Medical Council granted leave to appeal ruling on hearings

PUBLISHED : Friday, 17 July, 2009, 12:00am
UPDATED : Friday, 17 July, 2009, 12:00am

The Medical Council has been given the green light to appeal in the Court of Final Appeal against a ruling that found a procedural rule of its disciplinary hearings to be unlawful.

The appeal stemmed from a judgment given by the Court of Appeal on April 30 which, in effect, quashed the council's finding of professional misconduct against Helen Chan Hei-ling made in November 2006.

Dr Chan, sister of veteran singer Agnes Chan Mei-ling, was disciplined for promoting a vitamin brand owned by a company of which she is a director. She was ordered to be removed from the medical register for two months, with the order suspended for two years.

The Court of Appeal judgment overturned the council's decision on the basis that the council's policy of requiring a legal adviser to be present during its deliberations in a disciplinary inquiry, and in preparing the first draft of its decision, was unlawful.

Mrs Justice Doreen Le Pichon, sitting in the Court of Appeal with Mr Justice Peter Cheung Chak-yau, and Mr Justice William Stone yesterday granted leave to appeal in a case mounted by barrister John Bleach SC on behalf of the council.

The judges accepted Mr Bleach's argument that the issues regarding the lawfulness of the policy were of great general importance.

In yesterday's application, Mr Bleach said the April judgment raised questions of law which ought to be decided by the Court of Final Appeal.

Mr Bleach said there was a question of whether the Court of Appeal had erred in reaching its earlier finding, based on the incorrect assumption that the role of the legal adviser gave rise to a perception of bias and was unfair to the defendant.

The top court would also be asked to determine whether the policy impinged on the right to a fair trial under Article 10 of the Basic Law.

In the April judgment, the appeal judges found the involvement of the legal adviser raised issues of 'breaches of natural justice, bias or the perception of bias, improper delegation and ultra vires [acting outside its power]'. Mr Justice Cheung had held that the adviser should tender advice only when called upon to do so after the hearing, when the council had returned to deliberate.