DR CHAN YEE SHING v. THE MEDICAL COUNCIL OF HONG KONG

CACV 155/2018

[2021] HKCA 1780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 155 OF 2018

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL MADE ON 16 APRIL 2018)

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D E C I S I O N

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Hon Barma JA (giving the Decision of the Court):

1.  On 27 November 2019, this court (Chu JA, Barma JA and L Chan J) allowed an appeal by Dr Chan Yee Shing (“Dr Chan”) against the decision of the Medical Council of Hong Kong dated 16 April 2018 finding Dr Chan guilty of misconduct in a professional respect on two (out of three) charges which had been brought against him, and made an order nisi as to costs granting Dr Chan the costs of the appeal, to be taxed on the party and party basis if not agreed.

2.  By a summons dated 4 December 2019, Dr Chan applied to vary the costs order nisi to provide that he should also be awarded the costs of the Medical Council inquiry, to be taxed on a party and party basis on the High Court scale, in addition to the costs of the appeal.  The application is opposed by the Medical Council.

3.  The parties being of the view that it was unnecessary to file evidence for the purposes of the application, it was ordered by consent on 17 December 2019 that the parties should file written submissions, following which the application should be disposed of on paper without a hearing.  Dr Chan filed his submissions in support of the application on 22 January 2020, the Medical Council filed its submissions in opposition on 14 February 2020 and Dr Chan filed submissions in reply on 26 February 2020.

4.  We have given consideration to the parties’ submissions, and now hand down our decision on the application, with apologies for the time it has taken for us to do so.

5.  In essence, Mr Christopher Chain, counsel for Dr Chan, submits that Dr Chan should be awarded his costs of the hearing before the Medical Council for a number of reasons:

(1)  Mr Chain submitted that the general principle is that costs of civil adversarial proceedings (including professional disciplinary proceedings) should follow the event.  In support of this proposition, Dr Chan relies on Solicitor v Law Society of Hong Kong [2007] 4 HKLRD 798 at [15] to [18] per Ma CJHC (as he then was) and at [30] per Stone J, and on The Registrar of the Hong Kong Institute of Certified Public Accountants v X (No. 3) [2017] 5 HKLRD 568 at [35] and [39] to [44] per G Lam J (as he then was).

(2)  In the context of Medical Council appeals, Mr Chain particularly relies on Dr Wu Daniel Yiang v The Medical Council of Hong Kong (unreported, CACV 162/2013, 15 December 2014 at [49] to [50] per McWalters JA, where such an order was made.

(3)  It was pointed out that Dr Chan succeeded on his appeal to this court against his convictions by the Medical Council on substantive and non-technical grounds, and had provided answers to the allegations against him at an early stage, and had not been suggested to have brought suspicion on himself.

(4)  Finally, Mr Chain submitted that equitableness and compensation called for Dr Chan to be awarded the costs of the hearing before the Medical Council, particularly having regard to the fact that such costs were substantial, there having been an 11-day hearing at that stage.  In support of this proposition, reliance was placed on the judgment of Mason CJ in Latoudis v Casey (1990) 97 ALR 45 at 49 (line 50) to 50 (line 15), where it was emphasized that it was generally inequitable for a defendant to have to bear the costs of exculpating himself, save in particular circumstances, and that an award of costs (whether in criminal or civil proceedings) was compensatory in nature towards the successful party, rather than punitive as against the unsuccessful party.

6.  For the Medical Council, Mr Mark Chan submitted that:

(1)  The court should follow its usual practice of making no order as to costs of the disciplinary proceedings before the Medical Council.

(2)  While it was not suggested that there should be a special rule in Hong Kong to the effect that a professional regulator should not normally be required to pay costs to a professional acquitted of disciplinary charges before it by reason of its regulatory role (as is the approach in the UK: see Baxendale-Walker v Law Society [2007] 1 WLR 426), there was no basis for varying the costs order nisi in this case.

(3)  This was particularly so as it was not the practice of the Medical Council to make orders for costs against doctors in respect of Medical Council inquiries in which the doctor concerned was convicted of misconduct.

(4)  Given the function of the Medical Council in investigating matters of public concern, and that it had no choice but to proceed to an inquiry where a case for one was made out, the court should be slow to order costs against it, absent special factors.

(5)  In the present case, the appeal was allowed because of errors on the part of the Medical Council in its reasoning, and not because there was no proper basis for the charges that were brought.

(6)  Alternatively, and so far as necessary, it was submitted that Dr Chan did in fact bring suspicion on himself.

7.  In reply, Mr Chain pointed out that:

(1)  The proceedings before the Medical Council were (and were accepted to be) civil adversarial proceedings.

