CHOW SIU SHEK DAVID v. THE MEDICAL COUNCIL OF HONG KONG

CACV 260/1999

HEADNOTE

Statutory Construction - Medical Registration Ordinance (Cap. 161) - ss.21(1) and 25(3).

Upon expiration of a specified period of removal from the Register, a doctor's name is automatically restored without any necessity to submit to the application procedure. Per Nazareth V-P and Hartmann J; Burrell J dissenting.

CACV 260/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 260 OF 1999

(ON APPEAL FROM HCAL NO.32 OF 1999)

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J U D G M E N T

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Nazareth V-P:

1. In November 1990 the applicant, "Dr Chow", was convicted in the High Court on two counts of conspiracy to defraud. On 22 November 1990 he was fined and sentenced to a total of two years imprisonment. Subsequently, his case came to be considered by the Medical Council ("the Council"), and it ordered Dr Chow's name to be removed from the General Register of registered medical practitioners ("the Register") for three years. That order was made on 23 August 1994 but it took effect only from the date of its publication in the Hong Kong Gazette on 16 June 1995. However, on 22 August 1994, the Department of Health had found that the registers Dr Chow maintained for recording the receipts and supplier of dangerous drugs had not been kept in the form specified by the Dangerous Drugs Regulations. On 22 September 1995 Dr Chow pleaded guilty to 19 charges of failing to keep a proper register and was fined $3,000 on each charge. In addition, his authority to possess, supply and manufacture oral preparations of various drugs was withdrawn for 3 years by the Department of Health.

2. On 3 September 1998, about 3 months after expiration of the period of removal from the Register, Dr Chow applied for restoration of his name to the Register. This was considered by the Council and on 3 February 1999 it refused the application. Dr Chow then applied for judicial review of that decision. The matter came before Keith JA sitting as an additional Judge of the Court of First Instance on 25 June 1999. The question put to him (and now to this Court) was whether the period of removal ended automatically on the expiration of three years, or whether Dr Chow was required to apply to the Medical Council for restoration of his name to the General Register under s.25(3) of the Medical Registration Ordinance ("the Ordinance"). If he is required to apply, that would subject him to the requirements of s.25(3), compliance with which is the Council's objective.

3. Keith JA determined that, upon expiry of the period of removal, Dr Chow was automatically entitled to restoration to the Register without any need to apply under s.25(3), which makes provision for any person whose name has been removed from the General Register under the Ordinance to apply to the Council for restoration. His detailed reasons are best examined in the context of the submissions. Before one proceeds to those, it is convenient to set out the relevant statutory provisions of the Ordinance.

The relevant statutory provisions

4. Section 21(1) of the Ordinance, so far as relevant provides:

It was under the power in (ii) that the Council ordered Dr Chow's name to be removed from the Register for three years.

5. Section 25(3) of the Ordinance provides that:

The Respondent's submissions below

6. The submissions made below for the Council by Mr David Fitzpatrick, who also appears for the Council before us, were concisely stated by the judge in the following way:

The judge's reasons

7. The judge dealt with those submissions equally concisely in the following way:

Counsel's submissions on appeal

8. Mr Fitzpatrick in essence repeats his submissions below subject to some minor elaboration. Mr Graham Harris, for Dr Chow, generally adopts the judge's reasons, but makes two specific submissions which I shall address in dealing with Mr Fitzpatrick's submissions, and the interpretation of ss.21(1) and 25(3).

Interpretation of ss.21(1) and 25(3)

9. Although s.25(3) has been identified as the primary provision that calls for construction, it will have been seen from the counsel's submissions below and the judge's reasons that it is s.21(1)(ii) that is perceived to qualify or displace the application of s.25(3) to the "restoration" of a doctor whose specified period of removal has expired. It is convenient, therefore, to begin with the effect of s.21(1)(ii).

