LAW YIU WAI, RAY v. THE MEDICAL COUNCIL OF HONG KONG AND OTHERS

HCAL 46/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 46 OF 2015

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JUDGMENT
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Introduction

1.  This is an application by the applicant, Mr Law Yiu Wai, Ray (Mr Law), for judicial review of the joint decision of the Chairman and the Deputy Chairman of the Preliminary Investigation Committee (the PIC) of the Medical Council of Hong Kong (the Council) as contained in a letter dated 8 January 2015, dismissing a complaint he made to the Council on 4 January 2013 against Dr Chan Yee Shing, Alvin (Dr Chan), in relation to the treatment of his infant son, Law Yin Pok, Bosco (Bosco). 

2.  The complaint was the second to the Council from the parents of Bosco, who had his right index finger amputated allegedly due to treatment he received from Dr Chan.  The first complaint was made by his mother, Madam Lam Po Yee (Madam Lam) on 6 January 2010 and it was dismissed by the Council by way of letter dated 13 September 2012.  As a result of Dr Chan acknowledging his negligence in a civil action in relation to his treatment of Bosco, Mr Law made a second complaint to the Council which is the subject of this judicial review.  Throughout this judgment I will refer to the complaint by Madam Lam as the first complaint and the one by Mr Law as the second complaint.

3.  Complaints of professional misconduct against registered medical practitioners are dealt with by the Council.  The disciplinary procedures in relation to medical practitioners are contained in the statutory scheme prescribed by the Medical Registration Ordinance, Cap 161, (the Ordinance), and the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap 161E, (the Regulation).  There is a two-stage screening or filtering process to determine whether a complaint should go before the Council for inquiry.  The first stage involves the Chairman and the Deputy Chairman of the PIC agreeing that the complaint is frivolous or groundless and should not proceed further.  The second stage involves the PIC deciding on the materials submitted, including any explanation from the registered medical practitioner against whom the complaint is made, whether or not an inquiry should be held in relation to the complaint.  If the complaint passes through these two stages, the Council then conducts a formal inquiry to consider whether the registered medical practitioner is guilty of professional misconduct as charged.  It is in relation to the first stage of the second complaint that leave was granted to judicially review the decision of the Chairman and the Deputy Chairman of the PIC. 

4.  By this application, Mr Law challenges the legality and rationality of the decision of the Chairman and the Deputy Chairman of the PIC in that they failed to give any reasons why the complaint was dismissed in light of the new evidence submitted and also failed to explain why the adverse findings against Dr Chan as contained in the new evidence did not warrant inquiry and therefore referral of the case to the PIC and thereafter to the Council for inquiry.  The relief sought is an order of certiorari to bring up and quash the decision and to remit the matter to a different Chairman and Deputy Chairman of the PIC to consider the matter afresh and reach a decision according to law and to any relevant comments in the judgment of the Court. 

5.  Additional relief is sought in the form of an order to remit and/or refer the matter directly to a differently constituted PIC to consider the matter afresh for referral to the Council for inquiry.  I should mention that I expressed doubt at the first hearing of the application about being able to entertain the additional relief sought as it did not arise from or relate to the decision under review.  The relief concerns a decision that would normally be made after this one that is, at the second stage of the screening process, and therefore seeks from the Court an order which is procedurally inappropriate and tantamount to making a decision of the matter on its merits.  This would not be, in these circumstances, a proper function of the Court in the exercise of the judicial review jurisdiction.  Upon reflection, the applicant acknowledged that he would not seek the relief but explained that it was initially sought because of the circumstances of the handling of the complaint and the time taken to deal with it.  The delay in handling the complaint is a matter about which I asked the relevant parties to address.  The first complaint took over 2 years to be processed upon being dismissed at the second stage.  The second complaint took just on 2 years to be processed upon being dismissed at the first stage.  I will have more to say about the time taken to handle the complaints later in my judgment. 

6.  On 15 May 2015, I granted Mr Law leave to apply for judicial review of the decision to dismiss the second complaint against the Council, the Chairman and the Deputy Chairman of the PIC, respectively, as respondents.  On 16 June 2015, I also granted leave to Dr Chan to participate in the proceedings as an interested party. 

7.  After leave had been granted, the respondents conceded the judicial review and it would appear in consequence Dr Chan decided not to contest the application and he indicated through his solicitors that he would not file any affidavit evidence or participate in the proceedings.[1]

Conceding the judicial review

8.  The respondents concede that the decision was wrongly decided and should therefore be quashed and remitted to a different Chairman and Deputy Chairman of the PIC for reconsideration.  In the lead up to and at the hearing on 10 August 2015, the parties were unable to agree on the terms of a consent order or a short statement in accordance with Practice Direction SL-3 as required.  The judicial review therefore proceeded to substantive hearing.

9.  It is appropriate that I briefly discuss this turn of events and the impasse that followed between the parties and the legal issues that arose as a consequence. 

10.  Before I examine the pertinent provisions of the Practice Direction, I should make some general observations about the judicial review jurisdiction. 

11.  Section 21 of the High Court Ordinance, Cap 4, provides that an application to the Court of First Instance for the forms of relief under its judicial review jurisdiction shall be made in accordance with the rules of the court which are set out in Order 53.  The Order provides the procedural code of the exercise by the court of its supervisory jurisdiction over inferior courts, tribunals and other persons and bodies that perform public duties or functions.  It is provided under section 21K (5) that if on an application for judicial review seeking an order of certiorari the Court of First Instance quashes the decision to which the application relates, it may remit the matter to the court, tribunal or authority concerned, with a direction to reconsider it, and reach a decision in accordance with the findings of the court.  This is also provided under Order 53 rule 9(4).  The essential purpose of the court’s judicial review jurisdiction is that it enables the court to review the decisions of inferior courts, tribunals and other persons and bodies that perform public duties or functions to ensure that they do not act unlawfully or unreasonably.  The exercise of this jurisdiction by the court is not to challenge the merits of the decision but rather whether it is a decision the body is entitled to make. 

12.  In the commentary to Order 53 in Hong Kong Civil Procedure, 2015,[2] it is correctly observed, in my view, that an application for judicial review is something more than a legal suit between parties as there is a public interest in the disposal of applications for judicial review without a hearing when an order may be made concerning an inferior court, tribunal or other public body.  It is further observed that the parties to an application for judicial review may not, by consenting to a particular course, dictate to the court how it should exercise a discretionary jurisdiction once it had commenced, for the court still had to satisfy itself that the relief sought was justified on the case established before it even though it was effectively unopposed. 

13.  This important underlying principle is encapsulated in paragraph 23(1) of Practice Direction SL-3 which reads:

“Where parties are agreed as to the terms on which applications for judicial review can be disposed of, and require an order of the Court to put those terms into effect, they should file a draft consent order, together with a short statement signed by the parties’ solicitors setting out the matters relied upon as justifying the making of the order, and citing the relevant authorities and statutory provisions. The order and the statement will then be submitted to a Judge. If he is satisfied that such an order can be made, the proceedings will be listed for hearing and the order will be announced in open Court without the parties or their representatives having to attend. If the Judge is not satisfied that such an order can be made, the proceedings will be listed for hearing in the normal way.”

14.  Accordingly, where the parties agree as to the terms of which an application for judicial review may be disposed of and a court order is required to put those terms into effect, then a draft consent order should be filed with the court setting out the terms of the order and the matters relied upon as justifying the making of the order, and citing the relevant authorities and statutory provisions.  A judge must be satisfied that such an order can be made; otherwise if he cannot, then the proceedings are to be listed for hearing in the normal way.  The impact that an order may have on others in addition to the parties to the suit should not be overlooked, especially when there is a public interest element involved in the order and the case on which it is based.  See PCCW-HKT Telephone Co Ltd v Telecommunications Authority, HCAL 49/2003.

15.  Now what happened in the present case is that the parties were unable to agree to the terms of a consent order, or more particularly to a short statement in support of the order, for the Court’s sanction pursuant to the Practice Direction in that as far as the applicant was concerned certain issues remained unresolved because they had not been addressed by the short statement and therefore still required the Court’s adjudication. In other words, the applicant was not prepared to consent to an order because the short statement did not address the matters under review which he felt were unresolved and required the Court’s adjudication, notwithstanding the respondents’ concession that the decision was wrong. 

16.  The end result is that I did not have a consent order before me which is a prerequisite in order to invoke the procedure under paragraph 23(1) of Practice Direction SL-3.  It is therefore pertinent to understand how this came about. 

17.  Upon leave being granted on 15 May 2015, the respondents and the interested party were accordingly notified of the proceedings and served with the relevant papers.  The opposing parties had until 15 July 2015 to file any evidence in opposition to the application for judicial review. 

18.  On 14 July 2015, the Department of Justice representing the three respondents confirmed that their clients had agreed not to contest the present application.  Why it took so long for the respondents to decide to concede the judicial review is unclear.

19.  On 20 July 2015, the Department of Justice on behalf of the respondents reiterated to the applicant’s solicitors that the respondents agreed not to contest the application for judicial review and subject to the Court’s sanction the Council would quash the decision of the Chairman and the Deputy Chairman in the letter dated 8 January 2015 and would remit the matter to a temporary Chairman of the PIC to be appointed for fresh consideration in accordance with section 6 of the Regulation. 

20.  A short statement justifying the making of the consent order was proposed by the respondents that set out the procedural history of the judicial review, confirmation of their agreement to quash the decision and to remit it to a different Chairman, and the terms of an order that the application for judicial review be withdrawn with costs to be awarded to the applicant.  So far as material the justification for making the consent order was contained in the following single paragraph of the short statement proposed by the respondents which said:

“4. The Respondents, upon further review of the relevant documents, agree to quash the Decision and remit the complaint to a temporary Chairman of the PIC to be appointed for fresh consideration in accordance with section 6 of the Regulation.”

21.  The applicant’s solicitors in a letter dated 22 July 2015 to the Department of Justice stated that the draft statement was inadequate and that there were important matters of concern to the applicant which had not been dealt with in the draft statement that may require the Court giving a ruling or guidance.  It was specifically mentioned that proper judicial guidance should be given to the respondents so that each of them would understand their role and function under the relevant statutory provisions and that the delay occasioned by the handling of the complaint was a matter of public interest which remained unresolved. 

22.  Whilst the parties could not agree upon the terms of the draft statement, the applicant nevertheless wished to proceed with the hearing in order for the Court to address the matters mentioned. 

23.  In the meantime, the applicant sought leave, which was granted, to file a second affirmation to provide evidence to the Court in order to address the issue of delay and the composition of the Council and the PIC.  The applicant said this was necessary because no evidence had been filed by the relevant party to address these matters.  The respondents objected to the filing of additional evidence whilst the interested party took a neutral stance as he was not affected by the matters. 

24.  The applicant complained that notwithstanding the respondents conceding the judicial review, they had refused to include in the short statement any reasons or grounds justifying the quashing of the decision and why they did not contest the application for judicial review.  The applicant noted that pursuant to Order 53, rule 9(4) of the Rules of the High Court, the Court must first be satisfied that there are proper grounds to quash a decision to which the application relates before it can exercise its power to grant an order of certiorari.

25.  As I understand the reason and purpose of the short statement, it is to ensure that the order sought can be properly and justly made.  A court is not a rubber stamp and whenever it makes an order whether by consent of the parties or after a contest between them it does so because it is just and appropriate.  That means not only necessarily taking into account the interests of the parties but also any wider public interest that may be relevant to the case.  The short statement should provide sufficient reasons and circumstances that would justify and legitimise the order of the court.

