DR IP WING KIN v. THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

HCAL9/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 9 OF 2009

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J U D G M E N T

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Introduction

1.  This is an application by the applicant, a registered medical practitioner, for leave to apply for judicial review against two decisions of the Medical Council.  The first decision was made by letter dated 9 January 2009 directing the hearing of inquiry against the applicant to be held on 2 and 7 March 2009.  The second decision was made by letter dated 2 February 2009 refusing the applicant’s application to (a) vacate the March hearing dates and (b) direct that the inquiry be fixed in consultation with the diaries of his two overseas experts and senior counsel.

2.  The applicant raised a number of grounds to support the application.  Effectively, they all boil down to one major complaint, that is, by virtue of the directions, the Medical Council has deprived him of a fair hearing of the coming inquiry because the two overseas experts and senior counsel that he has engaged since late 2007 will not be available on the March hearing dates.  In particular, without the evidence of the two overseas experts, the applicant’s defence will be severely if not fatally prejudiced.

3.  The applicant raised a further point in his first supporting affidavit, which is this.  The Medical Council has unduly restricted the number of experts to be called by him to one.  By letter dated 12 February 2009, the Medical Council has clarified the position.  The applicant does not press on with this point any more.

4.  Since Po Fun Chan v. Winnie Cheung [2008] 1 HKLRD 319, an applicant for leave to apply for judicial review must show that he has a reasonably argue claim which enjoys realistic prospect of success : per Li CJ at paras. 14–17 at pp. 326-327.  With this test in mind, I turn to examine the validity of the applicant’s case based on the unavailability of his experts and senior counsel.  This entails a closer look of the background circumstances.

Background

5.  By a notice of inquiry dated 2 May 2007, the Medical Council directed an inquiry was to be held against the applicant on the following charges :

“That on 20 February 2006, [the applicant] :

(i)  improperly or unnecessarily conducted a physical examination of [his] patient Mr CHAN Yiu Kan for sexually transmitted diseases when the patient had no symptoms or signs suggestive of any such diseases;

(ii)  improperly or unnecessarily advised the patient to undergo laboratory tests for sexually transmitted diseases when he had no symptoms or signs suggestive of any such diseases;

(ii)  charged the patient excessively for the laboratory tests conducted for sexually transmitted diseases.”

6.  On 5 November 2007, the applicant applied to the Medical Council for an adjournment of the hearing, which was allowed on 13 November 2007.  By letter dated 20 November 2007, the Secretary to the Medical Council had this to say :

“On the sole ground that you may require additional time to resort to overseas experts for your case, the Chairman has approved under section 20(1) of [the Medical practitioners (Registration and Disciplinary Procedure) Regulation] for adjournment of the inquiry …

…

… You are requested to let us have your dates which you will be available between December 2007 and March 2008 on or before 4 December 2007.  Your early reply will entail us to work with all parties concerned to re-schedule the inquiry at a mutually convenient date.”

7.  What followed is a series of correspondence between the Medical Council and the applicants’ solicitors on various procedural matters including the fixing of the hearing dates for the inquiry.  It is not necessary to dwell on the details.  Briefly, the solicitors wanted the Medical Council to fix the dates that suit the diaries of the overseas experts and senior counsel.  While the Medical Council was trying to accommodate, it maintained that it is the prerogative of the Chairman to fix the hearing dates.  This cumulated in a letter dated 12 September 2008 in which the solicitors suggested to the Medical Council to provide a series of dates in the first half of 2009 so that they might line up the experts and senior counsel and to fix the dates which would be convenient to all parties concerned.  The Medical Council refused and reiterated its stance as aforesaid in the letter dated 17 September 2008.  In a further letter dated 8 October 2008, the Secretary to the Medical Council said :

“I must reiterate that while we may accommodate defence requests in fixing dates, this can and should only be done if the requests will not result in undue delay and the requests are justified.  The information about your intended expert witnesses I asked for in my letter of 25 July 2008 is necessary to determine whether the requests are justified.  On the other hand, if your expert reports are provided to us for consideration as to whether the same can be agreed, this may solve the problem.  Regrettably so far you have not provided such information.  Similarly, no information or evidence has been provided by you as to the reason for the very limited availability of defence counsel and experts in order to justify the request for holding the inquiry on the limited dates you proposed.

