DR LI WANG PONG FRANKLIN v. THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

HCAL 12/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 12 OF 2008

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J U D G M E N T

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Facts

1.  The applicant is a registered medical practitioner in private practice.  On 28 August 2003, he performed a liposuction procedure on a patient, Madam Lam King Fong.  Unfortunately, the patient collapsed during the procedure and passed away shortly thereafter.  An inquest was held (Coroner Case No CCDI 1002/2004) and the deceased was found to have died as a result of misadventure.

2.  The matter was reported in an article dated 1 March 2006 on Apple Daily online.  The English translation of the article reads:

“Woman died from liposuction, held as ‘death by misadventure’

【Apple Daily】Lam King Fong, a 70-year-old female piano teacher, died in the course of an abdominal liposuction surgery in 2003.  Yesterday, the Coroner’s Court determined the cause of death to be ‘death by misadventure’ and suggested that Dr. Li Wing Pong Franklin (‘Franklin Li’) keep the patients’ medical records and receive emergency resuscitation/treatment training again.  The female teacher’s husband was not satisfied with the Court’s finding and angrily accused Dr. Li of disregarding and killing a human life, ‘He shirking his responsibilities in such a way, even manslaughter is not enough!’

Yesterday, the deceased’s husband [Chiu Cheong Ming] said in an aggrieved tone outside the Court, ‘By saying that it is ‘death by misadventure’, the doctor has nothing to do with it anymore.  There is no justice under the law.  Even a 3-year-old kid could tell that her (the deceased’s) death is the result of administration of too much anaesthetic and of the flow of fat to her lung in the course of the surgery.’  The resuscitation equipment in the clinic were ‘for show’ only, he said.  He stated that he had already consulted a lawyer about making claims.

Coroner suggested that [Franklin Li and staff] learn emergency resuscitation/treatment again

Mr. P.C. White, the Coroner, has made a few suggestions to Franklin Li, including setting up a system to keep the medical records and personal data of the patients and not performing any surgery upon a patient who refuses to disclose any of these, and Li and his staff receiving emergency resuscitation/treatment training again etc. (see the table).

In response to our enquiry, Franklin Li said it was a fair finding and he would accept the suggestions of the Coroner’s Court.  ‘I have been practising as a medical practitioner for several tens of years.  I previously worked as an attending doctor in the Accident and Emergency Department of the Queen Mary Hospital where I performed emergency resuscitation/treatment on many occasions each week.  I seldom do so after I have become a medical practitioner in private practice.’

On the evidence of this case, the Coroner concluded that it was more convincing to say that Lam King Fong had died from injection of an overdose of medication.  Although Franklin Li claimed he had only injected a very small dosage of painkiller to Lam, the possibility that Lam had been injected with an overdose of medication cannot be excluded.  Furthermore, the statement of Tang, a female nurse from the clinic in question, in respect of the time when Lam went into a coma was inconsistent.  One can hardly understand why Dr. Li gave her medication which is used to treat angina cordis when Lam did not have any cardiac problem.  On the other hand, Lam had never revealed her real age and identity to Dr. Li.

Lam King Fong (70 years old), the deceased in this case, suddenly lapsed into a coma in the course of a liposuction surgery and eventually died in the clinic of Dr. Li Wang Pong Franklin, a plastic surgeon, in Tung Ying Building, Tsim Sha Tsui on 28^th August 2003.  As stated by an expert witness, it is possible that Lam’s death was caused by injection of an overdose of medication and fat embolism in her lung.  There were not enough facilities in the clinic in question for the performance of such a liposuction surgery of the expected scale upon Lam, said a plastic surgeon specialist.”

3.  By an e-mail dated 1 March 2006, a certain Mr Wong wrote to the Medical Council of Hong Kong about the case.  The writer attached a copy of the Apple Daily article to his e-mail and wrote that he believed the article constituted professional misconduct under the Professional Code and Conduct of the medical profession.  He pointed out that according to the article, the applicant had claimed in an interview that he had been practising as a medical practitioner for many years; he had previously worked as an attending doctor in the Accident and Emergency Department of Queen Mary Hospital where he had performed emergency resuscitation or treatment on many occasions each week; but he seldom did so after he had become a medical practitioner in private practice.  Mr Wong therefore complained that the applicant had made references to his experience, skills, qualifications, practice, clinic and equipment which could be construed as promotional, contrary to Part B, art 5.1 of the Professional Code and Conduct.  Mr Wong concluded that the applicant had ‘sanctioned, acquiesced in or failed to take adequate steps to prevent the publication of the article in question’.

4.  After receipt of the e-mail, the Secretary of the Medical Council duly submitted the case to the Chairman of the Preliminary Investigation Committee (PIC) established under Part IIIE of the Medical Registration Ordinance (Cap 161) for consideration.

5.  On 18 March 2006, the Chairman of the PIC identified a number of problems in the case in addition to the self-promotion issue specifically pointed out by the writer of the e-mail, and directed the Secretary to obtain the Coroner’s report before a further decision was made, which was duly done by the Secretary on 23 May 2006.

