CHENG SHU KI v. NURSING COUNCIL OF HONG KONG

HCAL 54/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 54 OF 2005

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J U D G M E N T

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1.  The application is set out in the amended form 86A.

2.  The proposed challenge is confined to a very narrow point, i.e. that it was wrong for the Nursing Council to refuse to assess the qualifications of the Applicant under regulation 11(b) of the Nurses (Registration and Disciplinary Procedure) Regulations (Cap. 164), before any recognised training school – as mentioned in regulation 9 of the same Regulations – had agreed to admit him to any course of training.

3.  The Nursing Council took the view that unless a nursing school recognised under regulation 9 had agreed to admit the Applicant to a course of training, there was no question of the Council’s assessing the Applicant’s qualifications for receiving the training, pursuant to regulation 11(b) of the Regulations.

4.  Mr Kwok, on behalf of the Applicant has argued that that decision of the Nursing Council was both unlawful and irrational.

5.  I bear firmly in mind the threshold test that a court must apply at this stage of application for leave.

6.  Taking the irrationality point first.  I do not agree with counsel’s argument that by deferring the assessment of the qualifications of the Applicant to after his admission by a recognised nursing school to a training course organised by that school, the Council has effectively frustrated the qualification route provided by regulation 11(b).

7.  Counsel argued that given the lack of a decision by the Council on an applicant’s qualifications under regulation 11(b), no recognised nursing school, when considering the applicant’s application for admission, would bother to admit that applicant to the course because the school would not know whether that applicant’s qualifications would eventually be accepted by the Council.

8.  In effect, so counsel argued, that would make the school accept only applicants with the prescribed qualifications falling within regulation 11(a).

9.  I would not say that that is not a possibility, but there are or there could be many other possibilities.  I fail to see why a nursing school, when faced with an application by an applicant, whose qualifications in its view would probably be found by the Council to be satisfactory pursuant to regulation 11(b), should not, or would not accept that applicant’s application on a provisional basis first, leaving it to the Council to decide ultimately whether that applicant’s qualifications are satisfactory under regulation 11(b).

10.  Put another way, in that scenario, the nursing school would be performing a sort of screening test first, leaving the ultimate decision, in terms of regulation 11(b), to the Council.

11.  For these reasons I do not think counsel’s argument, even upon further investigation, would be arguable in terms of the rationality or irrationality of the decision of the Council.

12.  So far as the challenge is based on the alleged unlawfulness of the decision is concerned, and insofar as it overlaps with the first ground that I have just dealt with, this second ground is a non-starter. 

13.  Furthermore, regulation 11(b) says that no person shall be eligible to commence any course of training unless he satisfies the Council that by reason of his training and so forth, he is a suitable person to commence a course of training under the Regulations.

14.  Regulation 11(b) talks about “commencing” a course of training.  That would suggest that the applicant has already been accepted by a recognised training school to undergo the course of training and is due to commence the course of training, subject to his satisfying the Council about his qualifications under regulation 11(b).

15.  In my view, as a matter of construction of the Regulations, and in particular regulations 9 and 11, I do not find it arguable that the Council must conduct an assessment of a person’s qualifications under regulation 11(b) before he has been accepted by a recognised nursing school to undergo a course of training.

16.  In other words, even upon further investigation, I do not think the argument based on unlawfulness would be arguable at all.

17.  So despite counsel’s efforts, I am unable to give leave to mount the intended judicial review application on the grounds and for the relief presently set out in the amended form 86A.

18.  Those are my reasons in relation to the present grounds.  But as must have been apparent from the discussion between Bench and Bar, I am minded to give leave for a challenge directed against the relevant nursing school (which was originally joined as a party in the form 86A prior to the amendment), in relation to its admission criteria and/or rejection of the Applicant’s application on the ground of a possible misreading or disregard of regulation 11(b).

19.  I find such a challenge to be arguable in terms of the threshold test.  Any procedural difficulty in relation to timing could be overcome by launching a fresh application for judicial review and an application for an extension of time, which would be a matter of mere technicality.  In other words, such a challenge could be incorporated into the present application by way of an amendment and/or by the launching of a fresh application.

20.  In relation to parties, apart from the recognised nursing school in question, the challenge would go to the proper interpretation of regulation 11(b), which directly concerns the Council.  As the Council is the body which has to be satisfied with an applicant’s qualifications under that regulation, it is obviously interested, or would obviously be interested in the result of such a challenge.  This is particularly so when the Council has in correspondence expressed a view, which may or may not have been definitive or final, regarding the interpretation of regulation 11(b) and which is quite contrary to the position advanced by the Applicant and will be advanced by the Applicant in the forthcoming challenge.

21.  So for those reasons, in the challenge that will come, I think the Nursing Council should also be made a respondent.  Of course, it is always open to the Council to say that it does not want to take part in the proceedings and it is agreeable to abide by the result of that challenge.  In that case, the Council need not take any further part in the proceedings.

22.  So all I would order, for the time being, is that leave to apply for judicial review on the grounds set out in the amended form 86A be refused with no order as to costs, but without prejudice to any application to further amend the amended form 86A and/or to launch a fresh application for judicial review along the lines that I have indicated.  When I receive the re-amended form 86A, or a new form 86A, I will deal with it accordingly.  The matter should come back to me.  I may or may not require a further oral hearing. 

23.  There will be legal aid taxation of the Applicant’s own costs.