26.  From the letter of the Department of Justice dated 29 July 2015 it seems the respondents took the attitude that because they had conceded the application for judicial review that was the end of the matter.  They denied that there had been delay on the part of the respondents in processing the applicant’s complaint and they argued that the issue was irrelevant to the reliefs sought by the applicant and that in light of their concession they did not propose to incur further costs to adduce evidence to rebut it.  They also questioned the relevancy of the evidence as to the composition of the PIC to the present application.  They noted that the applicant had not pleaded a case that any of the respondents were biased or failed to consider the complaint impartially.  It was on this basis that the respondents objected to the second affirmation with the qualification that leave of the Court should be obtained to file the additional evidence, and if granted, the respondents should be given the opportunity to respond to it. 

27.  Upon consideration of the correspondence between the parties, I granted leave to the applicant to file the second affirmation as the parties had not agreed on an order and the application for judicial review was proceeding by virtue of the leave that had been granted.

28.  They rightly rejected, however, the applicant’s proposal that the complaint should bypass the first stage screening and that it be referred directly to a differently constituted PIC as a whole for the reason that it would amount to procedural irregularity. 

29.  At the hearing on 10 August 2015, Mr Dennis W H Kwok, counsel for the applicant, argued that there were still outstanding matters that needed to be addressed by the Court in making an appropriate order in relation to the quashed decision.  Mr Wilson Leung, counsel for the respondents, resisted the application for a hearing but it was eventually resolved that the hearing be adjourned to 24 August 2015 to address the following matters.  First, the proper legal approach that should be taken when handling a complaint at the first and second screening stages.  Secondly, the delay occasioned by the handling of the complaint.  Thirdly, the composition of the PIC and the relevant principles that should be applied in the recusal of any member of the PIC from handling a complaint.  As to the third matter, leave was granted to include it as a ground for review as it was relevant to the terms of any order to remit the matter back to the Council.

30.  It was acknowledged by Mr Leung that even though the respondents had conceded that the decision was incorrect, there was no order by consent or short statement in accordance with the Practice Direction before me.  In an effort to address the matter, he took instructions and a statement on behalf the 2^nd and 3^rd respondents was made in open court in the following terms:

“The 2^nd and 3^rd Respondents erred in law in trying to resolve the medical evidence including that newly submitted by the Applicant in the 2^nd Complaint and the medical evidence submitted by the Interested Party. In doing so, the 2^nd and 3^rd Respondents failed to follow the principles set out in the case of Dr. Li Wang Pong Franklin v The Medical Council of Hong Kong [2009] 1 HKC 352 at paragraph 38.”

31.  This statement was later amended at the adjourned hearing by deleting the word “medical” from the phrase “medical evidence” where it appeared.  It was accepted by the 2^nd and 3^rd respondents that they committed an error of law in dealing with the second complaint by attempting to resolve the evidence placed before them and therefore failed to follow the accepted principles. 

Hong Kong statutory scheme

32.  The stated objectives of the Council are to assure and promote quality in the medical profession in order to protect patients, foster ethical conduct and develop and maintain high professional standards.  To this end, a key function of the Council is to exercise regulatory and disciplinary powers for and over the medical profession. 

33.  The Council is a statutory body established under the Ordinance and regulates the medical profession in Hong Kong through a system of registration.  Section 20BA provides for the establishment by the Council of committees for the better performance of its duties and the exercise of its powers.  There are five committees, the Licentiate Committee, the Education and Accreditation Committee, the Ethics Committee, the PIC and the Health Committee. 

34.  A medical practitioner must be registered under the Ordinance either provisionally or fully (sections 12 and 14 respectively) or with limited or temporary registration (sections 14A and 14B respectively).  A General Register is kept containing the names and particulars of persons entitled to be registered medical practitioners under the Ordinance.[3]  Subject to holding a practising certificate, a registered medical practitioner is entitled to practice medicine, surgery and midwifery.[4]

35.  Included in the various duties and responsibilities the Council is required to perform is the power to handle complaints and conduct inquiry and disciplinary proceedings concerning the professional conduct of registered medical practitioners.  The disciplinary procedures are contained in the statutory scheme prescribed by the Ordinance and the Regulation.  Section 21 of the Ordinance sets out the disciplinary powers conferred to the Council.  If after due inquiry into any case referred to it by a committee, including the PIC, the Council is satisfied that a registered medical practitioner has been guilty of “misconduct in a professional respect”, the Council may in its discretion make various orders of sanction against the medical practitioner, including removing his name from the General Register. 

36.  The PIC consists of a Chairman, a Deputy Chairman (both of whom are elected by the Council), one of the four lay members of the Council and four others who are registered medical practitioners (each of whom is nominated by the Medical Association, the Director of Health, the Hospital Authority and the Council respectively). 

37.  The functions of the PIC are set out in section 20T of the Ordinance.  It includes making preliminary investigations into complaints or information touching any matter that may be inquired into by the Council and making recommendations to the Council for holding of an inquiry under section 21.  It is a requirement under section 20T(2) that a matter brought to the attention of the PIC for determining whether the Council should be recommended to hold an inquiry shall first be considered by the Chairman of the PIC, or in his absence, the Deputy Chairman.  It is stipulated under section 20T(3) that the PIC, its Chairman and Deputy Chairman shall act in accordance with such regulations in relation to their procedure made under section 33. 

38.  The Regulation promulgated under section 33 of the Ordinance provides a two stage screening process before a complaint against a registered medical practitioner goes before the Council for inquiry and delineates a set of requirements and procedures in the determination of a complaint at each stage up to and including when it is adjudicated upon by the Council for inquiry.

39.  So far as material the sections in the Regulation concerning the first and second stages are as follows:

“6. Receipt and submission of complaint or information or referral to chairman of Committee

(1) Where—

(a) a complaint is made to or information is received by the Secretary that a registered medical practitioner-

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

(ii) has been guilty of misconduct in any professional respect;

(iii) has obtained registration by fraud or misrepresentation;

(iv) was not at the time of his registration entitled to be registered;

(v) has breached a condition previously imposed under an order of the Council made under section 21(1) or 21A of the Ordinance;

(vi) has procured his name to be included in the Specialist Register by fraud or misrepresentation;

(vii) is physically or mentally unfit to practise medicine, surgery or midwifery; or

(b) a complaint is made to or information is received by the Secretary that an applicant for registration-

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

(ii) has been guilty of misconduct in a professional respect; or

(iii) is not a person of good character; or

(c) Committee for its consideration or investigation,

the Secretary shall submit the complaint, information or matter to the chairman of the Committee or, in his absence, the deputy chairman of the Committee for his consideration of the case.

(2) If the person to whom a case is submitted under subsection (1) considers that the case—

(a) is frivolous or groundless and should not proceed further; or

(b) raises a question as to whether the fitness to practise of a registered medical practitioner is impaired by reason of his physical or mental condition and the question should be considered by the Health Committee direct,

he shall—

(i) consult the deputy chairman, if the person is the chairman; or

(ii) consult the chairman, if the person is the deputy chairman,

with a view to decide whether the proposed course of action should be taken.

(3) If both the chairman and the deputy chairman consider that the case is frivolous, or groundless, and should not proceed further, they may dismiss the case.

(4) Upon a consultation under subsection (2) and if both the chairman and the deputy chairman consider that the case raises the question referred to in subsection (2)(b), they may refer the case to the Health Committee and recommend the Health Committee to conduct a hearing.

(5) If, after a hearing, the Health Committee certifies and reports back that the registered medical practitioner is physically and mentally fit to practise medicine, surgery or midwifery, the chairman or, in his absence, the deputy chairman may direct that the case be investigated further or be dismissed, as he thinks fit.

…

8. Clarification and support for complaint or information

(1) Where, in a case submitted under section 6 to the chairman or, in his absence, the deputy chairman of the Committee pursuant to a complaint or information received by the Secretary, any allegation is made which in the opinion of the chairman or the deputy chairman gives rise to a question as to whether a defendant has been guilty of misconduct in any professional respect, the chairman or the deputy chairman may do any or all of the following—

(a) require the complainant to set out the specific allegations in writing and the grounds thereof;

(b) require the complainant to make clarifications about the complaint or information;

(c) require that any matter alleged in the complaint or information to be supported by one or more statutory declarations, unless the complaint or information is in writing under the hand of-

(i) a public officer;

(ii) the President of the Hong Kong Medical Association;

(iii) the Dean of the Faculty of Medicine of a university specified in Schedule 1 of the Ordinance; or

(iv) either or both of the Presidents of the Academy of Medicine and any of its Colleges.

(2) Where, in a case submitted under section 6 to the chairman or, in his absence, the deputy chairman of the Committee pursuant to a complaint or information received by the Secretary, any allegation is made which in the opinion of the chairman or the deputy chairman gives rise to a question as to whether the fitness to practise of a defendant is impaired by reason of his physical or mental condition, the chairman or the deputy chairman may require that the complaint or information be supported by one or more statutory declarations as to the facts of the case, unless the complaint or information is in writing under the hand of a person specified in subsection (1)(c).

(3) If a requirement under subsection (1) or (2) is not complied with, the chairman or the deputy chairman of the Committee may decline to proceed with the investigation of the case.

(4) A statutory declaration referred to in subsection (1) or (2) must—

(a) state the address and description of the declarant; and

(b) state all the facts of the case to the declarant’s knowledge or, if any fact declared is not within his personal knowledge, state the source of the declarant’s information and the grounds for his belief in the truth of the facts.

9. Reference of case to Committee

(1) Except where section 10 applies, if a case received by the chairman and the deputy chairman of the Committee under section 6 has not been dismissed or referred to the Health Committee under that section, the chairman or the deputy chairman of the Committee shall, except where section 16(1) applies, direct that the case be referred to the Committee for its consideration and shall direct the Secretary to fix a date upon which it is proposed that the Committee is to meet to consider the case.

(2) Where the Secretary is directed under subsection (1) to fix a date, the Secretary shall—

(a) fix a date for the proposed meeting;

(b) notify the defendant of the receipt of the complaint, information or referral, and indicate any matters or allegations which may appear to raise a question whether the defendant has been guilty of misconduct in a professional respect;

(c) provide him a copy of any letter of complaint or information;

(d) forward to him a copy of any statutory declaration furnished under section 8;

(e) inform him of the date upon which the Committee is due to meet for the purpose of considering the case; and

(f) invite him to submit to the Committee in writing any explanation of his conduct or of any matter alleged in the complaint, information or referral which he may have to offer.

…

11. Consideration of case by Committee

(1) The Committee shall meet in private.

(2) At the meeting at which a case is considered by the Committee, the Secretary shall put before the Committee the complaint or information received (if any), any statutory declaration received with it, any written explanation submitted by the defendant, any documents, medical or other reports produced by the defendant, and any other document or matter in the nature of evidence relevant to or in support of the complaint, information or matter and which is available.

(3) The Secretary shall not present to the Committee any material which has been excluded from disclosure to the defendant under section 10.

(4) The Committee may postpone its consideration or determination of a case, in whole or in part, to such date or adjourn a meeting from time to time as it thinks fit.

(5) Where the complaint, information or referral alleges the conviction of a registered medical practitioner of an offence which does not in its opinion affect his practise as a registered medical practitioner, the Committee may refer the case to the Council with the recommendation that no inquiry is to be held.

(6) Where the Committee considers that the matter indicated to the defendant under section 9(2)(b) should be amended, the Committee may direct the Secretary to make the amendment and advise the defendant of the amendment and invite him to give any further explanation which he may offer.

