PUI HING SANG v. MEDICAL COUNCIL OF HONG KONG

CACV 34/2024, [2025] HKCA 387 On Appeal From [2024] HKCFI 153 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 34 OF 2024 (ON APPEAL FROM HCAL NO 1729 OF 2023) ____________ BETWEEN PUI HING SANG Applicant and MEDICAL COUNCIL OF HONG KONG Putative Respondent ____________ Before: Hon G Lam JA and K Yeung J in Court Date of Hearing: 8 April 2025 Date of Judgment: 7 May 2025 _________________ J U D G M E N T _________________ Hon G Lam JA (giving the Judgment of the Court): Background This is an appeal against the decision of Coleman J refusing to grant leave to the applicant to apply for judicial review of a “decision” of the Medical Council of Hong Kong dated 7 July 2023 concerning the applicant’s internship application. Up to 1995, for someone such as the applicant who did not hold a Hong Kong diploma, a United Kingdom or Irish diploma or a recognised Commonwealth diploma, a route to qualify as a doctor in Hong Kong under the then provisions of the Medical Registration Ordinance (Cap 161) (“MRO”) was to pass what was called the “Licentiate Examination” and then complete a period of assessment called “Externship”. This would entitle the person to become a “Licentiate” and practise medicine as a registered medical practitioner. Section 8A of the MRO then provided: “ (1) No person shall be eligible to become a Licentiate unless — (a) he has passed such examinations as may from time to time be determined by the Council; and (b) he has completed the period of assessment provided for in section 10A.” The applicant took and passed all three Parts of the Licentiate Examination in 1990 and 1991, and became provisionally registered under Part IV of the medical register for the purpose of undergoing externship by virtue of section 12(1A) and (2) of the MRO which provided: “ (1A) Any person who has passed the examinations under section 8A(1)(a) shall be entitled to have his name recorded in Part IV of the register on application to the Registrar and on payment to the Registrar of such fee as may be prescribed. (2) Any person … who has had his name recorded in Part IV of the register shall be deemed to be registered as far as is necessary – … (aa) to enable him to serve a period of assessment under section 10A; ... but not further.” The applicant duly commenced his externship on 2 September 1991 at Kwong Wah Hospital, but his externship was terminated six months later on 3 March 1992 because he failed to provide a satisfactory explanation for his absence from duty without permission since that date. In the present proceedings the applicant has said that his absence was due to “family problems” but as a matter of fact he did not at the time apply under section 20G(1) of the MRO for a review of the Externship Sub-Committee’s decision terminating his externship. He did not do so despite the fact that in the letter of 23 July 1992 notifying the applicant of the termination of externship, the Externship Sub-Committee expressly told him that if he was aggrieved by that decision, he might within 14 days apply under section 20G(1) of the MRO for a review. Apparently because of the termination, the applicant’s record in Part IV of the register was marked “cancelled”. In 1995, the relevant parts of the MRO were reformed. The old section 8A which provided for the examination for becoming a Licentiate (commonly called the Licentiate Examination) was repealed and replaced by a new section 7(1) which provides for a “Licensing Examination” set by the Medical Council, as follows: “ (1) The Council shall set an examination, called the Licensing Examination, the passing of which shows the achievement of a standard acceptable for registration, under section 8(1)(b), as a medical practitioner.” The minutes of a policy meeting of the Medical Council in 1995 show that the proposal for the new Licensing Examination, compared to the old Licentiate Examination, was as follows: “ (i) Part I - Multiple Choice Questions Part I should remain in its present format but the standard of which would be raised to a level comparable to that of MB BS examination. In line with the recommendation of the ICAC, the number of questions would be increased from 120 to 180 initially and then to 240 eventually. (ii) Part II - English for Professional Purpose Part II would be retained; and should be taken by the candidate before Part III but after having passed Part I. (iii) Part III - Oral Examination In order that Part III could be of comparable standard with that of the local medical degree examination, it was recommended that Part III should be revised to a ‘clinical examination’ whereby the candidates would be tested on one long case and several short cases.” A period of assessment continues to be required under the new legislation. Section 10A(1) provides: “ (1) A person who has passed the Licensing Examination and who wishes to be registered as a medical practitioner