DR U v. THE PRELIMINARY INVESTIGATION COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

HCAL 195/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 195 OF 2015

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J U D G M E N T

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Introduction

1.  This is an application by Dr U, the applicant, for judicial review of the decision of the Preliminary Investigation Committee (the PIC) of the Medical Council of Hong Kong (the Medical Council) to refer a case concerning him to the Medical Council for inquiry, which was conveyed to him in a letter dated 17 July 2015 from the Secretary of the Medical Council (the Secretary) to his solicitors.  Leave was granted to make the application by this Court on 9 December 2015.[1]

2.  It is alleged that the decision to refer his case to the Medical Council for inquiry relates to the same complaint that was made against him, which had been previously considered by the then Chairman and Deputy Chairman of the PIC, who upon a consideration of the material submitted dismissed the complaint by letter dated 8 February 2012 from the Secretary to the complainant (the initial decision).  Subsequently, the Chairman (who by then had been replaced) and the Deputy Chairman were asked to reconsider the complaint by the complainant’s solicitors which they did, resulting in them deciding to proceed with the complaint and referring it to the PIC for consideration (the subsequent decision), which in turn decided to refer it to the Medical Council for inquiry. 

3.  At issue in this application for judicial review is the jurisdiction of the PIC to consider or reconsider a complaint and refer it to the Medical Council for inquiry, after the Chairman and Deputy Chairman of the PIC had already dismissed the complaint pursuant to section 6 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap 161E, (the Regulation) on the grounds that the complaint was “frivolous, or groundless, and should not proceed further”. 

4.  It is argued by the applicant that the complaint having been dismissed should not have proceeded any further, unless or until the initial decision was set aside or quashed as being an error of law and therefore the course adopted resulted in a decision which was ultra vires.  In support of this argument the applicant relies on the statutory power to dismiss a complaint by the PIC, and the principles of res judicata and cause of action estoppel which prevent a party from re-litigating a matter that has already been decided.  It is also argued by the applicant that the PIC’s consideration of the complaint without the disclosure of relevant materials was further procedurally unfair. 

5.  Since leave was granted to the applicant to apply for judicial review, the respondents have through the affidavit of Dr Choi Kin (Dr Choi) dated 29 January 2016[2] acknowledged that the PIC made a decision on jurisdiction and that it ultimately decided that it was empowered to look into a case upon reconsideration of the initial decision, in light of a revised complaint with new information provided from the complainant.  This narrowed down the issue before me to the question as to whether the PIC, having held as a matter of jurisdiction, could reconsider and reopen the earlier dismissal because of a revised complaint and new information. 

6.  Consideration of the present application will necessarily involve an examination of the nature of the power of the PIC to dismiss a complaint and its jurisdiction to reopen a complaint which had been previously dismissed. 

7.  The respondents contest the application while the interested party, being the complainant to the Medical Council against the applicant, has declined to participate in the proceedings, noting that he still maintains his complaint against the applicant. 

Grounds for review

8.  The applicant originally sought to judicially review the subsequent decision on four grounds which are as follows. 

9.  Ground 1 alleges that the subsequent decision was ultra vires.  It is argued that the PIC is a creature of statute and had no jurisdiction to reconsider the complaint because it was statutorily barred from doing so following the dismissal of the complaint pursuant to section 6(3) of the Regulation.  It is further argued that there is no statutory provision for a reconsideration or review of the complaint by the Chairman and/or Deputy Chairman following a dismissal of it.

10.  Ground 2 alleges that the nondisclosure of materials in relation to the decision was procedurally unfair.  It is argued that even if the Chairman and/or the Deputy Chairman had power of reconsideration or review following the initial dismissal, and lawfully referred the complaint to the PIC for consideration, the applicant should have been provided with all the relevant materials and correspondence between the complainant and the Medical Council in relation to the review.  It is further argued that the failure to provide the relevant materials denied the applicant a fair opportunity to make representations to the PIC on the question of jurisdiction.

11.  Ground 3 is in the alternative and alleges that the PIC failed to consider relevant considerations in relation to the question of jurisdiction.  It is argued that if the PIC did not make an implied decision on jurisdiction and did not rely on the non-disclosed materials to make its decision, its failure to consider the jurisdiction issue resulted in a decision which was made without relevant considerations being taken into account.

12.  Ground 4 is in the alternative and alleges that the decision is unreasonable and irrational.  It is argued that the decision in the absence of considering whether the PIC had jurisdiction to hear the complaint was also Wednesbury unreasonable and irrational. 

Change of position

13.  However, the focus of the argument in the substantive hearing before me changed as a result of the additional evidence filed by the respondents in the form of the affidavit from Dr Choi, who stated that the PIC made a decision on jurisdiction when the subsequent decision was made, and that it ultimately decided that:

“48. Since the PIC submissions (with its jurisdictional challenge) did come before the PIC, the PIC did consider both issues of (i) whether the case should be referred to an inquiry and (ii) whether the PIC should accede to the Applicant’s jurisdictional challenge. The PIC, after discussion, considered that PIC was empowered to look into this case upon re-consideration of the Initial Decision in light of the Revised Complaint with new information provided from the Complainant. This means that the PIC has held as a matter of jurisdiction, it can reopen the earlier dismissal because of new information.”

14.  The reference to a “revised complaint with new information” relates to the complainant, through his solicitors, requesting the Medical Council to reconsider its decision by making a further allegation against the applicant with the provision of further information. 

15.  In the circumstances, as conceded by the applicant, there is no longer a question of the PIC refusing to determine jurisdiction, and this renders Grounds 3 and 4 otiose.  It is unfortunate that the full facts and circumstances were not disclosed prior or at the leave hearing as the issue between the parties would have been more appropriately focused in these proceedings.  This will be relevant on the question of costs.

The applicant’s submissions

16.  In light of the position taken by the respondents, the applicant’s submissions were summarised in his skeleton submissions as follows:

“4.1 The context and plain meaning of Section 6(3) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap. 161E) is to give legal force to the dismissal of groundless and frivolous complaints.

4.2 It is a specific power to dismiss to prevent the resurrection of such complaint and to preclude groundless complaints from, again and again, harassing professionals from doing their important public duties.

4.3 As made clear by Section 9(1), any PIC hearing and decisions subsequent to the exercise of the power to dismiss, are therefore a nullity and the PIC acted ultra vires. The dismissal breaks the chain of jurisdiction with the PIC.

4.4 There is no express or implied power of self-review of the decision of the chairman and deputy chairman under Section 6, in contrast to Section 15, which grants the PIC (at the next stage) a power of self-review upon the direction of the Council Chairman.

4.5 The dismissal is therefore an exercise of statutory power in relation to the defendant medical practitioner, who is entitled to rely on that decision.

4.6 The very belated revelation that the PIC decided that the “PIC was empowered to look into this case upon re-consideration of the Initial Decision” in light of the Revised Complaint was an error of law.

4.7 In the circumstances, there was a duty to give reasons, and the PIC did not.”

17.  It was submitted on behalf of the applicant that the substantive application was primarily a question of statutory interpretation and whether section 6(3) therefore had an effect of estoppel. It was stressed that it was not the applicant’s case that the rules of issue estoppel should be wholly imported into the realm of public and administrative law and that the context in which public and administrative law decisions arise are manifestly unsuited to the adoption of rules which arise in the context of civil disputes between private litigants.  This is an important acknowledgement and one that I will come back to in the discussion to follow.  Nevertheless, the applicant submits that section 6(3), on a proper construction, should effectively give rise to an estoppel when a complaint has been dismissed, and this is consistent with public and administrative law principles on source of power and irrevocable decisions.

18.  The applicant’s argument comes down to this. The dismissal of a complaint pursuant to section 6 brought finality to the case and to further proceed with such a case by section 9 (referral of the case to the PIC if it has not been dismissed under section 6) made the proceedings a nullity and its decisions ultra vires.  It is submitted that the very purpose of dismissing a complaint because it is groundless and frivolous is “to prevent the reconsideration of a case by merely resubmitting it and appealing for a ‘fresh review’ of the application by a fresh pair of eyes.”  It is also submitted that in the public and administrative law context, allowing such a review would be contrary to legal certainty and unfair to the subject affected by the decision, namely the registered medical practitioner, not the complainant. 

19.  The applicant mounted his application mainly on Ground 1 but also raised that there was procedural unfairness of the PIC decision in having informed the applicant that it had no jurisdiction to consider jurisdiction, it proceeded to make a decision on jurisdiction without disclosing the relevant materials to the applicant.  

The respondents’ submissions

20.  The respondents submit that the application for judicial review should be dismissed. 

21.  They argue that as a matter of proper interpretation of the Regulation, the case against the applicant could be considered again by the Chairman (or the Deputy Chairman) and referred by them to the PIC, irrespective of whether it had been dismissed before, at least when there is new or additional evidence or information, or where the original decision is vitiated by mistake of law.  They also argue that the initial decision did not give rise to res judicata or cause of action estoppel. 

22.  The respondents point out that the applicant when seeking leave relied on Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 (HL) and R (Coke-Wallis) v Institute of Chartered Accountants [2011] 2 AC 146 and argued that the initial decision gave rise to res judicata or cause of action estoppel.  Even though contended otherwise by the applicant, Coke-Wallis has been considered and applied in a public law context in Hong Kong in the case of A Solicitor (60/12) v Law Society of Hong Kong [2013] 4 HKC 198.  The respondents argue that the applicant’s case cannot support an application of the principles of res judicata to the facts and circumstances of the present case and therefore, the constituent elements of cause of action estoppel cannot be satisfied.

23.  The respondents also submit that if Ground 1 fails, namely, that if it is held that as a matter of law the PIC has jurisdiction to consider the case against the applicant referred to it by the Chairman under section 9 of the Regulation, that being a lawful decision open to the PIC to make, then any failure to provide all relevant materials, which they deny, would not have resulted in any prejudice. It is contended that any relief for this ground, if established, can only be a remission back to the PIC on the basis that it does have jurisdiction when it has already come to that conclusion, and this would therefore render such relief futile and academic.  See Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653 at §§75-76 per Cheung JA.

The statutory scheme

24.  In order to have an understanding of the nature and ambit of the jurisdiction of the PIC, it is necessary to examine the statutory scheme within which it operates. 

25.  The governing body under the scheme is the Medical Council which is established by section 3 of the Medical Registration Ordinance, Cap 161 (the Ordinance).  The Medical Council has a Secretary and a Legal Adviser who are appointed by the Chief Executive pursuant to section 3B of the Ordinance.  The Medical Council possesses disciplinary powers “after due inquiry into a case referred to it” by the PIC pursuant to section 21 of the Ordinance.

26.  The PIC is established pursuant to section 20BA(2)(d) of the Ordinance and its composition is provided for by section 20S.  It consists of a Chairman and Deputy Chairman, who are elected by the Medical Council from among its members.  The functions of the PIC are set out in section 20T of the Ordinance which reads:

“(1) The Preliminary Investigation Committee has the following functions-

(a) to make preliminary investigations into complaints or information touching any matter that may be inquired into by the Council or heard by the Health Committee and to give advice on the matter to any registered medical practitioner;

(b) to make recommendations to the Council for the holding of an inquiry under section 21;

(c) to make recommendations to the Health Committee for conducting a hearing;

(d) to make preliminary investigations upon a referral by the Education and Accreditation Committee.

(2) A matter brought to the attention of the Preliminary Investigation Committee for determining whether the Health Committee should be recommended to conduct a hearing or whether the Council should be recommended to hold an inquiry shall first be considered by the chairman of the Preliminary Investigation Committee or, in his absence, the deputy chairman thereof.

(3) The Preliminary Investigation Committee, its chairman and deputy chairman shall act in accordance with such regulations in relation to their procedure made under section 33.”

27.  As seen from subsection (3) above, the powers of the PIC are regulated pursuant to section 33 of the Ordinance, in the form of the Regulation.

28.  The procedure to invoke the jurisdiction of the PIC to decide whether to hold an inquiry by the Medical Council is set out under Part III of the Regulation.  A complaint or information or matter (hereafter referred to as “a complaint”) is first submitted and referred to the PIC pursuant to section 6 of the Regulation which reads:

“(1) Where-

(a) a complaint is made to or information is received by the Secretary that a registered medical practitioner-

(i) has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment;

(ii) has been guilty of misconduct in any professional respect;

(iii) has obtained registration by fraud or misrepresentation;

(iv) was not at the time of his registration entitled to be registered;

(v) has breached a condition previously imposed under an order of the Council made under section 21(1) or 21A of the Ordinance;

(vi) has procured his name to be included in the Specialist Register by fraud or misrepresentation;

(vii) is physically or mentally unfit to practise medicine, surgery or midwifery; or

(b) a complaint is made to or information is received by the Secretary that an applicant for registration-

(i) has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment;

(ii) has been guilty of misconduct in a professional respect; or

(iii) is not a person of good character; or

(c) a committee of the Council refers a matter concerning a registered medical practitioner to the Committee for its consideration or investigation,

the Secretary shall submit the complaint, information or matter to the chairman of the Committee or, in his absence, the deputy chairman of the Committee for his consideration of the case.

