CHOI KA MAN v. VETERINARY SURGEONS BOARD OF HONG KONG

HCAL 1983/2024

[2025] HKCFI 649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1983 OF 2024

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D E C I S I O N

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A.  Introduction

1.  Fifi was a cat. The cat was owned by the Applicant. Sadly, the cat was unwell, and died after receiving veterinary treatment in August 2018. The Applicant was dissatisfied with the treatment provided to the cat.

2.  On 16 September 2018, the Applicant lodged a complaint (“1^st Complaint”) to the putative respondent Veterinary Surgeons Board of Hong Kong (“Board”). Such complaints are dealt with on a tiered approach, with first consideration by the Preliminary Investigation Committee (“PIC”). The PIC decided not to refer the 1^st Complaint to an Inquiry Committee. The Applicant was dissatisfied with that decision.

3.  On 11 August 2023, the Applicant lodged a further complaint (“2^nd Complaint”) to the Board. The 2^nd Complaint was made with the benefit of further information gathered by the Applicant since the dismissal of the 1^st Complaint. The PIC decided not to refer the 2^nd Complaint to an Inquiry Committee (“Decision”). The Decision was notified by, and comprised of, two letters dated 8 August 2024 and 25 October 2024. The Applicant was dissatisfied with that Decision.

4.  By her Form 86 dated 1 November 2024, the Applicant seeks leave to apply for judicial review so as to challenge the Decision.

5.  I gave directions permitting the filing of an initial response by the Board, and a reply by the Applicant. The initial response dated 18 December 2024 was served, signed by Ms Jess Chan, Senior Assistant Law Officer (Civil Law) (Ag) and Ms Phoebe Yeung, Senior Government Counsel (Ag), both of the Department of Justice. The Applicant filed her reply dated 13 January 2025.

6.  Having considered the materials, I am satisfied that it is appropriate to deal with this application on the papers. This is my decision.

B.  Background

7.  On 25 August 2018, the Applicant took the cat to consult veterinarians, because the cat was lethargic. On the same evening, the Applicant took the cat to the Ark Animal Hospital (“Ark”) for consultation, with Dr Gary Lo. A decision was made to hospitalise the cat to undergo blood transfusions, and the Applicant says that she only agreed with Dr Lo that he would transfuse the cat with two packs of blood. However, the following morning, the Applicant learned that the cat had received three packs of blood.

8.  As the cat’s condition continued to deteriorate, the Applicant took the cat to another veterinary clinic on 29 August 2018. There, she was advised that the cat’s haemolysis was severe and life-threatening, and likely associated with rejection of one or more of the blood transfusions. Due to the extreme severity of the rejection and low survival rate, euthanasia was recommended for the cat, which was performed on 30 August 2018.

9.  The Applicant suspected that the treatment of the cat conducted at the Ark on 25 and 26 August 2018 may have had problems that led to the cat’s subsequent extremely severe blood transfusion rejection. The overall events on those dates can be referred to as the “Incident”. Therefore, the Applicant sought the medical records from the Ark.

10.  The Applicant then made the 1^st Complaint, which was that: (1) Dr Lo administered three blood packs to the cat without her consent; (2) he failed to record any information of the transfusion of the first blood pack in the medical records; and (3) his medical decision to transfuse three blood packs was inappropriate.

11.  On 29 May 2019, the Board informed the Applicant that the PIC noted from the medical records that the vet who had given blood transfusion on 26 August 2018 was Dr Karly Lam. The Applicant’s complaint was extended to include a complaint against Dr Lam.

12.  On 9 July 2021, the Applicant was informed of the PIC’s preliminary decision, based on the findings of no wrongdoing because Dr Lam determined that the cat needed three packs of blood and, before that, had performed cross matching and manual tests in order to determine whether the cat had antibodies that would combat the red blood cells contained in the packs, yielding negative results. Further, Dr Lam had continued to monitor the cat’s reactions to the transfusions, and the cat had shown signs of improvement.

13.  On 27 August 2021, the Board notified the Applicant that the PIC’s preliminary decision was made final, and the 1^st Complaint would not be referred to an Inquiry Committee. The Applicant was obviously, to say the least, dissatisfied with this outcome.

14.  Nearly two years later, on 2 July 2023, the Applicant received a call inviting her to meet with Dr Lam. It seems this call was precipitated by the Applicant’s negative online comments (made years after the Incident) regarding Dr Lam’s involvement in the cat’s demise. Dr Lam apparently felt forced to explain her version of events as a result.

