Lee Pheng Lip Ian v Chen Fun Gee

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA,Tay Yong Kwang JA,Sundaresh Menon CJ
• Judgment Date: 10 February 2020
• Neutral Citation: [2020] SGCA 6
• Year: 2020
• Date: 10 February 2020
• Published date: 12 February 2020
• Hearing Date: 27 November 2019
• Plaintiff Counsel: Liew Wey-Ren Colin (Colin Liew LLC)
• Citation: [2020] SGCA 6
• Defendant Counsel: Thio Shen Yi SC, Niklas Wong See Keat and Thara Rubini Gopalan (TSMP Law Corporation)
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 52 of 2019

Tay Yong Kwang JA (delivering the judgment of the court): Introduction

This an appeal against a High Court Judge’s decision to dismiss an application for leave to commence judicial review proceedings. The genesis of the application lies in the 13 extensions of time (“EOT”) sought and granted during the course of a preliminary inquiry conducted under the disciplinary framework of the Medical Registration Act (Cap 174, 2014 Rev Ed) (“MRA”).

The appellant, Dr Lee Pheng Lip Ian (“the Appellant”), operated a private clinic by the name of Integrated Medicine Clinic (“the Clinic”). The Clinic had been offering some services which were alleged to be in contravention of the relevant regulations. When the Clinic’s licence was due for renewal, the Ministry of Health (“the MOH”) refused to renew the Clinic’s licence unless the Clinic complied with the relevant regulations. The MOH also referred the matter to the Singapore Medical Council (“SMC”). A Complaints Committee (“CC”) was subsequently appointed to carry out a preliminary inquiry. The inquiry took close to four years. At the end of the inquiry, the CC concluded that a formal inquiry before a Disciplinary Tribunal (“DT”) should be held. During the course of conducting the preliminary inquiry, the CC sought 13 extensions of time (“EOTs”), all of which were granted by the chairman of the Complaints Panel (“Chairman of CP”).

In the proceedings in the High Court, the Appellant sought a number of orders, all with the aim of putting an end to the disciplinary process that has been instituted to inquire into the complaints made against him. The Appellant’s case before us is not substantially different from the one below. The crux of the Appellant’s case is as follows. The CC’s inquiry exceeded the statutory deadline of three months. Of the 13 EOTs sought and granted, eight were applied for after the expiry of the extended deadlines and six were said to bear no rational connection to the basis on which the EOTs were sought. It was alleged that the CC and the Chairman of CP did not comply with the relevant provisions of the MRA. As a result of these lapses, the Appellant’s Clinic lost its licence and he suffered financial prejudice.¹

Having deliberated on the parties’ submissions, we dismiss the appeal. We are of the view that the Appellant has failed to satisfy the Court that his case meets the threshold for judicial review.

Facts The parties

As stated, the Appellant operated the Clinic. The Clinic was licensed under the Private Hospitals and Medical Clinics Act (Cap 248, 1999 Rev Ed) (“PHMCA”).

The first respondent is the Chairman of CP. The second to third respondents are members of the CC that was appointed to inquire into the complaints made against the Appellant. The fifth respondent is the SMC.² The respondents will hereinafter be referred to collectively as “the Respondents”.

Non-compliance of the Appellant’s clinic with the regulations

The Clinic’s licence had to be renewed every two years.³ Sometime in January 2013, the Appellant applied to renew the Clinic’s licence, which was due to expire on 8 March 2013.⁴ On 3 April 2013, the MOH sent a letter to the Clinic noting that it offered some non-mainstream services in addition to mainstream medical services within the same premises, allegedly in contravention of the Private Hospitals and Medical Clinics Regulations (Cap 248, Rg 1, 2002 Rev Ed) (“PHMC Regulations”). The Clinic was therefore not eligible for renewal of its licence until it complied with the PHMC Regulations.⁵

Over the course of 2013, the MOH and the Appellant exchanged correspondence over the Clinic’s alleged non-compliance with the PHMC Regulations and other matters. During this time, the MOH granted the Appellant short-term renewal of the Clinic’s licence – six-month periods at a time – subject to certain conditions including compliance with the PHMC Regulations.⁶

On 31 July 2013, the MOH notified the SMC that the Appellant was offering some non-mainstream services in addition to mainstream medical services and that the MOH was concerned over the appropriateness of the medical management of some of the Clinic’s patients.⁷

On 11 September 2013, the Appellant wrote to the Minister for Health (“the Minister”) to dispute the MOH’s position that certain services offered by the Clinic were non-mainstream.⁸ The MOH responded, acknowledging the letter to the Minister and informing the Appellant that the SMC was reviewing the matter and suggesting that the Appellant await the outcome of the SMC’s deliberations.⁹ Further correspondence took place among the MOH, the SMC and Appellant.