10. It seems to me that the judge was right in the view he took of the effect of s.21(1)(ii) considered on its own for the moment. In the ordinary way, the registration of a doctor's name on the Register remains valid for life or until it is actually removed in the way provided for by the Ordinance. What s.21(1)(ii) provides is that if after due enquiry the Council is satisfied that any registered medical practitioner has been convicted or been guilty of misconduct in a professional respect, etc, it may order his name to be removed from the Register for such period as it may specify. It seems to me implicit in the wording of s.21(1), in the context of the Ordinance, that upon the expiration of that period the removal will cease i.e. the name will be automatically restored. To put it in terms of stark reality in relation to virtually all the circumstances provided for in s.21(1), the Council as a tribunal will have decided that it was appropriate that the doctor concerned should be deprived of his livelihood for the period it specifies. The obvious implication must, therefore, be that upon the expiry of that period, the removal ceases and the doctor is automatically able to resume his livelihood. Of course, that implicit result could be qualified or even altogether prevented by clear statutory provision, if that is considered desirable, as it apparently now is by the Council. It is here that the counsel's reliance upon s.25(3) comes in.

11. Mr Fitzpatrick's primary submission is that the plain and ordinary meaning of s.25(3) is that it applies to all removals of names from the Register under the Ordinance, and that thus the provision it contains for the application for restoration of their names to be made by the doctors concerned, and that these are to be dealt with in accordance with s.25(3), applies equally to all such removals.

12. This submission contains a number of flaws. To begin with, its deployment in respect of specified periods of removal under s.21(1) which have expired, is misconceived. The words "Any person whose name has been removed from the General Register" plainly do not include a person whose name has been restored to the Register. Indeed, Mr Fitzpatrick conceded that. But he sought to meet the point by contending that the concept of automatic restoration could not overcome the realities of the situation and, indeed, the scheme of the Ordinance. He referred in particular to the necessity for the Registrar of Medical Practitioners to physically re-instate, i.e. write in, the name before the restoration could take effect. I reject that argument. If the implication of the law is clear that the removal has ended, that effect cannot be frustrated by incidental formalities of this sort unless their overriding effect is clear, which is far from being the case. In any matter of significance, particularly a context which could expose the doctor to penal sanctions or loss of livelihood, in my view, the doctor would have to be regarded as already being on the Register even if the Registrar failed to write in his name. However, Mr Fitzpatrick has a further string to his bow. It is that the legislature clearly intended s.25(3) to have the wide effect he contends for, i.e. to subject all removals, even those of specified periods which have expired to the requirements of s.25(3). Reliance on this argument will, of course, depend upon the success of the argument, to which I now turn.

13. Although the opening words of s.25(3) "Any person whose name has been removed from the General Register" are apt to include every person whose name is no longer on the Register, the restoration procedure and the accompanying requirements of s.25(3), as Mr Graham Harris submits, do not appear to be mandatory since the words of application, which appear later in s.25(3), are "may apply". Moreover, as he points out, this is entirely consistent with the judge's interpretation of s.21(1) in that those whose names have been removed under s.21(1)(i) for an indefinite period, i.e. permanently and also those whose names have been removed under paragraph (ii) for a specified period which has not expired, may apply; while those removed for specified periods that have expired do not fall within the scope of s.25(3).

14. Mr Fitzpatrick's response is that "may" is simply used to give all doctors whose names have been removed the option to apply. This simply cannot be accepted. It would mean that a doctor like Dr Chow, who had already been restored to the Register is given the right to apply for restoration - a patent absurdity. It is in any event conceded that the expression "Any person whose name has been removed" does not include a doctor whose name has been restored to the Register. Moreover, had that been the intention, the draftsman of s.21 could very easily have clarified the position in the simple way that is done in a corresponding context in the English legislation, of which he could hardly have been unaware, by use of the words "on the application of the person" (see s. 9(5) of the Professions Supplementary to Medicine Act 1960). In referring to the English legislation, I do not suggest that it provides any inherent guidance for the construction of our different provision in s.25(3) and possibly others. It is simply the English technique or words used to provide a right to apply but require this to be done by application in the prescribed way, that I suggest must have been known to the draftsman and could be expected to have been used by him if the same results were intended. Plainly, Mr Fitzpatrick's response does not meet the point.

