WAN HUNG CHING AARON v. PHYSIOTHERAPISTS BOARD HONG KONG

CACV 127/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 127 OF 2007

(ON APPEAL FROM HCAL NO. 30 OF 2007)

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JUDGMENT

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Hon Tang VP:

1.  This is the applicant’s appeal against Fung J’s decision made on 26 April 2007, refusing leave to apply for judicial review.

2.  The application arose out of the applicant’s complaint to the Physiotherapists Board of Hong Kong (“the Board”), against a registered physiotherapist Mr To Yiu-kwok, in relation to an article in the Apple Daily published on 8 October 2006.

3.  The relevant parts of the article are:

“Registered physiotherapist To Yiu-kwok indicated, … … , one of the causes of scoliosis is due to some parents using the baby walker prematurely when the baby is only 8 to 9 months old and the load bearing capability has not yet been formed.

……

Generally speaking, when the spinal curve magnitude exceeds 20°, the body is noticeably slanted.  Once it exceeds 40°, remedial operation must be undertaken.”

4.  It was one of the applicant’s complaints that the premature use of the baby walker and scoliosis had no obvious cause-effect relationship.  Further, for example, he relied on information posted on the website of the American Academy of Orthopaedic Surgeons, such as:

“The vast majority of scoliosis is ‘idiopathic’, meaning its cause is unknown …

Scoliosis can occur at any age.  Adolescent idiopathic scoliosis occurs after the age of 10.  It is the most common type.  Infantile scoliosis occurs in children less than 3 years old.  It may result from a birth defect, disease of the nerves and muscles (such as muscular dystrophy or cerebral palsy), injury, infection or tumor…”

5.  The applicant also complained that Mr To went beyond his expertise in commenting on the need for surgery.

6.  Under the Physiotherapists (Registration and Disciplinary Procedure) Regulation (Sub-leg J) (“the Regulation”) made under the Supplementary Medical Professions Ordinance (Cap.359), the complaint was referred to the Preliminary Investigation Committee (“the Committee”) under section 18.

7.  The Committee was required to consider document and matter put before it and then to determine either – (a) that no inquiry should be held; or (b) that the complaint should in whole or in part be referred to the Physiotherapists Board for inquiry (section 21).

8.  On 12 February 2007, the Secretary to the Board wrote to the applicant stating that the Committee decided that the case should not be referred to the Board for disciplinary inquiry.

9.  In the Form 86A, the notice of application for leave to apply for judicial review, the only relief sought was for:

“1.  Mandamus: Refer the case of Mr TO Yiu-kwok back to the Hong Kong Physiotherapists Board for inquiry.”

10.  And the only ground on which relief is sought was stated to be:

“1.  The ruling of ‘not referring the case to the Physiotherapists Board for disciplinary inquiry’ on the allegations against Mr To Yiu-kwok by the Preliminary Investigation Committee of the Board is not justified.”

11.  No reason had been given by the Committee for not referring the matter to the Board for inquiry.  The Committee’s letter dated 12 February 2007 simply stated that they:

“…had considered your complaint against Mr TO Yiu-kwok at the meeting held on 9 February 2007.  Having considered all the information available, including your e-mails dated 16 October 2006 and 17 October 2006, and the written submissions by Mr TO, the Committee decided that the case should not be referred to the Physiotherapists Board for disciplinary inquiry.  Hence, your complaint will not proceed further and the Physiotherapists Board’s action in this regard has been concluded.”

12.  On such material, we cannot conclude that there is any basis for complaint.  For all we know, the Committee might have decided not to proceed with the complaint because Mr To had not been accurately reported.

13.  In the applicant’s written submission, he complained that:

“…The Board did NOT provide any rationales on which the said decision relied in its letter of 12 February 2007. Lacking the knowledge of the rationales of the Board’s decision, the Applicant was UNABLE to decide whether the Board’s decision ‘is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’. (Council of Civil Service Union v Minister for the Civil Service [1985] AC 374, page 410, line G).

Not disclosing the rationales of the decision by the Board on its letter of 2 February 2007 per se is Wednesbury unreasonable.”

14.  But that was not the complaint nor the relief sought in Form 86A, so this is not a point which is open to the applicant.  The same applies to the applicant’s argument that the Board should obtain advice from orthopaedic surgeons.

15.  Nor has the applicant demonstrated that in this case one could possibly infer from the absence of reason that the Committee acted in any way unreasonably.  Even if, which we do not decide, the Committee could be regarded as an administrative body for the purpose of judicial review, there is no general requirement that every administrative body has to give reasons for its decision: R v Secretary of State for Home Department, ex parte Doody [1994] 1 AC 531 at p. 564E; Chan Tit-shau v Secretary for Justice [2004] 1 HKLRD 801; The Hong Kong Canadian International Hospital Foundation Ltd v The Secretary for Justice, HCAL 131 of 2006, unreported, dated 4 May 2007.

16.  From what we have seen from the material provide by the applicant, we are not surprised at all that the Board decided to take the matter no further.  We would not spend time to deal with the various technical points raised by the applicant, for example, whether there are any known causes for scoliosis.  The resolution of that question is not critical to this application.  It suffices to say that we do not regard the decision of the Board as so apparently aberrant that fairness requires reasons to be given.

17.  I therefore agree with the learned judge that leave should not be granted.  I would dismiss the appeal.

Hon Lam J:

18.  I agree and I have nothing to add.