SZE HEI FA HELENA v. THE CHINESE MEDICINE PRACTITIONERS BOARD OF THE CHINESE MEDICINE COUNCIL OF HONG KONG

CACV 236/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 236 OF 2003

(ON APPEAL FROM HCAL NO. 10 OF 2003)

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J U D G M E N T

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Hon Le Pichon JA (dissenting):

1. This is an appeal from the order of High Court Deputy Judge Andrew Cheung (as he then was) dated 18 July 2003 whereby he quashed the decision of the Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong ("the Practitioners Board") contained in its letter dated 23 November 2002 refusing the applicant's request to reconsider its earlier decision or assessment under section 92 of the Chinese Medicine Ordinance, Cap. 549 ("the Ordinance"). The order also required the Practitioners Board to consider whether or not to entertain the allegation of mistake, and (where appropriate) to determine that allegation, to reconsider its determination under section 92 and to make a re-determination under section 92.

Introduction

2. Prior to August 1999, practitioners of Chinese medicine were not subject to any regulation and were free to practise their profession. In 1999, the legislature decided to regulate the practice of Chinese medicine. Accordingly, the Ordinance was enacted to provide a professional and statutorily recognized status to Chinese medicine practitioners. The Practitioners Board was given responsibility for regulating, inter alia, the registration, practice, discipline and conduct of Chinese medicine practitioners. The statutory scheme required the registration of practitioners in Chinese medicine rendering any person practising Chinese medicine in Hong Kong without registration guilty of a criminal offence. See section 108(2) of the Ordinance.

The statutory scheme for existing practitioners

3. The route to registration is contained in section 69. Registration may be achieved in one of two ways: a person is qualified to apply to be registered if (1) he has passed the Licensing Examination or (2) the Practitioners Board has determined that he is qualified to apply to be so registered under section 92.

4. The second of the two alternatives comes under Part IX of the Ordinance which deals with "Transitional Arrangements for Chinese Medicine Practitioners". Part IX was designed to deal with those persons who were practising Chinese medicine on 3 January 2000, and its provisions were, in effect, 'grandfathering' provisions. They are of fundamental importance to those who were practising Chinese medicine on 3 January 2000 because they conferred on those persons certain rights and, depending on the length of time of practice before that date, those rights varied from being able without more to continue to practise, to having to undertake and pass a registration assessment or to having to undertake and pass the Licensing Examination. It therefore becomes necessary to consider in some detail the so-called "transitional arrangements" under Part IX.

Part IX

5. Sections 90 to 95 (inclusive) contain the 'grandfathering' provisions. Any person practising Chinese medicine on 3 January 2000 is entitled to apply to have his name included in the list to be maintained by the Practitioners Board under section 90 ("the list") on payment of the prescribed fee. For convenience, persons whose names are on the list are hereinafter referred to as "the listed practitioners". The Practitioners Board is under a statutory duty to assess whether a listed practitioner satisfies the requirements under section 92. These requirements are :

"92. Alternative qualifying requirements

(1) The Practitioners Board may determine a person to be qualified to be registered under section 69 if it is satisfied, after assessment, that the person-

(a) ...

(b) has acquired substantial experience, knowledge and skills in the practice of Chinese medicine.

(2) No person shall be regarded as having acquired substantial experience, knowledge and skills for the purpose of subsection (1)(b) unless he has-

(a) attained the standard which qualifies him to be exempted from the Licensing Examination under section 93;

(b) passed the registration assessment as required under section 94; or

(c) passed the Licensing Examination as required under section 95."

6. The effect of section 90 is that persons practising Chinese medicine on 3 January 2000 are given a period within which to put their names on the list and to have their entitlement to practise Chinese medicine determined under section 92. Once a person's name is entered on the list, he may continue to practise Chinese medicine until the earliest to occur of one of the following events: his name has been entered on the Register; his application for registration has been refused under section 70; his name has been removed from the list under section 91; or such date as may be specified and promulgated by the Secretary by notice in the Gazette. See section 90(3) of the Ordinance. No such date has yet been specified.

7. The net effect of sections 92 and 95 is that listed practitioners fall into five groups:

(1) those who have been practising Chinese medicine in Hong Kong for a continuous period of not less then 15 years;

(2) those who have been practising between 10 and 15 years and have an acceptable qualification;

(3) those who have been practising between 10 and 15 years and who do not have an acceptable qualification;

(4) those who have been practising for less than 10 years and who have an acceptable qualification;

(5) those who have been practising for less than 10 years and who do not have an acceptable qualification.

8. Listed practitioners within groups 1 and 2 are not only exempted from undertaking the Licensing Examination, they are not required to pass a registration assessment before applying for registration under section 68. Those in groups 3 and 4 are exempted from undertaking the Licensing Examination but are required to pass a registration assessment before applying for registration. Those in group 5 are required to undertake and pass the Licensing Examination before applying for registration. In contrast, a person who was not practising Chinese medicine as at 3 January 2000 is not eligible to undertake the Licensing Examination unless he has satisfactorily completed an approved undergraduate course of training in Chinese medicine.

9. It will be seen that Part IX effectively conferred on the 5 groups certain rights which are translatable into exemptions from all or some of the steps to be taken in order to be qualified to apply for registration as a Chinese medicine practitioner under the Ordinance. Whilst the extent of the particular right depends on the group in question, the right itself is triggered and vests upon a person's name being put on the list. As from that moment, the right in question crystallizes and becomes an accrued right. In that connection, it should be noted that 3 January 2000 is merely determinative of the eligibility of the person concerned to get his name on the list.

The facts

10. The applicant is a Chinese medical practitioner. In September 1980, the applicant started to learn how to practise Chinese medicine from her master, a Mr Law Saint Wan who had himself been practising Chinese medicine in Hong Kong for more than 50 years. For a period of five years, until August 1989, the applicant practised Chinese medicine under the supervision and instruction of Mr Law. From September 1986, the applicant attended evening classes in Chinese medicine at the Ching Wah Chinese Medical Institute. In August 1989, she graduated from the Institute, having successfully completed a three-year comprehensive course in Chinese medicine. It is common ground that the qualification the applicant obtained is acceptable to the Practitioners Board for the purposes of Part IX.

11. Immediately after graduation, the applicant practised independently as a Chinese medicine practitioner as an employee of Mr Law in his clinic. In about April 1990, the applicant applied for a business registration certificate with a view to practising Chinese medicine as a sole proprietor at Mr Law's clinic. In September 1999, the applicant left Mr Law's clinic and set up her own clinic at Fa Yuen Street, Mongkok.

12. The applicant received a letter dated 12 July 2000 from the Chinese Medicine Council of Hong Kong informing her of the Ordinance and the requirement to be registered as a Chinese medicine practitioner through the transitional arrangements. She was invited to submit an application during the period from 16 August 2000 to 30 December 2000.