6.  On 27 May 2006, the Chairman of the PIC directed that the case be referred to the PIC for its consideration and indicated a total of seven charges or allegations to be addressed.  Self-promotion was one of the issues, but the other six all related to the liposuction procedure carried out by the applicant and his management of the patient.

7.  A draft notice of meeting of the PIC (the PIC notice) was prepared by the Secretary which was sent to the Department of Justice for comment.

8.  On 18 September 2006, the Chairman of the PIC directed that the advice of Professor Matthew Chan, an expert who had given evidence at the inquest, be sought with respect to some further matters raised by government counsel.  A letter dated 25 September 2006 requesting for assistance was therefore sent to Professor Chan, who gave a substantive reply by letter dated 30 September 2006.

9.  Having considered the reply from Professor Chan, on 1 December 2006, the Chairman of the PIC provided further comments on the draft PIC notice to be issued to the applicant.

10.  On 8 January 2007, the Secretary formally issued a notice of meeting of the PIC to the applicant.  Amongst other things, the PIC notice informed the applicant that:

“The particulars of the complaint/information are that on or about 28 August 2003, you, being a registered medical practitioner, disregarded your professional responsibility to your patient, the late Madam LAM King Fong, also known as MO Mei (‘the patient’), or otherwise neglected your professional duties to the patient who was under your care, in that:

(a)  you failed to keep proper record of medical history and personal details of the patient;

(b)  you performed a liposuction procedure on the patient (‘the procedure’) when you were not conversant with contemporary resuscitation procedures;

(c)  you performed the procedure when you were not conversant with the ‘Guidelines for Safety in Sedation for Diagnostic and Minor Surgical Procedures’ published by the Hong Kong College of Anaesthesiologists (Policy document P2, reviewed in February 2002);

(d)  you failed to maintain an optimal standard of monitoring the patient’s condition when a combination of drugs, namely Dormicum, Diprivan, Fentanyl and Rapifen, were used; and

(e)  you failed to maintain an optimal provision of facilities available for resuscitation, if necessary, when a combination of drugs, namely Dormicum, Diprivan, Fentanyl and Rapifen, were used.

In relation to the facts alleged, either singularly or cumulatively, you have been guilty of misconduct in a professional respect.”

11.  It should be noted that the issue of self-promotion did not feature in the PIC notice.  This was apparently because by then, the Court of First Instance had already held that the relevant provisions in the Professional Code and Conduct against practice promotion were constitutional: Dr Kwok-hay Kwong v The Medical Council of Hong Kong, HCAL 46/2006, Reyes J (11 August 2006).

12.  In response to the invitation made in the PIC notice to provide explanation, the applicant through solicitors lodged a written explanation on 31 May 2007.  It included a challenge to the vires of the notice of meeting.  I will presently return to the applicant’s complaint.

13.  The PIC considered the applicant’s written explanation, including the complaint regarding vires, and eventually came to the conclusion that the latter complaint was unmeritorious.  Having given the applicant a further opportunity to provide a further written explanation on the merits of the case, and not having received any such further explanation from the applicant, the PIC determined in a meeting held on 8 October 2007 that the case be referred to the Medical Council for inquiry.  On 23 November 2007, a notice of inquiry before the Medical Council was issued to the applicant.

14.  On 25 January 2008, the applicant applied for leave to apply for judicial review of the decision of the PIC to refer the charges and matters to the Medical Council for inquiry; the referral of the charges and matters by the PIC to the Medical Council for inquiry; the decision by the Medical Council to hold an inquiry in relation to the charges and matters; and the service of the notice of inquiry before the Medical Council on the applicant.  The applicant sought relief accordingly.

15.  On 1 February 2008, the Court granted leave to the applicant to apply for judicial review.

Applicant’s case

16.  The applicant’s case is based on ultra vires.  He complains that under the Medical Registration Ordinance and the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (the Regulation) made under s 33 of the Ordinance:

(i)  the Chairman of the PIC only has the power to refer the complaint which the Secretary has received to the PIC for consideration, if he does not consider the complaint to be frivolous or groundless and should not proceed further;

(ii)  the Chairman of the PIC does not have the power to refer any other charges or matters to the PIC for consideration;

(iii)  the Chairman of the PIC does not have the power to carry out investigations or make enquiries into other areas of the medical practitioner’s practice unrelated to the substance of the complaint that the Secretary has received, before the complaint is referred to the PIC for consideration;

(iv)  the Chairman of the PIC does not have the power and it is not his function to formulate the charges or allegations in the PIC notice to be issued by the Secretary to the medical practitioner.

17.  The applicant therefore complains, on the facts of the present case, that the PIC notice was unlawfully issued because it related to six charges or matters that were not complained about in the e-mail received by the Secretary.  Further, the Chairman of the PIC was wrong in causing investigations and enquiries to be made with Professor Chan and the Coroner’s Court regarding the procedure the applicant had carried out on the patient and his management of her, which were unrelated to the substance of the complaint received by the Secretary.  The Chairman of the PIC was also wrong to formulate the charges contained in the PIC notice.