…

It has been an exceptionally long period of time since the inquiry was postponed in November 2007 on your client’s application.  The Chairman of the Medical Council has directed that all parties must give priority to the inquiry, in order to ensure that the inquiry can be held as soon as practicable.  However, potential changes in membership of the Medical Council in January 2009 make it impossible to confirm at this stage members’ availability in 1009.  We shall revert to you once the membership is settled.”

8.  The solicitors’ response on 17 October 2008 did not advance the matter any further.  They repeated the request for the Medical Council to set out its availability for a certain period say the first half of 2009 for them to check the availability of their team.

9.  What happened next is that the Medical Council proceeded to fix the March hearing dates and gave notice as per the letter dated 9 January 2009.  Enclosed with the letter is a copy Practice Directions on Disciplinary Inquiries.  Paragraph 3 of the Practice Directions states that a scheduled inquiry will not be postponed unless there are cogent and valid reasons and that the application for postponement should be made in writing well in advance.

10.  The applicant’s solicitors took 21 days to respond by letter dated 30 January 2009.  There, the solicitors complained that the Medical Council had not consulted the applicant on his availability or that of his counsel or experts before unilaterally fixing the March hearing dates.  They explained why the experts and the senior counsel were not available thus :

“The 2 overseas experts have been engaged in this matter since late 2007.  They have prepared reports for our client that may be adduced at the inquiry.  Upon receipt of your Directions the experts were immediately informed of the dates for the inquiry.  However, the dates cause them difficulties.  Both of them have replied that they could not attend the first day of the inquiry as currently fixed, namely 2 March 2009.  Although not ideal, they may manage to get to Hong Kong but only in time to attend the second day of the inquiry, 7 March 2009.  However, as you are aware and as the Directions appreciates, expert witnesses should usually be present throughout the inquiry so that they may provide expert opinion based on the evidence given at the inquiry.  Our client would have an insurmountable difficulty in adducing and dealing with expert evidence is the inquiry were to proceed on the dates fixed.  It will cause serious prejudice to our client and his case. …

… Senior counsel has also been instructed to advise our client in this matter as early as late 2007.  However, he cannot attend the inquiry on either of the dates currently fixed.  He will be in a part-heard trial which is to be resumed in late February 2009.  Further, we have made enquiries with four other senior counsel who are not available on either of the dates fixed.  In any event our client should be permitted to continue to be represented by his present senior counsel.” 

11.  The solicitors then asked the Medical Council to vacate the March hearing dates and to direct that the inquiry be fixed in consultation with the diaries of the applicant’s two overseas experts and senior counsel.

12.  By letter dated 2 February 2009, the Medical Council refused the application and said :

“Your letter has been placed before the Chairman for consideration.  She has directed me to reply as follows :

(a)  Dr. IP was first notified on 2^nd May 2007 that the inquiry would be held on 14^th November 2007.  He applied for postponement on 5^th November 2007 (i.e. 9 days before the scheduled inquiry) for him to engage an overseas expert.  Although it was questionable whether Dr. IP had been less than diligent in preparing for the inquiry, he was given the benefit of the doubt and the application was granted.  Nevertheless, on 4^th December 2007 Dr. IP’s solicitors only provided some provisional dates in March–May 2008 with the rider that the dates would be subject to the availability of Dr. IP’s intended expert.  Besides, the Council was only notified in June 2008 that Dr. IP intended to engage an additional overseas expert.

(b)  Subsequently, much time and effort were spent on fixing the dates in order to accommodate Dr. IP’s counsel and 2 overseas experts.  Dr. IP’s solicitors demanded that 3 consecutive days be fixed, but claimed that the only available dates of their experts and counsel were 7 days in December 2008 (initially 3^rd–10^th December 2008, later changed to 1^st–7^th December 2008).  Dr. IP’s solicitors later withdraw the dates altogether, and instead of providing alternative dates demanded that the Medical Council provide a series of dates in January–June 2009 for them to choose from.  That would effectively require the Medical Council to delegate unlawfully its duty of fixing the dates of the inquiry to Dr. IP’s solicitors.

