From “…order the name of the registered medical practitioner to be removed from the General Register for such period as it may think fit…” to the interpretation of statutes.

~Beauty is in the eye of the beholder?

~Statute interpretation is in the eye of the judge?

~Restoration is in the eye of the HK Medical Council?

If one is so unlucky to be found misconduct in a professional respect by the Medical Council and his name be removed from the General Register for three months by vitue of s21(1)(b)(ii) of the Medical Registration Ordinance (…order the name of the registered medical practitioner to be removed from the General Register for such period as it may think fit ... ), he would presume that his name would be restored to the Register after three months automatically. He would distinguish himself from those removed from the Gereral Register without a fixed period by vitue of s.21(1)(b)(i).

However, regarding restoration to the Register, s.25(3) of the same Ordinance provides that: “Any person whose name has been removed from the General Register under the provision of this Ordinance…, may apply to the Council for the restoration of his name to the General Register and the Council in its absolute discretion….may either allow or refuse the application….”

So this might seem to make fixing a period in the first instance absurd since after that said period, the doctor would need to apply for restoration, which can be refused by the Council. This creates uncertainty, and the risk of double penalty.

This issue of “automatic entitlement to restoration” was the main issue before the Court of Final Appeal in: The Medical Council of Hong Kong v David Chow Siu Shek (FACV000003/2000). Bokhary PJ after interpreting these two statutes, rejected the notion of automatic entitlement to restoration:“First, I reject the notion of automatic entitlement to restoration. Secondly, I hold that all registered medical practitioners whose names have been removed from the register, including those whose names have been removed for a specified period only under s.21(1)(ii), are covered by s.25(3) which makes it relevant to restoration whether, quite apart from the matters which led to the removal of his name from the Register in the first place, the person seeking the same has otherwise "been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment" or has otherwise "been guilty of misconduct in a professional respect while practising in Hong Kong or elsewhere".”

Two questions would naturally flow from this “final” decision:

1. Statute interpretation is in the eye of the judge?
Statutes are enacted laws (laws adopted by a legislature to provide general rules of conduct, but not to decide a single dispute). It is natural that statutes need interpretation since they are written in words, and words would carry different meanings in different contexts. This problem is intensified by the adversarial nature of legal proceeding, as one party’s ascription of meaning to the words of a statute is always open to dispute by the other party. It has been estimated that 50% of High Court cases and 90% of cases in the House of Lords involve interpretation of statutes.
Under the doctrine of legislative supremacy, the courts are required to apply the law as enacted by the legislature. But what is the law? Judges are aided by the “canons of statutory interpretation”. Canons of interpretation are used by the courts to reach the meaning of words used in a statute. There is no difference between a canon and a rule, except the word canon is preferred because the “rules” are not really rules and the judge can ignore them. They are simply aids. There are basically three canons:

-the literal rule: to stick strictly to the meaning of the words used

-the golden rule: to depart from what appears the obvious meaning of a word if its application would lead to some absurdity

-the mischief rule: to look into the mischief/defect in common law that the statute is aiming to remedy

However, life is not simple. These three conflicting canons are all still in use. Judges might not always state which canon they are using. And these rules would themselves require interpretation! It is often said that policy concern is behind some of the scenes, in disguise of statute interpretation.
It might be interesting to note that the choice of the word “canon” in fact reflects the nature of statute interpretation: “canon” comes from a Greek word meaning a reed that grows straight enough to be used as a measuring rod. Afterall it is no real ruler. A reed is “flexable”, and would bend in strong wind!

2. Restoration is in the eye of the HK Medical Council?
S.25(3) of the Medical Registration Ordinance provides that “the Council in its absolute discretion….may either allow or refuse the application….” One would be eager to know what standard the Council would adpot in its discretion.
-Would there, and should there, be any difference between the application for restoration and the application for new registration?

-What factors would be considered? And what factors should not be considered in the discretion? Particular concern is about “spent convictions”.

-What then if the application is refused?

It seems that these questions still remain unanswered. Considerations might be given to the following points:

-S.8(1)(d) of the Medical Registration Ordinance, which states that: A person is not qualified to be registered as a medical practitioner under section 14 unless he was at any time registered in Part I or III of the register kept immediately before such commencement but has been removed subsequently and he satisfies the Council that he is of good character and is still up to such professional standard acceptable to the Council.

This would involve interpretation of “good character” whether those with convictions are deemed of good character. If the immediate conviction is counted evidence against good character, then by definition no one can be restored to the Register. If not, how about other spent convitions?

-Hints from the judgement of Chow Siu Shek. In fact the argument of this case centered on the conduct of the struck off doctor DURING THE PERIOD OF REMOVAL. There was concern about the absurdity and danger of the automatic entitlement to restoration of a “misbehaved” doctor during the removal period, who would needed to be removed from the Register again by an inquiry later.

-That Bokhary PJ reiterated in his conclusion:

I repeat that if he has not (otherwise "been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment" or "been guilty of misconduct in a professional respect while practising in Hong Kong or elsewhere" apart from the matters which led to the removal of his name from the Register in the first place), then he can in the normal way confidently expect to be restored to the Register once his period of removal has elapsed.”