YEUNG KAM WAH v. THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

HCAL 313/2018

[2018] HKCFI 1805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 313 OF 2018

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D E C I S I O N

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INTRODUCTION

1.  This is the Applicant’s application, with the support of the Respondents, for leave to discontinue the present application for judicial review.  The application is opposed by the 2^nd Interested Party.  At the conclusion of the hearing on 25 July 2018, I granted the Applicant leave to discontinue the present application for judicial review with reasons to be given later, which I now do.

BASIC FACTS

2.  In 1985, the Applicant underwent a surgery for the excision of a benign lump in her left breast.  During the period from May to July 2006, the Applicant underwent various breast cancer screenings.  The screening results suggested a probability of benign mass in the left breast, but there was some suspicion of malignancy.

3.  On 21 July 2006, the Applicant consulted Dr Suen To Ki Dacita (“Dr Suen”, the 2^nd Interested Party) at the Breast Surgery Clinic, Department of Surgery, Queen Mary Hospital.  The Applicant alleges that Dr Suen advised her to carry out an excisional biopsy (by way of a wide local excision) without explaining to her the less intrusive option of diagnostic core biopsy, or proposing or providing any other alternative procedure. This allegation is disputed by Dr Suen.

4.  On 1 August 2006, the Applicant was admitted to Tung Wah Hospital.  Dr Cheung Tan To (“Dr Cheung”, the 1^st Interested Party) saw the Applicant for the purpose of obtaining her consent to the surgery.  It is the Applicant’s case that Dr Cheung also did not explain to her the less intrusive option of diagnostic core biopsy, or propose or provide any other alternative procedure.

5.  On 2 August 2006, the Applicant had a surgery involving a wide local excision in the left breast.  Subsequent investigation revealed that there was no malignancy.

6.  On 17 August 2010, the Applicant lodged a complaint against Dr Cheung and Dr Suen to the Medical Council of Hong Kong (“Medical Council”, the 1^st Respondent) in respect of the 2006 surgery.

7.  On 10 October 2013, the Secretary of the Medical Council informed the Applicant that the Preliminary Investigation Committee of the Medical Council of Hong Kong (“PIC”, the 2^nd Respondent) had decided not to proceed with her complaint on the ground that there was insufficient prima facie evidence to prove that Dr Cheung and Dr Suen had committed any professional misconduct.

8.  On 10 May 2016, the Applicant furnished further documents, including pleadings, witness statements and expert reports filed in a personal injuries action commenced by her against the Hospital Authority in HCPI 455/2012, to the Medical Council and requested it to re-open her complaint against Dr Cheung and Dr Suen.  By a letter dated 15 September 2016, the Medical Council informed the Applicant that her complaint had been referred to the PIC for re-consideration.

9.  By a further letter dated 1 December 2017, the Medical Council informed the Applicant that the PIC considered that there was no evidence to show that Dr Cheung and Dr Suen had been guilty of professional misconduct, and decided not to proceed with her complaint further (“the Decision”).

10.  On 28 February 2018, the Applicant made an application for leave to apply for judicial review of the Decision.  Two grounds were raised in her Form 86, namely:-

(1)  illegality, in that the PIC inappropriately attempted to resolve conflicts of evidence and went beyond its powers and duties under the relevant statutory scheme; and

(2)  irrationality, in that no reasonable PIC would have concluded that the Applicant’s complaint against Dr Cheung and Dr Suen had no real prospect of being established.

11.  On 1 March 2018, the court granted the Applicant leave to apply for judicial review on consideration of papers alone.

12.  On 2 May 2018, Dr Suen filed an affidavit in these proceedings.  In that affidavit, Dr Suen, while recognising that the Decision was flawed because the PIC should not have attempted to resolve substantial conflicts in the factual materials before it, contended that there were good grounds for the court to exercise its discretion not to quash the Decision and remit the matter back for re-consideration by a newly constituted PIC, on the grounds of:-

(1)  abuse of process on the part of the Applicant; and/or

(2)  inordinate and inexcusable delay on the part of both the Applicant and the PIC in the instigation and pursuit of the Applicant’s complaint against her which would make any disciplinary inquiry in relation to it, more than 12 years after her treatment of the Applicant, unfair.

