CHAIRMAN AND DEPUTY CHAIRMAN OF THE PRELIMINARY INVESTIGATION COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG v. HOSPITAL AUTHORITY

CACV 184/2018
and CACV 185/2018

[2021] HKCA 1793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 184 OF 2018

(ON APPEAL FROM HCMP 2745/2016)

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AND

CIVIL APPEAL NO 185 OF 2018

(ON APPEAL FROM HCMP 2747/2016)

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J U D G M E N T

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Hon Kwan VP:

1.  I agree with the judgment of Barma JA.

Hon Barma JA:

2.  These were two appeals by the plaintiffs (respectively the Chairman and Deputy Chairman of the Preliminary Investigation Committee of the Medical Council of Hong Kong (referred to jointly as “the Chairman” as both appeals raise the same points)) against the decision of Au‑Yeung J (“the Judge”) dated 10 October 2017 by which she dismissed the Chairman’s applications for a mandatory injunction compelling the Hospital Authority to produce certain documents relating to the treatment of two patients which formed the subject of complaints to the Medical Council.

3.  The appeals were originally scheduled to be heard on 28 April 2020.  However, in light of the then prevailing public health situation, this court gave directions on 2 April 2020 (which took effect on 7 April 2020) that the appeals should be determined on paper and gave directions for the filing of further written submissions.  With apologies for the delay in doing so, we now give our judgment on the appeals.

Background

4.  The Medical Council of Hong Kong (“the Council”) is a statutory body established under section 3 of the Medical Registration Ordinance (Cap 161) (“the Ordinance” or “the MRO”).  Under section 21 of the Ordinance, it is vested with disciplinary powers over all registered medical practitioners in Hong Kong.

5.  The MRO, together with the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap 161E) (“the Regulation”), sets out a three-stage process for handling complaints against registered medical practitioners.  In essence:

(a)  All complaints are first submitted to the Chairman or the Deputy Chairman of the Preliminary Investigation Committee (“the PIC”) (a committee of the Council established under section 20BA(2)(d) of the Ordinance), who assesses whether the complaint is groundless or frivolous and ought not to proceed further.

(b)  If the complaint is not screened out or dismissed by the Chairman at the first stage, the complaint is referred to the PIC for consideration, together with any written explanation or documents submitted by the medical practitioner.

(c)  If the PIC considers that there is a prima facie case of professional misconduct against the medical practitioner, it may then refer the complaint to the Council for consideration on the merits.  If, after an inquiry has been held by an inquiry panel of the Council, the Council is satisfied that the medical practitioner has been guilty of professional misconduct or some other disciplinary offence, the Council is empowered to impose disciplinary sanctions on the medical practitioner.

6.  The statutory scheme confers upon the respective decision-makers at each of the three stages certain powers to gather evidence for purposes of their determinations:

(a)  At the first stage, the Chairman is empowered by section 8(1) of the Regulation to require a complainant to set out the specific allegations in writing, provide clarifications, or support the allegations by way of a statutory declaration.  Section 8(3) of the Regulation provides that the Chairman may decline to proceed with the investigation of the case if the complainant fails to comply with any requirement imposed under section 8(1).

(b)  At the second stage, the Secretary is required by section 9(2) of the Regulation to inform the medical practitioner of the complaint and invite him to submit a written explanation of his conduct. The PIC is further empowered by section 11(7) of the Regulation to conduct further investigations, obtain clarifications from the defendant and obtain such additional advice or assistance as it considers necessary.

(c)  As regards the third stage, section 22(1) of the Ordinance provides that an inquiry panel of the Council has the power to, inter alia, hear, receive and examine evidence on oath, summon any person to attend the inquiry to give evidence or produce any document in his possession, or require him to produce any document or other thing in his possession.  Section 23 of the Ordinance makes it an offence for a person so summoned to fail to attend as a witness or produce any document he is required to produce.

