CHAN TAK HAU RAYMOND v. THE CHINESE MEDICINE PRACTITIONERS BOARD OF THE CHINESE MEDICINE COUNCIL OF HONG KONG

HCAL 27/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 27 OF 2003

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(Heard Together)

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J U D G M E N T

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1. Before me are three applications for judicial review of three decisions made by the Chinese Medicine Practitioners Board of the Chinese Medical Council of Hong Kong. The three Applicants are brothers, and their applications raised similar issues. They were heard together by me, leave having been granted by me earlier for the commencement of these proceedings. For the ease of reference, I will refer to the three Applicants as Tak Kuen, Raymond and Christopher respectively in this judgment, Tak Kuen being the youngest and Christopher the eldest of the three. Their father is said to be one of the best-known Chinese medicine practitioners in Hong Kong.

2. In Sze Hei Fa Helena v. Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong HCAL 10/2003 (18 July 2003), I have had the opportunity of examining the relevant background of the Chinese Medicine Council, the Practitioners Board, the Chinese Medicine Ordinance (Cap. 549) under which the Council and the Practitioners Board were established, as well as the legislative framework for the registration of Chinese medicine practitioners in Hong Kong in general, and the transitional arrangements catering for the unique situation of "pre-existing" Chinese medicine practitioners in particular set out in Part IX of the Ordinance (see paragraphs 2-4, and 6-12 of that judgment).

3. In particular, in paragraphs 11 and 12 of that judgment, I said:

" 11. It is reasonably clear from the above provisions that existing Chinese medicine practitioners may take advantage of the transitional arrangements in a number of ways. However, in order to be able to do so, he must first be practising Chinese medicine on 3 January 2000 and must apply to the Practitioners Board for his name to be included in the list of Chinese medicine practitioners; he must also pay the prescribed fee: section 90(1).

12. Once his name is entered on the list, the Practitioners Board will be under a statutory duty to make assessment in relation to his qualifications: section 90(2). Such a listed Chinese medicine practitioner may, depending on his qualifications and experience, take advantage of the transitional arrangements in basically 5 different ways (categories I to V respectively):

(a)	If he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 15 years immediately before 3 January 2000, he need not sit for any examination at all, and may directly apply for registration pursuant to sections 67(b), 68 and 69.
(b)	If he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 10 years (but less than 15 years) immediately before 3 January 2000, and he has obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board, he need not sit for any examination at all and may also apply directly for registration pursuant to sections 67(b), 68 and 69.
(c)	However, if he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 10 years (but less than 15 years), but he has not obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board, he is exempted from the Licensing Examination but has to undergo and pass the registration assessment under section 94, before he can apply for registration pursuant to sections 67(b), 68 and 69.
(d)	If he has been practising Chinese medicine in Hong Kong for a continuous period of less than 10 years, but has obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board, he is likewise exempted from the Licensing Examination but is required to undergo and pass a registration assessment under section 94, before he can apply for registration pursuant to sections 67(b), 68 and 69.
(e)	If he has practising Chinese medicine in Hong Kong for a continuous period of less than 10 years, but has not obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board, he is eligible to undertake the Licensing Examination (section 61(1)(b)), and if he passes the examination, he is entitled to apply for registration pursuant to sections 67(a), 68 and 69."

4. Pursuant to the provisions in section 90 in Part IX of the Ordinance, all three Applicants successfully got their names entered on the list of Chinese medicine practitioners maintained by the Practitioners Board. In their written applications filed for the dual purpose of section 90 and section 92, all of them claimed that they had been practising Chinese medicine in Hong Kong for a continuous period of not less than 15 years immediately before 3 January 2000.

5. As their names were successfully entered on the list, as pointed out in my earlier judgment, the Practitioners Board was under a statutory duty to carry out an assessment in respect of each of them as to whether they satisfied the requirements under section 92 of the Ordinance. And of course, as I also pointed out in my earlier judgment, section 92 of the Ordinance in turn refers to and must be read together with sections 93-95 of the Ordinance.

