SZE HEI FA HELENA v. CHINESE MEDICINE PRACTITIONERS BOARD OF THE CHINESE MEDICINE COUNCIL OF HONG KONG

HCAL 10/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 10 OF 2003

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J U D G M E N T

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

2. In 1989, the Working Party on Chinese medicine was set up with a view to introducing a comprehensive regulation of the profession of Chinese medicine practitioners. In 1995, the Preparatory Committee on Chinese medicine appointed to make recommendation on the regulation conducted an enrolment exercise to survey the number and profile of Chinese medicine practitioners. In 1997, a consultation exercise on the proposed regulatory measures was conducted. In February 1999, the Chinese Medicine Bill was introduced to the Legislative Council. On 14 July 1999, the Chinese Medicine Ordinance (Cap. 549) was enacted.

3. The Ordinance, inter alia, provides for: establishing a Chinese Medicine Council of Hong Kong ("the Council") (section 3); establishing a Chinese Medicine Practitioners Board of the Council ("the Practitioners Board") (section 12(a)); registration of Chinese medicine practitioners (Part VII); transitional arrangements for Chinese medicine practitioners (Part IX); and appeals against certain decisions of the Board (section 97).

4. In August 2000, the Council published a "Handbook for the Registration of Chinese Medicine Practitioners", which contained information for those who wished to apply to be registered through the transitional arrangement provisions.

5. The Applicant was born in Hong Kong in 1957. According to the Applicant, in 1984, she started to learn Chinese medicine under a master, Mr Law Saint Wan, a Chinese medicine practitioner. From 1984 to 1989, she practised Chinese medicine under the supervision and instruction of Mr Law. In 1986, the Applicant started attending the Ching Wah Chinese Medical Institute in the evenings on a part-time basis. In August 1989, the Applicant successfully completed a three-year comprehensive course in the theory and practice of Chinese medicine at the Institute, and completed the prescribed period of bedside practice at the Institute. After graduation, the Applicant practised independently as a Chinese medicine practitioner in the employ of her master at his clinic. In April 1990, the Applicant applied for a business registration certificate to continue her practice in Chinese medicine as a sole proprietress at her master's clinic. In September 1999, the Applicant set up her own clinic.

6. Part VII of the Ordinance, as mentioned above, deals with registration of Chinese medicine practitioners. Section 59 provides that the Practitioners Board established under section 12(a) of the Ordinance shall set and conduct an examination ("the Licensing Examination"), the passing of which shall qualify a person to apply to be registered as a "registered Chinese medicine practitioner" in Hong Kong.

7. Section 67 reads as follows:

"67. Qualifications for registration under section 69

A person is qualified to apply to be registered as a registered Chinese medicine practitioner under section 69 if -

(a) he has passed the Licensing Examination; or

(b) the Practitioners Board has determined that he is so qualified under section 92."

8. Section 68 sets out the administrative procedure for making an application for registration. Section 69 reads:

"69. Registration

(1) The Practitioners Board may, subject to sections 70 and 71 and the recommendation of the Registration Committee, approve an application for registration as a registered Chinese medicine practitioner under section 68.

(2) Upon approving an application for registration by a person who has been exempted from the Licensing Examination under section 93, the Practitioners Board may impose such conditions and restrictions on the practice of that person as it considers necessary.

(3) Where the Practitioners Board has imposed conditions or restrictions under subsection (2), it may amend, vary or revoke any of such conditions or restrictions.

(4) Upon approving an application for registration under subsection (1), the Practitioners Board shall direct the Registrar to enter the name of the person on the Register."

9. Section 70 sets out various grounds (such as criminal conviction, professional misconduct, fraud and misrepresentation) based on which the Practitioners Board may refuse to approve the application of a person for registration. Section 71 deals with cases involving previous conviction and professional misconduct.

10. As mentioned above, Part IX contains the "Transitional arrangements for Chinese medicine practitioners". Sections 90, 92, 93 and 94 read as follows:

"90. List maintained by Practitioners Board

(1) The Practitioners Board shall compile and maintain a list of Chinese medicine practitioners and shall enter on such list the name of any person who -

(a) is practising Chinese medicine on 3 January 2000;

(b) has applied to the Practitioners Board for his name to be included in the list; and

(c) has paid a prescribed fee.

(2) A person whose name is entered on the list under this section shall be assessed by the Practitioners Board as to whether he satisfies the requirements under section 92.

(3) A person referred to in subsection (2) may -

(a) continue practising Chinese medicine, subject to such conditions and restrictions as may be imposed and notified in writing by the Practitioners Board; and

(b) use the title of "Chinese medicine practitioner" in the English language and "中醫" or "中醫師" in the Chinese language,

until -

(i) his name has been entered on the Register under section 69(4);

(ii) his application for registration, if any, has been refused under section 70;

(iii) his name has been removed from the list under section 91; or

(iv) such date as may be specified and promulgated by the Secretary by notice in the Gazette,

whichever is the earliest.

