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(Cap 161 section 33(4)) [24 January 1997] L.N. 46 of 1997 (L.N. 521 of 1996) Cap 161E s 1 (Omitted as spent) PART I PRELIMINARY (Omitted as spent) (Enacted 1996) Cap 161E s 2 Interpretation In this Regulation, unless the context otherwise requires- "Committee" (侦讯委员会), where it appears in Part III, means the Preliminary Investigation Committee; "complainant" (申诉人) means a person from whom a complaint against or information in respect of a registered medical practitioner has been made to or received by the Secretary in accordance with section 6; "defendant" (被告人) means a registered medical practitioner against or in respect of whom a complaint, information or matter has been made to or received by the Secretary or referred to the Preliminary Investigation Committee under section 6; "notice of inquiry" (研讯通知书) means a notice served under section 13(4). (Enacted 1996) Cap 161E s 3 Application for registration Remarks: Adaptation amendments retroactively made - see 37 of 2000 s. 3 PART II REGISTRATION AND DOCUMENTS (1) An application for registration under section 14 or 14A of the Ordinance must- (a) be delivered to the Registrar, together with 4 copies of a photograph of the applicant of a size not greater than 50 x 70 mm and not less than 40 x 60 mm; and (b) contain the following particulars- (i) the personal particulars of the applicant; (ii) a statement as to whether the applicant has or has not been convicted of any offence punishable with imprisonment and as to whether the applicant has or has not been found guilty of misconduct in a professional respect; and (iii) the qualifications held by the applicant. (2) The particulars required under subsection (1)(b) must be declared in the presence of- (a) a barrister, a solicitor or a commissioner for oaths, if the applicant is resident in Hong Kong; or (47 of 1997 s. 10) (b) a notary public, if the applicant is resident outside Hong Kong, who shall also sign across the applicant's photo on the application form. (3) The Council may require an applicant for registration to produce or provide one or more of the following- (a) the original diploma, certificate or other document evidencing the degree or qualification by virtue of which the applicant is applying to be registered; (b) the original or certified true copy of the applicant's identity card or passport or both; (c) evidence of the applicant's identity in the form of a statement by- (i) a barrister, a solicitor or a commissioner for oaths, if the applicant is resident in Hong Kong; or (47 of 1997 s. 10) (ii) a notary public, if the applicant is resident outside Hong Kong, to the effect that he has personally checked and is satisfied that the applicant's personal particulars and photo provided in the application form are the same as shown in the applicant's identity card or passport or both; (d) a certificate of registration as a medical practitioner in any state, territory or place outside Hong Kong if the applicant has been registered in such state, territory or place; (37 of 2000 s. 3) (e) a practising certificate issued in any state, territory or place outside Hong Kong and valid at the date of application for registration, or other equivalent documentary evidence of entitlement to practise medicine, surgery and midwifery; (37 of 2000 s. 3) (f) a certificate of experience issued under section 9 of the Ordinance covering a period of at least 1 year; (g) evidence that the applicant has completed the required period of assessment under section 10A of the Ordinance; (h) where the registration applied for is limited registration under section 14A of the Ordinance, documentary evidence, to the satisfaction of the Council, that the applicant satisfies the conditions prescribed in subsection (2) of that section which are applicable in relation to him; (i) a certificate of good standing issued by the relevant medical authority of a state, territory or place outside Hong Kong with which the applicant is registered as a medical practitioner, if he is resident outside Hong Kong; (37 of 2000 s. 3) (j) references as to the applicant's character from at least 2 persons, not being relatives of the applicant, who have known the applicant for at least 12 months and who have the opportunity of judging his character; (k) where the applicant is applying for registration under section 8(1)(d) of the Ordinance, evidence that he is still up to such professional standard acceptable to the Council. (Enacted 1996) Cap 161E s 4 Application for inclusion in Specialist Register Remarks: Adaptation amendments retroactively made - see 37 of 2000 s. 3 (1) An application for inclusion of a registered medical practitioner's name in the Specialist Register under section 20K of the Ordinance must- (a) be delivered to the Registrar, together with 4 copies of a photograph of the applicant of a size not greater than 50 x 70 mm and not less than 40 x 60 mm; and (b) contain the following particulars- (i) the personal particulars of the applicant; (ii) a statement as to whether the applicant has or has not been convicted of any offence punishable with imprisonment and as to whether the applicant has or has not been found guilty of misconduct in a professional respect; and (iii) the qualifications held by the applicant. (2) The particulars required under subsection (1)(b) must be declared in the presence of- (a) a barrister, a solicitor or a commissioner for oaths, if the applicant is resident in Hong Kong; or (47 of 1997 s. 10) (b) a notary