Relevant provisions

18.  The case turns on statutory construction. 

19.  S 21 under Part IV of the Medical Registration Ordinance sets out the disciplinary powers of the Medical Council.  Amongst other things, if, after due inquiry into any case referred to it by, amongst others, the PIC, the Council is satisfied that a registered medical practitioner has been guilty of misconduct in any professional respect, the Council may, in its discretion, make various orders of sanction against the medical practitioner.

20.  The functions of the PIC and its Chairman are to be found in s 20T of the Ordinance.  Amongst other things, the PIC has the function to make preliminary investigations into complaints or information touching any matter that may be inquired into by the Medical Council and to make recommendations to the Medical Council for the holding of an inquiry under s 21.  S 20T(2) provides that a matter brought to the attention of the PIC for determining whether the Medical Council should be recommended to hold an inquiry shall first be considered by the Chairman of the PIC or, in his absence, the Deputy Chairman.  S 20T(3) provides that the PIC, its Chairman and Deputy Chairman shall act in accordance with such regulations in relation to their procedure made under s 33, namely, the Medical Practitioners (Registration and Disciplinary Procedure) Regulation.

21.  The more relevant provisions in the Regulation are as follows:

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

(1)  Where-

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

…

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

…

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

…

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

…

(c)  a committee of the Council refers a matter concerning a registered medical practitioner to the Committee for its consideration or investigation,

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

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

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

…

he shall-

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

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

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

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

…

8.  Clarification and support for complaint or information

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

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

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

(c)  require that any matter alleged in the complaint or information to be supported by one or more statutory declarations …

…

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

…

9.  Reference of case to Committee

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

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

(a)  fix a date for the proposed meeting;

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

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

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

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

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

…

11.  Consideration of case by Committee

(1)  The Committee shall meet in private.

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

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

…

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

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

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

(a)  decide that no inquiry shall be held;

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

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

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

…

13.  Referral of case to Council for inquiry

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

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

…

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

…”

22.  Rather confusingly, the provisions in the Regulation are numbered as ‘sections’.  Unless the context otherwise indicated, all references to ‘sections’ in the remainder of this judgment are references to the sections in the Regulation.

Applicant’s interpretation

23.  It is the contention of Mr Russell Coleman SC (Ms Elizabeth Cheung with him), appearing for the applicant, that s 6(1)(a) refers to ‘a complaint’ being made to the Secretary that a registered medical practitioner has been guilty of misconduct in a professional respect, and the Secretary submitting ‘the complaint’ to the Chairman of the PIC for consideration.  If the Chairman and Deputy Chairman of the PIC consider ‘the case’, that is to say, the complaint, to be frivolous or groundless and should not proceed further, they may dismiss it: s 6(2)(a) and (3).

24.  Furthermore, if the Chairman requires clarification of the complaint from the complainant or requires the complainant to make a statutory declaration in support of the complaint, he may require the complainant to do so: s 8(1).  If the complainant refuses to comply with the requirement, the Chairman of the PIC may decline to proceed with the investigation of the case (s 8(3)).

25.  Most importantly, Mr Coleman submits that if the Chairman does not dismiss the case (for being frivolous or groundless etc), he must direct that the case be referred to the PIC for its consideration: s 9(1).  And in this regard, ‘the case’ simply means the ‘complaint’ made to the Secretary referred to in s 6(1)(a) (or the ‘information’ received by the Secretary, or the ‘matter’ referred by a Committee of the Medical Council to the Secretary, as the case may be: see s 6(1)(a), (b) and (c)).

26.  Leading counsel therefore contends that ‘the case’ referred to by the Chairman of the PIC to the PIC for consideration cannot go outside the complaint that has been made by a complainant to the Secretary.  If, upon consideration of the case so referred to the PIC, the PIC should consider that the charges or matters contained in the PIC notice require amendment, the PIC may direct the Secretary to make the necessary amendments and advise the doctor of the same and invite him to give any further explanation which he may offer: s 11(6).  It is at that stage only that the PIC may bring in new charges or allegations against the doctor, but not earlier, and certainly not by the PIC Chairman of his own volition at the PIC notice stage.

27.  Mr Coleman further submits that it is also at the stage of the PIC consideration that the PIC may cause further investigations or further clarification to be made and may obtain such additional advice or assistance as it may consider necessary: s 11(7).  Certainly, the Chairman of the PIC has no power of his own, counsel submits, to cause such investigations or clarification to be made or to obtain such advice or assistance prior to the PIC consideration stage.

Anomalous results

28.  It is quite apparent from Mr Coleman’s construction of the relevant provisions that some anomalies would arise.  For instance, a complainant makes a specific complaint against a doctor to the Secretary and supplies materials in support of his complaint.  The Chairman of the PIC finds the specific complaint frivolous or groundless and should not proceed further.  However, he finds in the materials supplied by the complainant some other matter or allegation which may raise a question whether the doctor has been guilty of misconduct in a professional respect.  According to Mr Coleman, the Chairman and the Deputy Chairman must dismiss the case for being frivolous or groundless etc.  The Chairman may not and indeed has no power to refer the other matter or allegation which appears to raise a question of professional misconduct  to the PIC for consideration, and no PIC notice about that other matter or allegation can be issued.  Mr Coleman submits that in such a hypothetical case, what the Chairman may do is to make a complaint about the other matter or allegation to the Secretary in his personal capacity, as a member of the general public.