7.  The present proceedings arise out of two complaints received by the Chairman concerning the treatment of patients in hospitals managed by the Hospital Authority.  In both cases, the Chairman sought further information from the Hospital Authority, having formed the view that the materials he had available to him were insufficient for him to make a fair decision as to whether the complaints were frivolous or groundless and should not proceed further.

8.  The relevant factual background and procedural history of these two complaints is uncontroversial. It was well summarised by the Judge at [8] to [20] of her judgment, which I set out below:

“B2. Factual Background in HCA 2745/2016 (Case A)

8. On 1 February 2010, the Secretary of the Council (the ‘Secretary’) received an anonymous complaint from an anonymous group of healthcare workers alleging that Doctor A had prescribed a dangerous drug, valium, in 10 times higher than normal dosage(s) to Patient A on about 13 June 2007 (Incident A). Doctor A was then working with Hospital A, which was and is managed by the HA.

9. The Council also noted from a report in the media on 2 February 2010 that Hospital A had investigated the matter, that the complaint was substantiated, that an apology was given to Patient A and that follow-up action had been taken against Doctor A.

10. On 8 February 2010, the complaint came before the first-tier screener, ie the Chairman. The Chairman instructed the Secretary to seek further information and documents from the HA. The Secretary’s letter to Hospital A stated that the personal information of Patient A, if mentioned in the report, could be masked or anonymised for confidentiality considerations.

11. This request was rejected by the HA on the basis of doctor/patient confidentiality and because of the Chairman’s lack of power to require access to such information and documents. The Council repeated its requests and the HA maintained its stance in the years that followed.

12. Meanwhile, with a view to facilitate the Council, the HA met with Patient A and his adult son on 26 July 2013 to provide them with the Council’s contact details, so that Patient A could consent to disclosure should he wish to do so.

13. Patient A passed away on 1 August 2013 for reasons wholly unrelated to Incident A.

14. By 18 March 2014, the Secretary had lost contact with the complainants.

15. By a letter dated 19 January 2015, the HA informed the Council of the full name of Patient A and the fact that he had passed away. The letter also mentioned that the original hard copies of Patient A’s medical records in Hospital A had been disposed of in August 2014 in accordance with the HA’s standard disposal practice given the lapse of time; that after the handling of an anonymous staff complaint letter in 2009, Hospital A kept a copy of several pages of Patient A’s medical records; and that some clinical information of Patient A had been recorded in the HA’s computer system.

16. The disposal of the original hard copies was without warning to the Chairman. As things stand, there had been no consent for disclosure from Patient A (or his personal representative) for disclosure by the HA to the Chairman. Complaint A which relates to Incident A that happened over 10 years ago has never reached the PIC or the Council.

B3. Factual background in HCA 2747/2016 (Case B)

17. The incident happened in December 2012 and January 2013. On 15 February 2013, the Council received a complaint from a laboratory employee in Hospital B managed by the HA. On 27 February 2013, the complaint was brought to the attention of the Chairman of the PIC. Upon direction of the Chairman, the Secretary wrote to the HA on 18 March 2014 requesting information now sought. The request similarly suggested anonymising Patient B’s identity for confidentiality reason.

18. The HA contacted the wife of Patient B on 23 December 2014 and delivered to Patient B a letter under seal from the Chairman, to invite Patient B to contact the Council. There has been no consent from Patient B for disclosure by the HA to the Chairman. Accordingly, the HA has declined to produce Patient B’s records.

19. The information in the Chairman’s hands, including an email from Doctor B dated 5 February 2013, is insufficient for the Chairman to pursue further.

20. The Chairman now seeks medical records and investigation reports relating to both Patients and any other available information and documents.”

9.  The Judge held that the Chairman had no power to compel the disclosure of the records.  She took the view that there was nothing in the Ordinance or the Regulation which expressly conferred such a power on the Chairman, and did not think that such a power could be read into the statutory scheme (whether under common law principles or by virtue of section 40(1) of the Interpretation and General Clauses Ordinance (Cap 1) (“IGCO”)), as this was, in her view, inconsistent with the structure of the three-tier disciplinary regime created by the legislation.  She considered it significant that an inquiry panel of the Council is granted extensive powers to summon persons to give evidence and produce documents, whereas the Chairman’s and the PIC’s investigatory powers are limited to seeking clarification from the complainant, inviting the defendant to give written explanations, and seeking such advice or assistance as may be necessary to assist their preliminary investigations.