The preliminary inquiry into the complaints made against the Appellant

On 14 February 2014, the SMC lodged a complaint against the Appellant by way of a letter to the Chairman of CP.¹⁰ The CC was appointed on 8 May 2014.¹¹ The CC directed the SMC Investigation Unit to carry out an investigation into the complaint. On 1 September 2014, the SMC sent the notice of complaint to the Appellant.¹² On 20 October 2014, the Appellant sent a letter to the SMC Investigation Unit to offer an explanation. In the meantime, correspondence between the Appellant and the MOH and the Appellant and the SMC continued well into 2015.¹³

On 11 March 2015, the MOH informed the Appellant that it would not be renewing the Clinic’s licence upon its expiry on 16 March 2015. The decision was based on the inspection findings from February 2013 to March 2015 that the Clinic had repeatedly not complied with the licensing requirements under the PHMCA and its subsidiary legislation in prescribing certain treatment.¹⁴ The Clinic’s licence expired on 16 March 2015. On 27 March 2015, the Appellant appealed against the MOH’s decision not to renew the licence in a letter to the Minister.¹⁵

Sometime in April 2015, the MOH provided the SMC with additional information relating to the Appellant’s prescription of testosterone and administration of bio-identical hormone replacement therapy (“BHRT”). This additional information was not treated as a second complaint and was investigated alongside the initial complaint made in 2014. The additional information was placed before the CC in June 2015.¹⁶ We will hereinafter refer to the initial complaint in 2014 and the additional information collectively as “the Complaint”. The Complaint concerned the Appellant’s:¹⁷ offering of non-mainstream services such as complementary, alternative medicine and low-evidence based services (including nutritional and/or environmental medicine); and prescription of BHRT and a wide range of plant products, in addition to the prescription of thyroxine, growth hormones and cortisol.

On 18 May 2015, the Appellant wrote a letter to the Minister requesting a reply to his earlier letter of 27 March 2015. On 29 May 2015, the MOH informed the Appellant that it had requested the SMC to form an advisory committee to consider his appeal and that he would be notified of the outcome in writing.¹⁸ Eventually, on 24 April 2017, the MOH wrote to the Appellant informing him that the Minister had decided to allow the Appellant’s appeal and had directed that the Clinic’s licence be renewed for six months subject to the condition that the Appellant complied strictly with the MOH’s guidelines on the provision of non-evidence-based medicine. Instructions were also provided to the Appellant on how he could renew the Clinic’s licence. The Appellant, however, did not restart the Clinic.¹⁹

On 12 February 2018, the CC informed the Appellant that it had completed the inquiry into the Complaint against the Appellant and had ordered a formal inquiry into the Complaint to be held by a DT.²⁰

The CC therefore took close to four years since its appointment on 8 May 2014 to complete its inquiry on 12 February 2018. During this period, the CC applied in writing to the Chairman of CP for 13 EOTs. All 13 EOTs were granted. Eight out of the 13 EOTs were made after the expiry of the extended deadlines to complete the inquiry. ²¹

The decision of the High Court

The Appellant commenced these judicial review proceedings in the High Court by way of Originating Summons 514 of 2018 (“the OS”). In the OS, the Appellant sought leave to apply for the following orders: a quashing order to quash all applications by the CC to the Chairman of CP pursuant to s 42(2) of the MRA for EOT for the CC to complete its inquiry into the Complaint (as defined at [13] above); a quashing order to quash all decisions of the Chairman of CP granting EOT pursuant to s 42(2) of the MRA to the CC to complete its inquiry; a quashing order to quash the CC’s decision that an inquiry into the Complaint be held by a DT; and a prohibiting order to prohibit the SMC from referring the Complaint to the Chairman of CP.

The High Court Judge who heard the matter (“the Judge”) declined to grant leave for judicial review and dismissed the OS. The Judge considered the main issue in the arguments before him to be whether s 42(2) of the MRA is a directory or a mandatory provision.²² Section 42 is in the following terms: 42.—(1) A Complaints Committee shall, within 2 weeks after its appointment, commence its inquiry into any complaint or information, or any information or evidence referred to in section 44(5), and complete its inquiry not later than 3 months after the date the complaint or information is laid before the Complaints Committee. (2) Where a Complaints Committee is of the opinion that it will not be able to complete its inquiry within the period specified in subsection (1) due to the complexity of the matter or serious difficulties encountered by the Complaints Committee in conducting its inquiry, the Complaints Committee may apply in writing to the chairman of the Complaints Panel for an extension of time to complete its inquiry and the chairman may grant such extension of time to the Complaints Committee as he thinks fit. (3) …...