Decision ultra vires – Director of Health had no implied power under Chinese Medicine Ordinance (Cap. 549) to order recall of such products
X was a licensed wholesaler of proprietary Chinese medicine (“pCm”) which sold two moisturising throat products as “candies” (the “Products”). Following a complaint, the Department of Health (the “DH”) obtained samples from various shops and made a preliminary assessment that there was reasonable cause to suspect that the Products were unregistered pCm. DH’s inspectors then visited X’s premises. Although X’s director claimed the Products were not pCm, the inspectors told him they were suspected to be unregistered pCm, seized them under s. 146(2)(f) of the Chinese Medicine Ordinance (Cap. 549) (the “CMO”) for investigation and instructed X to recall them from customers. Later the same day, the DH issued a public announcement about the Products entitled “Recall of two unregistered [pCms]”. X obtained leave to judicially review the Director’s decisions to: (a) instruct X to recall the Products; (b) issue the public announcement insofar as it stated that X was ordered by the Director to recall the Products; and (c) refuse requests by X to revoke or suspend the instruction to recall (the “Decisions”). X argued that there was no express statutory power to recall the Products so that the Decisions were unlawful. The Director contended that an incidental power to recall a product which was reasonably suspected to be a pCm and was unregistered (the “Suggested Power”) should be implied under, inter alia, s. 146(2)(c) and/or (f) of the CMO which respectively empowered an inspector “to seize, remove and detain any article … which appears … to be or contain evidence of an offence against this Ordinance.”
Held, allowing the application, that:
- The power to recall could not be implied into s. 146(2)(c) and (f) of the CMO.
- The Suggested Power was not reasonably necessary for the effective exercise of the express power to seize, remove and detain under s. 146(2)(c) and (f), since the two powers related to acts of a distinctly different nature. It would be contrary to principle to imply such power merely because a recall would be more convenient and desirable than having inspectors go to every premises and outlet which sold the Products to confiscate them, particularly when there was no evidence that the power to seize and remove would not be effective without a power to recall. Further, in respect of s. 146(2)(f), there could not be any implied power to order the recall of products which were only suspected, not determined, to be pCm.
- Moreover, if the Suggested Power were to be implied under s. 146, any persons delaying or obstructing a recall would commit an offence under s. 146(3). It was not clear and obvious in the present context to imply such a power which entailed a penal element.