(4) Where the Practitioners Board has imposed conditions or restrictions under subsection (3)(a), it may amend, vary or revoke any of such conditions or restrictions.

(5) The list maintained under this section shall remain open for application for inclusion by Chinese medicine practitioners within such period of time as may be determined by the Practitioners Board.

(6) The Practitioners Board may arrange to publish in the Gazette from time to time as it thinks appropriate the list maintained by it under this section.

(7) Nothing in this section shall operate so as to prohibit any person who was practising Chinese medicine immediately prior to the commencement of this provision from continuing to practise in accordance with this Ordinance until after the expiry of the period of time referred to in subsection (5).

(8) Where a person who continues to practise Chinese medicine by virtue of subsection (7) would, but for this subsection, be liable to be prosecuted for an offence under section 108(1)(c) and (2), then the person shall not be so liable until after the expiry of the period of time referred to in subsection (5) notwithstanding that on the expiry of such period of time, no application under subsection (1)(b) has been made to the Practitioners Board.

...

92. Alternative qualifying requirements

(1) The Practitioners Board may determine a person to be qualified to be registered under section 69 if it is satisfied, after assessment, that the person -

(a) is one whose name is entered on the list maintained under section 90; and

(b) has acquired substantial experience, knowledge and skills in the practice of Chinese medicine.

(2) No person shall be regarded as having acquired substantial experience, knowledge and skills for the purpose of subsection (1)(b) unless he has -

(a) attained the standard which qualifies him to be exempted from the Licensing Examination under section 93;

(b) passed the registration assessment as required under section 94; or

(c) passed the Licensing Examination as required under section 95.

93. Exemptions from Licensing Examination

A listed Chinese medicine practitioner who satisfies the Practitioners Board that he has fulfilled either one of the following criteria, namely -

(a) immediately before 3 January 2000, he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 15 years; or

(b)	(i) immediately before 3 January 2002, he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 10 years; and
	(ii) he has obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board,

shall be exempted from the Licensing Examination.

94. Registration assessment

(1) A listed Chinese medicine practitioner who satisfies the Practitioners Board that he has fulfilled either one of the following criteria, namely -

(a) immediately before 3 January 2000, he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 10 years; or

(b)	(i) immediately before 3 January 2000, he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 10 years; and
	(ii) he has obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board,

shall be exempted from the Licensing Examination but shall be required to pass a registration assessment conducted by the Practitioners Board before he is qualified to apply to be registered as a registered Chinese medicine practitioner under section 69.

..."

11. It is reasonably clear from the above provisions that existing Chinese medicine practitioners may take advantage of the transitional arrangements in a number of ways. However, in order to be able to do so, he must first be practising Chinese medicine on 3 January 2000 and must apply to the Practitioners Board for his name to be included in the list of Chinese medicine practitioners; he must also pay the prescribed fee: section 90(1).

12. Once his name is entered on the list, the Practitioners Board will be under a statutory duty to make assessment in relation to his qualifications: section 90(2). Such a listed Chinese medicine practitioner may, depending on his qualifications and experience, take advantage of the transitional arrangements in basically 5 different ways (categories I to V respectively):

(a) If he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 15 years immediately before 3 January 2000, he need not sit for any examination at all, and may directly apply for registration pursuant to sections 67(b), 68 and 69.

(b) If he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 10 years (but less than 15 years) immediately before 3 January 2000, and he has obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board, he need not sit for any examination at all and may also apply directly for registration pursuant to sections 67(b), 68 and 69.

(c) However, if he has been practising Chinese medicine in Hong Kong for a continuous period of not less than 10 years (but less than 15 years), but he has not obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board, he is exempted from the Licensing Examination but has to undergo and pass the registration assessment under section 94, before he can apply for registration pursuant to sections 67(b), 68 and 69.

(d) If he has been practising Chinese medicine in Hong Kong for a continuous period of less than 10 years, but has obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board, he is likewise exempted from the Licensing Examination but is required to undergo and pass a registration assessment under section 94, before he can apply for registration pursuant to sections 67(b), 68 and 69.

(e) If he has been practising Chinese medicine in Hong Kong for a continuous period of less than 10 years, but has not obtained a qualification in Chinese medicine practice acceptable to the Practitioners Board, he is eligible to undertake the Licensing Examination (section 61(1)(b)), and if he passes the examination, he is entitled to apply for registration pursuant to sections 67(a), 68 and 69.

