CHUNG SIU PING v. CHIROPRACTORS COUNCIL HONG KONG

CACV 347/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL No. 347 of 2003

(On appeal from a decision of the Chiropractors Council
dated 1 September 2003)

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JUDGMENT

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Hon. Cheung JA:

1.  I agree with the judgment of Yuen JA.

Hon. Yuen JA:

2.  This is an appeal by Chung Siu Ping (“the Appellant”) from a      decision of the Chiropractors Council (“the Council”) given on 1      September 2003 rejecting her application to be registered as a      chiropractor.

3.  It may be helpful to start with an overview of the relevant provisions   of the legislation.

Chiropractors Registration Ordinance

4.  The Chiropractors Registration Ordinance Cap. 428 (“the Ordinance”) provides that a person whose name does not appear in the register established and maintained by the Council under s.5 of the Ordinance shall not be entitled to describe himself as a “registered chiropractor” (s.23(1) of the Ordinance) and may be subject to an injunction restraining him from describing himself as such (s.23(2) of the Ordinance).

5.  Under s.5 of the Ordinance, the Council is empowered by statute to, amongst other things, 

“(b) set ... the qualification standards for registration as a registered chiropractor and related registration matters;

(d) examine and verify the qualifications of persons who apply for registration as registered chiropractors; 

(e) receive, examine, accept or reject applications for registration ... as a registered chiropractor”.

6.  Under s.9 of the Ordinance, the Council shall not register a person as a registered chiropractor unless

“	(a)	he has passed such examination in chiropractic and other subjects and has received such training and experience as the Council may accept, either generally or in a particular case;
	(b)	[irrelevant for present purposes];
	(c)	he satisfies the Council by declaration in writing that he is competent to practise as a chiropractor; and
	(d)	he is a fit and proper person to be registered” (emphasis supplied).

7.       Under s.10 of the Ordinance,

“(a) a person shall apply for registration as a registered chiropractor in such form or manner as the Council may determine”.

Chiropractors (Registration and Disciplinary Procedure) Rules

8.       The subsidiary legislation of the Chiropractors Registration Ordinance contains rules regarding applications for registration as chiropractors. 

9.       Section 4 of the Chiropractors (Registration and Disciplinary Procedure) Rules (“the Rules”) provides, amongst other things, that:

“	(2)	An application for registration shall be submitted together with -
		(c)	for the purposes of section 9(1)(d) of the Ordinance [i.e. that the applicant is a fit and proper person to be registered] -
			(I)	2 reference letters, each of which shall be from any person -
				(A)	who is specified for the purpose of this sub-subparagraph in subsection (6);
				(B)	not being a chiropractor, a member of the  Council, a member of any committee of the Council or a relative of the applicant; and
				(C)	who has known the applicant for at least 12 months and has the opportunity of judging his character,
				stating that the applicant is a fit and proper person to be registered under the Ordinance; ...” (emphasis supplied);
“	(6)	The following persons are specified for the purpose of subsection 2(c)(i)(A):
		(a)	a member of the Executive Council;
		(b)	a member of the Legislative Council;
		(c)	a justice of the peace;
		(d)	a minister of religion;
		(e)	a medical practitioner;
		(f)	a [registered] dental practitioner ...;
		(g)	a [registered] pharmacist ...;
		(h)	a [registered] nurse ...;
		(I)	a counsel;
		(j)	a solicitor;
		(k)	a certified public accountant ...;
		(l)	a person in such other profession as the Council may recognize” (emphasis supplied).

10.  An application is first placed before the Registration Committee (s.5(4) of the Rules) who, amongst other things, advises the Council on the merits of the application (s. 5(4)(e) of the Rules). 

11.  The application then goes to the Council who, in considering whether to accept or reject an application for registration, must take into account, amongst other things, any recommendation of the Registration Committee (s.7(1) of the Rules).