10.  The Judge further held that the court had no common law power to order disclosure to the Chairman, and that it would not order production of documents or information simply because they were sought by a public regulatory body, however reasonable the request and whatever the claimed public interest might be.  Except where section 41 of the High Court Ordinance (Cap 4) or the Norwich Pharmacal jurisdiction (neither of which was applicable to the present case) was engaged, there was no independent cause of action by which a person could ask an innocent third party to produce documents or information, and a public regulatory body stood in no different position.

11.  Accordingly, the Judge dismissed the Chairman’s application, holding that notwithstanding the need for the requested documents and the strong public interest in the proper administration of disciplinary proceedings, to compel production of the documents would be an unlawful interference with the patients’ right to privacy under Article 14 of the Hong Kong Bill of Rights (“HKBOR”).

The appeal

12.  On appeal, the Mr Ho SC, for the Chairman, argued that the Judge was wrong to hold that he had no power to compel disclosure of the requested documents either by virtue of section 40(1) IGCO or by implication under common law principles.  In particular, the Mr Ho SC criticized the Judge’s application of the expressio unius exclusio alterius principle, contending that the inquiry panel’s express statutory power to summon witnesses and require the production of evidence merely concerns the conduct of proceedings before the inquiry panel, and thus does not preclude the existence of a power on the part of the Chairman to require disclosure from third parties.

13.  Mr Ho SC also contended that the Judge erred in holding that the disclosure of the requested documents constituted an unlawful interference with the privacy rights of the patients.  Given that the requested documents were necessary to enable the Chairman to discharge his statutory functions and given the strong public interest in the proper administration of professional disciplinary hearings, Mr Ho SC submitted that the Judge should have held that the balance lay in favour of disclosure, especially where there were safeguards (such as anonymization) that could protect the privacy and confidentiality of the patients.

Section 40 IGCO

14.  Section 40(1) IGCO provides that:

“Where any Ordinance confers upon any person power to do or enforce the doing of any act or thing, all such powers shall be deemed to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.”

15.  Mr Chan SC, appearing for the Hospital Authority, made the preliminary point that it was insufficient for the Chairman to demonstrate that the power to compel disclosure of information was “reasonably necessary” for it to carry out its functions.  He relied on the well-known principle of legality, ie that legislation will not be read as curtailing rights or other fundamental common law principles in the absence of express legislative words or a necessary implication to this effect (see Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 at 131E-G (per Lord Hoffmann); A v Commissioner of Independent Commission Against Corruption (2012) 15 HKCFAR 362 [67] to [70] (per Ribeiro PJ)).  He submitted that as the power to compel disclosure from the Hospital Authority involved an inroad into the fundamental rights of patients, such a power ought only to be implied if this was the clear intention of the legislature.

16.  The difference between the two thresholds was explained by Lord Hobhouse in R (Morgan Grenfell) v Special Commissioner of Income Tax [2002] UKHL 21 [2003] 1 AC 563 at [45], where he stated:

“A necessary implication is not the same as a reasonable implication … A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.”

17.  Mr Ho SC, however, submitted that the principle of legality is of no application in the present context. He argued that the principle is an interpretative tool concerned with the scope of statutory powers, and not the antecedent question of whether the power exists in the first place.  He also pointed out that there was no necessary conflict between the power to compel disclosure and fundamental rights, as it would not be in every case that the documents or information that might be sought by the Chairman would be protected by confidentiality or the right to privacy.  Mr Ho SC therefore contended that the Hospital Authority’s reliance on the principle of legality was misplaced.

