FINANCIAL SERVICES AND SYSTEMS LTD v. SECRETARY FOR JUSTICE

HCAL 101/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 101 OF 2006

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J U D G M E N T

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1.  This is an application for judicial review pursuant to leave granted by Reyes J for a declaration that decision of the Government of the Hong Kong Special Administrative Region in enacting the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (No. 16 of 2006) (“the Amending Ordinance”) was in contravention of the Basic Law and the Hong Kong Bill of Rights. 

2.  Originally, there was another application under HCAL 88/2006 directed to be heard together by Reyes J at the hearing of the leave application on 17 October 2006. 

3.  The applicant in HCAL 88/2006, Mr. Yung Chiu Wing David, is a Listed Chinese Medicine Practitioner (“Listed CMP”) under the Chinese Medicine Ordinance (Cap. 549) (“CMO”).   On 2 January 2007, Mr. Yung wrote to the court indicating that he did not intend to proceed with his own application.

4.  The present applicant Financial Services and Systems Limited, (“FS&S”) is a private company limited by shares.  It has two registered shareholders: Mr. Yung holding 9,998 shares and Mr. Siu See Kwong holding 2 shares.  There are four directors including Mr. Yung and Mr. Siu.  Only Mr. Yung is a Listed CMP.

5.  FS&S is said to be carrying out the activities of Hong Kong Association of Traditional Chinese Medicine Practitioners with members comprising of Listed CMPs and Registered Chinese Practitioners (“Registered CMPs”).  Mr. Yung is the Chairman of the Association. 

Background

6.  Prior to the commencement of the CMO on 6 August 1999, practitioners of Chinese medicine in Hong Kong were not under formal regulation. The CMO established a scheme of registration for CMPs.

7.  The CMO established the Chinese Medicine Practitioners Board (“CMP Board”), which is responsible for, inter alia, registration of CMPs.  A person is qualified to apply for registration if:

(1)	he has passed the Licensing Examination; or
(2)	the CMP Board has determined that he is qualified to apply for registration.

8.  Part IX of CMO contained a transitional arrangement for those who were practising Chinese medicine as at 3 January 2000 to apply for their names to be put on a list as assessed by the CMP Board.  Such persons on the list (i.e. Listed CMPs) may continue practising Chinese medicine until:

(1)	his application for registration, if any, is refused; or
(2)	his name is removed from the list;
(3)	such date as may be specified and promulgated by notice in the Gazette by the Secretary for Health, Welfare and Food.

9.  Subject to the special arrangement for Listed CMPs, a person is not eligible to undergo the Licensing Examination unless he/she has obtained a degree in Chinese medicine practice recognized by the CMP Board.

10.  Listed CMPs may become Registered CMPs in the following ways:

(1)	direct registration without further examination or assessment:
	(a)	those with not less than 15 years of continuous practice immediately before 3 January 2000;
	(b)	those with less than 15 years but not less than 10 years of continuous practice and have obtained a qualification acceptable to the CMP Board;
(2)	registration after passing registration assessment:
	(c)	those with less than 15 years but not less than 10 years of continuous practice without a qualification acceptable to the CMP Board;
	(d)	those with less than 10 years of continuous practice and have obtained a recognized qualification;
(3)	registration after passing Licensing Examination:
	(e)	the remaining Listed CMPs.

11.  In December 2001, the CMP Board first promulgated the names of 7,707 Listed CMPs.  2,543 were eligible for direct registration, 2,515 had to undergo registration assessment, and 2,619 need to pass the Licensing Examination.  Thereafter, the opportunity of becoming Listed CMPs was closed.  There were two rounds of assessment in February and October 2003, whereas Licensing Examination is held annually since 2003.  By November 2006, the number of Listed CMPs dropped from 7,707 to 2,898, and the number of Registered CMPs was 5,268. 

