THE HONG KONG MEDICAL ASSOCIATION v. MEDICAL COUNCIL OF HONG KONG

HCAL 70/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 70 OF 2012

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J U D G M E N T

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Introduction

1.  This application for judicial review concerns the Medical Council of Hong Kong (“the Council”) and examines whether the power to review any decision or order made in a disciplinary inquiry against a registered medical practitioner is to be exercised by the full Council or by the Council that conducted the inquiry.[1]

2.  The applicant is the Hong Kong Medical Association.  It is a professional body with about 8,500 members representing the majority of registered medical practitioners in Hong Kong.  It was founded in 1920 with the principal aims to maintain standards of medical practice and represent the interests of medical practitioners in Hong Kong. The respondent is the Council which is a statutory body established under the Medical Registration Ordinance, Cap 161 (“the Ordinance”). 

Background

3.  On the 8 and 10 February 2012, a registered medical practitioner appeared as a defendant before a Council inquiry under s 21 of the Ordinance on a charge alleging professional misconduct. On 10 February 2012, the Council found the terms of the charge made out and ordered that the name of the doctor be removed from the General Register of medical practitioners for a period of 1 month. 

4.  On 20 February 2012, the applicant wrote to the Chairman of the Council requesting a review of the decision of 10 February 2012 under s 21(4B) of the Ordinance.  Section 21(4B) stipulates as follows:

“ Within 14 days after the conclusion of an inquiry under this section, the Council may, of its own initiative but not otherwise, review any decision or order made in the inquiry.”

5.  On 2 March 2012, the Secretary to the Council wrote to the applicant on behalf of the Chairman declining the request to review the decision and explaining that the term “Council” in s 21 (4B) referred “to the inquiry panel (ie the Council consisting of the Members/Assessors at the inquiry), and that a review can only be conducted on the inquiry panel’s own initiative but not otherwise.”

The issue

6.  The issue to be resolved in this case is whether a review of a decision or order of a disciplinary inquiry in relation to a registered medical practitioner is to be conducted by the Council as a whole or by Council that held the inquiry.  This will turn on the proper interpretation of the word “Council” in s 21(4B).  The applicant argues that the word “Council” in this context means the Council as a whole, consisting of all the members referred to in s 3 of the Ordinance instead of the members of the Council and the assessors, if any, participating in the disciplinary inquiry pursuant to s 21B.

7.  In the course of argument, Professor Johannes Chan, SC (Hon), for the applicant, criticised the legislation in relation to the overall functioning framework for the regulation and discipline of registered medical practitioners which, I have to agree, is at times unclear, complicated and confusing.  This will become apparent from my analysis of the issue in dispute. 

Criticism of the system

8.  In respect of this application, the then President of the Medical Association, Dr Choi Kin, and the then Chairman of the Council, Dr Felice Mak, each filed an affirmation in which they both included a brief background to the issue.  Dr Choi was a Council member and a member of the disciplinary inquiry which heard the misconduct complaint against the defendant doctor.  In addition to Dr Choi, the members of the inquiry consisted of the Chairman of the Council, who was the temporary Chairman of the meeting and who happened to be Dr Mak, 3 other Council members, one of whom was a lay member, and 2 assessors who were both registered medical practitioners.  The inquiry therefore consisted of 7 members. 

9.  There were 10 signatories to the letter of 20 February 2012 from the applicant.  All of them were members of the Council, including Dr Choi and another doctor both of whom sat on the inquiry.  They sought a review of the decision of the inquiry on the ground of “irrelevancy” in that they were of the opinion that “the quorum” of the Council inquiry erred in considering irrelevant factors in reaching its decision.  I take it that what they meant by the quorum of the inquiry was the majority of the 7 members that held the inquiry.  They also argued that the Council as a whole had the authority to initiate and review the decision of the Council inquiry. I note, however, that the defendant doctor did not appeal the order of the Council inquiry.  It would appear that Dr Choi and the other doctor, who sat on the inquiry, disagreed with the majority view and were seeking by the review to put the issue before the full Council.  I am bound to say from the outset that that does not appear to be the purpose of s 21(4B).

10.  Dr Choi explained that prior to 1996 there was no specific quorum provision in the Ordinance governing disciplinary inquiries which were conducted by the full Council.  He said that this changed in 1996 when a quorum provision for disciplinary inquiries was introduced by the enactment of s 21B which reads:

“(1) At any meeting of the Council held for the purpose of an inquiry under section 21, either-

(a) 5 members of the Council; or
(b) not less than 3 members of the Council and 2 assessors, on a rotational basis, from the panel appointed under subsection (2),

at least 1 of whom shall be a lay member but subject to the majority being registered medical practitioners, shall be a quorum.

(2) The Council shall appoint the following persons who are not members of the Council to form a panel of assessors for the purpose of conducting an inquiry under section 21-

(a) 2 registered medical practitioners nominated by the Director;

(b) 2 registered medical practitioners nominated by the Hospital Authority;

(c) 2 registered medical practitioners nominated by the Academy of Medicine;

(d) 2 registered medical practitioners nominated by the University of Hong Kong;

(e) 2 registered medical practitioners nominated by The Chinese University of Hong Kong; and

(f) 4 lay persons nominated by the Secretary for Food and Health.

(3) An inquiry conducted by members of the Council and assessors forming a quorum under subsection (1)(b) is deemed to be an inquiry by the Council and is as valid and effectual as an inquiry conducted by members of the Council forming a quorum under subsection (1)(a).

(4) An assessor shall hold office for a period of 1 year from the date of appointment and, at the expiry of his period of appointment or of any period for which he is reappointed, shall be eligible for reappointment for further periods of 1 year each.
(5) Any assessor may at any time resign by giving notice in writing to the Chairman.