18.  I am of the view that in this case, the appropriate standard to be applied is that of reasonable necessity.  This is because section 40 IGCO expressly confers on the Chairman such powers as are reasonably necessary for him to perform his functions.  That being the case, that is the standard which the court must apply.  But when considering whether the powers contended for are reasonably necessary, the court will naturally have regard to the fact that the powers contended for may involve the curtailment of fundamental rights and freedoms.

19.  Is it reasonably necessary for the Chairman to have the power to compel production of documents that is claimed?  In my view, whether a power to compel disclosure is reasonably necessary to enable the Chairman to perform his functions at the first stage of the process must depend on the proper construction of the statutory scheme, having regard to its structure, context and purpose.

20.  There is no dispute that the underlying purpose of the disciplinary regime is to provide an effective system of addressing allegations of professional misconduct against medical practitioners.  As explained by A Cheung J (as the Chief Justice then was) in Dr Li Wang Pong Franklin v Medical Council of Hong Kong [2009] 1 HKC 352 at [40] (see also Dr U v Preliminary Investigation Committee of the Medical Council of Hong Kong [2019] HKCFA 6, at [18] (per Cheung PJ, as he had by then become), the scheme seeks to strike a just balance between the legitimate expectations of complainants that their complaints will be fully investigated, and the need for legitimate safeguards for practitioners who are vulnerable to and may be damaged by unwarranted charges against them.  More importantly, however, the system is designed to protect the public from the risk of misconduct and malpractice by doctors, thus maintaining and sustaining the reputation of, and public confidence in, the medical profession.

21.  Mr Ho SC submitted that the Chairman’s function, within the statutory scheme, of promptly and effectively filtering out frivolous or groundless complaints would be severely curtailed if he had no power to compel disclosure of information from third parties.  As he is obliged to consider the substance of the complaint, namely whether the practitioner has been guilty of professional misconduct (and not merely whether the materials presented by the complainant were sufficient or complete), there may well be circumstances in which he would require further information from third parties in order to make his decision.  Mr Ho SC argued that the Judge’s conclusion in effect deprived the Chairman of any power to seek documents from third parties, confining him to the materials which are provided by the complainant.

22.  The Chairman places considerable reliance on the decision in Dr Li Wang Pong Franklin.  In that case, the Medical Council received a complaint that a medical practitioner had engaged in improper practice promotion in an interview following an inquest into the death of one of his patients.  In considering the complaint, the Chairman obtained papers from the Coroner’s Court and sought specialist advice from one of the experts who gave evidence in the inquest.  The Chairman then referred the case to the PIC for its consideration, indicating six other allegations of misconduct in addition to the original allegation of improper self-promotion.

23.  The medical practitioner sought judicial review of the Chairman’s decision, arguing that the Chairman had acted ultra vires in carrying out investigations into other areas of the practitioner’s practice of his own accord and referring to the PIC charges that had not been mentioned in the original complaint.  Dismissing the application, A Cheung J held that the Chairman was entitled to refer to the PIC any and all allegations of professional misconduct raised by the materials he had available to him, regardless of whether they formed part of the initial complaint, as it would be contrary to the purpose of the disciplinary regime to require the Chairman to adopt a blinkered approach and confine himself to the complainant’s specific grievance.  This was particularly so given that the majority of complainants were likely to have no legal background and might well lack the expertise to know what would constitute professional misconduct on the part of medical practitioners.

24.  As regards the issue of the Chairman’s own inquiries, it was held that the Chairman was entitled to seek outside assistance in determining whether a particular case was frivolous or groundless, and should not be proceeded with further.  As to this, A Cheung J had this to say at [64] of his judgment:

“64. With the rapid advancement of medical science almost on a daily basis, and with so many specialties and sub-specialties in the medical field nowadays, it is impossible and completely unrealistic to expect the Chairman of the PIC to possess by himself all necessary expert knowledge to deal with each and every case of complaint of professional misconduct. It is simply natural and in fact, in my view, part of the duty of the Chairman of the PIC to seek expert assistance, where appropriate and necessary, from an outside source, in order to determine whether a particular case is frivolous or groundless and should not proceed further, or should be referred to the PIC for consideration, provided that he does not abdicate his duty to the outside expert: see Tam Chi Ming v The Medical Council of Hong Kong [2008] 1 HKLRD 24.”

