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

CACV 206/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 206 OF 2014

(ON APPEAL FROM HCAL 121 OF 2012)

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REASONS FOR JUDGMENT

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Hon Poon JA (giving the Reasons for Judgment of the Court) :

A. INTRODUCTION

1. This is an appeal against the judgment of Mimmie Chan J dated 24 September 2014 (“the Judgment”), dismissing the appellant’s application for judicial review against the decisions of the respondents which refused him permission to sit for the Licensing Examination for the year 2011 under section 7A of the Medical Registration Ordinance (“the Ordinance”).[1]

2. On 28 October 2015, after hearing counsel for the appellant,[2] we dismissed the appeal with costs. We had indicated that we would hand down the reasons for our judgment, which we now do.

B. THE PRINCIPAL ISSUE

3. Generally speaking, any person who wishes to practise as a medical practitioner must register as such under section 14.[3] In order to be qualified for such registration, he must, among other things, have passed the Licensing Examination set up by the Medical Council of Hong Kong (“the Council”) under section 7 : see section 8(1)(b). Eligibility for taking the Licensing Examination is set out in section 7A in these terms :

“(1) No person shall be eligible to take the Licensing Examination unless- (Amended 7 of 1996 s. 40)

(a) he makes an application in that behalf to the Council and pays to the Registrar a prescribed fee for taking the Licensing Examination; and

(b) he satisfies the Council-

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

(ii) that he is of good character.

(2) For the purpose of subsection (1)(b)(i), the 5 years full time medical training shall include a period of internship as approved by the Council.”

4. The principal issue raised in this appeal is whether or not “medical training of a type approved by the Council” includes training in Chinese medicine for the purpose of section 7A(1)(b)(i). It arose in this way.

C. BACKGROUND

5. In June 2007, the appellant graduated from the undergraduate programme of clinical medicine in Jinan University (“the Jinan Programme”). Although the Jinan Programme was a six-year one, the appellant managed to finish it in less than four years (including a period of 12 months’ internship) after the University granted him certain exemptions on account of his doctorate degree in Chinese medicine conferred by the Guangzhou University of Traditional Chinese Medicine in 2003 (“the Guangzhou Programme”).[4] It is not in dispute that the Jinan Programme is medical training of a type approved by the Council for the purpose of section 7A(1)(b)(i).

6. In 2007, the appellant obtained approval from the Council to sit for the Licensing Examination held in that year. He passed in Part II but failed in Part I. In 2008, he sat for the Licensing Examination for the year again, having obtained prior approval from the Council to do so. He failed in Part I again. In 2009, he again obtained approval from the Council to sit for the Licensing Examination of the year. But he did not take it this time.

7. In April 2011, the appellant applied to the Licentiate Committee of the Council to sit for the Licensing Examination for that year. By a letter dated 4 August 2011, the Credentials Sub-Committee of the Licentiate Committee informed the appellant that his application to sit for the 2011 Licensing Examination was refused. The reason was that his medical training under the Jinan Programme fell short of the five years’ requirement under section 7A. And the Guangzhou Programme was not accepted by the Council as medical training for the purpose of section 7A.

8. The appellant then applied to the Review Sub-Committee of the Licentiate Committee for a review of the decision of the Credentials Sub-Committee. That review failed when the Review Sub-Committee upheld the Credentials Sub-Committee’s decision by a letter dated 23 August 2011.

9. The appellant then appealed to the Licentiate Committee. The appeal hearing took place on 8 November 2011. By a letter dated 19 June 2012, the Licentiate Committee informed the appellant of its decision to uphold the decision of the Review Committee, thereby rejecting his appeal. A copy of the Licentiate Committee’s decision dated 13 June 2012 was attached to the letter.

10. The appellant then applied to the court for leave to judicially review the above decisions of the Licentiate Committee and its two Sub-Committees (collectively “the Decisions”). Leave was granted on 3 October 2012. The substantive hearing came before the learned Judge on 5 March 2014.

