2009-6-4
【大公報訊】醫委會委員兼道德事務委員會主席謝鴻興去年因不小心駕駛，被法庭罰款一千元並留案底。醫委會昨日舉行會議，認為謝鴻興涉嫌違反參選條例，參選時未有申報有案底，作出虛假聲明，將報警處理，但暫緩撤銷其委員的資格。不過，醫學會多名代表隨即反擊，批評醫委會的參選條例過時，報警是浪費警力，故此支持謝申請司法覆核和留任醫委會。
去年七月，謝鴻興因不小心駕駛，被法庭罰款一千元並留案底，醫委會認為其違反醫委會選舉條例，昨日開會討論是否撤銷其委員資格。醫委會主席麥列菲菲昨日在會議上表示，醫委會初步偵訊委員會了解有關事件後，認為謝鴻興曾觸犯有可能判監的罪行，但參選時並無申報，作出虛假聲明，涉及刑事罪行，已即時知會秘書處報警處理。
她說，不清楚秘書處是否已報警，而證明謝鴻興有心或無意隱瞞，非醫委會的責任。
對於秘書處為何無發現謝鴻興有案底，麥列菲菲承認秘書處有疏忽。她表示，臨時不會撤銷謝鴻興的委員資格，直至今年七月再開會決定是否補選，或由秘書處頂替，抑或任由職位空置。
謝鴻興出席會議後說，去年被法庭判罰後，已即時知會醫委會，並無意隱瞞事件。他表示，去年八月參選醫委會委員時，認為早前已通知醫委會，因此沒有再次申報。他指出，當時簽署的是提名表，並非聲明書，不認為自己是作出虛假聲明，當時醫委會亦未有提及其不符合參選資格，故此他對醫委會的做法感到莫名其妙。
根據《醫生註冊條例》（第161B章）第四條規範，曾在本港或其他地方被裁定犯任何可判處監禁的罪行，即喪失參選及出任委員的資格。謝鴻興表示，選舉條例不公平，有關規範只適用於選舉產生的七名委員，但不適用於醫委會其餘二十一名的委任委員。他說，不擔心事件造成聲譽受損，反而證明醫委會「幼稚」；他不會辭職，將會申請司法覆核。
昨日到來「撐場」的醫學會副會長周伯展表示，謝鴻興一早已向醫學會申報，「以為報咗就無問題」，而且參選的提名表並無提及犯罪問題，只寫是否合乎參選資格，條文不清晰，他並不認同醫委會的決定。他說，醫學會已諮詢法律意見，認為有關規範違反人權法，支持謝鴻興申請司法覆核。醫學會前會長蔡堅亦認為醫委會浪費警力。
2009-11-6 07:49 PM
身兼醫務委員會委員的醫學會會長謝鴻興因去年不小心駕駛罪成，被罰款及留案底，遭醫務委員會撤銷委員資格。謝不服提出司法覆核挑戰醫委會，醫委會終承認理虧，同意讓謝復職和取消補選。高院昨頒令宣布醫委會的選舉規則牴觸《基本法》及《人權法》，醫委會要撤銷今年七月革除謝鴻興委員資格的決定。
謝鴻興去年七月底在法院承認不小心駕駛罪，遭罰款一千元及留有案底，他其後參選角逐醫委會委員並當選，惟醫委會今年七月引用《醫生（選舉規定）（程序）規則》，革除謝的委員資格及發出補選通知。該規則規定，任何曾在香港或其他地方被裁定干犯任何可判監罪行的醫生，即喪失在選舉中提名或出任醫委會職位的資格。謝認為有關規則不合理，提出司法覆核。醫委會徵詢法律意見後，同意謝的觀點，與謝協商後，本月二日與謝一同將相關法例文件呈交給高院，要求法官照准。法官昨開庭讀出五項判令，雙方都沒有派代表出庭。
案件編號：HCAL 84 / 2009
高院頒發的五項命令
1.宣告醫委會選舉規則牴觸《基本法》和《人權法》保障市民參選和投票的權利。
2.撤銷醫委會於7月2日革除謝鴻興醫委會委員資格的決定。
3.宣告謝鴻興是合法當選成為醫委會2009至2012年度委員。
4.宣告醫委會於7月24日的補選通知無效。
5.下令醫委會付訟費給謝鴻興
HCAL84/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 84 OF 2009
-----------------------
BETWEEN
TSE HUNG HING Applicant
and
THE MEDICAL COUNCIL
OF HONG KONG 1st Respondent
SECRETARY FOR FOOD
AND HEALTH 2nd Respondent
THE SECRETARY OF THE
MEDICAL COUNCIL OF
HONG KONG 3rd Respondent
-----------------------
Before : Hon Chu J in Court
Date of Hearing : 5 November 2009
Date of Judgment : 5 November 2009
Date of Written Reasons for Judgment: 24 November 2009
-------------------------------------------
REASONS FOR JUDGMENT
-------------------------------------------
In these proceedings, the applicant seeks to challenge:
(1) The constitutionality of
section 4(2)(b) of the Medical Practitioners (Electoral Provisions) (Procedure)
Regulations, Cap. 161B (“the Regulations”), whereby a registered medical
practitioner is disqualified from being nominated in an election or holding
office as a member of the Medical Council of Hong Kong (“the Council”) under
section 3(2)(j) of the Medical Registration Ordinance, Cap.161 (“the MRO”), if
he has been convicted in Hong Kong or elsewhere of any offence punishable with
imprisonment; and
The validity of the motion passed by the Council at its meeting on 2
July 2009 (“the Motion”), declaring the applicant’s office of membership of the
Council to be vacant; the applicant having been convicted on his own plea of an
offence of careless driving, contrary to section 38(1) of the Road Traffic
Ordinance, Cap.374, which was an offence punishable with six months’
imprisonment.
Leave to apply for judicial review was granted on 27 July 2009.
On 2 November 2009, the parties made a joint application to dispose of