public, if the applicant is resident outside Hong Kong, who shall also sign across the applicant's photo on the application form. (3) The Council may require an applicant under section 20K of the Ordinance to produce or provide one or more of the following- (a) the original diploma, certificate or other document evidencing the degree or qualification by virtue of which the applicant is applying to have his name included in the Specialist Register; (b) the original or certified true copy of the applicant's identity card or passport or both; (c) evidence of the applicant's identity in the form of a statement by- (i) a barrister, a solicitor or a commissioner for oaths, if the applicant is resident in Hong Kong; or (47 of 1997 s. 10) (ii) a notary public, if the applicant is resident outside Hong Kong, to the effect that he has personally checked and is satisfied that the applicant's personal particulars and photo provided in the application form are the same as shown in the applicant's identity card or passport or both; (d) a certificate of good standing issued by the relevant medical authority of a state, territory or place outside Hong Kong with which the applicant is registered as a medical practitioner, if he is resident outside Hong Kong; (37 of 2000 s. 3) (e) a statement or certificate issued by the Academy of Medicine that the applicant has completed the postgraduate medical training and has satisfied the continuing medical education requirements of the relevant specialty and has been awarded a Fellowship of the Academy of Medicine; (f) any other document, including but not limited to a certificate of registration or experience as specified or approved by the Council; (g) a statement or certificate issued by the Academy of Medicine under section 20K(2)(b) of the Ordinance; (h) references as to the applicant's character from at least 2 persons, not being relatives of the applicant, who have known the applicant for at least 12 months and who have the opportunity of judging his character. (Enacted 1996) Cap 161E s 5 Certificate of good standing The Council may, subject to the payment of the appropriate prescribed fee, issue a certificate of good standing in such form as may be determined by the Council. (Enacted 1996) Cap 161E s 6 Receipt and submission of complaint or information or referral to chairman of Committee PART III PROCEEDINGS PREPARATORY TO HOLDING OF AN INQUIRY BY COUNCIL OR A HEARING BY HEALTH COMMITTEE (1) Where- (a) a complaint is made to or information is received by the Secretary that a registered medical practitioner- (i) has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment; (ii) has been guilty of misconduct in any professional respect; (iii) has obtained registration by fraud or misrepresentation; (iv) was not at the time of his registration entitled to be registered; (v) has breached a condition previously imposed under an order of the Council made under section 21(1) or 21A of the Ordinance; (vi) has procured his name to be included in the Specialist Register by fraud or misrepresentation; (vii) is physically or mentally unfit to practise medicine, surgery or midwifery; or(b) a complaint is made to or information is received by the Secretary that an applicant for registration- (i) has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment; (ii) has been guilty of misconduct in a professional respect; or (iii) is not a person of good character; or (c) a committee of the Council refers a matter concerning a registered medical practitioner to the Committee for its consideration or investigation, the Secretary shall submit the complaint, information or matter to the chairman of the Committee or, in his absence, the deputy chairman of the Committee for his consideration of the case. (2) If the person to whom a case is submitted under subsection (1) considers that the case- (a) is frivolous or groundless and should not proceed further; or (b) raises a question as to whether the fitness to practise of a registered medical practitioner is impaired by reason of his physical or mental condition and the question should be considered by the Health Committee direct, he shall- (i) consult the deputy chairman, if the person is the chairman; or (ii) consult the chairman, if the person is the deputy chairman, with a view to decide whether the proposed course of action should be taken. (3) If both the chairman and the deputy chairman consider that the case is frivolous, or groundless, and should not proceed further, they may dismiss the case. (4) Upon a consultation under subsection (2) and if both the chairman and the deputy chairman consider that the case raises the question referred to in subsection (2)(b), they may refer the case to the Health Committee and recommend the Health Committee to conduct a hearing. (5) If, after a hearing, the Health Committee certifies and reports back that the registered medical practitioner is physically and mentally fit to practise medicine, surgery or midwifery, the chairman or, in his absence, the deputy chairman may direct that the case be investigated further or be dismissed, as he thinks fit. (Enacted 1996) Cap 161E s 7 Declaration of interest by members of Committee (1) If the chairman or the deputy chairman of the Committee is in any way interested in a case referred to him under section 6, he shall declare his interest to the Chairman before he has to consider the case himself or jointly with others pursuant to this Regulation. (2) If any other member of the Committee is in any way interested