(6) Section 3(6A) and (7) applies with respect to an assessor as it applies to a member of the Council.”

11.  This is an important section and I set it out in full as I will constantly refer to it in my judgment. The section provides that the quorum at any meeting of the Council held for the purpose of an inquiry under s 21 is constituted by either 5 Council members or 3 Council members and 2 assessors.  The assessors are selected on a rotational basis from a panel of 14 that the Council appoints for the purpose of an inquiry.  It is stipulated that the panel of assessors are not members of the Council and consist of 10 registered medical practitioners nominated by certain specified medical bodies or institutions and 4 lay persons nominated by the Secretary for Food and Health.  I noted at this juncture that the Council is established under s 3 and consists of 28 members of which 24 are registered medical practitioners and 4 are lay persons.  In respect of whichever quorum is satisfied for a meeting of the Council for the purpose of an inquiry under s 21, it is also stipulated that at least 1 of the members must be a lay member but subject to the majority being registered medical practitioners.  Notwithstanding this rather complicated set of requirements and configurations, the legislative intent behind this provision is to ensure that the composition of a disciplinary inquiry must include at least 1 lay person and may include non-members of the Council but this is at the discretion of the Council as to who gets appointed. This provision provides both the quorum for and the composition of a Council inquiry.

12.  Dr Choi explained that no inquiry would be held if no lay member of the Council could participate and that assessors would normally be approached only when there were an insufficient number of Council members to participate in an inquiry.

13.  According to Dr Choi, up until September 2009, the practice of the Council was that the secretariat would schedule new inquires every month.  All Council members, except for the Chairman and the Deputy Chairman and the lay member of the Council who had considered the case in a preliminary investigation committee, were invited to indicate their availability for the schedule inquiries.  All Council members were free to either accept or decline to participate in the adjudication of the inquiry.  Once a quorum was obtained, the defendant doctor would be informed of the names of the Council members or assessors who would sit on the inquiry and be asked if he or she had any objections to any of them.  If a Council member or assessor withdrew from an inquiry as a result of an objection, a replacement would be arranged to meet the requirements of the quorum and the composition of the Council inquiry.

14.  It appears a review of this procedure took place in 2008 with the assistance of the Independent Commission Against Corruption which recommended that before the inquiry was held, the Council should disclose to the adjudicating members, the identity of the defendant doctor under inquiry and the nature of the case, and that a roster system be implemented for the appointment of adjudicating members.  These recommendations were introduced. 

15.  Dr Choi is critical of the roster system because Council members can only participate in the inquiry to which they are assigned.  He explained that this meant that the disciplinary power of the Council was in effect delegated to a disciplinary committee.  He stated that the appointment of either Council members or assessors to an inquiry was done by the Secretary of the Council and that prior to the roster system inquiries were open to all members of the Council without the necessity to enlist the participation of assessors which is now more frequently done under the new system. 

16.  As I have already pointed out, s 21B makes specific provision for a meeting of the Council held for the purpose of an inquiry to have as its quorum either 5 Council members or not less than 3 Council members and 2 assessors.  It needs to be appreciated that s 21B stipulates the quorum for a meeting of the Council inquiry under s 21.  A “quorum” is the minimum number of members of a body that must be present at its meeting to make the proceedings at that meeting valid.  The section therefore contemplates a Council meeting for this purpose to be valid by two different quorums.  One where it consists of Council members with a minimum number of 5 Council members present.  The other where it consists of Council members and assessors with a minimum number of 3 Council members and 2 assessors present.  In this latter instance, a meeting of the Council includes 2 non-members being assessors and when this occurs it is deemed under s 21B (3) to be an inquiry by the Council.  Section 21B not only provides the quorum for a Council inquiry but also its composition when it takes a different form by the inclusion of assessors. 

Principles of statutory interpretation

17.  I will now turn to consider the specific legislative provisions, but before I do, I will state the key principles that will guide me in this exercise.

18.  It is a fundamental starting point in statutory interpretation to look at the relevant words or provisions having regard to their context and purpose.  This was made clear by Sir Anthony Mason NPJ in his judgment in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at paragraph 63 where he explained that the modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.  This was reinforced in subsequent decisions of the Court of Final Appeal in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at paragraphs 12 and 13 and Vallejos and Domingo v Commissioner of Registration [2013] 2 HKLRD 533 at paragraphs 76 and 77. Statutory interpretation therefore requires considering and understanding the relevant statutory wording or provisions in light of their context and statutory purpose.[2]

19.  Accordingly, the question comes down to what is the proper interpretation of the expression “the Council” in s 21(4B) in the context of the provision and the exercise of a power to review a decision or order made by the Council in a s 21 inquiry.

The legislation

(a) An overview of the legislation

20.  Even though the object of the Ordinance is stated as regulating the registration of practitioners in medicine and surgery, the provisions are much broader in that they regulate the practice of medicine and surgery, and the conduct of the medical profession as a whole.  The Council is established under s 3 of the Ordinance for this purpose.[3] 

21.  The definition of “Council” is set out in s 2(1) which reads:

“ (1) In this Ordinance, unless the context otherwise requires-

‘Council’ means the Medical Council of Hong Kong established under section 3;”

22.  Section 3 provides that the Council consists of 28 members, made up of 24 registered medical practitioners and 4 lay members.[4] The registered medical practitioners become members of the Council either by nomination or election.  The Director of Health, the University of Hong Kong, The Chinese University, the Hospital Authority and the Academy of Medicine each nominate 2 registered medical practitioners, who are appointed by the Chief Executive.  The Hong Kong Medical Association nominates 7 registered medical practitioners who have been elected by Council members of the Association.  The remaining 7 registered medical practitioners are elected from the general body of registered medical practitioners.  The 4 lay members are appointed by the Chief Executive.  Provision is made for the appointment and the holding of office of various categories of members of the Council.  A Chairman is elected by members of the Council for a term of 3 years.[5] A Secretary and a Legal Advisor to the Council are appointed by the Chief Executive.[6] Meetings of the Council are determined and arranged by the Chairman.[7] For most purposes, the quorum for a meeting of the Council is 13 members[8] and the only exceptions to this are:

