LEUNG TSAN CHUNG v. DR TONY KO PAT-SING, CHIEF EXECUTIVE OF HOSPITAL AUTHORITY

HCAL 1226/2023

[2023] HKCFI 2433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1226 OF 2023

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J U D G M E N T

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A. Introduction

1.  By his Form 86 dated 19 July 2023, the Applicant made an application for leave to apply for judicial review, so as to challenge the decision dated 27 May 2022 (“Decision”) made by the Public Complaints Committee (“PCC”) of the Hospital Authority (“HA”). The Decision was itself made upon the Applicant’s request for a further review of his complaint previously made against the Queen Elizabeth Hospital (“QEH”).

2.  The Form 86 identifies Dr Tony Ko Pat-sing (mis-spelled as Dr Tong Pat-sing) as the putative respondent. I gave directions for the putative respondent to file an Initial Response, and for the Applicant to file a Reply to the Initial Response. I also set an oral hearing.

3.  In the Initial Response, it was pointed out amongst other things that the Applicant has not explained why he was seeking to apply for judicial review against Dr Ko, Chief Executive (“CE”) of the HA, given that Dr Ko did not participate in the decision-making process of the PCC. The Applicant filed a Reply.

4.  At the hearing, the Applicant appeared in person. The putative respondent was represented by Mr Jenkin Suen SC.

5.  At the end of the hearing, I reserved my decision. This is my Judgment.

B.  The PCC

6.  The complaint handling mechanism adopted by the HA is set out on the HA’s website, and has been recognised by this Court in Kwok Kwai-man v Hong Kong Hospital Authority [2023] 1 HKLRD 585 at §4.

7.  In short, the HA handles complaints against public hospitals by a two-tier complaints management system. The first-tier handler is the public hospital against which the complaint is made. The second-tier handler is the PCC. The PCC acts as an appeal body for complainants who are not satisfied with the outcome of the hospital’s handling of the complaint.

8.  The PCC is established under the HA Board independently to consider and decide on appeal cases, and it comprises members from different sectors of the community, who are neither executives nor employees of the HA. The PCC’s decision will represent the final decision of the HA on a particular complaint, though that does not preclude a person from lodging his or her complaint to other organisations.

9.  According to the PCC’s Terms of Reference, the PCC will not normally handle cases that fall outside its ambit, including (among other things): (1) where legal proceedings have been instituted or are threatened to be instituted; (2) claims for compensation; (3) complaints related to a matter for which a specific statutory complaints procedure exists; (4) any matter being dealt with by a coroner; and (5) complaints related to a dispute over the established policies of the HA. This is consistent with the PCC being a body for handling general complaints, as opposed to being a body dealing with and deciding matters of professional misconduct, or a body handling claims for compensation in negligence actions.

10.  Where the PCC decides that a complaint is substantiated, the PCC would explain the investigation findings to the complainant, and make recommendations to the HA where appropriate.

11.  The PCC receives secretarial support from the HA’s Patient Relations and Engagement Department (“PRED”). Though the PRED acts as the Secretariat of the PCC, it does not participate in the decision-making process of the PCC.

C.  Background to the Decision

12.  To understand the merits of the intended challenge, it is necessary to put the Decision in its proper context.

13.  On 22 April 2016, the Applicant received right ankle surgery at the Department of Orthopaedics & Traumatology of QEH – following his persistent right ankle pain and osteochondral lesion of the talus (“OLT”).

14.  The Applicant says the surgery occurred in the circumstances following his twisting his right ankle during hiking in 2012. After recovery, he still had occasional ankle pain after a long walk without rest. He attended regular follow-up consultations at QEH about once a year. On 9 December 2014, the Applicant was seen by Dr Man Shui-wah, who arranged a computed tomography (“CT”) scan on 19 December 2014. On 20 January 2015, Dr Man told the Applicant that the CT scan revealed an OLT at the lateral talar dome of his right ankle, which required surgery. A tentative OLT operation date was fixed for 22 April 2016. In the meantime, the Applicant was to attend physiotherapy treatment for one year, and Dr Man would check the improvement of ankle pain and OLT in the next follow-up consultation on 19 January 2016, to see whether the OLT operation was really required. The Applicant says he agreed to this management.