(2) If the person to whom a case is submitted under subsection (1) considers that the case-

(a) is frivolous or groundless and should not proceed further; or

(b) raises a question as to whether the fitness to practise of a registered medical practitioner is impaired by reason of his physical or mental condition and the question should be considered by the Health Committee direct,

he shall-

(i) consult the deputy chairman, if the person is the chairman; or

(ii) consult the chairman, if the person is the deputy chairman,

with a view to decide whether the proposed course of action should be taken.

(3) If both the chairman and the deputy chairman consider that the case is frivolous, or groundless, and should not proceed further, they may dismiss the case.

(4) Upon a consultation under subsection (2) and if both the chairman and the deputy chairman consider that the case raises the question referred to in subsection (2)(b), they may refer the case to the Health Committee and recommend the Health Committee to conduct a hearing.

(5) If, after a hearing, the Health Committee certifies and reports back that the registered medical practitioner is physically and mentally fit to practise medicine, surgery or midwifery, the chairman or, in his absence, the deputy chairman may direct that the case be investigated further or be dismissed, as he thinks fit.”

29.  Provision is made for the Chairman to seek clarification of and support for a complaint under section 8 of the Regulation which reads:

“(1) Where, in a case submitted under section 6 to the chairman or, in his absence, the deputy chairman of the Committee pursuant to a complaint or information received by the Secretary, any allegation is made which in the opinion of the chairman or the deputy chairman gives rise to a question as to whether a defendant has been guilty of misconduct in any professional respect, the chairman or the deputy chairman may do any or all of the following-

(a) require the complainant to set out the specific allegations in writing and the grounds thereof;

(b) require the complainant to make clarifications about the complaint or information;

(c) require that any matter alleged in the complaint or information to be supported by one or more statutory declarations, unless the complaint or information is in writing under the hand of-

(i) a public officer;

(ii) the President of the Hong Kong Medical Association;

(iii) the Dean of the Faculty of Medicine of a university specified in Schedule 1 of the Ordinance; or

(iv) either or both of the Presidents of the Academy of Medicine and any of its Colleges.

(2) Where, in a case submitted under section 6 to the chairman or, in his absence, the deputy chairman of the Committee pursuant to a complaint or information received by the Secretary, any allegation is made which in the opinion of the chairman or the deputy chairman gives rise to a question as to whether the fitness to practise of a defendant is impaired by reason of his physical or mental condition, the chairman or the deputy chairman may require that the complaint or information be supported by one or more statutory declarations as to the facts of the case, unless the complaint or information is in writing under the hand of a person specified in subsection (1)(c).

(3) If a requirement under subsection (1) or (2) is not complied with, the chairman or the deputy chairman of the Committee may decline to proceed with the investigation of the case.

(4) A statutory declaration referred to in subsection (1) or (2) must-

(a) state the address and description of the declarant; and

(b) state all the facts of the case to the declarant’s knowledge or, if any fact declared is not within his personal knowledge, state the source of the declarant’s information and the grounds for his belief in the truth of the facts.”

30.  Pursuant to section 9 of the Regulation, the complaint must be referred to the PIC for consideration if the Chairman and the Deputy Chairman in consultation with each other, have not dismissed the case. Section 9 reads:

“(1) Except where section 10 applies, if a case received by the chairman or the deputy chairman of the Committee under section 6 has not been dismissed or referred to the Health Committee under that section, the chairman or the deputy chairman of the Committee shall, except where section 16(1) applies, direct that the case be referred to the Committee for its consideration and shall direct the Secretary to fix a date upon which it is proposed that the Committee is to meet to consider the case.

(2) Where the Secretary is directed under subsection (1) to fix a date, the Secretary shall-

(a) fix a date for the proposed meeting;

(b) notify the defendant of the receipt of the complaint, information or referral, and indicate any matters or allegations which may appear to raise a question whether the defendant has been guilty of misconduct in a professional respect;

(c) provide him a copy of any letter of complaint or information;

(d) forward to him a copy of any statutory declaration furnished under section 8;

(e) inform him of the date upon which the Committee is due to meet for the purpose of considering the case; and

(f) invite him to submit to the Committee in writing any explanation of his conduct or of any matter alleged in the complaint, information or referral which he may have to offer.”

31.  Section 11 of the Regulation sets out the manner in which the PIC can consider the complaint.  It provides:  

“(1) The Committee shall meet in private.

(2) At the meeting at which a case is considered by the Committee, the Secretary shall put before the Committee the complaint or information received (if any), any statutory declaration received with it, any written explanation submitted by the defendant, any documents, medical or other reports produced by the defendant, and any other document or matter in the nature of evidence relevant to or in support of the complaint, information or matter and which is available.

(3) The Secretary shall not present to the Committee any material which has been excluded from disclosure to the defendant under section 10.

(4) The Committee may postpone its consideration or determination of a case, in whole or in part, to such date or adjourn a meeting from time to time as it thinks fit.

(5) Where the complaint, information or referral alleges the conviction of a registered medical practitioner of an offence which does not in its opinion affect his practice as a registered medical practitioner, the Committee may refer the case to the Council with the recommendation that no inquiry is to be held.

(6) Where the Committee considers that the matter indicated to the defendant under section 9(2)(b) should be amended, the Committee may direct the Secretary to make the amendment and advise the defendant of the amendment and invite him to give any further explanation which he may offer.

(7) Before coming to a decision under subsection (8), the Committee may cause to be made such further investigations or further clarification from the defendant with regard to the case being considered by the Committee and with regard to his written explanation, and may obtain such additional advice or assistance as it considers necessary.

(8) The Committee shall, having regard to any written explanation submitted by the defendant and all the materials put before it by the Secretary under subsection (2), consider the case, and, subject to subsections (5) and (7), may-

(a) decide that no inquiry shall be held;

(b) decide that no inquiry shall be held and issue a letter of advice to the defendant in such terms as it thinks fit;

(c) refer the case, in whole or in part, to the Council for inquiry;

(d) refer the case, in whole or in part, to the Health Committee for a hearing.

(9) If, after a hearing, the Health Committee certifies and reports back that the defendant is physically and mentally fit to practise medicine, surgery or midwifery, the Committee may proceed with the investigation of the case, take any other appropriate action under subsection (8), or dismiss the matter, as it thinks fit.”

32.  Upon a decision by the PIC to refer a case to the Medical Council for inquiry, a written notification of the decision containing the matters to be inquired into is submitted to the Chairman of the Medical Council.  This document forms the basis of a notice to the defendant and is referred to as the PIC notice.  This is provided under section 13 of the Regulation which reads:

“(1) If the Committee decides to refer a case to the Council for inquiry, the chairman of the Committee shall send a written notification of the decision of the Committee to the Chairman specifying the matters as identified by the Committee to be so referred and which form the basis of the charge or charges into which an inquiry is to be held.

(2) On receipt of a notification under subsection (1) or on a remission of a case to the Council by the Court of Appeal under section 26(1) of the Ordinance, the Chairman shall direct the Secretary to fix a date upon which it is proposed that the inquiry is to be held.

(3) If the Council decides to conduct an inquiry pursuant to a recommendation of the Health Committee under section 20V(1) of the Ordinance or a recommendation of the Education and Accreditation Committee under section 20N(1)(d) of the Ordinance, the Chairman shall direct the Secretary to fix a date upon which it is proposed that the inquiry is to be held.

(4) Except with the written consent of the defendant to a shorter period of notice, the Secretary shall, within 2 months of the receipt of a notification under subsection (1) and at least 28 days before the date fixed for the inquiry, serve on the defendant a notice of inquiry together with a copy of this Regulation and shall inform the complainant of the holding of the inquiry.

(5) A notice of inquiry must-

(a) specify in the form of a charge or charges the matters into which inquiry is to be held; and

(b) state the date, time and place at which the inquiry is to be held.”

33.  The relevant provisions governing the proceedings of an inquiry of the Medical Council are contained in Part IV of the Regulation which lay down an extensive set of procedures and requirements in the conduct of a disciplinary hearing. 

34.  By section 25, the Medical Council is required to adhere to a set of strict procedures and formal requirements in the conduct of an inquiry and has the discretion to open the inquiry to the public or to hold it in private. 

35.  A party to an inquiry may be legally represented and a legal officer may be appointed to carry out the duties of the Secretary in respect of an inquiry.  The inquiry is required to be open by reading the notice of the inquiry to the Medical Council and the charge against the defendant.  The Secretary presents the case against the defendant and adduces the evidence in support of it.  There is the option for the Medical Council to permit the complainant to present the case against the defendant if it thinks it appropriate in the circumstances of the case.  

36.  At the close of the case, the defendant can make a no case submission and if it is upheld by the Medical Council in respect of any charge it will be recorded that the defendant is not guilty of that charge.  If the no case submission is rejected by the Medical Council, the defendant is required to state his case and at the conclusion of the case for the defendant, the parties may make closing submissions to the Medical Council. 

37.  The Medical Council is required to consider and determine whether the facts alleged in any charge before it had been proved to its satisfaction and whether the defendant is guilty of the offence charged.  The Chairman is then required to announce the Medical Council’s decision and in such term as the Medical Council may approve.  If the decision is a finding of guilt of the offence charged, the Medical Council is required to sentence the defendant who will be invited to address the Medical Council by way of mitigation and may adduce evidence as to the charge or personal background.  The Medical Council may in its discretion impose by order various sanctions, including an order to strike off the practitioner from the General Register as well as an order as to costs. 

38.  The statutory scheme can be summarised, as I stated in Law Yiu Wai, Ray v The Medical Council of Hong Kong and others, HCAL 46/2015, 12 October 2015, unreported, as follows:

“44. Briefly stated the statutory scheme for the consideration and determination of complaints is a three tier system.  The first is an initial check by the Chairman or the Deputy Chairman as to whether there is any substance to a complaint.  It is supposed to be a prompt appraisal of a complaint, including any materials supplied, to remove an obvious case that is frivolous or groundless, and should not proceed further.  The case can only be dismissed after consultation between the Chairman and the Deputy Chairman.  If a complaint is not dismissed after the first check, a second more rigorous check by the PIC is conducted as to whether or not to refer the case for inquiry and determination by the Council for inquiry.  This involves a more detailed consideration of the complaint and where the medical practitioner can submit information in response.  In deciding that no inquiry is to be held, the PIC has the option to issue a letter of advice to the medical practitioner.  It is on the basis that the case should be inquired into that a referral is made to the Council for inquiry by way of a formal charge.  Finally, if the PIC makes such a referral, the Council for inquiry then determines by way of formal hearing whether the complaint of “misconduct in a professional respect” is established.”

39.  That deals briefly with the relevant statutory provisions.  It is now necessary to turn to the background facts of the present application.

Background facts

40.  The applicant, Dr U, is a specialist in urology with over 25 years in practice.  He is registered in Hong Kong both as a medical practitioner and specialist in urology.[3]

41.  On 28 November 2007, the complainant was operated upon by the applicant for a Transurethral Resection of the Prostrate. After the operation the complainant suffered complications including urinary incontinence which necessitated further treatment. 

42.  On 17 December 2010,[4] the complainant through his solicitors, Messrs Deacons (Deacons), lodged a complaint against the applicant to the Medical Council.  It was in the form of a statutory declaration by the complainant in which he set out his complaint against the applicant together with numerous attachments, including various medical records and reports.  The essence of the complaint was that (i) the applicant failed to properly explain to the complainant relevant information concerning the operation, including its risks and potential complications; (ii) the applicant failed to obtain proper informed consent of the complainant for the operation; and (iii) the applicant incompetently conducted the operation resulting in serious, permanent and irreversible injury and in particular severe urinary incontinence. 

43.  On 17 February 2011,[5] Deacons advised the solicitors for the applicant, Messrs Mayer Brown JSM (Mayer Brown JSM), that the complainant would take civil action against the applicant for negligence and that he had lodged a complaint against the applicant with the Medical Council.  A copy of the complainant’s complaint was attached to the letter.  The complainant thereafter initiated a civil suit against the applicant for negligence. 