13. On 15 November 2000, the applicant completed an application form for her name to be included in the list. Part A of the form required the applicant to state her experience in practising Chinese medicine. In her Notice of Application for Leave to Apply for Judicial Review, it is stated that the applicant had mistakenly believed that only the period in which she held a business registration certificate would be taken into account by the Practitioners Board and that the practising experience gained when she was employed by her Master (from August 1989 to March/April 1990) would not be taken into account. Therefore, although she had been practising Chinese medicine independently after graduation for more than 10 years, she stated in the application form that she had only been practising Chinese medicine since April 1990, namely, for 9 years and 9 months.

14. Page 3 of the application form relates to "Experience in practising Chinese medicine practice and qualification in Chinese medicine". The form was bilingual. The provisions in English read:

"According to Section 90 of the Chinese Medicine Ordinance, I am applying for registration as a listed Chinese Medicine Practitioner, and I am practising Chinese medicine on 3 January 2000 and have the following working experience/academic qualification:

Immediately before 3 January 2000:

	Practising Chinese medicine in Hong Kong for a continuous period of not less than 15 years.
	Practising Chinese medicine in Hong Kong for a continuous period of not less than 10 years but less than 15 years.
	Practising Chinese medicine in Hong Kong for a continuous period of less than 10 years.

In addition, I *have obtained/have not obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board."

The applicant ticked the last of the three boxes on the form.

15. In due course, the Practitioners Board notified the applicant that her name had been included in the list and informed her that she could continue her Chinese medicine practice pending assessment by the Practitioners Board. By a letter dated 5 September 2002, the Practitioners Board notified the applicant that it had determined that she was exempted from the Licensing Examination but was required to pass the registration assessment in accordance with sections 92 and 90 of the Ordinance. An enrolment form for the registration assessment was enclosed, with 25 September 2002 as the deadline for enrolment. The applicant did not enrol for or participate in the first registration assessment conducted in January and February 2003.

16. By the end of September 2002, the applicant learnt from other members of her profession that the practising experience she gained when she was employed by Mr Law was also accepted as practising experience for the purposes of the Ordinance. On 16 October 2002, the applicant's solicitors wrote to the Chinese Medicine Council to clarify that the applicant had been practising Chinese medicine for more than 10 years as of 3 January 2002 and provided supporting documentation. The Practitioners Board was invited to rectify the applicant's records and to reconsider her case. The Practitioners Board replied by a letter dated 23 November 2002 to the effect that it had no power to review or reconsider the matter.

17. To complete the picture, it should be mentioned that the Practitioners Board conducted a second registration assessment in October 2003. The applicant did not enrol for or participate in that assessment. The Gazette Notice dated 18 July 2003 (GN 4823) announcing the second registration assessment stated as follows:

".... The second Registration Assessment will be the last one. Only under very special circumstances will the Chinese Medicine Practitioners Board conduct any Registration Assessment for those listed Chinese medicine practitioners who fail to attend the above assessment.

..."

Given that announcement, further registration assessments are unlikely. The practical effect of the determination of the Practitioners Board (assuming there is no power to reconsider the application as is the stance of the Practitioners Board) is that the applicant may continue to practise until the earliest to occur of the events set out in section 90(3). If, as appears to be the case, the applicant does not take part in a registration assessment in the unlikely event of another registration assessment being conducted, it will be until such date as may be specified or promulgated by the Secretary in the Gazette. After that date, the applicant may not practise unless and until she passes the Licensing Examination. What is at stake here is the applicant's ability to practise her profession by obtaining a registration without having to undertake any assessment or examination.

The judgment below

18. The judge held that the Practitioners Board did have a power of review on the basis that the determination under section 92 was merely a preliminary step, forming part of the process by which the Practitioners Board decides whether to exercise the discretion in favour of a listed practitioner by registering him as a registered Chinese medicine practitioner, thereby conferring on him a benefit to be able to continue practising Chinese medicine in Hong Kong pursuant to the Ordinance and that the principle of irrevocability has no application.

This appeal

19. Mr Ho SC who appeared for the Practitioners Board submitted that the judge's analysis was flawed in that there was nothing preliminary about the section 92 determination. As it was a determination of legal rights, it was submitted that the decision was final and irrevocable: the Practitioners Board had no power to revisit or reconsider the assessment.

Determination of legal rights

20. It is common ground that despite the use of the word "may" in section 69(1), subject only to the provisions of sections 70 and 71, there is no residual discretion in the Practitioners Board to refuse an application for registration. Further, a section 92(2) assessment does not involve the exercise of a discretion.

21. Mr Ho SC submitted that where an assessment involves the determination of legal rights, the general rule is that there is no power to revoke or modify the decision reached in the absence of any express power contained in the Ordinance. He relied on In re 56 Denton Road, Twickenham [1953] 1 Ch 51 at 56-57 where Vaisey J accepted the following proposition as well-founded:

"... where Parliament confers upon a body ... the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body." (emphasis added)

The 'consent' exception

22. But the statement that the determination is final and conclusive was not stated in absolute terms: apart from express statutory power, it would seem that the decision could be altered with "the consent of the person or persons affected". It has been suggested that this exception to the Denton Road principle needs to be qualified in that consent by itself cannot extend a public authority's powers or validate action which is ultra vires. See Wade & Forsyth on Administrative Law, 8th Ed. at 237 and 245. Be that as it may, implicit in the 'consent' exception to the Denton Road principle (which is not affected by the suggested qualification) is that the power to entertain the application to revisit does exist provided the parties consent to its exercise.

Other exceptions

23. Even where express powers of review are not conferred, it is possible that statutory tribunals would have power to correct accidental mistakes, to set aside judgments obtained by fraud and to review a decision where facts subsequently discovered have revealed a miscarriage of justice. See Wade & Forsyth at 236. An example of the latter is where the tribunal's decision is given in ignorance that something has gone wrong. In R v Kensington and Chelsea Rent Tribunal Ex p. MacFarlane [1974] 1 WLR 1486, a notice by the tribunal sent to one of the parties miscarried. The tribunal made their decision in ignorance of that fact and notified the parties of their decision. The applicant then wrote to the tribunal explaining that he had not received the earlier notice and asked for a hearing. The tribunal declined on the basis that it had no power to reconsider the case. Lord Widgery CJ held (at 1493F-H) as follows:

"It was the tribunal's duty on receipt of that application from the applicant to consider whether they would allow the case to be re-opened, and I would stress that tribunals must be very firm in the view which they take about this kind of case. There must be no question of absent parties taking no action over a period of months, and then coming back to the tribunal with some story of having been ill or being in South America when the hearing occurred. Tribunals must be satisfied before they reopen a case that there is a good argument on the merits for giving the absent party a chance to be heard, that he has got a real and reasonable excuse, that he had to be given a further chance and that, in considering whether he ought to be given a further chance, due regard must be had to the other party to the proceedings and to any third parties who may have acted upon the tribunal's decision on the assumption that it was right and to be sustained." (emphasis added)

24. Whilst this power has been described as 'exceptional' and is to be exercised sparingly, this decision demonstrates that even where the determination is one of legal rights, there is no immutable rule that in the absence of an express power to review the tribunal or public authority has no power to consider whether it would allow a determination to be re-opened. Indeed, in Macfarlane, Widgery LJ considered there was duty, much less a power, to do so.