29.  Needless to say, this last submission, which involves the Chairman of the PIC making a complaint to the Secretary in his personal capacity, sounds odd.

30.  The matter becomes stranger if the facts of the example are varied slightly.  Suppose a member of the public simply supplies the same materials to the Secretary without making a specific complaint against the doctor.  In that situation, according to Mr Coleman’s interpretation of the provisions, ‘the case’ that the Chairman has to consider is the ‘information’ received by the Secretary, namely, the materials supplied by the member of the public.  The Chairman has to consider whether ‘the case’ is frivolous or groundless, and should not proceed further.  Now, ex hypothesi, the materials contain a matter or allegation which raises a question whether the doctor has been guilty of misconduct in a professional respect.  In those circumstances, the Chairman cannot possibly dismiss the case summarily.  Rather, he must refer the case to the PIC for consideration and the PIC notice will have to specify the matter or allegation that appears to the Chairman to give rise to the question about the doctor’s professional conduct.

31.  In short, whether the real matter or allegation going to possible professional misconduct can be referred to the PIC for consideration depends fortuitously on whether the member of the public in my two examples chooses to make a specific complaint against the doctor or simply to leave everything to the Chairman of the PIC to consider.

32.  A further anomaly is easily apparent by again varying the facts of the example slightly.  Two complainants, both relying on the same materials, make specific complaints against the same doctor to the Secretary.  Assume that the materials, when properly considered by a trained medical practitioner, appear to disclose several possible complaints of professional misconduct against the doctor.  One of the two complainants successfully makes one of them, which is, by definition, not frivolous or groundless.  According to Mr Coleman’s construction, the Chairman must refer that complaint (and nothing else) to the PIC for consideration.  However, counsel accepts that the PIC, when considering the referred complaint, has power to include other charges or allegations in the PIC notice by way of amendment: s 11(6).  In those circumstances, all the possible complaints can be before the PIC which the PIC is free to consider.

33.  The other complainant, however, is not able to make even one of his specific complaints correctly.  The specific complaints that he makes are all frivolous or vexatious.  According to Mr Coleman, the Chairman must dismiss his case and has no power to refer any possible matters of professional misconduct to the PIC for consideration. 

34.  In other words, whether the real matters of possible professional misconduct can be referred to and considered by the PIC is again a fortuity. 

True intent and purpose

35.  Given those anomalous results, which are plainly unattractive, one must look hard at the provisions and the underlying purpose that they seek to serve as well as the context in which they have been made, in order to see whether these anomalous results really reflect the true intention of the Regulation.

36.  Put another way, one must, in interpreting the relevant provisions, fully and firmly bear in mind the purpose and context of the Ordinance and Regulation.  HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, 606 (para 63); Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1, 13-14 (paras 28 & 29); the Interpretation and General Clauses Ordinance (Cap 1), s 19.

37.  The function to be performed by the PIC has been commented upon by the Court of Appeal in Dr Leung Kam Chung Kenneth v Medical Council of Hong Kong, CACV 33/1996 (25 July 1996), in relation to the now repealed Medical Practitioners (Registration and Disciplinary Procedure) Regulations, which were replaced by the Regulation in 1996.  Litton VP (as he then was) explained the matter as follows (at p 5):

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

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

“The statutory scheme

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

…

14.  My conclusions are as follows.

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

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

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

(4)  The role of the screener is a narrow one.  It is to filer out from the formally correct complaints, not those which in his view ought not to proceed further, but those which he is satisfied (for some sufficient and substantial reason) need not proceed further.  For this purpose he must be satisfied of a negative, namely that the normal course of the complaint proceeding to the P.P.C. need not to be followed.  The assumed starting point is (1) above and the need referred to is the need to honour the legitimate expectation that complaints (in the absence of some special and sufficient reason) will proceed through the P.P.C. to the P.C.C.  The absence of ‘need,’ of which the screener must be satisfied before he can halt the normal course of the complaint to the P.C.C., connotes the absence of any practical reason for the complaint so proceeding and that for the complaint to proceed to the P.C.C. would serve no useful purpose.  There may be no need because there is nothing which in law amounts to a complaint; because the formal verification is lacking; because the matters complained of (even if established) cannot amount to serious professional misconduct; because the complainant withdraws the complaint; or because the practitioner has already ceased to be registered.  Wider questions, as to the prospects of success of the complaint, as to whether the complainant is acting oppressively or as to the justice of the investigation proceeding further, do not lie within the screener’s remit.  So far as they may go to the issue whether the complaint ought to proceed, they fall within the remit of the P.P.C.  It is not for the screener to arrogate to himself the role of the P.P.C. and decide whether the complaint ought to proceed further, still less to arrogate to himself the role of the P.C.C. and weigh up conflicting evidence or judge the prospects of success.  He must respect the role assigned by the Rules to the P.P.C. (for which the P.P.C. is armed with investigative powers) and recognise that his duty is only to act as a preliminary filter before the more substantive role as filter is exercised by the P.P.C.”

