|
CACV000383/2003
CACV 383, 384 & 385/2003
CACV 383/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 383 OF 2003
(ON APPEAL FROM HCAL NO. 27 OF 2003)
____________________
| BETWEEN |
|
|
|
CHAN TAK KUEN |
Applicant |
|
|
|
|
AND |
|
|
|
|
|
THE CHINESE MEDICINE PRACTITIONERS BOARD OF THE CHINESE MEDICINE COUNCIL OF HONG KONG |
Respondent |
____________________
CACV 384/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 384 OF 2003
(ON APPEAL FROM HCAL NO. 28 OF 2003)
____________________
| BETWEEN |
|
|
|
CHAN TAK HAU RAYMOND |
Applicant |
|
|
|
|
AND |
|
|
|
|
|
THE CHINESE MEDICINE PRACTITIONERS BOARD OF THE CHINESE MEDICINE COUNCIL OF HONG KONG |
Respondent |
____________________
CACV 385/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 385 OF 2003
(ON APPEAL FROM HCAL NO. 29 OF 2003)
____________________
| BETWEEN |
|
|
|
CHAN TAK KUI CHRISTOPHER |
Applicant |
|
|
|
|
AND |
|
|
|
|
|
THE CHINESE MEDICINE PRACTITIONERS BOARD OF THE CHINESE MEDICINE COUNCIL OF HONG KONG |
Respondent |
____________________
(Heard Together)
Coram: Hon Le Pichon, Yuen JJA and Waung J in Court
Date of Hearing: 22 July 2004
Date of Handing Down Judgment: 1 September 2004
____________________
J U D G M E N T
____________________
Hon Le Pichon JA:
1. The applicants in these 3 appeals are brothers. Each of them applied to The Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong ("the Board") to be listed as a Chinese medicine practitioner under section 90 of the Chinese Medicine Ordinance, Cap. 549 ("the Ordinance") and for the determination that he was a person qualified to be registered under section 69 of the Ordinance. The applicants were dissatisfied with the determinations made by the Board and brought judicial review proceedings which were dismissed by A Cheung J on 13 November 2003.
Background
2. Practitioners of the Chinese medicine were free to practice their profession without being subject to any regulation until the enactment of the Ordinance in 1999. The purpose of the Ordinance was to provide a professional and statutorily recognised status to Chinese medicine practitioners. The Board is responsible for regulating, inter alia, for the registration, practice, discipline and conduct of the Chinese medicine practitioners. The statutory scheme required practitioners in Chinese medicine to be registered. The route to registration is contained in section 69.
Existing practitioners and the statutory scheme
3. Part IX of the Ordinance contains "grandfathering" provisions for persons who were practising Chinese medicine on 3 January 2000. Such persons were eligible to apply to have their names included in the list to be maintained by the Board pursuant to section 90 on payment of the prescribed fee. Once a practitioner's name has been entered on the list, the Board has a statutory duty to assess whether that practitioner satisfies the requirements of section 92 which deals with "alternative qualifying requirements". That section reads:
"(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."
4. As will become apparent, sections 93 to 95 effectively established 5 groups of listed practitioners. Those sections provide as follows:
"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 not 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.
..."
5. The 5 groups established by those sections are therefore:
(1) those who have been practising Chinese medicine in Hong Kong for a continuous period of not less then 15 years;
(2) those who have been practising between 10 and 15 years and possess an acceptable qualification;
(3) those who have been practising between 10 and 15 years and who do not possess an acceptable qualification;
(4) those who have been practising for less than 10 years and who possess an acceptable qualification;
(5) those who have been practising for less than 10 years and who do not possess an acceptable qualification.
The upshot of these provisions is that listed practitioners who fall within groups 1 and 2 are exempted from the licensing examination. Those who fall within groups 3 and 4 are exempted from the licensing examination but are required to pass a registration assessment before applying for registration. Those who fall within group 5 are required to undertake and pass the licensing examination before applying for registration.