44.  On 1 March 2011,[6] pursuant to the direction from Professor Joseph Lau (Professor Lau), the then Chairman of the PIC, the Secretary by way of letter instructed Dr Man Chi Wai (Dr Man) to give his expert comments on the complaint. 

45.  On 22 March 2011,[7] the Secretary requested the complainant to provide his medical records from the hospital. 

46.  On 1 April 2011,[8] Deacons returned the signed consent form of the complainant allowing the Secretary to retrieve the complainant’s medical records from the hospital. 

47.  On 12 April 2011,[9] the Secretary by letter sent the consent form to the hospital for obtaining the complainant’s medical records, which were submitted by return mail on 5 May 2011.

48.  On 13 May 2011,[10] the Secretary passed the medical records to Dr Man for consideration.  

49.  On 20 June 2011, the Secretary received an expert report from Dr Man dated 4 June 2011.

50.  Under cover of letter dated 23 August 2011,[11] the Secretary received further materials from Deacons seeking to update the PIC of the legal proceedings commenced by the complainant against the applicant and providing supplemental materials, in the form of court papers from the civil suit. 

51.  On 5 September 2011,[12] the Secretary wrote to Deacons informing them that PIC was currently considering the case. 

52.  On 20 September 2011,[13] the Secretary, upon Professor Lau’s direction, under cover of letter sent the new information received from Deacons to Dr Man for further advice.

53.  On 3 October 2011,[14] the Secretary received Dr Man’s reply dated 28 September 2011 that he would not change or add anything further to the opinion he had already submitted.

54.  On 11 October 2011, Professor Lau, in his capacity as the former PIC Chairman (he had by then become Chairman of the Medical Council), decided that the matter should not proceed further to the PIC.  Professor Lau further directed the Secretary to pass this case to the then Deputy Chairman of the PIC, Professor TF Fok (Professor Fok), for his consideration in accordance with section 6 of the Regulation.

55.  On 8 November 2011, Professor Fok concurred with Professor Lau’s view that the matter should not proceed further to the PIC.

56.  On 25 November 2011, the file was passed to the lay member of the PIC, Mrs Joyce Tai, for her views.  On 1 January 2012, Mrs Tai indicated that she concurred with the views of Professor Lau and Professor Fok. 

57.  On 8 February 2012,[15] the Secretary wrote to the complainant to inform him of the decision of Professor Lau and Professor Fok (the initial decision) that the complaint could not be pursued further by the Medical Council under the Regulation. 

58.  More particularly, the letter refers to the complainant’s complaint dated 17 December 2010 and states that in accordance with section 6 of the Regulation, the complaint had been submitted to the Chairman and the Deputy Chairman of the PIC for consideration and “having regard to all the information you provided, independent expert’s opinion and the lay member’s view thereon, the Chairman and the Deputy Chairman” (a) considered that there was no evidence to support any act of professional misconduct on the part of the applicant; (b) accepted Dr Man’s opinion that photoselective vaporization of the prostate would be a safe technique to use in the operation; (c) considered that there was no evidence to support that the operation had been performed in a sub-standard manner; and (d) that incontinence occurring after prostatectomy in the complainant was due to detrusor overactivity and sphincter weakness (the former was not caused by the operation while the latter could be due to aging). 

59.  The letter went on to say that there was no evidence to show any professional misconduct on the part of the applicant and that it followed that the complaint could not be pursued further by the Medical Council under the Regulation and that its action on the complaint had been concluded.  The concluding remarks read:

“...It follows that the complaint cannot be pursued further by the Medical Council under the said Regulation.

I am directed to inform you that the Medical Council’s action on the complaint has been concluded.  However, this decision does not preclude you from pursuing other remedies you may wish to take.”

60.  On 7 March 2012, Dr Choi took up the office of the Chairman of the PIC in place of Professor Lau.

61.  On 9 March 2012, the civil suit was settled upon the applicant admitting liability for negligence, but not causation.[16] 

62.  On 3 April 2012,[17] Deacons wrote to the PIC requesting that the case be reconsidered and submitting additional materials.  Deacons stated that the complainant added a new complaint together with the complaint, namely that the applicant wrongly diagnosed the complainant’s condition and negligently advised him of the need for the operation (the revised complaint).  Deacons also provided new information and materials, namely, the applicant’s acceptance of liability of negligence contained in his affidavit dated 30 January 2012 and a further expert report of Mr David J Ralph dated 12 March 2012. 

63.  On 17 April 2012, the Secretary placed the case before Dr Choi for direction. 

64.  Dr Choi in his affidavit stated that he proceeded to study and consider all the information and materials of the case. He noted that the complainant’s expert, Mr Ralph differed strongly in his observations from Dr Man and because of the conflict of evidence, he did not think that the complaint should be filtered out by him as the Chairman of the PIC at the first stage screening.  He said this was particularly the case given the wider scope of the complaint as supported by the new materials supplied by the complainant.

65.  Dr Choi said that although he was not a specialist in urology, his specialty in Nephrology assisted him in identifying and devising three specific questions which he considered necessary for Dr Man’s clarification. 

66.  On 4 July 2012,[18] the Secretary issued a letter to Dr Man seeking his clarification on these specific issues. 

67.  On 6 July 2012, Dr Man telephoned the Secretary advising that he could provide further observations on questions (2) and (3) but he had difficulties in answering question (1).

68.  According to Dr Choi, Dr Man did not come back with a further supplemental report to answer the three questions despite the lapse of substantial time.  He said he was aware of the need to reconsider the matter without undue delay, given the conflicting evidence and opinion that had been made available, and the fact that the complaint was now pursued by the complainant with new information and materials warranting further investigation. 

69.  Dr Choi said that on 24 August 2012, having considered all the available materials and circumstances, he directed the Secretary to pass the case to the PIC for consideration under section 9 of the Regulation.

70.  Dr Choi explained that unless the issues involved in a complaint were pretty clear and straightforward, it was the practice of the PIC to obtain a more “articulated expert report” before settling the PIC notice.  Such practice was employed to ensure that the defendant understood the allegations he needed to address in preparing his submissions to the PIC.  He said therefore no PIC notice was issued before Dr Man came back with his supplemental expert report as requested of him. 

71.  After some time, Dr Man still had not come back with the requested clarification.  As a result, the Secretary on 12 April 2013[19] sent a letter to Dr Man chasing him up for it. 

72.  There was no response from Dr Man and on 14 May 2013, the Secretary telephoned Dr Man, who said that he had nothing further to add to his expert report dated 4 June 2011.

73.  The Secretary then proceeded to prepare the PIC notice and sought legal advice from the Legal Officer which was provided on 9 August 2013.

74.  Dr Choi said that in accordance with legal advice, it was considered necessary to inquire with the complainant about the progress and result, if any, of the civil action; and it was also considered not fair for the complainant to provide the PIC with an expert report without giving the applicant the same opportunity.  By letter dated 28 April 2014,[20] the Secretary inquired of Deacons about (i) the details of the civil action and (ii) provision of all expert reports of both sides. 

75.  On 19 May 2014,[21] Deacons replied and provided further information about the civil action, but without the requested expert reports.

76.  On 22 May 2014,[22] the Secretary, at the direction of Dr Choi, wrote to Deacons requesting that they provide all expert reports of both sides.  Under cover of letter dated 13 June 2014, Deacons provided the expert reports as requested. 

77.  On 2 July 2014, the Secretary sent the draft PIC notice to the Legal Officer for legal advice which he provided on 30 July 2014.

78.  On 7 August 2014,[23] the Secretary sent the PIC notice to the applicant.  It was by this notice that the applicant was formally notified that a complaint had been made against him.  The Secretary set out the complaint and informed the applicant that information had been referred to the Chairman, who directed that a meeting of the committee be held.  The applicant was invited to give a written explanation if he wished. However, as already noted, the existence of the complaint had already been disclosed by the complainant’s solicitors to the applicant’s solicitors in the course of the civil litigation in February 2011.  Attached to the letter were copy letters from Deacons to the Medical Council dated 17 December 2010, 23 August 2011, 3 April 2012, and 13 June 2014 respectively, together with medical records received on 5 May 2011 from the hospital and an expert report dated 4 June 2011.

79.  The copy letter dated 3 April 2012 referred to a letter from the Medical Council dated 8 February 2012 and it was submitted that there must have been some mistake about its decision dismissing the complaint and urged that the case be reconsidered, while also stating that judicial review and advice to the media were avenues available to the complainant.  This suggestion of going to the media was totally inappropriate. 

80.  It was primarily from the Secretary’s letter of 7 August 2014 that the applicant gleaned there had been a dismissal of the complaint by letter dated 8 February 2012.  It had not been included with the other copy documents. 

81.  A copy of the letter of 8 February 2012 was requested by Mayer Brown JSM from the Medical Council and after an exchange of correspondence, it was eventually supplied to the applicant.  It is necessary to briefly set out the exchange of correspondence. 

82.  On 19 August 2014,[24] Mayer Brown JSM wrote to the Secretary seeking provision of (i) Deacons’ letter to the Medical Council dated 1 April 2011, (ii) the Medical Council’s letter to Deacons dated 8 February 2012 (iii) PIC’s letter to Deacons dated 28 April 2014, and (iv) all exchanges between Deacons and the Medical Council. 

83.  At the time, Dr Choi took the view that the requested items from (i) to (iii) had little, if any, bearing on the investigation of the complaint or the revised complaint by the PIC.  He explained in his affidavit that these documents, except the February letter, would not be placed before the PIC during its meetings for consideration of the case. 

84.  On 1 September 2014, Mayer Brown JSM repeated its request seeking provision of the documents. 

85.  On the same day, Dr Choi directed the Secretary to reply to Mayer Brown JSM that the requested correspondences would not be provided as they were irrelevant. 

86.  On 2 September 2014,[25] Mayer Brown JSM repeated its request for the correspondence on the basis they were necessary for considering whether they would object to the PIC reconsidering the case. 

87.  Dr Choi explained in his affidavit that he was of the view that the correspondence was not relevant and would not be put before the PIC.  However, because of the explanation subsequently given by Mayer Brown JSM in its letter of 2 September 2014, it was considered that the February letter would be relevant and would be provided.

88.  Mayer Brown JSM also indicated in the letter that they might make an objection as to jurisdiction in the PIC reconsidering the case depending on the content of the February letter. 

89.  Dr Choi explained in his affidavit that, pursuant to section 24 of the Regulation, after reading the notice of inquiry the defendant may object to any charge on a point of law.  He therefore formed the view that if the PIC were to refer the case to the Medical Council, the applicant could raise his jurisdictional objection at the inquiry, or conversely, if the PIC decided not to refer the case, then it would simply not proceed any further and there would be no need to address the jurisdictional issue.

90.  On 5 September 2014,[26] the Secretary at Dr Choi’s direction, replied to Mayer Brown JSM supplying a copy of the February letter and stating that the jurisdictional objection would not be entertained at that stage.  The material body of the letter read:

“...

The statutory Preliminary Investigation Committee (“PIC”) regime is specifically prescribed by the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (“the Regulation”), Cap 161E, Laws of Hong Kong, on its conduct and operation, which has been explained in the English case law as a filtering process. Procedural fairness must apply, but insofar as it relates to your client, it must also be considered in the context of this statutory PIC regime as prescribed by the Regulation. As you have acknowledged, the consideration of the PIC was conducted in the PIC meeting(s) based on materials placed before them and those materials had been fully provided to your client for him to make his representations. Your client must therefore provide good justification why he can have access to materials which are apparently outside the ambit prescribed by the Regulation.

On this, your client now communicates his concern that he may take issue on whether it was open to the Medical Council to “reconsider this case” and he wishes to have those further materials to allow him to make submissions on the point to the PIC. Then, if this is an intended jurisdictional challenge, it must be outside the ambit of the PIC filtering process, because by the very nature of such challenge, the premise must be that the PIC should not have conducted itself any further in this case.

We also consider it to be a moot point whether the operation of “unused materials” can at PIC Stage, which is a filtering process far removed from a criminal trial afforded with different kind of protection in terms of fairness in hearing.

That said, entirely without prejudice to the foregoing position, the letter of 8 February 2012 is now released in the special circumstances of your request. As to your other requested documents, they are the correspondences between Deacons and the Medical Council in handling the complaint case, which are irrelevant for your purpose. We are not prepared to entertain such other requests as they distort the order of the PIC regime as prescribed by the Regulation.