13. In the present case, the Applicant successfully got her name entered on the list of Chinese medicine practitioners. However, according to the Applicant's Form 86A,

"22. The Applicant mistakenly believed that only the period in which she held a Business Registration Certificate would be taken into account by the Chinese Medicine Practitioners Board of the Chinese Medical Council ("the Practitioners Board") and the practising experience gained when she was employed by her Master would not be taken into account. Therefore, although she had been practising Chinese medicine independently after her graduation for more than 10 years, she stated in the Application Form that she only practised Chinese medicine since April 1990 for 9 years and 9 months. She therefore declared that she had practised Chinese medicine in Hong Kong for less than 10 years (i.e. 93/4 years) as of 3rd January 2000."

14. In other words, the Applicant put forward a case under category IV above. In those circumstances, the Practitioners Board duly determined that the Applicant was exempted from the Licensing Examination, but had to undergo and pass the registration assessment under section 94. The decision was communicated by the Board to the Applicant on 5 September 2002 by letter.

15. According to the Applicant, by the end of September 2002, she learned from other practitioners and realised for the first time that the practising experience she gained when she was employed by Mr Law would also be accepted as practising experience of Chinese medicine within the meaning of the Ordinance. She learned that as a matter of fact, the period during which a person practised as an employed practitioner would be counted by the Practitioners Board when it assessed that person's experience.

16. Therefore, by a letter dated 16 October 2002, the Applicant through her solicitors wrote to the Council to point out the mistake that she had made in her application form for entry of her name on the list, submitted further documents in support of her claimed earlier experience and practice in Chinese medicine, and asked the Practitioners Board to reconsider her case.

17. On 23 November 2002, the Practitioners Board wrote in reply to set out the reasons for its assessment. It also advised the Applicant that her request for a reconsideration of her case was refused on the ground that there is no statutory provision for review or appeal against the determination by the Practitioners Board in question under the Ordinance.

18. In these proceedings, the Applicant does not challenge the original determination or assessment by the Practitioners Board under section 92 of the Ordinance, by which the Applicant is exempted from the Licensing Examination but is required to undergo and pass the registration assessment (i.e. category IV above). The Applicant accepts that on the case and material put forward by the Applicant at the material time, the determination was correctly made. Rather, the Applicant seeks to challenge the later decision of the Practitioners Board, as communicated in its letter dated 23 November 2002 to the Applicant, that it has no power to revisit the situation notwithstanding the mistake alleged to have been made by the Applicant. The Applicant seeks relief accordingly.

19. In my judgment, it is important to define the issue precisely. First, the issue raised is not whether the Applicant has, as a matter of fact and evidence, been practising Chinese medicine for a continuous period of not less than 10 years prior to 3 January 2000. Certainly this is the Applicant's assertion in the present proceedings, in support of which she has put in evidence. The position is not accepted by Mr Ambrose Ho SC, counsel for the Respondent. But Mr Ho does not go so far as to argue that on the material before this Court, the assertion of the Applicant is unbelievable or should not be believed. This question need not be decided in these proceedings.

20. Secondly, the issue raised in these proceedings is not the general question of whether the Practitioners Board has the power to review its determination under section 92 generally. In this regard, Chu J has on three occasions said that no such power to review generally exists: 洪作炅訴香港中醫藥管理委員會中醫（註冊）組HCAL 128/2002 (24 October 2002); 陳厚裕訴香港中醫藥管理委員會HCAL 9/2003 (20 June 2003); 黃華安訴香港中醫藥管理委員會HCAL 18/2003 (20 June 2003).

21. Rather, the issue raised in the present proceedings is a very narrow one: whether the Practitioners Board has the power to reconsider its determination or assessment under section 92 of the Ordinance if the determination or assessment was based on or affected by a material mistake of fact (or mixed law and fact). In none of the three cases dealt with by Chu J was any mistake of fact involved or alleged to have been involved by the applicants. Rather, the cases were concerned with applicants who were dissatisfied with the determination or assessment of the Practitioners Board and who sought to adduce further material in an attempt to persuade the Board to change its mind.

22. It is the Applicant's contention that the Practitioners Board does indeed have such a power to revisit the situation if the original determination or assessment was based on or affected by a material mistake of fact. The Board was therefore wrong in refusing to even consider reviewing the case on the erroneous ground of lack of jurisdiction. For this reason, as I said, it is unnecessary to determine in the present proceedings whether the alleged mistake was actually made (as to which the Respondent has not put forward any real challenge in these proceedings), or whether the Applicant had really been practising for over 10 years immediately prior to 3 January 2000 as claimed.