12.  The Amending Ordinance was enacted to amend the Employment Ordinance (Cap. 57), Employees’ Compensation Ordinance (Cap. 282) and Pneumoconiosis (Compensation) Ordinance (Cap. 360) and various related subsidiary legislation to provide for the recognition of certification in various forms given by, and medical examination and treatment conducted or given by a Registered CMP for the purposes of entitlement to certain employee benefits under the those Ordinances.

13.  In short, the Amending Ordinance accorded the Registered CMPs with comparable status of practitioners registered under the Medical Registration Ordinance (Cap. 161) and dentists registered under the Dentists Registration Ordinance (Cap. 156) in relation to medical functions performed and medical certificates issued in support of a claim for employee benefits under the three labour Ordinances.

Applicants’ case

14.  The applicants’ grounds are that the Amending Ordinance is unconstitutional in that:

(1)	it unreasonably deprives the Listed CMPs of the freedom of choice of occupation under Art. 33 of the Basic Law;
(2)	it fails to give equal protection to the Listed CMPs in respect of their existing lawful right to earn their means of living in contravention of equality before the law under Article 25 of the Basic Law and equal protection by the law under Art. 22 of the Hong Kong Bill of Rights;
(3)	it is unreasonable discrimination in the absence of express provision to discriminate under the national legislature of the People’s Congress;
(4)	it unreasonably curtails the Listed CMP’s belief in accordance with their observance and practice in their profession in contravention of the freedom of thought, conscience and religion under Art. 15 of the Hong Kong Bill of Rights;
(5)	it unreasonably and unnecessarily curtails a Hong Kong resident’s freedom to seek, receive and impart information and ideas in relation to one’s health in contravention of the freedom of opinion and expression under Art. 16 of the Hong Kong Bill of Rights;
(6)	it deprives the Listed CMPs their means of living and/or occupation by failing to contain reasonable transitional provisions such as providing for the countersigning of the Listed CMP’s certificate by the Hospital Authority, employer’s designated persons or other qualified persons.

15.  In relation to the last point, the Affirmation of Mr. Yung referred to the practice of countersigning of receipts of Chinese herbalists (including Chinese medicine practitioners, accupuncturists and bone setters) by doctors in public hospitals.  If an injured person had attended the Accident and Emergency Unit of a public hospital and later attended a bone setter, the medical officer would grant sick leave of not more than 4 days upon the recommendation of the bone setter, and the bills of the Chinese medicine practitioners countersigned by the medical officers were acceptable for employees’ compensation and/or insurance purposes.

Respondent’s case

16.  The respondent’s case is that:

(1)	The Amending Ordinance is not inconsistent with the Basic Law or the Bill of Rights.
(2)	Further, the applicant does not have sufficient interest in the matter to which the application relates.

17.  Mr. Ng Ka-kwong, Assistant Commissioner for Labour, pointed out that Registered CMPs and Listed CMPs are not equivalent:

(1)	Under the CMO, the category of Listed CMPs is transitional and not permanent.  There are provisions for Listed CMPs to become Registered CMPs upon passing the Licensing Examination.
(2)	Listed CMPs are not eligible to prescribe 31 types of potent or toxic herbal medicine as specified in Schedule 1 of CMO.
(3)	Registered CMPs are prohibited from practising without a valid practising certificate with payment of fee and Listed CMPs are exempted.
(4)	Registered CMPs are required to undergo continuing education requirements before being eligible for renewal of practising certificate and Listed CMPs are exempted.
(5)	The scheme of disciplinary sanctions for Registered and Listed CMPs are different.

18.  Mr. Ng has made enquiries with the Hospital Authority, and there has not been adopted any practice of medical officers granting no more than 4 days’ sick leave on the recommendation of bonesetter, or countersigning the bills of herbalists for the purpose of employees’ compensation or insurance claims.