in a case which has been referred to the Committee, he shall declare his interest to the chairman of the Committee before or at the first meeting of the Committee to consider the case. (3) On a declaration of interest under subsection (1) or (2)- (a) the chairman, deputy chairman or member, as the case may be, shall not participate in any deliberation or decision regarding the case; (b) the chairman or the deputy chairman, as the case may be, shall not preside at the meeting; (c) if both the chairman and the deputy chairman declare their interest under subsection (1), the other members present and forming a quorum shall elect one from among themselves to preside at the meeting for deliberating or deciding on the case. (4) On a declaration of interest under subsection (1), the Chairman shall appoint a member of the Committee to perform the functions of the chairman or deputy chairman, as the case may be, under section 6. (Enacted 1996) Cap 161E s 8 Clarification and support for complaint or information (1) Where, in a case submitted under section 6 to the chairman or, in his absence, the deputy chairman of the Committee pursuant to a complaint or information received by the Secretary, any allegation is made which in the opinion of the chairman or the deputy chairman gives rise to a question as to whether a defendant has been guilty of misconduct in any professional respect, the chairman or the deputy chairman may do any or all of the following- (a) require the complainant to set out the specific allegations in writing and the grounds thereof; (b) require the complainant to make clarifications about the complaint or information; (c) require that any matter alleged in the complaint or information to be supported by one or more statutory declarations, unless the complaint or information is in writing under the hand of- (i) a public officer; (ii) the President of the Hong Kong Medical Association; (iii) the Dean of the Faculty of Medicine of a university specified in Schedule 1 of the Ordinance; or (iv) either or both of the Presidents of the Academy of Medicine and any of its Colleges. (2) Where, in a case submitted under section 6 to the chairman or, in his absence, the deputy chairman of the Committee pursuant to a complaint or information received by the Secretary, any allegation is made which in the opinion of the chairman or the deputy chairman gives rise to a question as to whether the fitness to practise of a defendant is impaired by reason of his physical or mental condition, the chairman or the deputy chairman may require that the complaint or information be supported by one or more statutory declarations as to the facts of the case, unless the complaint or information is in writing under the hand of a person specified in subsection (1)(c). (3) If a requirement under subsection (1) or (2) is not complied with, the chairman or the deputy chairman of the Committee may decline to proceed with the investigation of the case. (4) A statutory declaration referred to in subsection (1) or (2) must- (a) state the address and description of the declarant; and (b) state all the facts of the case to the declarant's knowledge or, if any fact declared is not within his personal knowledge, state the source of the declarant's information and the grounds for his belief in the truth of the facts. (Enacted 1996) Cap 161E s 9 Reference of case to Committee (1) Except where section 10 applies, if a case received by the chairman or the deputy chairman of the Committee under section 6 has not been dismissed or referred to the Health Committee under that section, the chairman or the deputy chairman of the Committee shall, except where section 16(1) applies, direct that the case be referred to the Committee for its consideration and shall direct the Secretary to fix a date upon which it is proposed that the Committee is to meet to consider the case. (2) Where the Secretary is directed under subsection (1) to fix a date, the Secretary shall- (a) fix a date for the proposed meeting; (b) notify the defendant of the receipt of the complaint, information or referral, and indicate any matters or allegations which may appear to raise a question whether the defendant has been guilty of misconduct in a professional respect; (c) provide him a copy of any letter of complaint or information; (d) forward to him a copy of any statutory declaration furnished under section 8; (e) inform him of the date upon which the Committee is due to meet for the purpose of considering the case; and (f) invite him to submit to the Committee in writing any explanation of his conduct or of any matter alleged in the complaint, information or referral which he may have to offer. (Enacted 1996) Cap 161E s 10 Case where fitness to practise has been raised (1) Where in a case which has been considered under section 6 and which has not been dismissed or referred to the Health Committee under that section there has been raised a question as to whether the fitness to practise of the defendant is impaired by reason of a physical or mental condition, the chairman or the deputy chairman of the Committee, as the case may be- (a) shall direct the Secretary to write to the defendant notifying him that a case has been referred to the Committee which case appears to raise a question as to whether his fitness to practise is impaired by reason of his physical or mental condition, and indicating the nature of the alleged condition; (b) shall direct the Secretary to invite him to furnish medical or other evidence as to