(7) Before coming to a decision under subsection (8), the Committee may cause to be made such further investigations or further clarification from the defendant with regard to the case being considered by the Committee and with regard to his written explanation, and may obtain such additional advice or assistance as it considers necessary.

(8) The Committee shall, having regard to any written explanation submitted by the defendant and all the materials put before it by the Secretary under subsection (2), consider the case, and, subject to subsections (5) and (7), may-

(a) decide that no inquiry shall be held;

(b) decide that no inquiry shall be held and issue a letter of advice to the defendant in such terms as it thinks fit;

(c) refer the case, in whole or in part, to the Council for inquiry;

(d) refer the case, in whole or in part, to the Health Committee for a hearing.

(9) If, after a hearing, the Health Committee certifies and reports back that the defendant is physically and mentally fit to practise medicine, surgery or midwifery, the Committee may proceed with the investigation of the case, take any other appropriate action under subsection (8), or dismiss the matter, as it thinks fit.

…

13. Referral of case to Council for inquiry

(1) If the Committee decides to refer a case to the Council for inquiry, the chairman of the Committee shall send a written notification of the decision of the Committee to the Chairman specifying the matters as identified by the Committee to be so referred and which form the basis of the charge or charges into which an inquiry is to be held.

(2) On receipt of a notification under subsection (1) or on a remission of a case to the Council by the Court of Appeal under section 26(1) of the Ordinance, the Chairman shall direct the Secretary to fix a date upon which it is proposed that the inquiry is to be held.

(3) If the Council decides to conduct an inquiry pursuant to a recommendation of the Health Committee under section 20V(1) of the Ordinance or a recommendation of the Education and Accreditation Committee under section 20N(1)(d) of the Ordinance, the Chairman shall direct the Secretary to fix a date upon which it is proposed that the inquiry is to be held.

(4) Except with the written consent of the defendant to a shorter period of notice, the Secretary shall, within 2 months of the receipt of a notification under subsection (1) and at least 28 days before the date fixed for the inquiry, serve on the defendant a notice of inquiry together with a copy of this Regulation and shall inform the complainant of the holding of the inquiry.

(5) A notice of inquiry must—

(a) specify in the form of a charge or charges the matters into which inquiry is to be held;

(b) state the date, time and place at which the inquiry is to be held.

…”

40.  The relevant provisions governing the proceedings of an inquiry of the Council are contained in Part IV of the Regulation which lay down an extensive set of procedures and requirements in the conduct of a disciplinary hearing.  This is apparent from section 25 which reads:

“(1) Subject to sections 23 and 24 and subsection (2), the following order of procedure must be observed in an inquiry—

(a) the Secretary shall present the case against the defendant and adduce evidence in support thereof and shall close the case against the defendant;

(b) at the conclusion of the presentation of the case against the defendant, he, in person or by his solicitor or counsel, may make either or both of the following submissions in relation to any charge in respect of which evidence has been adduced—

(i) that sufficient evidence has not been adduced upon which the Council can find that the facts alleged in that charge have been proved;

(ii) that the facts alleged in the charge are not such as to constitute the offence charged, and where such submission is made, a reply thereto may be made by the Secretary, and the defendant may answer such reply;

(c) if a submission is made under paragraph (b), the Council shall consider and determine whether the submission shall be upheld and—

(i) the Chairman shall announce the determination of the Council; and

(ii) if the Council uphold the submission in respect of any charge, the finding shall be recorded that the defendant is not guilty on that charge; and

(iii) if the Council reject the submission, the Chairman shall call upon the defendant to state his case;

(d) the defendant, in person or by his solicitor or counsel, may then adduce evidence in support of his case and may make one and only one address to the Council, and where evidence has been adduced by or on behalf of the defendant such address may be made either before or after such evidence has been adduced;

(e) at the conclusion of the case of the defendant, the Secretary may address the Council in reply, and if the Secretary makes such a reply, the defendant, in person or by his solicitor or counsel, may make one and only one address to the Council in reply to this address of the Secretary.

(2) At the request of the complainant or his counsel or solicitor, the Council may permit the complainant or his counsel or solicitor to present the case against the defendant if the Council thinks it appropriate in the circumstances of the case and in which event, a reference to the Secretary in subsection (1) is to be read as a reference to the complainant or his counsel or solicitor, as the case may be.”

41.  It is necessary that I briefly summarise the role and function of the Council for inquiry so as to provide an overall appreciation of the scheme that is in place for dealing with professional misconduct.  The Council is required to adhere to a set of strict procedures and formal requirements in the conduct of an inquiry and has the discretion to open the inquiry to the public or to hold it in private. 

42.  A party to an inquiry may be legally represented and a legal officer may be appointed to carry out the duties of the Secretary in respect of an inquiry.  The inquiry is required to be open by reading the notice of the inquiry to the Council and the charge against the defendant.  The Secretary presents the case against the defendant and adduces the evidence in support of it.  There is the option for the Council to permit the complainant to present the case against the defendant if it thinks it appropriate in the circumstances of the case.  At the close of the case, the defendant can make a no case submission and if it is upheld by the Council in respect of any charge it will be recorded that the defendant is not guilty of that charge.  

43.  If the no case submission is rejected by the Council, the defendant is required to state his case and at the conclusion of the case for the defendant, the parties may make closing submissions to the Council.  The Council is required to consider and determine whether the facts alleged in any charge before it had been proved to its satisfaction and whether the defendant is guilty of the offence charged.  The Chairman is then required to announce the Council’s decision and in such term as the Council may approve. If the decision is a finding of guilt of the offence charged, the Council is required to sentence the defendant who will be invited to address the Council by way of mitigation and may adduce evidence as to the charge or personal background.  The Council may in its discretion impose by order various sanctions, including an order to strike off the practitioner from the General Register as well as an order as to costs. 

44.  Briefly stated the statutory scheme for the consideration and determination of complaints is a three tier system.  The first is an initial check by the Chairman or the Deputy Chairman as to whether there is any substance to a complaint.  It is supposed to be a prompt appraisal of a complaint, including any materials supplied, to remove an obvious case that is frivolous or groundless, and should not proceed further.  The case can only be dismissed after consultation between the Chairman and the Deputy Chairman.  If a complaint is not dismissed after the first check, a second more rigorous check by the PIC is conducted as to whether or not to refer the case for inquiry and determination by the Council for inquiry.  This involves a more detailed consideration of the complaint and where the medical practitioner can submit information in response.  In deciding that no inquiry is to be held, the PIC has the option to issue a letter of advice to the medical practitioner.  It is on the basis that the case should be inquired into that a referral is made to the Council for inquiry by way of a formal charge.  Finally, if the PIC makes such a referral, the Council for inquiry then determines by way of formal hearing whether the complaint of “misconduct in a professional respect” is established. 

45.  There is no definition of “misconduct in a professional respect” in the Ordinance or the Regulation.  However, a definition of the term can be found in the Council’s Code of Professional Conduct of 2009 (under Part 2 “Professional Conduct and Responsibilities”):

“The term “misconduct in a professional respect” is not defined in the Medical Registration Ordinance but has been interpreted by the Court of Appeal as conduct falling short of the standards expect among registered medical practitioners.  It includes not only conduct involving dishonesty or moral turpitude, but also any act, whether by commission or omission, which has fallen below the standards of conduct which is expected of members of the profession.  It also includes any act which is reasonably regarded as disgraceful, dishonourable or unethical by medical practitioners of good repute and competency.”

46.  The Code embraces a broad definition which includes “any act, whether by commission or omission, which has fallen below the standards of conduct which is expected of members of the profession.”  The “fallen below the standards” test is not an innovation of the Code but can be traced back to the Court of Appeal case of Koo Kwok Ho v Medical Council of Hong Kong [1988] HKLY 798. 

47.  It is also worth noting the Court of Appeal’s comments in Albert Wou v Medical Council of Hong Kong [1988] 1 HKLR 388 where in rejecting a narrow construction of section 21(1)(b) said at 391E-F:

“In our judgment, whilst the words “misconduct in any professional respect” occurring in that provision clearly contemplates misconduct in the pursuit of his practice by a registered medical practitioner, they must also be wide enough in their context to include misconduct by such a practitioner otherwise than in the pursuit of his practice which the Council, as his disciplinary body, reasonably determines to be misconduct of such a character and degree of seriousness that it tends to damage the reputation of his profession because it has been committed by such a practitioner.”

48.  The Court of Appeal in Ip Wing Kin v Medical Council of Hong Kong [2002] 4 HKC 160 also examined the expression and said at paragraph 13:

“In Hong Kong, the appropriate interpretation of s 21 (1)(b) has been expressed consistently in a number of decisions. The judgments recognise the inappropriateness of incorporating such concepts of moral delinquency and opprobrium, into a determination of whether there has been misconduct. Starting first of all with the decision in Koo Kwok Ho v Medical Council of Hong Kong (Civ App 23/1988, unreported) Cons VP referred to Lord Mackay’s analysis of the principles in giving the advice of the Privy Council in Doughty v General Dental Council [1987] 3 WLR 769 that the question was whether the practitioner had fallen short, by omission or commission, of the standards of conduct expected amongst the practitioners. At para 21 on her judgment in the case of To Chun Fung Albert v Medical Council of Hong Kong [2002] 1 HKC 571 Le Pichon JA said (at 579D-E):

In my judgment, the correct test the ‘misconduct in a professional respect’ is that laid out in Koo’s case. There is misconduct within s 21 (1)(b) if it can be established that there has been a ‘falling short of standards’. As Cons VP observed, ‘[t]he best judges of that are the doctors themselves’ since ‘what was expected of a doctor in the given circumstances was something which the doctors of the Council would know from their own professional experience.’

There is no room for the application of a litmus test with its overtones of moral stigma or turpitude.”

49.  The test in Koo Kwok Ho has been reaffirmed by the Court of Appeal in the recent case of Chan Po Sum v Medical Council of Hong Kong [2015] 1 HKLRD 330, where Kwan JA at paragraph 50 cited the case noting that “the Council had applied the correct test, namely, whether the doctor’s conduct has fallen short of the standard expected amongst doctors, in finding Dr Chan guilty of professional misconduct.” 

50.  Under the equivalent English legislation the expression “serious professional misconduct” is used and the English courts have recognised that the expression is not capable of precise definition and delimitation. The Hong Kong courts have followed the reasoning of the English courts when addressing the expression “misconduct in a professional respect”.  In Roylance v General Medical Council (No 2) [2000] 1 AC 311, at 330F-331A, the Privy Council said:

“The expression “serious professional misconduct” is not defined in the legislation and it is inappropriate to attempt any exhaustive definition.  It is the successor of the earlier phrase used in the Medical Act 1858 “infamous conduct in a professional respect”, but it was not suggested that any real difference of meaning is intended by the change of words.  This is not an area in which an absolute precision can be looked for.  The booklet which the General Medical Council have prepared, “Professional Conduct and Discipline: Fitness to Practise” (December 1993), indeed recognises the impossibility in changing circumstances and new eventualities of prescribing a complete catalogue of the forms of professional misconduct which may lead to disciplinary action.  Counsel for the doctor argued that there must be some certainty in the definition so that it can be known in advance what conduct will and what will not quality as serious professional misconduct.  But while many examples can be given the list cannot be regarded as exhaustive.  Moreover the Professional Conduct Committee are well placed in the light of their own experience, whether lay or profession, to decide where precisely the line falls to be drawn in the circumstances of particular cases and their skill and knowledge requires to be respected. However the essential elements of the concept can be identified.” 