19.  Mr. Chow SC, for the respondent, pointed out that at the Bills Committee meeting held on 12 May 2006, the Administration stated that the additional rights and responsibilities were conferred on Registered CMPs only because it was necessary to safeguard the interest of employers and insurers who were liable to pay the benefits or compensation. Mr. Chow submitted that the enactment of the Amending Ordinance in that only persons who have been assessed to have attained a certain professional standard are conferred with the statutory rights and responsibilities under the three labour Ordinances was a reasonable, rational and proportional decision by the legislature. 

20.  Mr. Chow has made submissions in relation to the alleged breaches of the provisions of the Basic Law and the Bill of Rights.  I shall refer to them under the appropriate headings below.

Jurisdiction

21.  In the present case, the applicant mounted a direct challenge on the constitutionality of primary legislation in the absence of a decision of a public body, and sought a declaration without any other relief.

22.  Art. 11 of the Basic Law provides that:

“No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law.”

23.  In Ng Ka Ling v. Direction of Immigration [1999] 1 HKLRD 315, 337; [1999] 1 HKC 291, 322, Li CJ (in giving the judgment of the Court of Final Appeal) said that:

“In exercising their judicial power conferred by the Basic Law, the courts of the Region have a duty to enforce and interpret that law. They undoubtedly have the jurisdiction to examine whether legislation enacted by the legislature of the Region or acts of the executive authorities of the Region are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid. The exercise of this jurisdiction is a matter of obligation, not of discretion so that if inconsistency is established, the courts are bound to hold that a law or executive act is invalid at least to the extent of the inconsistency. Although this has not been questioned, it is right that we should take this opportunity of stating it unequivocally. In exercising this jurisdiction, the courts perform their constitutional role under the Basic Law of acting as a constitutional check on the executive and legislative branches of government to ensure that they act in accordance with the Basic Law.”

24.  In William Roy Leung v. SJ (CA) [2006] 4 HKLRD 211; [2006] HKCU 1585, Ma CJHC (in giving the judgment of the Court of Appeal) held that the court has jurisdiction to grant a declaration in judicial review on the constitutionality of legislation in the absence of a judgment, order, decision or other proceeding where the applicant has shown a sufficient interest, but the discretion is to be exercised only in exceptional circumstances.

25.  In William Roy Leung v. SJ (CFI) [2005] 3 HKLRD 657; [2006] HKCU 1158, Hartmann J made several points on the exercise of the court’s discretion in pure declaratory relief (at paras. 69-81):

(1)	The courts are not supine and there is ample jurisdiction to prevent abuse by speculators and busybodies.
(2)	There must be a serious issue raised as to the invalidity of the legislation, and question must be real and not theoretical.
(3)	The person seeking the declaration must be directly affected by the legislation or must have a real interest.
(4)	The court shall consider whether there is a more appropriate procedure open to the applicant.
(5)	The court shall also consider whether the question can be fully argued such that a proper contradictor has been secured.

26.  O. 53, r.4(1), RHC provides as follows:

“

(1)

An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

27.  It has been held in William Roy Leung v. SJ (CA) that O.53, r.4(1) applies to application for declaratory relief when the constitutionality or legality of a statute is involved as it does to any other judicial review proceedings, provided that the point is an arguable one and the applicant has a sufficient interest, the time factor, while it is relevant, is not as compelling a consideration as in other situations as the court should take the first available opportunity to grant the appropriate relief.

28.  Mr. Chow did not make any submission on jurisdiction save as to the applicant’s standing.

Locus standi

29.  Mr. Chow submitted that notwithstanding that Mr. Yung or other Listed CMPs said to be members of the Association would have sufficient standing to challenge the constitutionality of the Amending Ordinance, the applicant itself did not.  The applicant is an ordinary limited company with object clauses not specifically related to Listed CMPs.  It carried on activities including publishing and just happened to have a shareholder and director who is a Listed CMP.

30.  As to the status of the Association and its relationship with the applicant, Mr. Chow accepted that there is scanty evidence and investigation on the point.