The Chairman of the PIC has approved to extend the deadline for you to submit a written explanation on behalf of [name supplied] to the PIC to 30 September 2014.

...”

91.  On 26 September 2014,[27] Mayer Brown JSM submitted on behalf of the applicant a detailed submission to the PIC.  It was submitted that in the circumstances (a) the Chairman had no power to direct that a meeting of the PIC be held; and (b) the PIC had no jurisdiction to consider the complaint.  The submissions were premised on the previous dismissal of the complaint and the absence of jurisdiction to thereafter handle the complaint.  The written submission also went on to make a substantive response by the applicant to the complaint. 

92.  By letter dated 17 July 2015,[28] the Secretary informed the applicant that meetings of the PIC were held on 8 December 2014 and 13 July 2015, and that the PIC decided to refer the complaint to the Medical Council for inquiry.

Grounds of review

93.  The acknowledgment by Dr Choi in his affidavit that the question of jurisdiction was considered renders Grounds 3 and 4 otiose, which will require only brief discussion, leaving as the principal focus of the present application the jurisdictional issue in Grounds 1 and 2. 

Ground 1: Ultra vires

The statutory provisions

94.  Mr Gerard McCoy, SC, on behalf of the applicant, [29] argues that the powers of the disciplinary process of the Medical Council are governed by statute which stipulates the nature and ambit of the powers to be exercised. 

95.  As has been previously noted, a complaint received by the Secretary is submitted to the Chairman or the Deputy Chairman under section 6.  If both the Chairman and the Deputy Chairman consider that the case is “frivolous, or groundless, and should not proceed further” they may dismiss it: section 6(2) and (3) of the Regulation.  Otherwise the complaint proceeds to the PIC for further consideration to determine whether it should be referred to the Medical Council for inquiry: sections 9 and 11 of the Regulation.

96.  Mr McCoy submits that a reference to the PIC can only be made pursuant to section 9(1) of the Regulation if the case “has not been dismissed” under section 6 of the Regulation.  He further submits that it is only if a reference has been properly made, and the PIC therefore lawfully constituted, do its powers under section 11 of the Regulation to consider a complaint and refer to the Medical Council for inquiry become engaged.

97.  In T v Commissioner of Police (2014) 17 HKCFAR 593, the Court of Final Appeal stated that statutory interpretation requires that the statutory language be interpreted in the light of its context and purpose. 

98.  Ribeiro PJ at §48 emphasised that the context of a statutory provision is taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law.  Fok PJ at §194 expressed the same view but added at §195 that the object of the exercise is to ascertain the legislative intent of the language of the statute and, in this regard, a court cannot contribute to a statutory provision a meaning which the language, understood in the light of its context and statutory purpose, cannot bear.  This he repeated with greater emphasis in §222.

99.  By reference to T, Mr McCoy argues that the natural and ordinary meaning as well as the context and purpose of the power to dismiss contained in section 6(3), are unequivocal.  The power, he argues, is to dismiss a complaint for being groundless or frivolous.  He adds that the fundamental character of such a power, namely to prevent abuse and unnecessary vexing of medical professionals, necessarily means that the complainant cannot simply reopen the complaint by urging a self review.  This in my view is to ignore the context of the disciplinary powers and process as contained in the statutory regime and to further ignore the purpose of the statutory regime to provide an efficient mechanism to investigate and deal with professional misconduct of medical practitioners. 

100.  Mr McCoy places considerable emphasis on the comments of Litton VP in Dr Leung Kam Chung Kenneth v Medical Council of Hong Kong (1996) 6 HKPLR 409 (CA) where he said that the PIC is a screening body to ensure that medical practitioners are not vexed with complaints which might turn out, after inquiry, to be groundless.  Here Litton VP was highlighting the importance of the screening process and I do not think his comments can be taken as far as submitted in argument by the applicant.  He was highlighting but one important feature of the statutory regime that is in place to discipline medical practitioners. 

101.  In any event, the intent and purpose of the relevant statutory provisions is not just to ensure that medical practitioners are not vexed with groundless complaints.  It is much wider than that and this is comprehensively addressed by A Cheung J (now A Cheung CJHC) in Dr Li Wang Pong Franklin v Medical Council of Hong Kong [2009] 1 HKC 352 at §§35 to 46, where he stressed the importance that complaints are properly handled and investigated and the profession and the public are protected from incompetent or unfit medical practitioners.  It is important to note as well that the PIC performs an investigatory function.  Section 20T(1) of the Ordinance empowers the PIC “to make preliminary investigations into complaints or information touching any matter that may be inquired into by the Council”.

Reconsidering a complaint

102.  Before an inquiry is undertaken by the Medical Council, it goes through a two-stage screening process.  It is clear in my view that the mechanism in place under the Ordinance in receiving and handling complaints against registered medical practitioners is designed to evaluate, screen and prepare complaints for referral to the Medical Council for inquiry. I should emphasise however that an examination of the relevant sections of the Regulation should be considered, bearing in mind, their statutory purpose and context and the role and function of the PIC in the investigation and processing of complaints against medical practitioners.

103.  The first stage involves an appraisal of the complaint by the Chairman and Deputy Chairman of the PIC to determine whether to dismiss the complaint as being frivolous or groundless (section 6(3)). 

104.  If it is decided that there is an allegation in the complaint that gives rise to a question as to whether the medical practitioner has been guilty of misconduct in any professional respect (section 8(1)), the case is referred to the PIC.  This is the second stage of the screening process.  It is only at this stage, that the medical practitioner is notified of the receipt of the complaint and the matters or allegations which may appear to raise a question whether he has been guilty of misconduct in a professional respect and the date when the PIC is to meet in order to consider the case (section 9). 

105.  The PIC meeting is conducted in private and without the attendance of the parties.  The medical practitioner is provided with a copy of the letter of complaint and any material that has been furnished under section 8, and he is invited to submit to the PIC in writing any explanation of his conduct or of any matter alleged in the complaint which he may wish to make. 

106.  It is important to note that under section 9(2)(f), the submission that the medical practitioner can make is limited to a written explanation of his conduct or of any matter alleged in the complaint. It is clearly not designed at this stage to address and resolve key issues, but rather to determine whether there is a case against the medical practitioner of misconduct in a professional respect that warrants inquiry by the Medical Council.  This view of the second stage is reinforced by the provisions under Part IV of the Ordinance that governs the conduct of an inquiry of the Medical Council.

107.  Unlike the meeting of the PIC which is conducted in private without the attendance of the parties, an inquiry of the Medical Council may be open to the public where the parties are entitled to be present and legally represented, although the inquiry can proceed in the absence of the defendant.  The provisions lay down a formal procedure for the inquiry which is commenced by reading out the notice of inquiry and the charges.  The inquiry then proceeds with the presentation of evidence of the case against the defendant followed by the presentation of evidence of the defence case.  At the conclusion of the taking of evidence, the parties make closing submissions to the Medical Council for inquiry. 

108.  The Chairman of the PIC, in addition to the powers given under the Ordinance and Regulation, also has whatever powers that are reasonably necessary to enable him to effectively carry out his statutory function.  This is provided for both under common law and statute. 

109.  As to the issue whether the Chairman and Deputy Chairman can reconsider or review a previous decision dismissing a complaint, I see no reason why they cannot.  There is no provision under the statute expressly prohibiting them from doing so, and at this stage of the disciplinary process, it would seem that such a power would be reasonably necessary to perform their statutory duty and function and in order to further the overall aim of the provisions of the Ordinance “to protect the public from the risk of practice by practitioners who for any reason (whether competence, integrity or health) are incompetent or unfit to practice and to maintain and sustain the reputation of, and public confidence in, the medical profession.”: Dr Li Wang Pong Franklin at §§41 and 42 per A Cheung J.

110.  The applicant’s case is that upon a proper construction in its context and purpose, and in conjunction with the express bar against proceeding with dismissed cases in section 9(1), the exercise of the dismissal power pursuant to section 6(3) results in a final conclusive decision and estops the case from proceeding any further.

111.  Mr McCoy argues that the statutory regime was designed to ensure that medical practitioners were not vexed by frivolous or groundless complaints and unnecessarily distracted from the provision of medical care to the public.  He makes the point that entertaining a request for reconsideration would facilitate the very mischief the statutory regime is designed to prevent.  But as I have already mentioned, whilst the screening of complaints is an important function of the statutory scheme, the overall objective of the scheme is to protect the public from the risk of practice by medical practitioners, who for any reason are incompetent or unfit to practice and to maintain the reputation of, and public confidence in, the medical profession. 

112.  In argument, attention was drawn to the language of both section 6(3) and section 11(1).  The former section provides that if both the Chairman and the Deputy Chairman consider the case is frivolous, or groundless, and should not proceed further, they may dismiss it.  The latter section provides that if a case received by the Chairman or the Deputy Chairman of the PIC under section 6 has not been dismissed, they are to direct that the case be referred to the PIC for its consideration.  The former section it is argued, upon dismissal of the complaint, creates a procedural bar to the continuing consideration of it.  The latter section provides that the PIC can only jurisdictionally constitute itself if there is a live complaint before it, absent one which “has not been dismissed” otherwise the PIC lacks jurisdiction to conduct its investigation.

113.  Mr McCoy examined the term “dismiss” in other statutory provisions of the Ordinance but this in my view offers little if any assistance because it very much depends on the context in which it is found. He argues that dismissal of a complaint means that the potential liability it can generate is finally terminated.  By way of analogy, he further argues that a dismissal of an appeal or the striking out of a proceeding, an appellant or applicant cannot simply return to the same appellate tribunal again and again with the same case, notwithstanding the fact that the tribunal may have made errors of law or fact, or have better evidence.  He submits that the decision must be first overturned or set aside by a competent court. 

114.  There are two arguments against the applicant’s submissions.  First, there is no statutory bar to reconsidering a complaint, even one that has been previously dismissed, let alone one that has been revised and resubmitted.  There may arise a situation where there has been a change of circumstances or new information has come to light the warrants a reconsideration of a previously dismissed complaint.  It is important to bear in mind that the dismissal of the complaint is at the first stage screening. Secondly, the complaint that has been received by the Chairman or the Deputy Chairman of the PIC for the purposes of section 11 is not the previously dismissed complaint but one that has been reconsidered where the Chairman and the Deputy Chairman have not formed the view that it should be dismissed and should not proceed further pursuant to section 6(3).  They have formed the view that it should proceed further and referred it to the PIC.

115.  The respondents take issue with the applicant’s proposition that once a case is dismissed it cannot be reconsidered or reopened. They point out that the three tier disciplinary process need not begin with a complaint.  As noted by the respondents if information suggesting professional misconduct is received, the process commences.  This is provided under section 6(1)(a) and (b) which states “Where a complaint is made to or information is received by the Secretary...”  The same applies if a committee of the Medical Council refers a matter under section 6(1)(c) concerning a registered medical practitioner to the PIC for its consideration or investigation. 

116.  Accordingly, there is a duty on the Medical Council to activate the process which begins with the first stage screening set out in section 6 whenever such information is received or when a referral is made, even if no complaint is lodged. 

117.  Mr Stewart Wong, SC, for the respondents,[30] argues that whatever is the status of the case, whether the original complaint has been dismissed or not, when you all further or additional information comes to light which, as occurred in the present case, suggests professional misconduct or other relevant matters as set out under section 6(1), or referral is made by a committee to the PIC, and whatever its origin or status, the process under section 6 must come into being, and it is the duty of the Medical Council to have the matter considered by the Chairman or the Deputy Chairman under the first stage screening. 

118.  Mr Wong submits that the Chairman and the Deputy Chairman have a continuing duty to review the case, if and when new or further or additional information or evidence comes to light.  He further submits that at the very least for cases where new or additional information suggesting professional misconduct is received, even where the case relates to the same incident that had been previously dismissed, the Chairman or the Deputy Chairman is duty bound under section 6 to consider the matter.  It is on a reappraisal of the case based on new or additional information that the screener may decide that it should be referred to the PIC under section 9.

119.  I agree with Mr Wong’s submissions and this is reinforced by the lack of any statutory bar against the Chairman and the Deputy Chairman of the PIC from considering a case again based on new or additional information or because of a referral.

120.  Mr Wong reinforces his argument further by contending that the Chairman will the Deputy Chairman is duty bound to consider the case again when the original decision had been made under a mistake of law, which he says occurred in the present case.  This is a reference to the previous Chairman seeking to resolve a conflict of expert opinion, which at this stage of the screening process was not his function in law.  He argues that in such circumstances, the dismissal is a nullity and of no legal effect, and there remains in existence a case which has not been dismissed which can if considered appropriate be referred to the PIC under section 9.