15.  By mid-2015, the occasional ankle pain had improved significantly and the physiotherapist asked the Applicant to stop treatment, which he did after 22 May 2015. The Applicant says that his increased travels to China, more than 10 times a month, and even 8 times in April 2016 before the operation, indicated that his right ankle was in good shape before the operation.

16.  The Applicant says that when he saw Dr Man on 19 January 2016 and informed him of the improved ankle pain, he requested to cancel the OLT operation. But, for reasons which the Applicant says he does not know, Dr Man declined that request. Hence, the surgery went ahead. The Applicant has complained about the pre-operative handling of his medical consent to the operation and has suggested that the consent form was altered after the surgery was recognized to have been a failure.

17.  The Applicant continued to suffer right ankle pain post-operatively and complained to the QEH. He alleged that: (1) he was not offered other non-invasive treatment options and was forced to undergo the operation; (2) there was no clinical indication for operation; and (3) the operation was a failure, causing his persistent post-operative right ankle pain.

18.  After investigating the matter, the QEH responded to the Applicant’s complaint by letter dated 23 February 2017 (written in Chinese). Though for present purposes it is unnecessary to set out the detail of that letter, it can be noted that the response was provided broadly under the following five headings (in English translation):

(1)  You are dissatisfied with the attending doctor’s misdiagnosis of your condition, the attending doctor’s request for surgical treatment without providing you with other treatment options.

(2)  You are dissatisfied that the doctor refused to meet with you and discuss your request to cancel the operation during your pre-operative assessment in March 2016 and that the doctor insisted on persuading you to undergo the operation a day before it.

(3)  You are dissatisfied that the operation took longer than what you were originally told to be an hour. You suspect that the doctor’s failure to carry out pre-operative assessment properly and another X-ray examination led to the inconsistency in clinical findings before and during the operation, and hence elongating the operation.

(4)  You are dissatisfied that the pain in your right ankle deteriorated after the operation and that the attending doctor did not explain to you the reason for the failure of the operation and whether your condition would improve.

(5)  The attending doctor failed to provide you with a referral letter for an expedited consultation with the Pain Clinic. The attending doctor, instead, unreasonably referred you to the Psychiatry Department.

19.  Because he was dissatisfied with that response, the Applicant lodged an appeal to the PCC on 22 March 2017.

20.  Having investigated the matter, the PCC concluded that the case was unsubstantiated, and notified the Applicant of its response by letter dated 15 November 2017. The letter addressed the Applicant’s complaints by reference to 9 numbered allegations, and made the following remarks in conclusion (in English translation):

Generally speaking, the Committee concludes that the orthopaedic surgeon has arranged corresponding treatment plans based on your condition and clinical examination results. Examination and referrals were also arranged for your post-operative persistent ankle pain. Upon investigation, the Committee could not find any evidence to substantiate your allegation that the doctor forced you to undergo the operation. While the Committee understands that you are annoyed by the persistent ankle pain and therefore suspect the doctor made a mistake during the operation, we hope you understand that every operation, examination or medical procedure has its associated risks, complications and limitations. No matter how advanced medical technology is, risks and complications cannot be completely eliminated. An operation which gives rise to complications or does not deliver the desired effect is not equal to a negligent operation. The Committee hopes that you follow the doctors’ advice and attend follow-up appointments on time. We sincerely wish you the best progress of your condition. Your case should draw to a close here.