the proceedings on terms as agreed and set out in a draft order. In support of
the application, the parties had filed a joint statement (“the Joint
Statement”).
Having considered the papers and the Joint Statement, I accept the
agreed submissions of the parties as set out in the Joint statement. Accordingly, at the hearing of the judicial
review application on 5 November 2009, I made the following orders:
A declaration that section 4(2)(b) of the Regulations is inconsistent
with Article 21 of the Hong Kong Bill of Rights, Cap. 383 and Article 39 of the
Basic Law and is unconstitutional, null, void and of no effect.
A certiorari quashing the Motion.
A declaration that the applicant was lawfully elected as a member of
the Council under section 3(2)(j) of the MRO for a term of three years
commencing on 24 January 2009 and expiring on 23 January 2012.
A declaration that the by-election, which commenced pursuant to the
notice given by the Secretary of the Council on 24 July 2009 for filling a
vacancy in the office of membership of the Council arising as a result of the
Motion, is null, void and of no effect.
The costs of these proceedings (including costs previously reserved) be
to the applicant, to be taxed if not agreed.
At the request of the applicant, I now reduce my reasons into writing.
A copy of the Joint Statement setting out the facts and legal framework
relevant to this judicial review application as well as the parties’
submissions is annexed to this Judgment.
I will not repeat them.
At the heart of this application is the constitutionality of section
4(2)(b) of the Regulations. The parties
are in agreement, and I accept, that the section is a restriction that interferes
with the right to take part in the conduct of public affairs directly or
through freely chosen representatives. The right is guaranteed under Article 25
of the International Covenant on Civil and Political Rights, as applied to Hong
Kong by Article 21 of the Hong Kong Bill of Rights (“HKBOR”), and enshrined in
Article 39 of the Basic Law. The
Council is a public body and its members are engaged in the conduct of public
affairs within the meaning of Article 21(a) of the HKBOR.
I accept the submission that the restriction under section 4(2)(b) is
unreasonable having regard to the factors identified in Secretary for Justice
& Ors v. Chan Wah & Ors (2000) 3 HKCFAR 459, namely, (i) the nature of
the public affairs in question; (ii) the nature of the restriction; and (iii)
the reason for the restriction under the section. Members of the Council primarily function as
the regulator of the medical profession. Prima facie, the reason for the disqualification
in section 4(2)(b) is to ensure that Council members are trustworthy persons of
high moral probity. In setting out to
achieve this objective, the section imposes a blanket ban on the right to stand
for election and to hold office upon conviction of an offence punishable with
imprisonment, giving no regard to the nature, gravity and culpability of the
offence involved. Thus analysed, the
blanket restriction cannot pass the reasonableness requirement. The point is
exemplified by the facts of the present case.