15.  The meeting took place on 5 July 2023 (a date some 5 years after the Incident). Dr Lam made the following allegations:

(1)  Dr Lo conducted the cross-matching tests and oversaw the transfusion of the first blood pack by a technician who was employed at Ark.

(2)  Dr Lo instructed Dr Lam to take over and transfuse the second and third packs, assuring her that he reached the decision of administering three packs through mathematical calculations and that the Applicant consented to three packs of blood.

(3)  Around one month after the Incident, Dr Lo wrote an addendum with the remark “for the VSB” onto the cat’s medical records (“Addendum”). The Addendum provided that Dr Lo handed over the transfusion to Dr Lam, who commenced it. Dr Lam denies this, and she says that in reality he sought to shift responsibility over the Incident onto her through the Addendum. Dr Lam tendered her resignation from Ark right after discovering the Addendum.

(4)  It was beyond Dr Lam’s control that the there was no information regarding the first blood pack in the medical records. The medical records that she drew up obviously covered the second and third packs only since she administered them herself.

16.  In support of these allegations, Dr Lam provided the Applicant with (1) a screenshot copy of the Addendum, (2) screenshot copies of WhatsApp messages in which Dr Lo apologised to Dr Lam for the way he worded his Addendum, and (3) screenshot copies of messages between Dr Lam and two other ex-employees at Ark criticising Dr Lo’s conduct in respect of the Addendum.

17.  Dr Lam also mentioned that she repeatedly informed the PIC/Board during the 1^st Complaint that she administered the second and third packs only, and that the first was administered by Dr Lo, contrary to the Addendum. But the PIC never followed up with her regarding this. Of course, this may not be surprising, since the crux of the 1^st Complaint was the quality of the medical decisions undertaken by those who administered the transfusions (whoever they were), and not the propriety of the record keeping, save in respect of the lack of a record for the first blood pack.

18.  Dr Lam also clarified that throughout the events of the Incident, and since her resignation from Ark, she has had no knowledge of the content of the Board’s communications with the Applicant as well as the PIC’s particular findings on the 1^st Complaint.

19.  The Applicant then made the 2^nd Complaint, which was that: (1) Dr Lo maintained untrue, inadequate or non-contemporaneous medical records, or otherwise made alterations after the material time (i.e. after the Incident); (2) Dr Lo submitted these untrue medical records to the Board during the 1^st Complaint, thereby creating a false picture of what occurred prior to and during the Incident; and (3) Dr Lo sought inappropriately to shift responsibility for the entire transfusion onto Dr Lam as well as giving her unprofessional instructions.

20.  The Applicant cited §§1, 3, 6.2, 18.1.1 and 18.1.3 of the Code of Practice for the Guidance of Registered Veterinary Surgeons (“Code”). She submitted the materials provided by Dr Lam, and a table drawn up by her detailing alleged inconsistencies between the findings made on the 1^st Complaint and the evidence provided by Dr Lam. The Applicant also sought to emphasise that the 2^nd Complaint was different from the 1^st Complaint, because it was not about the quality of medical decisions during the Incident, but rather about the propriety of Dr Lo’s conduct after the Incident.

21.  The Applicant also requested another PIC – not the one which handled the 1^st Complaint – to handle her 2^nd Complaint, which request was met. None of the members of the newly constituted PIC had previously dealt with the 1^st Complaint.

22.  As directed by the PIC, the Secretary to the Board wrote to the Applicant on 25 September 2023, requesting her to submit her statutory declaration and Dr Lam’s declaration in support of the 2^nd Complaint, pursuant to Rules 5(1)(a)(ii) and 5(2) of the Rules of the Veterinary Surgeons Board (Disciplinary Proceedings) (“Rules”).

23.  On 9 October 2023, the Applicant submitted her statutory declaration dated 4 October 2023, but requested an extension of time for her to submit Dr Lam’s statutory declaration. The deadline for that was therefore extended, and it was chased by the Secretary’s letter dated 24 November 2023.

24.  The Applicant had submitted another statutory declaration of her own dated 23 November 2023, but failed to provide Dr Lam’s statutory declaration by the further extended deadline of 8 December 2023.

25.  Nevertheless, the Secretary issued a letter dated 16 February 2024, informing the Applicant of the PIC’s decision to investigate the 2^nd Complaint, notwithstanding what it regarded as non-compliance with Rule 5(1)(a)(ii) of the Rules.

