THE SECRETARY OF THE MEDICAL COUNCIL OF HONG KONG v. THE MEDICAL COUNCIL OF HONG KONG DR FUONG RULIN

HCAL116/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.116 OF 2013

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IN THE MATTER of an application by the Secretary of the Medical Council of Hong Kong for leave to apply for Judicial Review pursuant to Order 53, rule 3 of the Rules of the High Court.

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BETWEEN
	THE SECRETARY OF THE MEDICAL COUNCIL OF HONG KONG	Applicant
	and
	THE MEDICAL COUNCIL OF HONG KONG	Putative Respondent
	DR FUONG RULIN	Putative Interested Party

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Before : Hon P. Li J in Court

Date of Hearing : 29 August 2013

Date of Judgment : 4 November 2013

Date of Decision on Costs : 9 January 2014

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DECISION ON COSTS

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1.  I handed down the judgment on 4 November 2013 dismissing the application for leave to judicial review the decision of the Medical Council by the Secretary of the Medical Council of Hong Kong.  The Putative Interested Party, Dr Fuong Rulin, who was represented by counsel during the hearing, applied for costs for one counsel.  I invited parties to make written submission on the issue of costs.

2.  The general principle is that a court would only award costs against an unsuccessful applicant at the leave application stage if there are unusual or exceptional circumstances.  (per Lam J, as he then was, in Leung Kwok Hung v The President of the Legislative Council of the HKSAR, HCAL64/2012; per Tang VP, as he then was, in Sky Wide Development v Building Authority [2011] 5 HKLRD 202)

3.  What amounts to exceptional circumstances depends on the facts and issues in each case.  The list of exceptional circumstances include the hopelessness of the application; whether the application was to advance principally the applicant’s own interest or public interest; whether the unsuccessful applicant has substantial resources to meet the costs; whether the putative parties attended the hearing only upon the invitation of the court and provided helpful assistance.  (See Leung Kwok Hung above; Re Ho Mei Ling (No. 2) [2012] 1 HKC 400; and Television Broadcasts Ltd v Communications Authority, HCAL3/2013 per Au J at § 6.)

4.  In the present case, the Putative Interested Party argued that her counsel provided material assistance to this court. Further, the Putative Interested Party had a ‘separate interest’ in the hearing which justified representation by counsel.  The separate interest included the possible adverse effect on her reputation and practice.

5.  The main issue in this case was whether the receipt in question had been issued to a patient.  The question turned on whether an inference could be drawn that it was.  Given the reasons set out in the judgment, I held that the Applicant could not satisfy the threshold for granting leave.  However, I do not think it is a hopeless case at the outset.

6.  Initially, I had no intention to invite the Putative Interested Party to attend the leave application.  It was the latter who requested to be represented shortly before the hearing.  The submission by counsel for the Putative Interested Party raised no novel issue which was different from that needed to be resolved by the Putative Respondent.

7.  The Putative Interested Party admitted that there was an error on her part to state that she was a specialist in paediatrics in the receipt.  However, she had no idea whether the receipt had been issued.  This was the same issue that the Putative Respondent sought to resolve.  I see no separate issue that the Putative Interested Party needed to address.  The argument that there was a ‘separate interest’ which justified separate representation failed.  (See Leung Kwok Hung v President of the Legislative Council(re: costs) [2013] 2 HKLRD 1179, per Cheung CJHC at §12—13; Re Ho Mei Ling (No. 2) per Lam J, as he then was, at §30—33.)

8.  Having considered the written submissions from both parties, I refuse the application for costs by the Putative Interested Party.

9.  I make no order as to costs.

	(Patrick Li)
	Judge of the Court of First Instance
	High Court

Mr Anthony Ismail, instructed by the Department of Justice, for the Applicant

The Putative Respondent in person, absent

Mr McCoy, SC, leading Mr Daniel Hui, instructed by Howse Williams Bowers, for the Interested Party

HCAL116/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.116 OF 2013

-------------------------

IN THE MATTER of an application by the Secretary of the Medical Council of Hong Kong for leave to apply for Judicial Review pursuant to Order 53, rule 3 of the Rules of the High Court.

-------------------------

BETWEEN
	THE SECRETARY OF THE MEDICAL COUNCIL OF HONG KONG	Applicant
	and
	THE MEDICAL COUNCIL OF HONG KONG	Respondent
	DR FUONG RULIN	Interested Party

-------------------------

Before : Hon P. Li J in Court

Date of Hearing : 29 August 2013

Date of Judgment : 4 November 2013

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J U D G M E N T

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Introduction

1.  This is an application, by the Secretary of the Medical Council (‘the Secretary’), for leave to judicial review the decision of the Medical Council.

