DR IP KAY LO VINCENT v. THE HONG KONG MEDICAL COUNCIL

cacv 278/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 278 of 2005

(on appeal from hcal NO. 100 of 2005)

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.  This was an appeal from the judgment of Hartmann J dated 31 August 2005 refusing leave to apply for judicial review of the order made by the Hong Kong Medical Council following an inquiry dated 11 July 2005.  The appeal was dismissed after the hearing for reasons to be given later which we now do.

2.  The background to the inquiry held on a 7 July 2005 appears in paragraphs 2 to 8 of the judgment below.  For present purposes, it is unnecessary to set that out again.  Suffice it to say that a week prior to the inquiry in question, the critical witnesses in respect of the charges brought against the applicant, Dr Andrew Koh and his wife, advised the Secretary that they would not be attending the inquiry to testify.

3.  It is apparent from the transcript that after the Council ruled that the witness statements and the related documents of Dr and Mrs Koh were not admissible because the witnesses were not available for cross-examination, and further that it would not exercise its power to compel Dr and Mrs Koh to attend the inquiry, the Secretary called no evidence other than the relevant Gazette notice and a copy of the annual practising certificate of the applicant to prove the Council’s jurisdiction and closed his case.  The Chairman of the Council had this to say this:

“That being the position, we make the determination that sufficient evidence has not been adduced, upon which the Council can find the facts alleged in the charge have been proved and that the defendant is not guilty on the charge.”

4.  The applicant’s complaint before the judge and before this court was that he was denied the ability to speak on his own behalf at the hearing and adduce evidence in his own defence.  He relied on regulation 23 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations, Cap. 161 which, in pertinent part, reads as follows:

“(1)    At the opening of an inquiry the Secretary shall read the notice of inquiry to the Council.

 (2)    If the defendant is not present…

 (3)    If the defendant is present at the inquiry, the Chairman, immediately after the charge has been read, shall inform him of his right to cross-examine witnesses, to give evidence and to call witnesses on his behalf.”

It was contended that the Council ought to have followed the prescribed procedure under regulation 23(3) and allowed the applicant to adduce evidence in support of his case.

5.  I do not see that regulation 23(3) assists the applicant.  The purpose of the inquiry was to establish whether or not the charges brought against the applicant were made out.  Its purpose was not for the applicant to prove his innocence when there was insufficient evidence before the tribunal to sustain the charges against him.  What was evident was that the applicant’s stance was affected by a strong desire to re-open the findings made against him in 1999 in an action in the Court of First Instance which ultimately led to the disciplinary proceedings against him.

6.  The applicant also referred to the annotation at 18/19/15 of the Rules of the High Court relating to the inherent jurisdiction of the Court of Appeal in exceptional cases in the context of a striking out application to allow an appeal to proceed even though it had been rendered academic.  Leaving aside the issue whether the Rules are at all applicable to the inquiry under consideration, the inherent jurisdiction referred to simply does not arise.  I regret to say that the appeal was misconceived.

Hon Tang JA:

7.  I agree.