The conviction involved is a motoring offence of careless driving and a
fine of $1000 was imposed. It is common
ground that this is a minor conviction. It also has no apparent relevance to
the applicant’s suitability to be a Council member. Nonetheless, on an application of the section,
the applicant became automatically disqualified from being nominated for
election and from holding office as a member of the Council.
I also accept the submission that the question of reasonableness may
also be approached by considering the proportionality test: see Chan Kin Sum v.
Secretary for Justice [2009] 2 HKLRD 166. Generally speaking, proportionality
for a measure requires the consideration of three conditions: (i) the measure
must be designed to achieve a legitimate aim; (ii) it must restrict a right or
freedom as little as possible consistently with achieving the legitimate aim;
and (iii) the effect of the measure on the right of freedom must be
proportionate to the achievement of the aim.
The disqualification under section 4(2)(b) of the Regulations does not
take into account: (i) the nature and gravity of the offence; (ii) the
circumstances of the offence and the sentence imposed; and (iii) the time lapse
between the conviction and the nomination.
The parties are in agreement, and I accept, that the general, automatic
and indiscriminate restriction is not one, which can be regarded as no more
than necessary for the achievement of the aim that it seeks to achieve and is
incompatible with Article 21 of the HKBOR.
It is sufficient to dispose of the judicial review application with the
conclusion on the constitutionality and validity of section 4(2)(b) of the
Regulations. It is not necessary to deal with the applicant’s argument that the
section is ultra vires section 33(4) of the MRO.
Further, it follows from the conclusion on section 4(2)(b) of the
Regulations that the Motion is liable to be quashed, given that the
respondents’ concession that in passing the Motion, the Council members were
substantially influenced by the legal advice that the applicant became
disqualified by reason of section 4(2)(b) of the Regulations.
Consequently, the applicant should be reverted back to his position
prior to the passing of the Motion and a declaration to this effect is
justified. It further follows that the
by-election that had commenced on the basis that a vacancy in the office of the
membership of the Council had arisen by reason of the applicant’s
disqualification and the passing of the Motion is null, void and of no effect,
and a declaration to this effect is justified.
The applicant has contended that the Motion is also liable to be
quashed on grounds of procedural impropriety.
For the purpose of disposing of this judicial review application, it is
not necessary to decide on them and I express no views on them.
Applying the normal rule of costs follow event, the applicant, having
been successful in obtaining the relief sought, is entitled to have the costs
of these proceedings, including the costs of the joint application for an order
disposing of the application.
(C Chu)
Judge of Court
of First Instance
High
Court
Messrs Richards Butler, solicitors for the applicant.
Department of Justice, solicitors for the 1st, 2nd and 3rd respondents.
Annex
HCAL 84/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 84 OF 2009
__________________________
BETWEEN
TSE HUNG HING Applicant
AND
THE MEDICAL COUNCIL OF HONG
KONG 1st Respondent
SECRETARY FOR FOOD AND
HEALTH 2nd Respondent
THE SECRETARY OF
THE MEDICAL COUNCIL OF HONG
KONG 3rd Respondent
_________________________
STATEMENT IN SUPPORT OF AN APPLICATION TO DISPOSE OF PROCEEDINGS ON
AGREED TERMS (PD SL-3, Para 23(1))
_________________________
Factual Background
At all material times, the Applicant was (and still is) a registered
medical practitioner under Part I of the General Register kept under s.6 of the
Medical Registration Ordinance (Cap.161) (“MRO”). Under s.3(2)(j) of the MRO, such a registered
medical practitioner, subject to fulfillment of other requirements, is eligible
to become a member of the Medical Council of Hong Kong (“the Council”) pursuant
to an election held under the Medical Practitioners (Electoral
Provisions)(Procedure) Regulations (Cap.161B) (“Election Regulation”).
To the extent relevant to the present proceedings, the relevant
provisions of the Election Regulation were made by the Council in 1996 after
having had the prior approval of the then Secretary for Health and Welfare (who
was later renamed as the Secretary for Food and Health) under s.33(5) of the
MRO.
By a notice of election dated 14th May 2008 and issued under s.6 of the
Election Regulation, the Secretary of the Council gave notice of an election
for the purpose of returning 3 members of the Council under s.3(2)(j) of the
MRO for a term of three years from 24th January 2009 to 23rd January 2012 (“the
2008 Medical Council Election”).
By signing a nomination paper dated 8th August 2008 provided for the
purposes of the 2008 Medical Council Election pursuant to the Election
Regulation, the Applicant consented to his nomination as a candidate in the
2008 Medical Council Election. The
nomination paper contained, among others, a declaration to the effect that to
the best of his knowledge and belief he was not disqualified from being
nominated or elected by reason of any disqualification contained in s.4(2) of
the Election Regulation (“Election Declaration”). Exhibit “THH-7” to the 1st Affirmation of the
Applicant filed herein is a copy of the said nomination paper.