Rootkin v Kent County Council

25. So far as re-opening the case on the ground of mistake is concerned, it is necessary to consider the decision of the English Court of Appeal in Rootkin v Kent County Council [1981] 1 WLR 1186. Section 39 of the Education Act 1944 imposed on a local education authority a duty to reimburse the cost of reasonable travelling expenses for any child living more than 3 miles from a school. For a child living less than 3 miles from the school, the authority had a discretion under section 55(2) to reimburse travelling expenses. In that case, a local authority agreed to pay the cost of school transport for a child supposing that she lived more than 3 miles from the school. When it transpired that the distance was less than 3 miles, the authority refused to pay. The Court of Appeal held that the original decision was not irrevocable and that decisions conferring a benefit which would not otherwise have existed did not enjoy the same degree of finality and could be revoked on grounds of error of fact.

26. This distinction, between decisions which determine whether an individual has a pre-existing legal right and decisions which confer a benefit which would not otherwise have existed, is generally accepted as explaining the difference between the Denton Road case and Rootkin's case. But as has been pointed out by Michael Akehurst in his article Revocation of Administrative Decisions [1982] PL 613 at 618,

"... the Court of Appeal should have classified Rootkin's case as a case where the citizen did have a right to a determination (that she was entitled to reimbursement of travelling expenses) on certain facts (that the distance exceeded three miles) being established. It was for the council to make the necessary findings of fact, and their finding that the distance exceeded three miles should have been as irrevocable as the finding by the War Damage Commission in Re 56 Denton Road that the plaintiff's house was a partial loss. ..."

The distinction laid down by the Court of Appeal was thus wrongly applied to the facts of Rootkin's case. Rootkin fell into the first rather than the second category. Quite what the result would have been had Rootkin been properly categorized can only be a matter of conjecture. If the result would not have been any different, then Rootkin would support the view that a determination of legal rights could be revisited on grounds of error of fact. In any event, the irrevocability mentioned would be subject to the 'consent' exception to the Denton Road principle.

Mistake

27. Apart from the 'consent' exception, Vaisey J was also of the view that the determination could be revisited if "there had been some mistake or misconception upon which I could find that the document did not accord with the facts which it purports to record." See the Denton Road case at p. 57.

28. It is to be noted that in Rootkin itself, Lawton LJ considered that when the mistake of fact was discovered, the officer was duty-bound to reconsider the matter. Where the duty is owed by a public authority to a member of the public, there is all the more reason for there to be duty to exercise that power. In R v Law Society of British Columbia, ex parte MacKrow (1968) 68 DLR (2d) 179, the Law Society had struck off a solicitor who had been convicted of a criminal offense. He sought reinstatement when his conviction was subsequently quashed. His application was refused. The Court of Appeal of British Columbia held that the Society had a duty to reinstate the solicitor after his conviction had been quashed. In other words, their decision to strike him off had to be revoked. Further, that duty could be enforced by mandamus.

29. In the present case, there had been an error in the completion of the application form by the applicant ticking the wrong box. Whether the error was clerical or accidental or arose through a misunderstanding of the guidance notes accompanying the form, that error prevented the application form from according with the facts which it purported to record. Had a mistake been made by the Practitioners Board, the determination could plainly have been revisited. Mr Ho accepts this as "the exception to the principle of finality envisaged in Rootkin's case" but confines it to the case where the "mistake is made by the administrative body itself." But what is the rationale for that restriction? The fact that that happened to be the facts of Rootkin is not sufficient reason. The public interest unquestionably requires a public authority to give effect to the rights conferred on an individual by statute. In the absence of any rational basis for confining the exception to the finality rule to cases where the mistake is on the part of the administrative body itself, for my part, I am not persuaded that the exception cannot apply where the mistake is on the part of the individual concerned.

30. Another approach is to consider the matter from the perspective of the 'consent' exception. Can the Practitioners Board legitimately withhold its consent to entertaining the application for review where such consent would enable the exception to the Denton Road principle to apply, albeit that the mistake is on the part of the applicant? As the statutory body charged with administering the Ordinance, the Practitioners Board owes listed practitioners who have accrued rights under the Ordinance a duty to give effect to such rights. I am unable to discern any legitimate interest or reason which would justify the withholding of consent by the Practitioners Board.

31. The stance adopted by the Practitioners Board is also unfair. Nowhere in the notes accompanying the application form was the applicant's attention drawn to the fact that any inaccuracy or mistake in the completion of the form could give rise to serious consequences such as the loss of the applicant's accrued rights. By ticking the wrong box, an applicant could effectively be divesting himself of certain accrued rights which, in turn, would affect his ability to continue his profession which may be his only means of livelihood. That being the case, it would not only be wrong but also unfair for the Practitioners Board to withhold their consent which would enable the application for review to be entertained.

32. In my view, the observations of Lord Widgery LJ in the MacFarlane case (see paragraph 23 above) are particularly apposite. It has to be borne in mind that in the present case, the question is not whether the Practitioners Board should, in the exercise of its discretion, reopen the matter. That is the next stage. Rather, the question is whether it has the jurisdiction to entertain the application, to consider whether it would allow the case to be re-opened.

Cheung v Hertfordshire County Council

33. Some assistance may be derived from the decision in Cheung v Hertfordshire County Council (QBD 1985 CO/30/84 and CO/100/84). It concerned the power of local education authorities to re-visit decisions refusing grants to students after the House of Lords had found that the existing policy and guidance was wrong. On the question whether the admittedly wrong decisions could be reviewed without having to start judicial review proceedings to quash the decisions, McNeill J answered in the affirmative, stating that:

"... at least in circumstances where the consequence of the exercise of a statutory duty affects only the authority and the individual (the word 'authority' for this purpose comprehending both the taxpayer and the ratepayer concerned) but no third party (again that phrase to be read as including 'persons interested') and are exercised adversely to that individual, the exercise of the duty by a decision or determination may be open to review or consideration. It would to my mind be unthinkable if an admittedly wrong refusal of statutory rights (whether on an erroneous application of the law or a mistaken understanding of the facts) could not be reconsidered by the authority without the necessity of intervention by the courts or even of submission to compromise upon the threat of legal proceedings."

34. On appeal, Sir John Donaldson MR, whilst disagreeing with McNeill J that the decisions challenged were declarations of intention not to perform a statutory duty, held that the authorities in determining that the applicants did not qualify for awards were performing their duty under the Act, albeit mistakenly. He went on to say this:

"This is not to say that, having determined that the applicants were not qualified, the authorities had no power to reconsider their decision. I am sure that they had. It would be strange indeed if a public authority which discovered that it had inadvertently denied a citizen a benefit to which he was entitled could not correct its error. Indeed, I think that it would have a duty to consoder exercising this power, although I also accept that it would have a discretion as to what action should be taken. This discretion would have to be exercised in accordance with the requirements of good public administration."

