DR DARREN VIVIAN MANN v. THE MEDICAL COUNCIL OF HONG KONG

HCAL 21/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 21 OF 2007

______________________

______________________

______________________

J U D G M E N T

______________________

1.  The applicant applied for judicial review pursuant to leave granted to challenge 3 decisions of the Chairman of the Medical Council concerning an inquiry by the Council into the conduct of Dr. Donald James Greig (“the defendant”) under the Medical Registration Ordinance (Cap. 161) (“MRO”), namely:

(1)	the decision of the Chairman made sometime between 26 July 2006 and 7 August 2006 to apply to the Secretary for Justice for the appointment of a Legal Officer to carry out the duties of the Secretary of the Council under s.21(2) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (“the Regulation”);
(2)	the decision by the Chairman on 17 January 2007 upon a joint application by the solicitors for the defendant and the Legal Officer to postpone the hearing of the inquiry;
(3)	the decision by the Chairman on 5 February 2007 that the Council would not permit the applicant as complainant:
	(a)	to be represented at the inquiry;
	(b)	to be heard at the inquiry;
	(c)	to question witness at the hearing of the inquiry;
	(d)	to be given a record of the proceedings of the hearing of the inquiry unless and until the Council has given permission for the applicant to present the case against the defendant under s.25(2) of the Regulation.

2.  The defendant had been served and joined as an interested party in the present application.

Background

3.  The applicant is a registered medical practitioner.  On 24 September 2005, he made a complaint against the defendant to the Council.  On 21 July 2006, the Preliminary Investigation Committee (“PIC”) referred the complaint to the Council for inquiry.  3 charges were formulated against the defendant:

(1)	practice promotion in association with the Hong Kong Hernia Centre (“HKHC”) by advertisements which were not permissible under the Professional Code and Conduct for the Guidance of Registered Medical Practitioners (“the Code”);
(2)	false or misleading claims in the advertisements:
	(a)	that HKHC provided to patients the benefits of “less discomfort after your operation”, “earlier return to work”, “fewer complications” and “a low recurrence”, which are features of surgical technique and can be achieved by any surgeon operating in an appropriate setting;
	(b)	implying that there was an approved panel of surgeons and anaesthetists working at HKHC where there was only one surgeon involved;
	(c)	implying that HKHC had a dedicated physical location within the Matilda Hospital while HKHC did not exist as a distinct physical facility within Matilda Hospital;
	(d)	implying that HKHC had employees while in fact it did not.
(3)	practice promotion in:
	(a)	publishing fees; and
	(b)	telephone number of the an associated medical practice; in non-permitted forms of media in contravention of the Code.

4.  On 1 August 2006, the applicant was informed that the Legal Officer will represent the Secretary and present the case.  On 22 August 2006, the applicant was informed that he might be called as a witness. 

5.  On 7 September 2006, the Secretary formally applied to the Secretary of Justice for the appointment of the Legal Officer to carry out the duties of the Secretary.  In fact, there is a standing policy to apply for the appointment of the Legal Officer in the inquiries.

6.  The hearing of the inquiry against the defendant was originally fixed to take place on 31 January 2007.

7.  On 11 August 2006, Reyes J handed down the judgment in Dr. Kwok-hay Kwong v. The Medical Council of Hong Kong HCAL 46/2006, holding that certain restrictions on practice promotion and strict liability on a doctor on breaches by an associated medical organization contravened the rights of freedom of speech, opinion and expression under Art. 27 of the Basic Law and Art. 16 of the Bill of Rights. 

8.  On 29 December 2006, the Legal Officer wrote to the Secretary inviting him to consider adjourning the inquiry pending the determination of the appeal in Dr. Kwong case by the Court of Appeal.  The Legal Officer pointed out the relevance of Dr. Kwong case to charges 1 and 3, and although charge 2 was not caught by the case, the broader and more fundamental issue of whether it was proportionate to prohibit the publication of the materials involved might be called into question.

9.  On 3 January 2007, the Secretary sought the opinion of the Legal Advisor of the Council.  The Legal Advisor endorsed the Legal Officer’s view to adjourn the inquiry, but expressed concern about possible delay.  The Legal Advisor suggested notifying the defendant and inviting joint application for an adjournment.  

10.  On 16 January 2007, the Chairman agreed to the adjournment upon the joint application of the Secretary and the defendant.  The Secretary then notified the applicant of the adjournment.