51.  The Privy Council at 331B-C went on to identify the essential elements of the concept, and had this to say about misconduct:

“… Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. …”

52.  The first quoted passage of the Privy Council above was applied by Bokhary PJ in Medical Council of Hong Kong v Helen Chan (2010) 13 HKCFAR 277 at paragraph 71 having accepted the Council’s definition of “misconduct in a professional respect” as contained in its previous Code. 

53.  The English Court of Appeal in Meadow v General Medical Council [2007] 1 All ER 1 endorsed the comments of the Privy Council where Auld LJ said at paragraph 200:

“As Lord Clyde noted in Roylance v General Medical Council (No 2) [2000] 1 AC 311 at 330-332, ‘serious professional misconduct’ is not statutorily defined and is not capable of precise description or delimitation. It may include not only misconduct by a doctor in his clinical practice, but misconduct in the exercise, or professed exercise, of his medical calling in other contexts, such as that here in the giving of expert medical evidence before a court. As Lord Clyde might have encapsulated his discussion of the matter in Roylance v General Medical Council, it must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute, and it must be serious. …”

54.  The courts both in England and Hong Kong have recognised the importance of the involvement of the medical regulatory body in determining the boundaries of medical professional conduct.  This was highlighted by Ma CJHC (as the Chief Justice then was) in Kwok Hay Kwong v Medical Council of Hong Kong [2008] 3 HKLRD 524 in his statement at paragraph 22 where he said: “… the courts have consistently recognised that medical regulatory bodies (such as the respondent [the Council]) are the best placed to determined the boundaries of medical professional conduct.” 

English statutory scheme

55.  The Hong Kong statutory scheme for the regulation of the medical profession was modelled on the English statutory scheme as found in the Medical Act 1983 and the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 (the 1988 Rules).[5]

56.  Under the English scheme there is a similar two-stage screening process in the consideration of a complaint.  An initial check by a screener to determine whether the complaint should not proceed further and a second check by their equivalent to the PIC, the Preliminary Proceedings Committee, as to whether they ought to refer to the complaint referred to them by the screener to our equivalent to the Council for inquiry, the Professional Conduct Committee, for the determination of the complaint.  The major difference between the two statutory schemes is that the English scheme considers complaints where there has been “serious misconduct in a professional respect” whereas the Hong Kong scheme considers complaints where there has been “misconduct in a professional respect”. 

57.  This scheme was replaced in November 2004 by a two tier scheme as provided under the General Medical Council (Fitness to Practise) Rules Order of Council 2004. 

58.  Notwithstanding these legislative changes, the system dealing with medical complaints has come under critical review by the Shipman Inquiry.[6] In the report criticism was made of insufficient particularity of powers and duties and the lack of guidance and criteria for decision making. 

Background facts

59.  The incident underlying this case occurred on 10 August 2009, when Bosco, who was then 14 months old, sustained a significant laceration to his right index finger as a result of him getting it caught in a hole of an iron gate while his mother, Madam Lam, was pushing forward the stroller in which he was sitting.  Madam Lam took him to the Prince of Wales Hospital where the treating doctor recommended that the wound needed suturing under a general anaesthetic.  A second opinion was obtained from Dr Chan who recommended against a general anaesthetic because of Bosco’s age and proposed to administer an oral analgesic and treat the wound by the application of a medical adhesive known as Dermabond.  Bosco was admitted to the Baptist Hospital under Dr Chan’s care where he stayed for four days after the application of Dermabond and a bandage.  Dr Chan saw Bosco on several occasions after he was discharged from the hospital but did not open the bandage to inspect the progress of the wound for some days and when he did the finger had deteriorated and gangrene had started to develop. 

60.  Consequently, on 21 August 2009, Bosco was admitted to the Queen Elizabeth Hospital for assessment and treatment but it seems that the infection had set in considerably by then and on 30 September 2009 amputation of the distal phalanx and half the medial phalanx was carried out.

61.  Not long after this incident, Madam Lam as Bosco’s next friend instituted civil proceedings against Dr Chan for professional negligence.  Dr Chan conceded liability but the case proceeded on an assessment of the damages before a judge of the High Court. 

62.  On 20 November 2012, the judge handed down his judgment on the question of damages in which he provided an account of the medical treatment and eventual amputation of Bosco’s finger, as well as a detailed description of the joint medical report of the two orthopaedic surgeons dated 5 January 2011 which was submitted to the court by the parties.[7]  The two surgeons made critical comments about the treatment administered to Bosco by Dr Chan and concluded that it eventually caused the amputation of his finger.  In their joint report, the two surgeons explained that on 10 August 2009, the wound was sealed with Dermabond and the finger was dressed with gauze and crepe bandage.  They noted that Bosco was kept in hospital until 13 August 2009 when he was discharged and thereafter he had a number of consultations with Dr Chan on 15, 18 and 21 August 2009.  However, it seems that during these consultations the finger was covered in additional gauze which prevented observing the blood circulation and the colour of the finger.  It was not until the final consultation that the dressing was removed and that the gangrenous change of the finger was revealed.  The surgeons concluded that Bosco’s condition was caused by incorrect and tight bandaging of the initial wound which resulted in arterial occlusion and eventually gangrene of the finger.[8] Both surgeons were critical of the treatment administered to Bosco by Dr Chan.  One of the surgeons stated that the treatment rendered by Dr Chan eventually caused the amputation of the finger and that the initial cut wound was not the cause.  The other surgeon stated that had the wound been inspected and redressed properly the subsequent ischemic injury could have been avoided. 

63.  The judge in his written judgment on the assessment of damages stated that the shortcomings of the assessment and treatment by Dr Chan were self-evident and obvious.[9] 

64.  Madam Lam on 6 January 2010 lodged a complaint against Dr Chan with the Council in what appears to be a proforma complaint form.[10] In her complaint she set out a history of Dr Chan’s treatment of Bosco’s finger and the emergency treatment that followed as a consequence of it.  She alleged that Dr Chan was derelict in his professional duties towards her son and that it resulted in the amputation of his finger. 

65.  The Council in a reply letter dated 8 February 2010 stated that her complaint had been passed on to the Chairman of the PIC who had directed that it be referred to the PIC for further consideration.  It was requested that she sign a consent letter which she did to obtain the relevant medical records of the two hospitals where her son had been a patient.[11]

66.  In a further letter to the Council dated 26 March 2012 Madam Lam supplemented her complaint by submitting additional information and materials.[12] She elaborated on her initial complaint and added a further allegation against Dr Chan that he had made an insurance claim for a suturing operation on her son which had not been performed and that he had revised his medical records. 

67.  The next time Madam Lam heard from the Council was on 13 September 2012 when she was informed by way of letter that the PIC decided not to proceed with any further disciplinary proceedings against Dr Chan having found no evidence of professional misconduct by him.  The letter addressed to Madam Lam was in Chinese and the translation reads as follows:[13]

“This letter is in relation to your complaint against Dr. Chan Yee Shing.

Please let me explain the background information: The Medical Council of Hong Kong has the power to deal with complaint made against any registered doctor’s “professional misconduct” in accordance with the law. The Medical Council of Hong Kong accepts that [any professional conduct/practice which is not up to the standard as expected of a registered doctor amounts to “professional misconduct”. These conducts include but do not limit to matters which can reasonably be regarded to be shameful, immoral or disreputable by the members of the profession who should in turn be generally regarded as having good reputation and competent]. The Medical Council of Hong Kong needs to decide whether in the particular circumstances, the doctor being complained against has reached the standard expected of by other doctors and when the standard has not been reached, whether that amounts to “professional misconduct”.

The Preliminary Investigation Committee of this Council has convened meetings respectively on 16^th April 2012 and 13^th August 2012 to discuss your complaint made against Dr. Chan. Having thoroughly considered the information provided by you, the independent expert opinion and the written explanation provided by the solicitors representing Dr. Chan, the Preliminary Investigation Committee has come to the following views:

(i) As pointed out by the solicitors representing Dr. Chan, the COBAN bandage used at the clinic of Dr. Chan is the thin type specifically for paediatric purpose. It is only 1 inch wide. When Dr. Chan used this type of bandage to wrap the finger of your son, he has also used a surgery tape “Micropore” which was put close to the fingers and on the palm and the back of hand so as to stabilize the bandage. The bandage shown in the picture enclosed to your letter show that the bandage is more than 2 inches wide. Dr. Chan expressed that he has not used this type of bandage in his clinic. Dr. Chan also expressed that the bandage which wrapped up the wound as shown in the picture was not done by him. Furthermore, the Medical Council has noticed that in the picture provided by you, there was no date recorded.

(ii) Dr. Chan has given appropriate treatment to your son. Dr. Chan has performed correct wound healing procedure. According to the medical records, when your son attended the follow-up on 15^th, 18^th and 21^st August 2009, Dr. Chan has given the wound sufficient and close monitoring by adopting the appropriate procedures that the degree of tightness of the bandage wrapping the wound has been checked. Dr. Chan has therefore performed appropriate follow-up in relation to the recovery of the function of the 4^th finger on your son’s right hand.

(iii) According to the opinion of the expert, the blood-stoppage condition of the 4^th finger of your son’s right hand took place from 18.8.2009, which is after the treatment provided by Dr. Chan, lasting until 21.8.2009. The expert is of the opinion that the death of the blood vessel and the wound turning black were caused by the tearing of the artery of the finger.

Based on the above reasons, the Medical Council of Hong Kong considers that there was no evidence to show that Dr. Chan has committed “professional misconduct”. Therefore, the Medical Council of Hong Kong has decided that they will not proceed with your complaint for Inquiry by the Medical Council of Hong Kong.

The disciplinary action against Dr. Chan by this Council is now concluded. Notwithstanding so, this decision will not prevent you to pursue against the related doctor by other means.

Thank you for notifying this Council the above case.”

68.  As stated in the letter, the PIC held two meetings on 16 April and 13 August 2012, whereupon they concluded that the medical evidence administered by Dr Chan was appropriate and that the eventual amputation of the boy’s finger was unrelated to the conduct of and medical treatment administered by him.  They found there was no evidence to demonstrate that Dr Chan had committed any professional misconduct and in consequence the matter would not be referred to the Council for inquiry. 

69.  As noted by the date of the letter, the decision dismissing the complaint was made prior to the handing down of the judgment in the civil proceedings on 20 November 2012[14] and also without the benefit of the joint medical assessment and report dated 8 November 2010 which had been submitted in the civil proceedings.[15]

70.  Madam Lam in a letter dated 19 September 2012 to the Council expressed her extreme disappointment with the PIC’s decision dismissing her complaint against Dr Chan and queried the PIC’s assessment of the medical evidence in light of Dr Chan’s admission of liability in the civil action against him over his treatment of Bosco, and its failure to address her other allegations of misconduct against Dr Chan in relation to making a false insurance claim and revising his medical records.[16]

71.  On 4 January 2013, in consequence of the Council not having the judgment and the joint medical assessment and report, a second complaint was made by Mr Law.[17] He set out his complaint against Dr Chan under a number of headings.  The first concerned Dr Chan’s treatment methods in handling Bosco’s medical condition.  He referred to extracts of the judgment in the civil action and the joint expert opinion of the doctors and to certain court documents.  The second concerned allegations that Dr Chan had claimed fees for an operation that he did not perform.  The third concerned allegations that Dr Chan’s medical records had been revised and were inaccurate.  Attached to the complaint were various supporting documents. 