The approach in Toth has been followed thereafter, subject to minor qualifications, as is clear from the English Court of Appeal decision in Henshall v General Medical Council (2005) 88 BMLR 146, 154 to 157 (paras 25 to 33).

39.  The parties are in agreement that although these cases deal with different provisions which set out procedures that differ in detail, the above extracts do provide a correct description of the true intent and purpose of the provisions currently in force in Hong Kong.

40.  Mr Coleman submits that the screening function performed by the Chairman of the PIC as a screener is to filter out unmeritorious complaints, so as to ensure that medical practitioners are not vexed with complaints which might turn out, after inquiry, to be groundless.  The provisions set out to provide a just balance between the legitimate expectation of the complainant that a complaint of serious professional misconduct will be fully investigated and the need for legitimate safeguard for the practitioner, who as a professional person may be considered particularly vulnerable to and damaged by unwarranted charges against him (Toth at para 10).  The complainant, counsel submits, has no legitimate expectation beyond the full and fair consideration and disposal of the complaint that he makes.

41.  In my view, Mr Coleman has taken too narrow a view of the true intent and purpose of the provisions under consideration.  As has been pointed out by Lightman J in Toth (at para 10), the provisions are designed to protect the public from the risk of practice by practitioners who for any reason (whether competence, integrity or health) are incompetent or unfit to practice and to maintain and sustain the reputation of, and public confidence in, the medical profession.  As the learned judge has pointed out, ‘the public have higher expectations of doctors and members of other self-governing professions, and their governing bodies are under a corresponding duty to protect the public against the incompetent as well as the deliberate wrongdoer’ (para 10).

42.  In those circumstances, what the provisions aim to achieve is not only the fulfilment of the legitimate expectation of the complainant that a complaint of serious professional misconduct will be fully investigated, but also the wider question of protecting the public from the risk of practice by practitioners who are incompetent or unfit to practice and to maintain and sustain the reputation of, and public confidence in, the medical profession.

43.  Viewed in that light, it is immediately apparent that the interpretation contended by Mr Coleman, which leads to the anomalous results that I have described, is counter-productive to the purpose that the provisions seek to achieve. 

44.  One common thread in the examples I give, based on Mr Coleman’s construction of the provisions, is that the Chairman of the PIC, and thus the PIC itself, must turn a blind eye to any matters giving concern about the professional conduct of the medical practitioner in question, unless the complainant manages to make a specific complaint against the medical practitioner which is not frivolous or vexatious (or does not attempt to do so at all).  In the event that the complaint made is wide off the mark, the only option open is for the Chairman to take off his hat as Chairman and make a complaint himself to the Secretary as an ordinary member of the public.  Needless to say, one would be very slow to infer that this is what the Regulation intends to be the proper procedure to follow, whereby the interest of the public against medical professional misconduct is to be safeguarded. 

45.  The above anomalous results also highlight the absurdity that, from the perspective of the lay member of the public, it is better for him to simply supply all relevant materials to the Secretary without making any specific complaint against the doctor in question, rather than to try his hand on setting out a specific complaint which might be found by the Chairman and Deputy Chairman of the PIC to be off the mark.

46.  It is difficult to see how the interest of the general public is protected by such a result.

How things happen on the ground

47.  In this regard, it is highly pertinent to look at the evidence, and see how matters actually operate on the ground, bearing always in mind that the current provisions were made in 1996 (LN 521/1996) when there had already been a long history of regulating professional conduct by the Medical Council and the PIC.  In his affirmation filed on 8 April 2008, the Secretary of the Medical Council explained:

“26.  The complaints/information received vary in nature.  It is not uncommon to receive anomalous complaints/information about a practitioner and sometimes the identity of the practitioner is not even made clear.  Quite often, the complainant vents their dissatisfaction with a particular practitioner and refers to problems, or irregularities, or unpleasant experiences they have had, but does not specify any particular complaint let alone stating whether this touches upon any aspect of professional misconduct.  I regard this as understandable given that the lay public may not know what constitutes unacceptable practice or professional misconduct in respect of a medical practitioner.  I believe a complainant puts their complaint/information before the Medical Council and trusts the Council to take such action as it deems appropriate.”

48.  In an affidavit also filed on 8 April 2008, the Chairman of the PIC set out what actually happened on the ground:

“4.  At the outset, I would like to provide some information by way of background.

a.  The majority of complainants have no legal background.  It is rare for complaints to be made through a legal representative.  Most complainants do not know how to make a complaint properly even where they have a good case against a medical practitioner.  Most members of the lay public do not have the requisite knowledge to know what constitutes professional misconduct on the part of medical practitioners.

b.  On most occasions, the PIC chairman will consider it necessary to seek clarification from the complainants or from other sources e.g. the police or the Department of Health before being able to understand what has happened in the case.

c.  Once the PIC chairman considers that a case should be referred to the PIC, it is necessary for the PIC Notice to be formulated which sets out the matters or allegations which appear to raise a question of misconduct.  In practice, the PIC chairman must assist the Secretary with the formulation of the allegations.  Often, the chairman may need to seek the opinion of a peer in the relevant medical field to comment on the behaviour or management of the medical practitioner.

d.  Most of the original complaints or information received are quite vague at the very outset of a case.  It is quite common that in the course of seeking clarification from the complainant or other sources, the PIC chairman or the PIC will become aware of an evident act of misconduct which is not necessarily related to the original complaint – indeed, it is often very difficult to identify the original complaint before obtaining further information.”