By a notice of result of election dated 17th December 2008, the
Secretary of the Council gave notice that the Applicant, among others, had been
declared to be elected as a member of the Council for the aforesaid term of
three years commencing on 24th January 2009.
Exhibit “THH-9” to the 1st Affirmation of the Applicant filed herein is
a copy of the said notice of result of election.
Section 4(2)(b) of the Election Regulation provides that a registered
medical practitioner is disqualified from being nominated in an election or
holding office under s.3(2)(j) of the MRO if “he has been convicted in Hong
Kong or elsewhere of any offence punishable with imprisonment”. As a matter of fact, the Applicant had been
convicted on his own plea of the offence of careless driving, contrary to
s.38(1) of the Road Traffic Ordinance (Cap.374), before a magistrate on 28th
July 2008 and was fined $1,000. Careless
driving was (and still is) an offence punishable with six months’ imprisonment. In the circumstances, the Applicant’s
Election Declaration as contained in his nomination paper was on the face of it
inconsistent with s.4(2)(b) of the Election Regulation.
While the Applicant had reported his conviction to the Secretary of the
Council by a letter dated 28th July 2008
(and received by the Council on 30th July 2008) in the context of Council’s
Professional Code and Conduct, the Secretary of the Council, in confirming that
the Applicant’s nomination was considered valid by a letter dated 14th August
2008, had not taken note of the conviction.
Exhibits “THH-6” and “THH-8” to the 1st Affirmation of the Applicant
filed herein are copies of the said letters dated 28th July 2008 and 14th
August 2008 respectively.
In the context of the 2008 Medical Council Election, the Applicant’s
conviction was first brought up for discussion by members of the Council in the
298th policy meeting of the Council on 3rd June 2009 (“the 1st Meeting”) under
item IX of the corresponding agenda (set out in Council Paper MC/82/09 dated
22nd May 2009) captioned “The 2008 Medical Council Election” and by way of
another Council Paper MC/91/09 of the
same title dated 22nd May 2009, which contained, inter alia, the legal advice
given by the Council’s own Legal Adviser on the subject matter.
The Council was advised by its Legal Adviser by way of Council Paper
MC/91/09 that, inter alia, the Applicant could not lawfully remain in office as
a member under s.3(2)(j) of the MRO for the reasons that “(i) he lacks the
qualification to be nominated; (ii) his nomination and subsequent election to
office on the basis of his false declaration were void from the beginning; and
(iii) he lacks the qualification to hold office as a member under section
3(2)(j) of the MRO.” The Council was
also advised that a disqualified candidate who had been unlawfully elected
should be terminated in one of several ways, including the Council declaring
his office to be vacant under s.3(6A) of the MRO.
In the course of the discussion, the 1st Meeting became inquorate and
the discussion was adjourned.
The discussion resumed in the following Council meeting held on 2nd
July 2009 (“the 2nd Meeting”) under item II of the agenda of the 2nd Meeting
(set out in Council Paper MC/102/09 dated 22nd June 2009) captioned “Matter
Arising”.
Following the discussion in the 2nd Meeting, the Council passed a
motion by a majority “to declare under section 3(6A)(f) of the Medical
Registration Ordinance that Dr. Tse Hung Hing’s office of membership to be
vacant, for the reason that in the opinion of the Council he was unfit to
perform his duties and exercise his powers as a member of the Council” (“the
Motion”). Exhibit “THH-16” to the 1st
Affirmation of the Applicant filed herein is a copy of a Press Release by the
Council giving public notice of the whole incident and the Motion passed by the
Council on 2nd July 2009.
Before his office as a member of the Council being declared vacant, the
Applicant had been elected as the Chairman of the Ethics Committee of the
Council. His chairmanship was premised
on him being a member of the Council.