21.  The case did not draw to a close there. Instead, on 23 September 2019, the Applicant submitted a MRI report, requesting the PCC to review his case based on the new evidence. By letter dated 25 September 2019, the PCC declined to re-examine the case. It seems that the Applicant also called the PCC’s Secretariat on 27 September 2023 and 4 October 2023 to express his dissatisfaction with the refusal to re-examine the case. By letter dated 4 October 2019, the PCC again explained to the Applicant that his case would not be handled by the PCC if the patient concerned or the complainant has instituted legal proceedings, or has indicated that he will institute legal proceedings, against the HA, the hospital, or any persons who provided the service. As the PCC had learned that the Applicant had taken legal action against the QEH in this matter, the PCC would not comment on the case further, as it fell outside the PCC’s ambit as limited by its Terms of Reference (a copy of which document was provided to the Applicant with the letter).

22.  It is of note that neither of the PCC’s letters dated 25 September 2019 or 4 October 2019 requested the Applicant to withdraw his legal action against the HA.

23.  On 7 January 2020, the Applicant and solicitors for Dr Man jointly applied by way of consent summons for leave to be granted to the Applicant to withdraw his medical negligence action with no order as to costs. A Consent Order to that effect was made on 25 February 2020.

24.  Although the Applicant subsequently alleged that he was forced by the HA and its solicitors to withdraw the claim, no application was made by the Applicant to vary or set aside the Consent Order. Indeed, from the correspondence made available to the Court (though not from the Applicant), it seems that it was the Applicant who initiated the withdrawal as a result of discussions he had had with Dr Man. He also later suggested that he found complying with the timeframe to find an expert and furnish a medical report impossible to meet, and that was the reason why he had to discontinue his claim. Neither reason is the one he has now given.

25.  In passing, I also note that the Applicant has recently applied for legal aid to commence a fresh medical negligence claim against QEH, notwithstanding his discontinuance of his earlier action. Or, possibly alternatively, an application for legal aid was made to support an application for judicial review against the HA’s “wrong decisions”.

26.  In April 2020, the Applicant informed the PCC of his discontinuance of the medical negligence action, and he requested the PCC to review his case. However, by letters dated 11 May 2020 and 16 June 2020, the PCC noted that the Applicant had lodged a complaint to the Medical Council of Hong Kong (“MCHK”) against his treating doctor, and informed the Applicant that it would not be in a position to further comment on the case in accordance with the Terms of Reference. The letters did not request the Applicant to withdraw his complaint to the MCHK.

27.  In November 2021, the Applicant again requested the PCC to review his case based on new allegations and evidence, including MRI results in 2019 and 2021. He confirmed that he had withdrawn his legal action against Dr Man and his complaint to the MCHK against Dr Man.

28.  In fact, the MCHK had previously already decided twice that the Applicant’s complaint should not proceed further, and that no disciplinary action would be held as regards Dr Man’s treatment of him. The first occasion was on 14 January 2022, when the MCHK stated that its Preliminary Investigation Committee (“PIC”) decided at meetings held on 11 January 2019, 20 May 2019 and 13 December 2019 that the case should not proceed further, and no disciplinary inquiry would be held. The second occasion was following the Applicant’s further complaint, and the PIC reopening the investigation upon receipt of new evidence, but by letter dated 16 June 2020 the Applicant was notified that at a meeting on 19 May 2020, the PIC had again decided that the case should not proceed further and that no disciplinary inquiry would be held.

29.  It is correct that the Applicant nevertheless wrote subsequently, saying that he would “withdraw” his complaint, and the MCHK wrote back to him on 4 November 2021 noting the “withdrawal” of his complaint. But, in practical terms, there was by then no complaint to withdraw.