121.  He submits that the applicant’s contention that the case cannot be considered again under any circumstances as plainly wrong for the following reasons. 

122.  First, anomalies would arise where complaints have been made prematurely or incorrectly or without full and proper information but once the complaint was dismissed it could not be considered again even if it was corrected or new or additional information was furnished afterwards or the complaint was the subject of another complaint or referral. This would result in an unsatisfactory situation in addressing possible professional misconduct by medical practitioners where cases are not taken forward even in the face of new or additional information or a new complaint or referral that would warrant such action.  In Dr Li Wang Pong Franklin, at §§28-34, A Cheung J took into account similar anomalies when considering the scope of the Chairman’s powers in the first stage screening.

123.  Secondly, the applicant’s contention is contrary to the true intent or purpose of the Ordinance and Regulation, namely, to protect the public from the risk of practice by medical practitioners who for any reason (whether competence, integrity or health) are incompetent or unfit to practice and to maintain and sustain the reputation of, and public confidence in, the medical profession.  See R v General Medical Council, ex p Toth [2000] 1 WLR 2209 at §10 per Lightman J.  Professional disciplinary proceedings play a vital in protecting the public, in maintaining public confidence in the integrity of the profession, and in upholding proper standards of behaviour.  See the comments of Lord Collins of Mapesbury in Coke-Wallis, at §60, cited with approval by Kwan JA at §34 in A Solicitor.  See also Dr Li Wang Pong Franklin at §§41 and 42 per A Cheung J.

124.  Mr Wong argues that the strict and technical approach in the handling of complaints at the first stage screening as advocated by the applicant is contrary to the intent and purpose of statutory provisions. 

125.  Thirdly, the applicant’s contention is that once a complaint against the medical practitioner has been dismissed by the Chairman and the Deputy Chairman, there is a decision in rem, and the matter cannot be raised again by anyone.  Mr Wong argues this is contrary to the statutory regime that is in place.  He submits that, as recognised in Dr Li Wang Pong Franklin at §§28, 29 and 44, there are various ways in which a complaint can be made or pursued, for instance, it is open to the Chairman or anyone else to make a complaint to the Secretary under section 6(1)(a).  A Cheung J in Dr Li Wang Pong Franklin at §58 went on to note that the public interest is not served and will not be protected by restricting the role in the conduct of the Chairman and the Deputy Chairman in addressing matters that may go potentially to a medical practitioner’s professional conduct, and there is no logical, rational or practical justification in complicating the process when the imperative is to protect the interest of the public. 

126.  I agree with Mr Wong’s submission that it is logical, rational and practical for the Chairman and the Deputy Chairman of the PIC to consider a complaint again if they consider it necessary and appropriate, notwithstanding that the complaint has been previously dismissed at the first stage screening.  In fact, there is all the more reason that they should because of the nature of the process and of the decision at this stage.  As I stated in Law Yiu Wai, Ray at §44 the first stage screening is an initial check as to whether there is any substance to a complaint.  It is supposed to be a prompt appraisal of the complaint including any materials supplied, to remove an obvious unmeritorious case but because it is the initial filtering of complaints, there may be occasions when a reconsideration of it is both necessary and appropriate.

127.  Fourthly, the statutory regime provides for a two-stage screening process and given the nature of the first stage, which is a prompt appraisal of the complaint on the papers, a more flexible and practical approach should be employed in filtering out complaints at this first stage. It is pointed out by Mr Wong that at this stage, the medical practitioner in question is not involved at all.  He has not given any notice nor called upon to explain anything about the complaint.  He is not vexed at all which the applicant submits is the principal reason why the complaint should not be considered again after dismissal.

128.  Fifthly, Mr Wong challenges the applicant’s contention that a dismissed decision cannot be considered again unless it is set aside by the court of law.  He argues that this is contrary to the legislative intent of the statutory regime and contrary to the public interest.  To suggest, as the applicant’s does in submission that the remedy is by judicial review, ignores that a decision made by the Chairman and the Deputy Chairman may be entirely legal and reasonable and therefore not liable to be set aside.  But this would nevertheless bar them from considering the complaint again even if new or additional information is provided that warrants the complaint proceeding further. 

129.  In Dr Li Wang Pong Franklin,A Cheung J was urged to take a strict and narrow interpretation in interpreting the provisions of the Ordinance and Regulation.  He refused to do so and explained that interpreting the relevant provisions required having fully and firmly in mind the purpose of the Ordinance and Regulation.  He said on the issue that he had to address:

“59. ... In my view, on the true interpretation of the provisions, the Chairman of the PIC is quite entitled to look at the letter of complaint and all other materials received by the Secretary to determine, after consideration and investigation, whether they, including but not limited to the specific complaint (if any) made by the complainant, disclose any matters or allegations which may appear to raise a question whether the doctor has been guilty of misconduct in a professional respect. Interpreting the relevant provisions in such a way as to safeguard the public interest, even if it were to conflict with the interest of the individual, accords well with established rules of statutory interpretation: Bennion on Statutory Interpretation (5th Ed) 790-792.”

130.  Accordingly, interpreting the relevant provisions with the true intent and purpose of the provisions in mind, the express and specific powers in section 6 do not, upon the true and proper construction of all relevant provisions, prevent the Chairman and Deputy Chairman having the implied power to reconsider or review a complaint which is plainly required in order for them to properly perform their statutory task of screening complaints.

131.  The additional power to enable a person to do an act or thing as conferred by statute is given by section 40(1) of the Interpretation and General Clauses Ordinance, Cap 1: 

“Where any Ordinance confers upon any person power to do or enforce the doing of any act or thing, all such powers shall be deemed to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.”

132.  The availability of this power was mentioned in Dr Li Wang Pong Franklin at§62. 

133.  The principal argument of Mr McCoy is that the case that was referred to the PIC had been dismissed and under section 9 the case can only be referred to the PIC for consideration if the Chairman and Deputy Chairman in consultation with each other have not dismissed the case. Although the case that was referred to the PIC had been previously dismissed, it was reconsidered by the Chairman and the Deputy Chairman who, under section 8 were of the opinion that there was an allegation giving rise to a question as to whether the applicant had been guilty of misconduct in any professional respect.  It was on this basis that the Chairman and the Deputy Chairman referred the case to the PIC.  This was in accordance with the statutory provisions.

134.  It is also necessary to note that when the Chairman of the PIC reconsidered the initial decision, he had before him a revised complaint and new and additional information.  The new information consisted of a judgment of the Court of First Instance where judgment had been entered against the appellant on admissions of liability and a further expert medical report addressing the medical procedure followed by the applicant in the present case. 

135.  It is important to bear in mind that the decision by the Chairman and Deputy Chairman is at the initial stage of the screening process, where on an appraisal of the material then before them, they have to decide whether the complaint is frivolous or groundless and should not proceed further.  It is open to them, in my view, to reconsider or review a decision dismissing a complaint as an ancillary power, derivable by statutory implication that they require for the effective exercise of their expressed jurisdiction.  It is therefore reasonably necessary to imply such a power to enable the Chairman and Deputy Chairman effectively to carry out their statutory function.  See PCCW-HKT Telephone Ltd v Telecommunications Authority (2005) 8 HKCFAR 337 at §§35-50 and 60. 

136.  In any event, from my reading of the statutory provisions, I see no bar for the Chairman and Deputy Chairman reconsidering a complaint, for what is referred to the PIC is not a dismissed complaint, but one which has been reconsidered and where they have come to the view that it is not “frivolous or groundless and should not proceed further”.  In other words, they consider it should proceed further because there are matters or allegations which may appear to raise a question whether the medical practitioner has been guilty of misconduct in a professional respect (sections 6(2), 8(1) and (9)).  

137.  I find that the true and correct interpretation of section 6 is that the Chairman and Deputy Chairman do have power to reconsider a case even after dismissal.  This is more consistent with the true intent and purpose of the Ordinance and the Regulation in providing an efficient and effective system of addressing allegations of professional misconduct by medical practitioners as well as protecting the public and the profession.  There is no statutory bar for the Chairman and the Deputy Chairman to reconsider a dismissed complaint. 

138.  The applicant’s argument solely rests on the fact that the complaint was dismissed, but that has to be considered in against the nature and the context of the decision and the stage at which it is made. It would undermine the intent and purpose of the statutory regime if the Chairman and the Deputy Chairman could not consider a complaint that had been previously dismissed when new or additional information is provided or a new complaint or referral is made in relation to it.  In the present case a revised complaint and new and additional information and materials were submitted to the PIC.  It was in my view open to the Chairman and the Deputy Chairman of the PIC to consider the revised complaint notwithstanding it had been previously dismissed in its then form. 

139.  As I have said, I see no statutory bar and no reason why the Chairman and Deputy Chairman cannot reconsider and reopen a complaint which had been previously dismissed.  A matter may have been overlooked or new information has come to light to warrant a re-consideration. The Medical Council has the very important responsibility of regulating and monitoring the professional conduct of its members.  It is vital therefore that the statutory provisions are considered in a purposive and contextual manner giving full effect to the language and spirit of the legislation.  It seems to me that in order to ensure the fulfilment of the statutory objects of the Ordinance and the Regulation, that an interpretation is given to the relevant statutory provisions for a disciplinary regime of its members that is workable and effective

140.  I agree with the submissions of the respondents that once the decision is made to reconsider a complaint that had been previously dismissed, it is a fresh consideration and that any referral of that complaint to the PIC under section 9 is on the basis that the complaint should proceed further if it gives rise to a question as to whether a medical practitioner has been guilty of misconduct in any professional respect.

Res judicata

141.  Mr McCoy argues that a dismissal of the complaint under section 6 of the Regulation is a final determination of the complaint as being without merit and therefore, there is no right of appeal against the dismissal.  He further argues that the dismissal is final and binding, and pursuant to section 9 of the Regulation, debars the PIC from further considering the complaint. 

142.  In support of his submission, Mr McCoy cites the following statement of Vaisey J from his judgment in Re No.56 Denton Road Twickenham [1953] Ch 52, 56-57:

“...where of Parliament confers upon a body... the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body. I accept that proposition as being well founded, and applicable to the present case.”

143.  Relying on this statement, Mr McCoy argues that the dismissal decision of the complaint in the present case was a final decision pursuant to express statutory powers and the principles of res judicata and cause of action estoppel apply. 

144.  Mr McCoy also relies on §§29 and 31 of the judgment of Lord Clarke of Stone-cum-Ebony JSC (with whom the other judges agreed) in Coke-Wallis, which I set out more fully from §§25 to 31 inclusive:

“25.   It is important to note that this appeal is concerned only with the case where there have been two successive sets of disciplinary proceedings.  It is not concerned with a case in which either set of proceedings was either criminal or civil proceedings.  In Spencer Bower & Handley, Res Judicata, 4th ed (2009), para 1.05 it is stated that res judicata can either give rise to a cause of action estoppel or to an issue estoppel.  In this case the claimant relies upon cause of action estoppel, which is concisely defined in para 1.06 in this way: “If the earlier action fails on the merits a cause of action estoppel will bar another.”

26.   The relationship between cause of action estoppel and issue estoppel was described, in terms that have been generally accepted, by Diplock LJ in Thoday v Thoday [1964] P 181, 197-198:

“The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first species, which I will call ‘cause of action estoppel,’ is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, ie judgment was given upon it, it is said to be merged in the judgment, or, for those who prefer Latin, transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim ‘Nemo debet bis vexari pro una et eadem causa.’ In this application of the maxim ‘causa’ bears its literal Latin meaning.”

Res judicata, or estoppel per rem judicatam, is thus a generic term of which cause of action estoppel and issue estoppel are two species.  The distinction between the two species is of potential importance because the former creates an absolute bar, whereas the latter does not: see para 47 below.

27. Although the point was not conceded on behalf of the institute, it was not submitted in the course of the argument that the principle did not apply to non-statutory disciplinary proceedings of this kind.  In any event, the principle does in my opinion apply to such proceedings.  There is no doubt that it applies to what may be called ordinary civil proceedings.  In Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, where an issue estoppel was held to arise out of a determination of a planning application, the principle was held to apply to public law proceedings.  Lord Bridge (with whom the other members of the appellate committee agreed) stated the general principle and emphasised its fundamental importance in this way at p 289:

“The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims ‘interest reipublicae ut sit finis litium’ and ‘nemo debet bis vexari pro una et eadem causa’. These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in criminal law. In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.”