23. Once the issue raised in these proceedings is properly narrowed down, the picture becomes clearer. A general review of the statutory framework and the provisions of the Ordinance, particularly those express statutory provisions regarding review and appeal, and the legislative background of the whole Ordinance, is of some general, but also only limited, assistance. It is true that the Ordinance contains express provisions for review of a number of decisions: see for instance, section 66 (review of decision in relation to the Licensing Examination), section 96 (review of the result of registration assessment), section 140 (review of a number of decisions made by the Chinese Medicine Committee or the Chinese Medicine Traders' Committee), section 97 (appeals against the decision of the Practitioners Board made under various provisions), and section 141 (appeal to the Court of First Instance against the decision of the Medicine Board made under various sections). It is true that the determination or assessment of the Practitioners Board under section 92 is not amongst the many decisions that the Ordinance expressly provides an aggrieved person may apply to review or appeal against.

24. It is also true that the number of (as it were) pre-existing Chinese medicine practitioners is great - over 8,000 persons applied for entry of their names on the list of Chinese medicine practitioners and about 8,000 of these applicants successfully got their names so entered on the list and thus required the assessment of the Practitioners Board in relation to their qualifications. A general right to review, after a determination or assessment has been made, on application by a dissatisfied listed Chinese medicine practitioner may create an intolerable or unworkable workload for the Practitioners Board, and thus may not have been the intent of the legislature in enacting the Ordinance.

25. Likewise, the transitional nature of the provisions under Part IX of the Ordinance which caters for the status quo also tends to suggest that there cannot be a general right of review after the determination or assessment by the Practitioners Board.

26. The above considerations, which have been succinctly submitted by Mr Ho, do tend to support his proposition that there is no right to review.

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

28. This is a case where the Applicant says that she made a fundamental mistake from the outset, which resulted in her putting forward a wrong case, i.e. claiming herself to have been practising for 9 years and 9 months only, thus effectively placing her case within category IV. In other words, because of the mistake she was labouring under, she never put forward her true case, i.e. a case under category III - and the Practitioners Board never made any determination on her true case.

29. In my judgment, even in the absence of a general right to review, there is leeway to suggest that when a determination or assessment was based on or affected by a material mistake of fact, the Board has the power or jurisdiction to review the matter after the mistake has come to light.

30. This is indeed the contention of Mr Pun, counsel for the Applicant. Mr Pun relies on two provisions in the Interpretation and General Clauses Ordinance (Cap. 1) to overcome the absence of express provisions for review in the Ordinance. Sections 39 and 46 of the Interpretation and General Clauses Ordinance read as follows:

"39. Exercise of powers

(1) Where any Ordinance confers any power or imposes any duty, then the power may be exercised and the duty shall be performed from time to time as occasion requires.

(2) Where any Ordinance confers any power or imposes any duty on the holder of any public office as such, then the power may be exercised and the duty shall be performed by the holder for the time being of that public office.

...

46. Power to make public instruments and perform acts

Where any Ordinance confers power upon any person to make, grant, issue or approve any proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list, such power shall include power -

(a) to amend or suspend such proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list;

(b) to substitute another proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list for one already made, granted, issued or approved;

(c) to withdraw approval of any proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list so approved; and

(d) to declare the date of the coming into operation, and the period of operation, of any such proclamation, order, notice, declaration, instrument, notification, licence, permit, exemption, register or list."

31. Section 46 of the Ordinance does not seem to have any English equivalent. But I tend to agree with Mr Ho that the section does not really assist the Applicant because it basically deals with public instruments. Although sections 92(2)(a) and 93 of the Ordinance refer to a listed Chinese medicine practitioner being "exempted" from the Licensing Examination, I am not persuaded that section 46 (which refers to "exemption") applies. One is concerned with whether a listed Chinese medicine practitioner is qualified to be exempted from the Licensing Examination by reason of the standard that he has attained - a matter to be determined by the Practitioners Board; one is not concerned with an "exemption" as such. In other words, one is concerned with a determination which may subsequently manifest itself in the form of an instrument, one is not concerned with the instrument itself.

32. As regards section 39, which does have an English equivalent (Interpretation Act 1978, section 12), this conveniently brings me to the crux of the issue. According to authorities, even in the absence of an express power to review, an administrative body may in certain circumstances re-open a decision on the ground of mistake and the like. The matter has been discussed in some detail in Wade, Administrative Law (8th ed) 235 to 236:

" In the interpretation of statutory powers and duties there is a rule that, unless the contrary intention appears, 'the power may be exercised and the duty shall be performed from time to time as occasion requires'. But this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, ministers and other authorities.