6. In the appeals under consideration, each of the applicants completed a form supplied by the Board which served a dual purpose: (a) as an application to be listed under section 90(1) and, (b) for assessment and determination of the applicant's alternative qualifying requirements under section 92. Each of the applicants became listed on 19 December 2001. On 5 September 2002, each of them received a letter in identical terms to the effect that he had first to pass the licensing examination before he would be eligible to apply for registration. Each of the applicants sought reasons for that determination. By letters dated 23 November 2002 which, again, were in identical terms, the Board informed each of them that it was not satisfied that (a) he had been practising Chinese medicine in Hong Kong for a continuous period of 10 years immediately before 3 January 2000 and (b) that he possessed academic qualifications acceptable to the Board.
7. The judicial review applications were based on the alleged failure on the part of the Board to consider that true nature of each application. As there are factual differences in the applications submitted to the Board, it will be necessary to consider the appeals separately. For convenience, the applicants in CACV 383, 384 and 385 are hereafter respectively referred to as "Tak Kuen", "Raymond" and "Christopher".
CACV 383
8. Tak Kuen's application form dated 26 December 2000 with supporting documentation was submitted to the Board on 28 December. The supporting documentation included a handwritten statement in Chinese made by Tak Kuen to the effect that his main practice has been in Malaysia since 1984 and in the past 15 years he has been commuting between Hong Kong and Malaysia engaging in the relevant area of practice.
9. Page 3 of the application form is replicated below:
|
"
|
|
|
|
中醫執業經驗及學歷(請夾附中醫執業及學歷證明文件副本）
Experience in practising Chinese medicine practice and qualification in Chinese medicine (please attach copies of documents concerned) |
(只供內部填寫official use only) |
|
|
|
|
|
|
(*將不適用者刪去)
(*Delete as appropriate) |
10. Tak Kuen placed a tick against the first box, i.e. box 20 and made no other entry on that page. By so doing he was stating that immediately before 3 January 2000, he had been practising Chinese medicine in Hong Kong for a continuous period of not less than 15 years. At page 4, Tak Kuen declared that he had been employed as a Chinese physician since 1981 and had up till 2000, 19 years of practising experience. Boxes 32-38 on page 6 of the form intended for the details of academic qualifications were left blank but Tak Kuen indicated in box 39 that his other training in Chinese medicine was by family heritage.
11. On 15 February 2001, Tak Kuen attended an interview with staff of the secretariat. On that occasion, according to the unchallenged evidence of Connie Pui Lin Lau ("Ms Lau"), Secretary to the Board, Tak Kuen amended page 3 of the form by deleting the Chinese characters "沒有" (have not obtained) from the sentence
"此外，本人*具備/沒有中醫組接納的在中醫執業方面的學歷資格。
In addition, I *have obtained/have not obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board."
appearing after box 22 and marking the right margin with a cross, thereby emphasising the amendment. The effect of that amendment was that Tak Kuen appeared to be asserting that he had obtained a qualification in Chinese medicine practice acceptable to the Board. It is to be noted that no documents were submitted in support of that assertion whether on that occasion or subsequently on the occasion referred to in paragraph 12 below. Tak Kuen then stated (on page 4) that his practising experience was from 1981 to the date of the interview. He made further amendments to the form by crossing out box 28 (which required the applicant to state the duration and reason if his practising experiences stated in the preceding boxes 23-27 were not continuous) and crossing-out boxes 32-38 (which bore the description "Academic Attainment in Chinese Medicine"). Tak Kuen countersigned each of pages 3-6 to which amendments had been made.
12. Shortly thereafter, it would appear that Tak Kuen submitted further documents including a Chinese handwritten note from his father Chan Chak Ming stating, inter alia, that Tak Kuen had been employed by the Chan Chak Ming Father & Sons Medical Hall ("the Clinic") since 1 January 1981 to date and that his working hours were from 10 am to 6 pm. This, of course, was inconsistent with the Tak Kuen's undated handwritten statement in Chinese submitted at the time of the original application to the effect that part of his practice since 1984 has been in Malaysia.
13. By letter dated 5 September 2002, the Board advised Tak Kuen of its decision that before he would be eligible to apply for registration as a Registered Chinese Medicine Practitioner, he must first pass the licensing examination. As noted above, the Board provided reasons for its determination by its letter dated 23 November 2002 which was in Chinese. In pertinent part, the English translation read:
" 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.
..."