(1) Appeal hearings under ss 20F, 20O, or 20W, which are appeals from various committees of the Council to the Council itself, at which the quorum is 5 members.[9]

(2) Meetings held for the purpose of an inquiry under s 21, at which the quorum is 5 members or 3 members plus 2 assessors.[10]

23.  Under Part IIIAA which consists of the single provision of s 20BA, the Council may establish such committees it thinks fit for the better performance of its duties and exercise of its powers.  Specific provision is made for the Council to establish the following committees: (a) the Licentiate Committee;[11](b) the Education and Accreditation Committee;[12] (c) the Ethics Committee;[13] (d) the Preliminary Investigation Committee (“the PIC”);[14] and (e) the Health Committee.[15]

24.  The objective of the Council is 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. 

25.  The Council regulates the medical profession of Hong Kong through a system of registration which is established and governed by Part III of the Ordinance.  In order for a medical practitioner to practice medicine, surgery or midwifery in Hong Kong, he or she needs to be registered with the Council.[16] It is an offence for any person to fraudulently obtain registration[17] or practice medicine or surgery without registration.[18] To be a registered medical practitioner, certain stringent requirements have to be satisfied that principally ensure that a registrant is suitably qualified and experienced to practice medicine or surgery, and is a person of good character who is able to maintain an acceptable professional standard as a medical practitioner.[19] A Registrar maintains a General Register of medical practitioners who have met the professional standards and requirements as specified under the Ordinance.[20] The Registrar also maintains a Specialist Register of medical practitioners approved by the Council.[21] Registration entitles the registered medical practitioner to practice medicine, surgery and midwifery [22] but he or she is not permitted to do so unless he or she has been issued with a practicing certificate by the Registrar.[23]

26.  The disciplinary powers of the Council are found under Part IV of the Ordinance and the Medical Practitioners (Regulation and Disciplinary Procedure) Regulation, Cap 161E (“the Regulation”). However, there is no provision for the establishment of a disciplinary committee.  The disciplinary inquiry is conducted in the name of the Council. The Council is empowered to establish the PIC which has as its prime function to make preliminary investigations into complaints and to make recommendations to the Council for the holding of an inquiry under s 21 or to the Health Committee for conducting a hearing.[24] The former is concerned with whether a medical practitioner is fit and proper to practice medicine and the latter is concerned with whether a medical practitioner is physically or mentally fit to practice medicine.

27.  When a complaint is made or information received about a registered medical practitioner, the Secretary to the Council would submit the case to the Chairman, or in his absence, to the deputy Chairman, of the PIC who would make an assessment of the case.  It is open to the Chairman or the deputy Chairman not to proceed further with the case if it is assessed to be frivolous or groundless.  However, before the case is dismissed it needs to be discussed and agreed between the Chairman and deputy Chairman.  On an issue whether the registered medical practitioner is fit to the practice by reason of a physical or mental condition the matter is referred to the Health Committee, if it is decided it warrants investigation.[25]

28.  The PIC consists of a Chairman, a deputy Chairman, both of whom are elected by the Council among its members, 1 of the 4 lay members of the Council and 4 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.  A quorum for a meeting of the PIC is 3 members, with 1 member at least being a lay member of the Council.  The lay member holds office for 3 months while the other members hold office for 12 months.[26]

29.  If the Chairman or deputy Chairman is of the opinion that the case “gives to rise to a question as to whether a defendant has been guilty of misconduct in any professional respect”, he can require further particulars or clarification from the complainant which if not provided may result in the case not proceeding.  Otherwise, the case then proceeds to the PIC for consideration.  The Secretary will arrange a meeting of the PIC to consider the case and notify the defendant of the complaint and invite him or her to make any written explanations of the matter.[27] The PIC will meet to consider the case and 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.”[28]

30.  If the PIC decides to refer the case to the Council for inquiry it will notify the Chairman of the Council of the charge or charges into which an inquiry is to be held. At the direction of the Chairman, the Secretary will fix a date for the inquiry and give notice of it.[29]

31.  For the purpose of an inquiry under s 21, the Council can be constituted by a quorum of 5 members or no less than 3 members and 2 assessors.  The assessors are selected from a panel who have been appointed under s 21B(2).  In the conduct of an inquiry the Council powers include hearing, receiving and examining evidence on oath and summonsing any person to attend to give evidence or produce any document or other thing in his or her possession.  It also has the power to hold the inquiry in private or public and to order that all or any information relating to the inquiry not be disclosed. 

