KWONG WING KIE v. LICENTIATE COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

HCAL 121/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 121 OF 2012

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J U D G M E N T

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Background

1. Mr Kwong (“Kwong”) is a graduate of a 6-year undergraduate programme in clinical medicine offered by the Jinan University, which programme he was able to complete in about 4 years due to exceptions granted by the University.  He is currently registered and licensed to practise as a medical practitioner in Macau.  He took the Licensing Examination (“Examination”) set by the Medical Council of Hong Kong (“Council”), the 2^nd respondent named in these proceedings, in 2007, 2008 and 2009.  He passed Part II of the Examination in 2007, but failed Part I. 

2. In April 2011, Kwong applied to the Council to sit again for Part I of the Examination in 2011 (“Application”).  On 4 August 2011, the Credentials Sub-committee (“Credentials”) of the Council’s Licentiate Committee (“Licentiate”) informed Kwong that his application was refused, on the basis that as Kwong had not completed 5 years full time medical training of a type approved by the Council according to s 7A of the Medical Registration Ordinance, Cap 161 (“Ordinance”), he was not eligible to take the Examination.

3. S7A (1) of the Ordinance provides as follows;

“No person shall be eligible to take the Licensing Examination unless:-

…

(b) he satisfies the Council-

(i) that at the time of the application he has satisfactorily completed not less than 5 years full time medical training of a type approved by the Council and is the holder of a medical qualification acceptable to the Council…”

4. Kwong applied to the Review Sub-committee (“Review”) for a review of Credentials’ decision.  On 23 August 2011, Review informed Kwong that it decided to uphold the decision of Credentials.  Review agreed that the period of medical training Kwok had received at the Jinan University fell short of the 5 years full time medical training required under s 7A of the Ordinance.

5. Not satisfied with Review’s decision, Kwong appealed to Licentiate pursuant to s 20G (3) of the Ordinance.  A hearing of the appeal took place on 8 November 2011, pursuant to the procedure set out in s 43 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (“Regulation”).  On 19 June 2012, Licentiate informed Kwong of its decision to uphold Review’s decision and to dismiss Kwok’s appeal.

6. Kwong obtained leave on 3 October 2012 to apply for judicial review in respect of the decisions of Credentials, Review, and Licentiate.  Kwong claims that in making their decisions, Credentials, Review and Licentiate had:

(1) abused their power and failed to follow their past practice of permitting Kwong to sit for the Examination in 2007 to 2009, which gave rise to a legitimate expectation by Kwong that he would be permitted to sit for the Examination in 2011;

(2) failed to take into account relevant considerations;

(3) (in respect of Licentiate only) breached its duty to make sufficient inquiry;

(4) failed to act fairly;

(5) been irrational and unreasonable;

(6) (in respect of Review only) failed to give reasons for its decision; and

(7) (in respect of Licentiate only) been affected by apparent bias.

The pertinent decision

7. As Au J found in Ko Siu Luen v Appeal Tribunal (Buildings) [2012] 1 HKLRD 149, in the context of an appeal under s 50 (1) of the Buildings Ordinance, an appeal before the tribunal is a de novo hearing on the merits, when the tribunal exercises its discretion afresh and independently, in the light of all the evidence presented and the submissions made before the tribunal on the appeal. 

8. The appeal regime under s 20G (3) of the Ordinance and s 43 of the Regulation made under the Ordinance is similar to that under ss 44 and 50 (1) of the Buildings Ordinance.  Under s 43 (14) of the Regulation, Licentiate may, at the hearing of an appeal, admit or take into account any statement, document, information or matter.  Under s 20G (4), on the hearing of an appeal against a decision of Review, Licentiate may “confirm, vary or revoke the decision” of Review.

9. The decision of Licentiate on an appeal under s 20G (4) is likewise a fresh exercise of discretion de novo, and if its decision is unimpeachable, I agree with Counsel for Licentiate and the Council, that the earlier decisions of Credentials and Review and whether they are susceptible to challenge on judicial review would not be relevant.  The same grounds are relied upon in respect of the challenge to the decisions of Credentials, Review and Licentiate, save that for Review’s decision, Kwong claims that it had failed to give reasons.  In respect of that ground, there is no basis for the challenge, since Review had stated in its decision that it upheld Credentials’ decision, the reason being that it (Review) agreed with the reasons for rejection given by Credentials to Kwong dated 4 August 2011.  Kwong does not complain that Credentials had failed to give reasons for its decision.