6. For the ease of reference, I will reproduce below the provisions in sections 90(1) and (2), 92, 93, 94(1) and 95(1) of the Ordinance:

" 90. List maintained by Practitioners Board

(1) The Practitioners Board shall compile and maintain a list of Chinese medicine practitioners and shall enter on such list the name of any person who?

(a) is practising Chinese medicine on 3 January 2000;

(b) has applied to the Practitioners Board for his name to be included in the list; and

(c) has paid a prescribed fee.

(2) A person whose name is entered on the list under this section shall be assessed by the Practitioners Board as to whether he satisfies the requirements under section 92.

....

92. Alternative qualifying requirements

(1) The Practitioners Board may determine a person to be qualified to be registered under section 69 if it is satisfied, after assessment, that the person?

(a)	is one whose name is entered on the list maintained under section 90; and
(b)	has acquired substantial experience, knowledge and skills in the practice of Chinese medicine.

(2) No person shall be regarded as having acquired substantial experience, knowledge and skills for the purpose of subsection (1)(b) unless he has?

(a)	attained the standard which qualifies him to be exempted from the Licensing Examination under section 93;
(b)	passed the registration assessment as required under section 94; or
(c)	passed the Licensing Examination as required under section 95.

93. Exemptions from Licensing Examination

A listed Chinese medicine practitioner who satisfies the Practitioners Board that he has fulfilled either one of the following criteria, namely?

(a)	immediately before 3 January 2000, he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 15 years; or
(b)	(i)	immediately before 3 January 2000, he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 10 years; and
	(ii)	he has obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board,

shall be exempted from the Licensing Examination.

94. Registration assessment

(1) A listed Chinese medicine practitioner who satisfies the Practitioners Board that he has fulfilled either one of the following criteria, namely?

(a)	immediately before 3 January 2000, he has been practising Chinese medicine in Hong Kong for a continuous period of less than 10 years; or
(b)	(i)	immediately before 3 January 2000, he has been practising Chinese medicine in Hong Kong for a continuous period of less than 10 years; and
	(ii)	he has obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board.

shall be exempted from the Licensing Examination but shall be required to pass a registration assessment conducted by the Practitioners Board before he is qualified to apply to be registered as a registered Chinese medicine practitioner under section 69.

...

95. Requirement to undertake Licensing Examination

(1) A listed Chinese medicine practitioner who?

(a)	satisfies the Practitioners Board that immediately before 3 January 2000, he has been practising Chinese medicine in Hong Kong for a continuous period of less than 10 years; or
(b)	has failed the registration assessment,

shall be required to undertake the Licensing Examination, the passing of which shall qualify him to apply to be registered as a registered Chinese medicine practitioner under section 69.

..."

7. According to the evidence filed, the Practitioners Board did or did seek to carry out the requisite assessments in respect of the three Applicants, which included consideration of the information and documents supplied by the Applicants as well as interviews. Eventually on 5 September 2002, the Practitioners Board wrote to the three Applicants respectively, informing them that the Practitioners Board had decided in respect of each of them that they had to undertake the Licensing Examination provided in section 95 of the Ordinance, the passing of which would, as per section 92(2)(c), qualify them to apply to be registered as a registered Chinese medicine practitioner under section 69.

8. Upon enquires made by the three Applicants, the Practitioners Board explained in three letters all dated 23 November 2002 to the Applicants respectively the reasons for the Board's respective decisions. The three letters were all similarly worded, and I need only quote one of them for present purposes. The letters were all written in Chinese, and subject to one matter which I will return to, the certified English translation would suffice for the present purpose. The certified English translation of the letter written to Christopher reads as follows:

" Mr Chan Tak Kui, Chinese Medicine Practitioner (CMP),
Front Block, 1/F,
510 Nathan Road, Kowloon.
Listed Chinese Medicine Practitioner No.: L02203
CMP Chan Tak Kui,

Assessment Result of Alternative Qualifying
Requirements for Chinese Medicine Practitioner Registration

With reference to the opinion and request put forward by you in relation to the assessment result of your alternative qualifying requirements for Chinese Medicine Practitioner registration, we hereby reply as follows:

