Dr U v. THE PRELIMINARY INVESTIGATION COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

HCAL 195/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 195 OF 2015

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D E C I S I O N
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Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Preliminary Investigation Committee (the PIC) of the Medical Council of Hong Kong (the Medical Council) to refer a case to the Medical Council for inquiry, contained in a letter dated 17 July 2015 from the Secretary of the Medical Council (the Secretary) to the applicant’s solicitors.

2.  The application for leave was dealt with in a hearing where the respondents participated and were legally represented.  The interested party, being the complainant to the Medical Council against the applicant, through his legal representatives declined to participate in the proceedings, but indicated that he still maintained his complaint against the applicant. 

Decision under review

3.  It is alleged that the decision under review relates to the same complaint that had been previously considered by the Chairman and the Deputy Chairman of the PIC, who upon a consideration of the submitted material dismissed the complaint by letter dated 8 February 2012 from the Secretary to the complainant.  It transpired that soon after the Chairman and the Deputy Chairman were asked by the complainant to reconsider the complaint.  This resulted in them referring the complaint to the PIC for consideration which decided to refer it to the Medical Council for inquiry. 

4.  At issue in this application is the jurisdiction of the PIC to consider a complaint and refer it to the Medical Council for inquiry, after the Chairman and the Deputy Chairman of the PIC had already dismissed the complaint, pursuant to section 6 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap 161E, (the Regulation) on the grounds that the complaint was “frivolous, or groundless, and should not proceed further”.

5.  It is argued by the applicant that the complaint having been dismissed, should not have proceeded any further, unless or until the dismissal decision was set aside or quashed as being an error of law and therefore the course adopted resulted in a decision which was ultra vires.  It is also argued by the applicant that the PIC’s consideration of the complaint without the disclosure of relevant materials was further procedurally unfair.

Grounds for judicial review

6.  The applicant seeks a judicial review on four grounds.  Ground 1 alleges that the decision was ultra vires in that the PIC had no jurisdiction to consider a complaint which had been previously dismissed pursuant to section 6(3) of the Regulation.  Ground 2 alleges that the non-disclosure of materials in relation to the decision was procedurally unfair.  This concerns the refusal by the Secretary to disclose other materials and correspondence between the complainant and the Medical Council in relation to the reconsideration of the complaint.  Both Grounds 3 and 4 are in the alternative.  Ground 3 alleges that the PIC failed to consider relevant considerations in relation to the question of jurisdiction.  Ground 4 alleges that the PIC was unreasonable and irrational on the question of jurisdiction. 

Background facts

7.  On 28 November 2007, the applicant, a specialist urologist, conducted an operation on the complainant.  The operation became the subject of litigation between the complainant and the applicant which was eventually settled. 

8.  On 17 December 2010, the complainant lodged a complaint with the Medical Council against the applicant.  As already mentioned, it was dismissed by letter dated 8 February 2012, where the Secretary stated that the Chairman and the Deputy Chairman had considered the complaint in accordance with section 6 of the Regulation, and found there was no evidence to show any professional misconduct on the part of the applicant.  It followed that the complaint would not be pursued further by the Medical Council under the Regulation, and that its action on the complaint had been concluded. 

9.  In response, however, on 3 April 2012, the legal representatives of the complainant asked that the matter be reconsidered and submitted some additional material in support of their request.  The Chairman and the Deputy Chairman did reconsider the complaint and purportedly pursuant to section 9 of the Regulation referred it to the PIC. 

10.  On 7 August 2014, the applicant learned that the complaint was to be considered by the PIC by a notice served on him under section 9(2) of the Regulation.  He was invited to give a written explanation if he wished in relation to the complaint. 

11.  On 19 August 2014, the applicant’s legal representatives requested disclosure of all correspondence that passed between the complainant and the Medical Council, but it was refused on the basis that all documents and materials had already been provided under the PIC notice. 