15. However, Mr Fitzpatrick also seeks to rely upon the broad object of the Ordinance and the particular provisions as being the protection of the public and the profession. He is not able to assert this upon the basis of the long title of the Ordinance, its memorandum of objects and reasons in the enactment process or any speech of its sponsor in the Legislative Council. However, it seems to me to be safe enough to assume for the purposes of his submission that those, indeed, are the objects. I cannot, however, see that they support the construction he contends for, for reasons to which I shall come shortly. Mr Fitzpatrick in an associated submission also seeks to rely upon certain "contemporaneous circumstances" in reliance upon paragraph 365.067 of Volume 23 - Statutes, Halsbury's Laws of Hong Kong to identify the evil to which he says the 1996 Amendments which introduced ss.21(1) and 25(3) were directed. I pause here to observe that para 365.68 suggests that evil is to be identified from the provisions of the statute. However, it does appear to be permissible to have regard to the state of things existing at the time of enactment. It is said by Mr Fitzpatrick that at or reasonably shortly before the time of enactment, there was a notorious case of a medical practitioner with a deplorable record who was able to get on to the Register through non-disclosure. Mr Fitzpatrick submits that case would have been known to the legislature who must, therefore, have been minded to make provision to prevent recurrence of similar non-disclosure. It seems to me highly questionable whether "contemporary circumstances" can be deployed in aid of a particular construction in this way. I do not find it necessary to pursue the matter further since it appears to me that the very nature of the amendment made to s.25(3) at the time must plainly mean that the legislation was designed to prevent persons whose names had been removed from the Register, from getting back on to it if they had been convicted of an "imprisonable" offence or been guilty of misconduct. But, again, I do not think this leads to the conclusion that s.25(3) should be construed in the way contended for. Only those who had already been screened on initial registration would be involved. They could on restoration be subjected to disciplinary proceedings in the same way as doctors already on the Register who might similarly offend. If there would be a potentially protracted delay in commencing and completing disciplinary proceedings leading to removal, that would be no more than for doctors already on the Register.

16. In his efforts to paint a minor doomsday scenario, Mr Fitzpatrick also sought to introduce statistical evidence to show that predominantly or virtually all removals are for a specified period, so that automatic restoration, without any requirement for disclosure, would become virtually the norm. Again, I am not satisfied that he would at this stage be properly entitled to do so, but assuming that contention to be correct, it does not go very far, and certainly not far enough to displace the plain meaning of ss.21(1) and 25(3).

17. It may be added in the foregoing respect that the risk of undisclosed convictions or misconduct on automatic restoration, such as it may be, could be considerably reduced by the restriction on medical practice without a practising certificate that has to be obtained annually under s.20A. To obtain one, a practitioner has to submit evidence that he has not been convicted of an imprisonable offence. Failure to obtain a practising certificate results in the loss of entitlement to recovery of fees that accrue during the period of failure.

18. Finally, Mr Fitzpatrick suggests that the previous provisions replaced by s.25(3) would be relaxed by the judge's construction, i.e. doctors whose specified periods of removal had expired would escape the vetting built into the application procedure. However, I cannot accept this as the words "may apply" used with reference to what in effect are the same two categories, are exactly the same. There is no relaxation upon the proper construction of the previous provision which, plainly, must be materially the same. I cannot see that any real assistance can be derived in the way suggested.