For the purpose a distinction has to be drawn between powers of a continuing character and powers which, once exercised, are finally expended so far as concerns the particular case. An authority which has a duty to maintain highways or a power to take land by compulsory purchase may clearly act 'from time to time as occasion requires'. But if in a particular case it has to determine the amount of compensation or to fix the pension of an employee, there are equally clear reasons for imposing finality. Citizens whose legal rights are determined administratively are entitled to know where they stand.

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

There are also cases where a power of review is expressly given by statute. The social security authorities, for example, have extensive powers to review their decisions on grounds of fresh evidence, change of circumstances, or mere mistakes. Powers of much the same kind have been conferred on employment tribunals. But if it proposes to vary its decision under such a power the tribunal should first hear any party prejudiced. Even where such powers are not conferred, it is possible that statutory tribunals would have power, as has the High Court, to correct accidental mistakes; to set aside judgments obtained by fraud; and to review a decision where facts subsequently discovered have revealed a miscarriage of justice. In the absence of such special circumstances the tribunal's decision is irrevocable as soon as it has been communicated to the parties, even though orally and even though the reasons for it remain to be given later.

A mistake may lead to action being taken upon a wholly wrong basis so that some different action needs to be substituted. This happened where a local education authority agreed to pay the costs of school transport for a girl, supposing that she lived more than three miles from the school and that they therefore had a statutory duty to pay. When it was found that the distance was less than three miles, so that they had a power to pay but no duty, they refused to do so. The Court of Appeal rejected the plea that the original decision was irrevocable, since it was not taken in the exercise of any power to determine a question of legal right and could not affect the duty to exercise discretion when the true facts appeared." (emphasis added)

33. In my judgment, the present case does not involve a power of a continuing character. Rather, it involves a power which, once exercised, is expended so far as concerns the particular case. Nor is one concerned with a case where there is a power to decide questions affecting private rights but where there is also an inherent power to vary an order or power to entertain fresh proceedings and make a different decision, such as a power the exercise of which is based on policy which is essentially variable. One is not concerned with a case of correcting accidental mistake, fraud, or miscarriage of justice either.

34. However, Wade refers to an exception which concerns not the determination of an individual's pre-existing right, but rather the exercise of a discretion conferring on an individual a benefit which he or she otherwise would not have enjoyed.

35. This distinction is of crucial importance in the present case.

36. In Re 56 Denton Road, Twickenham [1953] Ch 51, the War Damage Commission classified the plaintiff's house as a "partial loss" in 1945. In 1946, the Commission tried to re-classify the house as a "total loss", which (interestingly) would have entitled the plaintiff to less compensation under the relevant legislation. The court held that the Commission could not do so. Vaisey J enunciated the principle as follows (at pages 56-57):

" On the second point the plaintiff's counsel offered for my acceptance the following proposition: that where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body. I accept that proposition as well-founded, and applicable to the present case. It is, I think, supported by Livingstone v. Westminster Corporation and Robertson v. Minister of Pensions.

...

I think that the contrary view would introduce a lamentable measure of uncertainty, and so much disturbance in the minds of those unfortunate persons who have suffered war damage that the Act cannot have contemplated the possibility of such vacillations as are claimed to be permissible in such a case as the present."

37. In Rootkin v. Kent County Council [1981] 1 WLR 1186, the Court of Appeal distinguished Re 56 Denton Road. In Rootkin, the council committee had a wide discretion under section 55(2) of the Education Act 1944 to pay the transportation expenses of students. But because of the provisions in section 39 of the same Act, it effectively had (as per case law) a statutory duty to do so if the distance between the student's home and school was 3 miles or more. Originally, the applicant's daughter was issued with a season ticket on the ground that the distance between school and home was more than 3 miles. Subsequently it was discovered that the measurement was wrong, and the distance was about 175 yards less than 3 miles. The council committee reviewed the whole matter and decided not to issue a season ticket. The Court of Appeal held that the Committee had the right to do so. Lawton LJ said (at pages 1194G-1195D):

" It is against that background that I now have to look at what happened in this case. The council, at the end of July 1976, did decide to exercise their discretion under section 55(2). It is accepted that the officer who so decided, Mr Evans, was duly authorised by them to make the decision. He made his decision under a mistake of fact, namely, that the difference from Helen's home to the school was more than three miles. On the basis of that mistake of fact, and pursuant to the decision in Surrey County Council v. Minister of Education, he, as an officer of the defendant council authorised to exercise his discretion, was bound to authorise the reimbursement to Mrs Rootkin of the cost of travelling. He performed his duty by authorising the issue of a yearly bus ticket. But when the mistake of fact was discovered in November 1976, he was duty bound, as I see it, to the council to reconsider the matter because, on the facts as he knew them in November 1976, there was no duty to issue a bus season ticket to Helen. I can see no reason in law why he should not have reconsidered the matter when he found that a mistake had been made about the distance.