D. JUDGMENT BELOW

11. The appellant’s case was, in gist, this. The Jinan Programme was medical training of a type approved by the Council under section 7A(1)(b)(i). By virtue of the fact that the Council had in 2007 until 2009 accepted his application to take the Licensing Examination for those years (“the Practice”[5]), a legitimate expectation that the Council must have accepted that the Guangdong Programme was medical training of a type approved by the Council arose. By combining the time that he spent in finishing the two Programmes, he had satisfied the five years’ requirement under section 7A(1)(b)(i), thus qualifying him to sit for the Licensing Examination in 2011.

12. In challenging the Decisions, the appellant had raised a total of seven grounds in his Form 86. He contended that the Credentials Sub-Committee, the Review Sub-Committee and the Licentiate Committee had :

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

(2) failed to take into account relevant considerations;

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

(4) failed to act fairly;

(5) been irrational and unreasonable;

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

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

D1. Legitimate expectation

13. The appellant’s case was principally centered on his ground on legitimate expectation. There were two factual components in this ground.

14. The appellant first alleged that in around 2002, before he started the Jinan Progarmme, he had made telephone inquiries with the Council as to whether it would accept a 4-year medical degree in the USA. An unnamed representative of the Council informed him that “the entire university education would be considered as a whole, including any pre-medical education” (“the Representation”). Relying on the Representation, the appellant enrolled at the Jinan University and completed the Jinan Programme in less than five years. He asserted that the Representation gave rise to a legitimate expectation on his part, that he would be allowed to take the Licensing Examination even if he should complete the Jinan Progarmme in less than five years, because his pre-medical education training would also be taken into account and considered by the Council when deciding his eligibility for taking the Licensing Examination under section 7A.

15. The appellant also asserted that the Practice had given rise to his legitimate expectation: (a)that he would continue to be allowed to take the Licensing Examination in 2011; and (b)of his having satisfied the Council of the five years’ requirement to be eligible to sit for the Licensing Examination under section 7A.

16. In conclusion, the appellant complained that in dismissing his appeal, the Licentiate Committee had abused its power by breaching the representation which had given rise to his legitimate expectation.

17. The Judge dealt with the Representation in this way.

18. She found that the appellant had failed to establish the Representation factually.[6] She then found that on the appellant’s own case, even if the Representation had in fact been made, he had failed to inform the Council or its Committees of the fact that it had been made to him. Having failed to establish that the Council and its Committees were aware of the Representation when the Decisions were made, the appellant could not complain that the Council or its Committees had acted unreasonably, unfairly or had abused their position by failing to give regard to the Representation.[7] Finally, she found that properly read in its context, the Representation could not give rise to any legitimate expectation as contended by the appellant.[8]

19. The Judge therefore rejected the appellant’s case of legitimate expectation based on the Representation.[9]

20. Turning to the Practice, the Judge first noted that an application to sit for the Licensing Examination has to be filed for each year and an approval of an application for one year does not dispense with the need to make a fresh application in the following year.[10] However, the appellant’s applications in 2007 to 2009 were all approved on the basis of his background, degree and training, which had not been altered when he made his application in 2011. She accepted that the Practice could constitute an implied representation which could give rise to an expectation on the appellant’s part.[11]

21. The Judge then considered what legitimate expectation could have arisen. In so doing, the Judge first had regard to the main functions and duties of the Council and its Committees (delegated with the exercise of the Council’s powers).[12] She then considered the reasons why the Licentiate Committee rejected his application.[13] She then concluded that the reasonable expectation that the Practice gave rise was that his application to take the Licensing Examination in 2011 would most likely be accepted by the Council, on the basis of the same degree, qualification and training which had formed the basis of his earlier applications in 2007 to 2009, noting that an application had to be made annually could not reasonably suggest to anyone that such an application would be a matter of formality and must be granted.[14] In other words, the appellant could only legitimately expect that the Council and its Committees would bear in mind the Practice, giving it due weight, before deciding whether to accept his application to take the Licensing Examination in 2011 on the same qualification, degree and training.[15]

22. However, the Judge went on to find that there was no breach of the appellant’s legitimate expectation.[16] Significantly, she said :