I share those sentiments.

Conclusion

35. For all these reasons, I would dismiss the appeal with an order nisi that the costs be to the applicant.

Hon Cheung JA:

Chinese Medicine

36. Chinese medicine plays an important role in the daily life of the Chinese population in Hong Kong. However, the practice and use of Chinese medicine was only regulated from August 1999 onwards with the introduction of the Chinese Medicine Ordinance ("the Ordinance") (Cap. 549).

Registration

37. Under the Ordinance Chinese medicine practitioners are required to be registered. Anyone who practises Chinese medicine without registration is guilty of a criminal offence.

38. Approval for registration is to be made by the Chinese Medicine Practitioners Board ('the Practitioners Board') under section 69 of the Ordinance.

Qualifications

39. Under section 67, there are two alternative routes for a person to be qualified to apply for registration. The first is that he has passed the Chinese Medicine Practitioners Licensing Examination ('the Licensing Examination') set and conducted by the Practitioners Board. In order to sit for this examination, he has to complete a degree course in Chinese medicine (section 61(1)(a)). The second is that the Practitioners Board has determined that a person is so qualified under section 92.

List of practitioners under section 90

40. The second alternative route is to cater for the existing large group of Chinese medicine practitioners who have been in practice before the introduction of the Ordinance.

41. The mechanics for the second route is set out in Part IX of the Ordinance under the heading of 'Transitional Arrangements for Chinese Medicine Practitioners'.

42. Under section 90(1), the Practitioners Board is required to compile a list ('the list') of practitioners who are practising Chinese medicine on 3 January 2000 and have applied to the Practitioners Board for their names to be included in the list together with the payment of a prescribed fee. Section 90(2) provides that a person whose name is entered on the list shall be assessed by the Practitioners Board as to whether he satisfies the requirements under section 92.

Assessment under section 92

43. Under section 92(1) the Practitioners Board is to determine if a person whose name is already in the list is to be qualified to be registered under section 69(1).

44. This assessment is based on whether that person has acquired a substantial experience, knowledge and skills in the practice of Chinese medicine : section 92(1)(b).

45. This in turn will depend on whether that person has,

(1) attained the standard which qualifies him to be exempted from the Licensing Examination under section 93;

(2) passed the Registration Assessment under section 94; or

(3) passed the Licensing Examination as required under section 95.

The five categories

46. By reason of the operation of sections 93, 94 and 95 applicants may be divided into five categories :

(1) Those with not less than 15 years of practice;

(2) Those with between 10 and 15 years of practice and with acceptable qualification;

(3) Those with between 10 and 15 years of practice but without acceptable qualification;

(4) Those with less than 10 years of practice but with acceptable qualification;

(5) Those with less than 10 years of practice and without acceptable qualification.

47. For the applicants in category (1) or (2), they are exempted from the Licensing Examination (section 93); for the applicants in category (3) and (4), they are exempted from Licensing Examination but are required to pass a Registration Assessment (section 94); and for the applicants in category (5), they are required to pass the Licensing Examination (section 95).

48. Further under section 95(1)(b) a listed practitioner who has failed the registration assessment shall be required to undertake the Licensing Examination.

49. There were about 8,000 existing practitioners who had successfully entered their names in the list. The Practitioners Board had since assessed that about 2,500 listed practitioners were exempted from the Licensing Examination and about 2,500 listed practitioners were required to pass the Registration Assessment.

50. Under section 94(3), the Practitioners Board is required to publish in the Gazette a notice containing information on the Registration Assessment.

51. On 18 July 2003 the Practitioners Board published a notice stating that the applicants had been informed that the second Registration Assessment was to be held in October 2003. All the listed practitioners who were required to pass the Registration Assessment but had failed to take the first Registration Assessment in February 2003 were required to take the second Registration Assessment. The notice stated that the second Registration Assessment would be the last one and the Practitioners Board would only in very special circumstances conduct any Registration Assessment for those who had failed to attend the second Registration Assessment.

The applicant

52. The applicant is a Chinese medicine practitioner. She started to learn medicine in the traditional way by following a master, Mr. Law Saint Wan, who has been in practice for more than 50 years. From September 1984 to August 1989, the applicant practised Chinese medicine under his supervision and instruction. Between September 1986 and August 1989, she also attended a three-year course in Theory and Practice of Chinese Medicine at the Chinese Medicine Institute. This was an evening course. During the day she maintained her work with Mr. Law. After her graduation in August 1989, she practised as a Chinese medicine practitioner in the employment of Mr. Law. In April 1990, on the advice of Mr. Law, she applied for business registration and practised medicine as a sole proprietor. Her clinic was in the same address as Mr. Law.

53. The applicant then applied to be included in the list of Chinese medicine practitioners. In the application form, the applicant was required to specify the continuous years of practice she had before 3 January 2000. It provided three choices : not less than 15 years, not less than 10 years but less than 15 years and less than 10 years. The applicant chose the last one.

54. She also stated that she had practised Chinese medicine on a self-employed basis for nine years and nine months up to the period ending 3 January 2000. In the application form under the heading of 'Type of Employment', there are provisions for 'employed' and 'self-employed'. She chose the 'self employed' column. The applicant said that she mistakenly thought that her experience would only be counted from the time she obtained the business registration of her practice.

The determination

55. Based on the applicant's statement that she had less than 10 years of practice, the Practitioners Board on 5 September 2002 determined that she was exempted from the Licensing Examination but was required to pass the Registration Assessment.

56. Shortly thereafter, the applicant learnt from other members of her profession that her practice should include the period when she practised as an employee of Mr. Law between August 1989 and April 1990. She asked the Practitioners Board to reconsider her case on the basis that she had more than 10 years of continuous practice.

57. The Practitioners Board declined to do so on the basis that there is no statutory provision for a review of or an appeal against its earlier determination.

The appeal

58. The applicant did not take any Registration Assessment. She sought a judicial review of the decision. Deputy Judge A. Cheung (now A. Cheung J) quashed the decision of the Practitioners Board refusing to reconsider its earlier decision and ordered it to reconsider the applicant's case in the light of the new information provided by the applicant.

59. The Practitioners Board now appeals against the judgment of the learned judge.

Basis of the decision

60. The judge accepted that there was no express provision for a review of a determination under section 92. However based on the principle that an authority may review a discretion which confers on an individual benefit which he otherwise would not have enjoyed, the judge held that the Practitioners Board is liable to review its earlier decision based on a mistake of fact on the part of the applicant.

No general power of review

61. The starting point in the analysis must be that section 92 does not contain any provision for review by the Practitioners Board of its own decision.

62. This is to be contrasted with other parts of the Ordinance which provides for review and appeal procedures in respect of other types of decisions. For example section 96 expressly provides for a review of the result of the Registration Assessment. Part X provides that an appeal is available for specified decisions of the Practitioners Board. These do not include a section 92 determination. Further provisions for appeal and review are set out in Part XV, in respect of, among other things, the granting of licences.

