DR LEUNG KAM CHUNG KENNETH v. MEDICAL COUNCIL OF HONG KONG AND ANOTHER

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- Headnote -

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          Judicial review - High Court judge found that the Preliminary Investigation Committee appointed to determine whether a complaint or information against a registered medical practitioner should be referred to the Medical Council for inquiry had acted outside the Medical Practitioners (Registration and Disciplinary Procedure) Regulations - High Court judge ordered the decision of the Preliminary Investigation Committee to be quashed and the disciplinary proceedings stayed.

          Held (on appeal to the Court of Appeal): The Committee had acted beyond its jurisdiction. This irregularity could not be waived. Judgment of the High Court judge upheld.

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JUDGMENT

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Litton V-P, giving the judgment of the Court:

Introduction

1. The respondent to this appeal is a registered medical practitioner.

2. On 17 January 1995 the respondent was served with a notice of inquiry, pursuant to Regulation 14(2) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations, Cap 161 which states:

MEDICAL REGISTRATION ORDINANCE

(CHAPTER 161)

MEDICAL PRACTITIONERS

(REGISTRATION & DISCIPLINARY PROCEDURE) REGULATIONS

NOTICE OF INQUIRY

Sir,

On behalf of the Medical Council of Hong Kong, notice is hereby given to you that in consequence of a complaint received by the Secretary to the Medical Council, an inquiry is to be held into the following charges against you:

3. The day fixed for the hearing of the two charges was 8 June 1995. The respondent did not attend and the hearing was adjourned to 14 September 1995 when the respondent again did not attend. He had, however, written a letter dated 30 August 1995 addressed to the Chairman of the Medical Council protesting against the inquiry, alleging that it was an unlawful process. His complaint, in essence, was to the effect that the two charges which the Council was purporting to hear had not been properly referred to the Council for inquiry under the Regulations: the Preliminary Investigation Committee which had purported to refer these two charges had, he claimed, acted unlawfully. The letter was read out at the hearing on 14 September 1995 and, after a long debate at which the principal participants were the legal officer representing the Secretary to the Council and the Council's legal adviser, the Council decided to continue with the inquiry. A third meeting was held on 25 September 1995, but no determination of the two charges had been reached by the Council when, on 25 October 1995, the respondent took out an ex parte application for leave to apply for judicial review under Order 53 rule 3 of the Rules of the Supreme Court for reliefs as follows:

4. The ex parte application was heard the following day when leave was granted and an interim order made to restrain the Council from proceeding further with the inquiry into the two charges.

5. The inter partes hearing took place before Sears J on 4 December 1995. By his judgment of the same date he held that the Council had no jurisdiction to inquire into the two charges, on the ground that the decision of the Preliminary Investigation Committee made on 19 December 1994 to refer "two allegations of professional misconduct" to the Council for inquiry was itself made without jurisdiction. He accordingly ordered that the decision of the Preliminary Investigation Committee be quashed and the Medical Council be restrained from determining the two complaints.

6. The Medical Council, being dissatisfied with the judgment of 4 December 1995, appeals to this court.

Preliminary Investigation Committee

7. The functions and duties of the Preliminary Investigation Committee within the statutory scheme lie at the heart of this appeal.

8. Under s21(1) of the Medical Registration Ordinance, Cap 161, the Medical Council has no independent powers of inquiry: It can only proceed with a disciplinary inquiry in "any case referred to it by the Preliminary Investigation Committee in accordance with regulations made under s33". Section 33(1)(g) empowers the Governor in Council to make regulations providing for:

9. The Preliminary Investigation Committee is in effect put in as a screening body, to ensure that medical practitioners are not vexed with complaints which might turn out, after inquiry, to be groundless: And, using the language of Lord Mackay in Gee v. General Medical Council [1987] 2 AER 193 at 197H, in relation to the similar scheme in the United Kingdom, the procedure for preliminary investigation provides 'a coherent and important filter process which must be observed'. Given the nature of a medical practitioner's responsibilities, often having to deal professionally with unhappy or even disturbed individuals, this would seem a wise and necessary process.

10. As regards the functioning of the Committee, this is governed by Part III of the Regulations: In particular, Regulation 12(2) which states that where the Chairman of the Committee has directed that a complaint or information be referred to the Committee, the Secretary to the Council shall:

11. Regulation 12 A then requires the Committee to consider the complaint or information, any statutory declaration made, and the respondent's explanation.

12. In essence, the respondent's grievance is this: when the substance of the complaint or information was put to him in accordance with Regulation 12(2), inviting him to submit to the Committee his explanation, he duly complied with this invitation. And when the Committee eventually met to consider his detailed explanation it was satisfied with it. The committee's function, as regards the matter before it, was at an end. The respondent had never been invited by the Secretary to give any explanation as regards "canvassing" or "fee sharing" with the Maggie Beauty Parlour, as set out in paragraphs (a) and (b) of the notice of inquiry dated 17 January 1995. This was raised by the Committee itself acting, as Mr Rodway QC, counsel for the respondent argues, beyond its jurisdiction. The Committee then, after having heard the respondent's oral explanations, purported to refer "new charges on canvassing" to the Medical Council for inquiry which it had no power to do: It follows that the notice of inquiry dated 17 January 1995 was ultra vires, and likewise everything else which followed in the purported inquiry.