31.  Mr. Chow voiced the concern that persons otherwise with locus are allowed to proceed with a judicial review application by a limited company, which may effectively be immune from liability for costs.  However, this has little practical consequence in the present case because costs have already been incurred.

32.  Mr. Chow indicated that the standing point is ancillary to his argument on the merits.  In view of the lack of evidence on the status of the Association, and also the view I take on the merits, I shall not rule on this point.

Equality before the law

33.  Art. 25 of the Basic Law provides that:

“All Hong Kong residents shall be equal before the law.”

34.  This general principle of equality before the law plainly has no application in the present case, as it cannot be argued that any Hong Kong resident is entitled to issue certificates under the three labour Ordinances.

Equal protection of the law

35.  Art. 22 of the Bill of Rights states that:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

36.  Mr. Siu, for the applicant, submitted that notwithstanding the Listed CMPs were restricted in the prescription of toxic herbal medicine, they were equal in the eyes of the clients before the enactment of the Amending Ordinance.  They complimented practitioners of western medicine in relation to patients with particular symptoms and earned the confidence of the clients.  With the Amending Ordinance, the patients will choose not to consult Listed CMPs.  Hence, the Listed CMPs are being driven out of business by economic pressure.  The Amending Ordinance unreasonably affected their livelihoods.

37.  Mr. Chow submitted that the different treatments accorded to the Registered CMPs and Listed CMPs in the Amending Ordinance do not amount to, and will not result in unlawful discrimination under Art. 22 of the Bill of Rights.  There are three reasons:

(1)	The different treatments are not based on any of the proscribed grounds in Art. 22.
(2)	There is no discrimination because Registered CMPs and Listed CMPs are very different.
(3)	Even if there is “discrimination”, the prohibition against discrimination is not absolute and can be justified on reasonable and objective grounds.

38.  None of the proscribed grounds of discrimination in Art. 22 is relevant here.  As to discrimination on the ground of “other status”, in R (S) v. Chief Constable of S Yorkshire Police [2004] 1 WLR 2196, the House of Lords was concerned with Art. 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act, 1998,  which states that:

“	Prohibition of discrimination
	The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

39.  Lord Steyn held (at p. 2213 paras. 46 to 51) that if the different treatment is not on a relevant ground for the purposes of Art. 14, then the article is not applicable.  His Lordship referred to Kjeldsen, Busk Madsen and Pedersen v. Denmark (1976) 1 EHRR 711, 732-733, para. 56 where the European Court of Human Rights interpreted “other status” as meaning a personal characteristic, and said that he did not understand Lord Wool CJ in the decision of the Court of Appeal below as having expressed a different view.

40.  In the present case, the different treatment of Registered CMPs and Listed CMPs are not based on any personal characteristics.

41.  In R (Carson) v. Secretary of State for Works and Pensions [2006] 1 AC 173, Lord Hoffman said (at p. 182 para. 14) that discrimination means a failure to treat like cases alike, and there is obviously no discrimination when the cases are relevantly different.  Lord Rodger of Earlsferry said (at p. 188 para. 44) that the critical question will be whether the person complaining of discrimination is really in an analogous situation to that of the person who is treated more favourably.

42.  In Raza & ors v. Chief Executive-in-Council & ors [2005] 3 HKLRD 561, 591-592 para. 111 to 113, Hartman J said that “discrimination’ as understood in the International Covenant of Civil and Political Rights (“ICCPR”) does not exclude the different treatment of persons.  His Lordship referred to the comment of the Human Rights Committee established under Art. 28 of ICCPR:

“Finally, the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.”

