LAW SZE YAN v. THE CHINESE MEDICINE PRACTITIONERS BOARD OF THE CHINESE MEDICINE COUNCIL OF HONG KONG

CACV 268/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 268 OF 2006

(ON APPEAL FROM HCAL NO. 41 OF 2005)

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J U D G M E N T

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Hon Ma CJHC :

1.  Under challenge in the present judicial review proceedings is the decision of the Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong (the Respondent) made in about December 2004 and March 2005, whereby the Respondent declined to assess a part-time undergraduate course run jointly by the Hong Kong College of Technology (“the HKCT”) and Jinan University (of Guangzhou).  It was said essentially that the decision was an unreasonable one since the Respondent had accorded unequal treatment in relation to this degree course compared with its approach with other part-time degree courses which it had assessed and approved.  This was the main issue in the appeal.  There was also a question raised regarding the Applicant’s standing in the judicial review proceedings.  Chu J in the court below had held he had insufficient standing.

2.  In order to understand these issues in context, it is first necessary to set out the statutory scheme and the background facts.

The Chinese Medicine Ordinance, Cap.549

3.  The practice of Chinese medicine has a long and venerable history in Hong Kong but only recently has there been any statutory regulation of this.  In August 1989, the Government set up a Working Party on Chinese Medicine to see whether the regulation of Chinese medicine practitioners should be introduced.  The Secretary for Health and Welfare appointed the Preparatory Committee on Chinese Medicine in March 1995 to make recommendations regarding the registration of practitioners, the licensing of traders in Chinese medicine and other matters.  From November to December 1997, a public consultation took place.  All this eventually led to the passing of the Chinese Medicine Ordinance, Cap.549 on 14 July 1999.

4.  Broadly, we are concerned in this appeal with the qualifications necessary for a person to be licensed to practise Chinese medicine in Hong Kong.  The relevant scheme in the Ordinance can be briefly described (here I am grateful for the detailed analysis contained in the judgment of Chu J) : -

(1) A person may practise as a Chinese medicine practitioner only if he or she is registered as such and in possession of a practising certificate (sections 75 and 76).

(2) In order to be registered in the Register of Chinese Medicine Practitioners (section 52), a person must pass an examination known as the Chinese Medicine Practitioners Licensing Examination (section 67(a)), unless he falls under one of the exemptions referred to in section 92 (this latter situation has no relevance in the present case.)

(3) The Licensing Examination is set by the Respondent (section 59) which is a statutory body set up under sections 12 and 13.  It is this Board that has overall responsibility in relation to this examination (section 60).

(4) A person will be eligible to take the Licensing Examination if he has satisfactorily completed an undergraduate degree course of training in Chinese medicine practice or its equivalent which has been approved by the Respondent (section 61(1)(a)).  It is this approval responsibility that was engaged in the present proceedings.

(5) These provisions governing the registration of Chinese medicine practitioners and the Licensing Examination came into effect on 16 August 2000.

5.  There was set up in 2001 under the auspices of the Respondent, the Committee on Assessment of Chinese Medicine Degree Courses (“the Committee”), which had the responsibility of making recommendations to the Respondent regarding the approval of degree courses in Chinese medicine (these being the courses that had to be undertaken as required by section 61(1)(a) of the Ordinance).  Ultimately, however, the approval of any course would have to be made by the Respondent.  The Respondent assesses and approves the suitability of courses from educational institutions both in Hong Kong and outside Hong Kong.  For courses in Chinese medicine in universities and other institutions in the Mainland, the Respondent enlists the assistance of the State Administration of Traditional Chinese Medicine (“SATCM”).

6.  It was the decision of the Respondent made in the exercise of its functions under sections 60 and 61 of the Ordinance in refusing to assess (and therefore perhaps ultimately approve) the course in Chinese medicine jointly run by HKCT and Jinan University that has led to the present judicial review proceedings.