Following from the Council’s declaration of vacancy in the Applicant’s
office of membership of the Council by way of the Motion on 2nd July 2009, the
Secretary of the Council issued a notice of by-election and nomination paper on
24th July 2009, inviting nomination pursuant to s.7 of the Election Regulation
in respect of the by-election thus arising (“the By-Election”). Up to the closing date of the nomination for the
By-Election on 25th August 2009, the Secretary had declared only one candidate
to be validly nominated.
The Relief sought by the Applicant
By a Notice of Application for Leave to Apply for Judicial Review in
Form 86 filed herein on 24th July 2009, supported by the 1st Affirmation of the
Applicant also filed herein on 24th July 2009, the Applicant sought, inter
alia, the following final relief:-
Declaration that s.4(2)(b) of the Election Regulation is invalid;
An Order of Certiorari to remove into the Court of First Instance and
to quash the decision of 2nd July 2009 of the Council;
Declaration that the Applicant does continue to lawfully hold the
office of member of the Council under s.3(2)(j) of the MRO.
The Applicant also sought an interim injunction to restrain the Council
from holding an election in respect of the purported vacancy in the office of a
member of the Council under s.3(2)(j) of the MRO and from appointing a new
Chairman of the Ethics Committee until the conclusion of the present
proceedings or further order of the Court.
Leave to apply for judicial review was granted by the Honourable Madam
Justice Chu on 27th July 2009 with the direction that the Applicant fix an
inter-partes hearing if he were to proceed with his application for any interim
relief. The Applicant filed the Notice
of Motion for judicial review herein on 6th August 2009.
By a Consent Summons dated 25th August 2009, the Council, the Secretary
for Food and Health, the Secretary of the Council and the Applicant made a
joint application to the Court in respect of the interim relief sought by the
Applicant. By an Order dated 26th August
2009 made by the Honourable Madam Justice Chu, the Secretary of the Council was
joined as the 3rd Respondent and was restrained from, inter alia, declaring the
only validly nominated candidate of the By-Election to be duly elected to fill
the vacancy or purported vacancy in the office of the Applicant as a member of
the Council under s.3(2)(j) of the MRO pending the hearing and determination of
the present judicial review. The Consent
Summons was premised on the undertaking of the Chairman of the Council, through
the Department of Justice, to the Court not to put the issue of the appointment
of a new Chairman to the Ethics Committee of the Council on the agenda of the
policy meeting of the Council pending the determination of this judicial
review.
Legal Framework
Section 33(4) of the MRO provides, inter alia, that:
“The Council may by regulation provide for-
(a) …
(b) the procedure and other matters in relation to an election or
appointment to an office of the Council under section 3(2)(j) including the
qualifications of candidates, electors and subscribers for a nomination paper,
the particulars of any system of voting and counting, the determination of
election results and questioning of the results;
…”
Section 33(5) of the MRO provides that:
“Any regulation under subsection (4) shall not be made unless the prior
approval of the Secretary for Food and Health has been obtained.”
Section 4 of the Election Regulation provides:-
“(1) …
(2) A registered medical practitioner is disqualified from being
nominated in an election or holding office under section 3(2)(j) of the
Ordinance if
(a) …
(b) he has been convicted in Hong Kong or elsewhere of any offence
punishable with imprisonment;
…”
Article 26 of the Basic Law of the Hong Kong Special Administrative
Region provides:
“Permanent residents of the Hong Kong Special Administrative Region
shall have the right to vote and the right to stand for election in accordance
with law.”
Article 39 of the Basic Law provides:
“The provisions of the International Covenant on Civil and Political
Rights (“ICCPR”)… as applied to Hong Kong shall remain in force and shall be
implemented through the laws of the Hong Kong Special Administrative
Region.
The rights and freedoms enjoyed by Hong Kong residents shall not be
restricted unless as prescribed by law.
Such restrictions shall not contravene the provisions of the preceding
paragraph of this Article.”
Article 25 of the ICCPR was applied to Hong Kong by way of Article 21
of the Hong Kong Bill of Rights, which provides, inter alia, that:
“Every permanent resident shall have the right and the opportunity,
without any of the distinctions mentioned in article 1(1) and without
unreasonable restrictions –
to take part in the conduct
of public affairs, directly or through freely chosen representatives;
…”
The Joint Submissions
(A) Constitutionality of s.4(2)(b)
The parties are agreed in their submissions that the disqualification
provision under s.4(2)(b) of the Election Regulation is a restriction that
engages the right of a permanent resident of the HKSAR to take part in the
conduct of public affairs directly or through freely chosen representatives as
guaranteed under Article 25 of the ICCPR (as applied to Hong Kong by way of
Article 21 of the HKBOR) and enshrined under Article 39 of the Basic Law.