C.  The Impugned Decision

26.  On 8 August 2024, the Secretary of the Board outlined the PIC’s findings regarding the 2^nd Complaint. In summary:

(1)  upon considering all relevant medical records, the PIC noted that Dr Lo and other veterinary surgeons had supplemented information by way of addendum, which complied with paragraph 18.1.3 of the Code;

(2)  apart from the medical records, there were sufficient records documenting the relevant blood transfusion process;

(3)  for the above reasons, there was insufficient evidence proving any professional misconduct on the part of Dr Lo; and

(4)  the PIC would consider formally dismissing the 2^nd Complaint at its next meeting scheduled for 2 October 2024.

27.  But it may be helpful to set out the PIC’s reasons in full:

Referring to your letter to the [Board] dated 11 August 2023 lodging a complaint against [Dr Lo] of the [Ark], the [PIC] of the Board has thoroughly considered all evidence, including your complaint letter, statutory declaration on 23 November 2023, the medical records of your cat “Fifi” and the written response of the veterinary surgeon concerned, and has made the following observations and preliminary decisions:

According to the understanding of the PIC, “Fifi” was taken to the Hospital for medical consultation on 25 August 2018 due to persistent weight loss and lethargy. After receiving examination, “Fifi” received blood transfusion in the Hospital from the night of 25 August to the morning of 26 August. Having reviewed all the relevant documents thoroughly, the PIC considers that the treatment methods, and blood transfusion procedures adopted by [Dr Lo] or the veterinary surgeon on night shift at the Hospital were not inappropriate.

In addition, after reviewing the relevant medical records of “Fifi”, the PIC notes that [Dr Lo] and other on-duty veterinary surgeons supplemented the blood transfusion procedures for “Fifi” in the form of addendums, and considered that the supplementary method complied with the requirement set out in paragraph 18.1.3 of the [Code]. Apart from the medical records, the PIC also notes that the Hospital has maintained adequate records for the entire blood transfusion procedures for “Fifi”. Based on the above reasons, the PIC considers that there is no sufficient evidence to prove that [Dr Lo] was negligent in a professional respect or had moral shortcomings.

As mentioned above, since the treatments adopted by the veterinary surgeons of the Hospital for “Fifi” were not inappropriate, the PIC considers that the investigation results of relevant case will not be affected no matter which veterinary surgeon commenced the blood transfusion procedures for “Fifi”.

The PIC would like to extend its deepest sympathies for the death of “Fifi”. It fully understands your grief for your beloved cat and hopes you get over the pain soon. Nevertheless, for the above reasons, the PIC considers that there is no sufficient evidence to prove that [Dr Lo] of [Ark] made mistakes or was negligent in a professional respect in the aforesaid incident. After careful consideration, the PIC intends to make a formal decision at its next meeting (scheduled for 2 October 2024) that the complaint should not be further processed.

28.  On 10 August 2024, the Applicant again requested for all medical records (including addendums) in respect of the cat from Ark. Ark responded that the medical records she obtained on 6 September 2018 were all the records it had on the cat. This was also confirmed by Dr Lo.

29.  On 11 August 2024, the Applicant sought a clarification from the Board in respect of its reference to other records “apart from” the medical records it considered (see above). She also repeated her request for all medical records and addendums regarding the cat that the Board presumably received from Dr Lo.

30.  It was not until 19 September 2024 when the Applicant communicated her disagreement with the PIC’s findings and requested a re-consideration by the Board. She enclosed the verbatim transcript and audio recording of her meeting with Dr Lam, which was supported by a new statutory declaration of the Applicant dated 19 September 2024.

31.  On 2 October 2024, which happened to be the same date when the PIC intended to formally decide to dismiss the 2^nd Complaint, the Applicant called the Board for any updates. She says a Mr Yung (apparently the relevant case officer) answered that call, who confirmed that the PIC’s preliminary findings were made final by the Board. But he also said that (1) the PIC found no alteration between the medical records submitted by the Applicant and those by Dr Lo to the 2^nd Complaint; (2) the PIC considered that Dr Lo merely supplemented the medical records with the Addendum; (3) the Addendum did not amount to an alteration; (4) the PIC did not examine Dr Lam’s evidence to the 1^st Complaint; and, as such (5) the PIC only took into account the materials of the 2^nd Complaint without opening the case file of the 1^st Complaint.

32.  On 25 October 2024, the Secretary of the Board conveyed its reconsidered decision in writing to the Applicant:

I refer to your email and letter dated 11 August and 19 September 2024 respectively addressed to the [Board] lodging a complaint against [Dr Lo] of [Ark]. The reply is as follows:

The [PIC] of the Board reviewed your case again at its meeting on 2 October 2024 and understood that you disagree with its preliminary decision which was sent to you in writing by the Secretariat to the Board on 8 August 2024. The response of the PIC to the matters raised in your correspondence is set out below.