30.  In any event, having again investigated the matter, the PCC maintained its view that the case was unsubstantiated, as indicated in its letter issued to the Applicant on 27 May 2022 (i.e. the Decision). The structure of the letter was by reference to the individual allegations made by the Applicant, which it phrased as follows:

Allegations regarding the preoperative management

Allegation 1)	During the follow-up consultation on 19 January 2016, Dr MAN failed to check the updated condition of osteochondral lesion of the talus (OLT) to confirm the clinical indication of the operation. He should have realized that your ankle pain was caused by the “high grade anterior talofibular ligament tear” instead of the OLT if he had arranged you for Magnetic Resonance Imaging (MRI).
Allegation 2)	The hand-written words regarding the surgical risk and complication of the OLT operation under item 4 in the consent form were unlawfully added/amended after you had signed.
Allegation 3)	Your request for cancellation of the OLT operation was unreasonably rejected by Dr MAN.

Allegation regarding the operation on 22 April 2016

Allegation 4)

The operation on 22 April 2016, which was supposed to remove the 0.4cm OLT, was a failure as evidenced by the finding of the MRI performed on 2 March 2019 (arranged by the Pain Clinic) which revealed an enlarged 0.5cm OLT.

Allegations regarding the postoperative management

Allegation 5)	Dr MAN failed to arrange the correct diagnostic examination, i.e. CT or MRI to look into the cause of your pain despite your complaint of persistent right ankle pain after the operation. You consider the Nuclear Scan arranged inadequate for diagnosis.
Allegation 6)	The referral letters dated 8 September 2016 and 20 April 2017 to the Pain Clinic were substandard as they did not mention about your persistent pain and the reasons for requesting an early appointment.
Allegation 7)	Dr MAN tried to conceal the surgical failure by using the finding of RSD in the Nuclear Scan report of 19 September 2017 to account for your persistent pain.
Allegation 8)	Upon review of the MRI report during the consultation on 9 April 2019, Dr MAN still refused to admit the surgical failure and failed to provide any remedial treatment to you.
Allegation 9)	The delay in providing you with appropriate examination and treatment resulted in your permanent disability.

31.  Each allegation was dealt with in some detail. Shorn of most detail (which can be read in the Decision itself), the PCC’s responses to the allegations were as follows:

(1)  Allegation 1: It was clinically unlikely that the ankle pain was caused by a “high grade anterior talofibular ligament tear” as alleged. The PCC considered QEH’s explanation justifiable and was of the view that the doctor had exercised his professional clinical judgment in arranging for appropriate examination and investigation. Given the diagnosis of OLT had been confirmed by the CT scan, and the Applicant had agreed to the operation, confirmed during two consultations in 2015 and 2016, the overall preoperative management was adequate and appropriate.

(2)  Allegation 2: QEH confirmed the consent form was signed and kept in the medical records, and no amendment was made afterwards. The PCC noted the hospital’s explanation aligned with its normal routine practice in consent seeking. There was no evidence to substantiate the Applicant’s allegation.

(3)  Allegation 3: The PCC considered its investigation findings on this allegation had been duly explained in its previous reply of 15 November 2017.

(4)  Allegation 4: QEH clarified that the operation was not supposed to remove the OLT, but rather aimed to stimulate new cartilage growth on the OLT to minimise symptoms such as pain. The absence of ankle swelling and joint effusion, together with the findings revealed in the post-operative bone scan and MRIs had in fact provided further evidence of the subsidence of the ankle inflammation after the operation.

(5)  Allegation 5: In addition to assessing the condition of the OLT, the bone scan also served the purpose of detecting other possible complications of the operation. The PCC noted that bone scan is one of the imaging options to identify bone diseases and infection, and the choice of appropriate imaging option and investigation is a professional clinical decision. In fact the bone scan showed suspicious findings of post-operative reflex sympathetic dystrophy (“RSD”), leading to the referral to the Pain Clinic for further management. The PCC considered the Applicant’s allegation unfounded.

(6)  Allegation 6: The PCC found the QEH’s explanation reasonable.