19. To sum up the matter, the meaning and effect of s.21(1), as I have already outlined it, seems to me to be quite plain; likewise the effect of s.25(3). The latter has no application to those persons who have been removed from the Register for specified periods which have expired, as they would already be back on the Register. It applies to all other persons whose names have been removed from the Register, i.e. under paragraph (i) indefinitely or permanently, and those under paragraph (ii) who have been removed for specified periods which have not expired. This construction gives effect to the plain or primary meaning of both provisions and must prevail over the interpretation contended for by the Council, which would result in s.21(1) being stripped of all or most of its effect. Full effect can be given to s.21(i) and (ii), and to s.25(3), each in the context of their own provisions and of the remainder of the Ordinance. In those circumstances, it is neither necessary nor permissible to resort to other considerations that might otherwise be permissible. Moreover, those other considerations and matters are not very clear themselves, their admissibility in part is questionable, and for the most part, they are of very limited force in that their thrust is not necessarily inconsistent with Keith JA's interpretation, with which I agree. I am satisfied, therefore, that ss.21(1) and 25(3) are to be construed in the way I have indicated and that the construction contended for by the Council must be rejected.

20. It remains to mention a couple of observations by the judge on incidental aspects of the construction he preferred, which observations Mr Fitzpatrick contended were incorrect. Mr Harris was inclined to agree. However, I do not find it necessary to concern myself with those incidental matters for they could not begin to have any effect upon the interpretation itself.

21. In the result, the challenge to the judge's interpretation fails and with it the Council's appeal, which I would dismiss.

22. The order the judge made was that there be no order on the application and no order as to costs. These orders, the Council complains, leave matters somewhat in the air. The steps the Council took followed upon Dr Chow's application for restoration. If Dr Chow is to be taken as automatically having been restored, the disciplinary proceedings subsequently taken against him would be within the powers of the Council. And finally, s.8(1) of the Ordinance provides that a person is not qualified to be registered as a medical practitioner as required unless, under paragraph (d), he satisfies the Council that he is of good character and is still up to such professional standard as is acceptable to the Council. I do not accept that the judge had left matters in the air. Having found that Dr Chow had been automatically restored to the Register, he indicated that any subsequent disciplinary proceedings would have been taken against him as a registered medical practitioner. In my view, the judge was right. It is now for the Council to decide whether and what action it wishes to take under s.8(1)(d). Likewise, whether it should take disciplinary proceedings against Dr Chow. It may be that as indicated by Mr Harris, he would be prepared to voluntarily satisfy the Council that he is of good character, is still up to the professional standard acceptable to the Council and meets such other requirements as it is entitled to impose. In those circumstances, for my part, I would not interfere with the order the judge made.

23. Finally, as to the costs of this appeal, Mr Fitzpatrick submits Mr Harris has been constrained to concede that in any disciplinary proceedings properly taken, the Council could not be faulted if it were to come to the conclusion that Dr Chow should not be restored to the Register, and that it is clear that in any event this is the decision it would reach. Upon that consideration, Mr Fitzpatrick submits that the Council should have its costs of the appeal or at the very least, there should be no order as to costs. I cannot agree. The Council has persisted in its view of the legal position, and it is to vindicate that position that it has pursued this appeal. I would accordingly made an order nisi that the Council pay Dr Chow his costs of this appeal. For the like reasons, I would also not interfere with the costs order below.

Burrell J:

24. Regrettably I find myself unable to agree with Nazareth V-P and Hartmann J. It is agreed by both parties to this appeal that the sole issue on appeal is the proper construction of s.25(3) of the Medical Registration Ordinance, Cap.161.

25. Under s.25(3) a doctor who has been struck off has the right to apply to the Medical Council to have his name restored to the register of medical practitioners in Hong Kong. It has been set out in full in the judgment of Nazareth V-P.

26. Persons who have been struck off must have been so as a result of the application of s.21 of the Ordinance (also set out above). Such a person therefore must have been either struck off indefinitely (subsection (1)(i)) or for a specified period (subsection (1)(ii)).

27. In the Court below the applicant, who had been struck off for a specific period, namely three years, was seeking judicial review of the Medical Council's decision refusing his application for his name to be restored to the register upon the expiration of the three year period.