63. This is a strong case for the argument that the legislature does not intend to grant a right of review of a section 92 determination.

Interpretation and General Clauses Ordinance

64. The applicant relied on section 39(1) and section 46 of the Interpretation and General Clauses Ordinance ('IGCO').

65. In my view that the applicant cannot derive assistance from either of the two sections in the IGCO.

Section 46

66. It is more convenient to deal with section 46 first. It provides that :

'46. Where any Ordinance confers power upon any person to make, grant, issue or approve any proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list, such power shall include power -

(a) to amend or suspend such proclamation, order, notice, declarations, instrument, notification, licence, permit, exemption, register or list;

(b) to substitute another proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list for one already made, granted, issued or approved;

(c) to withdraw approval of any proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list so approved; and

(d) to declare the date of the coming into operation, and the period of operation, of any such proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list.' (emphasis added)

67. This section provides, among other things, that the power to grant exemption shall include the power to amend, substitute or withdraw the approval of the exemption.

68. This is obviously a section which deals with an exemption having been granted in the first place. If this happens, the exemption may be amended, suspended, substituted or withdrawn subsequently.

69. The wording of this section does not deal with the reverse situation of an exemption having been refused. It is extremely difficult to fit the complementary powers of 'amendment', 'suspension', 'substitution' and 'withdrawal of approval' to a decision of not granting exemptions. A decision to exempt is a positive act. The powers under section 46 complement the positive act but not the other way round.

70. Section 41 of IGCO provides that the person empowered to grant exemption shall have a discretion either to grant or refuse to grant the exemption. While this may be so, section 46 clearly does not cover the situation of an exemption not being granted in the first place. In my view the wording of section 46 clearly shows that it is not intended to cover both the granting and refusal of an exemption.

71. The Ordinance only refers to an exemption from the Licensing Examination. It makes no provision for exemption from the Registration Assessment. The challenge by the applicant is, among other things, a challenge of the decision requiring her to take the Registration Assessment. It is argued by Mr. Ho, S.C., counsel for the respondent, that section 46 is not engaged because there is no decision refusing to exempt the applicant from taking the Registration Assessment.

72. This is correct. But I think it is arguable that an applicant who is exempted from the Licensing Examination is in effect exempted from the Registration Assessment if he belongs to the category of applicants who have been practised for a continuous period of not less than 10 years and has obtained the acceptable qualification. But even on that basis, I am still of the view that section 46 is not applicable for the reasons I have given earlier.

Section 39(1)

73. Section 39(1) of the IGCO provides that,

'Where any Ordinance confers any power or imposes any duty, then the power may be exercised and the duty shall be performed from time to time as occasion requires.'

74. This is the equivalent of section 12 of the United Kingdom Interpretation Act 1978, the predecessor of which is section 32 of the Interpretation Act 1889.

Decision affecting legal rights

75. On the face of it, section 39(1) of the IGCO is a very wide section : the power may be exercised from time to time. But as pointed out by Wade in Administrative Law (8th Ed.) at page 235 this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, ministers and other authorities.

76. A case in point is In Re 56 Denton Road, Twickenham [1953] Ch. 51 where the War Damage Commission had written to the owner of damaged property saying that it had been classified as 'not total loss'. The Commission were held unable to subsequently alter the classification to one of 'total loss'. The effect of the reclassification will result in the owner receiving lesser compensation. Vaisey J stated that

'where Parliament confers on a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot, in the absence of express statutory power or the consent of the person or persons affected, be altered or withdrawn by that body.'

77. The principle is that where a decision is made affecting the legal rights of a person, it is irrevocable.

Discretion to confer a benefit

78. This is to be contrasted with the case where an authority is to exercise a discretion which confers a benefit which would not have otherwise existed. If the discretion is made on a mistake of facts the authority has the power to review its own decision.

79. This is illustrated by the case of Rootkin v. Kent County Council [1981] 1 WLR 1186 where a local education authority agreed to pay the cost of school transport for a girl, on the mistaken basis that she lived more than three miles from the school and that they therefore had a statutory duty to pay. When it was found that the distance was less than three miles, so that they had a power to pay but no duty, they refused to do so.

80. Lawton L.J. held that the relevant statutory power (section 55(2) of the Education Act 1944) gave the local authority a wide discretion. He stated that,

'It is the law that if a citizen is entitled to payment in certain circumstances and a local authority is given the duty of deciding whether the circumstances exist and if they do exist making the payment, then there is a determination which the local authority cannot rescind. That was established in Livingstone v. Westminster Corporation [1904] 2 K.B. 109. But that line of authority does not apply in my judgment to a case where the citizen has no right to a determination on certain facts being established; but only to the benefit of the exercise of a discretion by the local authority. The wording of section 55(2) is far removed from the kind of statutory working which was considered in In re 56 Denton Road, Twickenham and Livingstone v. Westminster Corporation.' (emphasis added)

81. It is not necessary for the purpose of this case to go into the interesting question, as discussed by Akehurst in Revocation of Administrative Decisions [1982] PL 613, of whether the English Court of Appeal had wrongly applied the above principle to the facts of the case. Rootkin is cited simply as an illustration of the principle that a discretionary power may be exercised from time to time.

The judge's view on section 92

82. The learned judge in this case recognized that a section 92(2) assessment does not involve a discretion. It does not confer on a listed practitioner a benefit which he would not otherwise have possessed. Rather section 92(2) is concerned with the determination of a person's existing legal right.

83. The learned judge was correct in this analysis. Section 92(2) does not involve an exercise of discretion. The Practitioners Board has to make the assessment by reference to the years of practice of the applicant and whether he possesses the acceptable qualification. This assessment is by reference to the provisions of sections 93, 94 and 95. Depending on whether the conditions have been satisfied, an applicant has an existing legal right to be assessed according to the five categories of cases. This being the situation, section 39(1) of IGCO would not apply at all and the earlier decision is irrevocable.

Focal point argument

84. The learned judge, however, attempted to overcome this by saying that the 'focal point' of the statutory scheme for registration is section 69 which confers a discretion on the Practitioners Board to confer a benefit on an applicant which he would otherwise not have. As a result, the earlier decision is revocable and subject to review when a mistake is discovered.

Section 69(1) and other sections

85. Section 69(1) is as follows :

'The Practitioners Board may, subject to sections 70 and 71 and the recommendation of the Registration Committee, approve an application for registration as a registered Chinese medicine practitioner under section 68.'

86. Section 68 sets out the application procedure. Under section 70, the Practitioners Board may refuse to approve the application for registration if it is satisfied that :

(1) the person has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment;

(2) the person has been found guilty in Hong Kong or elsewhere of misconduct in a professional respect;

(3) the person is not qualified to be registered; or

(4) the person has sought to obtain registration by fraud or misrepresentation.

