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HCAL 70/2012

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 70 OF 2012
___________________

BETWEEN

THE HONG KONG MEDICAL ASSOCIATION Applicant

and

MEDICAL COUNCIL OF HONG KONG Respondent
___________________

Before: Hon Zervos J in Court
Date of Hearing: 7 J anuary 2014
Date of J udgment: 6 J une 2014
________________
J U D G M E N T
________________
Introduction
1. This application for judicial review concerns the Medical
Council of Hong Kong (the Council) and examines whether the power to
review any decision or order made in a disciplinary inquiry against a
registered medical practitioner is to be exercised by the full Council or by
the Council that conducted the inquiry.
1


1
The application for leave to apply for judicial review was refused on 11 July 2012 by Macrae J (as he
then was). The refusal of leave was appealed to the Court of Appeal (Cheung CJHC, Lam JA (as he
then was) and McWalters J) in CACV 164/2012 which on 13 March 2013 allowed the appeal and
granted leave to apply for judicial review.
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2. The applicant is the Hong Kong Medical Association. It is a
professional body with about 8,500 members representing the majority of
registered medical practitioners in Hong Kong. It was founded in 1920
with the principal aims to maintain standards of medical practice and
represent the interests of medical practitioners in Hong Kong. The
respondent is the Council which is a statutory body established under the
Medical Registration Ordinance, Cap 161 (the Ordinance).
Background
3. On the 8 and 10 February 2012, a registered medical
practitioner appeared as a defendant before a Council inquiry under s 21 of
the Ordinance on a charge alleging professional misconduct. On
10 February 2012, the Council found the terms of the charge made out and
ordered that the name of the doctor be removed from the General Register
of medical practitioners for a period of 1 month.
4. On 20 February 2012, the applicant wrote to the Chairman of
the Council requesting a review of the decision of 10 February 2012 under
s 21(4B) of the Ordinance. Section 21(4B) stipulates as follows:
Within 14 days after the conclusion of an inquiry under this
section, the Council may, of its own initiative but not otherwise,
review any decision or order made in the inquiry.
5. On 2 March 2012, the Secretary to the Council wrote to the
applicant on behalf of the Chairman declining the request to review the
decision and explaining that the term Council in s 21 (4B) referred to
the inquiry panel (ie the Council consisting of the Members/Assessors at
the inquiry), and that a review can only be conducted on the inquiry
panels own initiative but not otherwise.
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The issue
6. The issue to be resolved in this case is whether a review of a
decision or order of a disciplinary inquiry in relation to a registered
medical practitioner is to be conducted by the Council as a whole or by
Council that held the inquiry. This will turn on the proper interpretation
of the word Council in s 21(4B). The applicant argues that the word
Council in this context means the Council as a whole, consisting of all
the members referred to in s 3 of the Ordinance instead of the members of
the Council and the assessors, if any, participating in the disciplinary
inquiry pursuant to s 21B.
7. In the course of argument, Professor J ohannes Chan,
SC (Hon), for the applicant, criticised the legislation in relation to the
overall functioning framework for the regulation and discipline of
registered medical practitioners which, I have to agree, is at times unclear,
complicated and confusing. This will become apparent from my analysis
of the issue in dispute.
Criticism of the system
8. In respect of this application, the then President of the
Medical Association, Dr Choi Kin, and the then Chairman of the Council,
Dr Felice Mak, each filed an affirmation in which they both included a
brief background to the issue. Dr Choi was a Council member and a
member of the disciplinary inquiry which heard the misconduct complaint
against the defendant doctor. In addition to Dr Choi, the members of the
inquiry consisted of the Chairman of the Council, who was the temporary
Chairman of the meeting and who happened to be Dr Mak, 3 other Council
members, one of whom was a lay member, and 2 assessors who were both
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registered medical practitioners. The inquiry therefore consisted of
7 members.
9. There were 10 signatories to the letter of 20 February 2012
from the applicant. All of them were members of the Council, including
Dr Choi and another doctor both of whom sat on the inquiry. They
sought a review of the decision of the inquiry on the ground of
irrelevancy in that they were of the opinion that the quorum of the
Council inquiry erred in considering irrelevant factors in reaching its
decision. I take it that what they meant by the quorum of the inquiry was
the majority of the 7 members that held the inquiry. They also argued
that the Council as a whole had the authority to initiate and review the
decision of the Council inquiry. I note, however, that the defendant
doctor did not appeal the order of the Council inquiry. It would appear
that Dr Choi and the other doctor, who sat on the inquiry, disagreed with
the majority view and were seeking by the review to put the issue before
the full Council. I am bound to say from the outset that that does not
appear to be the purpose of s 21(4B).
10. Dr Choi explained that prior to 1996 there was no specific
quorum provision in the Ordinance governing disciplinary inquiries which
were conducted by the full Council. He said that this changed in 1996
when a quorum provision for disciplinary inquiries was introduced by the
enactment of s 21B which reads:
(1) At any meeting of the Council held for the purpose of an
inquiry under section 21, either-
(a) 5 members of the Council; or
(b) not less than 3 members of the Council and
2 assessors, on a rotational basis, from the panel
appointed under subsection (2),
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at least 1 of whom shall be a lay member but subject to the
majority being registered medical practitioners, shall be a
quorum.
(2) The Council shall appoint the following persons who are not
members of the Council to form a panel of assessors for the
purpose of conducting an inquiry under section 21-
(a) 2 registered medical practitioners nominated by the
Director;
(b) 2 registered medical practitioners nominated by the
Hospital Authority;
(c) 2 registered medical practitioners nominated by the
Academy of Medicine;
(d) 2 registered medical practitioners nominated by the
University of Hong Kong;
(e) 2 registered medical practitioners nominated by The
Chinese University of Hong Kong; and