The House of Lords thus stressed the importance of the res judicata principle in terms which in my opinion apply equally to cause of action estoppel and to issue estoppel.

28. The judge [2008] EWHC 2690 (Admin) at [9], [10] described the objects and powers of the Institute.  The institute was incorporated by Royal Charter in 1880 to promote the profession of accountancy by compelling the observance of strict rules of conduct for its members and by setting a high standard of professional education.  By a Supplemental Royal Charter of 1948 the principal objects of the institute were declared to include the maintenance of high standards of practice and professional conduct by all its members.  The institute is, at least for some purposes, a public body: see eg Andreou v Institute of Chartered Accountants in England and Wales [1998] 1 All ER 14.  The Institute has the power from time to time to make byelaws under paragraph 15(a) of the supplemental charter. By paragraph 15(b) no new byelaw or rescission or variation of a byelaw shall have effect until approved by the Privy Council.

29. In these circumstances I see no reason why the principles of cause of action estoppel should not apply to proceedings before a disciplinary tribunal set up under the byelaws.  The provisions of the charter and supplemental charter are akin to statutory provisions and it seems to me that similar principles to those identified by Lord Bridge in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 apply to them.  It was not suggested in the course of the argument that there was anything in the charter or supplemental charter to lead to the conclusion that the principles of cause of action estoppel should not apply to successive sets of disciplinary proceedings. 

30. Indeed, even if the byelaws created only private rights as between the institute and its members, I see no reason why the principle of cause of action estoppel should not apply.  In Meyers v Casey (1913) 17 CLR 90, 114, where the High Court of Australia was considering a decision of the committee of the Victoria Racing Club, Isaac J said this of objections considered by the committee:

“They are, by reason of the committee’s decision, res judicatae, as much as if instead of the committee it had been the Supreme Court unappealed from, that has so held. That rests on the well known rule that a competent court or other tribunal has jurisdiction to give a wrong judgment, and if there is no appeal in the strict sense, then its decision, whether right or wrong, must stand, and cannot be questioned in any subsequent proceedings elsewhere.”

31. See also Spencer Bower & Handley, Res Judicata, 4th ed, at para 2.05, where the editors say:

“Every domestic tribunal, including any arbitrator, or other person or body of persons invested with authority to hear and determine a dispute by consent of the parties, court order, or statute, is a ‘judicial tribunal’ for present purposes, and its awards and decisions are conclusive unless set aside.”

In addition to Meyers v Casey and other cases, the editors cite Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, 643C, per Diplock LJ, where he said that, the parties having chosen an arbitration tribunal to determine the issues, they are bound by an interim arbitration award on specific issues under the principle of issue estoppel.  He added, at p 643E that the power of an arbitrator to make an interim award was first conferred by the Arbitration Act 1934 and that, before then, the only kind of award he could make was a final award which determined all the issues between the parties.  It is implicit in Diplock LJ’s judgment that in such a case the principles of cause of action estoppel would apply.”

145.  The focus of the argument on this point centres on whether the dismissal decision was a final decision in accordance with the principles as stated in Coke-Wallis.  Mr McCoy argues that if the dismissal decision is a final decision, then the PIC had no jurisdiction to consider the complaint until the decision was set aside or quashed upon an application for judicial review and in consequence therefore, the decision by the PIC to refer the complaint to the Medical Council for inquiry was ultra vires.

146.  The key issue therefore is whether the dismissal decision is a final decision. 

147.  It was held in Coke-Wallis that disciplinary proceedings were civil in nature and, therefore, the principles of res judicata, rather than autrefois acquit, applied and that in view of the objects and powers of the Institute of Chartered Accountants in England and Wales, there was no reason why cause of action estoppel should not apply to successive sets of proceedings before its disciplinary committee.  The complaint went to a contested hearing before the disciplinary committee and the question was whether the decision of the committee under consideration was final and on its merits.  Lord Clarke of Stone-cum-Ebony decided that it was. In approaching this question, he stated the relevant principles as follows:

“34. In para 1.02 Spencer Bower & Handley, Res Judicata, 4th ed makes it clear that there are a number of constituent elements in a case based on cause of action estoppel. They are:

“(i) the decision, whether domestic or foreign, was judicial in the relevant sense; (ii) it was in fact pronounced; (iii) the tribunal had jurisdiction over the parties and the subject matter; (iv) the decision was – (a) final; (b) on the merits; (v) it determined a question raised in the later litigation; and (vi) the parties are the same or their privies, or the earlier decision was in rem.”

It is not in dispute that all those elements are established except (iv) and (v). Even if any of the others were in dispute, I would hold that they are plainly satisfied. As to (vi), it was not suggested that the first decision was in rem but it is plain that the parties to both sets of proceedings were the same.

35. As to (iv) and (v), the critical question is whether the first decision was final and on the merits.  If it was, since I have already concluded that the question raised in both sets of proceedings was the same, it follows that it determined a question raised in the second proceedings.  I therefore turn to the argument before and the decision of the tribunal in respect of the first complaint.”

148.  The case of Coke-Wallis was concerned with a final determination in the disciplinary process upon a full hearing of the complaint between the parties and not as we have in the present case a decision that has made in the first stage of the screening process to dismiss a complaint on the papers. 

149.  In that case, the accountant, the subject of a disciplinary hearing, was present and argued in his defence against the charges he faced.  Whereas, in the present case, the complaint was considered on the papers in the absence and without the knowledge of the applicant (the subject of the complaint) and even though it was dismissed, it was preliminary to and before any formal proceedings, if it was to proceed, engaging the applicant as a party. 

150.  A dismissal of a complaint at this first stage of the disciplinary process is not a decision amounting to res judicata.  It does not give rise to any “lis” or issue.  There is no opponent, no issues, no arguments and no adjudication in an adversarial setting.  There has been no final determination of the complaint.  At this stage, the decision is simply that the complaint should not be allowed to proceed.  There has been no decision on the merits as to whether the medical practitioner has or has not been guilty of professional misconduct in the sense there has been an evaluation and resolution of factual or other relevant matters and an adjudication according to relevant principles of law upon which a conclusion is reached.

151.  In addressing the applicant’s argument that the elements of res judicata are satisfied in the present case, the respondents briefly set out the statutory provisions relating to the filtering process as follows:

“(1) The legislation provides for a two stage screening process before a case against a registered medical practitioner goes before the Council for inquiry: Law Yiu Wai Ray at §38.

(2) The role of the Chairman and the Deputy Chairman of the PIC in the first stage under reg 6 is a narrow one. It is to filter out those cases which need not proceed further. Wider questions, as to the prospects of success, as to whether the complainant is acting oppressively or as to the justice of the investigation proceeding further, do not lie within the screener’s remit. It is not for the screener to decide whether the case ought to proceed further, still less to weigh up conflicting evidence or judge the prospects of success. He must recognise that his duty is only to act as a preliminary filer before the more substantive role as filter is exercised by the PIC: Toth at 2217-2219; Law Yiu Wai Ray at §§115 and 124.

(3) The medical practitioner in question would not be notified at this stage: cf reg 9(2)(b) to (f) in relation to the PIC stage.

(4) Even at the second stage, the role and function of the PIC is to make preliminary investigations and (if considered appropriate) recommendations to the Council for the holding of an inquiry: sections 20T and 33(4)(a)(v) of the MRO; Law Yiu Wai Ray at §37.  At the meeting of the PIC, which is the first time that the medical practitioner is involved, preliminary investigation takes place whereby (a) any written explanation, documents, medical or other reports by the defendant can be made available and considered (reg 11(2)); and (b) the PIC may cause to be made such further investigations or further clarification from the defendant (reg 11(7)).”

152.  The respondents argue that given the limited role of the Chairman and the Deputy Chairman of the PIC at the first stage screening, it could not be the legislative intention that they be vested with the power to make “judicial” and “final” decisions “on the merits” which will be binding on the parties. 

153.  For the following reasons the respondents submit that many of the constituent elements of cause of action estoppel are not established in relation to the first stage screening:

(1) The first stage filtering is an internal process of the Council, to which the defendant doctor is not a party, and does not take part.  While the matter may well be initiated by the complainant, or the person providing the relevant information, and he supplies materials and may be involved further (for example, under reg 8), he is not a party either and, as submitted by A (at §48 of his Skeleton), has no legal rights or obligations in the process.  There are therefore no parties before the first screener, and no issue between them to be resolved.

(2) The matter in issue is the professional conduct of doctors, as regulated by the Council.  It is not the private interest of the complainant or information provider which is at stake.  It is not an issue between the Council and the complainant or information provider per se, nor between the complainant or information provider and the doctor per se. The matter (i.e. professional conduct of doctors) is not one which can be settled in private (hence the Council may still pursue the matter even if the complainant or information provider chooses not to).  Rather, it is an issue of public interest. 

(3) As public interest is at stake, the Council cannot be barred from re-considering a case even if the complainant or information provider no longer pursues it.  Indeed, there are multiple ways for submission of complaint and information.  Even on A’s contention, the matter can still be pursued via another complaint, laying of information or referral of matter under reg 6(1)(a) or (c).  The complainant or information provider need not have “locus” (§48 of A’s Skeleton).

(4) This is a fortiori the case since many complaints or provision of information, understandably, may be made by lay persons without legal representation.  A’s construction may result in grave injustice. 

(5) One of the rationales of res judicata is that the defendant should not be vexed twice (or more).  No such issue could have arisen here since the medical practitioner is not notified or involved in the first stage screening process.  The practitioner is not “being re-vexed” at all.

(6) Given that there is no time limit to the submission of a complaint, provision of information or referral of matter under reg 6, A cannot point to (and has not pointed to) any prejudice due to the re-opening of the matter.  This is a fortiori the case since A would not (but for the notification by solicitors for the Complainant here) have any knowledge of the existence of the Complaint – in any case A was not aware of the Initial Decision or the status of the Complaint at the material time. There was no reliance (on something which A did not know about) or any expectation of anything (legitimate or otherwise).

(7) It is only where the PIC decides to refer a case to the Council for inquiry that the matters which form the basis of the charge or charges are to be specified (reg 13(1) and (5)).”

154.  From a careful examination of the constituent elements of cause of action estoppel, it is clear that a dismissal at the first stage screening does not satisfy in practically all respects the constituent elements.

155.  The first element is whether the decision was judicial.  In Pastras v Commonwealth (1966) 9 FLR 152, Lush J of the Supreme Court of Victoria stated at §155 the test for distinguishing between decisions which are judicial and those which are administrative:

“The underlying principle of this form of estoppel is that parties who have had a dispute heard by a competent tribunal shall not be allowed to litigate the same issues in other tribunals. When the decision making body is an administrative body not affording the opportunity of presenting evidence and argument... there is no room for the operation of this principle... It appears to me that both upon the general language of the authorities... and upon... principle... no estoppel can arise from a decision of an administrative authority which cannot be classed either as ‘judicial’ or as ‘a tribunal’, and that an authority cannot be given either of those classifications if it... is under no obligation to receive evidence or hear argument.”

156.  Lord Diplock in Jones v Secretary of State for Social Services [1972] AC 944 applied similar principles to the determination of claims under the National Insurance legislation where he stated at 1010:

“Under the statute benefit of any of the three kinds is payable as the result of an ‘award of benefit’ made by a statutory authority... in respect to a claim for that particular kind of benefit by a claimant... The submission of a claim does not give rise to any ‘lis’. There is no opponent... and consequently no ‘issues’ in the sense in which that term is used in relation to adversarial litigation... The general doctrine of res judicata which operates inter partes is thus inapplicable to claims for benefit. The sole function of the insurance officer... is to satisfy himself whether or not the claimant is entitled to the kind of benefit he has claimed, and if so the amounts of benefit to which he is entitled. The legal consequences of his decision are those which the statute... ascribes to it. There can be no question of issue estoppel.”

157.  The initial decision in the present case was in the first stage screening process and was not judicial decision.  The screeners do not act as a tribunal under an obligation to receive evidence, hear arguments and decide specific issues between the parties.  At this stage of the disciplinary process, no one is engaged.  The decision is made on the papers and the medical practitioner in question is not notified of the complaint at this stage.  There are no issues and no contesting parties. 