For the reasons submitted below, the parties are agreed in their
submissions that the restriction under s.4(2)(b) of the Election Regulation, in
this day and age, is unreasonable and/or not proportionate to the achievement
of the aim that it seeks to achieve. The
parties pray that a declaration be granted declaring that s.4(2)(b) of the
Election Regulation is inconsistent with Article 21 of the HKBOR and Article 39
of the Basic Law and is unconstitutional, null, void and of no effect. This is the 1st Declaration sought in the
draft Consent Order.
Article 26 of the Basic Law
and Article 21 of the HKBOR
Article 26 of the Basic Law gives permanent residents of HKSAR “the
right to vote and the right to stand for election in accordance with the law”.
The Applicant’s case is that Article 26 is engaged in the present case.
The Respondents submit that primarily, Article 26 is evidently directed
at the right to participate as voter or elector in a participatory democracy
and it may be inapt in the context of a right to vote for or stand for election
to the Council. In any event, this may
not really be an issue since, although Article 26 is couched in absolute terms,
the right conferred is that to vote and to stand for election “in accordance
with law”. This is a requirement for
“certain and accessible” electoral laws: Chan Kin Sum v Secretary for Justice
[2009] 2 HKLRD 166 at [51] – [54]. In
the present context it is not suggested that the Election Regulation is not
certain and accessible. Moreover, Chan
Kin Sum is authority for the proposition that Article 26 of the Basic Law has
to be read with Article 21 of the HKBOR.
(See paras. 55, 56 and 59-62.)
Thus, for the present purposes, even if Article 26 were applicable, the
position under that Article would be no different from that under Article 39 of
the Basic Law and the implementing Article 21 of the HKBOR.
The leading authority on Article 21 of the HKBOR is the decision of the
Court of Final Appeal in Secretary for Justice & Ors. v. Chan Wah & Ors
(2000) 3 HKLRD 641. That case concerned
an electoral practice which precluded from standing as village representative
non-indigenous villagers, i.e. those not of patrilineal descent from a resident
of the village in 1898. The practice was
held incompatible with Article 21 of the HKBOR.
Importantly, Li CJ stated at page 652E of his judgment:
“The crucial issues are: First, is the village representative, upon
election and approval by the Secretary, engaged in the conduct of public
affairs? Secondly, are there
unreasonable restrictions on the right and opportunity to take part?”
Public Affairs
The Court of Final Appeal in Chan Wah considered that “public affairs”
in Article 21(a) of the HKBOR covered all aspects of public administration
including at the village level and the village representatives’ functions at
the village level were matters of public administration. Having analysed this role of village
representatives and noted that the role, played directly or indirectly,
extended to various bodies in the public arena, the Court of Final Appeal came
to the view that a village representative was engaged in the conduct of public
affairs within the meaning of Article 21(a) of the HKBOR.
In the present case, the Council is a creature of statute and performs
the function of regulating the medical profession in the public interest. The public nature of the Council is evident
from the broad spread of its composition and the multifarious functions and
duties it has under the MRO, one obvious example of which being the holding of
disciplinary proceedings against medical practitioners for misconduct in any
professional respect under s.21 of the MRO.
The nature of a professional body, charged with regulating a
profession, has been considered by the European Court of Human Rights to be
carrying out a public function. In Le
Compte, Van Leuven and De Meyere v Belgium (1981) 4 E.H.R.R. 1, being a case
concerning the professional regulatory body for doctors in Belgium, the
European Court of Human Rights observed in paragraph 64 that:
“The Ordre des medicines was founded not by individuals, but by the
legislature; … It pursues an aim which is in the general interest, namely the
protection of health, by exercising under the relevant legislation a form of
public control over practice of medicine. …
For the performance of the tasks conferred on it by the Belgian state,
it is legally invested with administrative as well as rule-making and
disciplinary prerogatives out of the orbit of the ordinary law and, in this
capacity, employs processes of a public authority. …”
The parties are agreed in their submissions that the Council is a
public body and that those who participate in its proceedings as Council members
are engaged in the conduct of public affairs within the meaning of Article
21(a) of the MRO.
