KO KAI MING v. DIRECTOR OF HEALTH

HCAL 1196/2025

[2025] HKCFI 2299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1196 OF 2025

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DECISION

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A.  Introduction

1.  By his Form 86 dated 22 May 2025, the Applicant names the Director of Health (“DH”) as the proposed respondent to his application for leave to apply for judicial review.

2.  However, in the parts of the form which should identify various the matters required by the Rules of the High Court Order 53 rule 3:

(1)  as to the “judgment, order, decision or other proceeding in respect of which relief is sought”, the Applicant has simply stated the word (in capitals) “DECLARATION”;

(2)  there is no description at all as to the “relief sought”; and

(3)  there is also no identification of the “grounds on which relief is sought”.

3.  By way of an attachment to the Applicant’s affirmation filed together with the Form 86, the Applicant says that the judicial review is “about the right of a fully registered doctor to practice in a private hospital in Hong Kong”. His apparent complaint is about what he says are “some additional conditions” which are imposed on those fully registered doctors who wish to admit patients into a private hospital for treatment.

4.  Having considered the papers, I am of the view that this application can suitably be dealt with on the papers. This is my Decision.

B.  The Complaint

5.  As stated, the Applicant’s apparent complaint is about additional conditions or requirements imposed on doctors wishing to admit patients into a private hospital for treatment. The Applicant states that such doctors are not employees of the hospital, that they are engaged by the patients themselves, and that the hospital actually has no participation in their clinical management.

6.  The Applicant says that the “extra constraints” are stipulated in the Private Healthcare Facilities Ordinance Cap 633, and the Code of Practice for private hospitals. He says that doctors have to obtain permission/admission privileges from the private hospitals before treating their patients there.

7.  The Applicant refers to three particular additional requirements for doctors as listed in item 2.4.1 of the Code of Practice, namely that: (1) doctors seeking permission to admit patients must show evidence of training in their field of practice; (2) indemnity insurance is compulsory; and (3) privileges or permission can be cancelled at any time by the hospital, with no mechanism to challenge the decision or avenues for adjudication.

8.  In his conclusion, the Applicant states that he does not “think that the right of a fully registered doctor to practice in a private hospital should be hampered by cap 633 and the Code of Practice for private hospitals”, and he poses the question “Is it legitimate to have different laws governing the practice of medicine in different premises in Hong Kong?”.

C.  Lack of or Unclear Standing

9.  Though the Applicant names himself as “Dr Ko Kai Ming” in the heading to the Form 86 and his affirmation, the Applicant has not provided any further information in relation to his qualifications, occupation and/or employment situation.

10.  The Applicant has therefore failed to identify with any clarity in the materials which he has provided that he has any standing to bring any challenge about the matters giving rise to his complaint.

D.  No Specified Target of Challenge

11.  Although the Applicant has named the DH as the putative respondent, and he has identified the broad nature of his complaint in his affirmation, it nevertheless remains unclear whether:

(1)  he intends to challenge to any specific decision made by the DH or any private hospital on imposing conditions on him (if he is a medical practitioner) to treat patients in any private hospital; or

(2)  he intends to make a systemic challenge to conditions imposed on medical practitioners’ practice in private hospitals by (a) the regulatory regime, and/or private contractual requirements, and/or (b) the relevant Code of Practice.

12.  In this context, it can also be noted that the Applicant has stated in his Form 86 that there are “nil” interested parties known to him.

13.  In other words, the Applicant has failed properly to identify the subject matter of the intended challenge, and the nature of that intended challenge.

E.  No Statement of Relief

14.  Even if it is to be assumed that the word “DECLARATION” in the Form 86 was supposed to have identified the desired relief, there is no description of what kind of declaration is sought by the Applicant as the intended relief.

15.  It might be noted that asking the question in the form proposed by the Applicant in the conclusion to his affirmation – “Is it legitimate …” – also fails to identify the precise relief which is sought by the Applicant. The form of question also tends to being an open-ended or hypothetical question of the sort which is not ordinarily addressed in judicial review.

F.  Doubts as to Amenability

16.  At most, it might be thought that the Applicant may wish to argue that his application is relevant to the DH's 'supervision' of medical services provided by doctors at private hospitals. However, the crux of the Applicant's complaint seems to be the alleged unreasonable constraints on doctors as to their potential or actual use of facilities in private hospitals for treatment of patients.

17.  In my view, this tends to make his intended challenge look more 'private' than 'public'. But, in any event, and tied to the point of the failure to identify specific target of the intended judicial review challenge, the question of the amenability of that target to a judicial review challenge is not clear.

G.  No Apparent Merit

18.  It might also be thought that the three main areas of the Applicant’s complaint have no merit. It is difficult to see: (1) why it would be inappropriate for a private hospital to ask doctors seeking permission to admit patients at their private facility to show relevant experience and competence in their field of practice; (2) why it is not logical and sensible to require compulsory indemnity insurance for work outside the public health system; and (3) why a private hospital might not have the right to cancel privileges or permission at any time.

H.  Result

19.  This application shows precisely the problems which may arise when an applicant for leave to apply for judicial review fails to comply with the mandatory requirements of the rules when commencing such an application.

20.  It should not fall to the Court to have to try to discern for itself what is the actual subject matter of the intended challenge, whether that is amenable to a public law challenge, what relief is actually sought, and what are the public law grounds on which that particular relief is sought.

21.  In any event, there is no apparent merit in the complaints.

22.  In the circumstances, the Applicant has failed to identify any public law grounds of review which are reasonably arguable with a realistic prospect of success.

23.  The application is dismissed, and I make no order as to costs.