87. Where an applicant has declared that he has been convicted of an offence punishable with imprisonment or has been previously found guilty of a professional misconduct, the Practitioners Board may still under section 71 approve the application if it is so recommended by the Disciplinary Committee of Chinese Medicine Practitioners.

Not an exercise of discretion

88. It is clear that the power under section 69(1) is only subject to the prescribed ambit of sections 70 and 71. If an applicant fulfills the section 92 requirement and does not fall foul of section 70, the Practitioners Board does not have any discretion to refuse his application for registration. Hence it is incorrect to say that the Practitioners Board is exercising a discretion to confer a benefit which an applicant would not otherwise have.

89. While conditions and restrictions may be imposed under section 69(2) on the practice of an applicant who is exempted from taking the Licensing Examination, it does not mean that there is a residual discretion to refuse registration for someone who is otherwise qualified under section 92.

Components of the statutory scheme

90. It is also incorrect to say that the focal point of the statutory scheme is on section 69(1) because although this is the section which deals with the ultimate question of approval for registration, the requirements under section 92 is as important and as much a focal point as section 69(1). The operation of these sections together with others in Part IX are the components and form the basis of the statutory scheme for the approval of registration of existing Chinese medicine practitioners.

Mr. Dykes' argument

91. The applicant, of course, supports the learned judge's view that the Practitioners Board could re-visit the determination, but her counsel, Mr. Dykes, S.C., said the learned judge's approach is too complicated and he advanced another basis for reviewing the determination. He argued that the judgment of Lawton L.J. in Rootkin only sets out the following proposition :

(1) A decision-maker having power to confer a benefit upon proof of entitlement to the benefit to his satisfaction cannot later rescind a decision conferring the benefit.

(2) A decision-maker having power to confer a benefit upon proof of entitlement to his satisfaction by exercising a discretion can later rescind the decision conferring the benefit if the true facts show that the benefit was conferred on a mistaken basis.

92. He argued that nothing in Rootkin suggests that a decision maker would not be able to re-visit a decision where a mistake, whether of fact or law, had deprived a person of a benefit to which he was in fact entitled. Such a power exists by virtue of section 39(1) of the IGCO. The power to review in this case is not excluded by the statutory scheme.

My view

93. The starting point is that the application of section 39 of IGCO is subject to any contrary intention of the Ordinance itself. As pointed out earlier, contrasted with other provisions of the Ordinance, there is no provision for a review of a section 92 determination. The fact that in the other provisions the authority is compelled to carry out the review and not merely giving it a discretion to decide whether to review or not, does not detract the fact that a review mechanism does not exist under section 92 at all. Further, no useful distinction can be drawn between the nature of the determination, for example, in respect of the Registration Assessment under section 96 and that under section 92. Both required an evaluation on the part of the decision maker.

94. This is a strong case for the application of the principle of expressio unius which in modern language means 'to express one thing is to exclude another'. The exclusion of statutory review under section 92 is a strong indication that the power exercised under section 92 is to be exercised once and for all and is irrevocable.

95. Further even if section 39 of IGCO is applicable, its ambit is clearly not as wide as it appears. In my view Mr. Dykes' approach is not the proper way of looking at the matter. The fact that Rootkin had not dealt with the situation of an authority wrongly depriving someone of a benefit does not mean such a power of review exists. The reliance on section 39(1) is still subject to the qualification that where the power is a power to decide questions affecting rights, a valid exercise of the power is an irrevocable legal act and cannot be recalled or revised. The irrevocability of such a decision should not be dependent on whether the decision was made in the first instance in favour of or against a party.

96. This point was made clear by Vaisey J in In Re 56 Denton Road, where he said that the exercise by a body of a duty which affects the rights of person cannot, in the absence of express statutory power or the consent of the person or persons affected, be altered or withdrawn by that body.

97. Akehurst pointed out that the rule in Re 56 Denton Road is not limited to decisions which have a favourable effect on the rights of the individual; instead of trying to distinguish between favourable and unfavourable decisions, the judges have developed the principle of consent as an exception to the general principle of irrevocability; decisions which are normally irrevocable can be revoked if all the interested parties consent to such revocation.

98. Whether this principle of consent is illogical or not, it remains to be a valid principle on how an otherwise irrevocable decision can be changed.

99. A section 92 determination is concerned with a power to decide questions affecting rights. The operation of section 39(1) of the IGCO is excluded by the nature of this power and by the legislative scheme of Part IX which expressly excludes the power of review in respect of a section 92 determination.

R v. Hertfordshire Country Council, ex parte Cheung

100. Mr. Dykes relied on the case of R v. Hertfordshire Council ex parte Cheung decided by McNeill J (The Times 15 July 1985) and the Court of Appeal (The Times 4 April 1986).

101. Local education authorities in the United Kingdom had refused applications for mandatory awards for higher education by students of overseas origins on the basis that they had not been ordinarily resident in England for the requisite period. The House of Lords in R. v. Barnet London Borough Council Ex parte Shar [1983] 3 AC 309 held that these local authorities had misdirected themselves in law.

102. Following the House of Lords decision, students in the Cheung case who had been refused grant by the local authorities asked them for, among other things, a 'retrospective grant'. The authorities refused. The students applied for judicial review to quash both the earlier and later decisions of the local authorities. McNeill J. at page 9 held the decisions were reviewable. He held that

'...... at least in circumstances where the consequence of the exercise of a statutory duty affects only the authority and the individual (the word "authority" for this purpose comprehending both the taxpayer and the ratepayer concerned) but no third party (again that phrase to be read as including "persons interested") and are exercised adversely to that individual, the exercise of the duty by a decision or determination may be open to review or consideration. It would to my mind be unthinkable if an admittedly wrong refusal of statutory rights (whether on an erroneous application of the law or a mistaken understanding of the facts) could not be reconsidered by the authority without the necessity of intervention by the courts or even of submission to compromise upon the threat of legal proceedings.'

103. The Court of Appeal affirmed the decision, Donaldson MR at page 3 held that :

'This is not to say that, having determined that the applicants were not qualified, the authorities had no power to reconsider their decision. I am sure that they had. It would be strange indeed if a public authority which discovered that it had inadvertently denied a citizen a benefit to which he was entitled could not correct its error. Indeed, I think that it would have a duty to consider exercising this power, although I also accept that it would have a discretion as to what action should be taken. This discretion would have to be exercised in accordance with the requirements of good public administration.'

Basis of the decision

104. The legal basis upon which the English courts held that the decision could be reopened is not clear.

105. McNeill J said that the local authorities had not performed its duty. This approach was, however, not accepted by Donaldson MR.

106. It is recognised that a statutory tribunal or administrative bodies would have the power to correct accidental mistakes, to set aside decisions obtained by fraud and to review a decision where facts subsequently discovered have revealed a miscarriage of justice : see Wade, pages 236 and 916. However, it is difficult to categorise Cheung into such type of cases. Mr. Dykes rightly accepted that Cheung is not a 'miscarriage of justice' case. The mistake in this case is also not in the nature of a clerical mistake in the order or an error arising from slip or omission which is really the situation covered by this power.