(7)  Allegations 7, 8 and 9: QEH emphasised that the clinical team never concealed the Applicant’s clinical condition. On the contrary, they had tried their best to look into the reasons, including the possibility of surgical complications, for the chronic ankle pain by arranging various investigations. In view of the detection of possible RSD, the Applicant was referred to the Pain Clinic again for management. The PCC considered the hospital’s explanation reasonable and that the overall management of the post-operative ankle pain was timely and appropriate. The PCC also noted that the two MRIs arranged by the Pain Clinic post-operatively did not suggest any structural change in the right ankle anatomy nor ankle effusion, and hence further intervention was not clinically indicated.

32.  The Decision ended with the following comments:

While fully sympathizing with you for the perplexity and distress upon your persistent pain despite treatments, PCC maintained the view that the overall clinical management rendered to you by QEH both preoperatively and postoperatively is appropriate after reviewing the further clarifications and explanations from QEH. We hope the above information can help clarify your queries and enhance your understanding of your clinical condition.

Before closing, the PCC would like to reiterate that it has fully considered your version of facts as well as all relevant information and evidence before conclusion of your case. The PCC’s investigation findings and reasons for judgment have also been duly explained to you vide this reply and its previous reply of 15 November 2017. Being the final appeal body for public complaints in HA, the PCC’s decision on your case is final within HA. Thank you for writing to us.

33.  The Applicant was plainly dissatisfied with the Decision. He subsequently complained to numerous various other persons and bodies, including the Office of the Ombudsman, the Chief Executive of the HKSAR, the Chief Secretary for Administration and the Secretary for Food and Health – as well as the CE of the HA. The Office of the Ombudsman concluded that the PCC’s handling was in line with its Terms of Reference and guidelines. The other complaints were also dismissed by the corresponding persons or bureaux.

D.  Intended Grounds of Review

34.  In his Form 86, whilst identifying the CE of the HA as the proposed respondent, the Applicant identified the intended target of the challenge as “Judicial review of wrong decisions”. This was elaborated in the following section of the Form 86, which stated:

Judicial reviews of the wrong decisions made by Hospital Authority’s Public Complaints Committee (“PCC”) on the following medical misconduct and negligence :-

1.  Ankle surgery was not required.

2.  Surgical consent form was illegally amended after the surgical failure.

3.  Used wrong scan report to conceal the surgical failure.

4.  Poor post-operative management caused me permanent disability.

5.  Forced me to withdraw the legal proceedings against QEH’s doctor.

35.  In the Attachment/Affirmation to the Form 86, the Applicant set out – broadly but not entirely by reference to those 5 points, and in tabular form – what he says were the PCC’s wrong decisions and the evidence which substantiates that the decisions were wrong. Amongst the questions apparently raised by the Applicant were: (1) why the PCC did not consider the different handwriting on the surgical consent form; (2) why the PCC did not consider the findings of MRI and Pain Specialist which confirms the OLT surgery was a failure; and (3) why the PCC justified Dr Man’s decision to use nuclear (“NM”) scan instead of CT scan post operation to scan for OLT.

36.  In the document produced by the Applicant to assist with his oral submissions at the hearing, the Applicant said that the relief sought by him was due to the decisions stated in the Decision letter having no evidential basis and being invalid. But he had reduced the number of decisions in the Decision from 9 to 4, and also withdrew his complaint against the PCC for abusing their Terms of Reference to force him to withdraw the legal proceedings and complaint to the MCHK.

37.  At the oral hearing itself, the Applicant suggested that there was no evidential basis for the matters set out in the Decision. Essentially what he was seeking was for the HA to arrange another investigation meeting with his presence so that he could give direct answers to questions put to him. The failure to do that is what has prompted this application for leave to apply for judicial review.

E.  Objections to Grant of Leave

38.  In the Initial Response, and Mr Suen’s submissions, the following points were made in opposition to the application for leave to apply for judicial review:

(1)  the Applicant has not identified or particularised any public law wrongs which he says were committed by the PCC, and has in effect sought to appeal against the merits of the Decision. Hence, there is no real prospect of success in the intended judicial review.