under section 14 or 14C shall complete, to the satisfaction of the Council, such period of assessment as the Council may determine, not exceeding the prescribed period, in an approved hospital or in an approved institution.” “Licensing Examination” is defined in section 2(1) to mean the examination set by the Medical Council under section 7. The minutes of the above-mentioned meeting of the Medical Council show that changes were also proposed to the system of externship under the new regime: “ - a more formal, structured system of assessment be introduced; - the level of clinical responsibilities given be similar to that of interns; - externs be required to carry out night duties and weekend calls; and - the duration of hospital training be reduced to 12 months, and be divided into 4 segments with 3 months each.” The prerequisite for provisional registration was correspondingly changed so that a person is required to have passed the Licensing Examination or a qualifying examination as provided in section 12(1) of the MRO: “ (1) A person who has passed the Licensing Examination or a qualifying examination may be provisionally registered, on application to the Registrar and production to the Registrar of evidence to the satisfaction of the Registrar that— … (b) he has been engaged to undergo a period of assessment as mentioned in section 10A(1), …” A “qualifying examination” is defined in section 2(1) to mean an examination which has to be passed in order to qualify for the award of a degree specified in section 8(1)(a), i.e. a degree of medicine or surgery awarded by a specified university in Hong Kong. It is only upon provisional registration that a person can proceed with the period of assessment (i.e. internship) in an approved hospital or in an approved institution as required by section 10A of the MRO. There is a transitional provision to deal with the status of those who had passed the Licentiate Examination, but it assists only those persons whose names were recorded in Part IV of the register immediately before the relevant amendments of the MRO coming into effect (i.e. 1 September 1996). In particular, section 35 of the MRO provides: “ (1) On the commencement* of section 6 of the Medical Registration (Amendment) Ordinance 1995 (87 of 1995), the Registrar shall transfer the particulars of all the persons— … (b) in Parts II and IV of the register kept immediately before that commencement, to Part II of the General Register; … (2) … (3) A person whose name was recorded in Part IV of the register kept immediately before the commencement of section 6 of the Medical Registration (Amendment) Ordinance 1995 (87 of 1995) and was transferred, under subsection (1)(b), to Part II of the General Register is deemed to be provisionally registered in accordance with the provisions of section 12. (4) A person whose name was recorded in Part IV of the register kept immediately before the commencement of section 6 of the Medical Registration (Amendment) Ordinance 1995 (87 of 1995) and has been transferred to Part II of the General Register pursuant to subsection (1)(b) – (a) shall complete, to the satisfaction of the Council, the period of assessment provided for under section 10A in an approved hospital or in an approved institution; and (b) after completion of the period of assessment, is eligible for registration under section 14 as if he had passed the Licensing Examination.” Apparently because the applicant’s record in Part IV of the former medical register had been cancelled upon termination of his externship in March 1992, his name was not transferred to Part II of the General Register upon the amended provisions coming into effect. More than 30 years after his externship ended prematurely, on 8 June 2023, the applicant made an inquiry to the Secretariat of the Medical Council by email as to how he could continue his internship in order to be fully registered in Hong Kong. On 7 July 2023, the Licentiate Committee Secretariat replied in terms quoted by the judge in §16 of his decision, to the effect that since section 7 of the current version of the MRO only came into force in 1995, the applicant’s passes in the Licentiate Examination in 1990 and 1991 did not amount to passing the Licensing Examination and would not qualify him for provisional registration under section 12. Instead, the applicant needed to sit for and pass all Parts of the Licensing Examination before he could apply for provisional registration and to complete the internship. It is this reply in respect of which the applicant sought leave to apply for judicial review, claiming that the Medical Council erred by refusing to handle his internship application. On 27 September 2023, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Medical Council’s decision. His grounds for judicial review were summarised by the judge as follows: (1) The Licensing Examination stipulated in section 7 of the MRO and the