158.  In A Solicitor, the Court of Appeal held that a decision of the Investigation Committee of the Law Society that “the complaint is not substantiated” was not a judicial decision, since the Investigation Committee merely endorsed the result of an investigation rather than acting as a tribunal deciding specific issues between defined parties. Similarly in the present case the Chairman and the Deputy Chairman are not acting as a tribunal deciding specific issues between defined parties.  The Court of Appeal held at §51 that decision of the Investigation Committee was not judicial because it was part of the investigation process to gather evidence for disciplinary proceedings if they were to be held and “to filter out unmeritorious complaints”.  The Court of Appeal also added that its decision would not be said to be final. 

159.  The third element is that the tribunal had jurisdiction over the parties and the subject matter.  There are no parties before the screeners during the first stage screening over which they have jurisdiction. 

160.  The fourth element is that the decision was final and on the merits.  First, the initial decision resolves or decides no issue of legal right.  In Thrasyvoulou, at 290G, Lord Bridge of Harwich contrasted a decision to grant planning permission which creates rights where res judicata applies and a decision to withhold palling permission where it did not.  He emphasised at 289D that there must be determination of an issue which establishes the existence of a legal right and the initial decision does nothing of the sort. 

161.  Secondly, the initial decision is part of a screening process and does not involve any final determination of the matter after hearing and weighing competing evidence.  At this stage of the process, that is not the function of the Chairman and the Deputy Chairman are not allowed to consider the prospects of success of the complaint, or to resolve conflicts of evidence.  See Law Yiu Wai Ray at §127.

162.  Thirdly, there is no finality since a similar complaint, information or referral can be laid or made by another person pursuant to section 6.

163.  The initial decision is one of no substantive legal effect or consequences to the medical practitioner in question but merely an essential step towards another stage, referral to the PIC.  It is not a final decision on the merits affecting the legal rights of any person.  See A Solicitor and Dr F v Education and Accreditation Committee of the Medical Council of Hong Kong, HCAL 26/2014, 13 November 2015, unreported.

164.  As pointed out by the respondents, the nature of the first stage screening decision is similar to the court in considering an application to apply for judicial review, which is also a filtering process, weeding out cases which have no realistic prospects of success.  See Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14 to 15 per Li CJ.  Such decisions do not bring into play the doctrine of res judicata.  See R (Opoku) v Principal of Southwark College [2003] 1 WLR 234 at §9 per Lightman J. 

165.  The fifth element is that the decision determined a question raised in the later ligation.  The initial decision does not determine any question to be raised in the later litigation, namely, the Medical Council for inquiry.  As has been repeatedly stressed, the initial decision is made in the first stage screening and concerns whether the complaint is frivolous or groundless.  This is not binding on the applicant and it is open to the applicant to contend before the Medical Council for inquiry that the case is frivolous or groundless.

166.  The sixth element is whether the parties are the same or their privies or the earlier decision was in rem.  The applicant is not a party to the initial decision.  It was made without any notice to him and without his involvement.  The respondents rely on the judgment of the Manitoba Court of Appeal in Holder v College of Physicians and Surgeons of Manitoba (2002) 220 DLR (4^th) 373 where Huband JA stated:

“[18] In order that the principle functus officio and the related concept of res judicata might apply to the circumstances of this case, the decision of the executive committee, as communicated to Dr. Holder in the letter of July 22, 1993, must be a ‘final’ decision.

[19] It is obvious that there was no determination of the merits of the complaint. The complaint had been considered by the investigation chairman. His role under s. 45 of The Medical Act was to bring forward a recommendation to council or to the executive committee as the delegatee of council. Upon receipt of the recommendation of the investigation chairman, the executive committee had two options under s.46. It could direct that no further action be taken, or it could direct that a preliminary investigation be held. In June of 1993, given the circumstances of the complainant, the executive committee had no real alternative other than to accept the recommendation that no further action be taken.

[20] In my view, absent a specific provision barring a re-opening of the matter, the decision to take no further action was one based on the available information and evidence at that time and does not preclude a re-opening based upon changed circumstances.

[21] At apt analogy can be drawn to a criminal prosecution. There may be insufficient evidence to support charges being laid with respect to an initial complaint. The prosecutor exercises a discretion not to lay charges. But if circumstances alter to the point that a prosecution becomes a viable course, the prosecutor is entitled to re-open the matter and lay the appropriate charges. The decision of the executive committee in June of 1993 was, like that of a prosecutor, a discretionary decision rather than a judicial or quasi-judicial decision.

[22] In this case, the re-opening of the matter would lead only to a preliminary investigation under s. 46(b), after which the council would determine whether a full inquiry should proceed.  In short, the complaint had not even been processed to the point of a preliminary investigation.”

167.  This sets out a comparative illustration and why for similar reasons in the present case that the constituent elements of res judicata are not satisfied.  

Correcting a mistaken decision

168.  The respondents sought to argue that because there was a “mistake of law” in the original dismissal of the complaint, the power to dismiss was never validly exercised opening the way for a fresh consideration of the complaint. 

169.  As this would require the Court to make a determination that the original decision was made in error, supplemental submissions from the parties were requested on this issue by the Court.  It would appear the respondents have changed their position, in that in their supplemental submissions they seek to argue that the decision-maker has the power to set aside the decision if there has been mistake.  The respondents frame their argument as follows:

“If there was a mistake of law or fundamental mistake of fact, the authorities suggest clearly that the decision-maker has a power to set aside the decision, which is vitiated by the mistake, and to make a fresh decision in place, without the wasteful need of having the original decision declared as a nullity and set aside by the courts first.”

170.  The applicant makes two points against this argument.  First, the decision-maker did not purport to set aside the earlier decision.  Secondly, once a complaint is dismissed, which must be presumed to be valid unless set aside, the jurisdiction of the Chairman and the PIC is disengaged.  It is submitted that there is no power of self-review and in consequence no power to remedy a mistake. 

171.  The applicant also takes issue with the respondents’ argument that there is an implied public law continuing duty to reconsider past decisions in the event there may have been a mistake of law. The applicant argues that the express power to prevent medical practitioners from being vexed by frivolous and groundless complaints must obviate such an implied power of self-review. 

172.  The respondents contend that the two propositions, namely that a public law decision is valid until set aside by the High Court and a power of self-review by the decision-maker, are not mutually exclusive.  The applicant argues that Order 53 of the Rules of the Hong Court is designed to encourage certainty and good public and administrative decision-making and, unless set aside through the judicial review procedure, a public law decision must be assumed to be valid.  The applicant relies on the well known passage from the judgment of Sir John Donaldson MR in R v Take-over Panel, Ex p Datafin [1987] 1 QB 815 where he said at 840:

“I think that it is important that all who are concerned with take-over bids should have well in mind a very special feature of public law decisions, such as those of the panel, namely that however wrong they may be, however lacking in jurisdiction they may be, they subsist and remain fully effective unless and until they are set aside by a court of competent jurisdiction. Furthermore, the court has an ultimate discretion whether to set them aside and may refuse to do so in the public interest, notwithstanding that it holds and declares the decision to have been made ultra vires: see, for example, Reg v Monopolies and Mergers Commission, Ex parte Argyll Group Pic [1986] 1 WLR 763. That case also illustrates the awareness of the court of the special needs of the financial markets for speed on the part of decision-makers and for being able to rely upon those decisions as a sure basis for dealing in the market. It further illustrates an awareness that such decisions affect a very wide public which will not be parties to the dispute and that their interests have to be taken into account as much as those of the immediate disputants.

In the context of judicial review, it must also be remembered that it is not even possible to apply for relief until leave has been obtained. The purpose of this provision was explained by Lord Diplock in Reg v Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 642-643:

“The need for leave to start proceedings for remedies in public law is not new.  It applied previously to applications for prerogative orders, though not to civil actions for injunctions or declarations.  Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

In many cases of judicial review where the time scale is far more extended than in the financial markets, the decision-maker who learns that someone is seeking leave to challenge his decision may well seek to preserve the status quo meanwhile and, in particular, may not seek to enforce his decision pending a consideration of the matter by the court.  If leave is granted, the court has the necessary authority to make orders designed to achieve this result, but usually the decision-maker will give undertakings in lieu.  All this is but good administrative practice. However, against the background of the time scales of the financial market, the courts would not expect the panel or those who should comply with its decisions to act similarly.  In that context the panel and those affected should treat its decisions as valid and binding, unless and until they are set aside.”

173.  The applicant argues that allowing a decision-maker to revisit a decision at any time whenever a complainant seeks a reconsideration is to frustrate all the mechanisms set down by Order 53 which are designed to promote certainty and good administrative practice.  I do not see that these important objectives would be undermined. 

174.  The applicant further argues that the respondents’ proposition would also undermine the rule of law.  It is argued that the High Court has a constitutional role, and inherent supervising jurisdiction, to act as a guardian of the standard of legality through the process of judicial review.  The applicant argues that the respondents’ proposition is that in the absence of any express statutory framework, matters of legality can be delegated, without limits, to tribunal decision-makers to assess their own decisions for errors of law indefinitely.  This attributes to the respondents a proposition that they are not making.  It ignores the true intent and purpose of the statutory scheme and in the context and circumstances in which the decision is made.  It must be borne in mind that this is a decision that is made at the very early stages of the filtering process when the medical practitioner the subject of the complaint is not involved in the process. 

175.  The applicant goes on to argue that to imply tribunal powers of self-review on errors of law based on the power of self-review upon a mistake of fact, contrary to the principles with judicial review.  The applicant argues that the Court’s inherent supervisory jurisdiction will rarely, if ever, extend to mistakes of fact and this will remain a matter within the jurisdiction of the tribunal.  The applicant refers to David Feldman’s comments in Error of Law and Flawed Administrative Acts [2014] CLJ 275 at 282 to 283:

“...In English law, for example, a decision-maker who discovers that a discretion was exercised on the basis of a factual error may have a duty to revoke the decision, but where the erroneous decision gave rise to a vested right, rather than to a discretion, the decision-maker cannot rescind the decision. The only effective remedy may then be a quashing order...

...

The High Court, with its inherent supervisory jurisdiction over all ‘inferior courts and tribunals’, always has jurisdiction to decide whether another decision-maker has made an error, unless that has been expressly or by necessary implication excluded by statute. Statutory jurisdictions require more care. For example, an employment tribunal in a claim for unfair dismissal does not have power to decide whether a public-sector employer succeeded in its attempt to dismiss an employee, but only whether dismissal was unfair. Where the employee challenges the lawfulness of the employer’s decision to dismiss the employee, that issue must be resolved in other proceedings, for example by applying for judicial review.”

176.  And at 286:

“As already noted, a person aggrieved by a decision addressed to him or her individually can be expected to test its lawfulness by way of a convenient statutory procedure. If the person does not do so, it will not be unfair to treat the order or decision as lawful in subsequent enforcement proceedings. Where no statutory procedure is conveniently available, people should usually apply for judicial review rather than resort to a procedure less well adapted for a public-law challenge.”

177.  As pointed out by the applicant, the key to whether there is a power of self-review therefore lies in the legislative framework and the proper construction of the statutory provisions including, section 6(3). 

178.  The factual circumstances of the subsequent decision were succinctly summarised at §8 of the respondents’ supplemental submissions, by reference to Dr Choi’s evidence, as follows:  

“...

(1) On 8.2.2012, the Secretary of the Council wrote to the Complainant to inform him of the Initial Decision (at §21).

(2) On 3.4.2012, the Complainant’s solicitors sent new materials and requested a re-consideration (at §23).

(3) Dr Choi, as chairman of the PIC, proceeded to study and consider all the information and materials of this case. He noted that the Complainant’s expert, Mr Ralph differed strongly in his observations from Dr Man. He also said that, on his part, given such conflict of evidence, he did not think that the Complaint should be filtered by him as the PIC Chairman at the first screening stage (at §25).

(4) Dr Choi was aware of the need to re-consider the matter without undue delay, and the conflicting evidence and opinion that had been made available.  Having considered all the available materials and circumstances on 24.8.2012, Dr Choi directed the Secretary of the Council to pass the case to the PIC for consideration under section 9 of the Regulation (at §28) (i.e. the Subsequent Decision).”

179.  The respondents explain that according to Dr Choi’s evidence, having reconsidered and reopened the case, he invoked the power under section 9 to “direct that the case be referred to the [PIC] for its consideration.” 

180.  The position of the respondents is that the initial decision of dismissing the complaint is no bar to Dr Choi, as Chairman of the PIC, to reconsider and reopen the complaint since the principle of res judicata did not apply and there is nullity in the statutory provisions which prohibited him from doing so as a matter of construction, and certainly where additional information which suggested professional misconduct had been provided.  Furthermore, Dr Choi had the power to reconsider and reopen the case on the basis that there had been a mistake in law by the previous Chairman and Deputy Chairman of the PIC when they made the initial decision and this vitiated the decision.