10. The rest of my judgment will accordingly focus on Kwong’s challenge of Licentiate’s decision of 13 June 2012 (“Decision”).

The legitimate expectation ground

11. Kwong claims that in around 2002, before he started his course at the Jinan University, he had made inquiries with the Council on the telephone as to whether the Council accepted “a 4-year medical degree in the USA”.  According to Kwong, an unnamed representative of the Council informed him on the telephone that “the entire university education would be considered as a whole, including any pre-medical education” (“Representation”). In reliance on the Representation, Kwong claims that he enrolled at the Jinan University and completed his clinical medicine program there in less than 5 years.  It is Kwong’s case (paragraph 36 (3) of the Grounds) for judicial review set out in Form 86 (“Ground”) that the Representation gives rise to a legitimate expectation on his part, that he would be allowed to take the Examination even if he should complete his 6 year degree at Jinan University in less than 5 years, because his pre-medical education training would also be taken into account and be considered by the Council, when deciding his eligibility for taking the Examination under s 7A.

12. On Kwong’s case, his own education background is similar to that of the pre-medical education in the USA (paragraph 6 of the Grounds), where the study of medicine generally begins after the completion of a 4-year undergraduate study, which includes certain pre-medical education requirements.  He had several degrees, including:

(1) a full time Bachelor of Science degree in civil engineering from the University of Hong Kong in 1976;

(2) an external Bachelor of Science degree in physics and mathematics from the University of London in 1976;

(3) a part-time Master of Science degree in engineering from the University of Hong Kong in 1983;

(4) a part-time Master of Business Administration degree from the Chinese University of Hong Kong in 1984;

(5) 2 part-time certificates in medical science from the University of Hong Kong SPACE;

(6) a part-time diploma in Traditional Chinese medicine from the University of Hong Kong SPACE;

(7) a Bachelor of Chinese medicine degree from the Cheng Du University of Traditional Chinese Medicine in 2000; and

(8) a doctorate degree in Chinese medicine from the Guangzhou University of Traditional Chinese Medicine in 2003. 

13. Because of the courses Kwong had taken in the Guangzhou University of Traditional Chinese Medicine (“Guangzhou University”) and other universities, he was granted exemptions from taking certain courses at the Jinan University.  As a result, Kwong was able to complete his 6 year degree at the Jinan University in less than 5 years, from September 2003 to June 2007.  The period from 2003 to 2007 included a period of 12 months internship.

14. Kwong further claims that from 2007 until 2009, the Council and Licentiate had accepted his application to take the Examination (“Practice”), and that such Practice has given rise to his legitimate expectation that he would continue to be allowed to take the Examination in 2011 (paragraph 38 of the Grounds).  It was also argued that the Practice gave rise to Kwong’s legitimate expectation of his having satisfied the Council of the requirement of 5 years’ full time medical training, so as to be eligible to sit for the Examination.

15. Kwong claims (paragraph 33 (1) of the Grounds) that in making its decision to dismiss his appeal, Licentiate “had abused its power by breaching the Representation which had given rise to (Kwong’s) legitimate expectation”.

The Representation

16. First, in relation to the arguments based on the Representation, I agree with Counsel for the respondents that the Representation has not been shown to have been preceded by Kwong’s full disclosure.  In R v IRC, ex p MFK Underwriting Agents Limited [1990] 1 WLR 1545 (at p 1569), the court highlighted such a duty of disclosure (in the context of a person seeking tax clearance from the authorities and claiming legitimate expectation as a result of assurances given by the authority):

“First, it is necessary that the taxpayer should have put all his cards raised upwards on the table. This means that he must give full details of the specific transaction on which he seeks the revenue’s ruling, unless it is the same as an earlier transaction on which a ruling has already been given. It means that he must indicate to the revenue the ruling sought. … It means that the taxpayer must make claim that a fully considered ruling is sought. It means, I think, that the taxpayer should indicate the use he intends to make of any ruling given.”

17. Kwong has given scanty details of the inquiry he had made with the Council: to whom he had spoken, whether he had identified himself and disclosed the purpose of his inquiry, and that he had intended to enroll at the Jinan University, and to take the Examination on the basis of the course at the Jinan University (with or without exemptions by virtue of his course at the Guangzhou University).  This falls far short of the extent of the duty of disclosure required from him.