(c)  In an attempt to find out whether there was justification for 2 experts and whether the expert reports could be agreed which might solve the problem of fixing dates, on 25^th day of 2008 the Secretariat asked Dr. IP’s solicitors for the relevant information.  Nevertheless, Dr. IP’s solicitors refused to provide any of the requested information.

(d)  While defence requests may be accommodated in fixing dates, the interest of justice (including the public interest of preventing/disciplining sub-substandard conduct of medical practitioners, and fairness to the complainant) must not be compromised.  The inquiry cannot be unduly delayed, particularly given that the patient who will be called to give evidence is at the advanced age of over 80 years.

(e)  Dr. IP’s solicitors have been notified on 9^th January 2009 of the new dates for the inquiry (i.e. 2^nd and 7^th March 2009).  Dr. IP’s solicitors were also informed that given the inordinate delay no further postponement will be allowed except in the most exceptional circumstances, and any application for postponement must be justified by valid reasons and supporting evidence as to why the inquiry cannot be held on the scheduled dates (which necessarily includes evidence that the parties involved have made arrangements to reschedule their other plans but to no avail).

(f)  Dr. IP’s solicitors were also informed that expert evidence must be in a specialist field which is of significant relevance to the charge, and only one expert in each relevant specialist field will be admitted to give expert evidence.  In this respect, it must be borne in mind that the charges are : (i) improperly or unnecessarily conducted physical examination for sexually transmitted diseases when the patient did not have such symptoms; (ii) improperly or unnecessarily advised the patient to undergo laboratory tests for sexually transmitted diseases when the patient did not have such symptoms; and (iii) charged excessive fees for the laboratory tests.  So far no justification has been given for the need to call 2 expert witnesses, the specialist fields in which they will give expert opinion and the relevance of those specialist fields to the charges, and the need to resort to overseas experts.  Locally, there are 76 Specialists in the specialty of ‘Dermatology and Venereology’ on the Specialist Register.  According to Dr. IP’s solicitors, the reports of the 2 overseas experts ‘may be adduced’ at the inquiry, suggesting that the expert evidence may not be required.

(g)  The present application for vacating the scheduled dates is on the ground of unavailability of Dr. IP’s 2 overseas experts on (2^nd March 2009) and his counsel.  No reason for the unavailability of the 2 experts was given, nor was there any information/evidence that they have made any arrangement to reschedule their other plans to make themselves available on 2^nd March 2009.  On the other hand, apparently the only expert opinion relevant to the charges will be whether the patient had symptoms of sexually transmitted diseases according to Dr. IP’s diagnosis, which will depend on Dr. IP’s findings during his medical examination of the patient, not the evidence of the patient at the inquiry.  In those circumstances, the presence of the expert(s) on the first day of the inquiry is not a necessity.

(h) T his is not a complicated case which can only be handled by a small number of barristers in Hong Kong.  There is no reason why the case cannot be handled by other suitable and available counsel.

(i)  In view of the above reasons and having regard to the fact that the inquiry has been delayed for more than a year, there is no valid justification for vacating the scheduled dates on 2^nd and 7^th March 2009.  The application of Dr. IP’s solicitors is rejected.  The inquiry will proceed as scheduled.  Dr. IP should expedite action to prepare for the inquiry on the scheduled dates.”

13.  The applicant immediately took out the present leave application.

Discussion

14.  I now come to the law.

15.  The two decisions under challenge are procedural matters and do not involve any substantive or final determination of any issue to be dealt with in the inquiry.  It seems that it is not easy to mount a judicial review against such procedural decision.   In Financial Secretary v. Wong [2003] 6 HKFCAR 476, Bokhary PJ said at paras. 14–16 at pp. 487C–488C :