11.  On 30 January 2007, the applicant’s solicitors, Messrs. Barlow Lyde & Gilbert (“BLG”) wrote to the Secretary, stating that under s.24(1) of the MRO, the applicant was a party to the inquiry, and was entitled to be represented throughout the inquiry, and was entitled to be heard throughout the inquiry.  The applicant was entitled to be notified of any applicant to adjourn, and to be heard by the Chairman concerning the application before the decision was reached.  Hence, the Chairman’s direction was irregular and unlawful.   The gravamen of the applicant’s complaint was that the practice promotion rules were not merely circumvented to produce material deceiving to the public, but the defendant advertised a wholly fictitious hernia centre, in a manner which included materials suggesting a superior level of treatment to that available to other practitioners in Hong Kong.  The applicant’s contention was that the advertisements were not honest, decent or truthful but rather were deliberately construed and calculated to knowingly exploit the naivety of the public.  Whatever arguments may be canvassed as to the appropriate boundaries of factual advertising, these arguments have no bearing on false or deceptive advertising in the complaint.  BLG requested a copy of the notice of inquiry and of the joint application for adjournment, and the applicant be afforded the opportunity to make representations to the Chairman as to whether the hearing should proceed.  If the Council failed to act within 7 days, leave would be sought to apply for judicial review against the Council.

12.  On 5 February 2007, the Secretary wrote back to BLG, stating that having regard to the provisions of the Regulation, the complaint was not entitled to the rights demanded until and unless permission was given for him to present the case against the defendant.  Despite the lack of right to demand, the complainant may make reasonable requests in relation to the inquiry, but it was in the discretion of the Chairman to decide whether such requests should be acceded to, having regard to the interest of justice in the case.  The Chairman exercised the discretion to provide a copy of the charges against the defendant to the applicant.

13.  After the present proceedings have been commenced, the applicant discovered that at a meeting held on 6 September 2006, the Council endorsed a policy that misleading advertisement may lead to danger to health and life, and public health is such an important issue that there is zero tolerance for such danger.

14.  According to the diary of the Council, the earliest time for the inquiry will be in December 2007.

Relief sought

15.  The applicant sought the following relief:

(1)	an extension of time to make an application in connection of decision (1);
(2)	certiorari to quash decisions (1) (2) and (3);
(3)	a declaration that under s.24(1) of the MRO, the applicant has the rights set out in paras.(a) to (d) of decision (3) as well as the right to be notified in advance of any application made by any party in the inquiry;
(4)	a declaration that the Regulation is ultra vires the MRO in as much as the Regulation fails to make express provision of the aforesaid rights or seeks to abridge the rights;
(5)	a declaration that the application by the Secretary to the Secretary for Justice for the appointment to carry out the duties of the Secretary was unlawful.

Statutory framework

16.  The disciplinary powers of the Council are provided in Part IV of the MRO and in  the Regulation.

17.  Under s.21(1) of the MRO, the PIC may refer a case to the Council for due inquiry, and the Council may order various sanctions if it is satisfied that any registered medical practitioner is guilty of misconduct in any professional respect.  Under s.21(2) of the MRO, “due inquiry” means an inquiry by the Council conducted substantially in accordance with the procedure prescribed by the Regulation. 

18.  Under s.33(4)(viii) of the MRO, the Council may by regulation provide for the procedure to be followed in relation to inquiries held by the Council.  The procedure are contained in the Regulation.

19.  S.24(1) of the MRO provides that:

“	The complainant in any inquiry under section 21 and the person whose conduct is the subject of such  shall be entitled to be represented by counsel or by a solicitor throughout the inquiry.”

20.  Under s.21(1) of the MRO, the Council may make such order as it thinks fit with regard to the payment of the costs of the Registrar of Medical Practitioners, the Secretary, any complaint or any person presenting the case to the Council or of the medical practitioner.

21.  Under s.21(2) of the Regulation, on the application of the Chairman, the Secretary of Justice may appoint a Legal Officer within the meaning of the Legal Officers Ordinance (Cap. 87) to carry out the duties of the Secretary in respect of the inquiry.

22.  Other provisions of the Regulation relating to a complainant are:

(1)	the PIC may require the complainant to clarify and support the complaint (s.8(1) of the Regulation);
(2)	the Secretary shall inform the complainant the decision of the PIC that no inquiry is to be held (s.12(1) of the Regulation);
(3)	the Secretary shall inform the complainant the holding of the inquiry (s.13(4) the Regulation);
(4)	the Secretary shall advise the complainant where a case is referred back to the PIC by the Chairman (s.15(2) of the Regulation);
(5)	the Secretary shall give notice of the amendment of a notice of  inquiry to the complainant (s.16(3) of the Regulation);
(6)	the Secretary shall, where appropriate, give notice of an adjournment of inquiry to the complainant (s.20(2) of the Regulation);
(7)	at the request of the complainant or his counsel or solicitor, the Council may permit the complainant or his counsel or solicitor to present the case against the defendant if the Council thinks it appropriate in the circumstances of the case (s.25(2) of the Regulation);
(8)	the Secretary shall sent a copy of a notice of postponement of judgment to the complainant (s.27(2) of the Regulation);
(9)	the Secretary shall send the complaint a copy of the notice of postponement of sentence (s.30(2) of the Regulation);
(10)	the Secretary shall notify the complainant of the review of the decision by the Council (s.34(4) of the Regulation).

