MEDICAL COUNCIL OF HONG KONG v. HELEN CHAN

FACV No. 13 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 13 OF 2009 (CIVIL)

(ON APPEAL FROM CACV NO. 403 OF 2006)

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JUDGMENT ON COSTS

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Mr Justice Bokhary PJ :

1.  This is the Court’s judgment on costs.  It should be read together with the judgment which the Court handed down on 14 May 2010. 

2.  The Medical Council found Dr Helen Chan guilty of professional misconduct.  It ordered that her name be removed from the General Register, such removal to be suspended for two years.  She appealed to the Court of Appeal against the correctness of that finding and the severity of that penalty. Her attack against the finding of professional misconduct was made on two grounds.  Each ground involved an important question of law.  One of these questions went to whether the role played by its Legal Adviser vitiated the finding of professional misconduct which the Medical Council made.  The other question went to whether the customary rule of ethics invoked against Dr Chan was in conformity with law and fairly deployed against her.

3.  Answering the “customary ethics” question against her but the “role of the Legal Adviser” question in her favour, the Court of Appeal set aside the finding of professional misconduct.  Since they quashed that finding, the Court of Appeal did not have to decide the appeal against the severity of the order of suspended removal.  However, they noted the concessions made by Mr Gerard McCoy SC who appeared before them for the Medical Council.  These concessions were that the Medical Council had erred in treating the complaint as “not a one-off incident”; that the appropriate sentence (were it to arise) would be at large for the Court of Appeal to decide; and that it would not be inappropriate for the Court of Appeal to substitute a reprimand for the suspended removal ordered by the Medical Council.

4.  On appeal to us by the Medical Council, we decided both questions of law in its favour and restored the finding of professional misconduct.  As to penalty, Lord Pannick QC who appeared for the Medical Council before us did not seek to resile from Mr McCoy’s stance that it would not be inappropriate to substitute a reprimand for the suspended removal ordered by the Medical Council.  Mr Michael Thomas SC for Dr Chan submitted that if we were to restore the finding of professional misconduct, which he asked us not to restore, then the appropriate penalty would be the least serious one provided for by s.21(1) of the Medical Registration Ordinance, Cap.161, namely an order that a warning letter be served on Dr Chan.  When we put the question of a remitter on the matter of penalty to them, neither Lord Pannick for the Medical Council nor Mr Thomas for Dr Chan argued against such a course.  In the result, we remitted the case to the Medical Council for it to hear full mitigation and then order either a reprimand or the serving of a warning letter. 

5.  As to costs, we called for written submissions from the parties.  Such submissions have now been gratefully received and carefully considered.  We thank counsel on both sides for the same.

6.  There are four sets of costs which the parties ask us to deal with.  They are the costs of :

(i) Dr Chan’s appeal to the Court of Appeal;

(ii) the Medical Council’s application to the Court of Appeal for leave to appeal to us;

(iii) the Medical Council’s appeal to us; and

(iv) the written submissions as to costs which the parties have filed.

7.  The Medical Council asks us to order Dr Chan to pay its costs in the Court of Appeal with a certificate for two counsel, its costs in this Court with a certificate for three counsel and its costs of the written submissions on costs, all such costs to be taxed if not agreed.

8.  In asking us to make those orders as to costs, the Medical Council says that it was successful on all substantive issues, having done so on questions of law which, by reason of their great general or public importance, were worthy of this Court’s attention.

9.  Dr Chan asks us to make no order as to the costs of her appeal to the Court of Appeal.  She invites us to leave undisturbed the Court of Appeal’s order that she pay the Medical Council’s costs of its application to them for leave to appeal to us (which leave application she unsuccessfully opposed). And she asks us to award the Medical Council no more than one-third of its costs of its appeal to us.

10.  Since Dr Chan accepts that she must pay the Medical Council its costs of the leave application, nothing more need be said about those costs.

11.  Why does Dr Chan say that there should be no order as to the costs of the appeal to the Court of Appeal even though we eventually decided that the Medical Council was right on all substantive issues?  Even so, she says, there should be no order as to those costs because, as it is put in the written submissions on costs filed on her behalf :

“(a) this Court ought to register disapproval of the Medical Council and its advisers both for lack of frank disclosure at the Inquiry of the role of the legal adviser as a draftsman, and also for not disclosing the Council’s policy papers upon request, and not until only a few days before the hearing;

(b)        the consequence of those failures was that neither party had a proper opportunity to consider and to research the legal significance of those disclosures until a very late stage, thereby depriving [the Court of Appeal] of the advantages enjoyed by [the Court of Final Appeal].”