“14.  The courts’ judicial review jurisdiction is of a supervisory nature.  This extremely important jurisdiction is not meant for the purpose of micro-managing the activities of subordinate tribunals or administrative decision-makers.  It should hardly ever be exercised to review decisions that go only to procedure rather than to the end result.  I say ‘hardly ever’ rather than ‘never’ because there can be wholly exceptional cases calling for special treatment.  In this connection I would draw attention to the useful discussion of the English cases in Michael Fordham : Judicial Review Handbook, 3^rd ed. (2001) at p.102, para. 4.8.2 under the sub-heading ‘Whether to wait until the conclusion of the matter’.  If the Tribunal had been properly seized of an application for costs, the High Court’s proper course would have been to leave the Tribunal to proceed to a decision on the end result and then, if the circumstances eventually so warranted, judicially review that end result.  Quite apart from anything else, it often happens that the effect of questionable decisions made at an intermediate stage of a process are dissipated or overtaken by subsequent developments and turn out to have little or no impact by the time the final stage is reached.

15.  For his proposition that procedural decisions are susceptible to judicial review, counsel for Mr Wong cited two decisions, both concerning adjournments.  These are the decision of the Divisional Court of the Queen’s Bench Division in R v. Thames Magistrates’ Court, ex parte Polemis [1974] 1 WLR 1371 and the decision of Ronald Young J at first instance in the New Zealand case of Genesis Power Ltd v. Environment Court [2003] NZAR 371.  Polemis’s cases does not really shed any light on the matter.  What was quashed by certiorari there was the conviction following a wrongful refusal of an adjournment.  In the Genesis Power case the judge did consider a decision granting an adjournment to be reviewable (although he declined on the merits to disturb the grant of the adjournment).  But that was a wholly exceptional case in which a general principle was engaged since it was suggested that the Environment Court’s decision to grant an adjournment had been unjustifiably influenced by the prospect of legislation changing the law which it had to apply in arriving at the end result.

16.  As for the Australian cases that may be relevant to this aspect of the present appeal, they include Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321.  That decision is necessarily of particularly persuasive authority even by the much to be admired standards of the High Court of Australia since it is a decision of the Mason Court.  As I understand that decision, my views are in respectful conformity with the thinking underlying it.  But I should indicate that I have taken the precaution of first forming my views independently of what their Honours said because-and solely because-they were concerned with an Australian statute of which Hong Kong has no equivalent.”

16.  Nitton NPJ was of similar view when he said at para. 95 at pp. 501I-511A :

“95.  As Mason CJ said in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at p.337, an essential quality of a reviewable decision is that it is a substantive determination : Thus :

… the refusal by a decision-maker of an adjournment at an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality.”

17.  As recognised by Bokhary PJ, when wholly exceptional circumstances exist, the court is prepared to review procedural decisions.  Ms Cruden, counsel for the applicant, took me through a number of authorities where the court did exactly that where the circumstances were justified.  See for example R v. Medical Appeal Tribunal (Midland Region), ex p Carrarini [1966] 1 WLR 883 where the court quashed the decision of the tribunal refusing to allow an adjournment to enable the applicant to adduce a medical report to counter that adduced by the other side.  Another example that Ms Cruden particularly relied on is Yeung Kwok Fai v. The Commissioner of Police, CACV71/1988, unreported, [1988] HKCU 2333 where the Mortimer VP (as he then was) held that the court might intervene if the applicant demonstrated that he had suffered injustice or there was a real risk that he had so suffered because of the procedural decision.

18.  Time does not permit me to consider the authorities in depth and to derive from them the general principles as to when the court will review a procedural decision.  But I think at least two points are clear.  First, whether the court will intervene must depend on the facts of the case.  Second, if the procedural decision has infringed or there is a real risk that it will infringe the applicant’s right to a fair hearing, the court may intervene.

19.  I next turn to the facts of the present case and begin with the decision to fix the March hearing dates.

20.  Ms Cruden first argued that the Medical Council’s conduct had given rise to a legitimate expectation on his part that the hearing dates of the inquiry will be fixed in consultation with the diaries of his overseas experts and senior counsel.  In support, she placed particular reliance on the letter dated 20 November 2007 : see paragraph 6 above.

21.  I disagree.  The letter of 20 November 2007 cannot be viewed in isolation.  Throughout the correspondence with the applicant’s solicitors, the Medical Council had reiterated time and again its stance that while it would try to accommodate the applicant, it is the prerogative of the Chairman as authorised by the relevant regulation to fix the hearing dates.  I do not think in those circumstances the alleged legitimate expectation can possibly arise.  Any submissions based on it must fail.