23.  It is noted that the Regulation was amended in 1997.  The repealed s.22(a) of the pre-1997 Regulation provided that the complainant in person or his solicitor or counsel shall present the case against the defendant and adduce evidence in support thereof and shall close the case against the defendant.  If there is no complainant or in absence of the complainant, the Secretary shall present the case.  Hence, by the amendment, the duty to present the case against the defendant shifted from the defendant to the Secretary, subject to the Council permitting the complainant to do so if it thinks fit.

The issues

24.  The issues in this case are:

(1)	Whether the applicant is a party to the proceedings, or at any rate entitled as of right to be heard on any preliminary or incidental matters, including any application to adjourn or postpone the inquiry;
(2)	Whether s.25(2) of the Regulation which provides that the Council may permit the complainant or his counsel or solicitor to present the case against the defendant if the Council thinks appropriate in the circumstances of the case is ultra vires or inconsistent with the applicant’s right to be represented throughout the inquiry under s.24 of the MRO;
(3)	Whether the decision to adjourn the inquiry before it opened was ultra vires as the Chairman only has power to “adjourn” but not to “postpone” the inquiry under s.20, Regulation;
(4)	Whether the decision to adjourn was irrational;
(5)	Whether the decision to apply to the Secretary for Justice for the appointment of the Legal Officer was premature and procedurally unfair when the applicant was not given notice of the same.

Due enquiry

25.  Under s.21(2) of the MRO, “due inquiry” means an inquiry by the Council conducted substantially in accordance with the procedure prescribed by the Regulation. 

26.  It was argued at some stage whether an inquiry conducted substantially in accordance with the procedure prescribed by the Regulation means that the Council has the discretion to dispense with some of the provisions of the Regulation.

27.  I am of the view that an inquiry conducted substantially in accordance with the Regulation means that the procedure in the Regulation must be complied with in substance.  As the present dispute is concerned with what are the rights of a complainant in substance, I do not think that s.21(2) of the MRO will throw any light on the matter.

Party to the inquiry

28.  Mr. Dykes, SC, for the applicant, submitted that the applicant is a party, or ought to be treated as a party to the inquiry on the following grounds:

(1)	service of the notice of inquiry;
(2)	the interest of a potential presenter of the case against the defendant;
(3)	the right of legal representation throughout the enquiry;
(4)	the power of the Council may make an order for costs for or against the complainant.

Service of the notice of enquiry

29.  In para.25 of the Re-Amended Notice of Application for Leave to Apply for Judicial Review, it is contended that that the applicant is a party to the inquiry on the basis that s.13(4) of the Regulation requires the complainant to be “served” with the notice of the inquiry, with reference by analogy to s.2 of the High Court Ordinance (Cap. 4) that “party” includes every person served with notice of or attending any proceeding, although not named on the record.

30.  Under the MRO and the Regulation, the provisions as to service or notification of proceedings on the defendant and the complainant are different. 

31.  Under s.13(4) of the Regulation, the Secretary shall serve a notice of inquiry together with a copy of the Regulation on the defendant, but shall inform the complainant the holding of the enquiry.  Thus, there is no requirement of service of the notice of inquiry on the complainant. 

32.  Under s.27(1) of the Regulation, the defendant shall be served a notice of the date, time and place of a meeting where the judgment has been postponed, but the complainant is to be sent a copy of the notice only.  Under s.30(1) of the Regulation, the defendant shall be served a notice of the postponement of sentence, but the complainant is to be sent a copy of the notice only.  Under s.34(4) of the Regulation, the defendant is to be served a notice of the decision after a review but the complainant is to be notified accordingly only.

33.  Under s.25(1) of the MRO, the Registrar shall serve the order made by the Council on the medical practitioner concerned, and there is no provision for service or sending of the order on the complainant.

34.  Further, under s.26 of the MRO, the medical practitioner aggrieved by any order of the Council may appeal to the Court of Appeal.  There is no right of appeal by the complainant.