72.  After well over a year, on 23 May 2014, Mr Law wrote a letter to the Council explaining that he made a complaint against Dr Chan on 4 January 2013 and in a letter dated 5 February 2014 he inquired as to the progress of the matter but got no reply and requested that he be provided with one .[18] 

73.  Also at the time, Mr Law approached Legislative Councilor, Ms Emily Lau, for assistance over the Council’s apparent inaction and failure to reply to his inquiries as to the progress of the complaint.  She wrote a letter to the Council on 26 May 2014 about the matter and in a reply letter dated 10 June 2014, which was copied to Mr Law, it was stated that the Council was dealing with the complaint of Madam Lam (this was an error as the second complaint was made by Mr Law) and when the investigation was completed the Council would inform Madam Lam of the result in writing. 

74.  It was not until some two years after the complaint was made, that the Secretary of the Council by a letter dated 8 January 2015 dismissed it. The letter addressed to Mr Law was in Chinese and the translation reads as follows:

“Re the further information you submitted in respect of the complaint made against Dr Chan Yee Shing on 4^th January 2013. In accordance with the requirements of Section 6 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap 161, Laws of Hong Kong, the further information which you have submitted have been passed to the Chairman and the Deputy Chairman of the Preliminary Investigation Committee of the Medical Council of Hong Kong for consideration.

After the Chairman and the Deputy Chairman of the Preliminary Investigation Committee have considered the information provided and the opinion of the lay member, they are of the view that the contents of the letter received have not provided new information which sufficiently proves that Dr Chan has committed professional misconduct, and as such, will maintain the original decision and will not hold a disciplinary inquiry on this case. Furthermore, according to section 12(2) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, if the Preliminary Investigation Committee decides that no inquiry is to be held in respect of the case, neither the complainant nor the defendant has any right of access to any information or document relating to the case submitted to the Preliminary Investigation Committee by any other person. Therefore, the Medical Council of Hong Kong cannot provide you with the documents of this case.

We are hereby instructed to notify you that the action taken by the Medical Council has now been concluded. This decision will not prevent you from pursuing against the related doctor by other means.

We thank you for notifying us this case.”

Council’s response

75.  After the first hearing, two affidavits were filed on behalf of the respondents.  They are from the Chairman of the Council, Professor Lau Wan Yee, Joseph (Professor Lau)[19] and the current Chairman of the PIC, Dr Choi Kin, Gabriel (Dr Choi).[20] 

76.  Professor Lau was the Chairman of the PIC when the first complaint was made by Madam Lam.  He provides an account of the handling of the first complaint.  He states that after due consideration of the first complaint on 21 January 2010 he directed that the Secretary of the Council request further information from Madam Lam.  On the receipt of further documents from Madam Lam on 29 April 2010, he initially was of the view that the complaint did not appear to be frivolous or groundless.  However, in order to be sure, he sought an opinion from an independent expert in the field of Orthopaedics and Traumatology to comment on the treatment performed by Dr Chan. 

77.  On 5 May 2010, a request was made in writing to Dr Boris Fung, a specialist in Orthopaedics and Traumatology, to provide an expert opinion on the complaint.  This was followed up with a formal letter confirming the Council’s instructions to him on 12 May 2010.  He submitted his report to the Council on 17 May 2010.  On 24 June 2010, the Council invited Dr Fung to further comment on the standard of medical care performed by Dr Chan in his treatment of Bosco but he declined to provide any further opinion. 

78.  This led Professor Lau to direct the Secretary to identify another expert for assistance in assessing the complaint.  After an unsuccessful attempt to appoint a specialist, Dr Lam Ying Kit was eventually appointed on 23 August 2010 to provide an expert opinion.  Dr Lam submitted his report on 20 October 2010.  

79.  Professor Lau having considered the opinion of Dr Lam, directed on 3 November 2010 that the case be referred to the PIC.  He also directed that the Secretary to the Council fix a date for the PIC to meet and consider the complaint.  In the meantime, medical reports in relation to Bosco’s treatment at the two hospitals were obtained and a meeting of the PIC was fixed to take place on 12 March 2012.  Dr Chan was served with notice of the hearing on 16 January 2012 and invited to submit any written explanation he wished to make regarding the complaint.  He was given a deadline to 17 February 2012 to make a submission but this was extended at the request of his legal representatives to 17 March 2012.  It was later further extended to 23 March 2012.

80.  On 7 March 2012, Professor Lau resigned from the position of the Chairman of the PIC and he was succeeded by Dr Choi. 

81.  Dr Choi continues with the account of the handling of the first complaint.  He states that because of the extension that was granted to Dr Chan to file his submissions, the original hearing scheduled on 12 March 2012 was adjourned to 16 April 2012.  He was not present at the hearing on 16 April 2012.  The Deputy Chairman, Professor Fok Tai Fai (Professor Fok) chaired the meeting. 

82.  The first complaint was discussed by the six members of the PIC who were present.  It was decided that the relevant material which included medical records and opinions be submitted to Dr Lam who had previously provided an expert opinion for further comment.  This was done under cover of letter to him dated 17 May 2012.  He provided a further expert opinion on 12 July 2012.  The PIC resumed its hearing of the complaint on 13 August 2012 and upon consideration of the material before it, concluded that there was “no prima facie case” of professional misconduct against Dr Chan. 

83.  The decision of the PIC was considered by the Council on 5 September 2012 and it appears it was approved as letters were issued to Madam Lam and Dr Chan informing them of the decision.

84.  On 4 January 2013, the second complaint from Mr Law was lodged with the Council.  It is acknowledged that Mr Law enclosed new documents which included the judgment in the civil action and the joint expert report by Dr Dicky Lam and Dr Ip Wing Yuk.  There were two bases for the complaint.  The first was that Dr Chan’s treatment of Bosco fell short of the standard required from a registered medical practitioner, and the second was that Dr Chan had made a false insurance claim contrary to the professional code of conduct of a medical practitioner.  The latter complaint was that Dr Chan had claimed in an insurance form to the insurer that he performed the surgery of suturing on Bosco’s finger which he had not done. 

85.  Dr Choi states that on 27 February 2013, after considering the second complaint and all the supporting material submitted, he came to the view that it did not take matters beyond the first complaint which had been dismissed.  He states that he now accepts that in doing so he was in effect trying to resolve the medical evidence before him and therefore wrongly assumed the role of the PIC in weighing up the medical evidence himself.  He expresses the opinion that the judgment of the civil action where Dr Chan conceded liability did not equate to an admission of misconduct in a professional respect, since a doctor might admit liability for many reasons. 

86.  I should point out, however, that in present case the admission of liability by Dr Chan was that he was negligent in the treatment that he administered on Bosco and this was obviously in light of the information and materials before the court including the joint opinion of the two medical experts that were critical of the treatment administered by Dr Chan.  Central to the Council’s dismissal of the first and second complaints was its view that the treatment administered by Dr Chan did not result in the amputation of Bosco’s finger. 

87.  As required under the first screening stage, Dr Choi directed the Secretary to the Council to pass the matter to Professor Fok, the Deputy Chairman of the PIC for his consideration.  On 12 April 2013, Professor Fok also came to the view that the complaint and the material submitted did not take matters beyond the first complaint.  It is acknowledged by Dr Choi that Professor Fok also committed the same mistake as he did in trying to resolve medical evidence before him.

88.  It transpired that there had been a newspaper article published on 24 January 2013 about the first complaint of Madam Lam against Dr Chan.  It brought a response from the solicitors of Dr Chan to the Council by way of letter dated 12 March 2013.  It was addressed to the Chairman of the PIC.  Dr Choi states that he received the letter which addressed matters contained in the article and made submissions on the civil judgment and Dr Chan’s handwritten records.  He states that he considered the letter and it confirmed his preliminary views but he claims that his decision was not affected by the submissions from Dr Chan.  He produces a heavily redacted copy of the solicitors’ letter.

89.  Dr Choi explains that the usual practice for handling complaints to the Council at the first screening stage is to seek the view of the lay member of the PIC.  He states that the rationale for this is to ensure that a complaint is also looked at from a lay person’s perspective.  He notes that there is no legal requirement to consult a lay member for his or her view on the complaint but it is an established practice by the Chairman of the PIC which has been endorsed by the Council. 

90.  On 22 April 2013, the Secretary sought the view of the lay member, Ms Chau Man Ki, Mable (Ms Chau), as to whether the complaint should be dismissed in accordance with his and Professor Fok’s views.  It was Ms Chau in June 2013 who raised the point that the second complaint contained the allegation that Dr Chan had charged the insurer for “suturing fees” when suturing had not been performed. 

91.  Dr Choi states that he was informed of the oversight on or around 21 June 2013, and having considered the allegation, he on 5 July 2013 directed the Secretary to formulate a charge against Dr Chan for claiming “suturing fees” when suturing had not been performed and that legal advice should be sought.  He states, however, that at the time he took the view that in a modern context there were different ways of suturing which may not necessarily involve the use of nylon and stitches, and he made his view known to the Secretary. 

92.  On 15 October 2013, the Secretary wrote to the Department of Justice seeking legal advice on the charges in the draft PIC notice and it was not until 18 December 2013 that advice was given which was relayed by the Secretary to Dr Choi on 17 January 2014.

93.  On 24 January 2014, Dr Choi directed that the legal advice be circulated to Ms Chau for her review which was done on 2 April 2014.  On 3 June 2014, Ms Chau indicated she had no further comments to make and would leave it for Dr Choi to decide the fate of the second complaint. 

94.  On 10 June 2014, the Secretary sought Dr Choi’s directions as to the handling of the second complaint, and he indicated that the new materials did not take the matter beyond the first complaint which had been dismissed by the PIC, and that in relation to the false insurance claim, after considering all the documents, he was of the view that it was groundless medically.  Dr Choi states that he considered the latter aspect of the complaint, as a medical practitioner, which seems to suggest that he was making an evaluation of the complaint based on his own medical opinion as to what constituted suturing in the context of the complaint.  As a matter of principle that is not unreasonable as the very purpose for why medical practitioners are involved in assessing professional complaints against fellow medical practitioners is to bring to the task their expertise and experience.  But this seems to be reserved for the most obvious of cases, and if there is a medical issue that needs to be resolved then that would not seem to fall into the category of being frivolous or groundless. 

95.  He states that contrary to a lay person’s view, suturing is not limited to needles and stitches and that metallic staples and sterile strips are also frequently used to close wounds after surgery.  He explains that an adhesive counts as suture in the medical nomenclature.  He states he decided therefore to dismiss the second complaint including the new allegation regarding the false insurance claim.  But he had previously decided that a charge be drafted as to this complaint and that it should proceed to the PIC.  I should add that Mr Law questions Dr Choi’s expertise to comment on a definition of suturing in this context.[21]

96.  At the hearing before me, when it was observed that there was an apparent about face by Dr Choi, I was informed by Mr Leung that these were Dr Choi’s initial instructions which were based on a preliminary view.  I note that this was contrary to the view he held back on 5 July 2013 when he directed the Secretary to formulate a charge against Dr Chan.  And in any event it was not until almost a year later on 10 June 2014 that he came to a contrary view and dismissed the complaint. 

97.  The first stage of the screening process required Dr Choi to decide whether the complaint was frivolous or groundless.  He states that direction was also sought from Professor Fok regarding the dismissal of the case on 10 July 2014, who agreed there was no case for the PIC and thus the case was dismissed on 25 July 2014.

98.  Notwithstanding Ms Chau’s indication that she had no further comments and she would leave the matter for Dr Choi to decide, the Secretary wrote to Ms Chau on 23 September 2014 informing her that Dr Choi and Professor Fok shared the view that the second complaint should be dismissed and asked her for her view as well.  She replied on 12 October 2014 that she concurred with their views.