12.  If the Council rejects an application for registration, the Secretary must within 14 days after the day on which the decision was made, notify the applicant in writing of the decision (s.7(3) of the Rules).

13.  The notification must include, amongst other things, an adequate statement of the reasons for the rejection (s.7(4)(a) of the Rules).  The Ordinance itself stipulates (s.11(3) of the Ordinance):

“

(3)

Where the Council rejects an application for registration ... it shall give to the applicant an adequate statement of the reasons for the rejection”.

14.  The notification must also include an advice to the applicant of his right to appeal to the Court of Appeal under s.22 of the Ordinance (s.7(4)(b) of the Rules).

15.  Section 22(1) of the Ordinance provides that any person who is aggrieved by any decision made in respect of him under, amongst other things, s.11(1) (i.e. the registration provision) may appeal to the Court of Appeal.  However, the Court of Appeal shall not have power to hear any appeal against a decision made under s.11(1) unless notice of such appeal is given within 3 months of the decision (s.22(6) of the Ordinance).

16.  I shall now turn to the present appeal.  The relevant facts are as follows.

Application for registration

17.  The appellant applied to be registered as a chiropractor on 31 May 2002.  One of the referees she offered for certifying that she was a fit and proper person to be registered was a doctor. 

Hospital Administrator offered as referee

18.  The other referee she offered was Mr Ho Chi Fun, who identified himself in his reference letter of 21 January 2002 with the words: “Occupation: Hospital Administrator”.

19. On 8 July 2002, presumably as a result of an oral communication, the Appellant wrote to the Secretary of the Council stating that Mr Ho was one of her referees as she “cannot find a more eligible person to do it for [her] at present”.   

Newspaper article

20. On 8 November 2002, the Secretary of the Registration Committee wrote to the Appellant enclosing a newspaper article dated 27 June 2002 which “may relate to you” and asking if she wished to make any submissions or explanations as the newspaper article would be provided to the Registration Committee and the Council for consideration.  The article referred to a chiropractor who used leaves to “sweep over” a patient’s body as part of his treatment and who charged a certain fee for what was allegedly less than an hour’s treatment.

21. The Appellant answered this letter on 23 November 2002 giving reasons for her use of a plant for the patient’s therapy and for the charge.  The Appellant’s lengthy letter also contained her thoughts on various aspects of chiropractic.  There was no reply from the Council to this letter. 

Rejection of hospital administrator as member of profession

22. On 5 December 2002, the Secretary of the Registration Committee informed the Appellant that Mr Ho, being a hospital administrator, did not belong to any of the categories of persons set out in s.4(6) of the Rules, and asked her to submit another letter from a referee belonging to the s.4(6) categories.

23. On 17 December 2002, the Appellant asked for a list of professions within s.4(6)(l), i.e. “such other profession as the Council may recognize”.

24. On 30 December 2002, the Secretary of the Council wrote to the Appellant simply stating that in respect of s.4(6)(l), “such case will be considered by the Council on an individual basis”.

25. On 6 January 2003, the Appellant wrote again to the Council asking, amongst other things,

“what is the standard measurement for professional person who is recognized or not recognized by the Council”.

26. On 17 January 2003, the Secretary of the Council informed the Appellant that

“the Council accepts, in general, reference letters written by professions that have a system of registration, and that the Council is able to verify the status of the referee.  Nevertheless, such cases will be considered by the Council on an individual basis. ... The Council decided ... that hospital administrator was not a profession with a system of registration in Hong Kong, and it was not possible to verify the status of the referee...” (emphasis supplied).

27. The reference to the possibility or otherwise of verification of the referee’s status led to a letter from Mr Ho on 23 January 2003, enclosing copies of his university degree certificates and a letter from the hospital where he was currently employed, which was a hospital run by the Hospital Authority.

