DR CHU KIN WAH v. THE MEDICAL COUNCIL OF HONG KONG

FAMV No 55 of 2026

[2026] HKCFA 29

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 55 OF 2026 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO 204 OF 2024)

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REASONS FOR DETERMINATION

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Mr Justice Lam PJ:

1.  The Inquiry Panel of the Medical Council (“The Panel”) found the applicant guilty of two counts of professional misconduct and ordered the removal of his name from the register of medical practitioners for 3 months and 6 months respectively. His appeal to the Court of Appeal was dismissed on 12 January 2026^[1]. The Court of Appeal refused to grant leave to appeal to this Court on 25 March 2026^[2]. He then applied to this Court to seek leave to appeal. In the application, he formulated four questions of law which he said are of great general or public importance:

(i)     Question 1: In a disciplinary inquiry conducted by an Inquiry Panel of the [Medical Council of Hong Kong (“MCHK”)] as to whether a doctor (“Doctor”) is guilty of professional misconduct in the treatment of a patient:

(a)     Whether the evidence of the contemporaneous clinical records and actions of another doctor (“Other Doctor”) forming part of the Record before the Inquiry Panel of MCHK, who was treating the same patient in parallel and on a regular basis, is relevant to the issue of whether the defendant Doctor is guilty of professional misconduct, particularly when the professional propriety of that Other Doctor is itself not called into question and he did not consider it necessary to communicate any issue of concern to the Doctor accused of misconduct[3];

(b)   Whether the contemporaneous conduct and opinion of the Other Doctor constitutes, or is inherently probative of the existence of, a responsible body of medical opinion for the purpose of the Bolam test; and

(c)   Whether the contemporaneous conduct and opinion of the Other Doctor should be given equal or more weight than the hindsight opinion of an expert.

(ii)   Question 2: If the answer to Question 1 is “Yes”:

(a)     Whether the evidence of the contemporaneous conduct of the Other Doctor should as a matter of principle be admitted and taken into account as a relevant consideration by the Inquiry Panel of the MCHK and given due weight by the Inquiry Panel, or whether the Inquiry Panel of the MCHK may ignore or give no weight to such evidence merely because the Other Doctor is not called as a witness; and

(b)   On a proper interpretation of section 21(1) and (2) of the Medical Registration Ordinance (Cap. 161) (“MRO”) requiring the Inquiry Panel of MCHK to make “due inquiry” and of section 22 of the MRO giving the Inquiry Panel the power to summon witnesses, if the Inquiry Panel of the MCHK considers that they cannot place weight on the actions of the Other Doctor unless he is called:

(1)     Whether as a matter of procedural fairness the Inquiry Panel of the MCHK should give notice to the defendant Doctor of their view that they cannot place weight on the actions of the Other Doctor unless he is called, or any misgivings the Inquiry Panel of the MCHK might have as to the weight that can be given to the actions of the Other Doctor; and/or

(2)   Whether the Inquiry Panel of the MCHK has a duty on its own motion to summon the Other Doctor as a witness, and/or whether it should issue directions as to which Party should call the Other Doctor and what preparatory steps are needed, including the taking of statements of the Other Doctor, so as to ensure that the defendant Doctor may have a fully informed opportunity to defend himself.

(iii)  Question 3: Whether the oral opening submissions of the MCHK
Secretary confine the scope of her case? In particular, where the MCHK Secretary’s counsel (or the Legal Officer), in her opening submissions, relies upon the opinion of the MCHK Secretary’s expert as to the basis on which the defendant Doctor is alleged to be guilty of professional misconduct, is it procedurally unfair or erroneous for the Inquiry Panel of MCHK to then find the defendant Doctor guilty of professional misconduct on a different and alternative basis, given the constitutional right of the Doctor accused of misconduct to a fair trial?

(iv)  Question 4: What should be the approach of the appellate court on an appeal against sanction imposed by the Inquiry Panel of MCHK under section 26 of the MRO? In particular, is the correct approach (a) as held in Sastry v General Medical Council [2021] 1 WLR 5029, at paragraphs 102 and 110, that the appellate court, the appeal being a rehearing on the Record, should exercise its own judgment as to whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate; or (b) the approach of the Court of Appeal at paragraphs 59 and 124 of the CA Judgment, namely to defer to the MCHK’s determination of the appropriate sanction unless the sanction imposed is clearly wrong, inappropriate or unjustified?

2.  After hearing submissions from his counsel^[4] (who had advocated the applicant’s cause most eloquently and clearly), the Appeal Committee declined to grant leave. The following are the reasons for the decision of the Appeal Committee.

3.  Before addressing the specific questions raised, it is fair to observe that the relevant principles of law were not in dispute. The actual challenge by the applicant was about how the established principles had been applied. The questions raised by the applicant are essentially the same as those he had advanced before the Court of Appeal when he sought leave before that court. We agree with the Court of Appeal’s very thorough reasons that leave should not be granted. 