35.  Hence, the applicant is not a formal party to the inquiry by virtue of service of the notice of the inquiry.

Right of a potential presenter

36.  Mr. Dykes submitted that the complainant is required to be informed of the holding of the holding of the inquiry under s.13(4) of the Regulation.  By necessary implication, the information was to enable to the complainant to attend before the Council and be represented by counsel to exercise his right to apply to present the case against the defendant.  Hence,  the complainant must be given the notice of application to postpone the inquiry in order to make representations in the exercise of his right of legal representation under s.24(1), MRO.

37.  Mr. Dykes submitted that in the leaflet prepared for the information of a complainant was misleading:

“	Do you need a solicitor or other advisor if you want to complain?
	No, the Medical Council has its own solicitors to help with the legal side of things.  However if you prefer, you can get your own legal advice.
	Legal Costs
	You are not required to pay any costs if the case if presented by the Secretary of the Medical Council.  You can however choose to instruct your own lawyer, or to present your case personally.  If you do this you will pay your own legal expenses.”

38.  There is no mention of the power of the Council to order payment of the Complainant’s costs under s.21(1) of the MRO.  The applicant was mislead into believing that he was a mere witness, and his participation or even presence was for the prosecution to decide.  Mr. Dykes submitted that it could not be that the applicant only becomes a party as a result of an administrative discretion of the Council.

39.  While the leaflet may not be entirely correct on the provision on costs, it does mention the possibility of the case being presented by the complainant, and it is prefaced by the following:

“	This leaflet is for information only.  For further details, please refer to the provisions of [the MRO] and [the Regulation].”

40.  Under s.25(2) of the Regulation, the possibility of the applicant presenting the case against the defendant is subject to the permission of the Council.  Hence, the real issue is whether the requirement of permission by the Council under s.25(2) of the Regulation is ultra vires the applicant’s right to legal representation throughout the inquiry under s.24 of the MRO.

Right to legal representation

41.  The applicant’s claim of the right of participation throughout the inquiry is based on the right to legal representation throughout the inquiry under s.24(1) of the MRO.

42.  Mr. Dykes submitted that the right to representation throughout the inquiry means that the complaint is to be treated as if a party to the inquiry.  Insofar as s.25(2) of the Regulation seeks to restrict the complainant’s right of participation unless and until permission is granted by the Council, it is ultra vires s.24(1) of the MRO.

43.  Mr. Bleach, SC, for the Council, and Mr. Strachan, for the defendant, submitted that Mr. Dykes’ proposition is a quantum leap from the right of representation.

44.  Mr. Bleach submitted that the mere fact that a complainant is entitled to legal representation does not mean that he is entitled to be heard on all issues in the inquiry.  The question is to what extent the legally represented complainant is entitled to participate in the enquiry so as to render the process procedurally fair.

45.  In Lloyd v. McMahon [1987] AC 625, Lord Bridge said at p. 702H:

“

My Lords, the so-called rules of natural justice are not engraved on tablets of stone.  To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individual depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.”

46.  In Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, Lord Diplock sat at p. 411H:

“

What procedure will satisfy the public law requirement of procedural propriety depends upon the subject matter of the decision, the executive functions of the decision maker (if the decision is not that of an administrative tribunal) and the particular circumstances in which the decision came to be made.”

47.  In R v. Secretary of State for the Home department, ex parte Doody [1994] 1 AC 531, Lord Mustill said at p. 560D-G:

“

What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

48.  In Annetts v. McCann [1990] 97 ALR 177, a coroner was inquiring into the deaths of two boys.  S.24 of the Coroners Act 1920 (WA) provides that at any inquest any person who is in the opinion of the coroner has a “sufficient interest” in the subject or result of the inquest may attend personally or by counsel and may examine and cross-examine witnesses.  The coroner granted leave to counsel representing the parents of one of the deceased to appear at the inquiry.  Counsel sought to address the coroner on the whole of the evidence.  The coroner refused permission to do so.  The parents appealed to the Full Court of the Supreme Court of Western Australia which held that the interest of the appellants did not include the protection of the interest of the deceased.  Upon further appeal, the High Court of Australia allowed the appeal and held that the grant of representation created a legitimate expectation that the coroner would not make any finding adverse to the interest which the appellants represented without giving them the opportunity to be heard in opposition to that finding.  The joint leading judgement (Mason CJ, Deane and McHugh JJ) stated that:

“	Apart from s.24, nothing else in the Act provides any support for the proposition that the Act excludes the rules of natural justice. Accordingly, the rules of natural justice are applicable to the present inquest. That being so, the coroner cannot lawfully make any finding adverse to the interests of the appellants without first giving them the opportunity to make submissions against the making of such a finding.
	Counsel for the appellants argued that, as he could not know what findings the coroner would make until the case was over, he was entitled to address on the whole of the evidence.  The conclusion does not follow from the argument. The issues in respect of which findings adverse to the appellants may possibly be made can be isolated and, once isolated, counsel for the appellants is not entitled to address the coroner on matters which are not relevant to those issues…
	It needs to be stressed that, although the appellants are entitled to make submissions concerning matters which are identified as a possible source of adverse findings concerning their interests, they have no right to make submissions on the general subject matter of the inquest. Their legal entitlement is confined to making submissions in respect of matters which may be the subject of adverse findings against them personally or against the deceased…”

49.  Hence, the issue on the potential right to present the case aside, the right of legal representation creates the legitimate expectation that no adverse finding will be made against a person without the opportunity of being heard. 

50.  In R v. Secretary of State for the Home Department, ex parte Goswell (Court of Appeal (England) 16 May 1995 Transcript), Goswell was convicted of assault and threatening behaviour and he successfully appealed to the Crown Court.  He made a complaint to the Police Complaints Authority against assault by Constable Trigg.  The disciplinary tribunal found Trigg guilty and ordered his dismissal.  Trigg appealed to the Commissioner, who confirmed the finding and punishment.  Trigg then appealed to the Home Secretary.  The panel appointed by the Home Secretary allowed the appeal.  Application for judicial review was made by Goswell for reversal of the Home Secretary’s decision.  Leave was granted.

51.  Meanwhile, Goswell had commenced civil proceedings against the Commissioner.  In those proceedings, the Commissioner made disclosure of all the statements taken in investigation of the complaint and the material part of the report of the Home Secretary’s panel, asserting an implied undertaking that Goswell was entitled to use them only for the purpose of his civil proceedings. 

52.  In the judicial review proceedings, Goswell also sought disclosure of the documents, contending that he was entitled to receive them as of right.

53.  Brooke J (as he then was) dismissed the application fro judicial review.  His Lordship decided that the relevant statutory provisions made it clear that a complainant in the position of Goswell had no locus standi to challenge the outcome of the disciplinary proceedings, and there was no requirement for the Home Secretary to disclose the documents.

54.  Counsel for the Goswell contended that the complainant had a sufficient interest in ensuring that the police complaints procedure worked properly in order that there would be an honourable, disciplined, law abiding and uncorrupt police service such as to entitle him to consider in a properly informed way whether the complaint was processed lawfully by the Police Complaints Authority, whether it was prosecuted lawfully within the police disciplinary system, and whether it was adjudicated upon lawfully.  Secondly, counsel also submitted that the judge placed far too much weight on the provisions of the statute, and he should not have treated the statute as being dispositive of Goswell’s rights and interest because there was a relationship of propinquity arising from the undoubted assault by Trigg.

55.  Hutchison LJ, in dismissing the appeal, said at the second last paragraph of the judgment:

“

In my judgment, the short answer to this application is that neither of those propositions can be established.  The learned judge did not accept them, and nor do I.  It seems to me that once Mr. Goswell had made his complaint and the matter had been taken up by the Police Disciplinary Authority so that disciplinary proceedings were launched, the subsequent progress of the proceedings was a matter between the prosecuting authorities and Police Constable Trigg.  Mr. Goswell was indeed, in my judgment, in no significantly different position from a complainant whose complaint result in the initiation of criminal proceedings.  Though there was, in a loose sense, a relationship between him and Police Constable Trigg arising out of his complaint, it was not such a relationship as gives rise to a duty of fairness such as Lord Bridge had in mind in Lloyd v. MaMahon and the learned judge was right to hold as much.  More particularly, I cannot detect any adverse consequence which follows so far as Mr. Goswell is concerned fro the decision.  It does not affect his right to pursue a claim for damages, and if he persuades a court of the truth of his account, and the legal basis of it, to secure damages…”

56.  Mr. Dykes submitted that Goswell was decided in the context of the Police (Appeal) Rules 1965 and the position of a complainant under those rules are very different.  Under rule 8, the tribunal shall allow the complainant to attend the inquiry while witnesses are being examined or cross-examined provided that where the complainant is to be called as a witness at the inquiry, he and any person allowed to accompany him shall not be allowed to attend before he gives his evidence.  

57.  I note that the applicant here also has no right of appeal against the outcome of the inquiry.

58.  In any case, I find the reasoning in Goswell that once an inquiry is ordered, there is no interest in a complaint to see to it that procedure of the inquiry would work properly is of general application.  Of course, that does not detract from the potential right to present the case against the defendant.