49.  In relation to this particular case, this is what the Chairman said (para 10):

“It should be noted that although the complainant’s main concern was the promotional statements made by Dr. LI, the information provided by the complainant disclosed a question of professional misconduct of much greater severity, i.e. the propriety of the medical treatment.  I consider that it would be a complete disregard of my statutory duties as the Chairman of the PIC for me to turn a blind eye to the obvious problems of Dr. LI’s treatment which prima facie was concerned with the patient’s death.  Similarly, it would be a dereliction of the Medical Council’s duty to protect the public for it and the PIC to artificially pretend that there was no question of misconduct to be investigated as long as no one expressly identifies the problem, despite the fact that the problem has been brought to the attention of the Medical Council and/or the PIC.  To adopt such an artificial approach would in my view defeat the purpose of the Medical Registration Ordinance to entrust to the Medical Council the duty of protecting the public from harm caused by professional misconduct of registered medical practitioners.”

50.  I consider all this to be important factual background, which the then Governor in Council, no doubt with input from the medical profession, must have fully borne in mind when making the relevant provisions in 1996.  There is no suggestion whatsoever that the situation back then was any better than it is now, as has been described by the Secretary of the Medical Council and the Chairman of the PIC in their evidence. 

Wording of the provisions

51.  In my view, Mr John Bleach SC (leading Ms Roxanne Ismail), appearing for the respondents, is correct in submitting that the wording of the relevant provisions does not require, or indeed support, the interpretation advanced by Mr Coleman.

52.  Mr Bleach is right in contending that Mr Coleman’s interpretation has too narrowly focused on the ‘complaint’ made by a complainant to the Secretary of the Medical Council, whereas s 6(1)(a) actually refers to a ‘complaint’ or ‘information’.  Leading counsel submits that depending on the facts, one may simply have a ‘complaint’ made to the Secretary, or ‘information’ received by the Secretary, or both.  In the present case, a specific complaint about self-promotion was made by the complainant to the Secretary.  But not only that.  Information in the form of the on-line article from Apple Daily was also supplied to and received by the Secretary.  And in the information so supplied, various allegations were reported to have been made against the applicant, which appeared to raise a question about his professional conduct.  They included his failure to keep a proper medical record of a patient, his need to receive training again on emergency resuscitation procedures, the possibility of the patient dying from an overdose of medication and the lack of sufficient facilities in the clinic for the performance of a complicated liposuction procedure.

53.  Thus quite apart from the specific complaint made by the complainant regarding self-promotion, a number of allegations or matters that appear to raise a question of professional conduct have been disclosed in the information supplied to the Secretary.  Together, they comprise the ‘case’ that the Secretary has submitted to the Chairman of the PIC for his consideration (s 6(1)).  And it is that ‘case’ which the Chairman of the PIC must consider and decide in terms of whether it is frivolous or groundless and should not proceed further, in which event he and the Deputy Chairman should dismiss the ‘case’: s 6(2)(a) and (3).

54.  Moreover, it is that ‘case’ which the Chairman of the PIC must refer to the PIC for consideration, if he does not take the view that it is frivolous or vexatious and should not proceed further: s 9(1).  Upon such referral, the PIC must consider the ‘case’: s 11(2).  At the end of the day, the PIC, in turn, must decide whether to refer the ‘case’, in whole or in part, to the Medical Council for inquiry: s 11(8) and s 13(1).

Proper approach

55.  In my view, in a case like the present one, the Chairman of the PIC is not bound to adopt a blinkered approach.  He is not restricted to the specific complaint made by the complainant.  He is entitled to consider the accompanying materials provided by the complainant to see whether they contain or disclose ‘any matters or allegations which may appear to raise a question whether the defendant has been guilty of misconduct in a professional respect’ (s 9(2)(b)).  And if after consideration and investigation (infra), these matters or allegations do exist, the Chairman of the PIC is quite entitled to refer the case to the PIC for consideration in relation to them, whether in addition to or instead of the specific complaint originally made by the complainant.