32.  So far as material s 21 provides:

“ (1) If, after due inquiry into any case referred to it by the Preliminary Investigation Committee, the Health Committee or the Education and Accreditation Committee in accordance with regulations made under section 33, the Council is satisfied that any registered medical practitioner-

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

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

(c) has obtained registration by fraud or misrepresentation; or

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

(e) has breached a condition previously imposed under paragraph (iv);

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

(g) where applicable, has procured his name to be included in the Specialist Register by fraud or misrepresentation,

the Council may, in its discretion-

(i) order the name of the registered medical practitioner to be removed from the General Register; or

(ii) order the name of the registered medical practitioner to be removed from the General Register for such period as it may think fit; or

(iii) order the registered medical practitioner to be reprimanded; or

(iiia) order that the name of the registered medical practitioner be removed from the Specialist Register; or

(iiib) order that the name of the registered medical practitioner be removed from the Specialist Register for such period as it may think fit; or

(iv) make any such order as aforesaid but suspend the application thereof, subject to such conditions as the Council may think it, for a period, or periods in the aggregate, not exceeding 3 years; or

(iva) make any such order as aforesaid (except an order under paragraph (iv)) and further order that such order take effect upon its publication in the Gazette if the Council is satisfied that it is necessary to do so for the protection of the public or in the best interest of the registered medical practitioner; or

(ivb) refer the case to the Health Committee; or

(v) order that a warning letter be served on the registered medical practitioner;

and may, in any case, make such order as the Council thinks fit with regard to the payment of the costs of the Registrar, the Secretary, any complainant or any person presenting the case to the Council or of the registered medical practitioner, and any costs awarded may be recovered summarily as a civil debt in accordance with the provisions of section 67 of the Magistrates Ordinance (Cap 227).

(2) For the purpose of subsection (1)-

‘due inquiry’ (適當的研訊) means an inquiry by the Council conducted substantially in accordance with procedure prescribed by regulations made under section 33.

…

(4A) A member of the Preliminary Investigation Committee who is also a member of the Council shall not attend a meeting of the Council whilst it is inquiring under this section into a complaint or information, in the preliminary investigation of which he took part.

(4B) Within 14 days after the conclusion of an inquiry under this section, the Council may, of its own initiative but not otherwise, review any decision or order made in the inquiry.

(4C) For the purpose of a review under subsection (4B), the Council may invite the parties to the inquiry and such other persons who have appeared before the Council in the inquiry to appear again before the Council, by themselves or by their counsel or solicitors.

(4D) On a review by the Council under this section, the Council may affirm, vary or revoke any decision or order made in the inquiry.

…”

33.  The specific power for a review is s 21(4B) and the procedure for it is provided under s 34 of the Regulation which reads:

“ (1) Where the Council has decided to review its decision under section 21 of the Ordinance and has decided to invite the parties to the inquiry to attend the review, the Chairman shall direct the Secretary to notify the parties in writing and invite them to appear before the Council at the time and place fixed for the holding of the review, and the Secretary shall comply with the direction.

(2) At the review, the Council may invite the parties to address the Council in such order as the Council thinks fit.

(3) Where the Council has invited the parties to attend a review, the Council may proceed with the review notwithstanding the absence of any party.

(4) After a review by the council under section 21(4B) or the Ordinance, the Chairman shall announce the Council’s latest decision in writing and direct the Secretary to serve a notice of the decision on the defendant and to notify the complainant accordingly.

(5)  The Secretary shall comply with a direction under subsection (4).”

34.  I will discuss in greater detail the review provisions but it is worth noting at this stage that there is a separate right of appeal by a registered medical practitioner who is aggrieved by a disciplinary order. The appeal provision under s 26 so far as material reads:

“ (1) Any registered medical practitioner who is aggrieved by any order made in respect of him under section 19, 19B, 21 or 21A may appeal to the Court of Appeal, and the Court of Appeal may thereupon affirm, reverse or vary the order the appealed against, or remit the case to the Council for an, or another inquiry…

(3) The practice in relation to any such appeal shall be subject to any rules of court made under the high Court Ordinance (Cap 4):

Provided that the Court of Appeal shall not have power to hear any appeal against an order made under section 21 or 21A unless notice of such appeal was given within 1 month of the service of the order in accordance with section 25 (1).

…

(5) In an inquiry held pursuant to the Court of Appeal remitting the case to the Council under subsection (1), the validity of the proceedings before the Council shall not be called into question by reason only that any member of the Council who was present in the former inquiry is not present in the current inquiry or that any member of the Council present in the current inquiry was not present in the former inquiry.”

35.  The provisions relating to the proceedings at an inquiry of the Council are set out under Part IV of the Regulation. They are comprehensive and provide strict procedures and formal requirements.  The Council has the discretion to open the inquiry to the public or to hold it in private.  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 opened by reading the notice of the inquiry to the Council and the charge against the defendant.  The procedure of the inquiry is provided by s 25.  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.  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.  If it is rejected by the Council, the defendant is required to state his case.  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 the Council have been proved to its satisfaction and whether the defendant is guilty of the offence charged.

36.  The Chairman is required to announce the Council’s decision and in such terms 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.  The defendant will be invited to address the Council by way of mitigation and may adduce evidence as to the charge or personal background of the defendant.  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.

37.  It is quite apparent that the conduct of an inquiry is formal and generally follows the procedure applicable to a criminal case where a person stands accused of serious professional wrongdoing. There are a number of steps in the process that may require a decision or order.

The applicant’s submissions

38.  The applicant in its submissions focuses on the wide power of the Council over the registration and conduct of medical practitioners and in particular its power to order the removal of a registered medical practitioner from the General Register with or without a disciplinary inquiry.  It is argued by the applicant that the intention of the legislative scheme is that the power of removing the name of a registered medical practitioner from the General Register is so important that it can only be exercised by the Council and that the legislature conferred on the full Council the power of rehearing evidence in discharging its duties of reviewing or hearing an appeal from one of its established committees. 

39.  The applicant contends that the reference to Council in section 21(4B) referred to the full Council as appeals from decisions of certain specified committees are heard by the full Council.  In support of his argument, he noted that any person who is aggrieved by a decision of the Licentiate Committee, the Education and Accreditation Committee or the Health Committee may appeal to the Council, which, upon the hearing of the appeal may confirm, vary or revoke[30] or may affirm, vary or reverse the decision of the Committee in question.[31]  In the case of an appeal against the decision of the Education and Accreditation Committee or the Health Committee, the Council may invite the appellant to appear before it to give further submission or to allow a legal representative to appear on behalf of the appellant.[32]

40.  The point against this argument is that the disciplinary powers of the Council range in scope and degree from a warning letter to removal from the General Register and that this is dealing with a situation where a committee has dealt with a matter that the statute provides can go on appeal to the Council whereas in this case it is the Council itself that has conducted the inquiry, albeit with a different composition and quorum.