18. More significantly, and as Counsel for the respondents highlighted, the lawfulness of a decision of a public authority can only be judged according to the facts known or made available to the public authority at the time of its decision (Kinco Investment Holdings Ltd v Commissioner of Inland Revenue HCAL 91/2009, 20 September 2010, para 31, following Interasia Bag Manufacturers Limited v CIR [2004] 3 HKLRD 881, para 71).  An authority cannot be judged by reference to information which only came into being, or became available, sometime after its decision.

19. Even if Kwong’s case on the Representation is to be accepted: ie that he had made the inquiry with the unidentified staff of the Council in 2002, that the member of staff had indeed made the Representation as Kwong claims, and that the unidentified member of staff had the authority to make the Representation on behalf of the Council, Kwong had never (before these judicial review proceedings) notified the Council or any of its committees of the fact that the Representation had been made to him.  Since it cannot even be established that the Council and its committees were aware that the Representation had been made to Kwong, there is no basis to complain that Licentiate, Credentials and/or Review had acted unreasonably, unfairly, or had abused their position, by failing to give regard to the Representation -  which had never been made known to them.

20. The above considerations, in my view, sufficiently dispose of Kwong’s complaint in respect of any legitimate expectation arising from the alleged Representation.

21. In any event, it is clear from the authorities that a representation must be clear and unambiguous before it can establish a legitimate expectation, and further, the expectation must be reasonable.  In Ng Siu Tung and Others v The Director of Immigration [2002] 1 HKLRD 561, the Court of Final Appeal explained (at paragraph 92 of the judgment):

“The law recognizes that, in the absence of an overriding reason of law or policy excluding its operation, situations may arise in which persons may have a legitimate expectation of a substantive outcome or benefit, in which event failing to honour the expectation may, in particular circumstances, result in such unfairness to individuals as to amount to an abuse of power justifying intervention by the court. Generally speaking, a legitimate expectation arises as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority.”

22. In paragraph 101 of its judgment in Ng Siu Tung, the Court of Final Appeal further observed , as follows:

“In making out a case for relief in accordance with the principle stated above, the applicants must first establish the existence of a legitimate expectation on their part. Though the concept of “legitimate expectation” is somewhat lacking in precision, it is now firmly established that to be legitimate, the expectation must be reasonable (A-G of Hong Kong v Ng Yuen Shiu [1983] AC 629 at 636, per Lord Fraser of Tullybelton), that is, reasonable in the light of the official conduct which is said to have given rise to the expectation. Whether an expectation is legitimate in this sense depends, at least in part, upon the conduct of the relevant public authority and what it has committed to. Whether an expectation is legitimate, and to what extent, must also depend upon what the applicants are entitled to expect. The requirement of legitimacy means that judicial decisions must be founded not only on what the claimant factually expected, but also on what the claimant, bearing in mind any relevant considerations of policy and principle, was entitled to expect. … It follows that, to the extent that an expectation of a benefit which cannot legally be accorded, it is not a legitimate expectation…”

23. In R v North and East Devon HA, Ex p Coughlan [2001] QB 213, the English Court of Appeal explained the court’s role in the context of legitimate expectation, as follows :

“What is still the subject of some controversy is the court’s role when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public party wishes to treat him or her in a different way. Here the starting point has to ask what in the circumstances the member of the public could legitimately expect. In the words of Lord Scarman in In re Findlay [1985] AC 318, 338, “But what was their legitimate expectation?” Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.”

24. In deciding what, if any, legitimate expectation can arise from the alleged Representation made, the terms of the Representation made, and the circumstances in which the Representation was made have to be borne in mind.  The Representation was made in response to Kwong’s alleged inquiry in relation to a “4-year medical degree in the USA”, and cannot be taken to have effect in relation to the degree offered by Jinan University on the Mainland, or generally to all other medical degrees.  On a contextual analysis, the Representation only meant that each application to sit for the Examination and each case of eligibility would be considered on its merits, taking into account the entire university education of the applicant, including any “pre-medical education” the applicant may have received.  It cannot be elevated to a broad, or unqualified, representation that any applicant who has a 4-year medical degree, or who had received any form of pre-medical education, would be eligible to sit for the Examination.

