Chai Chwan v Singapore Medical Council

JurisdictionSingapore
JudgeBelinda Ang Saw Ean J
Judgment Date13 May 2009
Neutral Citation[2009] SGHC 115
CourtHigh Court (Singapore)
Year2009
Citation[2009] SGHC 115
Plaintiff CounselRebecca Chew, Kelvin Poon, Mark Cheng and Loke Pei Shan (Rajah & Tann LLP)
Defendant CounselHarry Elias S.C., Melanie Ho, Chang Man Phing, Doris Chia and Kylee Kwek (Harry Elias Partnership)
Subject MatterAdministrative Law
Published date22 May 2009

13 May 2009

Belinda Ang Saw Ean J:

1 This application was brought by Dr Chai Chwan for leave to apply for judicial review under O 53 r 1(2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”). The respondent is the Singapore Medical Council (“SMC”). Order 53 r 1(3) directs that the application be served on the Attorney-General. As the subject matter of the application did not concern the Government, the attendance of the Attorney-General at the hearing was dispensed with. In the present case, the Attorney-General was incorrectly named as a respondent. Counsel for Dr Chai, Ms Rebecca Chew, quite rightly undertook to correct the procedural error by deleting the name of the Attorney-General from the proceedings. Leave to amend the application was duly granted on 15 April 2008.

Background facts leading to the application for leave under O 53 r 1(2)

2 Dr Chai is a registered medical practitioner under the Medical Registration Act (Cap 174, 2004 Rev Ed) (“the Act”). He is the licensee of the Little Cross Family Clinic Pte Ltd. The clinic is located at Blk 929, Tampines Street, #01-445, Singapore 520929. The SMC is a statutory board under the Ministry of Health (“MOH”) tasked with governing and regulating the professional conduct and ethics of registered medical practitioners in Singapore. Disciplinary proceedings have been brought against Dr Chai in respect of his prescribing practice of Subutex.

3 By way of introduction, Subutex is often used in the management of opioid dependence. It acts as an opiate substitute to help wean drug addicts off their dependence on drugs. In 2003, the authorities learnt that drug addicts misused Subutex by mixing it with sleeping pills to form a particularly potent drug mixture. Progressive measures were therefore introduced to control the dispensation of Subutex. Since then MOH moved to introduce the “Clinical Practice Guidelines” on “Treatment of Opiate Dependence” in November 2005, setting out good clinical practices and administrative controls to ensure the appropriate prescription of Subutex. Further, MOH also set up the Central Addiction Registry for Drugs which monitors the prescription of Subutex by doctors and enables them to identify patients who obtain additional supplies from different doctors. In August 2006, it became a controlled drug.

4 The two complaints lodged by the MOH against Dr Chai were as follows:

(a) 1 September 2003 (“2003 Complaint”): this raised concerns over the “prescribing practice” of Dr Chai with respect to Subutex. More than 490 patients were allegedly involved and the Complaints Committee of the SMC (“1st Complaints Committee”) carried out its preliminary inquiry into the 2003 Complaint. Thereafter, the 1st Complaints Committee decided on 27 October2004 to refer the 2003 Complaint to a disciplinary committee for a formal inquiry to be held. Dr Chai was informed of the decision in a letter dated 27 October2004. Dr Chai faces 444 charges in respect of the 2003 Complaint; and

(b) 28 September 2004 (“2004 Complaint”): this raised concerns once again over Dr Chai’s “prescribing practice” with respect to Subutex, Dormicum and Stilnox. A total of 24 patients were allegedly involved and the Complaints Committee of the SMC (“2nd Complaints Committee”) carried out its preliminary inquiry into the 2004 Complaint. It decided on 21 April 2005 to refer the 2004 Complaint to a disciplinary committee for a formal inquiry to be held. Dr Chai was informed of the decision in a letter dated 21 April 2005. Dr Chai faces ten charges in respect of the 2004 Complaint.

5 On 28 November 2007, Dr Chai applied by way of ex parte Originating Summons No. 1756 of 2007 (“OS 1756”) for leave to apply for judicial review to seek the following relief:

a.

A Quashing order for the decision of the 1st Complaints Committee of the SMC dated 27 October2004 to refer the 2003 Complaint to a disciplinary committee to be quashed;

b.

A Quashing order for the decision of the 2nd Complaints Committee of the SMC dated 21 April 2005 to refer the 2004 Complaint to a disciplinary committee to be quashed;

c.