It was submitted to us on the authority of a number of cases of which the last in order of time was In re 56 Denton Road, Twickenham [1953] Ch 51 that what Mr Evans was doing was making a determination, and having once made a determination, he was not entitled to go back on it. In my judgment, that is a misconception.

It is the law that if a citizen is entitled to payment in certain circumstances and a local authority is given the duty of deciding whether the circumstances exist and if they do exist making the payment, then there is a determination which the local authority cannot rescind. That was established in Livingstone v. Westminster Corporation [1904] 2 K.B. 109. But that line of authority does not apply in my judgment to a case where the citizen has no right to a determination on certain facts being established; but only to the benefit of the exercise of a discretion by the local authority. The wording of section 55(2) is far removed from the kind of statutory working which was considered in In re Denton Road, Twickenham and Livingstone v. Westminster Corporation. I cannot, for my part, see any basis for the submission that the decision of Mr Evans in July 1976 was irrevocable when he found out what the true facts were."

38. Eveleigh LJ agreed and said (at page 1197B-C):

" Counsel has argued that the decision to pay the fare was irrevocable, even if mistaken, and he has relied upon the principle in Livingstone v. Westminister Corporation [1904] 2 K.B. 109. That principle of irrevocability may well be applicable when there is a power or a duty to decide questions affecting existing legal rights. In Livingstone v. Westminister Corporation itself the council were concerned to assess compensation for Local Government Act 1899. Generally speaking, however, a discretionary power may be exercised from time to time unless a contrary intention appears. I can see nothing in the Education Act 1944 to prevent the education authority from reviewing its decisions from time to time - when the decision is under section 55(2) which is claimed to be applicable in this case."

39. In short, the Court of Appeal treated the case (on its true - as opposed to mistaken - facts) as one involving the exercise of a discretion by the council committee to confer a benefit on the applicant's daughter pursuant to its power under section 55(2) of the Education Act 1944, rather than a determination of the legal right of the applicant's daughter to the season ticket. Accordingly, the principle of irrevocability did not apply and the council committee was entitled to re-open the matter and consider how to exercise its discretion under section 55(2).

40. Wade (in the above extract) accepted Rootkin as providing a particular type of situations where an administrative tribunal may revisit its decision on the ground of mistake.

41. The two English decisions were examined in detail by M. Akehurst in Revocation of Administrative Decisions [1982] PL 613 (referred to by Wade on page 235 footnote 34). The learned author accepted the distinction drawn by the Court of Appeal in Rootkin, i.e. a determination of an individual's pre-existing legal right, as opposed to the exercise of a discretionary power.

42. The learned author analysed the situation (at pages 623-624) and concluded (at pages 626-627) as follows:

" When an administrative body is empowered to determine whether an individual has a pre-existing legal right, it is performing the same type of function as a court performs. The general rule is that judgments of a court are final and cannot be revoked: interest reipublicae ut sit finis litium. When Parliament entrusts the task of making such a determination to an administrative body instead of a court, it is reasonable to assume that Parliament intended the decisions of such an administrative body to enjoy the same degree of irrevocability as judgements of a court. The administrative body has jurisdiction to determine the question, but to determine it once only; having determined the question once, it is functus officio and has no jurisdiction to revoke its decision. As Vaisey J. said in Re 56 Denton Road, such a decision cannot be revoked "in the absence of express statutory power or the consent of the person or persons affected."

But different considerations apply when an administrative body is empowered to confer on an individual a benefit which he would not otherwise have possessed. Here the administrative body is exercising a discretionary power. There is a presumption of statutory interpretation that "a discretionary power may be exercised from time to time unless a contrary intention appears," and it would seem to follow that the administrative body therefore has the power of "reviewing its decisions from time to time." An administrative body cannot fetter the future exercise of its discretionary power by making an administrative decision, just as it cannot fetter the future exercise of its discretionary powers by making a contract.

...

CONCLUSIONS

An administrative decision which determines whether an individual has a pre-existing legal right, and which has been made and communicated in terms which are not expressly preliminary or provisional, cannot be revoked in the absence of the consent of the person or persons affected. An administrative decision which confers a benefit which would not otherwise have existed and which has been made and communicated in terms which are not expressly preliminary or provisional, can be revoked (a) if the person or persons affected consent, or (b) if the decision was based on an error of fact (or, probably, law), or (c) if the public interest in revoking the decision outweighs the beneficiary's interest in retaining the benefit which the decision has conferred on him. However, all of these rules may be varied by statute. A statute may confer a power to revoke which would not otherwise exist. Statutes can also take away powers to revoke which would otherwise exist. In particular, a statutory provision that a decision shall be "final and conclusive" will probably be interpreted as forbidding revocation."