43.  Hartman J referred to R v. Man Wai Keung (No. 2) [1992] HKCLR 207 where Bokhary J (as he then was) considered Art. 10 of the Bill of Rights – “All persons shall be equal before the courts and tribunals” – and said at p. 217:

“Clearly, there is no requirement of literal equality in the sense of unrelentingly identical treatment always. For such rigidity would subvert rather than promote true even-handedness. So that, in certain circumstances, a departure from literal equality would be a legitimate course and, indeed, the only legitimate course. But the starting point is identical treatment. And any departure therefrom must be justified. To justify such a departure it must be shown: one, that sensible and fair-minded people would recognize a genuine need for some difference of treatment; two, that the difference embodied in the particular departure selected to meet that need is itself rational; and, three, that such departure is proportionate to such need.”

44.  In this case, the professional qualifications of Registered CMPs and Listed CMPs are not the same.  Those who remain Listed CMPs have not been assessed to be up to a recognized standard.  The two categories of practitioners are not in an analogous situation such that the different treatment can be said to be discriminatory.

45.  In R (Carson) v. Secretary of State for Works and Pensions ob. cit., Lord Hoffman said (at p. 182 paras. 15 and 16) that art. 14 of the European Convention expresses the Enlightenment value that every human being is entitled to equal respect and to be treated as an end and not a means.  His Lordship drew a distinction on grounds of discrimination in the first category (such as race, gender, membership of a political party) which prima facie appear to offends our notions of the respect due to the individual and cannot be justified merely on utilitarian grounds.  On the other hand, differences in treatment in the second category (e.g. on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest.  While the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.

46.  Lord Walker of Gestingthorpe (at p. 191-192 paras. 55 to 57) referred to the jurisprudence of the United States Supreme Court and the doctrine of “suspect” ground of discrimination developed on the equal protection clause of the Fourteenth Amendment.  When grounds based on personal characteristics (including sex, race and sexual orientation) which an individual cannot change and recognized as particularly demeaning for an individual are used as grounds for discrimination, the court will subject them to particularly severe scrutiny.  Whereas in Massachusetts Board of Retirement v. Murgia (1976) 427 US 307, the Massachusetts law that uniformed state police had to retire at the age of 50 was challenged, the Supreme Court held that in the circumstances of the case the appropriate test for equal protection of the laws was not strict scrutiny.  The only issue was whether the mandatory retirement age had a rational basis.  The majority opinion observed at p. 314:

“This inquiry employs a relatively relaxed standard reflecting the court’s awareness that the drawing of lines which create distinction is particularly a legislative task and an unavoidable one.  Perfection in making the necessary classifications is neither possible nor necessary.”

47.  Mr. Chow also referred to Art. 138 of the Basic Law, which states that:

“The Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies to develop Western and traditional Chinese medicine and to improve medical and health services…”

48.  I have held that there is no discrimination.  Even by any stretch of imagination to be any, it would fall within the second category.  The “discrimination” is not based on personal characteristics which an individual cannot change.  There is a reasonable channel open to Listed CMPs to become Registered CMPs through examination.  A rational and fair minded person would recognize a genuine need for allowing only appropriately qualified CMPs to be given the rights and responsibilities to perform the medical functions and issue the medical certificates under the relevant Ordinances.  It is within the Government’s power under Art. 138 of the Basic Law to formulate policies for the development of Chinese medicine.  Hence, the decision of the legislature was reasonable, rational and proportional to attain a legitimate social objective. 

Freedom of choice of occupation

49.  Art. 33 of the Basic Law states that:

“Hong Kong residents shall have freedom of choice of occupation.”

50.  Mr. Siu submitted that the Amending Ordinance had the intention or at least the effect of depriving the Listed CMPs their means to earn their livelihoods before the revocation notice by the Secretary for Health, Welfare and Food, which in itself is liable to be challenged as unreasonable.

51.  Mr. Chow pointed out that there is no evidence in support of the applicant’s allegation of intended effect of the elimination of the Listed CMPs, and in fact it is contrary to the evidence on the policy of the Amending Ordinance.