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

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

23. After referring to the authorities, she held :

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

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

D2. Failure to take into account relevant matters

24. The Judge rejected this ground. Significantly for present purposes, she held :

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

D3. Failure to act fairly

25. Rejecting this ground, the Judge said :

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

D4. Other grounds

26. For the reasons that she gave, the Judge rejected the other remaining grounds relied on by the appellant.[17]

E. DISCUSSION

E1. Impermissible attempt to resurrect an abandoned ground of appeal

27. In the notice of appeal dated 22 October 2014, the appellant raised four grounds of appeal. Ground 1 complained that the Judge erred in her ruling on the departure from legitimate expectation arising from the Practice. However, by a supplementary notice of appeal dated 7 October 2015, all the grounds in the notice of appeal were deleted. Seven new grounds were now raised and none of them concerned legitimate expectation. But at the outset of the hearing before us, Ms Ling, counsel for the appellant, tried to resurrect the appellant’s complaint relating to legitimate expectation. That was simply impermissible and we refused to allow Ms Ling to dwell on such submissions.

E2. New grounds of appeal

28. Ground 1 of the new grounds of appeal complained that the Judge wrongly held at [45] of the Judgment that “the Council only approves training in Western medicine – and not training in Chinese medicine”, because there is no evidence in support of such finding and because of what happened in 2007 to 2009, the Council must have approved the appellant’s applications on the basis that his training in Chinese medicine constituted “medical training of a type approved by the Council”.

29. Ground 2 contended that the Judge should have held that the reasoning of the Licentiate Committee was wrong because there is no requirement in the Ordinance that only “training in Western medicine” would be accepted; and as stated above the appellant’s prior training in traditional Chinese medicine had been approved by the Council.

30. Ground 3 contended that the Judge’s holding at [49] of the Judgment is wrong because back in 2007 to 2009, the Council had already approved the type of medical training that the appellant had undertaken and satisfied itself that the appellant had satisfactorily completed not less than five years full time training of that type. There is no evidence that the approval by the Council must be given on a separate, independent occasion, than when the Council gave approval to him to sit the Licensing Examination.

31. Ground 4 concluded by contending that the Judge wrongly held at [50] of the Judgment that there was no abuse of power on the part of the Council.

32. Ground 5 complained that the Judge erred in [54] of the Judgment because there is no evidence that only training in Western medicine would be approved; and the finding was contradicted by the Practice.

33. Ground 6 is not a ground of appeal as such. The point made there is that [57] of the Judgment reinforces that what is relevant is the type and period of training that the appellant himself had relied on and had been approved, regardless of whether the same type had been relied upon or approved in the case of other candidates.

34. Finally, Ground 7 contended that the Judge erred at [61] of the Judgment in holding that there is no ground whatsoever to find that the Decisions were not Wednesbury unreasonable.

E3. Two main Propositions

35. These new grounds of appeal boiled downed to two main propositions.

36. First, there is no requirement under the Ordinance that only Western medicine would be regarded as “medical training of a type approved by the Council” for the purposes of determining eligibility to sit for the Licensing Examination under section 7A(1)(b)(i). The Licentiate Committee therefore erred in this respect. So did the Judge. We will call this the First Proposition.

37. Second, there is no evidence to suggest that only Western medicine would be regarded as “medical training of a type approved by the Council” for the purposes of determining eligibility to sit for the Licensing Examination under section 7A(1)(b)(i). To the contrary, by virtue of the Practice, the Council had in fact accepted the Guangzhou Programme to be “medical training of a type approved by the Council”, despite the fact that it was a programme of Chinese medicine. The Decisions to disqualify the appellant from sitting for the Licensing Examination in 2011 were therefore based on a wrong factual footing. We will call this the Second Proposition.

38. We now consider them in turn.

E4. The First Proposition

39. The First Proposition calls for a proper construction of section 7A(1)(b)(i).

40. Section 7A(1)(b)(i) has to be construed in the entire context of the Ordinance.

41. We first note that the title of the Ordinance reads: “To consolidate and amend the law by making more comprehensive provisions regulating the registration of practitioners in medicine and surgery”. In Chinese, it reads: “本條例旨在藉訂立更全面規管內外科醫生註冊的條文而綜合與修訂有關的法律”. The terms “medicine” (內科) and “surgery” (外科) are, as rightly accepted by Ms Ling, terms used in Western medicine. This is a useful pointer indicating that the Ordinance concerns Western medicine only. The repeated references of “medicine” (內科) and “surgery” (外科) in the relevant provisions relating to regulation of the registration of medical practitioners reinforce this point.