(f) 4 lay persons nominated by the Secretary for Food
and Health.
(3) An inquiry conducted by members of the Council and
assessors forming a quorum under subsection (1)(b) is deemed to
be an inquiry by the Council and is as valid and effectual as an
inquiry conducted by members of the Council forming a quorum
under subsection (1)(a).
(4) An assessor shall hold office for a period of 1 year from the
date of appointment and, at the expiry of his period of
appointment or of any period for which he is reappointed, shall
be eligible for reappointment for further periods of 1 year each.
(5) Any assessor may at any time resign by giving notice in
writing to the Chairman.
(6) Section 3(6A) and (7) applies with respect to an assessor as it
applies to a member of the Council.
11. This is an important section and I set it out in full as I will
constantly refer to it in my judgment. The section provides that the quorum
at any meeting of the Council held for the purpose of an inquiry under s 21
is constituted by either 5 Council members or 3 Council members and
2 assessors. The assessors are selected on a rotational basis from a panel
of 14 that the Council appoints for the purpose of an inquiry. It is
stipulated that the panel of assessors are not members of the Council and
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consist of 10 registered medical practitioners nominated by certain
specified medical bodies or institutions and 4 lay persons nominated by the
Secretary for Food and Health. I noted at this juncture that the Council is
established under s 3 and consists of 28 members of which 24 are
registered medical practitioners and 4 are lay persons. In respect of
whichever quorum is satisfied for a meeting of the Council for the purpose
of an inquiry under s 21, it is also stipulated that at least 1 of the members
must be a lay member but subject to the majority being registered medical
practitioners. Notwithstanding this rather complicated set of
requirements and configurations, the legislative intent behind this
provision is to ensure that the composition of a disciplinary inquiry must
include at least 1 lay person and may include non-members of the Council
but this is at the discretion of the Council as to who gets appointed. This
provision provides both the quorum for and the composition of a Council
inquiry.
12. Dr Choi explained that no inquiry would be held if no lay
member of the Council could participate and that assessors would normally
be approached only when there were an insufficient number of Council
members to participate in an inquiry.
13. According to Dr Choi, up until September 2009, the practice
of the Council was that the secretariat would schedule new inquires every
month. All Council members, except for the Chairman and the Deputy
Chairman and the lay member of the Council who had considered the case
in a preliminary investigation committee, were invited to indicate their
availability for the schedule inquiries. All Council members were free to
either accept or decline to participate in the adjudication of the inquiry.
Once a quorum was obtained, the defendant doctor would be informed of
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the names of the Council members or assessors who would sit on the
inquiry and be asked if he or she had any objections to any of them. If a
Council member or assessor withdrew from an inquiry as a result of an
objection, a replacement would be arranged to meet the requirements of
the quorum and the composition of the Council inquiry.
14. It appears a review of this procedure took place in 2008 with
the assistance of the Independent Commission Against Corruption which
recommended that before the inquiry was held, the Council should disclose
to the adjudicating members, the identity of the defendant doctor under
inquiry and the nature of the case, and that a roster system be implemented
for the appointment of adjudicating members. These recommendations
were introduced.
15. Dr Choi is critical of the roster system because Council
members can only participate in the inquiry to which they are assigned.
He explained that this meant that the disciplinary power of the Council was
in effect delegated to a disciplinary committee. He stated that the
appointment of either Council members or assessors to an inquiry was
done by the Secretary of the Council and that prior to the roster system
inquiries were open to all members of the Council without the necessity to
enlist the participation of assessors which is now more frequently done
under the new system.
16. As I have already pointed out, s 21B makes specific provision
for a meeting of the Council held for the purpose of an inquiry to have as
its quorum either 5 Council members or not less than 3 Council members
and 2 assessors. It needs to be appreciated that s 21B stipulates the
quorum for a meeting of the Council inquiry under s 21. A quorum is
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the minimum number of members of a body that must be present at its
meeting to make the proceedings at that meeting valid. The section
therefore contemplates a Council meeting for this purpose to be valid by
two different quorums. One where it consists of Council members with a
minimum number of 5 Council members present. The other where it
consists of Council members and assessors with a minimum number of
3 Council members and 2 assessors present. In this latter instance, a
meeting of the Council includes 2 non-members being assessors and when
this occurs it is deemed under s 21B (3) to be an inquiry by the Council.
Section 21B not only provides the quorum for a Council inquiry but also
its composition when it takes a different form by the inclusion of assessors.
Principles of statutory interpretation
17. I will now turn to consider the specific legislative provisions,
but before I do, I will state the key principles that will guide me in this
exercise.
18. It is a fundamental starting point in statutory interpretation to
look at the relevant words or provisions having regard to their context and
purpose. This was made clear by Sir Anthony Mason NPJ in his
judgment in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at
paragraph 63 where he explained that the modern approach to statutory
interpretation insists that context and purpose be considered in the first
instance, especially in the case of general words, and not merely at some
later stage when ambiguity may be thought to arise. This was reinforced
in subsequent decisions of the Court of Final Appeal in HKSAR v Cheung
Kwun Yin (2009) 12 HKCFAR 568 at paragraphs 12 and 13 and Vallejos
and Domingo v Commissioner of Registration [2013] 2 HKLRD 533 at
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paragraphs 76 and 77. Statutory interpretation therefore requires
considering and understanding the relevant statutory wording or provisions
in light of their context and statutory purpose.
2