(2)  As regards the Applicant’s complaint that he was forced to withdraw his claim against Dr Man of QEH, that has no merit because (a) he was not forced to withdraw his claim, and (b) the matter has become academic as he is seeking legal aid to recommence the claim.

(3)  The intended challenge to the Decision is substantially out of time, and there is no explanation for the lengthy delay or justification for extending time.

(4)  There are other alternative (and more appropriate) avenues which the Applicant should have pursued, or had otherwise already pursued (albeit without success), as opposed to seeking judicial review of the Decision.

39.  Though not necessarily in that order, I will address those objections as I consider the apparent merits of the application for leave to apply for judicial review.

F.  No Public Law Grounds of Review Identified

40.  It is trite that RHC Order 53 rule 3(3) mandatorily requires an application for leave to apply for judicial review to be made in the correct form, containing a statement of (amongst other things) the relief sought and the grounds on which it is sought.

41.  The relevant grounds to be identified are the alleged public law errors which are said to have been made by the decision-maker. Judicial review does not provide a way of appealing from the decision made by the original decision-maker. Rather, in the exercise of its supervisory jurisdiction in judicial review, the Court is essentially concerned with assessing the integrity of the decision-making process – ordinarily by reference to the typical heads of judicial review, such as illegality, procedural unfairness, Wednesbury unreasonableness or irrationality.

42.  As I said in the Kwok Kwai-man case at §§20-21, judicial review is not a venue for scrutinising general complaints citizens may experience in their dealings with a public authority. The Court’s judicial review jurisdiction is only engaged when the complaints are capable of giving rise to or identifying public law wrongs. In the present context, the Court is not concerned about medical matters, the appropriateness of which could be made subject to an investigation by the MCHK or in a negligence claim.

43.  In this case, the Applicant seems to me really to be seeking to challenge the PCC’s decision on the merits of his complaint. The Form 86 specifically seeks to challenge “medical misconduct and negligence”, and alleges wrong decisions on particular matters of medical conduct/negligence. The materials produced with the Form 86 in the Attachment/Affirmation – and the further materials through which the Applicant took the Court during the oral hearing – only emphasised that fact.

44.  For example, the Applicant made his submissions on the entries on the medical consent form, and what he says is different handwriting which evidences that some parts of the form were filled in likely only after the surgical failure (on his view). Similarly, he addressed the Court on four areas which he said were relevant to the questions to whether the surgery which he underwent was required at all, including by analysis of the scans and other diagnostic materials. In his reply submissions, the Applicant sought to emphasise that the PCC’s decision should be based on his medical condition, and that he had been given no explanation on operation risks when in the ward.

45.  I mean no disrespect to the Applicant when I say that I do not think it necessary to rehearse those submissions for present purposes, in the context of this judicial review application. As already explained, the Court is not acting to conduct some form of appeal from the PCC’s assessment of the materials and arguments. Nor, again with respect, do I think it necessary to engage with the Applicant’s post-hearing correspondence about whether an NM scan is or is not a ‘bone scan’ – where the Applicant says that a CT scan and an MRI scan are bone scans but the NM scan is not, this being part of his case that Dr Man chose the incorrect scan in order to disguise the alleged surgical failure. The PCC’s Decision identifies what assistance it took from the various scans.

46.  Whether the ankle surgery was required, whether the surgical consent form was amended after the alleged surgical failure, whether the incorrect scan report was used to conceal the alleged surgical failure, and whether the post-operative management caused the Applicant permanent disability are all matters of complaint about the medical treatment received, and the conduct of the medical personnel dealing with that treatment and its aftermath. Those matters were all considered by the PCC in some detail, and the fact that the Applicant does not accept the PCC’s decision does not identify any public law grounds capable of forming the basis of the grant of leave to apply for judicial review. To put it another way, whether a surgical option should be pursued, whether the surgery has attained its treatment objectives, and whether the post-operative patient care has been sufficient are all professional issues, or private law questions, far removed from the Court’s public law supervisory role (unless the way in which the PCC dealt with them gives rise to arguable public law failures).

