DR. CHU KIN WAH v. THE MEDICAL COUNCIL OF HONG KONG

CACV 204/2024

[2026] HKCA 522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 204 OF 2024

(ON APPEAL FROM THE ORDER OF INQUIRY PANEL OF THE MEDICAL COUNCIL OF HONG KONG DATED 28 APRIL 2024)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  By judgment dated 12 January 2026, this court dismissed the Appellant’s appeal against the Medical Council’s decision convicting him of two disciplinary charges and ordering the removal of his name from the register of medical practitioners for a period of 3 months and 6 months respectively (to run concurrently).

2.  The Appellant now seeks leave to appeal to the Court of Final Appeal.  The questions said to be of great general or public importance are set out in the Notice of Motion as follows:

 Question 1: In a disciplinary inquiry conducted by an Inquiry Panel of the Council as to whether a doctor is guilty of professional misconduct in the treatment of a patient, what is the relevance, materiality and weight of the clinical records and actions of another doctor (“Other Doctor”) who was treating the Patient at around the same time as (or shortly before or after) the Patient was treated by the defendant doctor?

 Question 2: What is the scope and extent of the statutory duty of the Inquiry Panel to conduct a due inquiry under section 21(1) and (2) of the Medical Registration Ordinance (Cap. 161) (“MRO”), when faced with contemporaneous clinical records of the Other Doctor?  In particular:

(a)     Can the Inquiry Panel disregard or give no weight to such evidence on the basis that the Other Doctor has not been called to give evidence?

(b)     If the Inquiry Panel takes the view that it lacks information as to the Other Doctor’s rationale or reasoning because he has not given evidence before the Inquiry Panel, should the Inquiry Panel have summoned him to give evidence before the Inquiry Panel, or alternatively direct the Secretary to take a statement from him, in accordance with section 31 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap. 161E) or, having had the evidence placed before it in the Secretary’s documentary evidence admitted into evidence, whether it should have indicated to the Applicant that it can place no weight on the evidence unless the person involved is called?

(c)     Further, does the Inquiry Panel have a duty to consider on its own motion whether to exercise its power to summon a person to give evidence under section 22(1)(b) of the MRO when it took the view that it lacks information?  If so, what principles should govern the Inquiry Panel’s decision as to whether to exercise that power?

 Question 3: In what circumstances and to what extent would the oral opening submissions of the Secretary confine the scope of her case?  In particular, where the Secretary’s counsel (or the Legal Officer), in her opening submissions, relies upon the opinion of the Secretary’s expert as to the basis on which the defendant doctor is alleged to be guilty of professional misconduct, is it procedurally unfair or erroneous for the Inquiry Panel to then find the defendant doctor guilty of professional misconduct on a different basis?

 Question 4: What should be the approach of the appellate court on an appeal against sanction imposed by the Inquiry Panel under section 26 of the MRO?  In particular, is the correct approach (a) as held in Sastry v General Medical Council [2021] 1 WLR 5029, at paragraphs 102 and 110, that the appellate court should exercise its own judgment as to whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate; and (b) the approach of the Court of Appeal at paragraphs 59 and 124 of the CA Judgment, namely to defer to the Council’s determination of the appropriate sanction unless the sanction imposed is clearly wrong, inappropriate or unjustified?

3.  As to Question 1, the “relevance, materiality and weight” of the clinical records and actions of another treating doctor are matters that cannot be determined in general and in the abstract but depend on the facts and circumstances of the particular case.  As such, this is not a question of general importance that should be submitted to the Court of Final Appeal: see Re Li Xiaoming [2022] HKCA 142, §17.

4.  On Question 2(a) and (b), again, the “weight” to be given to specific evidence and what the inquiry panel should do if it does not have information as to the Other Doctor’s rationale or reasoning are not matters that admit of a general, “one size fits all” answer.  The correct response depends on the facts and circumstances.  “Due inquiry” is defined in s 21(2) of the Medical Registration Ordinance and takes its nature and content from the procedure prescribed by the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap 161E), as described in §82 of our judgment.  On Question 2(c), it seems to us whether an inquiry panel has a duty to consider on its own motion whether to summon a person to give evidence is, at most, a theoretical general question.  The Appellant submits that a statutory duty may be implied where it is clearly necessary to do so (citing Cheung Tak Wing v Communications Authority [2018] 5 HKLRD 515 at §116).  In the present case where both sides were fully represented with ample opportunity to consider their own position, we do not think it is reasonably arguable that a duty arose by necessary implication.

5.  Question 3 does not raise any meaningful general question.  Whether the oral opening submissions of the Secretary confine the scope of her case depends on the contents of the opening submissions and the disciplinary charges and the other circumstances of the particular case.  The governing principles of natural justice and fairness are well established.  Their application in this particular case does not give rise to any question of great general or public importance.  Further, it may be noted that Question 3 only concerns Charge A and will not in any event have any impact on Charge B which carries the longer sentence of removal.

6.  Question 4 is a new point.  There was no dispute before this court about the proper approach to an appeal against disciplinary sanctions.  Sastry v General Medical Council [2021] 1 WLR 5029 was not then cited.  The established approach based on previous decisions of this court is summarised in §59 of our judgment, including Wong Cheuk Yi v Medical Council of Hong Kong [2020] 1 HKLRD 289 which was relied upon by the Appellant before this court.  On that approach, Bokhary JA said in Dr Chow Siu Shek David v Medical Council of Hong Kong [1995] 2 HKC 527, 533D: “The balance is struck by our exercising that appellate jurisdiction in such a way as to uphold the Medical Council’s primary responsibility while at the same time carrying out our own ultimate responsibility.” 

7.  Having regard to the usual practice with regard to new points (see e.g. Chinachem Charitable Foundation Ltd v Chan Wai Tong Christopher [2023] HKCA 461 at §9), the Appellant has in his reply submissions accepted that Question 4 should be left to the Appeal Committee of the Court of Final Appeal.

8.  The Appellant also seeks leave to appeal on the “or otherwise” limb of s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  Following usual practice, we do not deal with this ground, which is a matter for the Appeal Committee if the application is renewed before them.

9.  For the above reasons, the application for leave to appeal is dismissed.

10.  The Appellant has to pay the Council’s costs, which we summarily assess in the sum claimed of $63,205.