43. Mr Ho does not seek to challenge the above exposition of the law. For my part, I accept the learned author's analysis.

44. In the circumstances, the absence of an express power to review in the Ordinance should not necessarily be fatal in the present context. Moreover, as a matter of statutory interpretation of the Ordinance, there is room for construing the Ordinance as empowering the Practitioners Board to review its own decision in case of mistake, if the decision involves not the determination of an individual's pre-existing right, but rather the exercise of a discretion conferring a benefit on an individual which he otherwise did not have.

45. The next question is therefore the nature of a determination or assessment under section 92 of the Ordinance. Although "may determine" is used in the opening sentence of section 92, neither counsel argues that the Practitioners Board has any "discretion" to exercise here in respect of the assessment, in the sense that if the practitioner should fulfil both requirements (a) and (b) in section 92(1), the Practitioners Board may still have the power to make an adverse determination or assessment against the practitioner under section 92(1). The evidence filed does not suggest that a discretion in that sense is perceived to be in existence in practice either.

46. It is clear that section 92 must be read together with section 93 in the present context. On the face of it, reading the two sections together, one is concerned with the determination of a person's pre-existing legal right. In other words, the Practitioners Board is required to determine whether the listed Chinese medicine practitioner is qualified to be exempted from the Licensing Examination under section 93 by reason of 15 years' continuous practice or no less than 10 years' continuous practice plus the relevant qualification in Chinese medicine practice.

47. In short, the determination or assessment deals with the listed Chinese medicine practitioner's qualification "to be registered under section 69" as per section 92(1). No discretion is involved. Nor is one conferring on the listed Chinese medicine practitioner a benefit which he would not otherwise have possessed.

48. However, I must not overlook the fact that section 92 (and for that matter, sections 93 and 94) are just part of a larger picture of registration provided under Part VII of the Ordinance. Indeed, as has just been pointed out above, section 92(1) refers back to section 69 of the Ordinance. But the reference in section 92(1) to a person's being "qualified to be registered under section 69" should not mislead one into thinking that the registration under section 69 is a purely administrative or mechanical procedure. As has been pointed out earlier on, section 69 confers a discretion on the Practitioners Board to approve an application for registration. Being qualified to apply for registration is not equivalent to being entitled to be registered or registration itself. Section 69 is expressly subject to sections 70 and 71, which provide for situations where the Practitioners Board may refuse registration even though the person is qualified to apply. Furthermore, section 69(2) specifically gives the Practitioners Board the power to impose conditions and restrictions on the practice of a practitioner after registration who has been exempted from the Licensing Examination under section 93.

49. In Rootkin, there was no express statutory provision for the measuring by the council committee of the actual distance between school and home. However, depending on the distance, the council committee would decide how the applicant's case should be categorized and whether he or she should be given a season ticket as a matter of statutory duty (if the distance was 3 miles or more) or as the case may be (i.e. if the distance was less than 3 miles) as a matter of discretion. In Rootkin, nobody queried the council committee's power to re-measure the distance; the focus of contention was whether the council committee could, based on the re-measured distance, go back on its earlier (purported) performance of duty in granting the season ticket, and exercise its discretion instead under section 55(2). The Court of Appeal simply assumed (implicitly) - apparently regarding the point as trite - that firstly, the council committee had the power by necessary implication to measure and thus determine the distance between school and home, and secondly, it had the power (where appropriate) to re-measure and re-determine the distance between school and home.

50. In the present case, there is an express provision about the determination of the practitioner's years of practice (which is conceptually speaking equivalent to the distance between school and home in Rootkin): sections 92(2)(a) and 93. And the focus of contention is whether the Practitioners Board has the power to re-determine the length of practice (which is equivalent to the re-measuring of the distance between school and home in Rootkin). In a sense, in the present case, one has not reached the same stage of the scheme of things that the applicant had reached in Rootkin when she sought judicial review of the council committee's decision.

51. In my view, the answer must lie in the substance rather than the form of the matter.

52. The fact that section 92 (and sections 93 and 94) form part of a larger picture of registration under Part VII, the focal point of which in the present context is section 69, which involves the exercise of a discretion by the Practitioners Board, is of crucial importance in the present case. In my judgment, the determination under section 92 (by the Practitioners Board) is merely a preliminary step and forms part of the process by which the Practitioners Board decides (under sections 69 to 71) whether to exercise a discretion (whether conditionally or unconditionally) in favour of a listed Chinese medicine practitioner by registering him as a registered Chinese medicine practitioner, thereby conferring on him a benefit to be able to continue practising Chinese medicine in Hong Kong pursuant to the Ordinance (even after the expiry of the transitional arrangements). Viewed in that light, the determination of the Board under section 92 is not so much the determination of an individual's pre-existing right; rather it is merely a preliminary step in the process whereby the Practitioners Board's discretion is sought to be exercised by the individual for registration as a registered Chinese medicine practitioner pursuant to the registration provisions in the Ordinance. Thus analysed, the principle of irrevocability does not apply here and there is room for a re-determination of the necessary basic facts premised on which the Practitioners Board may ultimately exercise its discretion, and by the same token, a re-exercise of the discretion itself (where appropriate), on the ground of mistake.