42. The registration scheme in Part III of the Ordinance is outlined below.

(1) The Registrar of Medical Practitioners appointed pursuant to section 5 shall keep a register known as the General Register and another register known as the Specialist Register: section 6(1) and (3).

(2) The General Register is divided into four Parts. Relevantly for present purposes, Part I of the General Register is designated for all persons who have been registered under section 14: section 6(1)(a).[18]

(3) A person is not qualified to be registered as a medical practitioner under section 14 unless, among other things, he has passed the Licensing Examination: section 8(1)(a).

(4) Licensing Examination is set by the Council, the passing of which shows the achievement of a standard acceptable for registration, under section 8(1)(b), as a medical practitioner: section 7(1).

(5) A person must satisfy the requirements set out in section 7A before he is eligible to take the Licensing Examination:

(a) He makes the application in that behalf to the Council and pays to the Registrar the prescribed fee for taking the Examination (section 7A(1)(a)).

(b) He satisfies the Council that at the time of the application he has satisfactorily completed not less than five years full time medical training of a type approved by the Council (which shall include a period of internship as approved by the Council (section 7A(2)) and is the holder of a medical qualification acceptable to the Council (section 7A(1)(b)(i)); and that his is of good character (section 7A(1)(b)(ii)).

(6) Any person entitled to be registered under section 14 may apply to the Registrar for registration: section 14(1). Upon registration, the Registrar shall issue to him a licence of the Council: section 14(3). Twice a year, the Registrar shall prepare and publish in the Gazette a list of the names, addresses, qualifications and dates of the qualifications of all persons whose names appear on Part I of the General Register: section 15(1) and (2). The publication of such a list shall be prima facie evidence that each person named in the list is registered: section 15(3).

(7) Registration as a registered medical practitioner is a prerequisite for a person who wishes to practise medicine (內科), surgery (外科) and midwifery (助產科): section 16(1). Another prerequisite is the holding of a practising certificate. A registered medical practitioner must hold such a certificate before he can practise medicine, surgery or midwifery in Hong Kong or any branch of medicine or surgery in Hong Kong: section 20A(1).

43. A person who (a) wilfully or falsely pretends to be qualified to practise medicine or surgery; or to be registered; (b) wilfully or falsely takes or uses any name, title, addition or description implying that he is so qualified or registered; or (c) not being registered or provisionally registered or exempted from registration, professes to practise or publishes his name as practising medicine or surgery, commits a criminal offence and is liable on conviction to a fine and to imprisonment for three years: section 28(1).

44. As can be readily seen, the entire registration scheme in Part III, the privileges conferred by section 16 and the penal consequences imposed by section 28, is to ensure that only properly qualified and registered medical practitioners holding a practising certificate can practise medicine (內科), surgery (外科) and midwifery (助產科) in Hong Kong. And medicine (內科), surgery (外科) and midwifery (助產科) are references to Western medicine only.

45. Section 31 is also important in understanding the legislative intent of the Ordinance. Section 31(1) provides :

“Nothing in this Ordinance shall be deemed to affect the rights of any Chinese medicine practitioner registered or listed under the Chinese Medicine Ordinance (Cap. 549) (“the CMO”), not being a person taking or using any name, title, addition or description calculated to induce anyone to believe that he is qualified to practise medicine or surgery under this Ordinance, to practise Chinese medicine in accordance with the provisions of that Ordinance.”

Section 31(2) then provides for the taking and using in Chinese of the words as set out in subparagraph (a) and the taking and using in Chinese of the words by a Chinese medicine practitioner registered or listed under the CMO, as the case may be, shall be deemed to be the taking and using calculated to induce anyone to believe that the user is qualified to practise medicine (內科) or surgery (外科) under the Ordinance and that he is registered under the Ordinance.

46. Plainly, section 31 draws a clear distinction between medical practitioners who are qualified to practise medicine (內科) or surgery (外科) under the Ordinance and Chinese medicine practitioners registered or listed under the CMO. The latter are simply not qualified to practise medicine (內科) or surgery (外科) under the Ordinance.