19. Accordingly, the question comes down to what is the proper
interpretation of the expression the Council in s 21(4B) in the context of
the provision and the exercise of a power to review a decision or order
made by the Council in a s 21 inquiry.
The legislation
(a) An overview of the legislation
20. Even though the object of the Ordinance is stated as
regulating the registration of practitioners in medicine and surgery, the
provisions are much broader in that they regulate the practice of medicine
and surgery, and the conduct of the medical profession as a whole. The
Council is established under s 3 of the Ordinance for this purpose.
3

21. The definition of Council is set out in s 2(1) which reads:
(1) In this Ordinance, unless the context otherwise requires-
Council means the Medical Council of Hong Kong established
under section 3;
22. Section 3 provides that the Council consists of 28 members,
made up of 24 registered medical practitioners and 4 lay members.
4
The
registered medical practitioners become members of the Council either by
nomination or election. The Director of Health, the University of Hong
Kong, The Chinese University, the Hospital Authority and the Academy of
Medicine each nominate 2 registered medical practitioners, who are

2
See Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144.
3
Section 3(1).
4
Section 3(2).
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appointed by the Chief Executive. The Hong Kong Medical Association
nominates 7 registered medical practitioners who have been elected by
Council members of the Association. The remaining 7 registered medical
practitioners are elected from the general body of registered medical
practitioners. The 4 lay members are appointed by the Chief Executive.
Provision is made for the appointment and the holding of office of various
categories of members of the Council. A Chairman is elected by
members of the Council for a term of 3 years.
5
A Secretary and a Legal
Advisor to the Council are appointed by the Chief Executive.
6
Meetings of
the Council are determined and arranged by the Chairman.
7
For most
purposes, the quorum for a meeting of the Council is 13 members
8
and the
only exceptions to this are:
(1) Appeal hearings under ss 20F, 20O, or 20W, which are
appeals from various committees of the Council to the
Council itself, at which the quorum is 5 members.
9

(2) Meetings held for the purpose of an inquiry under s 21, at
which the quorum is 5 members or 3 members plus
2 assessors.
10

23. Under Part IIIAA which consists of the single provision of
s 20BA, the Council may establish such committees it thinks fit for the
better performance of its duties and exercise of its powers. Specific
provision is made for the Council to establish the following committees:
(a) the Licentiate Committee;
11
(b) the Education and Accreditation

5
Section 3A.
6
Section 3B.
7
Section 4.
8
Section 4(2).
9
Section 4(2A).
10
Section 21B(1).
11
Part IIIA.
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Committee;
12
(c) the Ethics Committee;
13
(d) the Preliminary Investigation
Committee (the PIC);
14
and (e) the Health Committee.
15

24. The objective of the Council is to assure and promote quality
in the medical profession in order to protect patients, foster ethical conduct
and develop and maintain high professional standards. To this end, a key
function of the Council is to exercise regulatory and disciplinary powers
for and over the medical profession.
25. The Council regulates the medical profession of Hong Kong
through a system of registration which is established and governed by
Part III of the Ordinance. In order for a medical practitioner to practice
medicine, surgery or midwifery in Hong Kong, he or she needs to be
registered with the Council.
16
It is an offence for any person to
fraudulently obtain registration
17
or practice medicine or surgery without
registration.
18
To be a registered medical practitioner, certain stringent
requirements have to be satisfied that principally ensure that a registrant is
suitably qualified and experienced to practice medicine or surgery, and is a
person of good character who is able to maintain an acceptable
professional standard as a medical practitioner.
19
A Registrar maintains a
General Register of medical practitioners who have met the professional
standards and requirements as specified under the Ordinance.
20
The
Registrar also maintains a Specialist Register of medical practitioners

12
Part IIIB.
13
Part IIID.
14
Part IIIE.
15
Part IIIF.
16
As a matter of completeness there is separate legislation that governs the practice of Chinese Medicine
under the Chinese Medicine Ordinance, Cap 549. See s 31.
17
Section 27.
18
Section 28. I note that the provision only refers to the practice of medicine or surgery but makes no
mention of midwifery as sometimes included in provisions of the Ordinance.
19
Section 8.
20
Sections 7, 7A, 8, 9, 10A, 12 and 13.
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approved by the Council.
21
Registration entitles the registered medical
practitioner to practice medicine, surgery and midwifery
22
but he or she is
not permitted to do so unless he or she has been issued with a practicing
certificate by the Registrar.
23

26. The disciplinary powers of the Council are found under
Part IV of the Ordinance and the Medical Practitioners (Regulation and
Disciplinary Procedure) Regulation, Cap 161E (the Regulation).
However, there is no provision for the establishment of a disciplinary
committee. The disciplinary inquiry is conducted in the name of the
Council. The Council is empowered to establish the PIC which has as its
prime function to make preliminary investigations into complaints and to
make recommendations to the Council for the holding of an inquiry under
s 21 or to the Health Committee for conducting a hearing.
24
The former is
concerned with whether a medical practitioner is fit and proper to practice
medicine and the latter is concerned with whether a medical practitioner is
physically or mentally fit to practice medicine.
27. When a complaint is made or information received about a
registered medical practitioner, the Secretary to the Council would submit
the case to the Chairman, or in his absence, to the deputy Chairman, of the
PIC who would make an assessment of the case. It is open to the
Chairman or the deputy Chairman not to proceed further with the case if it
is assessed to be frivolous or groundless. However, before the case is
dismissed it needs to be discussed and agreed between the Chairman and
deputy Chairman. On an issue whether the registered medical

21
Section 6(3) and (4) and Part IIIC.
22
Section 16.
23
Section 20A.
24
Section 20T.
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practitioner is fit to the practice by reason of a physical or mental condition
the matter is referred to the Health Committee, if it is decided it warrants
investigation.
25

28. The PIC consists of a Chairman, a deputy Chairman, both of
whom are elected by the Council among its members, 1 of the 4 lay
members of the Council and 4 others who are registered medical
practitioners, each of whom is nominated by the Medical Association, the
Director of Health, the Hospital Authority and the Council respectively.
A quorum for a meeting of the PIC is 3 members, with 1 member at least
being a lay member of the Council. The lay member holds office for
3 months while the other members hold office for 12 months.
26

29. If the Chairman or deputy Chairman is of the opinion that the
case gives to rise to a question as to whether a defendant has been guilty
of misconduct in any professional respect, he can require further
particulars or clarification from the complainant which if not provided may
result in the case not proceeding. Otherwise, the case then proceeds to
the PIC for consideration. The Secretary will arrange a meeting of the
PIC to consider the case and notify the defendant of the complaint and
invite him or her to make any written explanations of the matter.
27
The
PIC will meet to consider the case and may:
(a) decide that no inquiry shall be held;
(b) decide that no inquiry shall be held and issue a letter of advice
to the defendant in such terms as it thinks fit;
(c) refer the case, in whole or in part, to the Council for inquiry;

25
Section 6 of the Regulation.
26
Section 20S.

27
Section 9 of the Regulation.
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(d) refer the case, in whole or in part, to the Health Committee for
a hearing.
28