53. Of course, as has been pointed out by Akehurst, the power to review based on mistake may be varied by the legislation itself. In the present Ordinance, I can discern no good reason for denying the Practitioners Board the power to re-visit its determination or assessment under section 92(1) (if it involves a determination under sections 92(2)(a) and 93) in the case of a genuine and basic mistake such as the one alleged to be involved in the present case. As the facts in Rootkin demonstrated, the mistake could be made by either side - the practitioner or the Practitioner Board, which if left uncorrected, could work injustice either way, depending on the facts. This is so particularly when mistake, unlike fraud or misrepresentation, is not a ground for refusing an application for registration under sections 69 and 70: see section 70(a) to (d).

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

55. In those circumstances, I can see no sufficient warrant for ascribing to the legislature an intention to deny the Practitioners Board a power to re-visit the determination or assessment on account of mistake. Instead, I would conclude that the Practitioners Board has the necessary power to re-visit its own determination or assessment under section 92 (if it involves a determination under sections 92(2)(a) and 93) in a case of mistake.

56. In Rootkin, the mistake involved was a mistake of fact. It related to whether the distance between the applicant's home and his daughter's school was less than 3 miles or not. On the facts of the present case, the mistake or more correctly the alleged mistake is slightly more complicated, namely, whether the Applicant's continuous period of practice in Chinese medicine counting backwards from 3 January 2000 was less than 10 years or not, bearing in mind all the time the meaning of "practising Chinese medicine" as defined in section 2 of the Ordinance.

57. But in my view, the alleged mistake is no different from the hypothetical situation, borrowing the general facts in Rootkin, where a student's parent mistakenly thought that the distance between home and school was less than 3 miles "measured by the nearest available route" (per section 39(5) of the Act) - and the mistake was caused by his incorrect understanding of how one determined and measured the "nearest available route", and on that basis put forward his application for a season ticket before the council committee. In my judgment, in such a hypothetical situation, the parent should be entitled to ask the council committee to re-open the matter once the mistake was discovered.

58. In any event, Akehurst not only discussed the effect of a mistake of fact, but also discussed the effect of a mistake of law (at pages 621-622). The learned author suggested that following the decision in Rootkin, it would be possible to argue by analogy that the power of revocation also applies to errors of law in cases concerning the exercise of a discretion (contrary to previous case law based on Re 56 Denton Road).

59. I would not classify the mistake alleged by the Applicant in the present case as a mistake of law. Rather it is an alleged mistake of mixed law and fact at most, if not simply a mistake of fact. In my judgment, the same reasoning should apply with equal force to a mistake of mixed law and fact.

60. For all these reasons, I am of the opinion that the Practitioners Board was wrong in concluding that it had no power to revisit its determination or assessment under section 92 on the ground of mistake (as alleged by the Applicant). The Board ought to have considered whether to entertain the allegation of mistake (not as a matter of jurisdiction but as a matter of an exercise of its discretion and power) and if the answer was in the affirmative, it ought to have considered and determined whether the alleged mistake was real, and again if the answer was in the affirmative, it ought to have considered the further material and information submitted by the Applicant in order to determine which category her case should fall within.

61. In the circumstances, I make an order of certiorari to bring up and quash the decision of the Practitioners Board contained in its letter dated 23 November 2002 refusing the Applicant's request to reconsider its earlier decision or assessment under section 92. I also make an order of mandamus directed to the Practitioners Board requiring it to consider whether to entertain the allegation of mistake, (where appropriate) to determine the allegation of mistake, (where appropriate) to reconsider its determination or assessment under section 92 in the light of the further material and information submitted by the Applicant in her solicitors' letter dated 16 October 2002, and (where appropriate) to make a re-determination or re-assessment under section 92. (The letter of 23 November 2002 did not require the Applicant to undergo the registration assessment, and therefore the second relief sought in the Applicant's Form 86A is not applicable.)

62. Costs should follow the event. I order that the costs of these proceedings be paid by the Respondent to the Applicant, such costs to be taxed if not agreed.

63. I thank counsel for their helpful assistance.