You enquired in your email dated 11 August 2024 about the blood transfusion procedures of “Fifi”. The PIC noted that during the blood transfusion procedures for “Fifi”, the medical staff of the Hospital had recorded the start time, progress, and end time of the transfusion of each bag of blood on a blood transfusion record sheet by the way of handwritten notes, and that the responsible veterinary surgeon had supplemented the blood transfusion procedures, in the form of an addendum, in the medical records. The PIC was of the view that such records complied with the requirement set out in the [Code]. Besides, the PIC has thoroughly considered the medical records (extract) provided by you as well as the medical records provided by [Dr Lo], and there is no sufficient evidence to prove that [Dr Lo] has engaged in professional or ethical misconduct.

Regarding your request for the PIC to provide the medical records obtained during the investigation process, according to Paragraph 8.2 of [the Rules], [quotation of the rule]. If you wish to obtain a complete medical record of “Fifi”, you may consider making a direct request to the veterinary surgeon concerned in accordance with Paragraph 17.1 of [the Code].

Throughout the investigation process, the PIC thoroughly considered to [sic] all the evidence available in the case and the details of incidents. The preliminary decision that the PIC intended to make and its reasons were stated in the letter sent to you by the Secretariat on 8 August 2024. Having thoroughly considered your correspondence mentioned above, no new evidence or argument was found which warrant a change to the PIC’s preliminary decision mentioned previously. After careful consideration, the PIC made a formal decision at its meeting on 2 October 2024 that the complaint should not be referred to an Inquiry Committee of the Board for further action.

33.  As stated above, both of the letters on 8 August 2024 and 25 October 2024 form the impugned Decision.

D.  The Regulatory Framework

34.  Before turning to the grounds of the intended challenge, it is helpful to set out the relevant statutory and regulatory framework – based on three main sets of provisions.

35.  First is the Veterinary Surgeons Registration Ordinance Cap 529 (“Ordinance”), which provides for the regulation of the practice of veterinary surgery, encompassing the registration and disciplinary control of registered veterinary surgeons, and other matters related thereto.

36.  Materially for present purposes, section 17(1)(a) stipulates that a registered veterinary surgeon commits a disciplinary offence if he is guilty of misconduct or neglect in any professional respect. If a complaint is made, section 17D(2) provides that:

The committee may request one or more of the following persons to provide information to facilitate the committee’s consideration of the complaint—

(a) the complainant;

(b) the registered veterinary surgeon being complained of (subject person);

(c) any other person whom the committee considers appropriate.

37.  Next are the Rules, published in 1998 and revised in October 2020, which provide for the investigation process conducted by the Board of complaints made against registered veterinary surgeons.

38.  Section 17D(2) of the Ordinance must be read with Rules 5(1) to (3), which state:

(1) Where, in a complaint referred by the Secretary to a Committee in accordance with rule 4(1), any allegation is made which in the opinion of the Committee gives rise to a question as to whether a registered veterinary surgeon being complained of has committed a disciplinary offence -

(a) the Secretary shall, save as directed otherwise by the Committee –

(i) request the complainant to complete a standard complaint form as specified by the Board from time to time, unless the complaint was made in this way;

(ii) request any matter alleged in the complaint or information to be supported by one or more statutory declarations, unless the complaint or information is in writing under the hand of a public officer […]

(b) the Committee may direct the Secretary to request the complainant to make written clarifications about the complaint or information.

(2) Each statutory declaration referred to in paragraph (1)(a)(ii) must –

(a) state the address and description of the declarant; and

(b) state all the facts of the complaint to the declarant’s knowledge or, if any fact declared is not within his personal knowledge, state the source of the declarant's information and the grounds for his belief in the truth of the facts.

(3) If a request under paragraph (1) is not complied with, the Committee may decline to proceed with the investigation of the complaint.

39.  Reference can also be made to the process of deciding whether a complaint should be referred to an Inquiry Committee. In brief, that process is as follows:

(1)  If the PIC considers that the complaint is frivolous, or groundless, and should not proceed further, it may dismiss the complaint: Rule 6(4).

(2)  The PIC may proceed to investigate the complaint and determine: (i) not to refer the complaint to an Inquiry Committee, but to issue a letter of advice to the person complained of in such terms as it thinks fit: Rule 7(6)(a) and (b); or (ii) to refer the complaint to an Inquiry Committee, in whole or in part: Rule 7(6)(c).