12.  On 26 September 2014, the applicant’s legal representatives submitted that in the circumstances the Chairman had no power to direct that a meeting of the PIC be held, and that the PIC had no jurisdiction to consider the complaint.  The submissions were premised on the previous dismissal of the complaint and the absence of jurisdiction of the PIC to thereafter handle the complaint. 

13.  On 17 July 2015, the Secretary informed the applicant that a meeting of the PIC was held on 8 December 2013 and 13 July 2015 and that the PIC decided to refer the complaint to the Medical Council for inquiry. 

Res judicata

14.  The key issue in the present case is the doctrine of res judicata which was recently addressed by the Supreme Court of England and Wales in R (Coke-Wallis) v Institute of Chartered Accountants [2011] 2 AC 146.  In that case, the Institute of Chartered Accountants in England and Wales had mishandled disciplinary proceedings against Coke-Wallis because it had failed to cite the relevant type of wrongdoing.  The result was that the disciplinary tribunal had acquitted him of the charge of professional misconduct.  The Institute sought to bring a second set of proceedings on the same complaint in which a related form of wrongdoing would be raised against Coke-Wallis.  The Supreme Court concluded that the Institute was precluded by res judicata from doing this and that the dismissal of the first complaint was an absolute bar to proceeding with the second complaint. 

15.  In the judgment of Lord Clarke of Stone-cum-Ebony JSC (with whom the other judges agreed), it was held that disciplinary proceedings were civil in nature and therefore the principles of res judicata applied, and that there was no reason why cause of action estoppel should not apply to successive sets of disciplinary proceedings.  Lord Clarke identified that cause of action estoppel has the following six constituent elements at §34:

“(i) the decision, whether domestic or foreign, was judicial in the relevant sense; (ii) it was in fact pronounced; (iii) the tribunal had jurisdiction over the parties and the subject matter; (iv) the decision was – (a) final; (b) on the merits; (v) it determined a question raised in the later litigation; and (vi) the parties are the same or their privies, or the earlier decision was in rem.”

16.  The principal issue to be decided in the present case is whether the initial dismissal of the complaint by letter dated 8 February 2012 satisfied the six elements and whether it was an absolute bar to proceeding with the complaint thereafter. 

17.  Mr Gerard McCoy, SC, for the applicant, submits that the six elements are satisfied and the PIC proceeded to deal with the complaint when it had no jurisdiction to do so.  He relies on the language of the statute and the language of the letter of 8 February 2012, where the applicant is referred to as a defendant and the complaint is expressly dismissed.  He argues that the PIC had no jurisdiction to consider the complaint and that the issue of jurisdiction had to be addressed once it had been raised by the applicant.  He submits that it would appear by its referral decision that the PIC must have concluded that it had jurisdiction. 

18.  In contrast, Mr Jenkin Suen, for the respondents, submits that not all the elements are satisfied and there was no bar for the PIC to proceeding with the complaint which it eventually referred to the Medical Council for inquiry.  He argues that the decision by the Chairman and the Deputy Chairman to reconsider the complaint was made at the first stage of a two-stage screening process as established under the statute and that the previous decision was not a final determination on the merits where the applicant was not involved.  He submits that there was no express prohibition under the statute for the Chairman and the Deputy Chairman to reconsider the complaint and the PIC had jurisdiction to deal with the complaint thereafter.

19.  Both counsel have put forward reasonable arguments in support of their respective cases which need to be fully addressed and further considered in substantive hearing. 

20.  This is a significant case because of the relevance and the adoption of the principles in R (Coke-Wallis) to public law proceedings, which I am informed by Mr McCoy, have not been previously considered by the Hong Kong courts in the context of regulatory or disciplinary proceedings. 

Conclusion

21.  I am satisfied that the applicant’s grounds for judicial review are reasonably arguable with realistic prospect of success.  I should also add that the respondents have submitted reasonable arguments in opposition but as I have indicated the matters arising from the present case need to be addressed and considered in substantive hearing with the benefit of full argument. 

22.  I make an order that costs be reserved and that the substantive hearing of the judicial review is fixed for 16 February 2016.