WONG FU KEUNG v. THE CHINESE MEDICINE PRACTITIONERS BOARD OF THE CHINESE MEDICINE COUNCIL OF HONG KONG

HCAL 15/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 15 OF 2003

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J U D G M E N T

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1. This is an application of the Applicant, a Chinese medicine practitioner, for judicial review of a decision of the Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong.

2. The relevant background of the Chinese Medicine Practitioners Board, the Chinese Medicine Council, the Chinese Medicine Ordinance (Cap. 549) under which the Council and the Practitioners Board were established, as well as the legislative framework for the registration of Chinese medicine practitioners in Hong Kong in general, and the transitional arrangements catering for the unique situation of "pre-existing" Chinese medicine practitioners in particular set out in Part IX of the Ordinance have been set out and discussed in paragraphs 2 to 4, and 6 to 12 of an earlier judgment of mine in Sze Hei Fa Helena v. Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong HCAL 10/2003, handed down on 18 July 2003. I will not repeat the same here.

3. It is and was at all material times the case of the Applicant that he has been practising Chinese medicine continuously in Hong Kong since the 1970s. In particular, that was the case he put forward to the Practitioners Board when he applied to have his name included in the list of Chinese medicine practitioners pursuant to section 90(1) of the Ordinance. He stated in the application form that he had been practising Chinese medicine in Hong Kong for a continuous period of not less than 15 years, and he submitted a number of supporting documents in relation to his claim. In other words, he put forward a case of category I: see paragraph 12(a) of my previous judgment.

4. After the Applicant was notified that his name had been successfully included in the list, the Practitioners Board wrote to the Applicant in March 2002 asking for further documents and information relating to his claim that he had been practising Chinese medicine in Hong Kong for a continuous period of not less than 15 years. In April, the Applicant submitted further documents.

5. On 5 September 2002, the Practitioners Board by letter informed the Applicant that he was required to undertake and pass the licensing examination before he would be qualified to apply for registration as a registered Chinese practitioner, pursuant to section 95 of the Ordinance.

6. On 12 September 2002, the Applicant wrote to the Practitioners Board to ascertain the reason for requiring him to take the licensing examination; he stated that he would be happy to provide further information to prove his case. On 9 October 2002, the Applicant wrote further stating that in fact between 1972 and 1974 he had worked as an employed Chinese medicine practitioner (whereas previously he had only claimed that he had been practising as a self-employed Chinese medicine practitioner since 1977), and the Applicant enclosed a further supporting document.

7. On 23 November 2002, the Practitioners Board by letter informed the Applicant the reason for the Practitioners Board's determination, namely that the objective evidence that the Applicant had submitted was insufficient to prove that he had been practising Chinese medicine in Hong Kong for a continuous period of not less than ten years immediately before 3 January 2000, and that he had obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board. In other words, the Practitioners Board classified the Applicant's case as a category V one: see paragraph 12(e) of my earlier judgment. The Practitioners Board also informed the Applicant that it does not have the power of review and therefore it could not review the assessment result.

8. On 20 February 2003, upon the Applicant's application, I granted leave to the Applicant to apply for judicial review of the Practitioners Board's decision contained in its letter dated 23 November 2002. As I have clarified at the beginning of the hearing of the substantive application, leave was only granted to challenge the Practitioners Board's decision contained in its letter dated 23 November 2002 refusing to review its earlier decision requiring the Applicant to sit and pass the licensing examination for want of power to do so. I did not give leave to challenge the earlier decision contained in the letter dated 5 September 2002 requiring the Applicant to sit and pass the licensing examination, which decision was, of course, made according to the then information and material available to the Practitioners Board. At the hearing, Mr Raymond Lau, appearing for the Applicant, specifically informed the Court that he was not applying for leave to apply for judicial review on any other ground, or to challenge any other decision of the Practitioners Board.

9. In other words, in this application, one is only concerned with the Practitioners Board's view that it has no power to review or reconsider its earlier determination contained in its letter dated 5 September 2002; in particular, it has no power to consider the further information, material or arguments submitted by the Applicant since the earlier determination contained in its letter dated 5 September 2002. The Court is, therefore, not concerned with the "correctness" (in the judicial review sense) of the Practitioners Board's decision contained in its letter of 5 September 2002 requiring the Applicant to sit and pass the licensing examination, nor is the Court concerned with whether the Board's decision remains valid (again in the judicial review sense) in the light of the further information, material and arguments submitted by the Applicant since 5 September 2002.

10. Mr Lau rightly accepts that he has a very difficult task in relation to the Board's power to review its determination made under sections 92 to 95 of the Ordinance. The matter has been covered by 3 judgments of Chu J, namely 洪作炅 v. 香港中醫藥管理委員會中醫（註冊）組 HCAL 128/2002 (24 October 2002); 陳厚裕 v. 香港中醫藥管理委員會HCAL 9/2003 (20 June 2003); 黃華安 v. 香港中醫藥管理委員會HCAL 18/2003 (20 June 2003).

11. In my earlier judgment, I recognised that on those 3 occasions, Chu J held as a matter of statutory interpretation that the Practitioners Board has no general power to review its determination under sections 92 to 95 (except as is provided by section 96). However, in my earlier case, the court was faced with a very unique situation. In that case, the applicant there said that she made a fundamental mistake from the outset when she applied for inclusion of her name in the list, which resulted in her putting forward a wrong case, i.e. claiming herself to have been practising for nine years and nine months only, thus effectively placing her case within category IV (the applicant having possessed the requisite qualification), when in fact she had been practising (so she claimed in the judicial review proceedings) for more than 10 years and her case was really one of category II. (For the two categories, see paragraph 12 (b) and (d) of my earlier judgment.)