56.  This approach is in fact supported by what the Court of Appeal has done in the earlier case of Dr Leung Kam Chung Kenneth, supra, which dealt with the old regulations.  In that case, the complaint made by the complainant was in respect of a liposuction procedure performed by the doctor on her legs.  The charges that the PIC eventually formulated against the doctor at the hearing before the PIC were in relation to some fee sharing arrangements with a beauty centre.  The Court came to the view that these charges were new charges that were not covered by the PIC notice, nor were they the subject matters of the ‘complaint or information’ originally placed before the PIC for consideration.  In coming to that view, the Court of Appeal did not restrict itself to considering the complaint about the liposuction procedure.  It looked at the letter of complaint as a whole to see whether, when fairly read, it contained or suggested any other matters or questions going to the doctor’s professional conduct, in order to determine what the ‘complaint or information’ was about.  Thus the Court considered in detail the original letter of complaint written by the complainant, including the facts of the case set out in her letter, to see if it raised any possible suspicion of ‘canvassing’ and fee sharing against the doctor.  The Court came to the conclusion that there was not the ‘thinnest possible suspicion’ of canvassing and fee sharing and the doctor was never asked to provide any explanation for such allegations before the meeting of the PIC.  See pp 6, 7 and 11 of the judgment.

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

58.  As Mr Bleach has submitted, no one is suggesting that the Chairman of the PIC has a free roving commission.  However, there is no point in, and the public interest is not protected by, restricting the Chairman to the specific complaint made by a lay member of the public, when in the materials or information supplied by the complainant, matters that may go potentially to the doctor’s professional conduct are disclosed.  It does not, with respect, make practical sense to suggest that all the Chairman can and should do, that being the intention behind the provisions, is that he should, in his personal capacity as a member of the public, lodge a complaint with the Secretary in relation to these other matters.  There is no logical, rational or practical justification for this highly convoluted way of protecting the interest of the public.  This is particularly so when one bears in mind that whatever the Chairman of the PIC may, through the Secretary, include in the PIC notice by way of charges or allegations, the doctor in question is always afforded an opportunity to offer his explanation in relation to the same (s 9(2)(f)), before the matter reaches the PIC for consideration.  In other words, such a devious route (ie the Chairman making a complaint as a private person) would serve no real purpose at all, apart from making things unnecessarily complicated and cumbersome for everyone concerned.

Proper interpretation

59.  Bearing in mind the true intent and purpose of the provisions against its context and having considered the wording used, I have no doubt that Mr Coleman’s interpretation of the provisions is too narrow.  In my view, on the true interpretation of the provisions, the Chairman of the PIC is quite entitled to look at the letter of complaint and all other materials received by the Secretary to determine, after consideration and investigation, whether they, including but not limited to the specific complaint (if any) made by the complainant, disclose any matters or allegations which may appear to raise a question whether the doctor has been guilty of misconduct in a professional respect.  Interpreting the relevant provisions in such a way as to safeguard the public interest, even if it were to conflict with the interest of the individual, accords well with established rules of statutory interpretation: Bennion on Statutory Interpretation (5^th ed) 790-792. 

Powers to seek outside assistance etc

60.  This brings me to the further question of whether, in order to decide the above question and to properly identify and formulate the issue(s) of professional conduct that may be involved, the Chairman of the PIC is entitled to seek assistance and advice from outside sources.  In this regard, I note that s 8 specifically empowers the Chairman of the PIC to seek clarification from the complainant and to require him to back his complaint or information by a statutory declaration, failing which the Chairman is entitled to decline to proceed further with the investigation of the case.

61.  This issue of seeking assistance generally arises in the present case because the Chairman of the PIC has through the Secretary obtained papers from the Coroner’s Court and sought specialist advice from Professor Chan who has given expert evidence in the inquest.  The applicant argues that the Chairman was not entitled to do so.  His powers in this regard were restricted to that given under s 8, counsel submits.

62.  With respect, I do not agree.  I agree with Mr Bleach that in addition to the powers given under s 8, the Chairman of the PIC also has the general powers given by s 40(1) of the Interpretation and General Clauses Ordinance:

“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.”

See also Bennion, op cit, at p 497; A v Securities and Futures Commission [2008] 1 HKLRD 591, 595 to 596 (paras 22 to 24).

63.  In my view, the express and specific powers given in s 8 do not, upon the true and proper construction of all relevant provisions, prevent the Chairman of the PIC from having the deemed general powers given under s 40(1) of the Interpretation and General Clauses Ordinance.  The powers in s 8, particularly the power in s 8(3) not to proceed with the investigation further if the complainant does not comply with the requirement made by the Chairman of the PIC under s 8(1), are plainly required in order to enable the Chairman to do his screening job properly.  But it does not follow, whether as a matter of logical reasoning or practical reality, that he does not need any other power to discharge fully his function.

64.  With the rapid advancement of medical science almost on a daily basis, and with so many specialties and sub-specialties in the medical field nowadays, it is impossible and completely unrealistic to expect the Chairman of the PIC to possess by himself all necessary expert knowledge to deal with each and every case of complaint of professional misconduct.  It is simply natural and in fact, in my view, part of the duty of the Chairman of the PIC to seek expert assistance, where appropriate and necessary, from an outside source, in order to determine whether a particular case is frivolous or groundless and should not proceed further, or should be referred to the PIC for consideration, provided that he does not abdicate his duty to the outside expert: see Tam Chi Ming v The Medical Council of Hong Kong [2008] 1 HKLRD 24.