107. I am not prepared to accept Cheung as an authority that wherever an allegation of mistaken facts is raised, the decision maker is bound to review an earlier decision which is adverse to the affected party. I would construe Cheung as an exceptional case based on the facts of the case.

108. In my view if the Cheung case is to be used as an authority to seek the reopening of an earlier decision then it has to be confined to the narrow ground that a mistake on law or facts had in fact been made by the authority itself. Cheung is such a case.

109. In this case the alleged mistake of facts remains to be a contention on the part of the applicant only. One has not even reached the stage of a decision proven to be made on a mistake of facts. The allegation of mistake on the part of applicant is not accepted by the respondent. Certainly the learned judge has not decided, as he was not required to do so, whether the applicant has practised for more than 10 years.

Duty to act fairly

110. Mr. Dykes relied on the principle of fairness. An enactment conferring powers on a public authority to make a decision is to be construed, so far as is possible to do so, as importing the rules which generally govern decision-making in the public law field amongst which rules include the requirement to act fairly : See Bennion on Statutory Interpretation Section 329, pp. 900-912.

111. I have no difficulties with this principle at all. But in cases where the principle of fairness comes into play, there is usually some 'fault' on the part of the decision maker or error in the decision making process not attributed to the party affected by the decision. Some examples that come readily to mind are the bias of the decision maker and the failure to give the affected party the opportunity to present its case.

112. I can understand the argument that if the decision is based on a mistake made by the decision maker itself, then one may say that the principle of fairness has not been observed on the ground that it has a duty to act fairly.

113. But if this principle is to be relied upon, then clearly as a minimum requirement, the mistake should come from the decision maker. If, on the other hand, it had made a decision based on the material supplied by the applicant, which is now said to contain mistakes, I cannot see how the decision or decision making process can be categorised as being 'unfair'.

114. There is nothing unfair in refusing in considering the new evidence of the applicant. The principle is stated by Wade at page 285 as follows :

'Where some tribunal or authority has power to decide questions of fact, and no power to reopen its own decisions, its decision cannot be reviewed by the High Court merely on the ground that fresh evidence, which might alter the decision, has since been discovered. This is because the decision is within jurisdiction and there is no basis on which the court can intervene. The remedy of certiorari will therefore not lie in such a case.'

115. In my view there really is no material distinction, as drawn by the learned judge, that the applicant had 'understated' her case and those situations where the applicants for registration had not provided sufficient evidence to substantiate their applications. The mistake is still the same : they are the mistakes of the applicant and not the Practitioners Board.

Conclusion

116. One sympathises with the applicant if she had indeed made a mistake on her years of practice, resulting in her being required to go through the Registration Assessment which she would otherwise not be required to do so. But in this case the Practitioners Board was correct as a matter of law not to reconsider the decision.

117. Accordingly, I would allow the appeal and quash the orders made by the learned judge with a provisional costs order in favour of the respondent.

Hon Yuen JA:

118. I agree with Hon. Cheung JA that the appeal should be allowed. My reasons appear below.

119. I gratefully adopt the outline of Part IX (Transitional Arrangements for Chinese Medicine Practitioners) of the Chinese Medicine Ordinance in paragraphs 5 to 9 of Hon. Le Pichon JA's judgment. In the following paragraphs, all references to sections are to sections in that ordinance (unless otherwise stated).

120. I start by considering the order made by the judge below. The order was one of Certiorari to bring up and quash the decision of the Practitioners Board refusing the Applicant's request that it reconsider the s.92 assessment which it had made on her application.

121. The Applicant was actually seeking to compel the Practitioners Board to reconsider an amendment of her application to put forward a new case, after the Board had concluded its assessment and made a determination - the Applicant's new case being that she was not a category 4 applicant after all, but a category 2 applicant.

122. The Practitioners Board is a creature of statute, a statute which contains no provisions entitling an applicant to require, or empowering the Board to perform, a review of a s.92 assessment. On what basis then, could the Applicant compel the Board to revisit the case after the assessment had been concluded?

123. It has been submitted both below and on appeal that, notwithstanding the absence of a right, or power, of review of a s.92 assessment in the Chinese Medicine Ordinance, s.39 and/or s.46 of the Interpretation and General Clauses Ordinance ("IGCO") provided the Practitioners Board with such a power.

Section 46 IGCO

124. I agree with respect with the judge's views on the inapplicability of s.46 (see paragraph 31 of his judgment) and will not repeat them here.

Section 39 IGCO - not applicable when express powers of review given in specific instances

125. As for s.39, I do not think that this provision, which is in general terms, applies to confer a power of review when such powers have been expressly conferred in specific instances in the ordinance itself. Examples of these specific powers of review in the Chinese Medicine Ordinance have been listed in paragraph 23 of the judgment below. Those specific powers would not have been necessary and would be superfluous if the IGCO provision(s) gave the Practitioners Board general powers of review in any event.

126. In particular, within Part IX itself, there is a specific power of review of assessments made under s.96. The presence of an express power of review under s.96, in contradistinction to the absence of any express powers of review under s.92, signal clearly the legislature's intention that the s.92 assessment is not open to review.

127. There is good reason for this to be so, as Part IX deals with transitional arrangements, where there is understandably a need for efficiency and finality in decision-making regarding the categorising of existing practitioners (who cover a wide range of qualifications and abilities), so that the community could move forward into a new system where Chinese medicine practitioners would, like their counterparts in Western medicine, be properly qualified, registered and governed.

Decision affecting legal rights - principle of irrevocability

128. In any event, the established view is that s.39 IGCO is not as wide as the Applicant submits. As Professor Wade wrote of the English equivalent (s.12 Interpretation Act 1978),

"this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases, the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, ministers and other authorities" (emphasis added).

Section 92 assessment a decision affecting legal rights

129. In my judgment, the assessment under s.92 was clearly a decision affecting pre-existing legal rights. The Practitioners Board has a statutory duty to determine which category a listed practitioner fell into, based on his claim and materials in support. Section 90(2) provides: "a person whose name is entered on the list under this section shall be assessed by the Practitioners Board as to whether he satisfies the requirements under s.92". Once the Board is satisfied that an applicant has fulfilled the statutory criteria in sections 93 or 94 respectively, the applicant is entitled to an exemption (whether with - s.94 - or without - s.93 - a requirement to pass a registration assessment). These sections provide: "a listed Chinese medicine practitioner who satisfies the Practitioners Board that he has fulfilled either one of the following criteria, namely ... shall be exempted from the Licensing Examination ...".

130. It is thus clear from the language of the statute that listed practitioners who the Practitioners Board have decided in the s.92 assessment to have fulfilled the relevant criteria have a legal right to be exempted. There is no question of any residual discretion after assessment as far as exemption is concerned (this is common ground between the parties). The s.92 assessment is therefore clearly a process in which the Practitioners Board decides questions affecting the applicants' legal rights.