Background facts

13. The matter began with a letter of 4 March 1994 from a Madam Fung to the Chairman of the Medical Council which reads:

Dear Sir

14. After the receipt of the letter Madam Fung was interviewed by the Secretary to the Council or his staff and on 6 May 1994 she made a statutory declaration to the effect that the facts contained in her letter of 4 March 1994 were true.

15. Many months then elapsed, and on 31 October 1994 the Secretary to the Council sent a notice to the respondent as follows:

          I invite you to submit to the Committee any explanation of your conduct or of any matter alleged in the information which you may have to offer. Such explanation or information should be submitted to me in writing before 5 December 1994. If you so wish, you may also attend the meeting in person. I must emphasise that the duty of the Preliminary Investigation Committee is only to decide whether an inquiry by the Medical Council should be held. The Committee is not empowered to pass judgement or sentence. If the complaint is referred to the Council you will be entitled to present your explanation and adduce evidence in support of your case either in person or by your solicitor or counsel before the Council and it is only then that a decision is made as to your guilt or innocence of unprofessional conduct and the appropriate punishment, if any, is adjudged.

16. It is worth noting that under Regulation 12(1) it is the Chairman of the Committee who directs the Secretary to refer the matter to the Committee. It would therefore be a fair inference that, at that stage, neither the Chairman nor the Secretary considered that any explanation was required of the respondent concerning "canvassing" or "fee sharing" with the beauty palour. The matters of complaint were confined to (a) an alleged failure to inform the patient about the effects of the treatment and (b) causing pain and cosmetic blemishes in the legs.

17. The respondent gave a detailed explanation by his letter of 23 November 1994 and enclosed photocopies of the forms of consent which Madam Fung had signed.

18. The Committee duly met on 19 December 1994. Because of the importance of that meeting as regards this case, it is necessary to set out the minutes verbatim.

Dr Kenneth Leung Kam-chung

MC 1/653/4/E

Was the committee acting ultra vires?

19. The statutory scheme under the regulations is clear. Under Regulation 12A(1), at the meeting and which the complaint or information is considered by the Committee, the Secretary -

"shall put before the Committee the complaint or information, any statutory declaration received therewith, any explanation submitted by the defendant and any other document or matter in the nature of evidence relevant to or in support of the complaint or information and which is available".

20. Under para (2) the Committee -

"having regard to any explanation or declaration made by the defendant, shall consider the complaint or information, any statutory declaration received therewith and any document or matter put before it by the Secretary under paragraph (1)...."

21. Where the regulations referred to "the complaint or information", it must refer to Madam Fung's letter of 4 March 1994 a copy of which was, quite rightly, put before the Committee.

The "complaint or information"

22. Confining attention for the moment to Madam Fung's letter of 4 March 1994, it can be seen that it raised the thinnest possible suspicion of "canvassing" by the respondent. There is no suggestion in the letter that Madam Fung had gone to the beauty parlour because of some advertising of medical services by anyone. She first went to the beauty parlour because she "hoped to increase [her] body height", and was referred to the respondent for the purposes of "trimming down" the fat in her thighs. She paid the beauty parlour $10,000, though why is not clear. It could be said that there is here a whiff of "fee-sharing", but the inference that the respondent was using the beauty parlour to "canvas" for patients could hardly be drawn. Apart from Madam Fung's letter, the only other material before the Committee of any significance was the consent form signed by Madam Fung. We have, in the course of the hearing, seen the original document ourselves, from which it can be seen that the figure "20" in "$20,000" was heavily scored. It is possible that the original figure was "10" but this, too, was somewhat shadowy: it raised the thinnest possible inference that the respondent had shared the fee of $20,000 with the beauty parlour by retaining $10,000. That was the sum total of the material before the Committee on canvassing and fee-sharing - allegations on which the respondent had not been asked to submit any explanation before attending the meeting on 19 December 1994.

23. Could the Committee, consistent with the discharge of its functions under the Regulations, raise the matter itself and then, in effect, short-circuit the process under Regulation 12(2)(a) to (e) and, after hearing the respondent's explanations orally, refer the new complaints to the Council for inquiry?

Waiver of the procedural requirements

24. Mr Dykes, counsel for the Medical Council, points to the fact that it was the respondent himself who had asked the Committee to hear his explanation regarding the allegations of "canvassing" and fee-sharing and it was only upon his insistence that the Committee proceeded to hear that explanation. But for that, the Committee would have adjourned and the Chairman would have directed the Secretary to send out a fresh notice setting out the substance of the new allegations.