Pursuant to the provisions of the "Chinese Medicine Ordinance" (Cap. 549 of the Laws of Hong Kong), the Chinese Medicine Practitioners Board ("Practitioners Board") of Chinese Medicine Council of Hong Kong shall assess the request for alternative qualifying requirements for the registration of a Listed Chinese Medicine Practitioner based on the number of years he has been practising Chinese medicine in Hong Kong continuously immediately before 3 January 2000, and based on his educational qualification accepted by the Board. The assessment criteria for the continuous practice of Chinese medicine and the acceptable educational background and requirements for certificates have been specified in Sections (VI) to (X) of Chapter II of the Chinese Medicine Practitioners Registration Application Handbook. The main reason for the non-acceptance of the practising period of Chinese medicine or educational background purported by some Listed Chinese Medicine Practitioners is their failure to furnish full objective data as evidence.

When the Practitioners Board assessed your request for alternative qualifying requirements for Chinese Medicine Practitioner registration, consideration has been given to the practising and educational certificates and information furnished by you. The Practitioners Board has decided that you can only be qualified for applying for registration if you comply with the provision of Section 92(2)(c) of the "Chinese Medicine Ordinance" (i.e. you have passed a licensing examination as provided in Section 95). The reasons are as follows:

(i)	The Practitioners Board is of the opinion that the objective evidence submitted by you is not sufficient to prove that you have practised Chinese medicine continuously for 10 years immediately before 3rd January, 2000; and
(ii)	The Practitioners Board is of the opinion that the objective evidence submitted by you is not sufficient to prove that you possess the educational qualification accepted by the Board.

If any Listed Chinese Medicine Practitioner who has to sit for a licensing examination or subject himself to a registration examination, he may practise Chinese medicine in Hong Kong in the capacity of a Listed Chinese Medicine Practitioner until he is registered or until such a date as published by the Secretary for Health, Welfare and Food.

As the "Chinese Medicine Ordinance" does not give Chinese Medicine Council of Hong Kong and the Practitioners Board any power to appeal for or review the request for alternative qualifying requirements for registration, so the Practitioners Board cannot review or change the assessment result of your request, nor can it accept any other data further furnished by you. If you are not satisfied with the decision of the Board, you may apply to a court for judicial review of the Board's deicion.

	For and on behalf of the Practitioners Board Chinese Medicine Council of Hong Kong
	[a seal of Chan Kin Fai]

23rd November, 2002"

9. The three Applicants were all dissatisfied with the reasons given by the Practitioners Board. They maintained that they had been practising continuously Chinese medicine in Hong Kong for not less than 15 years immediately before 3 January 2000. In those circumstances, these proceedings were commenced, challenging the respective decisions of the Practitioners Board contained in its three letters all dated 5 September 2002, by which the three Applicants were all told that they had to undertake the Licensing Examination.

10. Mr Peter Duncan, appearing for the three Applicants together with Mr Edward Ng, argued with great skill that his clients had not been given "a fair crack of the whip" in respect of their applications by the Practitioners Board. He firstly pointed out and emphasised that all three Applicants made their applications on the basis that they had been practising Chinese medicine continuously in Hong Kong for not less than 15 years immediately before 3 January 2000. In other words, all three put forward a category I case. He then, rather correctly, said that in a category I situation, an applicant's educational qualification in Chinese medicine practice is quite irrelevant. He drew my attention to the fact that in fact when the written applications were first made, all three Applicants did not answer the standard questions in the application forms as to whether they possessed the necessary educational qualification in Chinese medicine practice acceptable to the Practitioners Board. (Subsequently in their interviews, they clarified their positions - both Christopher and Tak Kuen claimed that they possessed the necessary qualification, whereas Raymond said that he did not; in any event, none of them supplied to the Practitioners Board any documents relevant to their educational qualification, if any.)