41.  Section 21(4B) provides that within 14 days after the conclusion of any inquiry the Council may, of its own initiative but not otherwise, review any decision or order made in the inquiry.  That seems to me to be a reference to the Council conducting the inquiry.  The Council conducting the inquiry is aware of the decisions or orders it has made in the inquiry and only the Council conducting the inquiry would be in a position and appropriately informed to take its own initiative to review a decision or order.  It should be stressed that the power of review is to be taken only at the Council’s own initiative.  The expression “but not otherwise” eliminates any other method or mechanism to trigger a review.  I interpret the expression “of its own initiative” to mean that the Council, can on its own violation review a decision or order it has made.  It should also be stressed that the power of review can only be taken within 14 days after the conclusion of an inquiry. And with such a short time for it, it can only sensibly be exercised by the Council conducting the inquiry.

42.  Professor Chan argues that the purpose of the review under s 21(4B) is to provide a prompt and simple means to remedy or revisit any of the decisions or orders of the Council in its inquiry without recourse to the full appellate process of the Court of Appeal under s 26, which could be both costly and time consuming.  He further argues that it was intended to correct patent mistakes rather than to have a protracted rehearing and deal with complicated factual or legal issue which should be reserved for an appeal.  With this I agree.  But the review power is only available to the Council and the right of appeal is only available to an aggrieved registered medical practitioner.  This indicates that the review power is limited both in terms of who can exercise it and the nature of the matters to be considered.  However, Professor Chan argues for the same reasons that because this power can only be invoked by the Council, and must be done within a specified period of time, it is a reference to the full Council.  He principally relies on the definition under s 2(1) and that a term defined in the Ordinance shall carry the same meaning throughout the Ordinance.  With this I disagree.  The very points Professor Chan made about the purpose of the review undermine his submission that the Council in this context referred to the full Council.  It seems to me that if the purpose of the review is to provide a prompt remedy to correct any patent mistakes or errors in relation to any decisions or orders in the inquiry that that can only be appropriately done by the Council that conducted the inquiry.

43.  The other difficulty that Professor Chan has with this argument is that “Council” does not have the same meaning throughout the Ordinance and a meeting of the Council for the purpose of an inquiry can have a composition and quorum as specified which is different to a meeting of the full Council.  A Council of inquiry is still the Council as defined but differently constituted for the purpose of conducting an inquiry.

44.  Pursuing the theme that the legislation establishes one jurisdictional body known as the Council under s 3, Professor Chan argues that if the reference to Council was to mean an inquiry panel, the legislature would have employed such a description in the section and that there is nothing to suggest that the reference to Council should not mean the full Council but an inquiry panel set up by the Council under s 21.  He argues that there is no separate body conducting an inquiry as this function is exercised under the umbrella of the Council.  There is no disagreement with this proposition.  The Council can meet for different purposes and different requirements may apply.  As I have pointed out there are three distinct features in the legislation that make it clear that “Council” is a reference to the Council conducting the inquiry.  First it is a review power to remedy or revisit any decision or order of the Council in inquiry.  Secondly it has to be instigated within 14 days.  Thirdly it can only be invoked by the Council on its own initiative.  This all points to the Council being the Council that conducted the inquiry. 

45.  Section 34 of the Regulation deals with the review by the Council.  Subsection (1) provides that where the Council has decided to review “its decision” under s 21 and has decided to invite the parties to the inquiry to attend the review, the Chairman shall direct the Secretary to notify the parties inviting them to appear before the Council of the review.  Subsection (4) provides that after a review by the Council, the Chairman shall announce “the Council’s latest decision” in writing and direct the Secretary to serve a notice of the decision on the defendant and notify the complainant accordingly.

46.  Under s 21B(1), for a disciplinary inquiry, either 5 members of the council, or not less than 3 members of the council and to assessors to be appointed from a panel of assessors, shall form a quorum.  It is argued by the applicant that this section is an enabling provision to provide as a matter of convenience the means by which the Council can effectively conduct its business by a smaller number of members and therefore does not affect the status of the Council in a disciplinary inquiry.  The applicant also argues that the panel of assessors serves as a pool of reserves to supplement members of the Council for the purpose of conducting an inquiry under s 21 and the composition is modelled on that of the Council.  It is pointed out that the presence of assessors is not mandatory as a disciplinary inquiry can be conducted by members of the Council only and in any event assessors will only be in the minority as the majority have to be registered medical practitioners. 

47.  The starting point is s 21(4B) which states that within 14 days after the conclusion of an inquiry, “the Council may, of its own initiative but not otherwise” review any decision or order made in the inquiry.  The time limit of 14 days is of short compass deliberately to limit this power by requiring that it be made promptly.  Clearly, this can only be done by the Council conducting the inquiry for it knows the decisions or orders that it has made and only it can respond in the time fixed. 

48.  The power relates to “any decision or order made in the inquiry” and therefore covers decisions or orders made in the course of it.  Even though the power can only be invoked at the conclusion of the inquiry, it extends to any decision or order made in the inquiry.  This would only be a matter that the Council conducting the inquiry would have first‑hand knowledge of such a decision or order and the need to address by way of a review at the conclusion of the inquiry.

49.  The important feature of this provision is that this power can only be initiated by the Council.  It cannot be initiated by individual members of the Council or by anyone else for that matter.  It is meant to be limited to the Council conducting the inquiry and by that body as a whole (by majority vote).

