DAVID CHOW SIU SHEK v. THE MEDICAL COUNCIL OF HONG KONG

HCAL 337/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 337 OF 2001

__________

________________

J U D G M E N T

______________________

Introduction

1. This is an application for judicial review of the respondent's order dated 6 December 2000 refusing to restore the applicant's name to the General Register pursuant to s.25(3) of the Medical Registration Ordinance, Cap.161. Leave to apply was given on 26 February 2001.

Background Facts

2. The applicant was a medical practitioner until his name was removed from the General Register. On 23 August 1994, the respondent ordered the applicant's name to be removed from the General Register for 3 years but the removal was only to take effect from the date of publication of the said order in the Hong Kong Government Gazette.

3. The order was made after the applicant has been convicted in November 1990 of 2 offences of conspiracy to defraud Government in the course of his medical practice. His sentence was reduced to 16 months' imprisonment and a $500,000 fine by the Court of Appeal in February 1993. The respondent's said order was gazetted on 16 June 1995. The 3-year period therefore ran from 16 June 1995 to 15 June 1998.

4. After he was released from prison in May 1994 (and before 16 June 1995), the applicant resumed his medical practice. The Department of Health visited his clinic in June 1994 and found he had failed to keep proper records of dangerous drugs. A warning was given for that matter. About 2 months later, in August 1994, the police and the Department of Health conducted searches at the applicant's clinic. As a result, the applicant was arrested on 22 August 1994 for failing to keep a proper register of dangerous drugs.

5. On 23 August 1994, following a disciplinary hearing, the said order for removing the applicant's name for 3 years was made. The hearing was only held then because of the applicant's earlier appeals against his November 1990 convictions.

6. In September 1995, the applicant was convicted of 19 offences of failing to keep a proper register of dangerous drugs and fined a total of $57,000. These convictions were related to the applicant's arrest in August 1994.

7. As stated above, the 3-year period expired in June 1998. The applicant applied for the restoration of his name to the General Register in September 1998 and this was heard but refused by the Medical Council in February 1999. He applied for judicial review of that refusal. In short, the first instance court concluded that:-

"... when the three years had elapsed in June 1998 since [the applicant's] name had been removed from the Register, he was automatically entitled to have his name restored to the Register ... "

(David Chow Siu Shek v. The Medical Council of Hong Kong, HCAL No. 32 of 1999, unrep., 25 June 1999, p.6F-G).

The court so concluded because:-

"... section 25(3) [of the Medical Registration Ordinance Cap. 161] does not apply to a case in which a practitioner's name has been removed from the Register for a specified period ... "

(p.6I-J).

S.25(3) of Cap.161 provides:-

"Any person whose name has been removed from the General Register ... may apply to the Council for the restoration of his name to the General Register and the Council in its absolute discretion and after such inquiry and subject ... to such conditions ... may either allow or refuse the application ... ".

8. The Court of Final Appeal took an opposite view on the Medical Council's appeal. One of several reasons given for this view was a suspension from practice is different from a removal. In relation to this reason, the Court of Final Appeal said:-

"Where someone is merely suspended from something for a specified period, it follows from the very nature of suspension that the mere expiry of that period automatically puts him back where he used to be before he was suspended therefrom. Removal, even if only for a specified period, is of different nature"

(pp.15-6 of the judgment dated 1 June 2000 in FACV No. 3 of 2000).

9. The applicant later made another application to the Medical Council for the restoration of his name (on 22 September 2000). At one of its meetings, the Medical Council decided to invite the applicant to make written representations for its consideration. The applicant was notified in writing that his application would be determined in a meeting on 6 December 2000. The letter dated 2 November 2000 from the Medical Council to the applicant's solicitors said:-

"The Medical Council will consider and determine your client's application at its meeting scheduled for 6 December 2000. Your client is invited to submit to the Council any written representation in regard to his application which he may wish to offer ... ".

In response to this letter, the applicant's solicitors furnished written submissions in their letter dated 21 November 2000. The respondent asks the court to note that the applicant did not request for an opportunity to be heard orally at the Medical Council's meeting.