25. Read in its proper context, the Representation cannot in my view give rise to any reasonable expectation by Kwong that he would be allowed to take the Examination even if he should complete his 6 year degree in Clinical Medicine at Jinan University in less than 5 years, simply because his “pre-medical education training” would be taken into account when his eligibility to sit for the Examination is considered under s 7A of the Ordinance.  Each case must be determined on its merits, taking into account the entire university education and training received by the applicant.  That must be the only and reasonable meaning that can be attached to the Representation. To expect otherwise is in my view unreasonable.  Kwong may expect his entire university education and pre-medical training to be considered, but it would be unreasonable to expect that because he had received pre-medical education, he must be eligible to sit for the Examination, irrespective of the nature, content and period of his pre-medical education or training.

26. For all the above reasons, I reject Kwong’s case of legitimate expectation on the basis of the Representation.

The Practice

27. I accept that an application to take the Examination has to be made annually, for leave or approval of the Council to be given to the applicant to sit for the Examination in the particular year.  This is apparent from the application form filed by Kwong for the Examination in 2011, which states that application is made “for sitting the following part (s) of the Licensing Examination in 2011”.  It is relevant to bear in mind, as the respondents have urged the court to do, that an application has to be filed each year for the Examination, and that the approval or grant of the application for one year does not dispense with an application being made to take the Examination in the following year.  That may be necessitated by the fact that the applicant had failed to pass the Examination the preceding year, or the applicant may wish to take another part of the Examination in the following year. 

28. Nevertheless, Kwong’s application to sit for the Examination in 2007, 2008 and 2009 had all been approved and he had been permitted to take these Examinations in those years, on the basis of his background, degree and training, which had not altered when Kwong made his application in 2011.  There has been no suggestion that in 2011, there has been any change, either in the Council’s policy, or in Kwong’s education, qualification, degree or period of training.  I accept that the Council’s Practice of permitting Kwong to sit for the Examinations from 2007 to 2009 can constitute an implied representation, which can give rise to an expectation on Kwong’s part.

29. It is Kwong’s claim that the legitimate expectation that arises is that he would continue to be allowed to take the Examination in 2011, or that he has satisfied the requirement of 5 years’ full-time medical training and is eligible to sit for the Examination.  The issue is whether these expectations can be said to be legitimate expectations arising from the Practice.  As the Court of Final Appeal highlighted in Ng Siu Tung, there is the distinction between what a claimant factually expected and what he was entitled reasonably to expect, depending on the official conduct of the authority which is said to have given rise to the expectation.  In deciding what legitimate expectation can arise, the court examines the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion (R v North and East Devon HA v Coughlan [2001] QB 213).

30. In this context, it is important to bear in mind the power and duties of the Council under the Ordinance.

31. One of the main functions and duties of the Council (and the committees delegated with the exercise of the Council’s powers) under the Ordinance is to determine, control and assess the standards to be attained in order for persons to be registered under the Ordinance, and to practise in Hong Kong, as medical practitioners.  This the Council does by exercising its powers under the Ordinance to set the degrees required to be obtained, the Examination required to be passed, the training and experience required to be possessed, and the assessment required to be completed by a candidate, before the candidate can be considered by the Council to be qualified for registration under the Ordinance.  These are important duties and powers, which affect the personal safety, health, and well-being of the community at large - and not just the right or ability of any given individual to work and practise as a medical practitioner in Hong Kong.  Pursuant to these powers, the Council has to be satisfied, under s 7A of the Ordinance, that an applicant has completed not less than 5 years of full-time medical training of the type approved by the Council, and is the holder of a medical qualification acceptable to the Council, before it can permit the candidate to take the Examination.  A candidate who passes the Examination, and who completes a period of assessment to the satisfaction of the Council, is then qualified to be registered as a medical practitioner under the Ordinance.

32. It may be convenient to summarize here the reason for the rejection of Kwong’s application to take the Examination in 2011. As Credentials, Review and Licentiate explained in their respective decisions, they were not satisfied that Kwong had completed medical training for a period of not less than 5 years of a type approved by the Council, and as prescribed under s 7A of the Ordinance.  Counsel for the respondents clarified that it is not in dispute that the medical training offered by Jinan University is of a type approved by the Council.  The respondents further explained that although the Clinical Medicine program of Jinan University was a 6-year programme, Kwong received training under the programme from September 2003 to June 2007 only.  He did not attend the 1^st semester of the academic year of 2006 to 2007, and accordingly had only received 3 ½ academic years of medical training at Jinan University, which fell short of the “not less than 5 years” period of full-time medical training required under s 7A. 