131. The Applicant accepts that, on the claim she made and materials supplied, the assessment was unimpeachable. That assessment was a decision affecting her legal rights and therefore the principle that such decisions (as in courts of law) are final and irrevocable applies. The decision cannot be revisited.

Ultimate discretionary decision under s.69 does not transform nature of s.92 assessment into an exercise of discretion

132. The judge held however that the Practitioners Board could review its decision because he considered that the s.92 assessment was only a preliminary step in the process by which the Practitioners Board decides ultimately whether to exercise a discretion to approve the application for registration.

133. With respect to the judge, I cannot agree with this conclusion. It is often the case that before an administrative decision can be finally made, various stages in the process of examining an application are involved. At each stage along the way, different issues may arise for determination. These may involve decisions affecting legal rights, or they may involve an exercise of discretion. The fact that the ultimate stage involves the exercise of a discretion does not transform all decisions made at all stages into discretionary decisions.

134. In the present scheme, the Practitioners Board's s.92 assessment was a decision affecting legal rights for that stage of the process of the application for registration. I cannot see how the involvement of a discretion at a later stage (when the Practitioners Board decides under s.69 whether to approve the application) can alter the nature of the s.92 assessment which is fixed by statute. If the discretionary nature of the ultimate decision somehow permeated throughout every stage in the process of application for registration, so as to turn all decisions at every stage into exercises of discretion, then the Practitioners Board would have a discretionary power to refuse to exempt an applicant even though he had fulfilled the statutory criteria under s.93 or s.94. That would obviously contradict the mandatory language of those sections which gives an applicant who has fulfilled the statutory criteria the legal right to be exempted.

135. By reason of the above, with much respect to the judge, I take the view that the analysis he adopted was in error and cannot support the making of the order of Certiorari.

Mistake

136. It was on the basis that the s.92 assessment was part of a "bigger-picture" discretionary decision that the judge considered that the Practitioners Board could "re-exercise" the discretion on the ground of mistake (see paragraph 52 of his judgment). He found support in the Court of Appeal's decision in Rootkin v Kent County Council. In Rootkin, of course, the majority of the English Court of Appeal took the view that the officer's decision whether to give a season ticket was entirely an exercise of discretion, as s.55(2) of the Education Act was an express discretionary power, although the officer (following case law) could only have properly exercised it one way if the distance was 3 miles. In the present case, for reasons stated above, the s.92 assessment was not a discretionary power.

137. In any event, I am not persuaded that the type of "mistake" alleged by the Applicant here would justify the order of Certiorari. This is not a case of an accidental mistake such as an arithmetical error made in calculating dates which was obvious on the face of the documents, or a case of clerical error where a document fails to correctly record an authority's decision (In re 56 Denton Road Twickenham at p.57), not unlike the "slip rule" exception for court orders. In such situations, it might be possible for the decision-maker to correct its decision even in the absence of an express power of review (Wade, Administrative Law 8th ed pp.235-6).

138. In the Applicant's Form 86A (Notice of Application for Leave to apply for Judicial Review) however, the assertion is simply that she "mistakenly believed" that, according to her understanding of the words "practising Chinese medicine", only the period when she held a business registration certificate would be taken into account. The words "practising Chinese medicine" are clearly defined in the Ordinance, and there are no references to business registration. Further, the application form contained boxes for an applicant to indicate the periods during which he had been employed and during which he had been self-employed.

139. An applicant's misunderstanding of his own case does not, in my view, trigger a right to compel the decision-maker (be it a court or a statutory tribunal) to consider whether it could review its decision on grounds of "mistake", when there are no express powers of review and when (by reason of being transitional arrangements) there is good reason for decisions to be final and conclusive.

140. With respect to the judge, I do not see the difference he draws (in paragraph 21 of his judgment) between the "mistake" alleged in this case and one where an applicant, in ignorance that certain materials were relevant, mistakenly excluded them from his application and then seeks a review on the basis of the additional materials. Neither mistake can vitiate an original decision which was valid on the case asserted and materials provided.

R v Hertfordshire Council ex parte Cheung

141. As for R v Hertfordshire Council ex parte Cheung, that was a case where, applying the law as it was then understood, the authority refused grants to overseas students (the 1978 decisions).

142. After a House of Lords case in 1983 overturning previous judgments, the authority admitted that it had misdirected itself in law when it made the 1978 decisions. The 1978 decisions were admittedly ultra vires and invalid in law (see p.1 of the Lexis transcript of McNeill J's judgment).

143. However the authority's position (at least for some of the applications) was that unless and until quashed by a court, the earlier decisions (although ultra vires) stood, and it would not consider the applications afresh without a court order (the 1983 decision).

144. The matter was further complicated by a decision of the Court of Appeal in 1985 refusing leave to apply for judicial review of the 1978 decisions (probably on the basis that there was no purpose in doing so, since the matter had been reconsidered in 1983 - see p. 5 of the Lexis transcript of the Court of Appeal judgment).

145. It was first held by McNeill J that the authority had the power to consider the applications afresh, as it had in effect not performed its statutory duty to consider the applications according to the law pronounced in the House of Lords case (see p.15 of the Lexis transcript of the judgment). Accordingly, the authority's policy decision in 1983 not to review the 1978 decisions was "Wednesbury" unreasonable. Statements in that judgment must be read in that context.

146. The Court of Appeal considered that the authority had performed its statutory duty in 1978, albeit mistakenly (see p.3 of the Lexis transcript of the judgment). As the decision was admittedly based upon an erroneous view of the law, it could properly be quashed by the court. The Court of Appeal did not have to consider whether the authority itself had power in 1983 to reconsider the 1978 decisions. That was apparently not denied by the authority. The issue was whether in 1983, the authority's way of dealing with the applications to reconsider was correct (see p.4 of the Lexis transcript of the judgment).

147. That is far removed from this case - the Applicant has never suggested that the s.92 assessment was ultra vires or invalid in law.

"Consent exception"

148. Finally, as for the "consent exception", this is in my view no more than an instance of the general rule that a decision beneficially affecting the rights of an individual cannot be revoked without his consent (see Akehurst's article, p.618). In Re 56 Denton Road it was held that the authority could not resile from its earlier decision, the effect of which was to give the householder higher compensation (which created a valuable right capable of assignment), without the consent of the householder. The householder could, of course, consent to waive those rights to higher compensation.

149. However the "consent exception" does not mean that where an individual wishes to, he can vest an authority with power to revisit its decision. It seems to me illogical that where an applicant wishes to have a second bite of the cherry, he can thereby empower a decision-maker to reconsider a determination of legal rights, notwithstanding that that was not the intention of the legislature.

Order

150. For the reasons set out above, I too would allow the appeal and agree with the costs order nisi proposed by Hon Cheung JA.

Hon Le Pichon JA:

151. The appeal is allowed by a majority. There will therefore be an order as proposed in paragraph 117.