Background

2.  On 23 May 2013, the Medical Council acquitted Dr Fuong of the following charge:

“On or about 7 February 2011, she, being a registered medical practitioner, sanctioned, acquiesced in or failed to take adequate steps to prevent the use of the title of ‘Specialist in Paediatrics’ in a receipt issued by her, which was not acceptable to the Medical Council for use and was misleading to the public that she was a specialist in paediatrics, when in fact her name was not included in the Specialist Register under the specialty of ‘Paediatrics’. In relation to the facts alleged, she has been guilty of misconduct in a professional respect.” (my emphasis)

3.  The charge arose from a complaint sent to the Medical Council by e-mail on 7 February 2011[1].  Attached to the e-mail was a copy of the receipt which was the subject matter of the charge.  There was no date, patient name, diagnosis, fees, and doctor’s signature on the receipt[2].  The complainant claimed to be a registered pharmacist, Ms Siu.  She had deleted the details to protect patient confidentiality.

4.  At the trial, no oral evidence was called. Parties submitted to the Medical Council a set of admitted facts as follows:

“1. Dr Fuong Rulin’s (‘Dr Fuong’) name has been included in the General Register from 22^nd April 1996 to the present time.

2. There was an error in Dr Fuong’s computer-based accounting system which resulted in the words ‘Specialist in Paediatrics’ being printed below Dr Fuong’s name on an unsigned and unchopped receipt. This receipt would have been handed to the patient at the reception of Dr Fuong’s clinic following payment for the consultation with Dr Fuong.” (my emphasis)

5.  In giving the reasons for decision, the Medical Council commented that the original receipt was not produced to show that it was actually issued.  The complainant had not given evidence as to how she obtained the receipt.  The admitted facts stated that this receipt would have been handed to the patient following payment.  The Medical Council was of the view that the admitted facts was binding on them.  It meant that the receipt had not been handed to a patient[3].  The Medical Council was not satisfied that the receipt had been issued as stipulated in the charge.  Dr Fuong was acquitted.

The present hearing

6.  Having considered the content of Form 86, I invited the Secretary for an oral hearing pursuant to Order 53, rule 3(3).  I also allowed Dr Fuong to be represented by counsel as she was an interested party.

7.  Mr Anthony Ismail, counsel for the Secretary argued that:

(a) The Medical Council erred in law in finding that there was insufficient evidence to prove the receipt had been issued.

(b) The Medical Council failed to take into account other circumstantial evidence.

(c) The decision was unreasonable.

Error of law

8.  Mr Ismail stressed that there was sufficient evidence for the Medical Council to draw the inference that the receipt was issued to a patient given that there was a ‘PAID’ chop.  There were items listed as ‘CONSULT-PAED’, ‘MEDICATION FEE’, and ‘LABORATORY FEE’ on the receipt.  Further the defence solicitor had confirmed that the receipt was an authentic one and would be given to a patient after payment.  Mr Ismail reiterated that the receipt must have been issued otherwise it would not have come into the hands of the complainant.

9.  The defence solicitor had stressed at the outset that while the receipt emanated from her clinic, Dr Fuong did not know whether it was issued to a patient.[4]

10.  Upon the proposal by the Legal Adviser[5] to amend the admitted facts to “this receipt was handed to the patient”, the defence solicitor submitted:

“Legal adviser, I have got a problem with that…the difficulty that I have…is that we don’t know whether it was handed to a patient.”[6]

11.  The defence solicitor then explained that they wrote to the Medical Council for further details concerning this issue.  The request was turned down.  The defence solicitor further stressed that:

“ Our position, which possibly helps the legal officer[7], is simply this: We accept that page 6 is a receipt which has been written, produced by this doctor’s practice, and what normally happens with receipts in everyone’s practice is that the receipt is given to a patient after they have paid the invoice.

More than that, I can’t say. I don’t know who this patient was, I don’t know when this happened, but we accept that that is a document which has emanated from our clinic and we have always accepted that it incorrectly states my client Dr Fuong as a specialist in paediatrics. We have always accepted that. But, we can’t admit any more because we simply don’t know, and that’s why the wording of paragraph 2 (of the admitted facts) is as it is.”[8]

12.  On further enquiry from the legal adviser on whether the defence admit that the receipt was handed to a patient, the defence solicitor clarified:

“All I can say is we accept that this document is inaccurate. Was it handed to a patient? I have no idea…A receipt is normally given to someone when they pay a bill. This, we accept, is a form of a single receipt which was incorrectly issued. We are prepared to accept that it would have been issued to a patient. Who? When? How? We have no idea. We don’t want to contest this. We accept that this document shouldn’t have said what it said and that is the end of it.”[9]

13.  From the discussion above, the Medical Council must be aware that the defence did not admit that the receipt was issued to a patient or any third party albeit that it was an authentic receipt from the computer system of Dr Fuong.  This was the reason that the admitted facts was so drafted — “This receipt would have been handed to the patient…”

14.  During the adjournment to consider their decision, the Medical Council invited both parties to address them further on the apparent inconsistency — that the receipt had been issued as alleged by the Legal Officer and that the receipt would have been issued as set out in the admitted facts.