Applicant's Grounds of Application in the Amended Form 86A

10. The grounds in support of this application are set out in the Amended Form 86A:-

(a) the respondent's refusal to restore the applicant's name was irrational and/or a decision to which no reasonable tribunal could have made: para.18 thereof;

(b) further or alternatively, the respondent failed to give sufficiently full and proper consideration to the applicant's submissions before refusing to restore the applicant's name: para.18 thereof;

(c) the respondent failed to allow the applicant to be heard orally. Accordingly, the applicant was not afforded a fair hearing: para.19 thereof;

(d) the respondent's refusal ignores the extent to which the applicant has been prevented from practising medicine since his November 1990 convictions: para.20 thereof;

(e) the respondent's refusal failed to take into account, whether sufficiently or at all, the approach of the Court of Appeal regarding the proper sentence for offences of failing to keep proper records, especially, the length of removal of a practitioner's name if such removal was considered appropriate: para.21 thereof.

It should be noted that in relation to point (c) above, the Amended Form 86A complains that the respondent refused to allow the applicant to be heard orally. The allegation of a "refusal" is not supported by the factual history. Counsel for the applicant fairly accepted at the hearing that the real complaint is about the respondent's failure to hear the applicant orally.

11. Before dealing with each of the points raised in this application, it is important to keep in mind the rationale behind requiring medical practitioners to register before they can practice medicine. This has been helpfully set out in the judgment of the Court of Final Appeal. The relevant passages (under the heading "The provisions to be interpreted in the present case") are:-

" The overall purpose of the Medical Registration Ordinance as indicated by its long title is 'To consolidate and amend the law by making more comprehensive provisions regulating the registration of practitioners in medicine and surgery'. ... As one sees from s.16, registration confers the entitlement to practice medicine. And as one sees from s.28, practising medicine without registration is a criminal offence punishable by up to five years' imprisonment. None of these provisions would come as a surprise to anyone. Indeed the absence of provisions like them would be astounding.

On the one hand, the tendency of the law is to frown upon any restraint of trade. And inevitably there will be some adverse impact on the public as well as on the professional person concerned whenever someone who is qualified and competent to practise a profession is prevented from doing so. To the extent that this adverse impact lands on the professional person, it is of course to be remembered that no law should be construed so as to inflict a hardship on anyone unless that is eventually found to be the clear effect of the law in question.

On the other hand, as Lord du Parcq said in delivering the advice of the Privy Council in Province of Bombay v. Municipal Corporation of Bombay [1947] AC 58 at p.63, 'Every statute must be supposed to be 'for the public good', at least in intention'. And qualification and competence are not the only qualities in a professional person that matter to the public. Integrity too is vitally important. And this means integrity both in general and in regard to professional matters in particular. If maintaining integrity within a profession involves the exclusion of certain persons who are otherwise qualified and competent to practise, then that is a price that has sometimes to be paid. At the end of the day, a balance has to be struck" (emphasis supplied) (pp.12-3 of the judgment).

(1) Did the Medical Council Fail to Consider Relevant Matters?

12. The applicant's complaint under point (b) above does not specify the matter(s) to which the Medical Council has failed to give consideration. Without specifying the matter(s) (if any) or providing the necessary particulars, this complaint is no different than an assertion (without any reason being given) that the Medical Council was wrong in refusing the application to restore. Similarly, no factual or other proper basis has been given for the complaint made in point (d) above. This is therefore also only an assertion.

13. In fact, matters considered by the applicant to be relevant have been set out in the applicant's written representations sent to the Medical Council on 21 November 2000. In particular, matters relevant to point (d) above have expressly been referred to in the applicant's written representations: para.6-8 and 10 thereof. There is no evidence or basis (whether direct or circumstantial) to think, or even to suspect, they have not been considered by the Medical Council.

(2) Was the Refusal Irrational or Wednesbury Unreasonable?

14. I propose to deal with points (a) and (e) above under this heading. Para.2.2 of the applicant's skeleton submissions under the heading "Irrationality/Wednesbury Unreasonableness" is relevant to this heading: see particularly para.2.2.1 to 2.2.6 and 2.2.10 thereof, which basically set out points (a) and (e) above.

15. Reliance has been placed on the following cases:-

(1) Ng Mei Sin v. The Medical Council of Hong Kong [1999] 1 HKC 242;

(2) Dr Leung Kan Pui v. The Medical Council of Hong Kong [1995] 2 HKC 15.

16. In short, these were appeals to the Court of Appeal against decisions made by the Medical Council in disciplinary proceedings brought against medical practitioners. Those disciplinary proceedings, arose out of convictions for failing to keep proper records of dangerous drugs. In both appeals, the Court of Appeal considered the sentence imposed to be either out of line or not supported by the evidence which the Medical Council was entitled to take into account. In the Ng appeal, the sentence was reduced from a removal from the register for 3 years to a period of 3 months suspended for a period of one year. In the Leung appeal, the sentence was reduced from a removal from the register for one year to a suspended sentence.