52.  Art. 33 of the Basic Law was considered by Hartmann J in Cheung Chun-ngai Daniel v. Hospital Authority HCAL 202/2002.  There, the applicant was an audiologist.  He was dismissed by the Hospital Authority.  He broughts proceedings both for wrongful dismissal as well judicial review for a certiorari to quash the decision to dismiss him.  It was argued that audiology is a profession which opens itself to limited employment prospects and the overwhelming majority of audiologists must  rely on employment in the public sector, i.e. with the Government or the Hospital Authority.  If the applicant were denied reinstatement, he would be unable to obtain further employment in the public sector.  Hartmann J said at para. 55 of the judgment that:

“However, as I read the article, even when it is interpreted generously and purposively, it is not to be interpreted in an active sense, by which I mean that it does not guarantee the right of employment in any particular field of occupation.  Whether employment can in fact be obtained will depend on the laws of supply and demand as they apply in the market place.  The article, in my view, is to be interpreted rather in the light of what it seeks to prevent; namely, outside of issues of national service, should they ever arise, any form of conscription to particular fields of occupation.”

53.  Here, there is no question of the Amending Ordinance conscripting the Listed CMPs to any other fields of occupation.  All it does is to provide for recognition of medical treatment, examination and certification by Registered CMPs under the three labour Ordinances. 

Freedom of thought, conscience and religion and Freedom of opinion and expression

54.  Mr. Siu also rely on Arts. 15(1) and 16(1) and (2) of the Bill of Rights as ancillary to his main argument on equality and equal protection under the law.

55.  Art. 15(1) of the Bill of Rights states that:

“	Freedom of thought, conscience and religion
	(1)	Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

56.  Art. 16(1) and (2) of the Bill of Rights states that:

“	Freedom of opinion and expression
	(1)	Everyone shall have the right to hold opinions without interference.
	(2)	Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

57.  Mr. Siu submitted that the Amending Ordinance curtailed the Listed CMPs’ right to manifest their observance, practice and teaching in traditional Chinese medicine under Art. 15(1) of the Bill of Rights, and the right to express opinion and impart information and ideas on traditional Chinese medicine under Art. 16(1) and (2) by not according with them reasonable standing in the community.

58.  Clearly, Arts. 15 and 16 of the Bill of Rights are not engaged.  I do dot see any further point in addition to the equal protection and discrimination argument.

Lack of authority from the national legislature

59.  Mr. Siu pointed out that the Hong Kong Special Administrative Region was established under Art. 31 of the Basic Law.  The Legislative Council derives its authority from the People’s Congress and the Basic Law.  Hence, the Legislative Council cannot unreasonably and unconstitutionally eliminate the Listed CMPs, which predecessors had long existence in Chinese history.

60.  There is no evidence or inferred consequence of any elimination of the Listed CMPs.  The listed CMPs could carry on their practice in the limited way as before.  Mr. Siu’s argument on this point is circuitous and adds nothing to his main argument.

61.  Further, Mr. Siu reminded me that the authorities from England and Europe are not binding on the court, and one must have regard to the local circumstances in Hong Kong.

62.  Arts. 15, 16 and 22 of the Bill of Rights originated from the ICCPR, which implementation through the domestic laws is guaranteed under Art. 39 of the Basic Law.  Subject to the local circumstances, international jurisprudence on human rights is relevant and a helpful guide to the interpretation of analogous provisions in our domestic laws.

Countersigning practice

63.  The so-called practice of countersigning within the Hospital Authority is denied.  Even if there were such a practice, I fail to see any moment in the argument.  Put simply, the certification was by a countersigning registered medical practitioner, and the Listed CMPs never had any right as such, and had not been deprived of any right by the Amending Ordinance.  In any case, the Listed CMPs may still seek countersigning by a registered medical practitioner, and additionally by Registered CMPs, subject always to the discretion of those being approached whether to certify.

Conclusion

64.  In the premises, I do not find the Amending Ordinance to be unconstitutional.  The application is dismissed.

Costs

65.  I shall hear the parties on costs, if so wished.