28. On 30 January 2003, the Secretary of the Council wrote to the Appellant informing her, amongst other things, that:

“In considering what other professions will be acceptable, and whether a particular ‘occupation’ comes to the high standard of what should be regarded as a ‘profession’, the Council has determined that in principle a profession that has a system of registration and compliance with a code of practice will be acceptable.  As I have previously notified you, ‘hospital administrator’ is not an ‘occupation’ that is accepted as a ‘profession’” (emphasis supplied).

29. Notwithstanding the above, on 14 February 2003, the Secretary of the Council wrote to the Hospital Authority asking to be provided with “the entry requirements and other related information of the rank title of Hospital Administrator I”.  A reply was given by the Hospital Authority on 18 February 2003.

Council’s concerns over association with Palmer College and accreditation of Association

30. On 1 March 2003, the Secretary of the Council wrote to the Appellant expressing the Council’s concern regarding (a) a letter from the Palmer College of Chiropractic and (b) the contents of a website of an Association which was founded by the Appellant and of which she was president.  The concerns centred upon (a) whether Palmer College was associated with a course which the Appellant taught and (b) whether the course of the Association had been accredited.  The letter said:

“With reference to the above-mentioned concerns and the documents provided by you, including the letters written by Mr Ho Chi-fun, the Council discussed in detail ... on whether you have met the requirements of s.9(1)(d) of the [Ordinance], i.e. the applicant has to show that he is a fit and proper person to be registered” (emphasis supplied). 

The letter said that the Council had decided to ask the Registration Committee to investigate the details revealed in the documents.  The Appellant was also asked, with reference to the Council’s previous letters of 30 January 2003 and 5 February 2003, to provide a second reference letter.

31. On 13 March 2003 the Appellant wrote to the Council with her answers to the concerns raised.  She also indicated that she had “already tried [her] best to find [her] second referee”.  There was no reply from the Council to this letter.

Registration Committee’s recommendation that application be rejected

32. On 26 May 2003, the Secretary of the Council wrote to the Appellant saying, amongst other things,

“After considering all relevant evidence into account [sic] concerning your application, the Registration Committee recommended that your application should be rejected.  The statement of reasons is as follows:-

‘The applicant has not provided sufficient evidence to show that she is a fit and proper person to be registered.  She has failed to comply with section 4(2)(c) of the [Rules] and the evidence that she has produced, namely, the reference letter from Dr TAM Wing-pik and the reference letter from Mr HO Chi-fun, is insufficient”.

33. On 20 June 2003, the Appellant objected to the Council’s “unreasonable imposition of extra conditions”, being the Council’s indication that it would only accept referees from professions with a code of practice.  The Appellant did not suggest that hospital administrators did have a code of practice.

Council’s decision

34. On 17 July 2003, the Secretary of the Council wrote to the Appellant saying that the Council had considered her application again and that:

“The Council, on the basis of the evidence provided by you, cannot be satisfied that you are a fit and proper person to be registered and according to section 9(1) of the [Ordinance], the Council cannot approve your application”.

Having said that however the Council indicated that it was

“willing to consider any further evidence, if provided by you, either in writing or in your oral evidence before the Registration Committee” (emphasis supplied).

35. On 28 July 2003, the Appellant wrote to the Council indicating that “all [her] explanations” had been provided in previous correspondence. 

36. Eventually, on 1 September 2003, the Secretary of the Council informed the Appellant that at the Council’s meeting on 28 August 2003, it had decided that her application should be rejected.  The letter said:

“The statement of reasons as provided by the Council under section 11(3) of the [Ordinance] is as follows:

‘The Council could not be satisfied, on the basis of the evidence provided by you, that you are a fit and proper person to be registered and according to section 9(1) of the [Ordinance], your application could not be approved”.

Appeal - no adequate statement of reasons

37. The Appellant appealed.  Her first complaint was that in the notification of 1 September 2003 (set out in the preceding paragraph), the Council had failed to give an adequate statement of reasons for its rejection of her application.  The initial submission of Mr Kwok Sui Hay, who appeared for the Council before this court, was that that statement was adequate.  