30. If the PIC decides to refer the case to the Council for inquiry
it will notify the Chairman of the Council of the charge or charges into
which an inquiry is to be held. At the direction of the Chairman, the
Secretary will fix a date for the inquiry and give notice of it.
29

31. For the purpose of an inquiry under s 21, the Council can be
constituted by a quorum of 5 members or no less than 3 members and
2 assessors. The assessors are selected from a panel who have been
appointed under s 21B(2). In the conduct of an inquiry the Council
powers include hearing, receiving and examining evidence on oath and
summonsing any person to attend to give evidence or produce any
document or other thing in his or her possession. It also has the power to
hold the inquiry in private or public and to order that all or any information
relating to the inquiry not be disclosed.
32. So far as material s 21 provides:
(1) If, after due inquiry into any case referred to it by the
Preliminary Investigation Committee, the Health Committee or
the Education and Accreditation Committee in accordance with
regulations made under section 33, the Council is satisfied that
any registered medical practitioner-
(a) has been convicted in Hong Kong or elsewhere of
any offence punishable with imprisonment;
(b) has been guilty of misconduct in any professional
respect;
(c) has obtained registration by fraud or
misrepresentation; or
(d) was not at the time of his registration entitled to be
registered;

28
Section 11(8) of the Regulation.
29
Section 13 of the Regulation.
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(e) has breached a condition previously imposed under
paragraph (iv);
(f) is physically or mentally unfit to practise medicine,
surgery or midwifery; or
(g) where applicable, has procured his name to be
included in the Specialist Register by fraud or
misrepresentation,
the Council may, in its discretion-
(i) order the name of the registered medical
practitioner to be removed from the General
Register; or
(ii) order the name of the registered medical
practitioner to be removed from the General
Register for such period as it may think fit; or
(iii) order the registered medical practitioner to be
reprimanded; or
(iiia) order that the name of the registered medical
practitioner be removed from the Specialist Register;
or
(iiib) order that the name of the registered medical
practitioner be removed from the Specialist Register
for such period as it may think fit; or
(iv) make any such order as aforesaid but suspend the
application thereof, subject to such conditions as the
Council may think it, for a period, or periods in the
aggregate, not exceeding 3 years; or
(iva) make any such order as aforesaid (except an order
under paragraph (iv)) and further order that such
order take effect upon its publication in the Gazette
if the Council is satisfied that it is necessary to do
so for the protection of the public or in the best
interest of the registered medical practitioner; or
(ivb) refer the case to the Health Committee; or
(v) order that a warning letter be served on the
registered medical practitioner;
and may, in any case, make such order as the Council thinks fit
with regard to the payment of the costs of the Registrar, the
Secretary, any complainant or any person presenting the case to
the Council or of the registered medical practitioner, and any
costs awarded may be recovered summarily as a civil debt in
accordance with the provisions of section 67 of the Magistrates
Ordinance (Cap 227).
(2) For the purpose of subsection (1)-
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due inquiry () means an inquiry by the Council
conducted substantially in accordance with procedure prescribed
by regulations made under section 33.

(4A) A member of the Preliminary Investigation Committee who
is also a member of the Council shall not attend a meeting of the
Council whilst it is inquiring under this section into a complaint
or information, in the preliminary investigation of which he took
part.
(4B) Within 14 days after the conclusion of an inquiry under this
section, the Council may, of its own initiative but not otherwise,
review any decision or order made in the inquiry.
(4C) For the purpose of a review under subsection (4B), the
Council may invite the parties to the inquiry and such other
persons who have appeared before the Council in the inquiry to
appear again before the Council, by themselves or by their
counsel or solicitors.
(4D) On a review by the Council under this section, the Council
may affirm, vary or revoke any decision or order made in the
inquiry.

33. The specific power for a review is s 21(4B) and the procedure
for it is provided under s 34 of the Regulation which reads:
(1) Where the Council has decided to review its decision under
section 21 of the Ordinance and has decided to invite the parties
to the inquiry to attend the review, the Chairman shall direct the
Secretary to notify the parties in writing and invite them to
appear before the Council at the time and place fixed for the
holding of the review, and the Secretary shall comply with the
direction.
(2) At the review, the Council may invite the parties to address
the Council in such order as the Council thinks fit.
(3) Where the Council has invited the parties to attend a review,
the Council may proceed with the review notwithstanding the
absence of any party.
(4) After a review by the council under section 21(4B) or the
Ordinance, the Chairman shall announce the Councils latest
decision in writing and direct the Secretary to serve a notice of
the decision on the defendant and to notify the complainant
accordingly.
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(5) The Secretary shall comply with a direction under
subsection (4).
34. I will discuss in greater detail the review provisions but it is
worth noting at this stage that there is a separate right of appeal by a
registered medical practitioner who is aggrieved by a disciplinary order.
The appeal provision under s 26 so far as material reads:
(1) Any registered medical practitioner who is aggrieved by any
order made in respect of him under section 19, 19B, 21 or 21A
may appeal to the Court of Appeal, and the Court of Appeal may
thereupon affirm, reverse or vary the order the appealed against,
or remit the case to the Council for an, or another inquiry
(3) The practice in relation to any such appeal shall be subject to
any rules of court made under the high Court Ordinance (Cap 4):
Provided that the Court of Appeal shall not have power to hear
any appeal against an order made under section 21 or 21A unless
notice of such appeal was given within 1 month of the service of
the order in accordance with section 25 (1).