28. Initially the ground advanced was the usual one that the refusal was irrational and/or a decision to which no reasonable tribunal should have come. However, on the Court's own motion, argument on a further ground was invited, namely that s.25(3) did not apply to persons who had been struck off for a specified period. In a nutshell the argument being that if a person is struck off for a specified period, their names must be automatically restored to the register by virtue of effluxion of time. The learned judge below found in favour of the argument and determined that s.25(3) only applied either to persons struck off indefinitely under s.21(1)(i) or to those persons seeking to make an application to be restored before the expiration of the specified period imposed under s.21(1)(ii). In other words it applied to all persons removed under s.21(1)(i) and all persons removed under s.21(1)(ii) up to the expiration of their removal but not afterwards. It was, he determined, a mechanism for getting back onto the register during the currency of the removal.

29. Respectfully, in my judgment, s.25(3) is intended to apply to all persons struck off whether indefinitely or otherwise. As the issue concerns the proper construction of s.25(3), it is to the words of that section I look first. On the face of it I find it to be plain and unambiguous. It starts :

Mr Chow is such a person. I agree that the words "Any person whose name has been removed ..." do not include a person whose name has been restored. Respectfully, however, to say that it does not apply to Mr Chow because his name has been restored automatically begs the question. Whether or not the restoration is automatic is the issue on appeal. In my judgment the issue should not be resolved by viewing s.21(1)(ii) in isolation with the result that the ordinary meaning of s.25(3) does not apply to Mr Chow.

30. Section 25(3) then states that such a person "may apply to the Council for the restoration of his name ..." In my judgment this simply gives the applicant the right to apply. He may or he may not, it is up to him. He does not have to apply straight away, he might want to re-apply 10 years later. So be it. Counsel for Mr Chow, Mr Graham Harris, argued that if a person struck off for a specified period had to make an application in order to be restored, the section would say "shall" not "may". I do not see the merit in this argument because the word "shall", on its strict application would suggest there was a duty on a doctor who had been struck off to apply even though he did not want to. In my view the argument, advanced by Mr D. Fitzpatrick on the Council's behalf, that the use of the word "may" merely creates an opportunity to the applicant is the proper and sensible interpretation.

31. The section then gives the Council an absolute discretion to either refuse or allow the application. The fact that the Council has an absolute discretion does not take the matter any further. What is significant however is the fact that the discretion can only be exercised, according to s.25(3), after the Council has received evidence that the applicant has not been convicted of any criminal offences in Hong Kong or elsewhere and has not been guilty of any professional misconduct here or elsewhere, during the period of disqualification.

32. This requirement for such evidence to be submitted to the Council was introduced by way of an amendment to the Ordinance in 1996. Two points arise from this amendment which support the argument advanced by the Council.

33. Firstly, what were the words of the section before 1996? The opening words of the pre-1996 s.25(3) were :

The use of the words "removed" or "erased" was plainly because in s.21 (pre-1996) the two categories of persons to be struck off were :

34. So pre-1996 there were still two categories. Those two categories were separately mentioned as being subject to the provisions of s.25(3). If Mr Harris' argument is correct it suggests that the amendment of 1996 had the effect of relaxing the conditions whereby a struck off doctor got back onto the register. Namely that if he had been struck off temporarily he need not re-apply, it was automatic, whereas before 1996 he plainly did have to. In fact the amendment of 1996 did the opposite of relaxing the procedure. By introducing new requirements whereby the applicant had to submit specific evidence that he was a fit and proper person, it was making the re-application procedure more stringent, not less.

35. Secondly, what was the purpose of the amendment? The reason is obvious and more importantly it is a reason which must, logically, apply to both categories of persons who have been struck off, not just one. The reason is to prevent doctors being restored who have been guilty of unacceptable behaviour whilst they have been struck off. Mr Harris submits that if this has happened, there is a duty on the Council to institute fresh proceedings against the person after the period of disqualification has finished. I cannot accept that this was the legislative intent. The Council can only bring such proceedings against a doctor. Whilst a person is struck off, he is not a doctor. Therefore, under Mr Harris' argument, the Council must wait until the person has automatically been restored after the expiration of his strike off period before it has the jurisdiction to discipline him again. This creates a risk that a thoroughly reprehensible character (by virtue of misconduct during the disqualification) is entitled to the status of doctor until such time that the Council successfully applies to strike him off again. In my judgment the proper construction of s.25(3) creates no such risk. The person does not get back on the register until the Council in its absolute discretion grants the application.