11. Mr Duncan went on to invite this Court to examine the Practitioners Board's letters all dated 23 November 2002, setting out the reasons for its decisions, in some detail. First, Mr Duncan said that the Practitioners Board was quite wrong to mention the applicant's "educational qualification" in the second paragraph of each of these letters in explaining the criteria adopted by the Practitioners Board, in a case such as the present, when the applicant was putting forward a category I case in which his or her educational qualification, if any, and whether the same was acceptable to the Practitioners Board, were totally irrelevant. In other words, so Mr Duncan said, the Practitioners Board simply adopted an over-generalised approach to the applications of the three Applicants.

12. Mr Duncan further developed his argument by reference to the third paragraph in each of these letters where the Practitioners Board expressly said that when it assessed the particular Applicant's fulfilment of the alternative qualifying requirements for registration, "consideration [had] been given to the practising and educational certificates and information furnished by [the Applicant]". Mr Duncan submitted that the Practitioners Board was clearly wrong here because Raymond did not claim to have any relevant educational qualification, and more generally none of the three Applicants had submitted to the Practitioners Board any "educational certificates".

13. Proceeding from these preliminarily observations, Mr Duncan attacked the two specific reasons given at the end of the third paragraph in each of these letters, namely

"	(i)	The Practitioners Board is of the opinion that the objective evidence submitted by you is not sufficient to prove that you have practised Chinese medicine continuously for 10 years immediately before 3rd January, 2000; and
	(ii)	The Practitioners Board is of the opinion that the objective evidence submitted by you is not sufficient to prove that you possess the educational qualification accepted by the Board."

14. Mr Duncan argued that reason (i) clearly evidences that the Practitioners Board had not focused its mind on the particular Applicant's claim that he had been practising Chinese medicine continuously in Hong Kong for not less than 15 years (i.e. a category I case); reason (i) would only be relevant if a category II or category III case had been put forward. Mr Duncan also submitted that reason (ii) is wholly irrelevant given the category I case put forward by the three Applicants; the lack of objective evidence to prove that they possessed the necessary educational qualification was wholly beside the point.

15. Mr Duncan further argued that in the affirmations filed on behalf of the Respondent in opposition to these applications, it was said that the Practitioners Board made its assessments in respect of the applications that it received, including the applications of the three Applicants, by reference to the provisions and principles set out in its handbook. Mr Duncan's point here is that the Applicants were not aware of the existence of the handbook prior to their applications.

16. Finally, in the affirmations filed on behalf of the Respondent, certain inconsistencies in the contents of some of the documents submitted by the Applicants in support of their applications were said to have been noted by the Practitioners Board which apparently had influenced the Practitioners Board's eventual decisions. Mr Duncan sought to argue that these so-called inconsistencies were more apparent than real.

17. In the process, Mr Duncan also referred me to some of the supporting documents that had been submitted by the three Applicants to the Practitioners Board, in order to demonstrate that they had a good case on the merits in claiming that they had all been practising continuously in Hong Kong for not less than 15 years.

18. In conclusion, the three Applicants argued through their counsel that the decisions of the Practitioners Board were "unreasonable, irrational and illogical", that they had not been properly treated by the Practitioners Board which failed to look at their applications "sufficiently individually", and that they did not have a fair crack of the whip, as Mr Duncan had repeatedly put it.

19. Despite the clarity and skill with which Mr Duncan has advanced his arguments, I am unable to accept them.

20. In my judgment, it is important to bear in mind the task that the Practitioners Board has been entrusted with by the legislature in sections 90-95 in Part IX of the Ordinance. The two most important tasks of the Practitioners Board here are the compiling and maintaining of a list of Chinese medicine practitioners pursuant to section 90, and the assessment of the listed Chinese medicine practitioners' satisfaction of the alternative qualifying requirements set out in 92 of the Ordinance. As has been mentioned above, section 92 in turn refers to and must be read together sections 93-95 of the Ordinance. This leads to two further tasks of the Practitioners Board under these sections, namely, the conducting of a registration assessment and the Licensing Examination pursuant to sections 94 and 95 respectively of the Ordinance in respect of those listed Chinese medicine practitioners falling within the descriptions set out in those two sections.