99.  The dismissal of the complaint was subsequently reported to the Council on 3 December 2014 and a letter was issued on 8 January 2015 by the Secretary to Mr Law informing him of the decision.

100.  Dr Choi states that the first and second complaints had been handled with reasonable expedition by the Council and by himself and Professor Fok, as the Chairman and Deputy Chairman of the PIC respectively, but he does accept that the dismissal letter relating to the second complaint could have been issued earlier.  By way of explanation he states that it was due to the heavy workload and caseload at the secretariat of the Council. 

101.  Professor Lau addresses delays in the handling of complaints and in particular the delay in the present case, by reference to the workload and caseload of the Council.

102.  He explains that in 2014 the Council received 624 complaints.  This is a marked increase from previous years, where there were 452 complaints in 2013, 480 complaints in 2012, 461 complaints in 2011 and 476 complaints in 2010.  He explains that members of the Council work on a part time and pro bono basis and they are supported by a secretariat.  He further explains that medical expert opinion has to be sought from outside the Council if the allegation involves specialist knowledge and this inevitably takes time because they have to identify an appropriate expert who would be willing to provide assistance to the Council for this purpose.  He also explains that unlike medically trained members, lay members of the Council may take longer time to study and consider allegations involving medical evidence, particularly at the PIC stage when the real issues have yet to be crystallised. 

103.  Professor Lau explains that the functions and duties of the Council are extensive and onerous.  He points out that the Council is responsible to register all medical practitioners in Hong Kong and this also includes the handling of complaints and conducting disciplinary proceedings.  It is also responsible for, amongst other things, handling applications for inclusion of names in the specialist register, recommending and reviewing the standard and structure of undergraduate medical education and medical training required for a person to become a medical practitioner, administering the licensing examination for non-local medical graduates, issuing guidelines and code of professional conduct and so on.  He further points out that there are various committees under the Council, such as the PIC, the Licentiate Committee which consists of five sub-committees, the Education and Accreditation Committee, the Ethics Committee and the Health Committee. 

104.  There is no doubt that the Council has a wide range of responsibilities and functions, the importance of which cannot be over emphasised, in regulating the medical profession and administering and implementing standards of medical practice in Hong Kong.

105.  Professor Lau sets out the current composition of the PIC.  The Chairman and the Deputy Chairman as already mentioned are Dr Choi and Professor Fok respectively, and they both handled the first and second complaints.  Other members include Dr Foo Kam So Steven, who handled the first complaint, and Ms Chau, a lay member, who handled the first and second complaints.  In addition to Ms Chau, there are three other lay members on the current PIC. 

106.  Professor Lau explains that the Council has a mechanism for members of the PIC to declare any personal or pecuniary interests in the outcome of the case, which when made would automatically disqualify the member from hearing or otherwise dealing with the case.  He says that members of the PIC are consistently reminded of the requirement to declare their interest as mandated by section 7 of the Regulation. 

107.  From the minutes of the PIC meeting held on 16 April 2012 when the first complaint was discussed, Dr Choi was not present and Professor Fok, the Deputy Chairman, chaired the meeting.  Professor Fok, Ms Chau and Dr Ho Chung Ping declared that they knew Dr Chan as they were all members of the Council/Hong Kong Medical Association.  Professor Lau explains that the three of them all confirmed that they could maintain an open mind and remain impartial in considering the complaint, and the other members present agreed that they could continue to take part in the deliberation of the complaint.

108.  It is apparent that Dr Chan has had a long association and involvement with the Council.  He has been a member of the Council from 24 January 2002 to date except for a short period between January and May of 2011. 

109.  Mr Law makes the observation that even though Dr Choi was absent from the meeting on 16 April 2012 there is no record as to whether he was requested to make or did make a declaration of interest in relation to the first and second complaints.  He states that Dr Choi and Dr Chan have a long time association and acquaintance with each other as medical practitioners and through their involvement in the Council.  He produces numerous instances evidencing their association with each other on social and professional occasions [22]

Two stage screening process for complaints

110.  The underlying rationale for the screening process under the scheme was explained by Litton VP (as he then was) in Dr Leung Kam Chung Kenneth v Medical Council of Hong Kong, CACV 33/1996, 25 July 1996, unreported, at page 5:

“The Preliminary Investigation Committee is in effect put in as a screening body, to ensure that medical practitioners are not vexed with complaints which might turn out, after inquiry, to be groundless: And, using the language of Lord Mackay in Gee v General Medical Council [1987] 2 AER 193 at 197H, in relation to the similar scheme in the United Kingdom, the procedure for preliminary investigation provides ‘a coherent and important filter process which must be observed’. Given the nature of a medical practitioner’s responsibilities, often having to deal professionally with unhappy or even disturbed individuals, this would seem a wise and necessary process.”

111.  This passage was endorsed by A Cheung J (as the Chief Judge then was) in the case of Dr Li Wang Pong Franklin v Medical Council of Hong Kong & Anor [2009] 1 HKC 352, who in examining the Hong Kong statutory scheme found the following extracts taken from Lightman J’s comments on the English disciplinary provisions as providing a correct description of the true intent and purpose of the Hong Kong provisions:

“38. In R v General Medical Council, ex parte Toth [2000] 1 WLR 2209, Lightman J commented on the English disciplinary provisions in the following terms (at pp 2217-2219):

‘The statutory scheme

10. The provisions in the Act and Rules to which I have referred are designed to protect the public from the risk of practice by practitioners who for any reason (whether competence, integrity or health) are incompetent or unfit to practice and to maintain and sustain the reputation of, and public confidence in, the medical profession. The public have higher expectations of doctors and members of other self-governing professions, and their governing bodies are under a corresponding duty to protect the public against the incompetent as well as the deliberate wrongdoer; serious professional misconduct includes serious negligence; and whether the treatment of a patient constitutes serious professional misconduct is to be judged by the proper professional standards in the light of the objective facts about the individual patient: see McCandless v General Medical Council [1996] 1 WL.K 167. The Act and Rules set out to provide a just balance between the legitimate expectation of the complainant that a complaint of serious professional misconduct will be fully investigated and the need for legitimate safeguards for the practitioner, who as a professional person may be considered particularly vulnerable to and damaged by unwarranted charges against him.

…

14. My conclusions are as follows.

(1) The general principles underlying the Act and Rules are that (a) the public have an interest in the maintenance of standards and the investigation of complaints of serious professional misconduct against practitioners; (b) public confidence in the G.M.C. and the medical profession requires, and complainants have a legitimate expectation, that such complaints (in the absence of some special and sufficient reason) will be publicly investigated by the P.C.C.; and (c) justice should in such cases be seen to be done. This must be most particularly the case where the practitioner continues to be registered and to practice.

(2) There are a series of processes designed to filter out complaints which need not or ought not to proceed further.

(3) The registrar’s role is merely to ensure that the complainant has complied with the formal requirements laid down for investigation of a complaint.

(4) The role of the screener is a narrow one. It is to filer 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.’

112.  The approach in Toth has been followed with some minor qualification as seen by Sullivan J’s comments in R v GMC ex parte Richards [2001] Lloyds Med Rep 47:

“58. Whilst I accept Mr Shaw’s submission that I am not bound by Lightman J’s analysis of the role of the PPC in Toth, I endorse that analysis subject to the following comments which are confined to two detailed matters of emphasis. First, as to need to caution. The PPC should certainly exercise caution for the reasons given by Lightman J in deciding not to refer a complaint to the PCC on the basis that it has no real prospect of being established, having itself conducted a preliminary investigation into its prospects on the documents alone. Whilst need for “the utmost caution” in every case may be debateable, the “the utmost caution” should have been exercised in the present case where the PPC was disagreeing with conclusions of another body with medical expertise that had been reached after a public hearing where oral evidence had been presented. Secondly, I do not read Lightman J’s observation “it is not (the PPC’s) role to resolve conflicts of evidence” as meaning that the PPC must never under any circumstances resolve any conflict of evidence. In the context of the Toth case, as a shorthand explanation of the differences between the roles of the preliminary screener and PPC the observation was sufficiently accurate. Focusing in more detail upon the role of the PPC, I would prefer to say that it should not normally seek to resolve substantial conflicts of evidence. To do so would be to go beyond its screening role and to usurp the function of the PCC. Although section 40(2) of the Act appears to confer a very broad discretion upon the PPC, its proper role within the framework provided by the rules is as described by Lightman J. The submissions of Mr Shaw and Mr Pleming to the contrary failed to take sufficient account of the public interest in having complaints of serious professional misconduct thoroughly and openly investigated by the PCC at a public hearing. Meetings to consider documents in private may in fact serve to maintain standards but they will not ensure public confidence in the process. The good sense of Lightman J’s approach to the role of the PPC is underlined by the figures provided by Mr Nicholls. In the course of 13 months he had participated in 403 PPC decisions, sitting as chairman for 314 cases over 28 sitting days. The papers are of course supplied to the members of the PPC to read in advance and it would be misleading to calculate an “average” length of time per case since complaints will vary in complexity and I am told and accept that the present case received particular care and attention. Nevertheless, such a throughput of cases gives some indication of the level of scrutiny that the PPC is able to give to complaints. This may be contrasted with the four days of oral hearing in front of the health authority.

…

62. Hence my observation (above) that the PPC should exercise the utmost caution in concluding in private, upon consideration of the papers alone, that a complaint based upon a finding made by another medically qualified body after hearing oral evidence in public does not “appear to raise a question” of serious professional misconduct for investigation by the PCC.”

113.  It should be noted that Sullivan J in Richards, whilst giving a general endorsement of Lightman J’s analysis in Toth, went on to qualify Lightman J’s statement that it is not the role of the PPC to resolve conflicts of evidence by saying that the PPC “should not normally seek to resolve substantial conflicts of evidence” as this would go beyond its screening role and usurp the function of the PPC.  See also Henshall v General Medical Council (2005) 88 BMLR 146 at paragraphs 25 to 33.  The qualification by Sullivan J should be treated with caution and does not, in my view, permit the PIC to have a general role in resolving disputed evidence for that is not the function of a screening body. 

114.  This is an important matter which has direct relevance to the present case.  The respondents themselves have acknowledged that during the first screening stage the Chairman and the Deputy Chairman inappropriately attempted to resolve conflicts of evidence and went beyond their powers and duties under the statutory scheme.

115.  I have no hesitation to adopt Lightman J’s comments in Toth as to the objects and purpose of the statutory scheme. Likewise, the provisions under the Hong Kong statutory scheme are designed to protect the public from the risk of practice by practitioners who are incompetent or unfit to practice and to maintain and sustain the reputation of, and public confidence in, the medical profession.  Accordingly, the public have higher expectations of doctors and members of other self-governing professions, and their governing bodies are under a corresponding duty to protect the public against the incompetent as well as the deliberate wrongdoer.  The Ordinance and Regulation set out to provide a just balance between the legitimate expectation of the complainant that a complaint of professional misconduct will be fully investigated and the need for legitimate safeguards for the medical practitioner, “who as a professional person may be considered particularly vulnerable to and damaged by unwarranted charges against him.”[23] 

116.  The disciplinary function of the Council is initiated when a complaint is made to or information is received by the Secretary that a registered medical practitioner, amongst other things, has been guilty of “misconduct in any professional respect” or a committee of the Council refers a matter concerning a registered medical practitioner to the PIC for its consideration or investigation.[24] I will refer to these different forms of referral as a complaint in the following discussion.