(3)  If the PIC fails to make a unanimous decision as to whether to refer the complaint to an Inquiry Committee, it must refer the complaint to the Board, and the Board may decide whether or not to refer the complaint to an Inquiry Committee: sections 17D(5) and 17E of the Ordinance.

(4)  If the complaint is referred to an Inquiry Committee, it will determine in a full inquiry in accordance with its rules of conduct if the registered veterinary surgeon has committed a disciplinary offence, having regard to the rules of professional conduct or the Code.

(5)  The Inquiry Committee has various statutory powers for its conduct of inquiries.

40.  In essence, the tasks and functions of the PIC are to determine at the stage of preliminary investigation whether, having regard to all relevant materials, the complaint has any real prospect of being established. Hence, the PIC is a body designed to filter complaints which can show a prima facie case of professional misconduct on the part of the registered veterinary surgeon who is the subject of the complaint, and to refer those complaints for a full investigation by an Inquiry Committee.

41.  Last is the Code, first published in 1998 and updated as recently as October 2023, which is in essence a code outlining points of ethics to which every veterinarian must adhere.

42.  Paragraph 1 of Part II outlines the broad principles of the Code:

Veterinary surgeons occupy a trusted and privileged position in society due to their unique knowledge and training. This Code of Practice is intended to ensure that this position is maintained by providing guidelines for registered veterinary surgeons based upon the following basic principles:

• The welfare of animals is the primary concern of every veterinary surgeons.

• The work and behaviour of veterinary surgeons should be of a professional standard acceptable to their peers.

• Veterinary surgeons should aspire to uphold and foster public trust and confidence in the profession at all times.

• Personal advantage should never be sought to the detriment of a professional colleague.

43.  Paragraph 3 expands upon the meaning and usual circumstances of professional misconduct or negligence, as proscribed under section 17(1)(a) of the Ordinance. For present purposes, the details of that need not be set out.

44.  Paragraph 6.2 prescribes the duties of experienced veterinarians properly to supervise less experienced surgeons.

45.  Paragraphs 18.1.1 and 18.1.3 are concerned with the proper recording of medical consultations. In gist, all veterinary surgeons have the responsibility to maintain contemporaneous, true and adequate records. Clearly documented alterations may only be made with justification.

46.  Paragraph 17.7 of the Code allows a complainant to seek medical records from a veterinary surgeon and requires that surgeon to comply with such a request. This must be read with Rule 8.2, which says that where the PIC determines that a complaint should not be referred to an Inquiry Committee, neither the complainant nor the surgeon has any right of access to information or document relating to the complaint submitted to the PIC by any other person. Therefore, although a complainant cannot seek information or documents from the PIC/Board, he or she may do so directly from the veterinary surgeon involved.

47.  An Inquiry Committee would have been the next stage of the investigations had the PIC found that there were reasons to refer a complaint to an Inquiry Committee, which is established by the Board to determine whether a veterinarian has committed a disciplinary offence: see sections 17C(1), 17D(3), 18(1A), 18(1B) and 20 of the Ordinance. In this case, the PIC thought that there was insufficient evidence for establishing a case to proceed to a full inquiry, and accordingly dismissed the 2^nd Complaint which never reached an Inquiry Committee.

E.  Intended Grounds of Review

48.  There is force in Ms Chan’s submission that the 68-page Form 86 contains a large portion of general references to public law principles, as well as repetitions of allegations. I think Ms Chan’s identification from amongst those materials of three apparent grounds of intended review is fair, being the first three grounds below. But I think the Applicant’s materials also identify other matters of complaint, being the other grounds I set out also below. In total, therefore, the apparent grounds of intended review are:

(1)  Ground 1: illegality, as regards the PIC’s requirement for the Applicant to provide a statutory declaration of her witness Dr Lam;

(2)  Ground 2: irrationality, as regards the Applicant’s assertion that the complaint materials were sufficient to make out a case to proceed to an Inquiry Committee, even without the statutory declaration of Dr Lam, where the PIC may itself ask Dr Lam directly for information, and where the PIC may compare the medical records in her 1^st Complaint against those available for the 2^nd Complaint (including the Addendum);

(3)  Ground 3: procedural impropriety, on the basis that the reasons for the Decision were inadequate;

(4)  Ground 4: procedural impropriety, in taking into account an irrelevant factor as to the propriety of the medical decisions taken in the context of the Incident;

(5)  Ground 5: breach of legitimate expectation, in failing fully to investigate the 2^nd Complaint; and

(6)  Ground 6: irrationality in departing from, or deciding inconsistently from, published policy and previous decisions.