15.  The Legal Officer pointed out that paragraph 2 of the admitted facts only described a system in the clinic.  It did not mean the receipt had not been issued.[10] 

16.  Defence solicitor reiterated that the system at the clinic was that when there was payment, a receipt would be given.  The defence accepted that the receipt was authentic.  It would have been issued to someone.  But the receipt in question was unchopped and unsigned. There was no evidence whether it was handed to someone.[11]

17.  The evidence before the Medical Council was clear.  There was a receipt sent by the complainant through e-mail.  There was no evidence as to how she obtained it.  The receipt bore no chop or signature of Dr Fuong.  It recorded very little information as compared with a normal receipt.  Further, the admitted facts stated that this receipt would have been handed to a patient on payment.

18.  In my judgment, protection of patient confidentiality could not explain the condition of the receipt.  The Medical Council was entitled to conclude that the receipt was not issued to a patient.

19.  Mr Ismail argued that once a system or routine was proved, it would be reasonable to infer that things occurred according to that routine.  This inference could be safely drawn if there was no or little evidence pointing to the contrary.  In the present case, it was clear from the submission that the defence did not accept it was issued, coupled with the condition of the receipt and the absence of evidence as to how the complainant obtained it, the inference could not be safely drawn.

20.  While hearsay evidence is admissible in this hearing, the Medical Council is not bound to accept whatever hearsay evidence produced.  In my view, the complainant’s e-mail was of little value to prove whether the receipt was issued.  Given that the allegation could constitute a serious criminal charge[12], the Medical Council could not be criticized to require more cogent evidence to support the allegation.

21.  In my judgment, the Medical Council did not err in law in concluding that the charge was not proved.

Failure to consider the complainant’s e-mail

22.  Mr Ismail pointed out that the Medical Council should have considered the complainant’s statement in the e-mail.

23.  The complainant only attached a copy of the receipt in the email.  She did not explain how she obtained the receipt in the e-mail nor did she give evidence in this aspect.  The content of the e-mail added very little to support the allegation.  As I have pointed out above, there was very little information printed on the receipt, protection of patient confidentiality cannot fully explain the condition of the receipt.  This further cast doubt on whether the receipt was actually issued.  I do not think the e-mail could assist the Medical Council.

Unreasonable decision

24.  Mr Ismail pointed out that the decision of the Medical Council was unreasonable.  He based his argument on the comment in paragraph 14 of the decision.  In that paragraph, the Medical Council commented that:

“We must emphasize that the defendant’s conduct in using the specialist title when in law she was not entitled to do so is entirely unacceptable, and her acquittal of the charge does not in any way alter the fact that such conduct is illegal…”

25.  Mr Ismail argued that if the Medical Council found that the receipt was not issued to anyone, Dr Fuong’s conduct would not be unacceptable or illegal conduct since it was not used nor used to mislead the public.  Mr Ismail submitted that the comment above contradicted the decision of the Medical Council.

26.  I understand that the Medical Council was of the view that Dr Fuong’s conduct was unacceptable.  She was not entitled to use a specialist title in law and her conduct was illegal despite the acquittal.  In making that comment, the Medical Council must have in mind s.28 of the Medical Registration Ordinance, Cap 161.  That section creates an offence for a person to take or use any name implying that his name is included in the Specialist Register.  The fact that the receipt was issued or not is irrelevant.  In my view, there was no contradiction.

Conclusion

27.  I have also considered the submission by Mr McCoy, SC, counsel for Dr Fuong.  I do not need to set out his arguments here.

28.  Given the above, I am not satisfied that there was a reasonably arguable case with realistic prospect of success.  I refuse leave to judicial review.

	(Patrick Li)
	Judge of the Court of First Instance
	High Court

Mr Anthony Ismail, instructed by the Department of Justice, for the applicant

The respondent in person, absent

Mr McCoy, SC, leading Mr Danny Hui, instructed by Howse Williams  Bowers, for the interested party