14. Tak Kuen's complaint is that he had applied for exemption from the need to sit the licensing examination by reason of the fact that he had continuous practising experience in Hong Kong in excess of 15 years. That, it was said, followed from the fact that he had placed a "tick" in box 20 on page 3 of the form. What, therefore, the Board had to do was to assess whether Tak Kuen had discharged the evidentiary burden on him to establish continuous practising experience in Hong Kong in excess of 15 years. But, it was submitted, that the reasons advanced in the November letter appeared to have been directed at section 93(b) i.e. a group 2 situation rather than section 93(a), a group 1 situation. Further, it was said that the fact that boxes 32-38 on page 6 of the form which related to "Academic Attainment in Chinese Medicine" had been deleted made it clear that Tak Kuen was not advancing a claim under section 93(b).
15. In my view, the first matter to be determined by the Board was the claim to practising experience in Hong Kong for a continuous period of not less than 15 years. If the Board was not satisfied that the claim under section 93(a) or group 1 had not been made out, it was incumbent on the Board to say so. This could either be stated directly or indirectly through a determination of some other continuous period. When analysed, the reason given at paragraph (i) of the November letter, albeit indirectly, was nothing short of a determination that the period of continuous practice in Hong Kong was less than 10 years. For, if the Board was not satisfied that the applicant had been practising continuously for 10 years, it was effectively saying that the period was less than 10 years.
16. The amendment made to page 3 of the form at the June interview was significant in that Tak Kuen appeared to be asserting that he had obtained a qualification in Chinese medicine practice acceptable to the Board, quite apart from claiming practising experience in Hong Kong for a continuous period of not less than 15 years. It was therefore not open to the Board to ignore his claim to possessing a qualification in Chinese medicine practice, notwithstanding the line drawn through boxes 32-38 on page 6 of the form. That claim had to be addressed by the decision maker. In my view, in its assessment of whether the applicant satisfied the alternative qualifying requirements of section 92, the Board was duty-bound to address that claim and state whether or not it was satisfied that the applicant does possess the qualification claimed. Seen in this context, paragraph (ii) of the November letter is readily comprehensible. The fact of the matter is that other than the bald assertion to possessing an acceptable qualification, Tak Kuen did not adduce any evidence to substantiate his claim.
17. For these reasons, I would dismiss Tak Kuen's appeal. I would also propose that there be an order nisi that the costs of this appeal be to the Board.
CACV 385
18. It will be convenient to deal next with Christopher's appeal since the facts are virtually identical to those of Tak Kuen's. The application was submitted in October 2000 together with some supporting documentation including a Chinese handwritten note dated 10 October 2000 from Christopher advising that he had been a self employed practitioner practising on his own from 1984 and that he had been employed as a physician in charge of his father's Clinic from 1987 onwards. This assertion is reflected in a chronology sent with the original application save that in the chronology, it was stated that between 1979 and 1983 he worked as an assistant at his father's clinics in Wanchai and Yuen Long.
19. Like Tak Kuen, Christopher placed a tick in box 20 on page 3 of the form and made no other entry on that page. On page 4, he declared that he had been employed as a physician in charge since 1978 and had acquired 23 years of practising experience which was inconsistent with the handwritten note of 10 October 2000. Page 6 which was intended for details of academic qualifications was left blank but Christopher indicated in box 39 that his other training on Chinese medicine was by family heritage.
20. On 29 May 2001, Christopher attended an interview at the secretariat of the Board and presented additional supporting documents including a certificate from the Clinic dated 25 May 2001 to the effect that Christopher had been employed at the Clinic as physician in charge since 1 January 1978. That certificate, whilst consistent with what was stated on page 4 of the form, was inconsistent with the handwritten note of 10 October 2000 submitted by Christopher with the original application.
21. According to the unchallenged evidence of Ms Lau, Christopher amended his application during his interview as Tak Kuen had done by deleting the Chinese characters "沒有" (have not obtained) from the sentence appearing after box 22 on page 3 of the form. There were other amendments including the deletion of boxes 28 and 32-38 as Tak Kuen had done. Christopher countersigned at the bottom of the pages 4, 5 and 6 and against the deletion made on page 3. It is to be noted that in the box reserved for official use on page 3, under "Approval Type", a tick appears in the box under the description "can be directly registered". There is no evidence as to how that came to be. In any event, Christopher's signature does not appear against this tick but only against the deletion made to the sentence appearing after box 22. Nothing appears to turn on this.