his own fitness to practise for consideration by the Committee; (c) (if the case referred includes reports on the defendant by other registered medical practitioners who have recently examined him, and it appears to the chairman or the deputy chairman that those reports afford sufficient medical evidence that the defendant's fitness to practise may be seriously impaired by reason of his physical or mental condition) shall direct the Secretary to inform him of the receipt of those reports; (d) shall direct the Secretary to fix a date upon which it is proposed that the Committee is to meet to consider the case having regard to the invitation, if any, under paragraph (b) and to inform the defendant of the date so fixed; (e) may direct the Secretary to enclose with a notice sent under paragraph (a) a summary of the information received and copies of any reports on the defendant unless, in the opinion of the chairman or the deputy chairman, it would not be in the best interest of the defendant to see such a summary or the copies. (2) The Secretary shall comply with a direction made under subsection (1) and shall also forward to the defendant a copy of any statutory declaration furnished under section 8. (Enacted 1996) Cap 161E s 11 Consideration of case by Committee (1) The Committee shall meet in private. (2) At the meeting at which a case is considered by the Committee, the Secretary shall put before the Committee the complaint or information received (if any), any statutory declaration received with it, any written explanation submitted by the defendant, any documents, medical or other reports produced by the defendant, and any other document or matter in the nature of evidence relevant to or in support of the complaint, information or matter and which is available. (3) The Secretary shall not present to the Committee any material which has been excluded from disclosure to the defendant under section 10. (4) The Committee may postpone its consideration or determination of a case, in whole or in part, to such date or adjourn a meeting from time to time as it thinks fit. (5) Where the complaint, information or referral alleges the conviction of a registered medical practitioner of an offence which does not in its opinion affect his practice as a registered medical practitioner, the Committee may refer the case to the Council with the recommendation that no inquiry is to be held. (6) Where the Committee considers that the matter indicated to the defendant under section 9(2)(b) should be amended, the Committee may direct the Secretary to make the amendment and advise the defendant of the amendment and invite him to give any further explanation which he may offer. (7) Before coming to a decision under subsection (8), the Committee may cause to be made such further investigations or further clarification from the defendant with regard to the case being considered by the Committee and with regard to his written explanation, and may obtain such additional advice or assistance as it considers necessary. (8) The Committee shall, having regard to any written explanation submitted by the defendant and all the materials put before it by the Secretary under subsection (2), consider the case, and, subject to subsections (5) and (7), may- (a) decide that no inquiry shall be held; (b) decide that no inquiry shall be held and issue a letter of advice to the defendant in such terms as it thinks fit; (c) refer the case, in whole or in part, to the Council for inquiry; (d) refer the case, in whole or in part, to the Health Committee for a hearing. (9) If, after a hearing, the Health Committee certifies and reports back that the defendant is physically and mentally fit to practise medicine, surgery or midwifery, the Committee may proceed with the investigation of the case, take any other appropriate action under subsection (8), or dismiss the matter, as it thinks fit. (Enacted 1996) Cap 161E s 12 Decision of Committee that no inquiry be held (1) If the Committee decides that no inquiry is to be held, the Chairman of the Committee shall direct the Secretary to, and the Secretary when so directed shall, inform the complainant and the defendant of the decision of the Committee. (2) Neither the complainant nor the defendant has any right of access to any information or document relating to the case submitted to the Committee by any other person, if the Committee decides that no inquiry is to be held in respect of the case. (Enacted 1996) Cap 161E s 13 Referral of case to Council for inquiry (1) If the Committee decides to refer a case to the Council for inquiry, the chairman of the Committee shall send a written notification of the decision of the Committee to the Chairman specifying the matters as identified by the Committee to be so referred and which form the basis of the charge or charges into which an inquiry is to be held. (2) On receipt of a notification under subsection (1) or on a remission of a case to the Council by the Court of Appeal under section 26(1) of the Ordinance, the Chairman shall direct the Secretary to fix a date upon which it is proposed that the inquiry is to be held. (3) If the Council decides to conduct an inquiry pursuant to a recommendation of the Health Committee under section 20V(1) of the Ordinance or a recommendation of the Education and Accreditation Committee under section 20N(1)(d) of the Ordinance, the Chairman shall direct the Secretary to fix a date upon which it is proposed that the inquiry is to be held. (4) Except with the written