F.  Ground 1: Illegality in Interpretation of Rule 5(1)(a)(ii)

49.  This ground focuses on the PIC’s request for the Applicant to provide a statutory declaration of Dr Lam, said to be pursuant to Rule 5(1)(a)(ii) of the Rules – the terms of which I have set out above. This ground arises in the context of the Applicant’s allegations that:

(1)  The contemporaneous medical records provided by Dr Lo did not clearly record the identity of the vet who had oversight of the transfusion of the first pack of blood, but the Addendum stated that the first blood transfusion was commenced by Dr Lam and the nightshift team.

(2)  According to Dr Lam, at the time when the cat was handed over to her care, the first blood transfusion procedure had already begun, and Dr Lam took charge of only the second and third blood transfusion procedures.

(3)  Hence, the Addendum provided was inaccurate or untrue.

50.  However, to address this intended ground of review does not require any resolution of those factual matters. Rather it focuses on the correct approach to obtaining statements, as permitted under Rule 5(1)(a)(ii) of the Rules. But, Ms Chan points out that the allegations are of matters within the personal knowledge of Dr Lam, not the Applicant, and the Applicant cannot necessarily herself substantiate the alleged matters simply by saying she believes the truth of them.

51.  Ms Chan points out that Rule 5(1)(a)(ii) is to be read with section 17D(2) of the Ordinance, which allows the PIC to request any other person to provide information to facilitate its consideration of a complaint. Further, if this request is not met, then Rule 5(3) allows the PIC to decline to proceed with the investigation of a complaint.

52.  Indeed, it is that provision and what actually occurred in this case which seem to me to identify that this intended ground is essentially academic. The Applicant did not provide a statutory declaration of Dr Lam, even though the PIC had pressed for one; but the PIC nevertheless continued with the investigation, choosing not to decline to proceed further with it. Indeed Rule 5(3) only goes to whether an investigation would proceed, and not to whether the evidence provided with the complaint which has not been supported by a statutory declaration would be considered. Therefore, there was no problem with the integrity of the decision-making process. As a result, this intended ground is beside the point, and does not appropriately lead to the grant of leave to apply for judicial review.

53.  But, I also agree with Ms Chan that – contrary to the assertion of the Applicant – the provisions in Rules 5(1)(a)(ii) and 5(2) are not intended to increase difficulty for a member of the public to make and pursue a complaint to the Board. Rather, they are intended to facilitate PIC’s consideration of the complaint on what might be regarded as the ‘best evidence’. In the present case, where the Applicant had listed Dr Lam as her witness, and where the complaint essentially boiled down to an allegation of false or fraudulent record-keeping, it was plainly not unreasonable for the PIC to have requested a statutory declaration from Dr Lam to be provided by the Applicant, to speak to those matters relevant to the 2^nd Complaint of which Dr Lam had direct knowledge, but the Applicant did not.

54.  Of course, it is correct that Rule 5(2)(b) – which requires each statutory declaration to state all facts of the complaint to the declarant’s knowledge, or if not, to state the source of the declarant’s information and the grounds for his belief in the truth of those facts – specifically envisages facts based on hearsay, so long as their provenance is made clear by the declarant. But Rule 5 as a whole provides appropriate flexibility, permitting an investigation to continue or not depending upon the circumstances.

55.  In this case, it continued. That must mean that the PIC in this case formed the view that the absence of a statutory declaration of Dr Lam was not of itself such as should lead to the ending of the investigation. But it is not difficult to envisage other cases in which the failure to provide a statutory declaration from a witness (other than the complainant him- or herself), with significant knowledge of matters relevant to the particular complaint, might lead the PIC to form the view that that complaint could never reasonably be properly investigated by, or lead to a finding of misconduct in, an Inquiry Committee.

56.  There is no need to consider Ms Chan’s argument as to delay in seeking to challenge the request for a statutory declaration, though I doubt I would have denied leave merely on this basis, where the investigation in fact continued through to the Decision.

57.  This ground is not reasonably arguable with any realistic prospect of success.

G.  Ground 2: Irrationality

58.  This ground rests on the Applicant’s assertion that the complaint materials were sufficient to make out a case to proceed to an Inquiry Committee, even without the statutory declaration of Dr Lam, where the PIC may itself have asked Dr Lam directly for information, and/or where the PIC was able to have compared the medical records in her 1^st Complaint against those available for the 2^nd Complaint (including the Addendum).