47.  That failure is fatal to the application.

48.  The Court is not required to sift through the materials provided by an applicant for leave to apply for judicial review, to see whether the Court can identify any possible public law grounds of review.

49.  But, in any event, I would point out that: (1) the PCC has looked at the materials more than once, including the Applicant’s version of events, and has fully explained its reasoning in reaching the view that the Applicant’s complaints are not substantiated; (2) I see no arguable procedural unfairness in the PCC process, which is a process does not require the Applicant’s subsequently requested in-person meeting with the complainant, and where the PCC addressed the specific allegations made by the Applicant; (3) the Decision is not arguably Wednesbury unreasonable or irrational.

50.  As to the last point raised in the Form 86 – relating to the alleged forced withdrawal of the personal injuries claim and the complaint to the MCHK – I concede that might be phrased as a procedural unfairness or improper fettering of discretion. But, even ignoring the fact that the Applicant has withdrawn that particular complaint, it is a complaint of absolutely no merit on the facts.

G.  Undue Delay in Application

51.  The Decision is dated 27 May 2022. However, these proceedings were not commenced until by Form 86 dated 19 July 2023.

52.  It is trite that RHC Order 53 rule 4 requires an application for leave to apply for judicial review to be made promptly, and in any event within three months. Failure to do so will amount to undue delay, and will require an extension of time from the Court if the application is to proceed. Such an extension of time will be granted only for good reason.

53.  In this case, the three-month long stop period expired on 26 August 2022. The application was not made for a further 11 months thereafter, and is obviously substantially out of time. In short, there has been undue delay.

54.  It is well-settled that in considering whether or not there is good reason to grant an extension of time for an application to apply for judicial review, the Court will consider this ‘multi-faceted’ question by reference to the likely significant factors including:

(1)  the length of the delay, where the longer the delay the more cogent the reason has to be for extending time;

(2)  the explanation for the delay;

(3)  the merits of the substantive application;

(4)  the prejudice to the parties, namely to the applicant if time is not extended and to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5)  whether the application raises questions of general public importance, and whether the questions are likely to have to be resolved by the courts in any event.

55.  Obviously, a delay of almost one year after the expiry of the long stop period within which the application should have been made is a substantial period of time. Hence, there would need to be a commensurately cogent reason for extending time.

56.  As to the explanation for the delay, the Applicant did not originally provide any such explanation. But in his Reply to the Initial Response, and in the document provided by him to assist with his oral submissions at the hearing, the Applicant has emphasised that, all along, he had no intention to “go for judicial review”, and sought to “iron out the problems” with the CE of HA, but the latter refused. The Applicant also sought the minutes of the PCC investigation meeting, but was subsequently told there were no such minutes. Then the Applicant sought assistance from other concerned parties such as a Legislative Council Member, the Secretary for Health and so forth, but in vain. After that he still requested the CE of HA to re-conduct the PCC investigation meeting with his (the Applicant’s) presence to answer the PCC’s questions and provide correct information and evidence. However, until the deadline which he set of 12 July 2023, the CE of HA still did not respond. Hence, the Applicant says he had “no choice” but to file the application for leave to apply for judicial review on 19 July 2023.

57.  With respect, I do not think that is a very good explanation for the delay. I acknowledge the Applicant’s preference not to have to commence court proceedings, and his attempts to resolve matters in another way. But, the PCC’s Terms of Reference and the Decision itself both identified that the PCC’s decision will be treated as final within the HA. Therefore, the Applicant knew, or ought to have known, that his complaint handling through the two-tier mechanism had come to a conclusion by the making of the Decision. I further acknowledge that the Applicant had persuaded the PCC to review its earlier/first decision (which also pointed out that it was final), and might have thought that he could persuade the PCC again to look at the matter. But it is trite as a matter of legal principle that a request for review of an administrative decision does not, or likely will not, restart the clock within which to make a public law challenge to that administrative decision.