Reasonableness of the
Restriction
In Chan Wah, at page 654I, Li CJ (to whose judgment the other judges in
the case all concurred) stated that “[t]he question whether restrictions are
reasonable or unreasonable has to be considered objectively. One must have regard to the nature of the
public affairs the conduct of which is involved and the nature of the
restrictions on the right and the opportunity to participate and any reason for
such restrictions.” While Li CJ did not
specifically analyse the issue of reasonableness in terms of proportionality,
the factors to which his Lordship pointed are ones which would also arise on an
examination of proportionality.
In Chan Kin Sum, a case concerning a prisoner’s right to vote in
respect of Legislative Council elections, Andrew Cheung J, at para. [73], held
in the context of Article 21(b) of the HKBOR that “in determining whether a
restriction is an unreasonable one or not, it is appropriate to apply the
proportionality test or something similar.”
At paras. [74] – [76], the learned judge further held that if being a
prisoner was a “status” within the meaning of Article 1(1) of the HKBOR, any
restriction involving drawing a distinction of status and therefore inequality
of treatment would have to be justified and the proportionality test or
“justification test” would be the right test to apply, i.e. the restriction is
rational and no more than is necessary for the achievement of a legitimate aim.
(See also Secretary for Justice v. Yau Yuk Lung and another (2007) 10 HKCFAR
335.)
Taking the factors identified in Chan Wah, the parties are agreed in
their submissions that it is necessary to consider the following. First, it is the nature of the public affairs
in question. Here, this is the
participation in the Council in its role as regulator of the medical
profession. Secondly, in respect of the
nature of the restriction on the right to stand for election, it is a blanket
ban in the case of a medical practitioner who has been convicted of an offence
punishable with imprisonment regardless of culpability or the gravity of the
offence actually committed. Thirdly, it
is necessary to consider the reason for the restriction. The obvious reason for the restriction is to
ensure that members of the Council are trustworthy persons of high moral
probity as the general body of medical practitioners would be entitled to
expect as much from those who represent and regulate them.
While a ban on those serving a sentence of imprisonment, such as is to
be found in s.3(7)(b)(i) of the MRO, would be readily explicable, the reason
for a ban applicable to someone convicted of a minor motoring offence is hard
to see. A conviction for careless
driving could hardly be said to reflect adversely on a person’s moral
probity. It is also hard to justify why
a conviction for careless driving should render a person unsuitable to be a
member of the Council which regulates the profession of medicine. The parties are agreed in their submissions
that the present restriction under s.4(2)(b) of the Election Regulation would
not pass the reasonableness requirement in the light of the factors identified
by Li CJ in Chan Wah.
It is also instructive to consider reasonableness from the perspective
of proportionality as did Andrew Cheung J in Chan Kin Sum. The European Court of Human Rights has also
analysed restrictions on the right to vote from that standpoint: see Hirst v.
United Kingdom (No 2) [2006] 42 EHRR 41 and more recently, Zdanoka v. Latvia
[2007] 45 EHRR 17. Proportionality for a
measure generally requires the fulfillment of three conditions, namely: (1) the
measure must be designed to achieve a legitimate aim; (2) it must restrict a
right or freedom as little as possible consistently with achieving the
legitimate aim; and (3) the effect of the measure on the right or freedom must
be proportionate to the achievement of the aim.
The disqualification of a registered medical practitioner from being
nominated in an election or holding office as a member of the Council under
s.(4)(2)(b) of the Election Regulation, on the basis of his having been
convicted of any offence punishable with imprisonment, in Hong Kong or
elsewhere, at some point of time in the past, does not take into account (1)
the nature and gravity of the offence; (2) the actual sentence imposed; and (3)
the time lapse between the conviction and the nomination. Accordingly, a medical practitioner convicted
of any trivial offence (so long as it is punishable by imprisonment) anywhere
in the world which is totally unrelated to the trust and the expectation that
the public may have in the integrity, probity and professionalism of the
medical profession, would be subject to a lifelong and absolute restriction
from being elected as a member of the Council.
Whatever the legitimate aim may be for the restriction under s.4(2)(b)
of the Election Regulation, including that the persons elected as members to
the Council under s.3(2)(j) of the MRO should be trustworthy persons of high
moral probity, the parties are agreed in their submissions that the general,
automatic and indiscriminate restriction under s.(4)(2)(b) is not one which can
be regarded as no more than is necessary for the achievement of a legitimate
aim so as to be compatible with the guarantee under Article 21 of the HKBOR.