59.  According to the principle of natural justice stated above, the extent to which the applicant (qua complainant) should be heard depends on all the circumstances including:

(1)	The statutory framework of the proceedings;
(2)	The character of the decision maker;
(3)	The rights or interest of the applicant involved;
(4)	The subject matter and nature of the decision.

60.  Under s.21 of the MRO, the duty of the Council is to inquire into misconduct of the registered medical practitioner.  It is inquisitorial in nature, and not adversarial or adjudicative of the disputes between the complainant and the defendant medical practitioner.

61.  In the present case, the applicant is not a victim of any alleged misconduct of the defendant, and the inquiry is not concerned with any rights or obligations of the applicant.  No allegation has been made against the applicant in the inquiry, no issue has yet been identified where any adverse finding is likely against the applicant.  The applicant may apply for permission to present the case under s.25(2), Regulation, but there is as yet no application nor decision. 

62.  Hence, once a complaint is made and an inquiry is ordered, the subsequent progress of the proceedings is a matter between the party presenting the case and the defendant.  Subject to the permission to present the case, there is no right of supervision in the applicant that the complaint be dealt with in a manner considered appropriate by him.

63.  Further, I find that s.25(2) of the Regulation is not ultra vires the right to legal representation throughout the inquiry under s.24 of the MRO.  Legal representation enables the complaint to present the case or protect his interest against any adverse finding.  It does not create the right to present the case regardless of the permission of the Council. 

64.  I bear in mind that the amendment in 1997.  There is clearly a shift in the legislative mind to remove from the complaint the incidence to present the case and to place it in an independent party.  Charges of misconduct against a registered medical doctor is no light matter, and the case should be presented in a fair and impartial manner.  A complainant may not always be dispassionate to do so.  I consider that the amendment as eminently sensible, and the requirement of permission of the Council is reasonable and proportional in the light of all the circumstances.

65.  Hence, in the absence of the occasion to present the case or any possible finding adverse to his interest, I do not find that the applicant is to be treated as if he is a party to inquiry and be accorded the full right to make submissions before any procedural decision including an adjournment by reason of the potential right to present the case and/or the right to legal representation throughout the inquiry. 

66.  Under s.20(2) of the Regulation, the Secretary shall, where appropriate, give notice of an adjournment of inquiry to the complainant.  There is no provision on giving notice of any application for adjournment to the complainant.  Of course, if the applicant is unavailable at an adjourned hearing where he is to be a witness, then his interest is affected, and he may request another date to be fixed to enable him to give evidence. 

67.  Mr. Dykes referred to a private prosecution under the Magistrates Ordinance (Cap.227), and to the Barristers Disciplinary Tribunal Proceedings Rules (Cap.159P) and the inquiry against medical practitioners in the UK.  Those proceedings are prescribed under the relevant statutory provisions, and they do not assist the applicant here.

Power to award costs

68.  Mr. Dykes submitted that the applicant is a party to the inquiry because the Council may make an order for costs for or against the complainant.

69.  S.21(1) of MRO reads as follows:

“	(1)	If, after due inquiry into any case referred to it by the Preliminary Investigation Committee, the Health Committee or the Education and Accreditation Committee in accordance with regulations made under section 33, the Council is satisfied that any registered medical practitioner-
		(a)	…
			the Council may, in its discretion-
			(i)	…
		and may, in any case, make such order as the Council thinks fit with regard to the payment of the costs of the Registrar, the Secretary, any complainant or any person presenting the case to the Council or of the registered medical practitioner, and any costs awarded may be recovered summarily as a civil debt in accordance with the provisions of section 67 of the Magistrates Ordinance (Cap. 227).”

70.  Assuming that the Council has a general power of costs for or against the complainant, no order of costs will be made on the complaint unless and until he has taken active part in the inquiry.  Such acts may be the presentment of the case against the defendant with permission of the Council, or such other steps as necessary to protect any finding adverse to the complainant, where none has been identified here. 

71.  Hence, the argument on power to award costs for or against the complainant does not take the matter any further than the argument based on right to legal representation throughout the inquiry.

Power to adjourn

72.  Mr. Dykes submitted that the decision of the Chairman to “adjourn” the inquiry was ultra vires because:

(1)	The power to adjourn is vested in the Council and not the Chairman;
(2)	The so-called “adjournment” was clearly a “postponement” of the inquiry before it opened, rather than an adjournment at the opening of the inquiry.

73.  S.20 of the Regulation provides that the Chairman may adjournment an inquiry to such date as he thinks fit.  Hence, the power of adjournment is vested in the Chairman.