Licentiate Examination conducted before the passing of the Medical Registration (Amendment) Bill 1995 are the same examination. (2) The professional qualification examination is still organised by the Medical Council, and there is no essential difference between the Licentiate Examination before and the Licensing Examination after the 1995 revision. (3) The examination method has not changed, and the Applicant has passed all three examinations. (4) The MRO does not require individuals who have passed the Licentiate Examination to re-sit the Licensing Examination. He sought “an order of mandamus requesting the defendant to agree with the applicant’s internship application.” The judge’s decision in the court below On 12 January 2024, after considering the application on the basis of the documents alone, the judge issued his decision, refusing to grant leave to the applicant to apply for judicial review. Contrary to the applicant’s assertion, the Judge found that the content of the Licensing Examination had been modified as compared with the Licentiate Examination. Further, (i) the difference in description of the two examinations; (ii) the existence of the transitional provision in section 35 of the MRO, and (iii) the speech delivered by the then Secretary for Health and Welfare during the second reading of the MRO amendment bill, also indicated the Legislature’s and the Administration’s intention to regard the two examinations as different. In any event, when the applicant passed the Licentiate Examination, the new section 7(1) of the MRO had not yet come into effect, so it was impossible that the applicant could have taken or passed the Licensing Examination whose founding provision had not yet been made law and taken effect at the material time. As the applicant did not pass the Licensing examination under section 7 of the MRO, he could not be provisionally registered under section 12 and could not proceed with the internship. Nor could the Licentiate Examination be regarded as a “qualifying examination” given the specific statutory definition. The transitional provision in section 35 of the MRO does not assist the applicant since his record in Part IV of the former medical register was cancelled in 1992, such that his particulars were not in Part IV of the former medical register immediately before 1 September 1996, with the result that his name was not automatically transferred to Part II of the General Register upon the commencement of the 1995 amendments to the MRO. The Judge hence concluded that none of the applicant’s intended grounds of review had any merits. Nevertheless, the Judge proceeded further and expressed his view that the Medical Council’s reply was merely a response to the applicant’s inquiry rather than a decision refusing his internship application. Appeal to this Court In the applicant’s Amended Notice of Appeal and his written submissions lodged on 12 March 2025, he has raised the following grounds of appeal: (1) The Licentiate Examination and the Licensing Examination are the same or the former is more difficult than the latter. (2) It was illegal for the Medical Council to invalidate his passing of the Licentiate Examination and to remove his name from Part IV of the former medical register. (3) The Medical Council acted in contravention to Article 25 of the Basic Law by applying different versions of the MRO to different persons. (4) The Medical Council’s reply was a decision and hence amenable to judicial review. Discussion As stated in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14, an appeal against the refusal of leave for judicial review by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. (1) Whether the same examination The applicant repeated his previous argument that the Licentiate Examination and the Licensing Examination are the same or that the former is more difficult than the latter. He also claimed that the existence of the transitional provision in section 35 of the MRO, which allowed the transfer from Part IV of the former medical register to Part II of the General Register indicated the interchangeability of the two examinations. The Judge had already explained why he considered that the two examinations are different. We do not find that he had made any error in principle or was plainly wrong in arriving at that conclusion. The crucial point is that by section 12(1) of the MRO, only a person who has passed the Licensing Examination (or a qualifying examination) may be provisionally registered, and the old Licentiate Examination is simply not the new Licensing Examination which is set by the Medical Council under section 7. The actual differences between the examinations have been explained by the judge and may be inferred from the minutes referred to above. (2) Whether the applicant’s passing of the Licentiate Examination was invalidated and his name was removed from Part IV of the former medical register