17. Further, the applicant provides a table showing the level of sentence of disciplinary cases since 1990. Out of a total of 14 cases of failure to keep proper records of dangerous drugs, the range of sentence (after appeal) spans from a removal from the register for 3 months suspended for 1 year to an immediate removal from the register for 1 year. The majority (5 cases) was a removal for 2-3 months (either suspended or immediate).

18. Based on the above, the applicant argues that the refusal amounts to a perverse decision when it is compared to the general level of sentence for offence(s) relating to failure to keep proper records of dangerous drugs. This is because the consequence of the refusal is effectively that he will not be able to practice medicine altogether.

19. With respect, while the consequence of the refusal may have such effect, the applicant's argument ignores a fundamental difference between sentencing a medical practitioner for the offence(s) of which the medical practitioner has been convicted and an application to restore one's name to the General Register. In the former, the sentence imposed must commensurate with matters such as the nature of the offence(s), the practitioner's culpability and the general level of sentence for similar disciplinary convictions. On the other hand, an application to restore involves a consideration of (among other things) the applicant's character and integrity.

20. When considering this complaint, it is also important to bear in mind that an applicant's position in relation to an application for restoration to the General Register. In many ways he is in essence no different than anyone who applies to register to become a medical practitioner. Having been removed from the Register and (as has been decided by the Court of Final Appeal) there being no entitlement to automatic restoration, such a person does not have a right (or indeed any expectation) to be restored.

21. The applicant also argues that it was wrong for the Medical Council to have taken into account all of the applicant's previous convictions when considering his application for restoration because:-

(a) as regards the November 1990 convictions (conspiracy to defraud), the applicant has already been penalised: he has already been removed from the register for 3 years;

(b) as regards the September 1995 convictions (failing to keep proper records of dangerous drugs), he has never been disciplined.

For the reasons set out below, I disagree with the above arguments of the applicant.

22. First, an important matter which the Medical Council is required by s.25(3) to consider is the applicant's character and integrity when that provision specifically refers to evidence regarding an applicant's conviction and professional misconduct. Further, save to the extent set out below, there is a similarity between the power to decide whether to allow an application for restoration and the power under s.14(4) to register a person to practise medicine: an applicant's character and integrity needs to be examined in both cases. The difference is that, where s.25(3) is applicable, the Medical Council is exercising its absolute discretion whereas, where s.14(4) applies, the power is (at least arguably) more limited and is only exclusionary in that it is a power not to enter one's name into the Register in certain circumstances.

23. To illustrate the similarity and difference between s.14(4) and s.25(3) referred to above, these provisions are set out below. The relevant parts of s.14(4) are:-

"The Council may, if satisfied after due inquiry that an applicant for registration-

(a)	has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment; or (Amended 25 of 1984 s.10)
(b)	has been guilty of misconduct in a professional respect;  or (Amended 7 of 1996 s.9)
(c)	is not of good character, (Added 7 of 1996 s.9) order that the name of the applicant be not entered upon the General Register".

The relevant parts of s.25(3) read:-

"... the Council in its absolute discretion and after such inquiry and subject to the submission of evidence that he has not been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment and has not been guilty of misconduct in a professional respect while practising in Hong Kong or elsewhere and to such conditions, as it may consider desirable, may either allow or refuse the application ..." (emphasis supplied).

24. The last-quoted parts of s.25(3) are important since they must have been the basis of the following observations in the Court of Final Appeal's judgment in FACV No. 3 of 2000:-

"Take in particular the provision that the Council's discretion to allow an application for restoration is subject to the submission of evidence that, apart from the matters which led to the removal of his name from the Register in the first place, the person seeking restoration has not otherwise "been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment" and has not otherwise "been guilty of misconduct in a professional respect while practising in Hong Kong or elsewhere". This provision is designed to discover if there are any skeletons in the cupboard, and is obviously an important safeguard against persons of insufficient integrity getting back on to the Register. The legislature added this safeguard to s.25(3) by an amendment made in 1996" (emphasis supplied) (p.17 of the judgment).

This passage is in addition to the passages at pp.12-3 of the same judgment (quoted above under the heading "Applicant's Grounds of Application in the Amended Form 86A") regarding the need for integrity of professional men.