74.  Mr. Dykes submitted that an “adjournment” is to suspend a hearing already commenced and direct it be re-commenced at a future date. He highlighted the difference between “adjournment” and “postponement” by referring to the power of postponement of judgment under s.27(1) of the Regulation and postponement of sentence under s.28(1) of the Regulation.

75.  The definition of “adjourn” in the Oxford English Dictionary (2^nd Ed.) includes “to defer or put off (a time, action or state) … to another day; also indefinitely; to postpone, defer, put off”.  Hence, no light is shed by the use of the word “postpone” in relation to judgment or sentence as to whether the inquiry has to be opened before the power to adjourn can be exercised. 

76.  With respect, Mr. Dykes’ proposition is too and technical restricted. I find that the Chairman is empowered to adjourn the inquiry before the Council has met for the purpose of the inquiry.

Adjournment irrational

77.  In the light of my reasoning above, the applicant has no locus standi to complain about the adjournment.  Be that as it may, I shall consider the merits of his arguments.

78.  Mr. Dykes submitted that the decision to decision to put off the inquiry indefinitely to wait for the Court of Appeal decision in Dr. Kwong’s casewas irrational because:

(1)	Even supposing that charges 1 and 3 could await the Court of Appeal decision, charge 2 related to misleading advertising and had nothing to do with Dr. Kwong’s case;
(2)	The Chairman failed to take into account the Council’s stated policy of “zero tolerance” on misleading advertising;
(3)	The Chairman failed to deal with the time that might be involved in achieving a final adjudication and there might be further appeal to the Court of Final Appeal.

79.  In Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, the English Court of Appeal held that the court in judicial review proceedings is not a court of appeal, and can only interfere with an act of executive authority if it be shown that the authority has contravened the law.  Lord Greene MR referred to the errors of: (1) failing to take into account relevant consideration, and (2) “Wednesbury unreasonableness”.  On (1), his Lordship said at p. 228:

“

If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion it must have regard to those matters.  Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.”

And on (2), at p.230:

“	It is true to say that, if a decision on a competent decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.”

80.  On the discretion of the tribunal (or authority) to adjourn, I was referred to R v. Hereford Magistrates’ Court, Ex parte Rowlands [1998] QB 110.  There, the applicants were convicted before the justices.  They sought an adjournment on the eve of the trial to enable two witnesses to attend to give evidence for the defence.  The justices refused the adjournment.  Instead of appealing to the Crown Court, they sought judicial review of the justices’ decision on the ground of procedural irregularity.  Lord Bingham of Cornhill CJ said at p.127G-H:

“

… It is not possible or desirable to identify hard and fast rules as to when adjournments should or should not be granted. The guiding principle must be that justices should fully examine the circumstances leading to applications for delay, the reasons for those applications and the consequences both to the prosecution and the defence. Ultimately, they must decide what is fair in the light of all those circumstances.

This court will only interfere with the exercise of the justices' discretion whether to grant an adjournment in cases where it is plain that a refusal will cause substantial unfairness to one of the parties. Such unfairness may arise when a defendant is denied a full opportunity to present his case. But neither defendants nor their legal advisers should be permitted to frustrate the objective of a speedy trial without substantial grounds…”

81.  In R (Huntington Borough Council) v. Secretary of State for the Environment, Transport and Regions [2001] EWHC Admin 421, Co/675/2000, permission to apply for judicial review was sought of a decision of the planning inspector that subject to the decision of the House of Lords, a planning inquiry would recommence on a certain date.  Sullivan J said at para.30 of the judgment:

“	These are judicial review proceedings.  I remind myself that the question is not whether I would have granted an adjournment in those circumstances, the question is whether [counsel for the applicant] can persuade this court that the inspector’s conclusion was perverse.”

82.  In the present case, the adjournment was on the joint application by both parties to the inquiry, and on the advice that although charge 2 was not caught by the Dr. Kwong’s case, the broader and more fundamental issue of whether it was proportionate to prohibit the publication of the materials involved might be called into question.  The severance of charge 2 from charges 1 and 3 would cause a multiplicity of suit as against the defendant, unless charges 1 and 3 were dropped.  Hence, it could not said that the decision to adjourn was perverse.  Furthermore, there is no unfairness to the applicant by reason of the adjournment.

83.  The appeal is listed before the Court of Appeal on 24 October 2007.  And the Council’s diary is not free until December 2007.  As to any further appeal to the Court of Final Appeal, that possibility is once removed, and is not directly relevant at the moment.

84.  It is true that the Chairman did not take into account the zero tolerance policy against misleading advertising in considering the adjournment.  However, in the light that the decision was not perverse and there was no unfairness to the applicant, the omission was technical.