illegally The applicant claimed that termination of his externship should not be equated to an invalidation of his passing of the Licentiate Examination and that the Medical Council had no right to remove his name from Part IV of the former medical register. The applicant also asserted that the Judge erred by refusing to countenance a challenge to the cancellation of his record in Part IV of the former medical register simply because it happened a long time ago. The applicant’s complaint that his qualification had been invalidated is misconceived. We agree with the judge’s view as stated in §34 of his decision that the Medical Council only stated that the passing of the Licentiate Examination is not equivalent to the passing of the Licensing Examination; it did not “invalidate” the applicant’s passing of the former. As to the removal of the applicant’s name from Part IV of the former medical register, as highlighted by the judge in §12 of his decision, this point was neither mentioned in the applicant’s Form 86 nor in his supporting affirmation. It was only raised by the applicant in his reply. As such it would not be right to entertain this challenge. Moreover, it is to be noted that the applicant was expressly informed by the notice of termination of his entitlement to seek a review. He did not. Any challenge brought now would be more than 30 years out of time. Further, under section 12(2) of the former MRO, provisional registration had to be for a specific purpose, the relevant one here being to enable the applicant to serve a period of assessment (i.e. externship), “but not further”. At the material time, as the applicant’s externship had terminated and he did not qualify for provisional registration or otherwise qualify to have his name recorded under any other purposes. Accordingly we also share the judge’s view that it was unconvincing for the applicant to suggest that he was entitled to have his name remained recorded for more than 30 years after the purpose of the recording, i.e. to complete his externship, had ended in March 1992. (3) Application of different versions of the MRO to different persons in contravention of Article 25 of the Basic Law The applicant alleges that different versions of the MRO were applied to different persons. He also claimed that the son of a former senior government official had received preferential treatment and was not required to take the Licensing Examination. This point was not raised in the applicant’s Form 86 or in his supporting affirmation, so that the putative respondent did not have an opportunity of dealing with it in its Initial Response. Further, in judicial review cases this Court will generally not entertain new arguments which have not been canvassed in the court below: see Re Qadir Sher [2018] HKCA 160, §11. In addition, the applicant’s allegation was a bare assertion without adequate particulars or any evidence in support. For all these reasons, this ground is rejected. (4) The Medical Council’s reply was a decision and hence amenable to judicial review The applicant reiterated that his email of 8 June 2023 to the Medical Council was an application for internship and that the Council’s reply constituted a decision rejecting his application. The judge considered that the Council’s reply was merely a response to the applicant’s inquiry rather than a decision refusing his application, and thus not amenable to judicial review. We are inclined to agree with the judge but in any event, this ground is immaterial because the applicant’s application for leave to apply for judicial review fell to be dismissed as he had not established any reasonably arguable ground for judicial review. Disposition For the above reasons, the appeal is dismissed. The judge made no order as to costs and there is no attempt by the putative respondent to disturb this, but there is no reason why the applicant should not have to pay the costs of this appeal. The principles pursuant to which applicants are in general not required to pay costs upon the dismissal of their ex parte applications for leave to apply for judicial review at first instance do not apply in the same way to appeals. As the Court of Final Appeal explained in Leung Kwok Hung v President of the Legislative Council of the HKSAR (2014) 17 HKCFAR 841 at §17(8) in relation to intermediate appeals: “An appeal against a judge’s refusal of leave, which in practice proceeds on an inter partes basis, should … be subject to the usual rules as to costs, namely that the starting point in civil litigation, even that involving the public interest, is that costs should follow the event.” We assess the costs payable by the applicant in the sum of $75,000. (Godfrey Lam) Justice of Appeal ( Keith Yeung) Judge of the Court of First Instance The Applicant, unrepresented, appeared in person Ms. SIU Ka Man, Carmen, Senior Government Counsel of the Department of Justice, for the Putative Respondent