12.  We do not feel able to attribute a lack of frankness to the Medical Council or its legal advisers.  It might have been better if the extent of the role played by the Legal Adviser had been made clear earlier than it was. However that may be, the transcript of the disciplinary hearing shows that Mr Adrian Huggins SC who was then leading for Dr Chan was aware at the hearing that the Legal Adviser’s participation could be described as drafting even though the Legal Adviser himself did not so regard it.

13.  As for the argument advanced in support of Dr Chan’s contention that the Medical Council should have no more than one-third of its costs of the appeal to us, it runs along the following lines.  Dr Chan accepts that costs should follow the event as far as the “customary ethics” question is concerned.  But the Medical Council’s costs on that question would be significantly less than its costs on the “role of the Legal Adviser” question.  It was in the public interest that the point of public law which arose under the “role of the Legal Adviser” question be clarified by this Court.  And Dr Chan, having assisted in such clarification, should be spared from having to pay the costs which the Medical Council incurred on the point.  Finally, added to the foregoing considerations is Dr Chan’s success in regard to penalty.

14.  For the purposes of Dr Chan’s contention that she should be spared from having to pay the costs which the Medical Council incurred on the point which arose under the “role of the Legal Adviser” question, a number of cases have been cited by her counsel.  They include the case of Secretary for Security v. Prabakar (2003) 6 HKCFAR 397 where (as appears at p.401B-D of the report) the Appeal Committee granted the Secretary for Security leave to appeal to this Court on the condition that the Secretary for Security pays Mr Prabakar’s costs in any event if Mr Prabakar is not granted legal aid for the appeal.

15.  Costs are discretionary.  The discretion is a judicial one.  It extends to not ordering costs against an unsuccessful litigant.  There are various situations in which a court may well refrain from ordering costs against a losing party.  One is where an individual loses against the government or a statutory body in litigation that resolves an important point of public law on which it is very much in the public interest to have an authoritative judicial decision after full argument on both sides of the question.  Whether in one type of situation or another, how the discretion as to costs is exercised will ultimately depend on all the circumstances.  It will often happen that some factors favour one result while other factors favour another.  Then it will be for the court to weigh and balance such rival factors and form a fair and realistic assessment of the position.  Thus will the court arrive at a just and proper order as to costs.

16.  The essential circumstances here are these.  Dr Chan pursued her own commercial interests.  She is not to be criticised just because she did that. The problem is that she did it in such a way as to breach the ethics of her profession.  So the governing body of her profession proceeded – and proceeded successfully – against her for professional misconduct.  In such circumstances, it should not be deprived of its costs just because the resulting litigation resolved an important question of law on which her counsel provided assistance.

17.  What remains of the argument for Dr Chan on costs is so much of it as is based on the success which she achieved in regard to penalty.  The Medical Council contends that it cannot be said that Dr Chan was successful in regard to penalty.  But in our view, she achieved in that regard a measure of success which cannot be dismissed as insignificant.  After all, she came to the courts with a suspended removal order against her.  By the time she left the courts that penalty had gone and was to be replaced by either the less severe penalty of a reprimand or the even less severe penalty of a warning letter.  Even when suspended, an order for removal from the General Register carries a stigma that does not attach itself to a reprimand or warning letter.

18.  It is true that preparing the submissions on the matter of penalty could not have taken anything like the time and effort that preparing the submissions on the important questions of law relevant to the issue of professional misconduct would have taken.  And of course far less time and effort was spent presenting the submissions on the matter of penalty than was spent presenting the submissions on those important questions of law.  Nevertheless the matter of penalty was important to Dr Chan, and the order as to costs should duly reflect the measure of success which she achieved in regard to penalty.

19.  All things considered, we order as follows :-

(1)   The order by which the Court of Appeal awarded the Medical Council its costs of its application to them for leave to appeal to us do stand.

(2)   Dr Chan do pay the Medical Council 80% of its costs of her appeal to the Court of Appeal with a certificate for two counsel.

(3)   She do pay the Medical Council 80% of its costs of its appeal to us with a certificate for three counsel.

(4)   Similarly, she do pay the Medical Council 80% of its costs of the written submissions as to costs which the parties have filed.

(5)   All the costs concerned be taxed on a party-and-party basis if not agreed.