Background facts leading up to the relevant decision

7.  After deliberations on the applicable criteria to approve degree courses in Chinese medicine for the purposes of eligibility under section 61(1)(a) of the Ordinance to take the Licensing Examination, the Respondent identified the basic requirements of an approved course.  These requirements were described in an affirmation of Ms Connie Lau, the Secretary to the Respondent : -

“19.   The basic requirements of an approved course as determined by the Board are listed as follows:-

(a)      the course shall be a full-time on campus undergraduate degree course in Chinese medicine of no less than 5 years’ duration, comprising not less than 30 weeks of internship, or its equivalent;

(b)     such course must include the following 10 compulsory subjects:-

(i)      Basic Theories of Chinese Medicine

(ii)     Diagnostics of Chinese Medicine

(iii)    Chinese Materia Medica

(iv)    Chinese Medicinal Formulary

(v)     Internal Medicine of Chinese Medicine

(vi)    External Medicine of Chinese Medicine

(vii)   Gynaecology of Chinese Medicine

(viii)  Paediatrics of Chinese Medicine

(ix)   Orthopaedics and Traumatology of Chinese Medicine

(x)    Acupuncture and Moxibustion of Chinese Medicine

(c)    the course should not be conducted, whether in whole or in part, by means of distance learning (such as correspondence course or on-line training program).

The course should also fulfill the basic requirements of university and clinical training, including teaching quality, teaching/laboratory facilities, instructional management, library facilities, teachers’ qualifications, standards of student admission and clinical training, etc.”

8.  There followed the actual assessment exercise.  Between September 2001 and April 2002, the Respondent looked into the courses, both full-time and part-time, offered by universities in Hong Kong.  Altogether, there were six courses : four full-time courses offered in the Hong Kong University (“HKU”), the Chinese University of Hong Kong (“CUHK”) and Hong Kong Baptist University (“HKBU”); two part-time courses in HKU and HKBU.

9.  In May 2002, the Committee recommended to the Respondent that the four full-time courses offered at HKU, CUHK and HKBU could be approved.  It was also recommended on an exceptional basis that approval could be given to the part-time courses at HKU and HKBU (notwithstanding the fact that they were part-time and therefore did not come within the criterion identified in paragraph 7 above at sub-paragraph (a)).  It is this latter recommendation regarding part-time courses, later adopted by the Respondent, that became the basis for the Applicant’s complaint in the present proceedings.

10.  The reason why the Respondent approved the part-time courses at HKU and HKBU was that these courses had already commenced in 1998 and 2000 respectively.  This has been described in several documents and in the judgment in the court below as the ‘historical factor’.  The significant of this was presumably that these part-time courses offered by local Hong Kong universities commenced prior to the date that the relevant provisions in the Ordinance governing registration and the Licensing Examination had taken effect (that is 16 August 2000 – paragraph 4(5) above) and of course prior to the Respondent’s determination of the relevant criteria for approval (see paragraph 7 above).  The Respondent’s approval of these part-time courses was, however, restricted to students who had already enrolled in or before  2002.

11.  On 5 September 2002, the Respondent made a press announcement of its approval of the full-time courses offered by HKU, CUHK and HKBU and of the two part-time courses.  The relevant part of this announcement was in the following terms (as translated) : -

“He [Dr Daniel Tse, the Chairman of the Chinese Medicine Council of Hong Kong] said that the Board had conducted an assessment of the undergraduate degree courses in Chinese Medicine offered by three local universities, namely the University of Hong Kong, the Chinese University of Hong Kong and Hong Kong Baptist University.  Their full-time degree courses in Chinese medicine have been accepted by the Board to be the recognized courses for undertaking the licensing examination.  Further, students who have enrolled in part-time degree courses in Chinese Medicine offered by these three universities in or before 2002 and completed such courses satisfactorily may also undertake the licensing examination.”

12.  I should perhaps interpose here to say that the contents of this announcement had been relevant to the question of legitimate expectation which was a live issue in the court below but not pursued on appeal (even though it was one of the grounds of appeal contained in the Notice of Appeal).

13.  In November 2002, after consulting SATCM, the Respondent also recognized the 5-year full-time undergraduate courses in Chinese medicine conducted in 27 Mainland higher education institutions.  Details of the courses from these institutions and the three universities in Hong Kong were first published in December 2002 in the 2003 Licensing Examination Candidate Handbook issued by the Respondent.

14.  As far as HKCT was concerned, by a letter dated 31 May 2002 to the Respondent, HKCT first inquired whether the part-time undergraduate course in Chinese medicine jointly organized with Jinan University could be assessed and approved by the Respondent.  Correspondence ensued in which the Respondent made plain its stance that only full-time courses would be recognized.  In particular, I would draw attention to the letter dated 22 February 2003 from the Respondent to HKCT in which it was made clear to HKCT that assessments would only be made in respect of full-time undergraduate courses and that the limited exception to this was only in respect of the part-time courses offered by local universities, that is, HKU and HKBU.  It was said also that the part-time courses offered by non-Hong Kong universities would not be acceptable.