25.  A Cheung J went on to hold that the Chairman’s express powers under section 8 of the Regulation to seek clarifications and confirmation from the complainant did not preclude him from having the deemed general powers under section 40(1) IGCO, saying at [65]:

“65. By the same token, a complaint made by a complainant or the information supplied by him to the Secretary may or may not contain all the facts, materials or other information that the Chairman may reasonably require in order to fulfil his statutory function. Some of the missing documents or information may well be obtainable from the complainant himself, and thus s 8. But it is just common sense that some of these materials or information may not be within the possession or reach of the complainant, in which case, it is simply natural that the Chairman should need to contact other sources where the materials or information may be available for access to the same.”

26.  Mr Ho SC relied on these passages to submit that it was clear from them that the Chairman had the power to require the provision of documents or information from third parties, and that such a power was one which was reasonably necessary. 

27.  However, with due respect, I am unable to agree with this submission.  It is important to bear in mind that while the Chairman’s function of filtering out frivolous and groundless complaints, is an essential component of the statutory scheme, it is ultimately a limited function.  As Lightman J explained in R v General Medical Council ex p Toth [2000] 1 WLR 2209 at 2218H-2219C (concerning the equivalent three-tier disciplinary scheme in England):

“The role of the screener is a narrow one. It is to filter out from the formally correct complaints, not those which in his view ought not to proceed further, but those which he is satisfied (for some sufficient and substantial reason) need not proceed further. For this purpose he must be satisfied of a negative, namely that the normal course of the complaint proceeding to the P.P.C. need not to be followed. The assumed starting point is (1) above and the need referred to is the need to honour the legitimate expectation that complaints (in the absence of some special and sufficient reason) will proceed through the P.P.C. to the P.C.C. The absence of ‘need’, of which the screener must be satisfied before he can halt the normal course of the complaint to the P.C.C, connotes the absence of any practical reason for the complaint so proceeding and that for the complaint to proceed to the P.C.C. would serve no useful purpose. There may be no need because there is nothing which in law amounts to a complaint; because the formal verification is lacking; because the matters complained of (even if established) cannot amount to serious professional misconduct; because the complainant withdraws the complaint; or because the practitioner has already ceased to be registered. Wider questions, as to the prospects of success of the complaint, as to whether the complainant is acting oppressively or as to the justice of the investigation proceeding further, do not lie within the screener's remit. So far as they may go to the issue whether the complaint ought to proceed, they fall within the remit of the P.P.C. It is not for the screener to arrogate to himself the role of the P.P.C. and decide whether the complaint ought to proceed further, still less to arrogate to himself the role of the P.C.C. and weigh up conflicting evidence or judge the prospects of success. He must respect the role assigned by the Rules to the P.P.C. (for which the P.P.C. is armed with investigative powers) and recognise that his duty is only to act as a preliminary filter before the more substantive role as filter is exercised by the P.P.C.”

28.  This passage seems to me to demonstrate that the Chairman’s function is not one which envisages or requires significant investigation.  The examples given of complaints which the first-stage screener is responsible for filtering out are all matters which should be capable of summary determination.  Further, all that the Chairman is required to decide is the negative question of whether there is no need for the complaint to proceed further.  If he is unable to satisfy himself of this based on the material available to him, then what he should do (and is indeed obliged to do) is to refer the complaint to the PIC.  The need for further investigation would, it seems to me, be one reason why a complaint should be allowed to proceed further.

29.  Mr Ho SC submitted that to permit such complaints (which might ultimately turn out to be groundless or unmeritorious) to go ahead would defeat the purpose of having a first-stage screener, by hampering his ability to efficiently and effectively filter out complaints.  But this objective would equally be defeated if the Chairman were to conduct extensive investigations in order to decide whether a complaint was frivolous or groundless, given the attendant delays that would ensue while this was done (the two cases in these appeals being examples of this).

