LEUNG WAI KUEN v. PRELIMINARY INVESTIGATION COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG

HCAL 2216/2020

[2021] HKCFI 132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2216 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of the decision (“the Decision”) of the Preliminary Investigation Committee (“PIC”) of the Medical Council of Hong Kong (“the Council”) made under s 11(8) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap 161E (“the Regulations”) on 11 September 2020 and conveyed to the Applicant by a letter dated 9 October 2020 that no inquiry by an inquiry panel would be held in respect of the Applicant’s complaint against Dr Tang Yue Hin.

FAILURE TO STATE THE GROUNDS ON WHICH RELIEF IS SOUGHT

2.  In the Form 86 dated 4 November 2020, the Applicant states that he seeks an order that the Decision be quashed and that the PIC be compelled to refer his complaint against Dr Tang to an inquiry panel for inquiry under s 21 of the Medical Registration Ordinance, Cap 161 (“the Ordinance”). The Applicant has, however, failed to set out the grounds on which relief is sought in the Form 86, as required by Order 53, r 3(2)(a)(iii) of the Rules of the High Court, Cap 4A.  Neither has he identified any grounds on which relief is sought in his affirmation dated 4 November 2020.  The Applicant only sets out his grounds of judicial review in §4 of the Skeleton Argument of the Applicant dated 4 November 2020.  This is not a proper compliance with the requirement of Order 53, r 3(2)(a)(iii) of the Rules of the High Court.

3.  As has been pointed out by this court on many previous occasions, including in Yeung Wah Wai v Long Team Ltd [2020] HKCFI 1530, at §1, the requirement of Order 53, r 3(2)(a)(iii) of the Rules of the High Court is mandatory, not discretionary.  In Right to Inherent Dignity Movement Association v HKSAR Government, HCAL 74/2008 (unreported, 21 August 2008), Lam J (as he then was) also said the following at §§27 and 28:

“[27] The five points made by Mr Ma are based on his misconceived notion regarding the requirements of a leave application and the stage of readiness an applicant should achieve before an application is filed. As stated by the Chief Justice in Po Fun Chan, the issue before the court at the leave stage is whether the case of an applicant is reasonably arguable. That is to be considered without regard to the evidence to be filed by the putative respondent. The court is to examine the arguments of an applicant to see if they carry any real prospect of success. Order 53 and Practice Direction SL 3 set out clearly what an applicant should include in the Form 86A and the evidence to be filed.

[28] It is the duty of an applicant to set out in the Form 86A all the grounds he wishes to rely upon. In the present context, the Applicants should set out all the grounds to support their assertion that the requirements in Order 53 Rule 3 are unconstitutional. The judge considering the leave application cannot proceed on any other basis. It is not for the judge to speculate whether the Applicants could have other unspecified grounds which they might wish to rely upon.” [emphasis added]

4.  The failure of the Applicant to set out the grounds on which relief is sought in the Form 86 is a sufficient basis to refuse the present application for leave to apply for judicial review.  For the sake of completeness, I shall briefly deal with the grounds of judicial review mentioned in Skeleton Argument of the Applicant after I have set out the basic facts of this case.

BASIC FACTS

5.  The background of the Applicant’s complaint against Dr Tang has been set out in the judgment of the Court of Appeal in Leung Wai Kuen v Secretary for Justice, CACV 562/2019 (unreported, 25 September 2020), at §§2-6:

“[2] After a vacation in Australia, the applicant returned on a Qantas Airways (‘Qantas’) flight, QF 97, from Brisbane to Hong Kong on 21 December 2018. During the flight, the applicant was alleged to have behaved in a manner that caused disturbance to other passengers. Consequently, members of the crew put the applicant under restraint on the plane.

[3] After the plane had landed in Hong Kong on 21 December 2018, the applicant was sent to the Accident & Emergency Department of the North Lantau Hospital (‘NLH’), where he was assessed by the psychiatry team, with an impression of suspected psychosis with persecutory delusion, with a necessity to rule out underlying organic causes. The psychiatry team considered compulsory admission to Kwai Chung Hospital (‘KCH’) to be warranted if the organic workup should be unremarkable.

[4] On 22 December 2018, the applicant was transferred to the PMH. On 27 December 2018, the applicant was further transferred to KCH, following an order by a District Court judge for his removal to the Psychiatric Observation Unit of the KCH for retention and observation under the Mental Health Ordinance (Cap 136) (‘MHO’). The applicant was eventually discharged from the KCH on 23 January 2019.