50.  Under s 21(4C), it is stated that for the purpose of the review, the Council may invite the parties to the inquiry and any person who appeared before the Council in the inquiry “to appear again before the Council”.  I interpret this to mean that the Council conducting the inquiry in carrying out a review can invite a party or person to appear “again” before it. 

51.  Section 34 of the Regulation to my mind makes it clear that “Council” is the “Council conducting the inquiry”.  Insofar as material under subsection (1) it states: “Where the Council has decided to review its decision under s 21 of the Ordinance and decided to invite the parties to the inquiry to attend the review…” The expression “its decision” is a reference to the decision of the Council conducting the inquiry.  Also in subsection (4), it states that after the review “the Chairman shall announce the Council’s latest decision” which again in my view is a reference to the Council conducting the inquiry.

The disciplinary powers of the Council

(a) The meaning of “Council”

52.  The definition of “Council” is set out in s 2(1) which reads:

“ In this Ordinance, unless the context otherwise requires-

‘Council’ means the Medical Council of Hong Kong established under section 3;”

53.  The specific argument that Professor Chan was putting on behalf of the applicant was that in general, a defined term in an ordinance carries a consistent meaning whenever it is used and therefore whenever Council is mentioned in the Ordinance it means the full Council as provided under s 3.  Mr Stewart Wong, SC, who appears with Mr Wilson Leung, for the respondent, responds by first, noting that Professor Chan qualified this proposition by stating that it applies “in general”, secondly, by highlighting that the definition provision is itself qualified by providing “unless the context otherwise requires”, and thirdly, by noting that there are numerous examples in the Ordinance where “Council” is not the full Council.  I agree with Mr Wong’s submissions. Whilst there is one “Council”, it may meet for different purposes where provision is made for a different quorum and even a different composition, as seen with the “Council for the purpose of an inquiry under s 21” which may include 2 assessors who are not members of the Council and must include 1 lay person .

54.  The legislation provides that the Council meets in different capacities and for different purposes and that is apparent from a reading of s 4 which is concerned with the conduct of meetings of the Council. It reads:

“ (1) The Council shall meet at such times and such places as the Chairman may appoint.

(2) Except in an inquiry under section 21, in an appeal hearing under section 20F, 20O or 20W, or in an election petition under the Election Regulation as defined in section 3, at any meeting of the Council 13 members shall be a quorum.
(2A) In a meeting of the Council to hear an appeal under section 20F, 20O or 20W or an election petition under the Election Regulation as defined in section 3, 5 members shall be a quorum.
(3) The validity of any proceedings of the Council shall not be affected by any vacancy among the members thereof or by any defect in the appointment of a member thereof.
(4) All questions coming or arising before a meeting of the Council shall be decided by a majority of the members of the Council present and voting thereon.
(4A) Except for an inquiry under section 21, for an appeal hearing under section 20F, 20O or 20W and for an election petition under the Election Regulation as defined in section 3, the Council may transact any of its business by circulation of papers without meeting; and a resolution signed by all the members of the Council for the time being present in Hong Kong is as valid and effective as if it had been passed at a meeting by the votes of the members so signing.
(5) The Chairman at any meeting of the Council shall have an original vote and also, if upon any question the votes shall be equally divided, a casting vote except in an inquiry under section 21 at which he shall have only an original vote.
(6) The Council may make standing orders for regulating the procedure at, and in connection with, its meetings.”

55.  Mr Wong argues that “Council” takes on a different meaning in terms of membership, constitution and how it discharges its functions under Part IV entitled “Inquiries, Disciplinary Proceedings and Offences”.  He points out that s 21(1) provides that if, after due inquiry, “the Council is satisfied that any registered medical practitioner” has been convicted of an offence punishable with imprisonment, or is guilty of professional misconduct, and so on, then “the Council may, in its discretion” impose a disciplinary order as specified.  He argues that the word carries a specific meaning with respect to the Council as constituted for the purpose of an inquiry under s 21.  He points out that there are at least five instances where Council is different from the general meaning in terms of its constitution and how it discharges its functions.  First, the Council as constituted for the purpose of an inquiry under s 21 may include assessors. Whereas the full Council consists of 28 Council members and does not include assessors.[33] Secondly, the quorum of the Council for the purpose of an inquiry under s 21, is either 5 Council members or 3 Council members plus 2 assessors.  Whereas the quorum for the full Council is 13 Council members.[34]  Thirdly, the quorum is only satisfied if at least 1 lay member is present.  There is no such requirement for the full Council.[35] Fourthly, the full Council may transact its business by circulation of papers without holding a meeting.  A meeting of the Council for the purpose of conducting an inquiry under s 21 may not transact its business this way.[36]  Fifthly, the Chairman of the full Council has a casting vote in the event that the votes are equally divided, but by contrast, no casting vote is given to the Chairman at an inquiry and if the votes are equally divided the relevant question is deemed to be decided in the defendant’s favour.[37]  Mr Wong emphasised in his submissions that there is no inquiry panel or committee separate from the Council as was initially argued by the applicant.  He stresses that the only point that needs to be resolved is whether the power to review vests with, and is only exercisable by the Council as constituted by the members and assessors of the inquiry.  He also stresses that the references to Council under Part IV of the Ordinance are to the Council conducting the inquiry and not to the full Council.  He sets out instances where this is clearly the case in various provisions which deal with the Council conducting the inquiry exercising various powers and functions in the holding of the inquiry.[38]  I have not set out these provisions in full but it is clear that they are references to the Council conducting the inquiry.