25. For the purpose of this application, I will adopt those passages in the Court of Final Appeal's judgment and conclude that the Medical Council is entitled (and indeed obliged) to consider all matters relating to the applicant's character and integrity when deciding an application to restore one's name to the General Register.

26. Furthermore, a proper assessment of a person's character and integrity often necessitates an examination of his background (including his previous criminal conviction(s), if any). Also relevant are the circumstances surrounding the offence(s) for which he has been convicted. In relation to this application, the applicant's November 1990 convictions were related to offences committed in the course of his medical practice. His September 1995 convictions were committed shortly after he was released from prison and despite having been warned about 1 month earlier.

27. By reason of the above matters, I do not agree with the applicant's arguments set out above under this heading.

28. The respondent further submits in effect that the court should not lightly replace its finding for that of the disciplinary tribunal in judicial review proceedings. I agree. In this connection, I repeat what has been said at para.29 of my judgment in Tu Kin Yip v. Secretary for Justice, unrep., HCAL No. 1475 of 2001, 19 April 2002:-

"29. However, it is usually inappropriate in a judicial review for the court to conduct an examination of the minutiae of the materials given at a disciplinary hearing so as effectively to usurp the responsibility of the tribunal:-

(1) Yu Yau Tak v. Commissioner of Police and Anor. [2001] 2 HKC 627;

(2) Reid v. Secretary of State for Scotland [1999] 2 AC 512,

even less to act as a court of appeal:-

(1) Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155, 1173;

(2) Leung Fuk Wah Oil (first instance), para. 24 of the judgment;

(3) R v. ITC exp TSW Broadcasting Ltd. [1996] JR 185;

(4) Au-Yeung Kwok Hing v. The Attorney General for and on behalf of the Commissioner of Police, unrep., Civ. App. No. 205 of 1994;

(5) Kwok Wai-hung v. Commissioner of Police, unrep., Civ. App. No. 104 of 1996;

(6) So Chung v. Commissioner of Correctional Services, unrep., HCAL No. 2438 of 2000.

This is so with regard to disciplinary proceedings for disciplined forces:-

(1) Tong Poh Wah v. Hong Kong Society of Accountants [1998] 2 HKLRD 427;

(2) Leung Fuk Wah Oil, para.25 of the judgment;

(3) Chan Kim Hung v. Commissioner of Police, unrep., HCAL No. 2400 of 2000".

29. It is important to note s.25(3) of Cap.161 confers an "absolute discretion" on the Medical Council's part to decide whether to restore a person's name to the register. The discretion must of course be exercised judicially but, in the absence of proper evidence of a failure to take into relevant matters (or of irrelevant matters having been taken into account), bad faith and/or perversity, the Medical Council is the sole arbiter. This is because it is the body vested with the discretionary power to decide such matter. Save in the circumstances referred to above, the court should refrain from interfering with that discretion.

30. If it were necessary to do so, I would have found that there was sufficient evidential basis for the Medical Council to have concluded in the way it did.

31. By reason of the above matters, I reject the complaint made under this heading as having no substance.

(3) Was there a Fair Hearing?

32. This complaint is set out at point (c) above and also appears at para.2.3.2 of the applicant's skeleton submissions.

33. While the respondent accepts that there is a duty to act fairly in an application made pursuant to s.25(3), the respondent disputes the applicant's contention that there was no fair hearing. I agree with the respondent's argument that in order for the applicant to succeed under this heading, he must establish that in such kind of application, there is a legal duty on the Medical Council's part to afford him an opportunity to make oral submissions.

34. Applicant's counsel was unable to refer to any court decisions or textbooks to support the contention that there was such a duty. This court does not rule out the need for a hearing so as to enable an applicant to orally address the Medical Council in certain circumstances. But this case does not fall within that category. In this case, the facts relevant to the Medical Council's consideration were relatively simple, straight-forward and undisputed. The issues which the Medical Council needed to resolve were also relatively simple.

35. For completeness, I will refer to the cases relied upon by the respondent in support of my conclusion above:-

(1) R v. Army Board of the Defence Council [1992] QB 169, 187G-H; [1991] 3 WLR 42, 55E-H;

(2) Hoffman-La Roche & Co v. Secretary of State for Trade and Industry [1975] AC 295, 368D-E;

(3) Lloyd & Others v. McMAHON [1987] AC 625, 702;

(4) R v. IAT [1988] 1 WLR 477;

(5) R v. Criminal Injuries Compensation Board [1997] 1 WLR 58.