38. I cannot agree with Mr Kwok’s submission.  The statement in the 1 September 2003 notification was clearly not adequate.  It simply gave the statutory ground on which the application was rejected. 

39. It is in my view clear from the following reasons that where the Council rejects an application for registration, the reason(s) given for the rejection in the notification of decision must be specific ones.

40. First, this was clearly the purpose of the express requirements for “an adequate statement of the reasons for the rejection” in s.11(3) of the Ordinance and s.7(4) of the Rules. 

41. Secondly, s.7(4) of the Rules stipulates that the applicant must at the same time be told of his right to appeal to the Court of Appeal.  In the well-known Privy Council case of Stefan v General Medical Council [1999] 1 WLR 1293, it was held (at 1301) that a right of appeal

“points to the view that as a matter of fairness in deciding whether there are grounds for appeal, and as a matter of assistance in the presentation and determination of any appeal, reasons for decision should be given”.

42. Thirdly, there is a 3-month time limit for appeal.  There would be a serious risk of missing that deadline if no specific reasons are given in the notification of decision, and inquiries may have to be made or even proceedings taken for discovery of those reasons for the purpose of considering the viability of an appeal.

43. As noted in Stefan, the giving of reasons strengthens the decision-making process and increases confidence in it.  It also provides the applicant with material on which a reasoned decision could be made (rather than a decision based solely on grievance) whether to proceed to exercise a right of appeal.  It also assists the appellate body in the determination of the appeal as, in my view, without knowing why or how the decision was arrived at, an appellate body is left to an ex post facto effort to make inferences and rationalizations, a process which is unsafe and may be unjust.

44. Mr Kwok’s alternative submission was that it would have been obvious to the Appellant from previous correspondence (specifically, he says, the Council’s letters of 30 January 2003, 5 February 2003 and 26 May 2003) that the reason for the rejection was that the Council did not recognise hospital administration as a profession within the ambit of s.4(6)(l) of the Rules.

45. I do not agree with that submission.  First, s.7 (4)(a) of the Rules stipulates that the notification of the Council’s decision “shall include ... the adequate statement of the reasons for the rejection...”.  The notification dated 1 September 2003 did not refer to or incorporate any of the letters Mr Kwok mentioned, whether expressly or by necessary implication.

46. Secondly, the Appellant had had other “encounters” with the Council - over the treatment and charges reported in the newspaper article, the Palmer College association and her Association’s accreditation.  As noted above, the Council had not replied to the Appellant to say to say that her answers had been accepted and in any event, the concerns expressed by the Council over the Palmer College association and the accreditation came after the letters of 30 January 2003 and 5 February 2003.  Certainly from the correspondence to which this court has been referred, it was not obvious that those concerns had been put behind the parties by the time of the Council’s decision.

47. Thirdly, it was by no means clear from the language of the letter of 26 May 2003 (para. 32 above) from the Registration Committee that the reason for the rejection was that hospital administration was not recognised as a profession within the ambit of s. 4(6)(l) of the Rules.  The letter did not specifically refer to that reason, and the inclusion of the reference letter from the doctor (even if correct in describing what evidence had been adduced by the Appellant) may have served more to confuse than to clarify.

48. Fourthly, the reference in the Council’s letter of 17 July 2003 (para. 34 above) to an opportunity for the Appellant herself to give oral evidence before the Registration Committee may also have obfuscated the issue.

49. Accordingly, I do not agree with Mr Kwok that the reason for the rejection would have been obvious to the Appellant from the previous correspondence.

50. If that was all that this appeal was concerned with, then I would have had no hesitation reversing the Council’s rejection of the application.  A reversal of the decision to reject due to the failure to give an adequate statement of reasons does not however mean that the application must be automatically accepted.  The Ordinance gives no automatic right to registration in default of rejection.  The Council would be entitled to reconsider the application and if it rejects it again, give a proper statement of the reasons in compliance with s.11(3) of the Ordinance.  The Appellant would then have to lodge another appeal if she disagreed with the reasons, leading to delay and further costs.