13.  On 15 May 2018, the Applicant and the Respondents filed an agreed statement pursuant to Practice Direction SL3 (“the Joint Statement”) with a view to seeking an order from the court to dispose of the application for judicial review upon the following terms:-

(1)  the Decision be quashed;

(2)  the matter be remitted to the PIC for consideration in accordance with the law that it should not attempt to resolve conflict of evidence; and

(3)  the Respondents shall pay the Applicant’s costs and disbursement of these proceedings.

14.  On 15 May 2018, Dr Suen took out a summons seeking directions from the court in relation to the filing of evidence by the Applicant and Respondents and reply evidence by her for the purpose of the substantive hearing of the application for judicial review.  That summons came before the court on 7 June 2018.  On that occasion, the Applicant, with the support of the Respondents, sought an immediate order for the disposition of the application for judicial review upon the proposed terms as set out in the Joint Statement.  The Applicant’s application was objected to by Dr Suen, who insisted that there should be a full substantive hearing of the application for judicial review.  The court was not prepared to make an order to quash the Decision at that hearing, in the face of opposition by an interested party to the proceedings.  The court expressed the view, however, that the Respondents had or might have power, as a matter of law, to re-open the Applicant’s complaint if they considered it appropriate to do so without the need for any court order quashing the Decision.  The court also gave directions regarding the filing of evidence under Dr Suen’s summons.

15.  On 5 July 2018, the Applicant took out the present summons seeking leave to discontinue the application for judicial review, having obtained a letter from the Department of Justice dated 3 July 2018 in which the following was stated:-

“We have instructions to inform you that the Medical Council fully agrees that the Decision in question should be quashed and that the complaint should be reconsidered by a differently constituted PIC.”

16.  I have been told by Mr Chan (on behalf of the Respondents) that subject to the court granting leave to the Applicant to discontinue the present application, the PIC would proceed to re-consider the Applicant’s complaint against Dr Cheung and Dr Suen.

17.  As earlier mentioned, the Applicant’s application for discontinuance is opposed by Dr Suen.

DISCUSSION

18.  Dr Suen has not disputed the proposition that the PIC has power to re-consider the Decision of its own motion.  That the PIC has such power is clear: see the decision of Zervos J (as he then was) in Dr U v Preliminary Investigation Committee of the Medical Council of Hong Kong [2016] 4 HKLRD 31, at paragraph 185.

19.  In the present case, the Respondents have come to the conclusion that the Decision ought to be quashed, and that the PIC ought to re-consider the Applicant’s complaint against Dr Cheung and Dr Suen (see paragraph 15 of the Joint Statement).  The Applicant is willing not to pursue her application for judicial review, and wishes her complaint to be re-considered as expeditiously as possible.  Prima facie, there is no good reason why the court should insist on a substantive hearing of the application when the Applicant no longer wishes to pursue the relief sought in the application.  The present position is very different from the situation where the court is being asked to make an order to quash the Decision.  To do that the court must be satisfied that there are proper grounds for the Decision to be quashed.  On the other hand, where the court is being asked to grant leave to discontinue an application for judicial review, the court may properly do so provided that no injustice is caused to any party.  It must be emphasized that by granting leave to discontinue in the present case, the court is not directing the PIC to re-consider the Applicant’s complaint.  It is primarily a matter for the Respondents to decide whether the PIC should re-consider the Applicant’s complaint.  While the Respondents’ decision to re-consider the Applicant’s complaint may itself be subject to the court’s supervisory jurisdiction, that is an entirely different matter.

20.  Dr Suen objects to the discontinuance of the present application on a number of grounds.  First, it is said that the Applicant and the Respondents have sought by a new procedural manoeuvre, after the failed attempt on 7 June 2018, to:-

(1)  “carve up between them the application for JR and to dispose of it summarily without due consideration having been given by the Court to the interests of [Dr Suen]”; and

(2)  avoid public exposure, judicial scrutiny, and risk of criticism of (i) the inordinate and inexcusable delay by both the Applicant and the Respondents in relation to the pursuit of the Applicant’s complaints against Dr Suen, rendering a fair trial of the complaints impossible, and (ii) the further abuse of process involved in the Applicant seeking to “re-open” her complaints before the Medical Council on the false ground of “fresh evidence”, having chosen not to challenge the PIC’s dismissal of her original complaint and having chosen not to adduce the evidence which she now relies on, falsely, as constituting “fresh evidence”.