59.  On its face, this ground looks like a merits challenge, and this Court exercising its judicial review jurisdiction does not act as an appellate body. Rather, the focus is on the integrity of the decision-making process. It is also trite that an applicant seeking leave to apply for judicial review based on an alleged irrationality faces a high hurdle.

60.  The starting point is that it is common for the enforcement of professional discipline to be entrusted to disciplinary tribunals composed wholly or mainly of members of the profession concerned. Ordinarily, a professional disciplinary tribunal is master of its own procedure, meaning it is entrusted both with the making of the decision, but also the choice as to how the decision is made. This is why, in general, the Court plays only a supervisory role in its public law jurisdiction, and must be astute not to intervene too readily or prematurely.

61.  Subject only to interference on the basis of irrationality, the weight to be given to the materials before the PIC was a matter for the PIC. Without a statutory declaration from Dr Lam, it was rationally open to the PIC to have proceeded on the basis that Dr Lam’s account was hearsay, which might affect the weight to be given to it.

62.  From reading the verbatim record of the Applicant’s meeting with Dr Lam, it is somewhat unclear how Dr Lam came to know of Dr Lo’s alleged alteration of the medical records, and indeed not clear what exactly is said to have been altered. Dr Lam’s account during the meeting was that the Addendum was false, but she also alleged that Dr Lo amended the records at least twice before submitting them for the 1^st Complaint. Throughout the meeting, Dr Lam appeared unsure about certain things, which is perhaps unsurprising since her meeting with the Applicant took place many years after the Incident and its immediate aftermath. Dr Lam’s statements were also based partly upon hearsay from other employees at Ark during the material time.

63.  In circumstances of dated, hearsay, and multiple hearsay materials, and in light of the gravamen of the 2^nd Complaint, the PIC’s request for Dr Lam’s statutory declaration was therefore unsurprising, and wholly rationally may have affected the weight to be given.

64.  Moreover, on the face of the Decision, particularly in the letter of 25 October 2024, the Board clearly indicated that it considered all the evidence received from the Applicant’s letter dated 19 September 2024, which attached the verbatim records of her meeting with Dr Lam, and had taken into account the Applicant’s evidence she submitted with the 2^nd Complaint on 11 August 2024, which included the documentary evidence she received from Dr Lam. It is not reasonably arguable to suggest that the PIC never considered these pieces of evidence.

65.  As to the Applicant’s argument, in so far as it is based upon the suggestion that the materials from both the 1^st and 2^nd Complaints should have been considered (and compared), it can first be remembered that the PIC dealing with the 2^nd Complaint had different personnel than the PIC which dealt with the 1^st Complaint, in accordance with the request made by the Applicant herself. In any event, where the PIC was empowered to direct the Secretary to request the Applicant to provide her materials under statutory declaration(s), and to request Dr Lo as the person subject to the 2^nd Complaint to make a written response or explanation in respect of the alleged matters, the PIC had received a full set of the materials relevant to the 2^nd Complaint. It was also a requirement under Rule 7 of the Rules that a full set of the materials submitted in compliance with Rules 5 and 6 would be put before the PIC for consideration in confidence.

66.  It might also be thought that – bearing in mind the five-year gap between the two complaints – what was said by Dr Lo and Dr Lam in context was unlikely to have changed. Indeed, it seems Dr Lam told the Applicant what she says she had already told the PIC dealing with the 1^st Complaint.

67.  This ground is not reasonably arguable with a realistic prospect of success.

H.  Ground 3: Inadequate Reasons

68.  I accept Ms Chan’s submission that there is no general duty on the Board to give reasons for its decisions. Nevertheless, the Board has clearly attempted a reasoned decision in the two letters dated 8 August 2024 and 25 October 2024. In those circumstances, it is possible to assess the adequacy of the reasons.

69.  Adequacy of reasons depends on the context. In short, as is trite, reasons are adequate if they identify that the decision-maker has applied his mind to the core issues at hand, and outlined the basic reasoning that leads to the decision. However, the decision-maker does not have to deal with every point of argument, or every issue raised by a complainant.

70.  Looking at the two letters from the Board to the Applicant, which comprise the impugned Decision, it does not seem to me to be reasonably arguable to suggest that the reasoning was inadequate. The core issue of the 2^nd Complaint centred on the allegation of misconduct in the medical record keeping of the treatment relating to the cat, and in particular to the production of the Addendum. In the Decision, the core allegations made by the Applicant were addressed head-on. The Board/PIC considered that the provision of supplemental medical records by way of the Addendum was not a breach of paragraph 18.1.3 of the Code, and also found that the records of the blood transfusion were adequate, even if there was no record as to the first pack of blood transfused except in handwriting on the blood record (which was obviously not viewed as a material inadequacy prohibited by the Code). The Decision also identifies – as I have set out above – that it was reached after a consideration of all of the materials provided by the Applicant in support of the 2^nd Complaint.