(5) In an inquiry held pursuant to the Court of Appeal remitting
the case to the Council under subsection (1), the validity of the
proceedings before the Council shall not be called into question
by reason only that any member of the Council who was present
in the former inquiry is not present in the current inquiry or that
any member of the Council present in the current inquiry was not
present in the former inquiry.
35. The provisions relating to the proceedings at an inquiry of the
Council are set out under Part IV of the Regulation. They are
comprehensive and provide strict procedures and formal requirements.
The Council has the discretion to open the inquiry to the public or to hold
it in private. A party to an inquiry may be legally represented and a legal
officer may be appointed to carry out the duties of the Secretary in respect
of an inquiry. The inquiry is required to be opened by reading the notice
of the inquiry to the Council and the charge against the defendant. The
procedure of the inquiry is provided by s 25. The Secretary presents the
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case against the defendant and adduces the evidence in support of it.
There is the option for the Council to permit the complainant to present the
case against the defendant if it thinks it appropriate in the circumstances of
the case. At the close of the case, the defendant can make a no case
submission. If it is upheld by the Council in respect of any charge, it will
be recorded that the defendant is not guilty of that charge. If it is rejected
by the Council, the defendant is required to state his case. At the
conclusion of the case for the defendant, the parties may make closing
submissions to the Council. The Council is required to consider and
determine whether the facts alleged in any charge before the Council have
been proved to its satisfaction and whether the defendant is guilty of the
offence charged.
36. The Chairman is required to announce the Councils decision
and in such terms as the Council may approve. If the decision is a finding
of guilt of the offence charged, the Council is required to sentence the
defendant. The defendant will be invited to address the Council by way
of mitigation and may adduce evidence as to the charge or personal
background of the defendant. The Council may in its discretion impose
by order various sanctions, including an order to strike off the practitioner
from the General Register as well as an order as to costs.
37. It is quite apparent that the conduct of an inquiry is formal
and generally follows the procedure applicable to a criminal case where a
person stands accused of serious professional wrongdoing. There are a
number of steps in the process that may require a decision or order.
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The applicants submissions
38. The applicant in its submissions focuses on the wide power of
the Council over the registration and conduct of medical practitioners and
in particular its power to order the removal of a registered medical
practitioner from the General Register with or without a disciplinary
inquiry. It is argued by the applicant that the intention of the legislative
scheme is that the power of removing the name of a registered medical
practitioner from the General Register is so important that it can only be
exercised by the Council and that the legislature conferred on the full
Council the power of rehearing evidence in discharging its duties of
reviewing or hearing an appeal from one of its established committees.
39. The applicant contends that the reference to Council in section
21(4B) referred to the full Council as appeals from decisions of certain
specified committees are heard by the full Council. In support of his
argument, he noted that any person who is aggrieved by a decision of the
Licentiate Committee, the Education and Accreditation Committee or the
Health Committee may appeal to the Council, which, upon the hearing of
the appeal may confirm, vary or revoke
30
or may affirm, vary or reverse
the decision of the Committee in question.
31
In the case of an appeal
against the decision of the Education and Accreditation Committee or the
Health Committee, the Council may invite the appellant to appear before it
to give further submission or to allow a legal representative to appear on
behalf of the appellant.
32