15.  In October 2004, HKCT wrote to the Respondent again requesting it to assess its part-time course (by now there had been substantial changes made to this course although it was still a part-time one).  By a letter dated 2 December 2004, the Respondent informed HKCT that the joint programme with Jinan University would not be assessed again on the ground that it was only a part-time course.  This position was reiterated in the Respondent’s letter to HKCT dated 21 March 2005.

16.  It was this refusal by the Respondent to assess the revamped joint programme offered by HKCT and Jinan University that constituted the relevant decision impugned by the Applicant in the present judicial review proceedings.

17.  The Applicant was at the time the judicial review proceedings commenced, a student in the undergraduate programme jointly run by HKCT and Jinan University.  He started the course in September 2001.  If successful, he would be awarded a Bachelor of Professional Chinese Medicine degree from Jinan University.

The Applicant’s submissions on appeal

18.  Before us, Mr Phillip Ross  (who appeared for the Applicant) submitted essentially that the Respondent’s decision contained in the two said letters was unreasonable in the Wednesbury sense.  While not impugning the Respondent’s decision to afford an exception to the HKU and HKBU part-time courses, he submitted that the same exceptional allowance ought to have been given to the part-time course offered by HKCT and Jinan University.  They were, he submitted, afterall the same : both were part-time courses run by universities and like the other part-time courses, the course run by HKCT and Jinan University was also in existence at the time the Respondent made public its requirements to assess and approve Chinese medicine courses.

19.  In my view, the decision of the Respondent to treat the HKCT-Jinan University part-time course differently to the part-time courses run by HKU and HKBU could not be said to be an unequal treatment of persons or classes of persons in the same position.  The alternative way of putting the point is that even if the part-time course of HKCT and Jinan University can be said to be in the same position as those of HKU and HKBU, the unequal treatment was justified (applying the test in Association of Expatriate Civil Servants of Hong Kong v Secretary for the Civil Service & Anor (1996) 6 HKPLR 333 at 352).  Quite simply, the difference lay in the fact that while the approved part-time courses were from local universities (which are institutions that are subject to and governed by the laws in Hong Kong and indeed governed by their own individual Ordinances), the part-time course run by HKCT and Jinan University was one involving an institution that was not a university at all (HKCT) as well as one that was outside Hong Kong albeit it was a university (Jinan University).  In respect of HKCT, as Chu J observed (and this is an observation with which I agree) the fact that a course is run by a university (as opposed to any other institution) is a relevant factor.  HKCT was not even an institution of higher education : it was a local organized agent, registered as a private company, involved in the provision of other education and training.  The fact that Jinan University was outside Hong Kong was certainly a factor that the Respondent took into account and this was implicitly (if not expressly) made known to HKCT in correspondence as well as to the Legislative Council.  In its affirmation evidence, the Respondent stated that there was “no basis whatsoever” for the exceptional allowance given for the HKU and HKBU part-time courses to be extended to non-local universities or institutions of higher education.  By a letter 13 June 2003 to the LegCo Secretariat, it was stated to be inappropriate to extend the exception to universities outside Hong Kong  Obviously, while the HKU and HKBU part-time courses were known to the Respondent, others involving non-Hong Kong institutions were not.  As Ms Lau put it in her affirmation : -

“As a matter of policy, other than the relevant part-time degree courses organized by BUHK and HKU, the Board would not conduct assessment of any other part-time degree courses in Chinese medicine run by any other local or overseas/mainland institutions.  In practice, this is also not feasible and impracticable given the limited resources and manpower of the Board and the Committee.”

20.  Two further points should be made in this context : -

(1)    The joint programme run by HKCT and Jinan University involved some classroom teaching at HKCT but on the whole the main part of the training took place at Jinan University.  HKCT did not have any laboratory or other facilities for the clinical part of the course whereas Jinan University did.  Further, as stated earlier and as stated by the Applicant in the Form 86A application, the satisfactory completion of the course would result in a degree awarded by Jinan University.  As the Judge observed, this programme was “in substance an undergraduate programme of Jinan University that is provided in Hong Kong through HKCT’s assistance”.  Jinan University was, as stated above, a non-Hong Kong university.