36. Thus, in my judgment the words of s.25(3) are clear. As such they do not create an inconsistency with the words of s.21(1)(ii). The words of s.21(1)(ii) and the words of s.25(3) should be read together. When that is done, it is not possible to read s.21(1)(ii) as meaning that a person's restoration to the register is automatic if they have been struck off for a specified period. It would have been open to the Legislators, had they wished to give effect to such an interpretation, to start s.25(3) with the words :

It does not say that.

37. The next point is this. Not only should s.21(1)(ii) and s.25(3) be read together but they should be read in the context of the whole Ordinance. The whole Ordinance provide for stringent controls and regulations governing the medical profession for the benefit of both the profession and the public. By way of analogy, the road using public are protected by the fact that if a disqualified driver has the misfortune of losing a limb or the sight of one eye whilst he has been disqualified, he cannot jump back into the driver's seat when his disqualification is over. New rules apply to govern the new situation. Although the analogy is not on all fours with the present case, it serves to illustrate the point. So, in my judgment the proper construction of s.25(3) together with s.21(1) provide the machinery for all doctors' restoration to the register. In so doing it protects the public against unsuitable doctors being automatically re-instated.

38. The Council is rightly given by the Ordinance both power and responsibility in the conduct of its control of the profession. This unarguable truth should play its part in the interpretation of the provisions of the Ordinance which in this case can only support the Council's argument. It is perhaps worthy of note at this stage that virtually all cases of doctors being struck off are cases under s.21(1)(ii), i.e. a specific period. Cases of doctors being struck off permanently are very rare indeed. This was a matter which this Court was informed of and agreed by both counsel on appeal. I simply cannot accept that s.25(3) was intended to apply only to those very rare cases where a doctor had been indefinitely struck off or where he boldly and unusually tried to persuade the Council that he should be restored to the register before the end of the period of removal. To confine it to such a small and narrow group of struck off doctors could, in my judgment, lead to a manifest public mischief, namely that almost all struck off doctors are automatically restored to the register without any regard to their conduct during the period of removal.

39. The final matter to which I turn is a brief consideration of the English legislation on the same issue. It should be recognized first of all that Cap.161 is not a verbation replication (as is often the case) of a parallel U.K. Act. The wording is very different. However, Mr Harris submitted :

(See sections 9(1) and (5) of the Professions Supplementary to Medicine Act 1960)

I do not propose to set out these provisions. However a closer examination of them suggest that, contrary to Mr Harris' contention, the U.K. Legislation supports Mr Fitzpatrick's case. In the United Kingdom the Council may firstly remove the person's name from the register. Secondly, it may, when removing the name, specify a period before which no application to be restored to the register will be entertained. Thus there are two types of removal, one which makes no provision for restoration and one which states the earliest time when an application will be considered. In both cases an application has to be made. In my judgment, the proper construction of Cap.161 should have the same effect.

40. Mr Justice Keith J.A. in his judgment at first instance determined that the Council had no jurisdiction to make the order refusing Mr Chow's name to be restored. The consequence of this dissenting judgment would be that they did have jurisdiction. In such circumstances, it would then be open to the court to dismiss the application on its merits. That is the order I consider to have been the correct one to make.