33. Kwong sought to rely on his training in traditional Chinese medicine at the Guangzhou University, which was recognized by the Jinan University (and which enabled Kwong to obtain credit from the Jinan University), to make up for the shortfall in the period of training required under s7A.  However, Licentiate pointed out in its Decision that training in Chinese medicine is entirely different from training in Western medicine, which is the type approved by the Council under the Ordinance, and that the training in Chinese medicine at the Guangzhou University on which Kwong relies was neither provided by a medical school, nor in the context of a medical training programme, which is considered by the Council to be acceptable.

34. I also bear in mind that on Kwong’s own case, he had been informed by the Council and knew that the entire university education of an applicant would be considered by the Council as a whole, in determining a candidate’s eligibility to take the Examination.

35. In the context of this case, and having considered all the matters referred to in the preceding paragraphs under this heading, I would be prepared to accept that the Practice gives rise to Kwong’s reasonable expectation that his application to take the Examination in 2011 would most likely be accepted by the Council, on the basis of the same degree, qualification and training which had formed the basis of his application to take the Examination in 2007 to 2009.  The Practice cannot, in my view, constitute any clear and unambiguous representation that Kwong would, as of right, be entitled to take the Examination in 2011, or that he could reasonably expect that his application to sit for the Examination in 2011 would inevitably be granted.  The fact that an application has to be made, and has to be made on an annual basis, cannot reasonably suggest to anyone that such an application would only be a matter of formality, and must be granted. 

36. As the court endeavoured to make clear in R v Shropshire County Council, ex p Jones (1996) 95 LGR 391 (at p 399), following R Jockey Club, ex parte RAM Racecourses Limited [1993] 2 All ER 225, even an assurance that an award was “99% certain” would not give rise to a clear and unambiguous assurance to constitute a binding commitment.

37. Put in another way, by virtue of the Practice, Kwong could only legitimately expect that the Council (and its committees) would bear in mind its previous Practice of having accepted Kwong’s application to take the Examinations in 2007 to 2009, giving it due weight, before deciding whether to accept Kwong’s application to take the Examination in 2011 on the basis of his same qualifications, degree and training.

Any breach or frustration of Kwong’s legitimate expectation?

38. Having thus come to my conclusion on the meaning and effect of the Practice, or any representation arising therefrom, can Licentiate’s Decision be impeached by any failure to give effect to the Practice? 

39. To the extent that the Practice gives rise to the expectation that the Council and Licentiate is required to bear in mind and give weight to the fact that they had allowed Kwong to take the Examination in the previous years by virtue of his degree, qualification and training, I do not consider that Licentiate’s Decision not to allow Kwong to take the Examination in 2011 is so irrational or outrageous, that no sensible person who had applied his mind to the question to be decided could have arrived at it, in the Wednesbury unreasonable sense.

40. In its Decision, which was sent to Kwong under cover of Licentiate’s letter of 19 June 2012, the Temporary Chairman of Licentiate had referred to the fact that Kwong had been given approval before to take the Examination.  The Temporary Chairman explained that applications are specifically for taking the Examination held in that year, that approval is only given for the Examination held in that year and lapses after the Examination, that each applicant must apply again for taking the Examination in a subsequent year, and that the application must be assessed afresh in accordance with the eligibility criteria.  The Temporary Chairman concluded :-

“If it is found that an applicant does not satisfy the eligibility criteria, the application must be refused despite the fact that he/she was given approval previously.

We are now concerned with the present application, not the previous applications.  The application must be considered in accordance with the eligibility criteria laid down in (the Ordinance).  Although the Appellant’s applications to take previous examinations were approved, the previous approval cannot change the fact that in law he is not eligible for taking the Licensing examination.  This was pointed out specifically by the Credentials Sub-committee when it notified the Appellant of its rejection of his application.”

41. Licentiate did therefore take into account the approval given to Kwong to take the Examination in the previous years, but decided that on their construction of the eligibility requirements set out in s 7A of the Ordinance, Kwong was not eligible to take the Examination.  Obviously, Licentiate considered that the requirements set out in s 7A were the overriding factors which called for their Decision.