21. Given these multiple tasks of the Practitioners Board, when a pre-existing Chinese medicine practitioner put in his written application for the dual purpose of listing under section 90 and assessment under section 92, very often the Practitioners Board's job was not only as simple as determining whether that particular applicant had established the category claimed by him. In other words, very often, the Practitioners Board was not only concerned with whether the applicant had established to its satisfaction the period of continuous practice in Chinese medicine in Hong Kong immediately before 3 January 2000 that the applicant was claiming he had had in his application and the educational qualification (if any) that he claimed he had possessed.

22. Certainly, the Practitioners Board needed to consider the claimed categorisation, or more precisely the claimed period of practice and the claimed educational qualification, if any, set out in the particular applicant's application form (which in practice could be subsequently amplified, supplemented, rectified, clarified and so forth by the applicant in interviews or further correspondence prior to the eventual decision of the Practitioners Board). And of course, if the Practitioners Board accepted the claimed categorisation of the applicant, or more precisely, if the Practitioners Board was satisfied with the claimed period of practice and, where applicable, the claimed educational qualification (if any) of the applicant, the Practitioners Board would proceed with the assessment accordingly. However, in the event that the Practitioners Board was not so satisfied with the claimed period of practice and/or educational qualification, it could not simply stop there. As I said, it had a statutory duty to carry out the assessment in respect of the applicant which, in my judgment, would require the Practitioners Board to go on and consider which category of cases that the particular applicant actually fell within, or more precisely, what period of practice he had had and where relevant, what educational qualification (if any) he had possessed, in order to determine whether that person could directly apply for registration under sections 67-69 of the Ordinance without further ado or whether he had to undergo and pass the registration assessment under section 94, or alternatively whether he had to undertake and pass the Licensing Examination under section 95 of the Ordinance.

23. In other words, if an applicant put forward a category I case in his application, and the Practitioners Board agreed with him, then of course the Practitioners Board would decide pursuant to sections 92(1) and (2)(a) and 93 (1)(a) of the Ordinance that this applicant could without further ado directly apply for registration under sections 67-69 of the Ordinance.

24. On the other hand, if the Practitioners Board was not satisfied that the applicant's case fell within category I, it could not simply stop there. It had a statutory duty, once that applicant's name had been successfully included in the list of Chinese medicine practitioners maintained under section 90, to go on to consider which category the applicant's case actually fell within. And, for instance, if the Practitioners Board eventually determined that the applicant's period of practice was less than 10 years, and that he did not possess the necessary educational qualification, it would conclude that this was a category V case in which event the Practitioners Board would decide that the applicant had to undertake and pass the Licensing Examination under section 95 before he would be qualified to apply for registration under sections 67-69 of the Ordinance: see sections 92(1) and (2)(c) and 95(1)(a).

25. Thus understood, the decisions of the Practitioners Board in respect of the three Applicants in these proceedings, and the reasons it gave for those decisions, are easy to understand. What the Practitioners Board has decided, as set out in its three letters all dated 5 September 2002, was that all three Applicants fell within category V, and were thus required to undertake and pass the Licensing Examination under section 95 in order to be able to apply, as per section 92(1) and (2)(c), for registration under sections 67-69 of the Ordinance. In so deciding, the Practitioners Board must have rejected the Applicants' respective claims of a category I case. This is most apparent from the two specific reasons given in the Practitioners Board's letters all dated 23 November 2002 explaining its decisions.

26. Reason (i) says that the Practitioners Board was not satisfied that the particular Applicant had practised Chinese medicine continuously for 10 years immediately before 3 January 2000. It must go without saying that the Practitioners Board was not satisfied that the particular Applicant had practised continuously for not less than 15 years. The shorter excludes the longer.

27. Far from indicating, as Mr Duncan has submitted, that the Practitioners Board had not focused properly on the case of the particular Applicant, reason (i), in my judgment, simply reflects the fact that after rejection of the Applicant's claimed period of practice of not less than 15 years, the Practitioners Board did, as it was required to, proceed to determine what period of practice had been established by the Applicant's evidence. Reason (i) simply means that the Practitioners Board eventually concluded and determined that the established period of practice was less than 10 years. This determination was of course relevant and necessary in order to enable the Practitioners Board to decide whether the particular Applicant's case fell within category II or category III on the one hand or category IV or V on the other, it having rejected the Applicant's claimed period of practice of not less than 15 years (i.e. category I).