12. In those circumstances, I held eventually that there was a very limited power on the part of the Practitioners Board to review the matter in case of such a fundamental and material mistake. The unique feature of that case was repeatedly emphasized in my earlier judgment. For instance, in paragraph 27 and again in paragraph 54, I had this to say:

"27. But one is concerned with a very peculiar situation in the present case. This is not a case where an applicant, who is not satisfied with the determination or assessment of the Board, and who has by correspondence obtained the reasons for the determination or assessment of the Board, seeks to put forward further arguments or submit further material and evidence to rebut or argue against the reasons of the Board, with a view to persuading the Board to change its mind.

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54. Moreover, no opening of any floodgate need be feared here, as one is concerned with a very basic or fundamental (alleged) mistake in the present case. This is not a case where a listed Chinese medicine practitioner seeks to argue that he or she has mistakenly thought that some documents or information were not material to the categorisation and therefore has failed to supply them to the Board, or that he or she has simply by mistake omitted to submit certain useful or relevant information or material. The alleged mistake involved in the present case is much more fundamental or basic: the Applicant claims that she has by mistake incorrectly categorised her own case in the application form by (literally) ticking the wrong box (for practitioners who have a period of continuous practice of less than 10 years)."

13. Mr Lau accepts that the present case is not a case of mistake in the sense used in my earlier case. It is simply a case where an applicant, faced with an adverse determination, and having found out the reasons for the determination, seeks to submit further evidence, material and arguments to the Practitioners Board with a view to persuading the Practitioners Board to change its mind.

14. I am of the firm view that nothing I said in the earlier case assists the present application at all.

15. Mr Lau argues that his client's present case nonetheless falls within the so-called "third class of cases" referred to in Wade, Administrative Law (8th ed.) 235-236, which was cited by me in paragraph 32 of my earlier judgment:

" There is a third class of cases where there is power to decide questions affecting private rights but where there is also an inherent power to vary an order or power to entertain fresh proceedings and make a different decision. Decisions on licensing applications and other decisions of policy will usually fall into this class, since policy is essentially variable. Thus, decisions on planning applications may be varied at any time if a fresh application is submitted."

16. I do not agree. First, there the learned author is discussing under what circumstances a decision may be reopened on the ground of mistake or fraud. Secondly, the third class of cases concerns "decisions of policy", and the reason for the exception to the general rule that there is no power to review is that "policy is essentially variable". As I said very clearly in paragraph 33 of my earlier judgment, I do not consider that the relevant determination of the Practitioners Board in this type of cases involves any question of policy. All that the Practitioners Board is concerned with is the statutory criteria set out in sections 92 to 95 of the Ordinance. No policy is involved. I reject Mr Lau's argument.

17. Secondly, Mr Lau also argues from his reading of my earlier judgment that since it says that a favourable determination or assessment under section 92 of the Ordinance forms part of a statutory scheme of registration involving the exercise of a discretion conferring a benefit on a person who otherwise would not have enjoyed the benefit, therefore (as per Mr Lau's reading of my judgment) there is a limited right of review (see paragraphs 45 to 55 of my earlier judgment), logically (so Mr Lau argues) such a power to review exists regardless of whether a mistake of the kind in question has been involved in the application process.

18. I disagree. That was not what I intended to say in my earlier judgment. Nor is it, in my judgment, a correct objective reading of my earlier judgment. In my earlier judgment, I was applying the decision and the principle embodied in the decision of the English Court of Appeal in Rootkin v. Kent County Council [1981] 1 WLR 1186. The case established that there is a limited right of review in case of mistake if a discretion is involved. Like my earlier case, Rootkin was only concerned with a case of mistake. Whatever I said in my earlier judgment must therefore be read in that highly relevant context. The right to review which I held the Practitioners Board enjoys is limited to the situation where there has been involved a fundamental or material mistake tainting the whole application of the applicant. As I said, I repeatedly emphasized in my earlier judgment that I was not dealing with the run-of-the-mill case where an applicant is simply trying to have a second bite of the cherry.

19. In my judgment, that where a discretion is involved there is a limited right of review in the case of mistake, fraud or the like, does not logically lead to the conclusion that there is a general right to review in the absence of mistake, fraud or the like so long as a discretion is involved. That is simply a non sequitur.

20. In my view, essentially what is involved here is a question of statutory interpretation. As has been pointed out by Chu J in her 3 cases, it cannot have been the intention of the legislature that an applicant, faced with an adverse determination, may come back again and again with further material, evidence and arguments, with a view to persuading the Practitioners Board to change its mind, which is effectively Mr Lau's contention in the present case. I have no hesitation in rejecting the contention.

21. In conclusion, this application must be dismissed. As regards costs, it should follow the event. I do not accept Mr Lau's argument that since the Practitioners Board had suggested in its letter dated 23 November 2002 that the Applicant could seek relief by way of judicial review (in the light of the Practitioners Board's lack of power to review its own determination), the Applicant should somehow be excused for having taken out and prosecuted the present proceedings. Whatever the Practitioners Board said must be regarded as having been overtaken by the legal advice that the Applicant must have since obtained from his legal advisers. I reject Mr Lau's argument. I order that the costs of these proceedings be paid by the Applicant to the Respondent, such costs to be taxed if not agreed.