42. The Temporary Chairman made the following points in the Decision:

(1) there is no provision in the Ordinance for exemption from any of the criteria set out in s 7A;

(2) the relevant criteria under s 7A are the satisfactory completion of not less than 5 years full-time medical training of the type approved by the Council, which includes a period of internship as approved by the Council (“Training Criteria”); and the holding of a medical qualification acceptable to the Council (“Qualification Criteria”);

(3) if Kwong does not satisfy all the criteria, he is in law not allowed to take the Examination;

(4) if Kwong satisfies the Qualification Criteria but not the Training Criteria, he is not eligible to take the Examination;

(5) the fact that Kwong holds a medical qualification which is usually conferred after 6 years of training does not mean that he has actually undergone 6 years of training, and if the duration of training is shortened to less than 5 years, he does not satisfy the Training Criteria.

43. The Temporary Chairman emphasized in paragraphs 10 of the Decision that Kwong’s prior training in traditional Chinese medicine is different from training in Western medicine, was not provided by a medical school, and is not medical training, let alone medical training of a type of training approved by the Council under the Ordinance.

44. I agree that on construction of s 7A of the Ordinance, eligibility for taking the Examination has to be established by: (1) the applicant’s satisfactory completion of not less than 5 years full time medical training; (2) the medical training being of a type approved by the Council; (3) the applicant being the holder of a medical qualification acceptable to the Council; and (4) the applicant satisfying the Council that he is of good character.  The 5 years full time medical training under s 7A of the Ordinance must not only be of a type approved by the Council, but must also include a period of internship as approved by the Council (s 7A (2)).

45. Counsel for the respondents accepts that “medical training” is not defined in the Ordinance itself.  Nevertheless, it is indisputable that such medical training must be of a type approved by the Council, and for the purposes of the Ordinance and in particular s 7A, the Council only approves training in Western medicine - and not training in Chinese medicine.  Training in Chinese medicine is governed separately by the Chinese Medicine Ordinance, Cap 549.  The Council is required under s 7 of the Ordinance to set the Examination, the passing of which shows the achievement of a standard acceptable for registration as a medical practitioner under the Ordinance.  The Examination is for the ultimate purpose of assessing the qualification, standard and suitability of a candidate being registered as a medical practitioner practicing Western medicine under the Ordinance.

46. Since the Council and Licentiate are entitled to reject the period of Kwong’s training in Chinese medicine, as training which is not of a type approved by the Council, Licentiate’s Decision that Kwong had not completed the 5 years full-time medical training, and hence was not eligible under s 7A to sit for the Examination, is justifiable, and certainly cannot be said to be illogical or irrational.  The fact that Jinan University is satisfied with the Chinese medicine training offered at Guangzhou University, so as to accept a transfer of credits from Guangzhou University for the purposes of granting exemptions to Kwong, does not mean and cannot mean that the Council must also accept such training for its purposes and for the purposes of s 7A.

47. In Ng Siu Tung and Others v The Director of Immigration, the Court of Final Appeal observed in its judgment, at paragraph 112:

“The Director of Immigration submits that the applicants’ expectation is not legitimate or that it cannot be substantively enforced because substantive enforcement would be contrary to law. The principle that the court will not give effect to a legitimate expectation where to do so would involve the decision-maker acting contrary to law is fundamental (A-G of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 at p 638; R v North and East Devon Health Authority, ex p Coughlan [2000] 2 WLR 622 at pp 647, 651, 656; R v Secretary of State for Education and Employment, ex p B (A Minor) [2000] 1 WLR 1115 at p 1125, 1132). Consistently with this principle, the decision-maker cannot give effect to an expectation by exercising his statutory discretion “in a way which undermines the statutory purpose” (R v Secretary of State for Education and Employment, ex p B (A Minor) at p 1132, per Sedley LJ).”

48. In A-G of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, the Judicial Committee of the Privy Council held that where a public authority charged with the duty of making a decision promised to follow a certain procedure before reaching that decision, good administration required that it should act by implementing the promise, provided the implementation did not conflict with the authority’s statutory duty. 