Hartmann J:

41. I concur with the judgment of the Vice President.

42. I am of the opinion that, standing on their own, the relevant provisions of section 21(1) are clear in their meaning and intent. After due inquiry, and for the causes set out in the section, the Council has the power either to order the name of a doctor to be removed from the General Register without specifying for how long or to order such removal for a specified period of time. In the first instance (under section 21(1)(i)) it is not disputed that the doctor will remain indefinitely removed from the Register until and unless he or she resolves to apply for restoration in terms of section 25(3) and is successful in that endeavour. In the second instance (under section 21(1)(ii)) it is, in my judgment, implicit that the doctor, having endured removal for a precise time, duly assessed and specified by the Council, will, upon its expiration, be automatically entitled to be restored to the Register and thereby to his or her chosen livelihood. Sub-section 21(1)(ii) is essentially a penal provision which may well cause hardship to the individual. In the absence, therefore, of any clear qualification I believe that the sub-section must be read to mean that the Council may remove a doctor from the Register for that specific time only and upon the expiration of that time the doctor shall be restored to the Register and shall then be entitled to resume his profession.

43. The argument, of course, is that the necessary statutory provision to qualify this interpretation of section 21(1)(ii) is contained in section 25(3) which reads:

44. In respect of this section, it is submitted that the simple and literal interpretation makes it clear that all doctors who have been removed from the Register, be it for an indefinite period or a time specific, must, if they wish to practise again, apply for restoration. It is a matter for the discretion of each individual doctor who has been removed whether to apply or not, hence the phrase 'may apply'.

45. But if that were the primary meaning of section 25(3) it would mean that in respect of every removal for a time specific the Council would still have the power, 'in its absolute discretion' and after due 'inquiry', to refuse to accept the restoration of that doctor's name to the Register. If that was the case, it seems to me that a doctor removed for a limited period would be deprived of the cold comfort that such a specified period of removal is meant to bring. The period duly calculated by the Council as appropriate, would not end the matter for the doctor would then have to apply for restoration and be subject to further inquiry. In short, the imposition of removal for a time certain would give no certainty.

46. Is it the case that in terms of section 25(3) the Council's inquiry upon application for restoration is restricted to conduct during the period of suspension? On an ordinary reading of the section I do not believe that to be so. The wording, in my opinion, gives the Council broader powers of inquiry.

47. Is it possible then to read section 25(3) in a way that harmonises with the implicit meaning of section 21(1) and does not distort or undermine the ordinary meaning and intent of the words employed? I believe it is possible to do so. In my judgment, read in context, section 25(3) has the meaning given to it by the judge at first instance and by the Vice President. In short, if a doctor, who has been removed indefinitely, wishes to apply for restoration or if a doctor, who has been removed for a specific time, wishes to apply before the expiration of that time, then both may apply in terms of section 25(3). In respect of both instances the applicants are seeking the indulgence of the Council, a matter which the Legislature has directed requires an inquiry.

48. In principle, I do not find it far-fetched to contemplate a doctor, removed for a specified time, seeking early restoration, not in light of the fact that such removals may be for a period of months only or for several years and when, in respect of longer suspensions, there may well - for a host of reasons - be a plea for the Council to reconsider the severity of its ruling.

49. During the course of submissions, the provisions of the Ordinance prior to their 1996 amendments were contrasted with the present provisions. Prior to 1996 the Ordinance gave the Council power to -

50. Section 25(3), as it was then drafted, provided that 'any' person whose name has been removed or erased from the Register may apply to the Council for restoration. I find nothing in those earlier provisions, however, to suggest that they clearly intended that all doctors whose names had been removed, whether 'erased' (that is, removed for an indefinite period) or 'removed' (that is, removed for a time specific) must apply for restoration. I believe that the ordinary reading I have given to the present provisions would have applied equally to the previous ones.

51. In the result, for the reasons given by the Vice President and for those reasons which I have amplified, I too would dismiss this appeal. I agree with the consequential orders made by the Vice President.

Nazareth V-P:

52. By a majority, therefore, the appeal is dismissed and there will be an order nisi that the Council pay to Dr Chow his costs of the appeal.

Remarks:
On appeal by the Respondent to the Court of Final Appeal: Appeal allowed. The Applicant's application for judicial review is dismissed with costs. Please refer to FACV000003/2000.