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HCAL 195/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 195 OF 2015
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BETWEEN
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Dr U |
Applicant |
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The Preliminary Investigation Committee
of the Medical Council of Hong Kong |
1st Respondent |
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The Medical Council of Hong Kong |
2nd Respondent |
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| Before: Hon Zervos J in Court |
| Date of Hearing: 16 February 2016 |
| Dates of Written Submissions: 26 February and 7 March 2016 |
| Date of Judgment: 23 June 2016 |
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J U D G M E N T
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Introduction
1. This is an application by Dr U, the applicant, for judicial review of the decision of the Preliminary Investigation Committee (the PIC) of the Medical Council of Hong Kong (the Medical Council) to refer a case concerning him to the Medical Council for inquiry, which was conveyed to him in a letter dated 17 July 2015 from the Secretary of the Medical Council (the Secretary) to his solicitors. Leave was granted to make the application by this Court on 9 December 2015.[1]
2. It is alleged that the decision to refer his case to the Medical Council for inquiry relates to the same complaint that was made against him, which had been previously considered by the then Chairman and Deputy Chairman of the PIC, who upon a consideration of the material submitted dismissed the complaint by letter dated 8 February 2012 from the Secretary to the complainant (the initial decision). Subsequently, the Chairman (who by then had been replaced) and the Deputy Chairman were asked to reconsider the complaint by the complainant’s solicitors which they did, resulting in them deciding to proceed with the complaint and referring it to the PIC for consideration (the subsequent decision), which in turn decided to refer it to the Medical Council for inquiry.
3. At issue in this application for judicial review is the jurisdiction of the PIC to consider or reconsider a complaint and refer it to the Medical Council for inquiry, after the Chairman and Deputy Chairman of the PIC had already dismissed the complaint pursuant to section 6 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, Cap 161E, (the Regulation) on the grounds that the complaint was “frivolous, or groundless, and should not proceed further”.
4. It is argued by the applicant that the complaint having been dismissed should not have proceeded any further, unless or until the initial decision was set aside or quashed as being an error of law and therefore the course adopted resulted in a decision which was ultra vires. In support of this argument the applicant relies on the statutory power to dismiss a complaint by the PIC, and the principles of res judicata and cause of action estoppel which prevent a party from re-litigating a matter that has already been decided. It is also argued by the applicant that the PIC’s consideration of the complaint without the disclosure of relevant materials was further procedurally unfair.
5. Since leave was granted to the applicant to apply for judicial review, the respondents have through the affidavit of Dr Choi Kin (Dr Choi) dated 29 January 2016[2] acknowledged that the PIC made a decision on jurisdiction and that it ultimately decided that it was empowered to look into a case upon reconsideration of the initial decision, in light of a revised complaint with new information provided from the complainant. This narrowed down the issue before me to the question as to whether the PIC, having held as a matter of jurisdiction, could reconsider and reopen the earlier dismissal because of a revised complaint and new information.
6. Consideration of the present application will necessarily involve an examination of the nature of the power of the PIC to dismiss a complaint and its jurisdiction to reopen a complaint which had been previously dismissed.
7. The respondents contest the application while the interested party, being the complainant to the Medical Council against the applicant, has declined to participate in the proceedings, noting that he still maintains his complaint against the applicant.
Grounds for review
8. The applicant originally sought to judicially review the subsequent decision on four grounds which are as follows.
9. Ground 1 alleges that the subsequent decision was ultra vires. It is argued that the PIC is a creature of statute and had no jurisdiction to reconsider the complaint because it was statutorily barred from doing so following the dismissal of the complaint pursuant to section 6(3) of the Regulation. It is further argued that there is no statutory provision for a reconsideration or review of the complaint by the Chairman and/or Deputy Chairman following a dismissal of it.
10. Ground 2 alleges that the nondisclosure of materials in relation to the decision was procedurally unfair. It is argued that even if the Chairman and/or the Deputy Chairman had power of reconsideration or review following the initial dismissal, and lawfully referred the complaint to the PIC for consideration, the applicant should have been provided with all the relevant materials and correspondence between the complainant and the Medical Council in relation to the review. It is further argued that the failure to provide the relevant materials denied the applicant a fair opportunity to make representations to the PIC on the question of jurisdiction.
11. Ground 3 is in the alternative and alleges that the PIC failed to consider relevant considerations in relation to the question of jurisdiction. It is argued that if the PIC did not make an implied decision on jurisdiction and did not rely on the non-disclosed materials to make its decision, its failure to consider the jurisdiction issue resulted in a decision which was made without relevant considerations being taken into account.
12. Ground 4 is in the alternative and alleges that the decision is unreasonable and irrational. It is argued that the decision in the absence of considering whether the PIC had jurisdiction to hear the complaint was also Wednesbury unreasonable and irrational.
Change of position
13. However, the focus of the argument in the substantive hearing before me changed as a result of the additional evidence filed by the respondents in the form of the affidavit from Dr Choi, who stated that the PIC made a decision on jurisdiction when the subsequent decision was made, and that it ultimately decided that:
“48. Since the PIC submissions (with its jurisdictional challenge) did come before the PIC, the PIC did consider both issues of (i) whether the case should be referred to an inquiry and (ii) whether the PIC should accede to the Applicant’s jurisdictional challenge. The PIC, after discussion, considered that PIC was empowered to look into this case upon re-consideration of the Initial Decision in light of the Revised Complaint with new information provided from the Complainant. This means that the PIC has held as a matter of jurisdiction, it can reopen the earlier dismissal because of new information.”
14. The reference to a “revised complaint with new information” relates to the complainant, through his solicitors, requesting the Medical Council to reconsider its decision by making a further allegation against the applicant with the provision of further information.
15. In the circumstances, as conceded by the applicant, there is no longer a question of the PIC refusing to determine jurisdiction, and this renders Grounds 3 and 4 otiose. It is unfortunate that the full facts and circumstances were not disclosed prior or at the leave hearing as the issue between the parties would have been more appropriately focused in these proceedings. This will be relevant on the question of costs.
The applicant’s submissions
16. In light of the position taken by the respondents, the applicant’s submissions were summarised in his skeleton submissions as follows:
“4.1 The context and plain meaning of Section 6(3) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap. 161E) is to give legal force to the dismissal of groundless and frivolous complaints.
4.2 It is a specific power to dismiss to prevent the resurrection of such complaint and to preclude groundless complaints from, again and again, harassing professionals from doing their important public duties.
4.3 As made clear by Section 9(1), any PIC hearing and decisions subsequent to the exercise of the power to dismiss, are therefore a nullity and the PIC acted ultra vires. The dismissal breaks the chain of jurisdiction with the PIC.
4.4 There is no express or implied power of self-review of the decision of the chairman and deputy chairman under Section 6, in contrast to Section 15, which grants the PIC (at the next stage) a power of self-review upon the direction of the Council Chairman.
4.5 The dismissal is therefore an exercise of statutory power in relation to the defendant medical practitioner, who is entitled to rely on that decision.
4.6 The very belated revelation that the PIC decided that the “PIC was empowered to look into this case upon re-consideration of the Initial Decision” in light of the Revised Complaint was an error of law.
4.7 In the circumstances, there was a duty to give reasons, and the PIC did not.”
17. It was submitted on behalf of the applicant that the substantive application was primarily a question of statutory interpretation and whether section 6(3) therefore had an effect of estoppel. It was stressed that it was not the applicant’s case that the rules of issue estoppel should be wholly imported into the realm of public and administrative...
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