[5] The matter that gave rise to the applicant’s complaint was his stay at the PMH from 22 to 27 December 2018, which he said was against his wish.

[6]  In this connection, after his admission to the PMH on 22 December 2018, various workup including electrocardiogram, computer tomography of the brain (which showed an organic issue which was known to have existed since 2001), blood tests etc were arranged on the same date for the purpose of ruling out any underlying organic causes for the applicant’s condition.  According to the Report, the applicant became un-cooperative and kept asking to be discharged from 23 December 2018.  He scolded and threatened to sue and cause trouble to Dr Tang when the doctor examined him on 24 December 2018.  On 24 December 2018, the applicant was re-assessed by the psychiatry team, which recommended an application for compulsory admission to the KCH to be made.  Both Dr Tang and the psychiatry team contacted the applicant’s family (younger sister and brother-in-law). However, the arrangement for compulsory admission to the KCH was withheld on 24 December 2018 while the neurosurgery team was brought in and consulted to assess the organic issue on 25 December 2018.  In-patient electroencephalography was also scheduled for the applicant.  The neurosurgery team concluded that there was no need for any neurological intervention and recommended the applicant to be followed up at the Queen Mary Hospital.  The neurosurgical team’s recommendation as well as the plan for making a court application for compulsory admission to the KCH if the electroencephalography should be unremarkable was explained to the applicant’s younger sister at bedside on 25 December 2018.  However, on 27 December 2018, the applicant refused to undergo the electroencephalography or to sign on the refusal form.  The presumptive diagnosis, the unremarkable organic workup and the plan for compulsory admission to the KCH by the psychiatry team were explained to the applicant himself.  He requested to see the judge.  The application to the District Court was made and granted, after the judge interviewed the applicant as per his request, on 27 December 2018.”

6.  By a letter to the Council dated 2 October 2019, the Applicant made a complaint (“the Complaint”) against Dr Tang, alleging that Dr Tang detained him in Princess Margaret Hospital (“PMH”) from 22 December 2018 to 27 December 2018, and took steps to send him to Kwai Chung Hospital (“KCH”).

7.  By a letter to the Applicant dated 29 November 2019, the Secretary of the Council (“the Secretary”) informed the Applicant that the Complaint would be referred to the Chairman (“the Chairman”) of the PIC for consideration in accordance with s 6 of the Regulation.

8.  In due course, the Chairman directed (i) the Secretary to collect the Applicant’s medical records/reports, and (ii) the Applicant to provide an original statutory declaration in accordance with s 8 of the Regulation to support the Complaint.  The Applicant refused to give his consent to the Secretary to collect his medical records/reports, but returned a statutory declaration dated 24 February 2020.

9.  Having considered the statutory declaration together with the Complaint and noting the Applicant’s refusal to give his consent to the Secretary to collect his medical records/reports, the Chairman directed that the Complaint should be referred to the PIC for consideration in accordance with s 9 of the Regulation.  The Applicant was informed of the same by a letter dated 15 May 2020.

10.  On 16 June 2020, the Secretary issued a Notice of Meeting of the PIC to Dr Tang to inform him that a meeting of the PIC would be held for consideration of the Complaint, and gave him an opportunity to submit any written explanation or provide any information on any relevant matter on or before 16 July 2020.

11.  By a letter to the PIC dated 14 July 2020, Mayer Brown on behalf of Dr Tang responded to the Complaint and provided various medical records from NLH and PMH and other relevant documents, including:

(1)  Form 1 - Application under s 31 of the Mental Health Ordinance, Cap 136 (“MHO”) for removal of a patient to a mental hospital for the purpose of detention and observation;

(2)  Form 2 - Certificate of a medical practitioner in support of the application; and

(3)  Form 3 - Order by a District Judge or Magistrate authorizing the removal of a patient to a mental hospital for the purpose of detention and observation,

to the PIC for its consideration.

12.  The following facts and matters appear from Mayer Brown’s submission and the aforesaid medical records and documents:

(1)  The Applicant was suspected of suffering from psychosis with persecutory delusion before admission to PMH.

(2)  On 22 December 2018, the Applicant was admitted to PMH for psychiatric assessment and organic workup in order to determine whether an application for the Applicant’s compulsory admission to KCH, a mental hospital, should be made pursuant to the MHO.