36. I will therefore reject this complaint.

(4) Were the Previous Convictions Relevant Matters?

37. By reason of the matters set out under the sub-heading "(2) Was the Refusal Irrational or Wednesbury Unreasonable?", I have concluded that the previous convictions are relevant to the Medical Council's consideration under s.25(3) of Cap.161. This complaint is accordingly also rejected.

Other Matters

38. Additional grounds are raised by the applicant in his skeleton submissions. The respondent objects to such grounds being raised when the same have not been set out in the Amended Form 86A (and hence leave has not been given in respect thereof). The respondent is nevertheless prepared to deal with these grounds without prejudice to its said objection. The additional grounds are:-

(a) bias or the appearance of bias on the part of the Medical Council: para.2.3.1 of the skeleton submissions;

(b) legitimate expectation on the applicant's part that if he further applies for restoration to the General Registry, his application would be properly dealt with: para.2.3.3 thereof.

(a) Bias or the Appearance of Bias

39. This complaint is based on an alleged real danger of bias on the part of the Medical Council. The fact relied upon in support is that of the 18 Council members who had participated in the decision to refuse the applicant's application, 9 have participated in the hearing of his earlier application in September 1998. The applicant contends that this is sufficient to show real danger of bias. He further relies on:-

(a) R v. Gough [1993]AC 646, 670;

(b) R v. Inner West London Coroner, ex parte Dallagio and Anor. [1994] 4 All ER 139, 150-2.

40. The respondent points out that under s.3(2) of Cap.161 only a limited number of members are appointed to the Medical Council. The terms of their office are also prescribed by statute: s.3(3). If the applicant's contention is valid, it will very easily create a practical problem of insufficient quorum available for dealing with disciplinary proceedings regarding medical practitioners.

41. But even leaving aside the question of this practical problem, I agree with the respondent that there is no merit in this complaint. As has been found above, the Medical Council is obliged to assess an applicant's character and integrity under s.25(3). In order to do so properly, it is highly likely that the Medical Council needs to examine his past, including any criminal conviction(s). Such being the case, I fail to see how it can be contended that members with knowledge of an applicant's background can be regarded as biased.

42. Insofar as it is contended that members who have refused an earlier application are biased, I refer to the judgment in Re Prudential Enterprise Ltd., HCCW No. 594 of 1999, unrep., 27 September 2000. Le Pichon J (as she then was) referred to the following passages in her judgment:-

"In determining an application for judicial recusal, the approach adopted by the English courts is the "real danger of bias" test laid down by the House of Lords in R. v. Gough [1993] AC 646 :

'... I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him; ...'

See per Lord Goff at 670 D-F. That test was recently applied by the English Court of Appeal in Locabail (UK) Limited v. Bayfield Properties Limited [2000] QB 451 where (at 480) observations were made as to when a real danger of bias might be thought to arise :

'... or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v. Kelly (1989) 167 C.L.R. 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. ...'".

Having considered the above principles and the facts involved in that case, the learned judge refused the application for her to recuse from further participation in the proceedings.

43. Similar considerations apply to this application. In the circumstances involved in this case, I disagree that there was a real danger of bias.

(b) Legitimate Expectation

44. There is an indication in the written decision dated 6 December 2000 of the Medical Council that "... should [the applicant] make any further application for restoration in future, he would be unlikely to succeed". The applicant argues that this indication takes away his legitimate expectation that a regular practice in the Medical Council's conduct of inquiries would continue to be followed.

45. The respondent points out that this complaint is misconceived. First, the indication was made at the invitation of the applicant's legal advisers: see para.10 of the applicant's written representations dated 20 November 2000. Secondly, p.14 of the Court of Final Appeal's judgment expressly refers to the possibility of the Medical Council giving the applicant an indication as to when he may make a fresh application, particularly when invited by him to do so. Lastly, such an indication no more than intimates what the members giving it thought might happen in future; such indication is not subject to judicial review.

46. I agree with all of the respondent's above arguments.

Conclusion

47. This application is refused.

Costs Order Nisi

48. There is no apparent justification for departing from the usual rule that costs should follow the event. There will be a costs order nisi pursuant to RHC Ord. 42 r.5B(6) that the costs of this application (including any reserved costs) be paid by the applicant to the respondent to be taxed if not agreed.