Construction of the rules

25. The statutory scheme is intended to save medical practitioners from being vexed with groundless complaints, by having complaints screened by an independent body. Under Regulation 12(2), where the Chairman of the Committee directs that a complaint or information be referred to the Committee, the Secretary is required, among other things, to inform the respondent of the substance of the complaint or information. It is not for the Committee itself to do that. The function of the Committee is to consider the complaint or information, and the respondent's explanation, as put before it by the Secretary: see Reg.12A(1).

26. In our judgment, it is important that the roles of the Secretary and of the Committee be not confused. Section 21(1) of the Ordinance does not permit the Council to conduct a disciplinary inquiry upon reference by the Secretary: its jurisdiction springs from a reference by the Committee. The Committee, in order to properly perform its "screening" function, has no investigative role to play.

27. It may be that the threshold for referring a case to the Council, after consideration by the Committee under Reg. 12A, is not high: nonetheless, it is the Secretary who puts before the Committee the complaint and the Committee then, as it were, sits back to consider that together with "any statutory declaration received therewith, any explanation submitted by [the respondent] and any other document or matter in the nature of evidence relevant to or in support of the complaint or information and which is available": see Reg.12A(1).

28. The procedure is therefore in essence adversarial.

29. Plainly, at the meeting of 19 December 1994, the rules have not been followed. But, as Megaw LJ said in R. v. Board of Visitors of Hull Prison, ex parte St. Germain [1979] QB 425 at 450:

"It is certainly not any breach of any procedural rule which would justify or require interference by the courts. Such interference ... would only be required, and would only be justified, if there were some failure to act fairly - fairly, having regard to all relevant circumstances - and such unfairness could reasonably be regarded as having caused a substantial, as distinct from a trivial or merely technical, injustice, which was capable of remedy."

Applying the law to this case

30. It will be recalled that para 19 of the minutes states:

"19. During deliberations, members of the Committee generally felt satisfied with Dr Leung's explanations regarding the charges being brought against him in the Notice of PIC meeting dated 31 October 1994."

31. Having reached this point, the function of the Committee at the meeting as convened by the notice of 31 October 1994, was at an end. Any further investigative role was not for the Committee to play.

32. When the minutes further record:

"20. .... It was put to Dr Leung at the PIC meeting that new charges or 'canvassing' as referred to at section 9.3 and section 10 of the Professional Code and Conduct of the Medical Council of Hong Kong and the Warning Notice of the Medical Council of Hong Kong respectively, would be brought against him ...." (emphasis added)

the Committee was acting outside the rules. The respondent was put in an impossible position. He was told in effect that the Committee had already reached an adverse view on the material before it, without hearing any explanation from him: and yet he was told he could give his "written submission and explanation in response to [the] fresh charges to the Committee".

33. The respondent would have been justified in concluding that this would be a mere charade: to answer "charges" coming from the Committee itself, which it had already resolved would be brought.

34. In our judgment, there was not here simply a breach of technical rules which could have been waived by the conduct of the respondent: substantial unfairness had taken place which nothing could have remedied, short of new "charges" been placed by the Secretary before a differently constituted Committee, on which the respondent has had an opportunity to give his explanation in accordance with Reg. 12(2)(e).

The Chairman's function

35. Earlier, we have emphasized the importance of distinguishing the roles of the Secretary and the Committee. It is true that, under the Regulations, the Chairman of the Committee has a slightly ambiguous role. He presides over the Committee's meeting: having made a preliminary determination and directed the Secretary under Reg. 12(1) to refer the complaint or information to the Committee. But the Committee as a body shares no such ambiguity. They determine complaints as placed before them by the Secretary.

36. Here, it is note-worthy that the Chairman had in fact made such a preliminary determination: which initially did not include canvassing and fee-sharing for consideration by the Committee.

37. If, in the course of further deliberation, the Chairman should change his mind, and conclude - as he apparently did - that Madam Fung's letter did disclose something more than the complaints set out in the notice of 31 October 1994 afterall, he should have directed the Secretary to investigate further, with a view to sending out a fresh Reg. 12(2) notice.

38. In our judgment, the "waiver" point put forward by counsel for the appellants is wide of the mark: the Committee having acted beyond its powers, there was nothing for the respondent to waive.

39. The matter can be tested this way: Assuming that the respondent had not attended the meeting on 19 December 1994, what could the Committee properly have done? Plainly, the only proper course was to determine under Reg. 12A(2)(a) that no inquiry should be held. Any action beyond this point would have been outside its powers. The mere fact that the respondent did attend, and anything said or done by him at the meeting, cannot increase the Committee's jurisdiction.

Conclusion

40. In our judgment, Sears J reached the right conclusion in this case. We would dismiss the appeal with an order nisi that the appellants pay the costs.