The Applicant also contends in Form 86 that s.4(2)(b) is ultra vires
s.33(4) of the MRO. In the light of the
above, it is not necessary for the Court to decide the issue.
(B) Quashing of the Council’s 2nd
July 2009 decision
For the reasons given below, the parties are agreed in their
submissions that the Council’s decision of 2nd July 2009 (i.e. the Motion)
should be quashed. This is the 2nd
Declaration sought in the draft Consent Order.
The Applicant attacked the legality of the 2nd July 2009 Motion on a
number of substantive grounds as well as procedural impropriety. In particular, the Applicant observed that
the Council had followed closely the reasoning of its Legal Adviser as set out
in paragraph 9 hereinabove, which was premised partly on the validity of
s.4(2)(b) of the Election Regulation, and partly on the false declaration of
the Applicant.
For the present purposes, suffice it to say that the Respondents accept
that, in passing the 2nd July 2009 Motion, the Council members were
substantially influenced by the advice of the Legal Adviser that by reason of
s.4(2)(b) of the Election Regulation the Applicant should have been
disqualified from being nominated for election in the first place and from
holding the office as a member of the Council, and that it was open to the
Council to declare his office to be vacant pursuant to s.3(6A)(f) of the MRO
despite that he had been unlawfully elected.
The parties are agreed in their submissions that upon the declaration
of s.4(2)(b) of the Election Regulation to be unconstitutional, null, void and
of no effect, the Applicant would not have been disqualified from being
nominated for the election or from holding the office as a member of the
Council by reason of s.4(2)(b).
As submitted above, the Council’s 2nd July 2009 Motion declaring the
Applicant’s office of membership of the Council to be vacant was substantially
influenced by the purported disqualification under s.4(2)(b) of the Election
Regulation. In Capital Rich Development
Ltd. & anor. v. Town Planning Board & anor. [2007] 2 HKLRD 155, the
Court of Appeal applied the principle (established in a series of English
authorities) that where there are two reasons for a decision, which cannot be
disentangled and one of them is bad or where, even though the reasons can be
disentangled, the bad reason demonstrably exerted a substantial influence on
the relevant decision, the court can interfere to quash the decision. In the light of that, the Respondents accept
and respectfully submit that the 2nd July 2009 Motion could not stand and
should be quashed if and when s.4(2)(b) of the Election Regulation should be
declared as unconstitutional, null, void and of no effect.
In the light of the above, it is unnecessary for this Honourable Court
to decide whether the Motion should be quashed on any other grounds as
contended by the Applicant.
(C) Applicant Lawfully Elected to
the Office
The parties are agreed in their submissions that upon the declaration
of unconstitutionality of s.4(2)(b) of the Election Regulation and the quashing
of the 2nd July 2009 Motion, the Applicant would revert to his position prior
to the passing of the 2nd July 2009 Motion as having been lawfully elected as a
member of the Council.
In the circumstances, the parties are agreed in their submissions that
a declaration be granted declaring that the Applicant was lawfully elected as a
member of the Council under s.3(2)(j) of the MRO for a term of three years
commencing on 24th January 2009 and expiring on 23rd January 2012. This is the 3rd Declaration sought in the
Consent Order.
(D) By-Election
There is currently in force an interim injunction against the Secretary
of the Council in respect of the conduct of the By-Election under the Order
dated 26th August 2009 of this Honourable Court.
The parties are agreed in their submissions that upon the making of the
1st, 2nd and 3rd Declarations as sought in the draft Consent Order, no
purported vacancy had ever arisen in relation to the Applicant’s office of
membership of the Council and the By-Election purported to fill the vacancy
should not have been triggered. In the
circumstances, the parties are agreed in their submissions that a declaration
be granted declaring the By-Election which commenced pursuant to a notice given
by the Secretary on 24 July 2009 for filling the purported vacancy in the
office of membership of the Council arising as a result of the 2nd July 2009
Motion to be null, void and of no effect.
This is the 4th Declaration sought in the draft Consent Order.
Subject to the approval of this Honourable Court, the parties agree to
dispose of the present application for judicial review in terms of the draft
Consent Order attached hereto.
Dated the 2nd day of November 2009
__________________________ ________________________
Richards Butler Department of
Justice
Solicitors for the Applicant Solicitors
for the 1st, 2nd and 3rd Respondents
(Ref : DKFK/271376.02191) (Ref
: HCAL 84/09)
沒有留言:
張貼留言