28. As regards reason (ii), it says that the Practitioners Board was not satisfied that the Applicant possessed the necessary educational qualification. This was again a relevant and necessary determination. Given the rejection of the particular Applicant's claimed years of practice of not less than 15, and indeed given the determination explained in reason (i) (i.e. the actual years of practice was less than 10), it was necessary to decide whether the particular Applicant possessed the necessary educational qualification, in order for the Practitioners Board, in fulfilment of its statutory duty, to determine whether the Applicant's case fell within category IV or category V. In other words, the Practitioners Board had to decide whether the Applicant in question had to undertake and pass the registration assessment pursuant to section 94(1)(b) or undertake and pass the Licensing Examination pursuant to section 95(1)(a) of the Ordinance. So again, far from suggesting that the Practitioners Board had been mistaken about the true nature of the Applicants' respective cases, reason (ii) reflects an important step in the Practitioners Board's performance of its statutory duty in assessing the alternative registration qualifications of the three Applicants.

29. As regards the criticism made by Mr Duncan in respect of the wordings used in the three letters of 23 November 2002, in my judgment, in the second paragraph of the three letters, the Practitioners Board was simply explaining the general position or circumstances regarding the alternative qualifying requirements for registration, the assessment criteria that the Practitioners Board adopted, and the main reason for unsuccessful applications. The paragraph by its nature was couched in very general language. Whilst strictly speaking, depending on the case put forward by an applicant (and what his real case was), the applicant's educational qualification, if any, might or might not be relevant to his application, I am unable to find anything in the second paragraph to suggest that the Practitioners Board has failed to adopt or apply the relevant criteria to determine the true cases of the Applicants in these proceedings.

30. As regards Mr Duncan's criticism of the reference to "educational certificates" of the Applicant in the third paragraph of these three letters, I am afraid this is a false point, although no blame should be laid on Mr Duncan. It must be remembered that the three letters all dated 23 November 2002 were written in Chinese. Earlier on in this judgment I have reproduced the certified translation of the letter written to Christopher. But if one looks at the original Chinese letter, one would see that what was actually written was that:

"中醫組在評核你的註冊替代資格要求時，已考慮你當時已提交的執業及學歷證明和資料。"

31. In my judgment, the Practitioners Board was there explaining that it had taken into account the practice and educational "proof(s)" (證明) and information that had been supplied by the particular Applicant. In my judgment, whilst "證明" could be translated as "certificates", in the context, the term should best be translated as "proof(s)". For obviously, the term is used (together with the following words "and information") in the letter in relation to both the practice and education of the Applicant, and in terms of the Applicant's practice, "proof(s)" would be a much more appropriate term to use to describe the relevant documents that had been submitted by the Applicant in relation to his practice.

32. Once the relevant term is understood as proof or proofs regarding the particular Applicant's educational qualification, much of the force of Mr Duncan's criticism is gone.

33. In any event, in my judgment, reading the sentence in question in its context, particularly the sentence in its original form in Chinese, I have no doubt that there the Practitioners Board was simply saying generally that it had examined and considered all the evidences and information that had been supplied by the Applicant, before coming to its conclusion on the assessment of the Applicant's alternative registration qualifications. I do not regard it as suggesting that the Practitioners Board had miscomprehended the case that had been put forward before it by the particular Applicant, or the documents and evidence that had been adduced by the Applicant before the Board in support of his application. Indeed the Practitioners Board has in their affirmations filed in these proceedings explained their assessments and decision-making processes in respect of the three Applicants' applications, and I do not find any imperfections in the wordings of the letters of 5 September 2002 as being sufficient to cast any doubt on what has been set out in those affirmations.