(2)    The Respondent has been consistent in its approach.  There is no question of HKCT or Jinan University having been singled out (to be fair, this was not a point that was maintained by the Applicant).  Even in the case of Hong Kong universities, the Respondent has declined to assess part-time courses where this also involved non-Hong Kong entities (for example the joint course offered by HKBU and RMIT University (of Australia) and that offered by the Open University of Hong Kong and Xiamen University).

21.  Mr Ross submitted at the hearing in further support of the contention that in substance the part-time course offered by HKCT and Jinan University was no different to those offered by HKU and HKBU, that the Respondent was quite wrong to have refused to make an assessment simply on the basis that Jinan University was a non-Hong Kong University.  It was, he said, no different to HKU and HKBU afterall, (it was itself a university) and the Respondent could and should have taken the trouble to find out whether the quality of its part-time course matched that of the two Hong Kong universities.  In other words, he did not accept the evidence of Ms Lau that it was “not feasible and impracticable” to conduct an assessment (see paragraph 19 above).  He submitted that as in the case of the 27 Mainland institutions where full-time courses were eventually approved, the Respondent could have referred the matter to SATCM.  He reminded us that in 2005, Jinan University’s full-time course in Chinese medicine was assessed and approved by the Respondent.  Thus, it must have been possible and relatively easy to have undertaken the same exercise regarding the part-time course offered by HKCT and Jinan University.  I find this point unattractive : -

(1)    First, this was not a point that was properly raised either in the Form 86A or in the Applicant’s affirmation evidence in the court below.  Instead of responding positively to the contention in Ms Lau’s affirmation set out in paragraph 19 above, the response from the Applicant (his second affirmation) simply contained no challenge to that paragraph.  This court has had occasion recently to reiterate the need timeously and fairly to raise factual points in judicial review proceedings so that matters can be properly dealt with by the court : - see Cathay Pacific Airways Flight Attendants Union v The Director-General of Civil Aviation, unreported, CACV 324/2005, 23 March 2007 at paragraphs 45 to 47.  The point raised by Mr Ross, which became one of his main points, if not the principal one raised in this appeal, was barely mentioned by counsel in the court below; certainly, as I have mentioned, there was no inkling of this either in the Form 86A or in the Applicant’s evidence before the court.  What evidence there was before the court (see in particular Ms Lau’s affirmation) pointed the other way.

(2)   Secondly, even if this point had any validity, the Respondent’s decision could not be faulted at the relevant time in making a limited exception only in respect of universities in Hong Kong.  As we have seen, this factor was a legitimate one and the fact that Hong Kong universities were known quantities and indeed governed by the laws here, was a valid, rational and proportionate distinction.

22.  I now deal with the question of the Applicant’s standing in the present judicial review proceedings.  In the court below, Chu J took the view that the Applicant had insufficient standing to launch the present proceedings.  This was for three reasons : - first, the challenge brought by the Applicant should more properly be made by HKCT or Jinan University (neither of which was a party to the present proceedings); secondly, the Applicant had not even completed his course so it was too early to have made a challenge; thirdly, the challenge was unmeritorious.

23.  In view of my earlier conclusions on the merits, it is strictly speaking unnecessary to decide the point on standing.  However, for my part, I would accept that the Applicant had sufficient standing to bring the present judicial review proceedings or rather, in the words of Order 53 rule 3(7), he has a “sufficient interest” in the matter to which the application for judicial review related.  The Applicant was at the time the judicial review proceedings were launched, a student studying in the part-time course run by HKCT and Jinan University.  He was directly affected by the decision not to assess the course : whereas he could look forward to being eligible for the Licensing Examination if he were to complete the course successfully, by contrast, if the decision were to stand, he would not be able to take the examination even if he completed the course successfully.

24.  However, even if the Applicant had sufficient standing, this would get him nowhere in the present proceedings.  For the reasons already gone into, I would dismiss the appeal.  I would also make an order nisi as to costs that the Applicant do pay to the Respondent its costs, such costs to be taxed if not agreed, and that the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Hon Le Pichon JA :

25.  I agree.

Hon Chung J :

26.  I agree.