4.  For the present purpose, the first two questions can be considered together. The complaint of the applicant was that the Panel did not pay regard to the other doctors’ management of the patient in deciding that the applicant fell below the standards expected of registered medical practitioners in Hong Kong. In particular, the applicant invited the court to compare Dr van Langenberg’s advice after the consultations on 18 November 2015 and 30 July 2016 with the actual management of the patient by the applicant on those two dates. It was submitted that if proper weight were given to such evidence, they should be regarded as the best evidence of “a practice accepted as proper by a responsible body of medical men skilled in that particular art” under the Bolam^[5]test. It was further said that the Panel failed in its duty of due investigation^[6] by failing to summon these other doctors to give evidence at the inquiry.

5.  It is immediately apparent that the issue is not whether the Bolam test is correct but rather whether the evidence of the other doctors’ management of the patient should be treated by the Panel as evidence of accepted practice by a responsible body of doctors. As recorded in the Panel’s Decision^[7], the Panel had taken such evidence into account. We agree with the Court of Appeal that the Panel was entitled to place whatever weight on the same in the light of the other evidence. Further, as observed by the Court of Appeal, the consultation notes of Dr van Langenberg of 18 November 2015 did not support the position of the applicant^[8]. As regard the charge in respect of what happened in July 2016, Dr van Langenberg’s management was plainly different from that of the applicant who advised the patient to proceed with the closure of colostomy without checking the GE films.

6.  Ultimately, this is an attempt by the applicant to challenge the following finding of the Court of Appeal:

“In the present case, what a single other doctor did or did not do, in circumstances where the Council was not in a position to assess the correctness or otherwise of the action or inaction, can hardly be said to constitute a responsible body of medical opinion supporting the [applicant]’s management.”^[9]

7.  Notwithstanding the valiant efforts of Mr Neoh, we are not persuaded that there is any reasonable prospect of concluding that such finding was wrong either in law or in fact.

8.  Nor is there any reasonably arguable ground for suggesting that the Panel had a duty to summon the other doctors to give evidence at the inquiry. The applicant was legally represented at the inquiry and he had adduced expert evidence in support of his case. His expert, Dr Lam, did refer to the materials relating to the management of the patient by the other doctors. It was up to the applicant and those advising him to consider whether it would be helpful to his case to call those doctors as witnesses. It does not form part of the Panel’s duty of due investigation to take over the conduct of the evidence by summoning them in such circumstances.

9.  We can deal with the third question shortly. The complaint was that the Panel found the applicant guilty on a different basis from the way in which counsel for the Secretary opened the prosecution case. The Court of Appeal did not agree^[10] that the Secretary had confined the prosecution in the way suggested by the applicant. We cannot see any flaw in that analysis. Nor can we see any question of the applicant being treated unfairly. As pointed out by the Court of Appeal, the applicant’s management of the patient in the light of the risk of intra-abdominal infection had been extensively investigated in his evidence and the evidence of his expert Dr Lam^[11].

10.  Turning to the fourth question, it is a new point in the sense that the applicant did not advance this argument before the Court of Appeal. Instead, the applicant’s ground of appeal against penalty at that stage was summarized by the Court of Appeal^[12] and duly addressed accordingly^[13].

11.  Mr Neoh cited before us the English Court of Appeal’s judgment in Sastry v General Medical Council^[14]which was not cited in the appeal before the Court of Appeal.  It does not appear to us that Sastry established any new approach. As it is apparent from the citation of authorities in that case^[15], the English Court of Appeal followed the approach laid down in Ghosh v General Medical Council^[16]and the subsequent cases applying that approach. 

12.  That approach has also been adopted and followed in Hong Kong since Lau Koon Leung v Medical Council of Hong Kong^[17]. This Court confirmed it to be the correct approach in Solicitor (24/07) v Law Society of Hong Kong^[18]. Whilst emphasising that the court has an independent appellate role in deciding whether the penalty is appropriate, it does not preclude deference to the expertise of the Panel which is appropriate in the circumstances. Sin Chung Yin Ronald v Dental Council of Hong Kong^[19]was an instance where the nature of the charge did not call for reticence on the court’s part as it did not involve any technical or clinical judgment or professional expertise.  

13.  In the present case, the Court of Appeal applied the Ghosh approach in considering the appeal against penalty. We do not see any reasonably arguable basis for suggesting that the Court of Appeal had abrogated its duty in deciding whether the penalty was appropriate by according undue deference to the decision of the Panel.

14.  Though the applicant also relied on the “or otherwise” basis in seeking leave, he relied on the same grounds canvassed under these four questions. As such, it does not add anything to the merits of his application.