22. Factually speaking, there are no material differences between the applications made by Tak Kuen and Christopher. Accordingly, for the reasons already given in Tak Kuen's appeal, I would also dismiss Christopher's appeal with an order nisi that the costs of the appeal be to the Board.
CACV 384
23. The Board received Raymond's application on 28 December 2000 together with some supporting copy documentation. This included a handwritten statement in Chinese made by Raymond to the effect that he had been managing the Clinic and serving patients there since 1977, that in 1984 he was transferred to Malaysia to work at his father's Clinic there and that in the past 15 years he has been commuting between Hong Kong and Malaysia engaged in the relevant area of practice.
24. Raymond went to the Board on 22 June 2001 and presented additional documents including a certificate from the Clinic dated 20 June 2001 signed by his father Chan Chak Ming to the effect that Raymond had been employed as resident general Chinese medicine practitioner at the Clinic between 1980 and 2001. The contents of the Clinic's certificate are inconsistent with the statement made by Raymond in support of his original application. As noted above, that was also the case with Tak Kuen and Christopher.
25. In any event, on that occasion in June, Raymond amended his application form by circling the Chinese characters "沒有" (have not obtained) in the sentence appearing after box 22 on page 3. He countersigned that alteration. He made no changes to page 6 (which dealt with academic attainment in Chinese medicine) which remained blank.
26. In Raymond's case, the only claim asserted was a continuous period of practice of Chinese medicine in Hong Kong of not less than 15 years. There was no claim made as to the possession of any qualification in Chinese medicine practice acceptable to the Board. Therefore, the only issue that the Board needed to address was the claim to a continuous period of practice in Hong Kong of not less than 15 years. As in the case of Tak Kuen and Christopher, paragraph (i) of the November letter was a determination that the period of continuous practice in Hong Kong was less than 10 years.
27. However, in Raymond's case, paragraph (ii) of the November letter made little sense since Raymond had never asserted a claim to possessing a qualification in Chinese medicine practice. Paragraph (ii) was therefore wholly otiose. This distinction appears to have been overlooked by the judge. It has the unfortunate consequence of giving rise to a perception that the Board was addressing a different application. The reasons put forward appear to have been directed at the requirements of section 94(b) or group 4 which simply did not arise on the facts.
28. Viewed objectively, there appears to be some substance to Raymond's complaint: the reasons advanced in the November letter raise serious doubts as to whether it was Raymond's application that the Board was addressing. Whilst the Board was under a statutory duty to assess whether a listed applicant satisfies the alternative qualification requirements, that is not an abstract exercise but must be done by reference to the matters raised by the particular application. It is incumbent on the Board to consider each application on its own facts and render a determination individually by reference to the case at hand. Pro forma letters are inappropriate since they may give the impression that proper consideration had not been given to the application in question. I would therefore allow Raymond's appeal although at the end of the day it may not lead to a different outcome as regards the substantive application given the discrepancies referred to earlier between the statement accompanying his original application and the certificate from the Clinic provided at a later date.
29. Accordingly, I would propose that (1) the order below be set aside, (2) an order of certiorari to quash the Board's decision be granted and (3) an order of mandamus be made requiring the Board to reconsider its decision. I would also propose that there be an order nisi that the costs here and below be to Raymond.
Hon Yuen JA:
30. I agree.
Hon Waung J:
31. I agree.
Hon Le Pichon JA:
32. There will therefore be orders as proposed in paragraphs 17, 22 and 29.
| (Doreen Le Pichon) |
(Maria Yuen) |
(William Waung) |
| Justice of Appeal |
Justice of Appeal |
Judge of the |
|
|
Court of First Instance |
Representation:
Mr Peter Duncan SC and Mr Edward Ng, instructed by Messrs Ivan Tang & Co., for the Applicants/Appellants in all appeals
Mr Kwok Sui Hay, instructed by Messrs Lo & Lo, for the Respondent/Respondent in all appeals
|