DR TO CHUN FUNG v. THE MEDICAL COUNCIL OF HONG KONG

HCAL 72/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 72 OF 2010

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BETWEEN

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J U D G M E N T

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1.  This is, in substance, an application to set aside the leave given by the Court on Wednesday (18 August 2010) relating to a pending disciplinary inquiry before the Medical Council. The main issue before the Council is whether the applicant was the treating doctor of the complainant.

2.  On the occasion of the ex-parte application for leave the picture was painted to the Court that the only evidence against the doctor was a medical report, apparently signed by the doctor, suggesting that he was the treating doctor of the complainant and the positive identification by the complainant of the applicant as the treating doctor. 

3.  It was submitted to the Court that the medical report is now contradicted by a favourable document examination report obtained by the applicant.  It was also submitted to the Court that there is now a declaration made by the complainant, at the conclusion of a mediation session, which resulted in the withdrawal of a personal injuries action commenced by the complainant against the applicant in the District Court, to the effect that the complainant cannot be now 100 per cent sure that the applicant was the treating doctor. 

4.  The challenge against the Medical Council is that the Medical Council has refused to take into account the declaration and has refused to refer the matter back to the Preliminary Investigation Committee (PIC) for further investigations under section 15 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap 161A).  It was submitted to the Court that, in the light of the favourable document examination report and the declaration, the applicant now has a “complete defence” to the charges that he faces before the Council.

5.  It is fair to say that it was a very marginal application.  The Court was acutely conscious of the general principle that the court, sitting in its public law jurisdiction, should not micro-manage proceedings that are pending before a domestic tribunal, particularly when the relevant legislation has provided for redress by way of appeal to the court for an aggrieved party.

6.  The Court was eventually persuaded that leave should be granted, on the ground that it was arguable whether the declaration was admissible contrary to the Medical Council’s belief, and further, and more importantly, it was arguable that at a substantive hearing the Court would interfere with the Council’s refusal in the light of the relative importance of the declaration and the significance of a full-scale disciplinary hearing to a medical professional.

7.  However, in this application to set aside the leave so granted, the Court’s attention has been drawn to a number of matters conveniently set out in paragraph 21 of the respondent’s written submissions which the Secretary of the Council would rely on to prove directly or inferentially that the applicant was the treating doctor of the complainant.

8.  It is not disputed that these matters may all be gleaned from the Secretary’s bundle of documents which has already been provided to the applicant prior to an earlier hearing on 29 July 2010.  Amongst other things, there is the alleged admission by a staff member of the concerned beauty parlour that it was the applicant who had treated the complainant.  More importantly still, there is the allegation, now belatedly accepted by the applicant, that his mother is a shareholder and a director of the beauty parlour in question.  This latter fact, it should be immediately pointed out, was never disclosed to the Court before.  Despite submissions to the contrary, I am of the firm view that this is a highly material matter which ought to have been disclosed. 

9.  In my view, this is a case of material non-disclosure.  The Court has, on a previous occasion, emphasised the duty, indeed, the continuing duty, to make full and frank disclosure in an application for leave to apply for judicial review: Kan Hung Cheung v The Director of Immigration HCAL 74/2007, 13 February 2008, paras 13-20, 39-40.  The failure to comply with that duty would require the Court to look at the matter afresh.  The Court has a discretion whether to set aside the leave so granted.  The fact that there has been material non-disclosure is a highly material consideration to be put in the balance.

10.  The Court will also consider the merits of the case.  In so considering merits, the Court would not be bound to apply the threshold test of a reasonably arguable case because, by definition, the complexion of the matter before the Court has changed.  The Court is no longer concerned with an application for leave to apply for judicial review.  The Court is concerned with whether it should exercise its discretion to set aside the leave previously granted on the ground of material non-disclosure.  In fact, one could go further and say that, as a general rule, in order to uphold the integrity of the process of the court, the Court should set aside the leave on the ground of material non-disclosure, save in exceptional circumstances and save, perhaps, in cases involving, for instance, wholly innocent non-disclosure.  I do not believe that this is such a case here.

11.  So I approach again the merits of the case on a changed basis.  I am prepared to assume that it is arguable – and I put it no higher than that – that the Medical Council could look at the declaration in question in considering whether to refer the matter back to the PIC. However, I am of the view, in the light of the materials now before the Court, that even assuming the Medical Council had erred in refusing to consider the declaration when considering whether to exercise its power under section 15 to make a referral, it would not have made the resulting refusal a matter challengeable before the court. 

12.  It must be appreciated that the Medical Council has a fairly wide discretion in the matter.  The Court was prepared to grant leave, on the earlier occasion, because it thought, as a result of the submissions made to the Court, that apart from the positive identification by the complainant and the medical report, apparently signed by the applicant, there was no other evidence to prove that the applicant was the treating doctor.  But this is no longer the picture now.  There are other materials which would suggest that the applicant was, after all, the treating doctor of the complainant.  This is, of course, a matter to be decided by the Medical Council. 

13.  However, for the purposes of examining whether the refusal of the Council is challengeable in the court, one is entitled to take the view that with or without the declaration, it would still be quite within the wide discretion of the Council whether to order a referral or not.  Put another way, even if the declaration were considered by the Council, it would still be quite within the discretion of the Council not to order a referral and the Court would still not be entitled to interfere with the Medical Council’s decision on any established public law grounds. 

14.  This is particularly so when one bears in mind the general principle that I have outlined at the outset of this judgment, ie, that the court must refrain from micro-managing proceedings that are pending before a domestic tribunal particularly when the relevant legislation has provided for appellate means to redress any grievance that a party to the proceedings may have by reason of the tribunal’s decision. 

15.  I stress that the Court is not seized of the question of what would happen to a finding of guilt against the doctor after a full investigation, in the event that the Council has erred in its view that it cannot consider the declaration.  If such were to be the finding of the Council, the proper avenue to seek redress would be to appeal to the Court of Appeal.  All I am concerned with is the merits of the proposed application for judicial review directed against the refusal to make a referral. 

16.  Bearing all this in mind, I am of the view now that either the proposed application for judicial review does not have a reasonably arguable chance of success, or at best, it remains a most marginal application.

17.  I come back to the discretion that the Court has to exercise one way or the other in the light of the material non-disclosure.  I have, as I said, borne in mind the merits of the proposed application, including the arguability of the contention that the declaration may be considered by the Medical Council when considering the merits of the complaint against the applicant. I have taken into account the relevance and materiality of the facts that have not been disclosed.  I have borne in mind the general principle of non-interference in this type of case by the court.  I have also borne in mind the delay that the disciplinary matter has experienced.  I am not necessarily saying that the blame for the delay should lie at the door of the applicant.  I am merely taking into account the very fact that the matter has been delayed for a fairly substantial period of time. 

18.  I also bear in mind, as I did last time, that for a professional man like the applicant, there is some difference between going through a full inquiry before the person’s professional body – in this case the Medical Council – and going through a set of judicial review proceedings before the court.  I have taken into account, nonetheless, that, in terms of time, costs and publicity, there is no material difference between going through either set of proceedings.

19.  Bearing all the circumstances of this case in mind, particularly those identified by the Court above, in the exercise of my discretion, I set aside the leave given. 

20.  I wish to add one point by way of a footnote.  Counsel has said everything that could be said on behalf of her client, although a material non-disclosure has occurred.  I wish to say specifically that, on the materials before me, counsel was not a deliberate party to it.  Apparently counsel simply acted on her instructions at the time and the fact that the applicant’s mother is a shareholder and a director of the limited company which owns the beauty parlour in question, was not known to counsel before.