22.  Ms Cruden next argued that the Medical Council should have continued with the consultation before fixing the March hearing dates.  Natural justice required it to do so.  She particularly pointed to the last paragraph of the letter dated 8 October 2008 where the Secretary to the Medical Council said he would revert to the applicant’s solicitors once the changes in the membership of the Medical Council were settled.  She said it meant the Medical Council would continue with the consultation before fixing the hearing dates.

23.  Again, I disagree.  As can be readily seen from the correspondence, the applicant’s solicitors remained adamant that the Medical Council should fix the hearing dates that were convenient to the applicant’s team.  They even went so far as to ask the Medical Council to first set out its availability so that the diaries of their team could be consulted accordingly.  That was rightly refused by the Medical Council.  In short, the previous consultation with the applicant for fixing the hearing dates, which lasted for nearly a year since the adjournment of the hearing in November 2007, was unsuccessful.  It was rather unlikely that further discussion on the subject would meaningfully advance the proceedings.  In those circumstances, I do not think the Medical Council is under any duty to continue with the consultation.  The Chairman was quite entitled and indeed correct to fix the March hearing dates without further reference.

24.  I then turn to the decision refusing to vacate the March hearing dates.

25.  Ms Cruden argued that the Medical Council should have vacated the March hearing dates because their experts are definitely not available and the applicant simply does not have sufficient time to find alternative experts.  Without the assistance of experts, the applicant will be prejudiced at the inquiry with serious repercussions.

26.  I fully accept that the applicant’s position may be adversely affected if the hearing proceeds without the evidence of his experts.  However, that alone is not sufficient for the court to intervene.  The question is whether the Medical Council was justified in refusing the application to vacate the March hearing dates after all the then relevant circumstances had been taken into account?

27.  In their letter dated 30 January 2009, the applicant’s solicitors simply stated that the experts were not available without giving any reasons in support.  It is not sufficient to simply say, as Ms Cruden submitted, that the experts are not available.  The Medical Council is entitled to know the reasons for their unavailability in considering the merits of the application to vacate.  The applicant complained that the Medical Council should then have asked for more information to support the application before rejecting it.  I disagree.  The applicant had to make good his own application.  The burden rested squarely with him to justify it with sufficient information.  The Medical Council is under no such duty to ask for more if what had already been provided was insufficient.

28.  As can be seen in the letter dated 2 February 2009, the Medical Council had taken into account all the then relevant circumstances before rejecting the application to vacate.  In particular, it had considered the Medical Council had done so, the undue delays in the proceedings which first began in 2 May 2007 and the fact that the patient is now 80 years of age.  I am unable to accept the submission that the Medical Council had erred in refusing the application.

29.  The applicant has now by way of his second affidavit placed before this court more information why the overseas experts are not available for the March hearing dates.  This however does not take the matter further for the simple reason that these materials were not before the Medical Council.  If that is his wish, the applicant may apply for an adjournment to the Medical Council on 2 March and put forward those further materials in support.  Whether the Medical Council will accede to that application, if made, remains to be seen.  But that does not concern the court in the present leave application.

30.  In sum, while I fully appreciate that without the overseas experts, the applicant’s defence at the inquiry may be prejudiced, I do not think the blame can be laid at the Medical Council’s door because it had refused to vacate the March hearing dates.

31.  As to unavailability of senior counsel of the applicant’s choice, that is not a valid point at all.  It is common ground that the case is relatively simple.  Plainly, many senior counsel and indeed senior junior, like Ms Cruden, can handle it with competence.  The applicant should have no difficulty in engaging a suitable counsel to represent him at the coming hearing.

32.  For completeness, I would add that I have already considered each of the grounds as set out in the notice for the present application with care.  But I am not convinced that they support a reasonably arguable case for judicial review.

Conclusion

33.  For the above reasons, despite the able submissions by Ms Cruden, the applicant has failed to show a reasonably arguable case for judicial review.  This leave application is dismissed accordingly.