85.  The relief in judicial review is in the discretion of the court.  I have considered the nature of the complaint, the progress of the appeal, the state of the Council’s diary and overall fairness, I do not considered that the decision on adjournment should be interfered with.

Legal Officer

86.  Mr. Dykes submitted that application by the Chairman for the appointment of the Legal Officer was unlawful in that:

(1)	the application was premature in that it is the duty of the Secretary to draw up the charges in the notice of inquiry;
(2)	the application for the Legal Officer pre-empted the opportunity of the complaint to apply for presentment of the case against the defendant.

87.  Mr. Dykes submitted that on a proper construction of s.13(4) of the Regulation, it is the duty of the Secretary to draw up the charges without resort to the Legal Officer.

88.  S.13(4) of the Regulation provides that:

“

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 day fixed for the inquiry, serve on the defendant a notice of inquiry together with a copy of this regulation and shall inform the complainant the holding of the inquiry.”

89.  Mr. Dykes submitted that the construction that the Chairman shall not apply for the appointment of the Legal Officer before the service of the notice of inquiry on the defendant will allow the complaint to apply to the Council to present the case free from the time constraints in s.13(4) of the Regulation.  If the Secretary requires legal advice on the charges, he may seek advice from the Legal Advisor.  The complainant should be notified of his right to present the case under s.25(2) of Regulation upon being informed the holding of the inquiry.  The question of the retention of the Legal Officer will be held over until it is known whether the Council will be required to make a decision on an application by the complaint to present the case.

90.  There is no time constraint on the application for the appointment of the Legal Officer by the Chairman under s.21(2) of the Regulation.  I see no reason why the Legal Officer cannot be appointed to carry out the duties of the Secretary before the service of the notice of inquiry on the defendant, as after all the drawing of charges may involve legal issues.  I also see no problem of a standing decision to apply for the appointment of the Legal Officer so long as there is justification applicable to the individual case.  Here, I see no contra indication.

91.  The appointment of the Legal Officer does not pre-empt or preclude the application to present the case by the complainant.  Once the permission to present the case is given by the Council, the complainant (or his counsel) will take over from the Legal Officer.

92.  Hence, I do not consider that the appointment of the Legal Officer is unlawful.

Conclusion

93.  The application for judicial review is dismissed.  In relation to decision (3), apart from engaging legal representation to present the case against the defendant with the permission of the Council, a complainant may do so if there is the possibility of any adverse finding against him.  However, there is no such indication in the present case.

Costs

94.  There are 3 issues on costs:

(1)	Costs between the applicant and the respondent;
(2)	Costs of the defendant as the Interested Party;
(3)	Costs reserved of an application (including hearing) by the applicant to strike out an affidavit of the defendant.

95.  As to (1), I make the order nisi that the applicant do pay the costs of the proceedings to the respondent.

96.  As to (2), I note the decision of the Court of Appeal in PCCW-HKT Telephone Ltd v. The Telecommunications Authority CACV 60/2007 (Date of Judgment: 18 September 2007), in adopting the approach of the House of Lords in Bolton MDC v. Secretary of State for the Environment [1995] 1 WLR 1176, 1178F-1179A, in holding that whilst the court has the discretion to awards costs, an interested party has to demonstrate that there is a separate issue on which he was entitled to be heard or that he had an interest which require separate representation before he is entitled to his costs.  I make an order nisi that there be no order as to costs as between the applicant and the Interested Party (i.e. the defendant).

97.  As to (3), the applicant took out a summons to strike out the entire affidavit of the defendant dated 2 May 2007.  Reyes J struck out only paras. 16, 17 and 18 of the affidavit.  Those paragraphs contained allegations of name dropping by the applicant and practice promotion of the medical practice of the applicant’s wife.  The remaining of the affidavit dealt with background of HKHC and the complaint.  Costs of the application (including the hearing) was reserved to the judge hearing the judicial review proper.

98.  Mr. Strachan submitted that the applicant was not wholly successful in the application to strike out the entire affidavit. 

99.  I agree that paras. 16 to 18 are not relevant.  The rest may be generally relevant as background.  In litigation, parties tend to adduce evidence or put forward arguments with the net cast wide.  Some may be relevant and others not, and the matter may be dealt with at the hearing, or at the conclusion of the evidence in civil cases.  Seldom is it necessary to take out a summons to deal with admissibility, unless there is serious prejudice such that the impugned materials be excised sooner.  I see no reason why the matter could not be dealt with at the hearing of the judicial review.  In view of my order nisi in (2), I make an order nisi that there be no order as to costs on the application by the applicant to strike out the defendant’s affidavit.

100.  Lastly, I wish to thank counsel for their helpful submissions.