A Quashing order for the decisions of the Chairman of the Complaints Panel of the SMC to extend time pursuant to s 40(2) of the Act to be quashed;

d.

A Prohibitory order to restrain the SMC from holding an inquiry into the 454 charges against Dr Chai; and

e.

For the costs of and incidental to the proceedings to be provided for.



6 At the conclusion of the hearing, I was minded to hold that Dr Chai had accounted for the delay in filing OS 1756 but the matter did not stop there. I went on to hear the grounds of the leave to apply for judicial review which was dismissed for the reasons explained in this decision. Dr Chai has appealed against the dismissal of OS 1756.

Delay in filing OS 1756

7 OS 1756 was served on the SMC’s lawyers, Harry Elias Partnership (“HEP”), on 28 November 2007. The SMC took advantage of service on it to attend the ex parte hearing of the leave application and to argue, among other things, that OS 1756 could not be filed without first obtaining time extension to file the leave application. Counsel for the SMC, Mr Harry Elias SC, argued that OS 1756 was filed out of time: the delay was three years in the case of the 2003 Complaint, and for the 2004 Complaint, the delay was two and a half years.

8 It is clear from a reading of O 53 r 1(6) of the ROC that the applicant is not required to separately obtain an order to extend time under O 3 r 4 of the ROC before the applicant is permitted to file the application for leave to issue proceedings for a quashing order outside of the three-month time limit prescribed in O 53 r 1(6). This is because the application for leave is susceptible to refusal on grounds of delay unless the delay is accounted for to the satisfaction of the court. Where the delay is held to be excusable thereby earning an extension of time, the court then moves on to consider whether or not the grounds for leave to apply are made out based on the standard of proof enunciated by the Court of Appeal in Chan Hiang Leng Colin & Ors v Minister for Information and the Arts [1996] 1 SLR 609 (“Colin Chan”). This second part of the case will be discussed later.

9 On the first issue of delay, the operative provision is O 53 r 1(6). It is helpful to set out Order 53 r 1 in its entirety. It reads:

No application for order of mandamus, etc., without leave (O.53.r.1)

1. (1) No application for a Mandatory Order, Prohibiting Order or Quashing Order shall be made unless leave to make such an application has been granted in accordance with this Rule.

(2) An application for such leave must be made by ex parte originating summons and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by an affidavit, to be filed when the application is made, verifying the facts relied on.

(3) The applicant must serve the ex parte originating summons, the statement and the supporting affidavit not later than the preceding day on the Attorney-General’s Chambers.

(4) The Judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit.

(5) The grant of leave under this Rule to apply for a Prohibiting Order or a Quashing Order shall, if the Judge so directs, operate as a stay of the proceedings in question until the determination of the application or until the Judge otherwise orders.

(6) Notwithstanding the foregoing, leave shall not be granted to apply for a Quashing Order to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made within 3 months after the date of the proceeding or such other period (if any) as may be prescribed by any written law or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the Judge to whom the application for leave is made; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

10 Ms Chew rightly pointed out that the time limit in r 1(6) applies where the relief sought is a quashing order. No time limit is prescribed in the rules where the relief sought is a prohibition or mandatory order. The reason is fairly obvious as Mallal’s Supreme Court Practice, Vol 1, 2nd Ed, 1983 at para 53/1A/1 explains:

Time: No time limit has been set for mandamus [ie mandatory order], or prohibition because it is expected that any applicant who requires a particular duty to be performed or not to be performed can be expected to apply for the order for the performance of that duty or the prohibition of that duty at an early stage. Since certiorari [ie quashing order] can only be applied for at the conclusion of the proceedings, it will make for an early determination of the proceedings if a time limit is set for the application.

11 In relation to the first issue, Dr Chai’s explanation for the delay is found in para 115(a) of his Statement. He said

… he was never advised on when the [2003] and/or the [2004] complaints [were] laid before the [Complaints Committee], and it was only from the exchange of the recent correspondence between the Council’s lawyers from Harry Elias Partnership (“HEP”) and the Applicant’s lawyers from Rajah & Tann (“R&T”) that he realised that the [Complaints Committees] had failed to comply with sections 40(1) and 40(2) of [the Act].

For convenience, the tables setting out the chronology of the key events in respect of the 2003 and the 2004 Complaints are found in Appendix 1 to this Grounds of Decision.

12 Dr Chai complained that it was only after OS 1756 was filed that the SMC disclosed the documents sought by R&T. They included written applications for time extension to complete the...

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