would, if necessary, grant an extension of time to the Applicant to make the application for leave to apply for judicial review.  I consider that there is good reason for extending the period for making the application (if required), having regard to the following factors: (i) the Applicant’s conduct of making the Second Complaint to the Council after the rejection of the First Complaint by the PIC seems to me, in the circumstances of this case, to be reasonable, (ii) the Chairman considered that there might be new information and materials provided by the Applicant in the Second Complaint which warranted further investigation (see §27 of the Chairman’s Affidavit), (iii) the absence of any real prejudice which may be suffered by the PIC as a result of the delay, and (iv) the merits of the application.  These factors are, I consider, sufficient to override any countervailing factors for refusing to grant an extension of time.

44.  I grant an order of certiorari to remove the Decision into the High Court and quash the Decision, and remit that Applicant’s First and Second Complaints, save the allegation that Dr Tam failed to provide full or sufficiently full medical records and might even have falsified medical records, to the PIC (whether differently constituted or not) for fresh consideration in light of this judgment.

45.  The Putative Respondent shall pay the Applicant’s costs of this application, to be taxed if not agreed.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.