56.  Mr Wong submits that the clear legislative intention of having the Council constituted to conduct an inquiry, involving a hearing and the receiving and consideration of evidence, would also have the power to review a decision or order it made and not the full Council.  He explains that a s 21 inquiry can be protracted and may involve many procedural steps and hearings which the members of the Council conducting the inquiry would be familiar with and therefore best able to deal with a review in the time required.  He notes that there is the power under a review to summons a witness to give evidence and he contends that this can only be done by the Council that conducted the inquiry and not the full Council.[39]

57.  Mr Wong also points out that under Part IV of the Regulation, entitled “Proceedings at an Inquiry of Council”, nearly all the references to the “Council” are clear references to the Council conducting the inquiry.  I agree with him.  The various sections deal with matters to be decided or handled by the Council conducting the inquiry such as to whether to have a hearing open to the public or in private and the procedures to be followed in the conduct of the proceedings of an inquiry.[40]

58.  The respondent has demonstrated that under the provisions of the Ordinance and the Regulation, references to the Council are to the Council conducting the inquiry. It must be acknowledged however there are times when there is confusion about the term “Council” and the legislation would benefit if it was made clearer.  Putting the legislative provisions in their context and the purpose they seek to serve, I am of the view that the arguments mounted by the applicant that the full Council is consistently used in the legislation are not well founded.  It is not simply an exercise of taking the definition of the “Council” and reading that definition into the relevant provisions. Context and purpose need to be considered. 

(b) The Council conducting the inquiry

59.  The key provisions that define what is meant by the “Council” conducting the inquiry are ss 21 and 21B.  I have already discussed s 21B which deals with the composition and quorum of a meeting of the Council for the purpose of an inquiry. I briefly turn to s 21, as a careful analysis of the relevant provisions further reveals that the review power is to be exercised by the Council conducting the inquiry. Under subsection (4A), it provides that a member of the PIC which carried out the preliminary investigation of the case, who is a member of the Council, shall not attend a meeting of the Council whilst it is inquiring under s 21 into the complaint or information.  This makes it abundantly clear that there is a distinction between the full Council and the Council in inquiry. 

60.  The next subsection (4B) deals with the power to review.  The points in support of the Council conducting the inquiry having the power of review have been repeated in this judgment. I agree with Mr Wong’s submissions that in the context of this provision the Council is a reference to the Council that conducts the inquiry.

61.  Subsection (4C) provides that for the purpose of a review, the Council may invite the parties to the inquiry and any other persons who appeared before the Council in the inquiry to appear again before the Council.  The use of the word “again”, I interpret to mean that the parties or persons are to come back before the same Council that conducted the inquiry.

62.  Subsection (4D) provides that on a review by the Council under this section, the Council may “affirm, vary or revoke any decision or order made in an inquiry”.  The first point is that it states that this is a review of the Council under s 21 and is therefore a reference to the Council conducting an inquiry.  The second point is that a reference to “a decision or order made in the inquiry” could be open-ended and maybe one of several decisions or orders made in the inquiry.  Again, this could only be dealt with by the Council conducting the inquiry.

(c) The power to review

63.  According to the applicant’s argument, if the review power is that of the full Council, it would mean it could overturn a decision or order which is either made during the course of the inquiry or at the conclusion of it.  It is important to note that the review power can only be initiated and exercised by the Council.  The right of appeal is only provided to an aggrieved registered medical practitioner.  In my view, the legislative intention behind the review provision is to provide a prompt mechanism for the Council conducting the inquiry to remedy or revisit a decision or order made in the inquiry. This stands in juxtaposition with the right of appeal to an aggrieved party to contest the final decision or order. 

64.  There is no dispute between the parties that the review power is to provide a mechanism for speedy and simple correction of a mistake or error made in the inquiry process.  In such circumstances this could only be done by the Council conducting the inquiry.  The full Council would not be in a position to deal with such a matter and especially where there is a strict time limit of 14 days. 

(d) He who decides must hear

65.  Authority has been put before me addressing the principle of “he who decides must hear”.  I do not find the issues and principles discussed in these cases of assistance in this case.  It depends very much on the statutory scheme that is in place, the nature of the decision to be made, and when, how and by whom it is to be made.  It is highly relevant to look at the legislative setting that underpins the basis for the making of the decision. 

66.  In this instance, we are concerned with a review of a decision or order that has been made in the course of an inquiry.  It has been made clear that the issue in this case is a question of statutory interpretation as to which body is to conduct the review.  That I have addressed elsewhere in the judgment. 

(e) Lay person participation

67.  The legislature has decided that lay person participation is an essential and important feature in an inquiry under s 21 and more so than in other business conducted by the Council. 

68.  This is evidenced by the following matters.  First, a meeting of the Council held for the purpose of an inquiry cannot have a quorum unless there is at least 1 lay person present.[41] This is to be contrasted to other meetings of the Council which do not require that a lay person be present.[42] Secondly, a panel of 14 assessors is established for the sole purpose of participating in disciplinary inquiries, all of whom are non-members of the Council and consist of 10 registered medical practitioners and 4 lay persons. Thirdly, the legislature has made it clear that a meeting of the Council for an inquiry which includes assessors is deemed valid and effectual as if it was one conducted only by members of the Council.[43]

69.  It would seem that the legislative intent of making it mandatory to have a lay person participate in a Council inquiry, could be undermined by a review of the full Council which can be conducted without lay member participation.