(3)  The Psychiatric Consultation Liaison Note of PMH dated 24 December 2018 stated the following -

“Impression and Suggestion: Mr Leung is likely having psychosis with persecutory delusion. Documented to cause nuisance on the flight and needed to be physically restrained. Observed to be emotionally unstable in ward and cause nuisance to ward staff. Relatives do not support psy admission but there is no concrete management plan on his psychiatric problems. Please proceed the compulsory admission to KCH as suggested by last psy consultation.”

(4)  On 27 December 2018, an application for the removal of the Applicant to KCH for the purpose of detention and observation was made under s 31(1) of the MHO (Form 1).

(5)  In support of the application, Dr Tang signed a “Certificate of a Medical Practitioner in support of an Application for Removal of a Patient to a Mental Hospital for the Purpose of Detention and Observation” dated 27 December 2018 (Form 2), in which Dr Tang stated that he last examined the Applicant on 27 December 2018 and was of the opinion that the Applicant was suffering from mental disorder of a nature or degree which warranted his detention in a mental hospital for observation for at least a limited period, and ought to be detained in the interests of his own health or safety.

(6)  In the Form 2, Dr Tang stated that he expressed his opinion on the following grounds -

“Patient has history of persecutory delusion and psychotic symptoms for over 10 years. He presented to hospital on 22 Dec 2018 because of agitation, yelled aloud and disturbing other passengers on flight while he took flight from Australia to Hong Kong.

After admission, he is agitated, uncooperative, hostile towards medical and nursing staffs.  He yelled aloud and wandered in ward.  Organic workup including ECG, CT brain and blood tests are unremarkable.  He is assessed by psychiatrist and suggest probably patient has psychosis with persecutory delusion.  Psychiatrist suggested compulsory admission to Kwai Chung Hospital for further observation.”

     Dr Tang further gave the following reasons for his opinion -

“Psychosis with persecutory delusion, agitated and hostile.

He has no insight about his mental problem.

He has been assessed by psychiatrist and suggest patient probably has psychosis with persecutory delusion.

Psychiatrist suggest compulsory KCH admission for further management.”

(7)  By an order (“the Order”) made pursuant to s 31(1B) of the MHO dated 27 December 2018, Ms Ada Yim Shun-yee ordered the Applicant to be removed to KCH for the purpose of detention and observation for a period of not exceeding 7 days (Form 3).

13.  The PIC considered the Complaint at a meeting held on 11 September 2020.  After deliberation and consideration of all information presented, the PIC made the Decision.  The following is recorded in the minutes of the meeting:

“… The Committee noted from Dr TANG’s explanation that the patient was under the care of a team of doctors and nurses (‘the Team’) during his stay in the medical ward of PMH for psychiatric assessment and organic workup to determine whether an application for the patient’s compulsory admission to Kwai Chung Hospital should be made. An application was subsequently made and approved by the Court on 27 December 2018. The Committee considered that there was insufficient evidence to show a reasonable prospect of Dr TANG, as a member of the Team, being found guilty of misconduct in a professional respect. It was decided that the case should not be pursued further and no inquiry was to be held.”

14.  By a letter dated 9 October 2020, the Secretary informed the Applicant of the Decision of the PIC.  In that letter, the following was stated:

“As background information, may I explain that the Medical Council of Hong Kong (‘the Council’) is empowered by law to deal with complaints against registered medical practitioners touching on matters of ‘professional misconduct’. Any professional behaviour / practice falling short of the standards expected of a registered medical practitioner may be regarded as a misconduct in a professional respect. This includes, but is not limited to, anything which will be reasonably regarded as disgraceful, unethical or dishonourable by his professional colleagues of good repute and competency. It is for the Council to judge whether a medical practitioner has fallen short of the standards expected amongst doctors in the given circumstances and whether the falling short of standards would amount to misconduct in a professional respect.

Your complaint was considered by the Preliminary Investigation Committee (‘PIC’) of the Council at its meeting held on 11 September 2020.  Having carefully considered all the information presented, including your complaint and the written explanation by the solicitors on behalf of Dr TANG, the PIC noted that you were under the care of a team of doctors and nurses (‘the Team’) during your stay in the medical ward of Princess Margaret Hospital for psychiatric assessment and organic workup to determine whether an application for compulsory admission to Kwai Chung Hospital should be made.  An application was subsequently made and approved by the Court on 27 December 2018.  The PIC considered that there was insufficient evidence to show a reasonable prospect of Dr TANG, as a member of the Team, being found guilty of misconduct in a professional respect.  It was decided that the case should not be pursued further and no inquiry was to be held.”