34. I do not regard the handbook as relevant at all to these proceedings. It is not suggested by the Applicants that the handbook, the provisions of which the Practitioners Board has followed in processing the applications in question, contains anything that goes contrary to the provisions and principles laid down in the Ordinance regarding these assessments. Nor is it suggested by the Applicants that their not having been made aware of the handbook's provisions prior to their applications had resulted in any or any real prejudice to their applications. The printed application form contained guidelines to help the particular Applicant in filling in the form and decide what documents that could be helpfully submitted to the Practitioners Board in support of his application. It is not suggested that those guidelines were incorrect, or were not helpful enough.

35. As regards the inconsistencies that have been pointed out in the affirmations filed on behalf of the Practitioners Board in opposition to these judicial review applications, all I wish to say is that on the face of the documents submitted, there were indeed apparent inconsistencies regarding, for example, the year of commencement of practice, the place of practice (Hong Kong or overseas), and whether in the case of Christopher, he had spent three years practising on his own instead of practising as an employed practitioner of his father. Mr Duncan has suggested in his submissions different ways of looking at these documents, whereby the apparent inconsistencies would, or would to some extent, disappear.

36. In my judgment, all this was a question of assessing and evaluating the documentary evidence that had been submitted by the three Applicants in support of their applications. It was the task of the Practitioners Board, which had been entrusted to the Board by the legislature. It was for the Practitioners Board to decide whether there were really any inconsistencies, and to decide what weight, if any, it could place on the documents in the light of the inconsistencies or apparent inconsistencies.

37. It has been emphasised time and again that a court sitting in judicial review does not exercise the function of a first instance fact-finding tribunal or an appellate court. It exercises a supervisory jurisdiction. As Lord Hoffman has crisply observed recently in Kemper Reinsurance Co. v. Minister of Finance [2002] 1 AC 1, 14 H:

"In principle, however, judicial review is quite different from an appeal. It is concerned with the legality rather than the merits of the decision, with the jurisdiction of the decision-maker and the fairness of the decision-making process rather than whether the decision was correct."

38. Indeed Mr Kwok, counsel for the Practitioners Board, has drawn my attention to no less than 9 other judgments where passages to similar effect can be found (see paragraphs 16-27 of his very helpful skeleton arguments), which I need not repeat here.

39. In my judgment, Mr Duncan's argument regarding the inconsistencies or alleged inconsistencies, as well as his general argument regarding the merits of his three clients' cases which were said to be demonstrated by some of the documents that they had submitted to the Practitioners Board to which my attention has been drawn, relate to matters that the legislature has entrusted the Practitioners Board with the task of deciding. The Practitioners Board has obviously reached its conclusions on the merits of the Applicants' respective cases, and on the material before me and based on the arguments that I have heard, I really fail to see any ground for exercising the Court's supervisory jurisdiction in these judicial review applications to interfere with the decisions made by the Practitioners Board. It is not the function of this Court to go into the merits of the Applicants' respective cases on their years of practice. That was the function of the Practitioners Board. The Practitioners Board has discharged its function. There is no justification for re-opening the matter again.

40. In refusing to be drawn into examining the merits of the Applicants' respective cases in any detail here, I must not be taken as questioning in any way the correctness (in its traditional sense rather than the public law sense) of the decisions of the Practitioners Board. Mr Kwok has very forcefully pointed out to me that despite the numbers of years that the Applicants have been claiming they have been practising Chinese medicine, none of the Applicants had submitted a single piece of prescription or patient record in support of their claims. Furthermore, in relation to Raymond and Tak Kuen, even on their own cases, they had spent much time in practising Chinese medicine overseas during the claimed periods of practice, and of course, for the purpose of the alternative qualifying requirements, only practice of Chinese medicine in Hong Kong would be regarded as relevant.

41. For all the above reasons, I am of the view that these three applications for judicial review must fail which are therefore dismissed.

42. Finally, as regards costs, counsel agreed that costs should follow the event. I order that the costs of these three sets of judicial proceedings be paid by the three Applicants to the Practitioners Board respectively; such costs are to be taxed if not agreed.

43. Lastly, I would like to thank counsel for their assistance.