58.  Where the undue delay is a period of several months, leave may be refused however strong the complaint might be. Naturally, if there are no or low merits in the complaint, a time extension will unlikely be granted, and will more likely be refused. In this case, for reasons which I have already canvassed, I think there are no identified reasonably arguable grounds of review with any realistic prospect of success. There is, therefore, no purpose in the grant of any extension of time.

59.  For the sake of completeness, I would also point out that (1) I do not think the Applicant is substantially prejudiced by the refusal of an extension of time when he has not raised an application with any merit, and he can pursue his complaints as may be appropriate in a different forum or alternative venues (as indeed he has), and (2) the facts of the present case do not raise any question of general public importance.

H.  Alleged Forced Withdrawal of Claim and Complaint

60.  As I have pointed out above, the Applicant originally suggested that he had been forced by the PCC to withdraw his negligence claim and his MCHK complaint against Dr Man. This is also one of the matters specifically put forward in the Form 86.

61.  However, in the ‘Case Background’ written materials provided in advance of the oral hearing, the Applicant said that he had withdrawn his complaint against the PCC for abusing its Terms of Reference to force him to withdraw the legal proceedings and complaint to the MCHK. Maybe this is a belated recognition that he had at the very least mistaken the effect of the Terms of Reference.

62.  In any event, it seems to me necessary or appropriate to make the following comments: (1) there is now and there always was no proper factual basis to have made such an allegation in the first place; and (2) there is real force in Mr Suen’s submissions that the Applicant was at least less than forthcoming in his provision of information to the Court about the circumstances surrounding the withdrawal of the legal proceedings and the way in which his complaint to the MCHK was twice rejected before it was “withdrawn”.

I.  Result

63.  Like the PCC, I would express some sympathy and understanding for the Applicant’s distress at his persistent pain, and his being perplexed that his complaints have not borne the expected fruit. I note his persistence in pursuing matters not just with the PCC, but with the PIC of the MCHK and many other bodies and persons.

64.  However, the Applicant has not identified any reasonably arguable public law grounds of intended review with any realistic prospect of success. Further, the application was brought only after substantial undue delay, where I see no good reason to extend time.

65.  It can also be pointed out that Dr Ko, who had no involvement in the PCC’s Decision, was plainly inappropriately named as putative respondent. If Dr Ko was named because he failed or refused to procure a new PCC consideration upon the Applicant’s request by the deadline set by the Applicant, there has been no attempt to identify any public law error in that regard. In any event, where the PCC’s decision is final in the tow-tier process applicable to such a complaint, there can be no error in the CE of the HA treating it accordingly.

66.  As a result, the application for leave to apply for judicial review is dismissed.

J.  Costs

67.  As to costs, Mr Suen has invited to make a costs order against the Applicant on the basis that: (1) the putative respondent has provided substantial assistance to the Court in determining the leave application; (2) the application was made out of time, hence warranting a costs order if the extension of time is refused; (3) the Applicant has failed to make full and frank disclosure to the Court; and (4) the Applicant has abused the judicial process by pursuing his own ulterior motive in the guise of judicial review.

68.  In response, the Applicant has submitted that: (1) it goes too far to suggest that the putative respondent has provided substantial assistance to the Court; (2) he has explained why the leave application was issued out of time, and that was not an abuse of process; (3) the allegation of failing to make full and frank disclosure is “a bit childish”, but the matters alleged not to have been disclosed were essentially irrelevant to the leave application; and (4) he could not possibly afford to pay the HA’s “expensive” solicitors fees, and he is also required to take painkillers daily for the rest of his life, may need a wheelchair, and the medical negligence claim is very important to him.

69.  I have considered these matters in the exercise of my broad discretion as to costs. Whilst I see some considerable force in Mr Suen’s submissions, I am ultimately persuaded that the right thing to do in all the circumstances is to make no order as to costs.