15.  On 13 October 2020, the PIC received a written request from the Applicant seeking reconsideration of the Complaint.

16.  On 4 November 2020, the Applicant made the present application for leave to apply for judicial review of the Decision. The Applicant’s aforesaid request for reconsideration of the Complaint has been put on hold pending the outcome of the present application.

DISCUSSION

17.  The following grounds of judicial review are raised in §4 of the Skeleton Argument of the Applicant:

(1)  The Chairman of the PIC and the Secretary acted in bad faith, and they tried to protect Dr Tang by employing delaying tactics so as to make the Applicant give up his complaint against Dr Tang.

(2)  In reaching the Decision, the PIC took into account factors that ought not to have been taken into account and failed to take into account factors that ought to have been taken into account.

(3)  The PIC failed to provide adequate reasons for the Decision.  The PIC failed to consider all the facts and materials before it, and acted unlawfully and/or irrationally.

(4)  The PIC misdirected itself in law in reaching the Decision.  It based its decision on, inter alia, the fact that “An application was subsequently made and approved by the Court on 27 December 2018”.

(5)  Further or in the alternative, the Decision made by the PIC was so unreasonable that no reasonable authority would ever consider making it.

18.  As for (1), the allegation that the Chairman, the PIC and/or the Secretary acted in bad faith is without foundation.  There is also no proper basis for the Applicant to contend that they employed any delaying tactics with a view to causing the Applicant to give up his complaint against Dr Tang.  The Complaint was made in a letter dated 2 October 2019, and the PIC reached a decision on 11 September 2020.  Having regard to the chronology outlined above, the court does not consider that the Chairman, the PIC and/or the Secretary have been guilty of any delay or unreasonable delay in dealing with the Complaint.

19.  As for (2), the Applicant contends that the PIC ought not to have taken into account the following matters: (i) the Applicant was under the care of a team of doctors and nurses, (ii) during the Applicant’s stay in PMH, psychiatric assessment and organic workup were carried out to determine whether an application for compulsory admission to KCH should be made under the MHO, and (iii) an application was subsequently made and approved by the Court on 27 December 2018.  My views are as follows:

(1)  As stated in §5 of the Skeleton Argument of the Applicant, the Applicant’s complaints against Dr Tang as set out in the letter of 2 October 2017 were two-fold: (i) false imprisonment in PMH during the period from 22 December 2018 to 27 December 2018, and (ii) taking steps to send him to KCH.

(2)  Dr Tang and his colleagues, acting as a team, were empowered by ss 31 and 35A of the MHO to make an application, on the grounds set out in s 31(1), to a District Judge or Magistrate for the removal of the Applicant to a mental hospital for detention and observation, and were, in my view, also empowered to carry out necessary tests and medical assessments on or of the Applicant at PMH to determine whether such application should be made by virtue of s 40(1) of the Interpretation and General Clauses Ordinance, Cap 1, which provides that -

“Where any Ordinance confers upon any person power to do or enforce the doing of any act or thing, all such powers shall be deemed to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.”

(3)  In my view, the three matters referred to by the Applicant were relevant to a proper assessment of the complaints raised by the Applicant against Dr Tang, and the PIC was entitled to take them into account in coming to the conclusion that there was no reasonable prospect of Dr TANG, as a member of the Team, being found guilty of misconduct in a professional respect.

(4)  There is also no basis for contending that the Decision is flawed in a public law sense by reason of the PIC failing to take into account any relevant matters.

20.  As for (3), the reasons for the Decision given by the Secretary in the letter to the Applicant dated 9 October 2020 accurately reflected the PIC’s reasons for the Decision.  The question for the PIC was whether, having regard to all relevant materials, a real prospect of misconduct in a professional respect could be established against Dr Tang (see Law Yiu Wai Ray v The Medical Council of Hong Kong, HCAL 46/2015 (unreported, 12 October 2015), at §135).  The PIC concluded, on the basis of the materials and information before it, that there was insufficient evidence to show a reasonable prospect of Dr Tang being found guilty of misconduct in a professional respect.  This is a valid and sufficient reason for the Decision. It has not been shown that the Applicant has suffered any prejudice as a result of the brevity of the reason given by the PIC.  There is also no proper basis to contend that the PIC failed to consider all relevant facts and materials before it, or acted unlawfully or irrationally in making the Decision.

