Dr. U v Preliminary Investigation Committee of the Medical Council of Hong Kong
Court of First Instance
Constitutional and Administrative Law List No. 195 of 2015
Zervos J
23 June 2016

Judicial review — dismissal by Chairman and Deputy Chairman of PIC of Medical Council of complaint against registered medical practitioner — whether PIC’s decision to refer complaint to Medical Council for inquiry and decision to reconsider complaint after its dismissal was ultra vires and procedurally unfair

The applicant (“Dr. U”) was a registered medical practitioner. Through solicitors, a former patient (the “Complainant”) of Dr. U lodged with the Medical Council of Hong Kong (the “Medical Council”) a complaint against him. Originally, the complaint was dismissed by the Chairman and Deputy Chairman of the Preliminary Investigation Committee (the "PIC") of the Medical Council under s. 6 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulations (Cap. 161E, Sub. Leg.) (the “Regulations”) on the grounds that it was “frivolous, or groundless, and should not proceed further”. Subsequently, the Complainant’s solicitors wrote to the PIC requesting a reconsideration of the matter and submitting additional materials. The PIC’s Chairman (a new one) and its Deputy Chairman reconsidered the matter. They then referred the complaint to the PIC for consideration. And the PIC referred the complaint to the Medical Council for inquiry. Dr. U obtained leave to apply for judicial review of the PIC’s decision to refer the complaint to the Medical Council for inquiry, on the grounds that the Chairman and the Deputy Chairman’s decision (the “Decision”) to reconsider the complaint and refer it to the PIC for consideration: (a) was ultra vires and (b) was procedurally unfair, among other things.

Held, dismissing the application, that:

  • The Decision was not ultra vires. On the true and correct interpretation of s. 6 of the Regulations, being the purposive and contextual interpretation consistent with the Medical Council’s very important responsibility to regulate and monitor the professional conduct of its members, the Chairman and Deputy Chairman of the PIC had an implied power to reconsider a complaint after its dismissal, such a power being required for the effective carrying out of their statutory functions. The dismissal of a complaint under s. 6 was not a final and binding determination of the complaint, and did not give rise to res judicata or cause of action estoppel. There being no statutory bar to reconsideration by the PIC of a complaint, it was unnecessary to decide whether or not the PIC and the Medical Council were right in their submission that there was a mistake of law in the original dismissal so that the power to dismiss was never validly exercised and that the way was open for that reason, too, to consider the complaint afresh.
  • Nor was the Decision procedurally unfair. Such materials as were supplied to Dr. U appropriately notified him of the particulars of the complaint, and he did not suffer any real prejudice as he was able to mount his jurisdictional challenge and to address the PIC in detail on the issue. It was essentially a legal argument. There was provision for legal objections to be entertained by the Medical Council itself if and when a case came before it, and the Medical Council would appear to be a more appropriate forum for the making of a legal challenge on jurisdiction, although that did not prevent the issue from being raised beforehand.

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