117.  As I have explained, before a complaint is the subject of an inquiry by the Council, it goes through a two stage screening process.  It is necessary to consider what the proper legal approach should be when dealing with a complaint at the first and second stage screenings.

118.  Throughout this process, that is the first and second stage screenings, if the Chairman, the Deputy Chairman or any member of the PIC is “in any way interested in a case” he is required to declare his interest and not participate in any deliberation or decision regarding the case.[25]

First stage 

119.  At the first stage a complaint should be dismissed if both the Chairman and Deputy Chairman of the PIC are satisfied that “the case is frivolous, or groundless, and should not proceed further”.[26] 

120.  The complaint goes to the Chairman or the Deputy Chairman of the PIC, the first stage screeners, for initial consideration and if he decides to dismiss it, whoever it is still has to consult the other before the complaint is dismissed on the ground that it is frivolous or groundless.  Otherwise, if the Chairman or the Deputy Chairman of the PIC is of the opinion that there is an allegation that gives rise to a question as to whether the medical practitioner has been guilty of misconduct in any professional respect, he may require the complainant to make clarification about the complaint or set out the specific allegations in writing and the grounds to it or require that the allegation be supported by a statutory declaration.  If any of these requirements are not complied with the Chairman or the Deputy Chairman of the PIC may decline to proceed with the investigation of the case.[27]

121.  The first stage screeners when evaluating the complaint in the first instance can, as explained by A Cheung J in Dr Li Wang Pong Franklin at paragraph 57, do the following:

“… After receiving a letter of complaint together with supporting materials, the Chairman of the PIC is entitled, not only to look at the specific complaint (if any) made by the complainant, but also to read the letter of complaint and the supporting documents as a whole fairly and reasonably, to see whether they may disclose any matter or allegation that may appear to raise a question about the doctor’s professional conduct. It after consideration and investigation, such a matter or allegation is indeed present, and the case is not frivolous or groundless, the Chairman must refer the whole matter to the PIC for consideration, and the doctor must be given an opportunity to offer his explanation on all matters concerned.”

122.  Hence the first stage screeners are entitled, not only to consider the specific complaint and the supporting materials as a whole, which they should do fairly and reasonably, but also to consider whether there is any other matter or allegation that may appear to raise a question about the medical practitioner’s professional conduct.  If after consideration and investigation, such a matter or allegation is present, and the case is not frivolous or groundless, the first stage screeners must refer the whole matter to the PIC for consideration where the medical practitioner is given an opportunity to offer his or her explanation on all matters concerned. 

123.  The role of the first stage screeners is a narrow one which requires them to filter out complaints which they are satisfied should not proceed further.  For this purpose, he must be satisfied of a negative in that the normal course of the complaint proceeding to the PIC should not be followed.  

124.  As noted by the English cases, wider questions, as to the prospects of success of the complaint, or whether the complaint is acting oppressively, or the justice of the investigation proceeding further, do not lie within the remit of the first stage screeners.  It is not for the first stage screeners to arrogate to themselves the role of the PIC and decide whether the complaint should be referred to the Council for inquiry, still less to arrogate to themselves the role of the PIC and weigh up conflicting evidence or judge the prospects of success.[28]

125.  In Dr Li Wang Pong Franklin A Cheung J rejected the proposition that the first stage screeners were limited to considering the specific allegations in the original complaint and held that they were entitled to look at the letter of complaint and all other materials received by the Secretary and was entitled to determine, after consideration and investigation, whether those materials, disclosed any matters or allegations which may appear to raise a question of whether the doctor was guilty of misconduct in a professional respect.  He said:

“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.

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.

…

68. … I have no doubt that the Chairman of the PIC has the general powers given under s 40(1) of the Interpretation and General Clauses Ordinance to carry out investigations, obtain materials and seek expert assistance from outside sources, which are reasonably necessary to enable the Chairman to decide whether the case is frivolous or groundless and should not proceed further, or whether the same should be referred to the PIC for consideration, and to properly identify and formulate the issue(s) of professional conduct that may be involved.”

126.  I take what A Cheung J is saying is that if the first stage screeners consider the information or materials to be incomplete they can carry out investigations that are reasonably necessary to fulfil their statutory duty to determine whether the case is frivolous or groundless and should not proceed further. 

127.  The salient tasks and functions of first stage screeners can be summarised as follows:

(1)     The first stage screeners consider whether the case is frivolous, or groundless, and should not proceed further.  It can only be dismissed if they are both satisfied that is the case.[29] 

(2) The role of the first stage screeners is a narrow one which requires them to filter out complaints that should not proceed further.  Wider questions as to the prospects of success of the complaint, or whether the complainant is acting oppressively, or the justice of the investigation proceeding further, do not lie within the first stage screener’s remit.[30]

(3) The first stage screeners must be satisfied of a negative in that the normal course of the complaint to the PIC should not be followed because it is frivolous or groundless. 

(4) The first stage screeners may carry out investigations to supplement the materials which are reasonably necessary to enable the first stage screeners to carry out their task.[31] 

(5) The first stage screeners should not assume the role assigned to the PIC and carry out any of its investigative functions, in particular, should not seek to resolve conflicts of evidence.

(6) The first stage screeners if of the opinion that there is an allegation that gives rise to a question as to whether the medical practitioner has been guilty of misconduct in any professional respect, may require the complainant to make clarification about the complaint or set out the specific allegations in writing and the grounds to it or require that the allegation be supported by a statutory declaration.  Failure to comply with any of these requirements, it is open to the first stage screeners to decline to proceed with the investigation of the case. 

(7) If the case is not dismissed by the first stage screeners, it is referred to the PIC.

Second stage

128.  Following a decision by the Chairman or the Deputy Chairman of the PIC not to dismiss the case at the first stage, a direction is given that the case be referred to the PIC for its consideration and the Secretary is directed to fix a date upon which it is proposed that the PIC is to meet to consider the case.[32]

129.  The Secretary is then required to fix a date for the proposed meeting, notify the medical practitioner in question of the receipt of the complaint and indicate any allegation which may appear to raise a question whether the medical practitioner has been guilty of misconduct in a professional respect, provide him with a copy of any letter of complaint or information, forward to him a copy of any statutory declaration that had been furnished, inform him of the date upon which the committee is due to meet for the purpose of considering the case, and invite him to submit to the committee in writing any explanation of his conduct or of any matter alleged in the complaint, information, or referral which he may have to offer.[33] 

130.  The meeting of the PIC is held in private and the Secretary is required to put before the committee the complaint, any statutory declaration received with it, any written explanation submitted by the medical practitioner, any documents, medical or other reports produced by the medical practitioner, and any other document or matter in the nature of evidence relevant to all in support of the complaint which is available.[34]  If the PIC considers that the complaint indicated to the medical practitioner should be amended, it may direct the Secretary to make an amendment and advise the medical practitioner of it and invite him to give any further explanation he may wish.[35] 

131.  Before coming to a decision, the PIC may cause to be made such further investigations or further clarification from the medical practitioner as to the case or his written explanation, and may obtain such additional advice or assistance as it considers necessary.[36]  The PIC having regard to any written explanation submitted by the medical practitioner and all the materials put before it by the Secretary, considers the case and may decide that no inquiry shall be held, that no inquiry shall be held and issue a letter of advice to the medical practitioner, refer the case in whole or in part to the Council for inquiry or to the Health Committee for a hearing.[37]  The referral to the Health Committee arises when the PIC considers there is a question as to whether the medical practitioner is physically and mentally fit to practice medicine.

132.  Upon a decision of the PIC that no inquiry is to be held the Secretary will accordingly inform the complainant and the medical practitioner of the decision.[38] It is provided under section 12(2) that neither the complainant nor the medical practitioner has any right of access to any information or document relating to the case submitted to the PIC by any other person if it is decided that no inquiry is to be held.

133.  If the PIC decides to refer the case to the Council for inquiry, the Chairman of the PIC must send a written notification of the decision to the Chairman of the Council specifying the matters as identified by them for the referral and which form the basis of the charge or charges into which the inquiry is to be held.  An inquiry is then fixed giving notice to the parties of it and specifying the form of the charge or charges to be considered.[39]

134.  The Chairman is required to direct the Secretary to fix a date for the inquiry and give notice of it.[40]  The inquiry is conducted by way of hearing with the parties in attendance and in accordance with procedures and requirements as provided under the Regulation, which includes amongst other things provision for the receipt of submissions and the taking of evidence from the parties.[41] The Council for inquiry into a complaint will determine whether the medical practitioner has been guilty of “misconduct in any professional respect”. 

135.  The salient tasks and functions of the PIC during the second stage screening can be summarised as follows:

(1) The PIC’s role is to consider the case, having regard to all the materials put before it by the Secretary and any written explanation submitted by the medical practitioner.[42]

(2) The PIC must determine that either no inquiry shall be held (with the option to issue a letter of advice to the medical practitioner) or that the case be referred to the Council for inquiry.[43] 

(3) The PIC has to consider and, if necessary, further investigate whether the materials placed before it, would justify referral of the case to the Council for inquiry. 

(4) The PIC may examine whether the complaint has any “real prospect of being established”, and may themselves conduct preliminary investigation into its prospects, and may refuse to refer to the Council if satisfied that the real prospect is not present.[44]

(5) The PIC must approach its task with the utmost caution bearing in mind the nature of the procedures where the complainant has no right of access to the medical practitioner’s response and the state of the material at that stage.[45] It is not the PIC’s role to resolve any conflicts of evidence.[46] 

Unjustified delay

136.  Unjustified delay is a well recognised and common species of maladministration.  The inordinate delay occasioned by the handling of the second complaint warrants comment. 

137.  At the hearing on 10 August 2015, it was urged upon me by Mr Leung that I need not address the issue of delay as it would serve little purpose other than to warn the respondents not to delay when the matter was remitted.  In my judgment that would be ample justification to address the issue of delay.  He argued that delay was of little significance as no connection could be drawn between the complaint and the relief sought by the applicant.  He submitted that the respondents did not accept the allegations of delay and that if it had been a relevant issue they would be able to adduce materials to rebut the allegation.  

138.  I should point out that the respondents chose unilaterally not to file any evidence, notwithstanding my direction that I wished to be addressed on the matter in the leave judgment.  He sought to rely on the fact that the respondents had agreed to quash the decision and therefore the delay was a non issue.  I did not agree with these submissions.

139.  The issue of delay was clearly articulated in the applicant’s initial papers and as evidenced by the exchange of correspondence between the parties continued to be an issue in relation to the terms of the order remitting the matter back to the Council. 

140.  In my view, the issue of delay had specific and general importance.  Any instance of inordinate delay, as occasioned in this case, in the performance of a regulatory function by a professional body is a matter of public importance.  In the present case, it cannot be ignored simply because the respondents conceded the incorrectness of the decision.  The inordinate delay in dealing with the second complaint, which was dismissed at the first stage, is a matter warranting scrutiny by the court in the exercise of its supervisory jurisdiction. 

141.  As argued by Mr Kwok, the public have a legitimate expectation that allegations of professional misconduct will be investigated by the Council promptly and without delay.  He stresses that the failure to take prompt action to address professional misconduct results in unfairness to all concerned.  It is undoubtedly true that justice is best served by the fair and prompt disposal of cases, but it can be undermined by unreasonable delay. 

142.  In the end, the issue of delay was addressed by the parties.  The respondents filed evidence giving an account of the procedural history of the complaints.  I have already summarised the evidence.