49. I agree that in this case, to give effect to any expectation, as alleged by Kwong, that an applicant with less than 5 years full time medical training of the type approved by the Council should be permitted to take the Examination, would be contrary to the express provisions and requirements of s 7A of the Ordinance.  Hence, I consider that it is neither unreasonable or irrational, nor is it unfair to amount to an abuse of power, for Licentiate to decide that, notwithstanding the fact that Kwong had erroneously (in its opinion) been permitted to take the Examination in the past, as Kwong had not completed 5 years full time medical training of the type approved by the Council under the Ordinance, he was not eligible to take the Examination.  The Council is tasked with setting the Examination to assess candidates’ standards and qualification to be a registered practitioner of Western medicine, and has to be satisfied, under s 7A, of a candidate’s completion of a prescribed number of years of full-time medical training in Western medicine.  The Council and Licentiate would not be properly discharging their duties and powers under the Ordinance, and it would not be a proper exercise of any discretion the Council and Licentiate may have under s 7A, to simply give effect to Kwong’s expectation, and permit him to sit the Examination.

50. Taking into consideration and weighing: the objectives of the Ordinance; the Council’s functions and powers under the Ordinance; the nature of Kwong’s right, benefit and interests (to take the Examination which may lead to his ultimately being registered and practising as a medical practitioner under the Ordinance); and the nature and effect of the Representation and the Practice; I come to the view that the departure from any legitimate expectation which may arise from the Practice is adequately justified, and is not so outrageously unfair to Kwong as to amount to an abuse of power (Preston v IRC [1985] STC 282, R v IRC, ex parte Unilever plc [1996] STC 681).  As the court emphasized in R v IRC, ex parte Unilever plc, the threshold of public law irrationality is notoriously high, and I am not satisfied in the circumstances of this case that the threshold is met.

The failure to take into account ground

51. I have already dealt with, under the 1^st ground, Kwong’s complaint that in reaching its Decision, Licentiate had failed to take into account his legitimate expectation.  Licentiate had already considered the Practice and the fact that Kwong had been permitted to take the Examinations in 2007 to 2009. 

52. Licentiate had also considered the fact that Kwong had obtained his degree at the Jinan University, his other University degrees and qualifications, and his pre-medical education, including his degree and training from the Guangzhou University.  Licentiate considered that notwithstanding such education and training, Kwong had not completed not less than 5 years full time medical training of the type approved by the Council, as he had failed to complete his 6 years medical training with Jinan University, and his training at the Guangzhou University was not recognized as training provided by a medical school, in the context of a medical training program, nor medical training of a type approved by the Council.

53. In the Decision, the Temporary Chairman of Licentiate referred to Kwong’s appeal on the basis of his having obtained undergraduate and graduate qualifications before he commenced medical training with Jinan University, and on the basis that Kwong’s medical training was considered to be similar to the 4 years medical curricula of American and Canadian and some British universities.  The Temporary Chairman explained that Kwong’s holding of a medical qualification which is usually conferred after 6 years of training does not mean that he has actually undergone 6 years of training.  The Temporary Chairman further pointed out that although Kwong had argued that the shortfall in the duration of his training was made up by his prior training in traditional Chinese medicine, Licentiate disagreed, as it considered that training in Chinese medicine is entirely different from training in Weston medicine.  It was not training which was provided by a medical school, nor in the context of a medical training program, and not of a type of medical training which was approved by the Council.

54. It is clear that in reaching its Decision, Licentiate had taken into account Kwong’s entire university education and his pre-medical education, but rejected it as training not of a type which was approved by the Council.  Kwong complains that Licentiate had failed to take into account his pre-medical education and degrees other than his degree and courses at the Guangzhou University.  In view of the grounds of the Decision, such degrees and training which Kwong had obtained would not constitute training in Western medicine of a type approved by the Council, and would not be relevant and material considerations such as to affect the Decision.

55. There may be applicants who had received their medical education in overseas universities, or at Jinan University, or at the universities in Hong Kong, and had been allowed to take the Examination - “notwithstanding that their medical degrees are less than 5 years”, as Kwong claims.  These applicants may nevertheless have completed not less than 5 years of full-time medical training, of a type approved by the Council, so as to be eligible under s 7A to take the Examination.  The Temporary Chairman pointed out in the Decision that medical training includes both teaching and internship, and completion of a medical curriculum followed by internship, lasting a total period of 5 years or more world satisfy the Training Criteria, provided both are on full-time basis and approved by the Council.  As the Chairman also explained in his affirmation, the Council considers each application on its individual merits, giving regard to the medical training received by the applicant, which includes postgraduate training and clinical training in the form of internship and residency.