30.  As regards the argument based on Dr Li Wang Pong Franklin, while I would accept that it is reasonably necessary for the Chairman to have the power to seek assistance and obtain documents from third parties in order to perform his functions, it does not follow from the fact that the Chairman is at liberty to ask for assistance or documents that he has the power to compel compliance with his requests. Nor did that case Dr Li Wang Pong Franklin decide that there was such a power – there, the materials sought were voluntarily supplied to the Chairman by the Coroners’ Court, and no question of compulsion arose for consideration. The argument that A Cheung J was dealing with was the suggestion that the Chairman had no power to ask for information, and in holding that he did, it cannot be assumed that A Cheung J was expressing any view as to whether the Chairman could not just ask for or obtain information, but actually compel its provision.  Mr Ho SC stressed that A Cheung J used the word “obtain” rather than “ask for” or “request”, but given that the information sought in that case was in fact obtained because it was voluntarily provided, I do not think that the word “obtained” bears the meaning or implication that Mr Ho SC contends for.

31.  Furthermore, while I entirely accept A Cheung J’s observation that complaints made to the Secretary may not contain all the facts, materials or other information that the Chairman might require to fulfil his statutory function, and that some of these materials may not be within the possession or reach of the complainant, I do not think that this requires one to conclude that it is reasonably necessary for the Chairman to have the power to compel disclosure of this material.

32.  Further, given the limited scope of the function being performed by the Chairman – essentially a negative screening function, calling for the screening out of cases which ought not to be proceeded with further, there is, in my view, no reasonable necessity for the Chairman to be endowed with the coercive power that is contended for.  As observed earlier, where it is not possible to be satisfied that a complaint should be brought to an end at the screening stage, the consequence will simply be that it will proceed to the second stage of the process.  I do not think that the absence of a power to compel disclosure of documents would (as was suggested on behalf of the Chairman) in effect deprive the Chairman of the power to ask third parties for documents and confine him to considering only the materials received from the complainant.  As Dr Li Wang Pong Franklin demonstrates, a power to seek (even if not to demand) information from third parties will still be useful in some cases.

33.  It is convenient to deal briefly here with Mr Ho’s submissions on the expressio unius principle. With respect, I am unable to agree with the contention that section 22 of the MRO (which confers upon an inquiry panel the power to, inter alia, summon witnesses and require persons to produce any document or thing in their possession) concerns only the conduct of proceedings at an actual inquiry and is therefore fundamentally different from the power of disclosure presently asserted by the Chairman.  The express provision of such a power to the inquiry panel and the absence of any similar express power on the part of the Chairman at the earlier screening stage strongly suggests that it was intended that the power of compulsion was intended to be reserved to the stage of proceedings when an actual inquiry was on foot.

Implication at common law

34.  This ground of appeal adds little.  It was common ground, incidental powers may be implied into statutes at common law if such powers are reasonably required for the achievement of the purposes of the statute, so long as they do not contradict any express statutory provision (see PCCW-HKT Telephone v Telecommunications Authority (2005) 8 HKCFAR 337, at [60] per Ribeiro PJ).  This is, to my mind, essentially the same approach and test as specified in section 40 IGCO, and the parties did not suggest otherwise.  Thus, having rejected (for the reasons given above) the argument for the Chairman that the proposed power is reasonably necessary for the discharge of his functions, it follows that his contention that such a power may be implied under common law must similarly be rejected.

Balancing

35.  In view of my conclusion that the Chairman has no power to compel disclosure, it is unnecessary to consider whether ordering disclosure in the present case would involve a disproportionate interference with the fundamental rights to privacy of the subject patients, and I do not propose to do so.

Disposition

36.  For the foregoing reasons, I would dismiss these appeals, and make a costs order nisi that the Chairman pay the Hospital Authority’s costs on a party and party basis, to be taxed if not agreed.

Hon Au JA:

37.  I agree with Barma JA’s judgment.