143.  As a general principle, if there is no express time limit set out in the statutory framework, the courts will generally imply an obligation as to reasonable time.  Accordingly, the time required in order to arrive at a decision must be reasonably necessary for that purpose and what is reasonable will depend upon all the circumstances.

144.  I was far from satisfied with the evidence explaining the time taken to deal with the second complaint.  The handling of the complaint went through a protracted and cumbersome process that did not follow the objectives and requirements of the first stage screening under the statutory scheme.  The task before the Chairman and the Deputy Chairman was a straightforward and narrow one.  It simply required them to assess the materials to determine whether the complaint is frivolous or groundless and should not proceed further

145.  It is supposed to be a prompt and efficient assessment to weed out the unmeritorious complaint that need not follow the normal course of referral to the PIC.  It took two years which in the circumstances of the case was, in my view, both unreasonable and excessive.  I reject the justification from the respondents that they were actively processing the complaint during this time.  From my assessment, in many instances what was done was not only unnecessary but took far too long.

146.  A major reason for the delay appears to be the considerable time taken by the Chairman and the Deputy Chairman in attempting to resolve the evidence in relation to the allegations that had been made against Dr Chan.  The respondents acknowledge that the Chairman and the Deputy Chairman applied the wrong test when exercising their duties and wrongly performed the task of attempting to resolve the evidence.  They say that if there was delay this was the real cause.  It seems to me that a number of unnecessary tasks were performed over a protracted period with frequent intervals between them.

147.  The respondents also attribute the delay to the large number of complaints that they deal with every year and that the Council members work on them on a voluntary and part-time basis.  Whilst the working demands on the Council are varied and great, it is nevertheless the case that it has a statutory responsibility which it must fulfil properly and promptly, and administrative difficulties or lack of resources provide no excuse for unreasonable delay when dealing with complaints of professional misconduct.  If the framework and mechanisms in place to address professional misconduct in the medical profession are either not working or not working adequately then serious consideration should be given to make changes or introduce reforms necessary to address the issue.

Composition and disqualification of the PIC

148.  Under the statutory scheme it is a requirement for members of the PIC to declare any interest in a case they are required to consider.  The relevant provision under the Regulation is section 7 which reads: 

“7. Declaration of interest by members of Committee

(1) If the chairman or the deputy chairman of the Committee is in any way interested in a case referred to him under section 6, he shall declare his interest to the Chairman before he has to consider the case himself or jointly with other pursuant to this Regulation.

(2) If any other member of the committee is in any way interested in a case which has been referred to the Committee, he shall declare his interest to the chairman of the Committee before or at the first meeting of the Committee to consider the case.

(3) On a declaration of interest under subsection (1) or (2)—

(a) the chairman, deputy chairman or member, as the case may be, shall not participate in any deliberation or decision regarding the case;

(b) the chairman or the deputy chairman, as the case may be, shall not preside at the meeting;

(c) if both the chairman and the deputy chairman declare their interest under subsection (1), the other members present and forming a quorum shall elect one from among themselves to preside at the meeting for deliberating or deciding on the case.

(4) On a declaration of interest under subsection (1), the Chairman shall appoint a member of the Committee to perform the functions of the chairman or deputy chairman, as the case may be, under section 6.”

149.  I was somewhat surprised to learn in the course of the hearing that there are no general guidelines on the topic of conflict of interest of members of the Council and the declaration of an interest in relation to a complaint.  It would make good sense that the Council address this matter immediately.

150.  Under section 7, where a member of the PIC “is in any way interested in a case”, he must declare his interest upon the referral of the case to him.  In the case of the Chairman or the Deputy Chairman of the PIC, he has to declare his interest to the Chairman of the Council, before he has to consider the case himself or jointly with others.  In the case of any other member of the PIC, he has to declare his interest to the Chairman of the PIC before or at the first meeting of the PIC to consider the case.  Upon a declaration of interest, the Chairman, Deputy Chairman or member, as the case may be, cannot participate in any deliberation or decision regarding the case, and the Chairman or the Deputy Chairman, as the case may be, cannot preside at the meeting of the PIC relating to the case. 

151.  Once an interest is declared by a member of the PIC, it would seem that he has to immediately refrain from having any involvement in the case.  To make practical sense of this provision, it is necessary to consider the expression “is in any way interested in the case” which on its face is quite wide. 

152.  In Meerabux v Attorney General of Belize [2005] 2 AC 513 the Privy Council, when considering whether the Chairman of the Belize Advisory Council should recuse himself from considering a complaint made by the Bar Association of which he was a member, held that the principle of automatic exclusion extends only to cases where it can be demonstrated that he has a personal or pecuniary interest in the outcome.  It would seem that this test has been applied by the Council when ascertaining whether a member is in any way interested in a case as it asks whether the he has a personal or pecuniary interest in the case.

153.  In Tankard v John Fredericks Plastics Ltd (Law Society intervening) [2008] EWCA Civ 1375, the court concluded that in relation to the requirement that a solicitor must inform his client whether he has an “interest” when recommending a contract of insurance, the appropriate test should be that a solicitor has an interest if a reasonable person with knowledge of the relevant facts would think that the existence of the interest might affect the advice given by the solicitor to his client. 

154.  It seems sensible that a similar test, commonly known as reasonable apprehension of bias, should apply in relation to section 7.  Accordingly, a member of the PIC would be required to make a declaration and recuse himself if a reasonable person with knowledge of the relevant facts would think that the existence of the interest might affect his bringing an objective judgment to bear on the case.  See Deacons v White & Case Ltd Liability Partnership & Ors (2003) 6 HKCFAR 322; Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281. 

155.  As I have said Mr Law has submitted evidence of a long-term connection between the Chairman of the PIC and Dr Chan.  He states, with justification in my view, that on the materials they have known each other for many years and have frequently appeared together on social and professional occasions.  He also correctly notes that there is no indication that the Chairman at any stage declared an interest in the case.  This is to be compared with the other members of the PIC who at the first meeting declared their association with Dr Chan.  It is hoped that with the guidance provided by this judgment, a more conscientious and considered approach will be taken in the future in declaring and addressing any interest a member of the PIC may have in a case.

Conclusion

156.  I must say that this case reveals a lamentable state of affairs in the Council’s handling of complaints from members of the public against registered medical practitioners.  There appear to be a number of contributing factors for this, the most obvious being the protracted and cumbersome process and procedures for handling complaints, the reliance on medical practitioners and laypersons to handle the complaints on a voluntary and part-time basis, inadequate administrative support and personnel to handle the volume of complaints, and the lack of appropriate guidelines, discipline and structure in handling complaints, including guidelines in relation to the declaration by a member of the PIC of an interest in a case.  There also appears to be a lack of appreciation of the precise role and functions by persons designated to handle complaints which could be due to inadequate training and supervision. 

157.  I should acknowledge the by far the great majority of medical practitioners deliver high quality healthcare, often in difficult and demanding circumstances, but that is all the more reason why medical professional misconduct should be properly and effectively dealt with.  The fair and prompt disposal of complaints against medical practitioners is essential in protecting the public from inappropriate healthcare and in securing public confidence and support in the medical profession.  It is in the interests of all concerned that this approach be taken.

158.  It is not disputed that the decision should be quashed.  I therefore make an order of certiorari to bring up and quash the decision of the Chairman and Deputy Chairman of the PIC dismissing the complaint of Mr Law made on 4 January 2013 against Dr Chan and remit the matter to a different Chairman and Deputy Chairman of the PIC to consider the matter afresh and reach a decision according to law and to any relevant comments in this judgment. 

159.  Bearing in mind that the respondents conceded this judicial review in July of this year and the inordinate delay occasioned by the handling of the complaint, I order that the matter be handled as expeditiously as possible, within 30 days from the date of this judgment with liberty to apply for an extension of time.  I note that the Council has had ample time to make the necessary preparations to arrange a different Chairman and Deputy Chairman of the PIC to handle the case, and there will need to be good reason for any extension of time.  I also direct, bearing in mind Dr Chan’s involvement and standing within the Council, that appropriate arrangements are put in place and proper procedures are followed to ensure a fair and impartial consideration of the case.

Costs

160.  I see no reason why costs should not follow the event and that the respondents pay the applicant’s costs.  In consequence of the respondents conceding the judicial review, they agreed to pay the applicant’s costs up to when the concession was made.  They objected to costs after that date because the further hearings were a result of the applicant not agreeing to a consent order and a short statement as he wished to proceed to a hearing of the substantive issues.  As far as I am concerned the applicant raised legitimate matters in his grounds for review that were not, or could not be, adequately dealt with in the short statement proposed.  Whilst the matters reflect the applicant’s sense of grievance in the handling of the second complaint, there is also a public interest element in relation to them. 

161.  It was only at the first hearing did the respondents attempt to provide an appropriate short statement, but this had been rejected by the applicant because the matters raised by him were either not appropriately addressed or still in issue.  The first hearing was adjourned because the respondents decided not to file evidence to address the issue of delay which was specifically requested in the leave judgment.  The hearing of the substantive judicial review was necessary because of the respondents’ wrong decision and approach in dealing with the application.

162.  I am therefore of the view that the applicant is entitled to his full costs from the respondents and I make an order nisi that the respondents pay the applicant’s costs in relation to these proceedings, to be taxed if not agreed in accordance with Legal Aid Regulations.

[1] Letters from Howse Williams Bowers dated 6 and 21 August 2015

[2] At paragraph 53/14/55

[3] See section 6(1).  

[4] See sections 16 and 20A. 

[5] In Hong Kong in 1996 the Medical Practitioners (Registration and Disciplinary Procedure) Registration replaced the repealed Medical Practitioners (Registration and Disciplinary Procedure) Regulations. 

[6] The 5^th Shipman Inquiry Report, Smith LJ, at Chapter 20

[7] Joint Medical Assessment and Report by Dr Dicky Lam and Dr Ip Wing Yuk Josephine, dated 8 November 2010

[8] Joint Medical Assessment and Report, Conclusions at paras 106-124

[9] Law Yin Pok Bosco v Dr Chan Yee Shing, HCPI 369/2010 at para 9

[10] HB/D/204-226

[11] HB/D/379-385

[12] HB/D/399-420

[13] HB/D/421-426

[14] HB/D/454-470

[15] HB/D/438-453

[16] HB/D/427-433

[17] HB/D/471-514

[18] HB/D/515-517

[19] HB/C/87-1 to 7 Affidavit of Lau Wan Yee Joseph dated 18 August 2015

[20] HB/C/87-8 to 16 Affidavit of Choi Kin dated 18 August 2015

[21] 3^rd Affirmation of Law Yiu Wai Ray at para 6

[22] 3^rd Affirmation of Law Yiu Wai Ray at paras 2 to 5

[23] Toth at para 10

[24] Section 6(1)(a)(ii) and (c) 

[25] Section 7

[26] Section 6 (2) and (3)

[27] Section 8 (1) and (3)

[28] At paragraph 14

[29] Section 6(2)-(3) of the Regulation

[30] Toth at 2219C

[31] Dr Li Wang Pong Franklin at paras 57 and 59

[32] Section 9(1) 

[33] Section 9(2) 

[34] Section 11(1) and (2) 

[35] Section 11(6)

[36] Section 11 (7) 

[37] Section 11 (8) 

[38] Section 12(1) 

[39] Section 13

[40] Section 13

[41] Part IV of the Regulation

[42] Section 11(2) of the Regulation

[43] Section 11(8) of the Regulation

[44] Section 11(7) of the Regulation.  See also Toth at 2220B.

[45] Section 12(2) of the Regulation

[46] See Toth at 2220B-C