30
Section 20F.
31
Sections 20O and 20W.
32
Sections 20O (2) and 20W(2).
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40. The point against this argument is that the disciplinary powers
of the Council range in scope and degree from a warning letter to removal
from the General Register and that this is dealing with a situation where a
committee has dealt with a matter that the statute provides can go on
appeal to the Council whereas in this case it is the Council itself that has
conducted the inquiry, albeit with a different composition and quorum.
41. Section 21(4B) provides that within 14 days after the
conclusion of any inquiry the Council may, of its own initiative but not
otherwise, review any decision or order made in the inquiry. That seems
to me to be a reference to the Council conducting the inquiry. The
Council conducting the inquiry is aware of the decisions or orders it has
made in the inquiry and only the Council conducting the inquiry would be
in a position and appropriately informed to take its own initiative to review
a decision or order. It should be stressed that the power of review is to be
taken only at the Councils own initiative. The expression but not
otherwise eliminates any other method or mechanism to trigger a review.
I interpret the expression of its own initiative to mean that the Council,
can on its own violation review a decision or order it has made. It should
also be stressed that the power of review can only be taken within 14 days
after the conclusion of an inquiry. And with such a short time for it, it can
only sensibly be exercised by the Council conducting the inquiry.
42. Professor Chan argues that the purpose of the review under
s 21(4B) is to provide a prompt and simple means to remedy or revisit any
of the decisions or orders of the Council in its inquiry without recourse to
the full appellate process of the Court of Appeal under s 26, which could
be both costly and time consuming. He further argues that it was
intended to correct patent mistakes rather than to have a protracted
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rehearing and deal with complicated factual or legal issue which should be
reserved for an appeal. With this I agree. But the review power is only
available to the Council and the right of appeal is only available to an
aggrieved registered medical practitioner. This indicates that the review
power is limited both in terms of who can exercise it and the nature of the
matters to be considered. However, Professor Chan argues for the same
reasons that because this power can only be invoked by the Council, and
must be done within a specified period of time, it is a reference to the full
Council. He principally relies on the definition under s 2(1) and that a
term defined in the Ordinance shall carry the same meaning throughout the
Ordinance. With this I disagree. The very points Professor Chan made
about the purpose of the review undermine his submission that the Council
in this context referred to the full Council. It seems to me that if the
purpose of the review is to provide a prompt remedy to correct any patent
mistakes or errors in relation to any decisions or orders in the inquiry that
that can only be appropriately done by the Council that conducted the
inquiry.
43. The other difficulty that Professor Chan has with this
argument is that Council does not have the same meaning throughout the
Ordinance and a meeting of the Council for the purpose of an inquiry can
have a composition and quorum as specified which is different to a
meeting of the full Council. A Council of inquiry is still the Council as
defined but differently constituted for the purpose of conducting an inquiry.
44. Pursuing the theme that the legislation establishes one
jurisdictional body known as the Council under s 3, Professor Chan argues
that if the reference to Council was to mean an inquiry panel, the
legislature would have employed such a description in the section and that
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there is nothing to suggest that the reference to Council should not mean
the full Council but an inquiry panel set up by the Council under s 21. He
argues that there is no separate body conducting an inquiry as this function
is exercised under the umbrella of the Council. There is no disagreement
with this proposition. The Council can meet for different purposes and
different requirements may apply. As I have pointed out there are three
distinct features in the legislation that make it clear that Council is a
reference to the Council conducting the inquiry. First it is a review power
to remedy or revisit any decision or order of the Council in inquiry.
Secondly it has to be instigated within 14 days. Thirdly it can only be
invoked by the Council on its own initiative. This all points to the
Council being the Council that conducted the inquiry.
45. Section 34 of the Regulation deals with the review by the
Council. Subsection (1) provides that where the Council has decided to
review its decision under s 21 and has decided to invite the parties to the
inquiry to attend the review, the Chairman shall direct the Secretary to
notify the parties inviting them to appear before the Council of the review.
Subsection (4) provides that after a review by the Council, the Chairman
shall announce the Councils latest decision in writing and direct the
Secretary to serve a notice of the decision on the defendant and notify the
complainant accordingly.
46. Under s 21B(1), for a disciplinary inquiry, either 5 members
of the council, or not less than 3 members of the council and to assessors to
be appointed from a panel of assessors, shall form a quorum. It is argued
by the applicant that this section is an enabling provision to provide as a
matter of convenience the means by which the Council can effectively
conduct its business by a smaller number of members and therefore does
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not affect the status of the Council in a disciplinary inquiry. The
applicant also argues that the panel of assessors serves as a pool of
reserves to supplement members of the Council for the purpose of
conducting an inquiry under s 21 and the composition is modelled on that
of the Council. It is pointed out that the presence of assessors is not
mandatory as a disciplinary inquiry can be conducted by members of the
Council only and in any event assessors will only be in the minority as the
majority have to be registered medical practitioners.
47. The starting point is s 21(4B) which states that within 14 days
after the conclusion of an inquiry, the Council may, of its own initiative
but not otherwise review any decision or order made in the inquiry. The
time limit of 14 days is of short compass deliberately to limit this power by
requiring that it be made promptly. Clearly, this can only be done by the
Council conducting the inquiry for it knows the decisions or orders that it
has made and only it can respond in the time fixed.
48. The power relates to any decision or order made in the
inquiry and therefore covers decisions or orders made in the course of it.
Even though the power can only be invoked at the conclusion of the
inquiry, it extends to any decision or order made in the inquiry. This
would only be a matter that the Council conducting the inquiry would have
first-hand knowledge of such a decision or order and the need to address
by way of a review at the conclusion of the inquiry.
49. The important feature of this provision is that this power can
only be initiated by the Council. It cannot be initiated by individual
members of the Council or by anyone else for that matter. It is meant to
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be limited to the Council conducting the inquiry and by that body as a
whole (by majority vote).
50. Under s 21(4C), it is stated that for the purpose of the review,
the Council may invite the parties to the inquiry and any person who
appeared before the Council in the inquiry to appear again before the
Council. I interpret this to mean that the Council conducting the inquiry
in carrying out a review can invite a party or person to appear again
before it.
51. Section 34 of the Regulation to my mind makes it clear that
Council is the Council conducting the inquiry. Insofar as material
under subsection (1) it states: Where the Council has decided to review its
decision under s 21 of the Ordinance and decided to invite the parties to
the inquiry to attend the review The expression its decision is a
reference to the decision of the Council conducting the inquiry. Also in
subsection (4), it states that after the review the Chairman shall announce
the Councils latest decision which again in my view is a reference to the
Council conducting the inquiry.
The disciplinary powers of the Council
(a) The meaning of Council
52. The definition of Council is set out in s 2(1) which reads:
In this Ordinance, unless the context otherwise requires-
Council means the Medical Council of Hong Kong established
under section 3;
53. The specific argument that Professor Chan was putting on
behalf of the applicant was that in general, a defined term in an ordinance
carries a consistent meaning whenever it is used and therefore whenever
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Council is mentioned in the Ordinance it means the full Council as
provided under s 3. Mr Stewart Wong, SC, who appears with Mr Wilson
Leung, for the respondent, responds by first, noting that Professor Chan
qualified this proposition by stating that it applies in general, secondly,
by highlighting that the definition provision is itself qualified by providing
unless the context otherwise requires, and thirdly, by noting that there
are numerous examples in the Ordinance where Council is not the full
Council. I agree with Mr Wongs submissions. Whilst there is one
Council, it may meet for different purposes where provision is made for
a different quorum and even a different composition, as seen with the
Council for the purpose of an inquiry under s 21 which may include 2
assessors who are not members of the Council and must include 1 lay
person .
54. The legislation provides that the Council meets in different
capacities and for different purposes and that is apparent from a reading of
s 4 which is concerned with the conduct of meetings of the Council. It
reads:
(1) The Council shall meet at such times and such places as the
Chairman may appoint.
(2) Except in an inquiry under section 21, in an appeal hearing
under section 20F, 20O or 20W, or in an election petition under
the Election Regulation as defined in section 3, at any meeting of
the Council 13 members shall be a quorum.
(2A) In a meeting of the Council to hear an appeal under section
20F, 20O or 20W or an election petition under the Election
Regulation as defined in section 3, 5 members shall be a quorum.
(3) The validity of any proceedings of the Council shall not be
affected by any vacancy among the members thereof or by any
defect in the appointment of a member thereof.
(4) All questions coming or arising before a meeting of the
Council shall be decided by a majority of the members of the
Council present and voting thereon.
(4A) Except for an inquiry under section 21, for an appeal
hearing under section 20F, 20O or 20W and for an election
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petition under the Election Regulation as defined in section 3,
the Council may transact any of its business by circulation of
papers without meeting; and a resolution signed by all the
members of the Council for the time being present in Hong Kong
is as valid and effective as if it had been passed at a meeting by
the votes of the members so signing.
(5) The Chairman at any meeting of the Council shall have an
original vote and also, if upon any question the votes shall be
equally divided, a casting vote except in an inquiry under
section 21 at which he shall have only an original vote.
(6) The Council may make standing orders for regulating the
procedure at, and in connection with, its meetings.
55. Mr Wong argues that Council takes on a different meaning
in terms of membership, constitution and how it discharges its functions
under Part IV entitled Inquiries, Disciplinary Proceedings and Offences.
He points out that s 21(1) provides that if, after due inquiry, the Council is
satisfied that any registered medical practitioner has been convicted of an
offence punishable with imprisonment, or is guilty of professional
misconduct, and so on, then the Council may, in its discretion impose a
disciplinary order as specified. He argues that the word carries a specific
meaning with respect to the Council as constituted for the purpose of an
inquiry under s 21. He points out that there are at least five instances
where Council is different from the general meaning in terms of its
constitution and how it discharges its functions. First, the Council as
constituted for the purpose of an inquiry under s 21 may include assessors.
Whereas the full Council consists of 28 Council members and does not
include assessors.
33
Secondly, the quorum of the Council for the purpose
of an inquiry under s 21, is either 5 Council members or 3 Council
members plus 2 assessors. Whereas the quorum for the full Council is
13 Council members.
34
Thirdly, the quorum is only satisfied if at least
1 lay member is present. There is no such requirement for the full