65.  By the same token, a complaint made by a complainant or the information supplied by him to the Secretary may or may not contain all the facts, materials or other information that the Chairman may reasonably require in order to fulfil his statutory function.  Some of the missing documents or information may well be obtainable from the complainant himself, and thus s 8.  But it is just common sense that some of these materials or information may not be within the possession or reach of the complainant, in which case, it is simply natural that the Chairman should need to contact other sources where the materials or information may be available for access to the same.

66.  Bearing in mind the true intent and purpose of the relevant provisions, particularly the high aim to safeguard public interest, the very restrictive interpretation advanced by Mr Coleman on behalf of the applicant is wholly unattractive.

67.  Indeed, s 11(7) of the Regulation refers to the PIC causing to be made ‘further’ investigations or ‘further’ clarification from the doctor with regard to the case being considered by the PIC and with regard to his written explanation, and the PIC’s obtaining such ‘additional’ advice or assistance as it considers necessary.  The wording clearly suggests that prior to the consideration of the case by the PIC, that is to say, at the stage of the Chairman’s consideration of the case, there can be made or caused to be made investigations and clarification generally, and advice or assistance may be obtained from outside sources.

68.  In other words, based on the true intent and purpose of the provisions, as well as the wording of the provisions in the Regulation and s 40(1) of the Interpretation and General Clauses Ordinance, and interpreting the provisions in the light of what generally happens on the ground, I have no doubt that the Chairman of the PIC has the general powers given under s 40(1) of the Interpretation and General Clauses Ordinance to carry out investigations, obtain materials and seek expert assistance from outside sources, which are reasonably necessary to enable the Chairman to decide whether the case is frivolous or groundless and should not proceed further, or whether the same should be referred to the PIC for consideration, and to properly identify and formulate the issue(s) of professional conduct that may be involved.

Formulating charges in the PIC notice

69.  Finally, as regards the Chairman’s taking part in the formulation of the actual charges or allegations in the PIC notice to be sent by the Secretary to the doctor in question, I have no doubt that the Chairman has the power and in fact the duty to do so. 

70.  It must be noted that the Secretary, in the statutory scheme under the Medical Registration Ordinance and the Regulation, is simply there to provide administrative assistance to the Medical Council as well as the PIC: see, for instance, ss 6(1), 9(1) and (2), 11(2), (3) and (6), 12(1), 13(2) and (4), and 16(1) and (3).  He is appointed by the Chief Executive: s 3B of the Medical Registration Ordinance.  He is not required to be medically qualified, and as a matter of fact, he is a civil servant. 

71.  On my reading of s 9(2)(b), which provides for the issue of a PIC notice by the Secretary, the role to be played by him is administrative.  Since it is the Chairman who has considered the case and who has come to the view that the case should be referred to the PIC for consideration, as raising a question over the professional conduct of the doctor, it is simply natural and right that the Chairman should take part in formulating the charges or allegations in the PIC notice, which is required to ‘indicate any matters or allegations which may appear to raise a question whether the defendant has been guilty of misconduct in a professional respect’.  It is difficult to imagine how the Secretary, a civil servant, who has not considered the case and who is not responsible for coming to the referral decision, can on his own formulate the charges or allegations in the PIC notice, which, of course, also invites the doctor to provide explanation on those charges or allegations as formulated.

72.  To be fair to Mr Coleman, he has not advanced any substantive argument in support of this ground of complaint, which has been mentioned in the Form 86A.

Discretionary refusal of relief

73.  For all those reasons, the application for judicial review must fail. 

74.  This being the case, there is no need to deal with Mr Bleach’s fallback position that in any event relief should be refused on a discretionary basis because the outcome of the case is a foregone conclusion.  Even assuming (for the sake of argument) that there had been procedural irregularities in the process, it would not have made any difference to the eventual outcome, counsel submits; if the proper procedure had been followed through, the same charges or allegations would have been made against the applicant, placed before the PIC and referred by the PIC to the Medical Council for inquiry.

75.  Given my primary conclusion, I need not dwell on these further arguments.  The discretion of the Court to refuse relief in an appropriate case cannot be doubted in Hong Kong: Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653; Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679.  

76.  Counsel has cited to me some English authorities to illustrate the English position.  The position in England has been more fully summarised in Fordham, Judicial Review Handbook (4^th ed) 496 to 498, where the issue of refusing relief in a case involving an ultra vires or wholly unlawful decision is highlighted.  In fact, the matter has been discussed by Lightman J in Toth, supra, at p 2214 (para 6); see also my discussion in Kwong Ka Yin Phyllis v The Solicitors Disciplinary Tribunal, HCAL 93/2004 (12 July 2006), paras 40 to 43. 

77.  In the present case, to some extent, the matter depends on whether only procedural irregularities are involved or whether the decisions under challenge are wholly unlawful in the sense that they are ultra vires.

78.  But as I said, given my primary conclusion, all this is academic.  I prefer to rest my decision on the true interpretation of the provisions.

Outcome

79.  The application for judicial review is dismissed.  I make an order nisi that the applicant pay to the respondents the costs of these proceedings, including costs that have been previously reserved.  I also grant a certificate for two counsel.

80.  I would like to thank counsel for their assistance.