47. In our view, when all the relevant provisions of the Ordinance are properly considered, the legislative intent of the Ordinance is clear. It only applies to Western medicine and not Chinese medicine.

48. The practice of Chinese medicine, as rightly observed by the Judge, is exclusively governed by the CMO. Relevantly, under section 59 of the CMO, a person who wishes to practise Chinese medicine must take and pass the Chinese Medicine Practitioners Licensing Examination. And to be eligible to take the Examination, he must, among other things, satisfy the Chinese Medicine Practitioners Board[19] that at the time of his application to take the Examination, he has satisfactorily completed such undergraduate degree course of training in Chinese medicine practice or its equivalent as is approved by the Practitioners Board: section 61(1)(a) of the CMO. By virtue of the CMO, the legislature has tasked the Chinese Medicine Practitioners Board to deal with the qualification and registration of Chinese medicine practitioners, including the eligibility to take the Chinese Medicine Practitioners Licensing Examination by reference to the applicant’s training in Chinese medicine practice. So one’s qualification and training in Chinese medicine is to be considered in the context of the Chinese Medicine Licensing Examination under the CMO, and not the Licensing Examination under the Ordinance.

49. We reject the First Proposition. In our view, the Council is entirely correct in its view that for the purpose of section 7A the Council only approves training in Western medicine and not training in Chinese medicine. The Judge is correct in upholding the Council’s view.

E5. The Second Proposition

50. The Second Proposition can be disposed of shortly.

51. Contrary to Ms Ling’s submissions, there is in fact evidence to show that the Council has never accepted training in Chinese medicine as medical training of a type approved by the Council. According to Mr Cheung Hon Mong, Chairman of the Licentiate Committee and a Council member of long standing:[20]

“Medicine training in the context of the Ordinance means training in Western medicine which is governed by the Ordinance, and does not include training in Chinese medicine which is governed by [the CMO] or any other non-Western medicine.”[21]

52. Ms Ling kept harking back to the Practice, arguing that it was evidence that the Guangzhou Programme had been accepted by the Council as “medical training of a type approved by the Council”. With respect, we disagree.

53. Taking it at its highest, the Practice gave rise to the legitimate expectation as identified by the Judge at [35] of the Judgment and no more. Such legitimate expectation does not turn the Practice into evidence as contended by Ms Ling.

54. More importantly, as rightly accepted by Ms Ling, the Council is duty bound to consider the appellant’s application to take the Licensing Examination in 2011 on its own merits. What the Council might have decided in 2007 to 2009 is simply irrelevant.

55. We reject the Second Proposition.

E6. Other subsidiary points

56. What remain are some subsidiary points raised by Ms Ling in her submissions. We shall deal with them briefly.

57.Relying on the Practice again, Ms Ling submitted, in effect, that because of the Practice, the Council must allow the appellant’s application to take the Licensing Examination in 2011. That must be wrong because, as we have said, the Council must consider that application on its own merits as it then stood.

58. Ms Ling complained that the Licentiate Committee had failed to consider the contents of the Guangzhou Programme. But the only evidence about its contents was in the form of a one-page transcript. And the Licentiate Committee must have taken that and indeed all the circumstances into account in determining the appellant’s application: see the Licentiate Committee’s decision dated 13 June 2012 attached to its letter dated 19 June 2012. It was only after evaluation of all the circumstances including the Guangzhou Programme that the Licentiate Committee said :

“[The appellant’s] argument is that the shortfall in training duration was made up for by his prior training in traditional Chinese medicine. We disagree, as training in Chinese medicine is entirely different from training in Western medicine. Furthermore, the training (which must mean the Guangzhou Programme) was neither provided by a medical school, nor in the context of a medical training programme. It is not medical training, let alone medical training of a type approved by [the Council].”

59. Finally, we reject Ms Ling’s submission that the Council and its Committees had abused their power or had otherwise acted unfairly so as to justify the appellant’s challenge against the Decisions by way of judicial review.

F. CONCLUSION

60. In our view, the Judge was correct in dismissing the appellant’s judicial review. There is no merit whatsoever in the grounds of appeal. We therefore dismissed the appellant’s appeal with costs, to be taxed on a party and party basis if not agreed.