33
See s 21B(2) and (3) and compare with s 3(2).
34
See s 21B(1) and compare with s 4(2).
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Council.
35
Fourthly, the full Council may transact its business by
circulation of papers without holding a meeting. A meeting of the
Council for the purpose of conducting an inquiry under s 21 may not
transact its business this way.
36
Fifthly, the Chairman of the full Council
has a casting vote in the event that the votes are equally divided, but by
contrast, no casting vote is given to the Chairman at an inquiry and if the
votes are equally divided the relevant question is deemed to be decided in
the defendants favour.
37
Mr Wong emphasised in his submissions that
there is no inquiry panel or committee separate from the Council as was
initially argued by the applicant. He stresses that the only point that
needs to be resolved is whether the power to review vests with, and is only
exercisable by the Council as constituted by the members and assessors of
the inquiry. He also stresses that the references to Council under Part IV
of the Ordinance are to the Council conducting the inquiry and not to the
full Council. He sets out instances where this is clearly the case in
various provisions which deal with the Council conducting the inquiry
exercising various powers and functions in the holding of the inquiry.
38

I have not set out these provisions in full but it is clear that they are
references to the Council conducting the inquiry.
56. Mr Wong submits that the clear legislative intention of having
the Council constituted to conduct an inquiry, involving a hearing and the
receiving and consideration of evidence, would also have the power to
review a decision or order it made and not the full Council. He explains
that a s 21 inquiry can be protracted and may involve many procedural

35
See s 21B(1) and compare with s 4(2).
36
Section 4(4A).
37
Section 4(5) and s 32(3) of the Regulation.
38
Sections 21(2), (2A) and (3), 22(1) and (4), 23 and 25(1A). See also ss 25, 26, 27, 28, 29, 30, 31, 32,
33, and 34 of the Regulation.
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steps and hearings which the members of the Council conducting the
inquiry would be familiar with and therefore best able to deal with a
review in the time required. He notes that there is the power under a
review to summons a witness to give evidence and he contends that this
can only be done by the Council that conducted the inquiry and not the full
Council.
39

57. Mr Wong also points out that under Part IV of the Regulation,
entitled Proceedings at an Inquiry of Council, nearly all the references to
the Council are clear references to the Council conducting the inquiry.
I agree with him. The various sections deal with matters to be decided or
handled by the Council conducting the inquiry such as to whether to have a
hearing open to the public or in private and the procedures to be followed
in the conduct of the proceedings of an inquiry.
40

58. The respondent has demonstrated that under the provisions of
the Ordinance and the Regulation, references to the Council are to the
Council conducting the inquiry. It must be acknowledged however there
are times when there is confusion about the term Council and the
legislation would benefit if it was made clearer. Putting the legislative
provisions in their context and the purpose they seek to serve, I am of the
view that the arguments mounted by the applicant that the full Council is
consistently used in the legislation are not well founded. It is not simply
an exercise of taking the definition of the Council and reading that
definition into the relevant provisions. Context and purpose need to be
considered.

39
Section 22(1)(b).
40
Section 19, 22(1), 23(1)-(2), 24, and 25-34 of the Regulation.
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(b) The Council conducting the inquiry
59. The key provisions that define what is meant by the Council
conducting the inquiry are ss 21 and 21B. I have already discussed s 21B
which deals with the composition and quorum of a meeting of the Council
for the purpose of an inquiry. I briefly turn to s 21, as a careful analysis of
the relevant provisions further reveals that the review power is to be
exercised by the Council conducting the inquiry. Under subsection (4A), it
provides that a member of the PIC which carried out the preliminary
investigation of the case, who is a member of the Council, shall not attend
a meeting of the Council whilst it is inquiring under s 21 into the complaint
or information. This makes it abundantly clear that there is a distinction
between the full Council and the Council in inquiry.
60. The next subsection (4B) deals with the power to review.
The points in support of the Council conducting the inquiry having the
power of review have been repeated in this judgment. I agree with
Mr Wongs submissions that in the context of this provision the Council is
a reference to the Council that conducts the inquiry.
61. Subsection (4C) provides that for the purpose of a review, the
Council may invite the parties to the inquiry and any other persons who
appeared before the Council in the inquiry to appear again before the
Council. The use of the word again, I interpret to mean that the parties
or persons are to come back before the same Council that conducted the
inquiry.
62. Subsection (4D) provides that on a review by the Council
under this section, the Council may affirm, vary or revoke any decision or
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order made in an inquiry. The first point is that it states that this is a
review of the Council under s 21 and is therefore a reference to the Council
conducting an inquiry. The second point is that a reference to a decision
or order made in the inquiry could be open-ended and maybe one of
several decisions or orders made in the inquiry. Again, this could only be
dealt with by the Council conducting the inquiry.
(c) The power to review
63. According to the applicants argument, if the review power is
that of the full Council, it would mean it could overturn a decision or order
which is either made during the course of the inquiry or at the conclusion
of it. It is important to note that the review power can only be initiated
and exercised by the Council. The right of appeal is only provided to an
aggrieved registered medical practitioner. In my view, the legislative
intention behind the review provision is to provide a prompt mechanism
for the Council conducting the inquiry to remedy or revisit a decision or
order made in the inquiry. This stands in juxtaposition with the right of
appeal to an aggrieved party to contest the final decision or order.
64. There is no dispute between the parties that the review power
is to provide a mechanism for speedy and simple correction of a mistake or
error made in the inquiry process. In such circumstances this could only
be done by the Council conducting the inquiry. The full Council would
not be in a position to deal with such a matter and especially where there is
a strict time limit of 14 days.
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(d) He who decides must hear
65. Authority has been put before me addressing the principle of
he who decides must hear. I do not find the issues and principles
discussed in these cases of assistance in this case. It depends very much
on the statutory scheme that is in place, the nature of the decision to be
made, and when, how and by whom it is to be made. It is highly relevant
to look at the legislative setting that underpins the basis for the making of
the decision.
66. In this instance, we are concerned with a review of a decision
or order that has been made in the course of an inquiry. It has been made
clear that the issue in this case is a question of statutory interpretation as to
which body is to conduct the review. That I have addressed elsewhere in
the judgment.
(e) Lay person participation
67. The legislature has decided that lay person participation is an
essential and important feature in an inquiry under s 21 and more so than
in other business conducted by the Council.
68. This is evidenced by the following matters. First, a meeting
of the Council held for the purpose of an inquiry cannot have a quorum
unless there is at least 1 lay person present.
41
This is to be contrasted to
other meetings of the Council which do not require that a lay person be
present.
42
Secondly, a panel of 14 assessors is established for the sole
purpose of participating in disciplinary inquiries, all of whom are non-