Appeal - was the Council justified in declining to recognize hospital administration as a profession?

51. However, at the hearing of this appeal, Mr Kwok made it clear that the Council’s sole reason for rejection was that:

“the applicant has not provided sufficient evidence to show that she is a fit and proper person to be registered as she has failed to comply with section 4(2) of the [Rules] in that one of the reference letters supplied by her, viz. that from Mr Ho Chi Fun, was not from a person in a profession which the Council recognized, as his ‘profession’ or occupation of hospital administrator does not have a system of registration and a code of practice”. 

52. Since that was the Council’s sole reason for its rejection of the Appellant’s application, then even if this appeal were allowed, the Council would on reconsidering the application give the same reason and make the same decision.  As the Appellant had made submissions to this court on the validity of this reason, and had addressed the issue in her grounds of appeal, we considered that no useful purpose would be served by merely allowing the appeal, for the Council to make the same decision for the same reason, thereby entailing the parties’ return to this court at some future date.  Accordingly, we proceeded to deal with the substance of the dispute between the parties.

53. First, Mr Kwok submitted that under s.4(6)(l) of the Rules, it was within the Council’s authority to decide which professions it would recognize (para. 33, Respondent’s Submissions).  That is right, but it cannot be suggested that the Council can act capriciously, and the fact that there is a right of appeal to the Court of Appeal indicates that the court must be entitled to consider the validity of the reasons for the Council’s decision to decline to extend recognition to hospital administration as a “profession”.

54. Pausing here, the Appellant submitted that the word “profession” was capable of a wide meaning.  I agree that colloquially the word “profession” may sometimes be used loosely in English to mean simply “occupation”.  However, the use of the term “專業” in the Chinese version of the Rules makes it quite clear that it is the narrower meaning of the word that is intended - normally a field of work requiring learning, examination and training in that particular field, entitling its practitioners to membership of a body from which membership list or register they may be liable to be struck off if they failed to comply with a code of behaviour governing its members. 

55. In the present case, Mr Kwok submitted that the Council was entitled to decline recognition of hospital administrators as they do not have a system of registration and a code of conduct (para. 34, Respondent’s Submissions).  The Council had previously referred to a code of practice as one of its criteria for recognition.  The Appellant submitted that the Council was changing its stance.  I do not think it matters whether one speaks of a code of conduct or a code of practice.  The purpose of such a code is to ensure a certain standard of behaviour or competence in order to uphold the reputation or standards of members of that profession as a whole.

56. Whilst the persons listed in s.4(6)(a) - (d) of the Rules may be regarded as occupying particularly respected positions in society, certainly each of the persons listed in s.4(6)(e) - (k) indisputably belongs to a “profession” in the sense discussed in para. 54 above.  I take the view that the Council had acted reasonably and consistently in comparing the field of hospital administration against the listed professions. 

57. First, hospital administrators do not require any learning, examination or training in a branch of administration particular to hospitals.  The letter from the Hospital Authority to the Council indicated that simply a good general tertiary education is required. 

58. Secondly, there was no evidence of any governing body of hospital administrators with power to strike off offending members.  As noted above, in her letter of 20 June 2003, the Appellant did not suggest that hospital administrators had a code of practice (or conduct).  Although the Appellant said before this court that the Hospital Authority has a code of conduct or practice, it was not suggested that this was anything other than a body of rules typically laid down by an employer for compliance by employees.    

59. In the circumstances, I take the view that given the matters discussed in paras. 50-58 above, there is no point allowing the appeal simply for the purpose of sending the application back to the Council for reconsideration.  In the light of the matters discussed in those paragraphs, this appeal against the rejection of the application should be dismissed.  However, in view of the matters discussed in paras. 17-49, I would give an order nisi that there should be no order as to costs.

Hon. Tang JA:

60. I agree.