21.  I am unable to ascribe to the Applicant and the Respondents the ulterior motive alleged against them by Dr Suen as mentioned in paragraph 20 above.  It seems to me that this is a straight-forward case where the Applicant and the Respondents have reached agreement on how to resolve the underlying dispute and now wish to have this application disposed of as economically and expeditiously as possible.  I do not consider that by granting the discontinuance sought, Dr Suen’s interests would be unfairly prejudiced, or the Applicant and the Respondents would be able to avoid the public exposure, judicial scrutiny, or risk of criticism of the alleged wrongful conduct on their part.  Dr Suen’s allegations can be fully and properly ventilated before the PIC, the Medical Council and/or the court when the Applicant’s complaint comes to be re-considered by the PIC and/or in future inquiry or proceedings arising from such re-consideration, which seem to me to be obviously the more appropriate fora for an examination of those allegations than the present proceedings where the questions to be determined are (i) whether the Decision ought to be quashed upon one or both of the two grounds of judicial review raised by the Applicant to challenge the Decision, and (ii) whether the court ought to withhold relief as a matter of discretion.  For the avoidance of doubt, I should make it clear that I express no view on the validity of Dr Suen’s allegations against the Applicant and the Respondents.  It is neither necessary, nor appropriate, to do so since those allegations may have to be considered by the court in future.

22.  Second, Dr Suen says that the Applicant, with the co-operation of the Respondents, seek by the present summons to have the application for judicial review discontinued without a substantive hearing, rather than being dismissed on the ground of abuse of process.  Since the Applicant has decided not to pursue the present application for judicial review, it is, I consider, academic for the court to determine whether the present application ought to be dismissed on the ground of abuse of process.

23.  Third, Dr Suen argues that it would not be satisfactory for her to raise the issue of abuse of process on a fresh hearing before a new PIC given that a central aspect of her allegations of unfairness and abuse relates to the conduct of the Medical Council itself.  It is further said that the Medical Council would then be left as a judge in its own cause, with a manifest conflict of interest.  I do not consider that it is right at this stage to assume that the PIC and/or Medical Council will not act fairly towards Dr Suen in the re-consideration of the Applicant’s complaint against her, or in any further inquiry arising from such re-consideration.  Should they fail to act fairly towards Dr Suen, she can bring an appropriate challenge to the court.

24.  Fourth, Dr Suen says that if the Respondents were to execute the agreement with the Applicant to refer her complaints for inquiry, Dr Suen would apply for judicial review of that decision based on the matters now alluded to in the present application for judicial review and so the court would then need to revisit the whole matter, albeit many months hence, which would involve unnecessary delay and costs for all concerned.  If and when Dr Suen makes an application for judicial review, the court will deal with it on the basis of the evidence before it in accordance with the applicable legal principles.  I do not consider that it is right to consider Dr Suen’s threatened application for judicial review at this stage which has not been properly formulated.

25.  Lastly, Dr Suen says that if the court were to make the orders now sought in the present summons, that would enable the Applicant and the Respondents to obtain an opportunity, having failed to answer on affidavit Dr Suen’s allegations within the time limit imposed by the court’s directions given on 7 June 2018, to answer them much later before the Medical Council, and then not necessarily on affidavit.  It is, in my view, important to appreciate that the questions to be determined in the present application for judicial review (namely, whether the Decision ought to be quashed on one or both of the two grounds of judicial review set out in the current Form 86, and whether the court ought to withhold relief as a matter of discretion) are different from the question of whether the Respondents ought not to re-open the Applicant’s complaint in view of Dr Suen’s allegations of abuse or unfairness (assuming that they can be established).  In any event, it has not been shown, and I am not convinced, that Dr Suen will suffer any or any substantial prejudice merely because the Applicant and the Respondents have some more time to answer her allegations of abuse or unfairness.

26.  Overall, I consider that granting the discontinuance sought by the Applicant is clearly the fair and reasonable order to make in the circumstances of the present case, and would best serve the objectives of the CJR.

DISPOSITION

27.  For the foregoing reasons, I make an order in terms of paragraph 1 of the Applicant’s summons dated 5 July 2018.

28.  The Respondents are willing to pay the Applicant’s costs of these proceedings.  There are, however, issues between the parties regarding Dr Suen’s costs as well as the costs of the hearing on 25 July 2018.  I shall deal with all questions of costs separately.