Conclusion

70.  As I interpret the relevant provisions of the Ordinance, it establishes one entity known as the Council.  It can meet for the purpose of conducting its general duties and functions as set out in the legislation.  A meeting of the Council for this purpose requires a quorum of 13 Council members.  It can also meet for the purpose of an inquiry under s 21.  A meeting of the Council for this purpose requires a quorum of either 5 Council members or not less than 3 Council members or 2 assessors.  It is implicit from s 21B that a meeting of the Council for the purpose of an inquiry can include non‑members being assessors selected from a Council appointed panel.  Confusion is created by the dual capacities of the Council, and given the importance that allegations of professional misconduct against a registered medical practitioner be dealt with promptly and properly, it is in the interests of all concerned that this responsibility be exercised by a clearly defined and separate body with appropriate powers and functions.  The legislation provides for the representation of lay persons in the disciplinary processes but this is overshadowed by various professional interests which may be more pronounced in some instances than in others.  The imperative is that there be a fair and efficient system of handling complaints of professional misconduct by registered medical practitioners which provides just results and prompt resolution of cases.

71.  I agree with the submissions of Mr Wong that the expression “the Council” in the context of s 21(4B), properly interpreted, means the Council consisting of those Council members and assessors (if any) who participated in the relevant s 21 inquiry and therefore does not mean the whole of the Council.  I come to this conclusion for the reasons I have given and which can be summarised as follows:

(1) A meeting of the Council may be for the purpose of conducting an inquiry under s 21 which is distinguishable from other meetings of the Council.

(2) The word “Council” in Part IV of the Ordinance, including s 21(4B) and the regulations has the same meaning in that it means a meeting of the Council for the purpose of an inquiry under s 21 which has a different quorum and composition (as it may include assessors and must have the participation of 1 lay person) from the meaning of “Council” in s 2(1) which under s 3 consists of 28 members with a quorum of 13.

(3) In the context of s 21(4B) and s 34 of the Regulation the power of review is that of the Council conducting the inquiry. 

(4) The review provision under s 21(4B) puts a time limit of 14 days after the conclusion of an inquiry for the Council to initiate a review of a decision or order made in the inquiry. It also puts a restriction on who can exercise this power.  It can only be done by the Council on its own initiative. In light of the time limit and the restriction, as a matter of common sense and practicality, a review can only be done by the Council conducting the inquiry.   

(5) The conduct of a review, which by its nature is a simple and summary procedure for the correction of any patent errors or mistakes, and not a rehearing or relitigation of the matter, must have been intended to be done by the Council conducting the inquiry which made the original decision or order.

(6) It is the clear legislative intent that the participation of non-members of the Council is contemplated in the disciplinary processes and this would be defeated by a review of the full Council. As provided under s 21B (2), the Council conducting the inquiry may include 2 assessors from a panel “for the purpose of conducting an inquiry under section 21.”          

72.  Accordingly, the application for judicial review is dismissed.  However, the application has raised a matter of public interest in that it sought to clarify the power of review of a decision or order of a disciplinary inquiry and has brought into sharp focus the need for reform of the legislation in order to eliminate any ambiguity or uncertainty in the powers and the functions of the Council in the conduct of disciplinary action against a registered medical practitioner.  Professor Chan in his comprehensive submissions mounted strong argument for the contentions he was putting on behalf of the applicant and highlighted certain deficiencies in the structure and wording of the legislation.  I accept there are instances where the provisions mention the Council without making it clear whether it is a meeting of the Council generally or a meeting of the Council holding an inquiry under s 21.  This is apparent under Part IV of the Regulation when dealing with sentencing of a defendant, which is not at first very clear, even though I have concluded that it is a reference to the Council in the context of proceedings of an inquiry.  It is for the reasons that I have just explained that I make an order nisi that each party bear their own costs.

73.  It remains for me to thank counsel for their erudite and thorough submissions.

[1] The application for leave to apply for judicial review was refused on 11 July 2012 by Macrae J (as he then was). The refusal of leave was appealed to the Court of Appeal (Cheung CJHC, Lam JA (as he then was) and McWalters J) in CACV 164/2012 which on 13 March 2013 allowed the appeal and granted leave to apply for judicial review.

[2] See Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144. 

[3] Section 3(1).

[4] Section 3(2).

[5] Section 3A.

[6] Section 3B.

[7] Section 4.

[8] Section 4(2).

[9] Section 4(2A). 

[10] Section 21B(1).

[11] Part IIIA.

[12] Part IIIB.

[13] Part IIID.

[14] Part IIIE.

[15] Part IIIF.

[16] As a matter of completeness there is separate legislation that governs the practice of Chinese Medicine under the Chinese Medicine Ordinance, Cap 549.  See s 31. 

[17] Section 27.

[18] Section 28. I note that the provision only refers to the practice of medicine or surgery but makes no mention of midwifery as sometimes included in provisions of the Ordinance.

[19] Section 8.

[20] Sections 7, 7A, 8, 9, 10A, 12 and 13.

[21] Section 6(3) and (4) and Part IIIC.

[22] Section 16. 

[23] Section 20A.

[24] Section 20T.

[25]Section 6 of the Regulation.

[26]Section 20S.

[27] Section 9 of the Regulation.

[28] Section 11(8) of the Regulation.

[29]Section 13 of the Regulation.

[30] Section 20F.

[31] Sections 20O and 20W.

[32] Sections 20O (2) and 20W(2).

[33]See s 21B(2) and (3) and compare with s 3(2).

[34]See s 21B(1) and compare with s 4(2).

[35]See s 21B(1) and compare with s 4(2).

[36]Section 4(4A).

[37] Section 4(5) and s 32(3) of the Regulation.

[38]Sections 21(2), (2A) and (3), 22(1) and (4), 23 and 25(1A).  See also ss 25, 26, 27, 28, 29, 30, 31, 32, 33, and 34 of the Regulation.

[39]Section 22(1)(b).

[40]Section 19, 22(1), 23(1)-(2), 24, and 25-34 of the Regulation.

[41]Section 21B(1).

[42]Section 4(2).

[43]Section 21B(3).