71.  Though mainly relevant to the next suggested ground of review, there is nothing improper in the context of reasoning arising from the fact that the PIC also mentioned in the Decision that it considered the treatment of the cat to have been not inappropriate. This point was at least of some tangential relevance, as it might be thought that any allegation related to improper record-keeping, or improper additions/alterations to medical records, may have been born of an attempt to cover up or detract from inappropriate medical treatment – or, as was being asserted here, to deflect the blame to someone else. But, in any event, to have expressed the view that the medical treatment was not inappropriate did not make the overall reasoning of the Decision in anyway arguably inadequate.

72.  This ground is not reasonably arguable with any reasonable prospect of success.

I.  Ground 4: Taking Account of an Irrelevant Factor

73.  The irrelevant factor said to have been taken into account improperly is the expression by the PIC of its view that the medical treatment given to the cat was not inappropriate. However, as I have indicated above, this factor was either (1) relevant as part of the overall background to the gravamen of the 2^nd complaint, and/or (2) did not improperly affect the decision-making process.

74.  I also accept Ms Chan’s submission that the scope of an investigation conducted by the PIC is a matter essentially for the PIC, which is not necessarily strictly confined to the specific matters alleged in a complaint. It can be noted that, as set out above, the persons comprising the PIC dealing with the 2^nd Complaint were different from those dealing with the 1^st Complaint, so I do not think it was inappropriate or necessarily irrelevant for the (new) PIC to have stated its view on part of the foundational background matters leading to, or contextually relevant for, the 2^nd Complaint. It does not mean the PIC was focusing on the wrong complaint.

75.  This ground is also not reasonably arguable with any realistic prospect of success.

J.  Ground 5: Legitimate Expectation

76.  There can be a legitimate expectation that a public disciplinary authority such as the Board would conduct an appropriately thorough investigation, in accordance with its procedures. But the Applicant argues that the PIC was required fully to investigate complaints and to seek further information or evidence on its own.

77.  It is correct that the PIC has the power to seek further information, but that does not mean it has to exercise that power in every case. Certainly, in the case of the 2^nd Complaint, the PIC was not short of materials to consider and weigh in reaching the Decision. As the Decision identifies, the totality of those materials were considered and weighed, but the conclusion reached was that the evidence lacked sufficient weight for the 2^nd Complaint to be referred to an Inquiry Committee.

78.  Insofar as this ground is based upon any suggestion that the PIC should have approached Dr Lam directly, I do not think it was arguably unreasonable or contrary to any legitimate expectation for the PIC to have chosen not to do so in the circumstances. First, from the correspondence, it is clear that the Applicant had herself expected and tried to obtain a statutory declaration from Dr Lam (even asking for extra time to do so), but that did not happen. Secondly, the materials from Dr Lam which were advanced via the Applicant were able to be and were assessed in any event.

79.  This ground is not reasonably arguable with any realistic prospect of success.

K.  Ground 6: Departing from policy, or inconsistent decisions

80.  With respect, I also do not think that the Decision was inconsistent with the Board’s public policy and its previous rulings. In any event, each case must depend upon its own circumstances, and merely repeating previous rulings which dealt with similar requirements under the Code (though on their own particular facts) does not significantly add to the analysis.

81.  This ground is not reasonably arguable with any realistic prospect of success.

L.  Result

82.  Like the Board, I also acknowledge the sympathy due to the Applicant in relation to the loss of her cat. However, I am afraid that I do not think that the Applicant has advanced any intended ground of judicial review with any realistic prospect of success.

83.  In those circumstances, the Applicant’s application for leave to apply for judicial review is dismissed.

84.  As to costs, the contest is for all practical purposes between making no order as to costs, or an order that costs should follow the event so that the Board’s costs should be payable by the Applicant. However, it seems to me to be preferable for the question of costs and any relevant summary assessment to be dealt with on paper. Therefore, I direct the Board to provide its submissions and statement of costs for summary assessment by 28 February 2025, and for the Applicant to provide her submissions and any points of objection to the statement of costs by 14 March 2025. Thereafter, I shall make a costs ruling and, if appropriate, make a summary assessment of costs on those papers.