21.  As for (4), the fact that the application for the Applicant’s detention and observation at KCH under s 31 of the MHO was approved by a court was relevant to the complaint that Dr Tang wrongfully or improperly sent him to KCH.  I do not see how it can be said that the PIC misdirected itself in law in taking into account this matter.

22.  Lastly, as for (5), the threshold for a finding of irrationality in a public law challenge is a high one.  This is particularly so where the decision in question concerns an assessment of the professional conduct of a member of the profession by the professional body itself.  There is no valid basis on which the court can interfere with the PIC’s assessment that there was no real prospect of misconduct in a professional respect being established against Dr Tang on the facts of the present case.  The challenge against the Decision of the PIC on the irrationality ground is plainly unsustainable.

23.  In passing, I should mention that in the Skeleton Argument of the Applicant, it is alleged, inter alia, that (i) the Order was obtained by fraud, (ii) the signing of the Order by Ms Yim did not mean that she agreed that the Applicant was a mental patient, and (iii) Dr Tang committed the offence of false imprisonment:

(1)  In respect of the allegation that the Order was obtained by fraud, it should be noted that the validly of the Order was not subject to any legal challenge at the time when the PIC met to consider the Complaint (indeed, it is not a subject matter of review in the present application either).  The PIC was entitled, and bound, to accept the Order as being a valid order of the court which authorized the detention of the Applicant for observation at KCH.  The allegation that the Order was obtained by fraud is, in any event, without proper foundation.

(2)  In respect of the suggestion that the signing of the Order by Ms Yim did not mean that she agreed that the Applicant was a mental patient, it is clear that, by making the Order, she was satisfied on the materials before her that there were grounds to believe that the Applicant was suffering from mental disorder of a nature or degree which warranted his detention in a mental hospital for observation for at least a limited period of time, and ought to be detained in the interests of his own health or safety as stipulated in s 31(1)(a) and (b) of the MHO.

(3)  In respect of the allegation that Dr Tang committed the offence of false imprisonment against him -

(a)  Under s 69 of the MHO -

“(1) Where a person has made application for the removal or detention of any person under the provisions of this Ordinance, or signed or carried out, or done any act with a view to signing or carrying out, an order purporting to be an order for removal or detention, or any report, application, recommendation, or certificate purporting to be areport, application, recommendation, or certificate under this Ordinance, or has done anything or given any advice in a professional capacity in pursuance of this Ordinance, he shall not be liable to any civil or criminal proceedings whether on the ground of want of jurisdiction or on any other ground unless he has acted in bad faith or without reasonable care.

(2)  No proceedings, civil or criminal, shall be brought against any person in any Court in respect of any such matter as is mentioned in subsection (1), without the leave of the Court, and leave shall not be given unless the Court is satisfied that there is substantial ground for the contention that the person, against whom it is sought to bring the proceedings, has acted in bad faith or without reasonable care.”

(b)  As pointed out by the Court of Appeal in 陳碩謙對醫院管理局, CACV 189/2012 (unreported, 16 October 2014) at §46 -

“The matters covered by s 69 are:

(a) the making of an application for removal or detention of a patient (which can be an application under sections 31, 32, 36, 71A and 71B of the MHO);

(b) the signing of an order for removal or detention;

(c) the signing of any report, application, recommendation, or certificate under the Ordinance;

(d) the carrying out of an order for removal or detention;

(e) the doing of anything in pursuance of the Ordinance; and

(f) the giving of any advice in a professional capacity in pursuance of the Ordinance.

As we have held in the earlier part of this judgment, the scope is very wide and it covers acts done by the staff of hospitals in discharging their day to day duties in the control of patients, see Pountney v Griffiths [1976] AC 314...”

(c)  It is clear that a medical practitioner who exercises his powers and functions under the MHO, including carrying out tests and assessments to determine whether a suspected mental patient should be detained in a mental hospital for observation under s 31, and signing a certificate in support of such application, is not liable to any civil or criminal proceedings, including proceedings for false imprisonment, unless he has acted in bad faith or without reasonable care.  The materials before the court do support any allegation of bad faith or absence of reasonable care on the part of Dr Tang.  In any event, these are matters for the PIC, not the court, to consider.  As earlier mentioned, there is no valid basis on which the court can interfere with the PIC’s assessment that there is no reasonable prospect of Dr Tang being found guilty of misconduct in a professional respect (which would include a charge of false imprisonment committed against a patient under his care).

24.  In all, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.

DISPOSITION

25.  The application for leave to apply for judicial review is dismissed, with no order as to costs.