181.  The mistake of law is that the previous Chairman and the Deputy Chairman sought to resolve conflicts of evidence which at the first stage screening process was outside their remit.  See Law Yiu Wai Ray at §127(2) and (5).

182.  The applicant contends that the decisions of Cheung v Hertfordshire County Council (QBD 1985 CO/30/84 and CO/100/84, 5 July 1985) and R v Hertfordshire County Council, ex p Cheung [1986] The Times, 4 April, which the respondents rely on for the proposition that a decision maker may reconsider its decision on the ground of mistake were wrongly decided and contrary to R v Panel on Take-overs and Mergers [1987] 1 QB 815 at 840 and Calvin v Carr [1980] AC 574 at 589G-591H which stood for the proposition that a public law decision is valid and effective when and until it is set aside by a court of competent jurisdiction.  The respondents argue that the two propositions are not mutually exclusive.  It is acknowledged that a public law decision is presumed to be valid unless and until it is set aside but the respondents argue that what is at play is a narrower power or duty of the decision marker to set aside a decision vitiated by mistake of fact or law and to consider it afresh.

183.  This will depend on the particular nature and circumstances of the wrong or mistaken decision as to whether it can or should be corrected in this way.

184.  I agreed with observations and comments of Haddon-Cave J in his judgment of R (Chaudhuri) v General Medical Council [2015] EWHC 6621 at §§46-47 and 49-51:

“46. I respectfully adopt the analysis of Keith J in Fajemisin supra, who followed the Divisional Court in Porteous supra, who followed the Divisional Court in Porteous supra (Mantell LJ and Sir William Aldous), which held that the local authority had a power to revisit and rescind an earlier decision based on a fundamental mistake of fact. In my view, the inherent jurisdiction of public bodies to revisit previous decisions is not limited simply to correcting slips or minor errors which do not substantially affect the rights of parties or the decision taken; on the contrary, public bodies have the inherent or implied power themselves to revisit and revoke any decision vitiated by a fundamental mistake as to the underlying facts upon which the decision in question was predicated.

Broad corrective principle

47. I have no doubt that such a broad corrective principle exists in administrative law. Public bodies must have the power themselves to correct their own decisions based on a fundamental mistake of fact. To suggest otherwise would be to allow process to triumph over common sense. There is no sense in requiring wasteful resort to the courts to correct such obvious mistakes. Administrative law should be based on common sense.

...

49. A broad corrective principle of the nature described above is consonant with the principles of proportionality and utility. It is also consonant with the emerging principle of “good administration” in administrative law (see Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39, Lord Sumption JSC at para 32; R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (QB) and the cases cited at para 93 such as Tetra Pak International SA v Commission of the European Communities (Case T-83/91) [1994] ECR II-755; New Europe Consulting Ltd v Commission (Case T-231/97) [1999] ECR II-2403 and Petrotub SA and Republica SA v Council of the European Union (European Administrative Law) (Joined Cases T-33/98 and T-34/98) [1999] ECR II-03837). Not to have such a principle would be inimical to good administration.

50. In my view, the law is corrected stated in the current edition of Wade & Forsyth, Administrative Law, the 11th Edition (2014), at p 192:

“Even where such powers are not expressly conferred, it seems that statutory tribunals have power to correct slips and to set aside judgments obtained by fraud or based on a fundamental mistake of fact.”

51. The principle would natural operate subject to the ordinary principles of fairness in administrative law (eg legitimate expectation and the rights of persons acting to their detriment in reliance upon such decisions).”

185. I do not need to decide this issue as I have found that the PIC had jurisdiction to reconsider and reopen the complaint and there was no statutory bar to do so. 

Raising a legal objection

186.  I note in passing that there is under the statutory scheme, provision for raising a legal objection, if and when the case comes on before the Medical Council for inquiry.  It is provided under section 24 of the Regulation that an objection to any charge on point of law can be made to the Medical Council for inquiry after the reading of the notice of inquiry.  The section reads:

“(1) After the reading of the notice of inquiry the defendant, in person, or his solicitor or counsel, may object to any charge on a point of law and, upon such objection, any other party to the inquiry may reply thereto and, if any such party replies to such objection, the defendant or his solicitor or counsel may answer such reply.

(2) If such objection is upheld by the Council the charge to which such objection relates shall be considered only subject to such objection.”

187.  The significance of this provision is that it specifically provides for the raising of a legal objection to the charge before the Medical Council for inquiry. 

188.  Mr McCoy’s argument as to jurisdiction would be an objection to the charge on a point of law.  As provided by the legislative framework under the Regulation a point of law for adjudication may be raised, if and when, the case goes before the Medical Council for inquiry.  In that event, there is an appropriate forum to raise such legal objection.

189.  It seems to me that in order to give full effect to a just and efficient processing of complaints against medical practitioners that one has to look at the overall scheme that is in place, taking into account the nature and stages of the decision making and handling processes of a complaint as well as the respective duties and functions of the decision makers at these various stages.  It is by having an overview of this kind that it is clear what if any issues can be raised, and by whom, at the various stages of the processes.  The parties must accommodate the statutory processes not the statutory processes accommodate the parties.  It is only when it is appropriate, as provided by statutory scheme, that an application in relation to any legal or factual issue can be entertained. 

Ground 2: Procedural unfairness

190.  It is a well-known statement of principle that the common law rules of procedural fairness apply when the decision-making process is prescribed by statute.

191.  With this principle in mind, Mr McCoy submits that the Secretary has acted contrary to it on two matters. 

192.  First, by the Secretary’s letter dated 5 September 2014 which he submits appears to imply that the PIC had no jurisdiction to hear arguments about its own jurisdiction, this being “outside of the ambit of the PIC filtering position.” 

193.  Secondly, by the Secretary declining to disclose all the correspondence between the Medical Council and the complainant’s solicitors, apparently on the basis that he would not put those materials before the PIC for consideration. 

194.  There are two issues to this ground.  The first concerns the view taken by the Secretary that the PIC could not hear arguments on jurisdiction during the second stage screening process.  I have already addressed the matter in my discussion on Ground 1 where I said that the there was no lack of jurisdiction for the PIC to consider a case referred to it by the Chairman and Deputy Chairman which had been previously dismissed by them it being reconsidered and determined that it was not frivolous or groundless and should proceed.

195.  The second concerns the alleged failure by the Secretary to disclose all relevant materials to the applicant.

196.  On this aspect, Mr McCoy argues that section 11(2) of the Regulation mandates the type of documents which must be put before the PIC for consideration.  He argues that it does not provide a statutory basis with the exclusion of documents from consideration by the PIC, nor the exclusion of disclosure of documents to the registered medical practitioner who is the subject of the complaint.  He also submits that the only statutory provision for the exclusion of documents from consideration by the committee is contained in section 10 of the Regulation regarding materials excluded from the defendant in the procedure for hearing his or her fitness to practice.

197.  Mr McCoy argues that the power to put before the PIC relevant documents and to disclose those documents relevant to the applicant’s case is discretionary and pursuant to the principles of procedural fairness.  He submits that in the circumstances, where there is a clear and obvious jurisdictional challenge, the principles of procedural fairness require the Secretary to disclose all the correspondence in relation to the dismissal and the review and the failure to do so resulted in a decision which was procedurally unfair.

198.  Mr McCoy’s argument focuses on the materials that should be put before the PIC, where what is relevant are the materials that the Secretary is obliged to disclose to the medical practitioner who is the subject of the complaint.  This is to some extent answered by section 9(2), which provides that where the Secretary has been directed to refer the case to the PIC to meet to consider it he shall:

“(a) fix a date for the proposed meeting;

(b) notify the defendant of the receipt of the complaint, information or referral, and indicate any matters or allegations which may appear to raise a question whether the defendant has been guilty of misconduct in a professional respect;

(c) provide him a copy of any letter of complaint or information;

(d) forward to him a copy of any statutory declaration furnished under section 8;

(e) inform him of the date upon which the Committee is due to meet for the purpose of considering the case; and

(f) invite him to submit to the Committee in writing any explanation of his conduct or of any matter alleged in the complaint, information or referral which he may have to offer.”

199.  At this stage of the disciplinary process, under section 9 all that the Secretary is required to produce to the defendant by way of materials, in addition to the PIC notice, is a copy of any letter of complaint or information and a copy of any statutory declaration furnished under section 8. 

200.  It does not deal with a situation where there is a challenge as to jurisdiction.  I do not see that the applicant suffered any real prejudice as he nevertheless mounted his jurisdictional challenge through his solicitors and was able to address the PIC in detail on the issue.  It was, at the end of the day, essentially a legal argument.  There is provision for legal objections to be entertained by the Medical Council for inquiry, if and when, a case comes before it, and that would seem to be a more appropriate forum to make a legal challenge on jurisdiction, although that does not prevent the issue being raised beforehand.

201.  As a matter of interest is worthwhile noting section 12 of the Regulation which provides:

“(1) If the Committee decides that no inquiry is to be held, the Chairman of the Committee shall direct the Secretary to, and the Secretary when so directed shall, inform the complainant and the defendant of the decision of the Committee.

(2) Neither the complainant nor the defendant has any right of access to any information or document relating to the case submitted to the Committee by any other person, if the Committee decides that no inquiry is to be held in respect of the case.”

202.  The Committee in section 12 is a reference to the PIC.  It is arguable that this section relates to information or documents of third parties but it is also arguable that reference to “any other person” includes the other whether it is the complainant or the defendant.  On this issue, I formed no view as I did not have the benefit of full argument on it.

203.  What is most important in compliance with section 11 is that the particulars of the complaint are provided to the applicant, so that he knows what is alleged against him, in order to appropriately respond by written explanation if he wishes to do so.  This is put before the PIC in its private meeting to decide whether or not it the case should be referred to the Medical Council for inquiry.  In the present case, there is nothing to suggest that this requirement of providing particulars of the complaint to the applicant has not taken place.

204.  I agree with the submissions of the respondents in answer to this ground.  As it transpired, the Chairman of the PIC considered the issue of jurisdiction who decided that he had jurisdiction to consider the complaint. 

205.  I also agree with the points raised by the respondents as to the suggestion of actual bias against the Chairman participating in the PIC decision on jurisdiction and the seeking of legal advice which were not mentioned in the original notice and are therefore dismissed.

206.  In the circumstances, the Secretary has not failed in his duty under the statute to produce to the applicant the materials as required and to appropriately notify him of the particulars of the complaint that has been brought against him for which he was invited to make a response. 

207.  There is no substance to this ground.

Ground 3: Failure to consider relevant considerations

208.  This ground arises in the alternative, in the event the Court holds that the PIC did not make an implied decision on jurisdiction and did not rely upon the non-disclosed materials in making its decision. 

209.  On this ground, Mr McCoy argues that the decision was based on a failure to consider relevant considerations.  He refers to the letter dated 5 September 2014, from the Secretary and submits that the Secretary’s implication that by reason of the statutory regime prescribing a “filtering process” in the consideration of the PIC, the PIC therefore could not hear a jurisdictional challenge and there was no duty to disclose the requested material.  He argues that this is contrary to the basic principles of legality.  He cites the fundamental propositions that the law must be read in line with common law and basic principles of fairness and where basic procedural duties are not expressed, they must be implied.  See Judicial Review Handbook, 6^th Edition, Michael Fordham, QC, §§60.3.1-60.3.7.

210.  Mr McCoy submits that in the circumstances, and for essentially the reasons that have been elaborated in Ground 2, the PIC’s failure to properly consider the jurisdictional challenge resulted in a decision which failed to take into account the relevant considerations.

211.  The underlying rationale of Ground 3 has been addressed in my reasoning on Ground 1 in ruling that the Chairman and Deputy Chairman have the power to reconsider and reopen a complaint which they had previously dismissed.  This ground therefore fails.

Ground 4: Wednesbury unreasonable and irrational

212.  This ground also arises in the alternative.  Mr McCoy argues that the subsequent decision, in the face of jurisdictional concerns, was also Wednesbury unreasonable and irrational. 

213.  As I have found that there was no jurisdictional bar on the PIC in considering the case by way of a reconsideration or pursuant to section 11, it has therefore not acted unreasonably or irrationally.  This ground therefore fails.

Conclusion

214.  For the foregoing reasons, the application for judicial review fails on all grounds and is therefore refused. 

215.  On the question of costs, I would direct the parties to file a written submission within 7 days from the date hereof and a reply if any of the parties so wish, within 3 days thereafter.