(2)  The Medical Council had power to make costs orders against unsuccessful defendants in Medical Council inquiries (pursuant to s21(1) of the Medical Registration Ordinance (Cap 161)), although no such order was made in this case.

(3)  The Dr Daniel Wu case (supra) was a case in which an order for costs of the Medical Council inquiry was made on appeal, in favour of the successful doctor appellant.

(4)  Cases relied upon by the Medical Council where no order as to costs was made by the Court of Appeal following a doctor’s successful appeal were all cases in which the orders were orders nisi without substantive argument or (apparently) applications to vary, and in any event, each case depended on its own facts.

(5)  The role of the Medical Council did not justify a rule against awarding costs to successful defendant doctors, and there was in any case no evidence to suggest that the Medical Council would be hampered in its functions if required to pay such costs.

(6)  It was not accepted that Dr Chan could be said to have brought suspicion on himself.

8.  Before we turn to the parties’ arguments, we observe at the outset that Dr Chan’s notice of appeal in this appeal did not seek any costs order in respect of the proceedings before the Medical Council.  The only order for costs that was sought was an order that the costs of the appeal be to Dr Chan, to be taxed if not agreed.  This was precisely the order nisi that was made.  It therefore seems to us that it is not now open to Dr Chan to seek to vary that costs order in a manner that is not canvassed in the notice of appeal.  On this ground alone, this application falls to be dismissed.

9.  Nonetheless, it is in any event our view that the costs order nisi should not be varied.  This is for a number of reasons.

10.  First, we do not agree that there is a general rule that costs of disciplinary proceedings should follow the event, so as to enable a successful defendant to recover his costs from his professional regulator.  Much will depend on the circumstances of the particular case, and the disciplinary system in question.

11.  Thus, in Solicitor v Law Society, the court had regard to the fact that it was the practice of the Law Society to order costs against solicitors against whom disciplinary complaints were upheld, and considered it fair that where a solicitor was acquitted, he should be entitled to his costs.  The fact that the relevant legislation provided for costs orders against the Law Society were reimbursable out of the general revenue was also regarded as highly relevant. By contrast, we are told that (notwithstanding that it has power to do so) it is not the practice of the Medical Council to make orders for costs against unsuccessful doctor defendants appearing before it.  Although we were not told what the position was in relation to doctor defendants who are acquitted, it would seem to us that no order for costs would be likely to be made in their favour by the Medical Council, given that the Medical Council does not recover costs in the converse situation.  The position here is therefore far removed from that in solicitor’s disciplinary cases.

12.  In Registrar v X, the court was careful not to lay down any general rule, and it is clear that the costs order made in that case was made after consideration of the particular facts of the case.  It therefore does not seem to us that it provides any support for Mr Chain’s argument in this respect.

13.  Turning to the Medical Council cases to which we were referred, it would appear that Dr Daniel Wu is the only case in which a costs order was made by the Court of Appeal against the Medical Council in respect of the disciplinary proceedings before it, in favour of a doctor who was successful on appeal.  In all the other cases referred to by Mr Mark Chan, no such order was made.  Although Mr Chain suggested that reliance should not be placed on the cases cited by Mr Mark Chan as they were all cases where the orders made were orders nisi, without substantive argument or applications to vary, the same is true of the decision in the Dr Daniel Wu case.  The order in favour of the doctor in that case was similarly an order nisi, with no detailed reasons for it being given in the judgment, and no application to vary being made.  We therefore do not derive any real assistance from that case, and do not regard it as an authority for any general principle that a successful doctor appellant should have his costs of the disciplinary proceedings in addition to those of the appeal.

14.  Further, if (as seems to be the case) a successful doctor defendant is not awarded his costs before the Medical Council on his acquittal by it, it is hard to see why he should be awarded such costs in the event that he is convicted before the Medical Council but has his conviction overturned on appeal.

15.  It does not seem to us that the fact that Dr Chan was acquitted on non-technical grounds takes matters any further.  Nor does the reliance on equity and general compensatory principles.

16.  Although we have had regard to the fact that the hearing in the Medical Council was a lengthy and no doubt expensive one, and are not inclined to regard Dr Chan as having brought suspicion on himself, it does not seem to us that it could be said that the Medical Council acted unreasonably or improperly in bringing the proceedings, or in the manner in which the proceedings were conducted, so as to justify the making of a costs order against it in respect of the Medical Council inquiry.

17.  For all of the foregoing reasons, even if we had thought (contrary to our conclusion in [8] above) that it was open to Dr Chan to seek to vary our costs order nisi in the manner now sought, we would not have thought it appropriate to do so.

18.  We therefore dismiss the application to vary, and make the costs order nisi absolute, and shall order that the costs of this application are to be paid by Dr Chan to the Medical Council, to be taxed on the party and party basis if not agreed.