56. The fact of there being applicants from other universities with different degrees, different periods and contents of training are all irrelevant to the fact that Kwong’s training fell short of the criteria under s 7A.  Kwong and these other applicants are simply not in the same or equal position, such that the Decision regarding Kwong on the merits of his own case is unfair, in that he has been treated differently to others in the same position ( see R (on the application of British Sky Broadcasting Group plc v Customs & Excise Commissioners).

The failure to act fairly ground

57. As explained in the preceding paragraph, it has not been shown by Kwong that the Council has treated him differently to others in his same position or situation.  There is no evidence that any applicant who held degrees from Jinan University or other universities, and who had undergone less than 5 years of full-time medical training of the type approved by the Council, has been permitted to take the Examination.  It is mere speculation on Kwong’s part, without knowledge, information or evidence as to the type and period of training other candidates had relied upon.

Breach of duty of sufficient inquiry ground

58. Kwong complains that Licentiate had failed, despite his request, to seek submissions and witnesses from Review on:

(1) the basis on which Credentials did not accept Kwong’s training in Guangzhou University;

(2) the extent to which Credentials had considered Jinan University’s acceptance of the credit transfer arrangement with Guangzhou University, such that Kwong was entitled to treat his training at Guangzhou University as properly accredited by Jinan University;

(3) the reason for the change of the Practice in 2011 and the factors and documents considered by Credentials;

(4) the number of candidates from the UK and North America with medical training less than 5 years but who were permitted to take their Examination.

59. Kwong further complains that Licentiate refused to adjourn the hearing and to require Review to make submissions or call witnesses on the above matters (“Request”).

60. I agree with Counsel for the respondents that Licentiate had no duty to compel Review to participate in the hearing, if Review should choose (as it did) to adopt a neutral or passive stance.  Review did not call any witnesses, or produce any evidence at the hearing.  Kwong had the full opportunity to present his case to Licentiate, to adduce such evidence as he wished, and to call any witnesses as he wished.  Before the hearing of the appeal before Licentiate, Kwong had received the written decisions of Credentials and of Review respectively dated 4 August 2011 and 23 August 2011. Credentials’ decision sets out clearly the reasons why Kwong was considered not eligible for taking the Examination: namely, the period of medical training he had received at Jinan University fell short of the 5 years requirement under s 7A, he had not completed 5 years full-time medical training of a type approved by the Council, and the training he completed at Guangzhou University was not accepted by the Council as medical training for the purposes of s 7A.  There has never been any change in the basis and reasons for the decisions of Credentials, Review and Licentiate.  In these circumstances, I cannot see how it can be said that Kwong had been prejudiced or unfairly treated in any way in the presentation of his case, by reason of Review or Licentiate not acceding to the Request, or not providing the information or evidence pursuant to the Request. 

The Wednesbury unreasonable ground

61. Kwong has failed to establish any ground on the basis of Licentiate having failed to take into account his legitimate expectation, to take into account relevant considerations, or to act fairly.  There is accordingly no ground whatsoever to find that the Decision is one that no reasonable person acting reasonably, making sufficient inquiries and taking into account relevant considerations could have made, to be unreasonable or irrational.

The apparent bias ground

62. Kwong complains that the secretary of Licentiate presented Review’s case at the hearing of the appeal before Licentiate, and that Licentiate’s legal advisor had dominated the panel at the hearing.  On reviewing the transcript of the hearing before Licentiate, I cannot see that Kwong has made out any case at all. 

63. The complaint that Licentiate had failed to accede to the Request, to adjourn the hearing and to compel Review to tender witnesses has been dealt with under the sufficient inquiry heading.

64. As for the complaint that Licentiate and the Council were reviewing their own decisions, again, I fail to see any ground for such complaint.  The procedures for review and appeal, from Credentials to Review, and from Review to Licentiate, are all provided for and as set out in the Ordinance.

Conclusion

65. For all the above reasons, none of the grounds for judicial review has been made out and I will dismiss the application, with an order nisi that Kwong is to pay to the respondents the costs of the action.