41
Section 21B(1).
42
Section 4(2).
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members of the Council and consist of 10 registered medical practitioners
and 4 lay persons. Thirdly, the legislature has made it clear that a
meeting of the Council for an inquiry which includes assessors is deemed
valid and effectual as if it was one conducted only by members of the
Council.
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69. It would seem that the legislative intent of making it
mandatory to have a lay person participate in a Council inquiry, could be
undermined by a review of the full Council which can be conducted
without lay member participation.
Conclusion
70. As I interpret the relevant provisions of the Ordinance, it
establishes one entity known as the Council. It can meet for the purpose
of conducting its general duties and functions as set out in the legislation.
A meeting of the Council for this purpose requires a quorum of 13 Council
members. It can also meet for the purpose of an inquiry under s 21. A
meeting of the Council for this purpose requires a quorum of either
5 Council members or not less than 3 Council members or 2 assessors. It
is implicit from s 21B that a meeting of the Council for the purpose of an
inquiry can include non-members being assessors selected from a Council
appointed panel. Confusion is created by the dual capacities of the
Council, and given the importance that allegations of professional
misconduct against a registered medical practitioner be dealt with
promptly and properly, it is in the interests of all concerned that this
responsibility be exercised by a clearly defined and separate body with
appropriate powers and functions. The legislation provides for the

43
Section 21B(3).
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representation of lay persons in the disciplinary processes but this is
overshadowed by various professional interests which may be more
pronounced in some instances than in others. The imperative is that there
be a fair and efficient system of handling complaints of professional
misconduct by registered medical practitioners which provides just results
and prompt resolution of cases.
71. I agree with the submissions of Mr Wong that the expression
the Council in the context of s 21(4B), properly interpreted, means the
Council consisting of those Council members and assessors (if any) who
participated in the relevant s 21 inquiry and therefore does not mean the
whole of the Council. I come to this conclusion for the reasons I have
given and which can be summarised as follows:
(1) A meeting of the Council may be for the purpose of
conducting an inquiry under s 21 which is distinguishable
from other meetings of the Council.
(2) The word Council in Part IV of the Ordinance, including
s 21(4B) and the regulations has the same meaning in that it
means a meeting of the Council for the purpose of an inquiry
under s 21 which has a different quorum and composition (as
it may include assessors and must have the participation of
1 lay person) from the meaning of Council in s 2(1) which
under s 3 consists of 28 members with a quorum of 13.
(3) In the context of s 21(4B) and s 34 of the Regulation the
power of review is that of the Council conducting the inquiry.
(4) The review provision under s 21(4B) puts a time limit of
14 days after the conclusion of an inquiry for the Council to
initiate a review of a decision or order made in the inquiry. It
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also puts a restriction on who can exercise this power. It can
only be done by the Council on its own initiative. In light of
the time limit and the restriction, as a matter of common sense
and practicality, a review can only be done by the Council
conducting the inquiry.
(5) The conduct of a review, which by its nature is a simple and
summary procedure for the correction of any patent errors or
mistakes, and not a rehearing or relitigation of the matter,
must have been intended to be done by the Council
conducting the inquiry which made the original decision or
order.
(6) It is the clear legislative intent that the participation of non-
members of the Council is contemplated in the disciplinary
processes and this would be defeated by a review of the full
Council. As provided under s 21B (2), the Council conducting
the inquiry may include 2 assessors from a panel for the
purpose of conducting an inquiry under section 21.
72. Accordingly, the application for judicial review is dismissed.
However, the application has raised a matter of public interest in that it
sought to clarify the power of review of a decision or order of a
disciplinary inquiry and has brought into sharp focus the need for reform
of the legislation in order to eliminate any ambiguity or uncertainty in the
powers and the functions of the Council in the conduct of disciplinary
action against a registered medical practitioner. Professor Chan in his
comprehensive submissions mounted strong argument for the contentions
he was putting on behalf of the applicant and highlighted certain
deficiencies in the structure and wording of the legislation. I accept there
are instances where the provisions mention the Council without making it
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clear whether it is a meeting of the Council generally or a meeting of the
Council holding an inquiry under s 21. This is apparent under Part IV of
the Regulation when dealing with sentencing of a defendant, which is not
at first very clear, even though I have concluded that it is a reference to the
Council in the context of proceedings of an inquiry. It is for the reasons
that I have just explained that I make an order nisi that each party bear
their own costs.
73. It remains for me to thank counsel for their erudite and
thorough submissions.



(Kevin Zervos)
J udge of the Court of First Instance
High Court

Mr J ohannes Chan SC (Hon), instructed by Howse Williams Bowers,
for the applicant

Mr Stewart K M Wong, SC and Mr Wilson Leung, for the respondent