consent of the defendant to a shorter period of notice, the Secretary shall, within 2 months of the receipt of a notification under subsection (1) and at least 28 days before the date fixed for the inquiry, serve on the defendant a notice of inquiry together with a copy of this Regulation and shall inform the complainant of the holding of the inquiry. (5) A notice of inquiry must- (a) specify in the form of a charge or charges the matters into which inquiry is to be held; and (b) state the date, time and place at which the inquiry is to be held. (Enacted 1996) Cap 161E s 14 Referral to Health Committee (1) If it is decided that a case should be referred to the Health Committee, either by the Committee under section 11(8) or by both the chairman and the deputy chairman of the Committee under section 6(4), the chairman of the Committee shall notify the chairman of the Health Committee in writing, indicating the nature of the alleged condition by reason of which it appears to the Committee, or to the chairman and the deputy chairman, that the fitness to practise of the registered medical practitioner concerned may be impaired. (2) On referring a case to the Health Committee, the Committee or the chairman of the Committee may direct the Secretary to send a notice to the registered medical practitioner inviting him- (a) to submit to medical examinations by one or more medical examiners acceptable to the Health Committee within such time as specified in the notice; and (b) to agree to those examiners furnishing to the Health Committee, before it considers the case, to assist the Health Committee in deciding the case, medical reports on his fitness to practise, either generally or on a limited basis, with recommendations, if any, on the management of his case. (3) The cost of any medical examination under subsection (2) shall be payable by the registered medical practitioner. (4) If the registered medical practitioner agrees to submit to medical examinations as invited, the Secretary shall send to the accepted medical examiners the information received by the Secretary concerning the fitness to practise of the practitioner and shall ask the examiners to report to the Council on any or all of the following- (a) the fitness of the practitioner to practise, either generally or on a limited basis; (b) whether the practitioner is suffering from a recurring or episodic physical or mental condition which, although in remission at the time of the examination, may be expected in future to render him unfit to practise either generally or on a limited basis; (c) their recommendations, if any, as to the management of the practitioner's case. (Enacted 1996) Cap 161E s 15 Referring back to committee (1) Where, after a case has been referred to the Council for inquiry, further information is subsequently produced in writing which suggests that an inquiry should not be held, the Chairman may refer back the case to the Committee, the Health Committee or the Education and Accreditation Committee, as the case may be, for further consideration. (2) As soon as may be after the case is referred back to the Committee, the Health Committee or the Education and Accreditation Committee, as the case may be, the chairman of the committee shall direct the Secretary to, and the Secretary when so directed shall, advise the complainant and the defendant accordingly. (Enacted 1996) Cap 161E s 16 Consolidation of charges and amendment of notice of inquiry (1) Where the Secretary receives further allegations of misconduct in a professional respect against the defendant of the same nature of the case being investigated, the Chairman may direct that any or all of the allegations are to be inquired into at the same inquiry against the defendant, and where the Chairman makes that direction, evidence relating to the allegations may be introduced at the inquiry in respect of the case notwithstanding that those allegations have not been referred to the Committee or have not formed the subject of a determination of the Committee. (2) Where before the opening of the inquiry, it appears to the Chairman that a notice of inquiry is defective, the Chairman may give such directions for the amendment of the notice as he thinks necessary to remedy the defect unless, having regard to the merits of the case, he is of the opinion that the required amendments cannot be made without injustice to the defendant. (3) The Secretary shall, as soon as it is practicable after the amendment of a notice of inquiry, give notice of the amendment to the defendant and to the complainant. (Enacted 1996) Cap 161E s 17 Documents to be available to other party (1) A party to an inquiry shall furnish to the other party, not less than 10 days before the date of an inquiry or such lesser period as both parties may agree, copies of all documents upon which he intends to rely at the hearing of the inquiry. (2) If a document has not been furnished in accordance with subsection (1), the Council may adjourn the inquiry. (Enacted 1996) Cap 161E s 18 Notice to produce The Chairman may at any time before the hearing of an inquiry, upon application by either party to the inquiry, order the other party to produce any material, record (in whatever form) or document which is relevant to the case or the issues of the case alleged to be in the possession of that party and, on failure to produce the material, record or document, the party who applied for the production may prove it or the content of it by any alternative method. (Enacted 1996) Cap 161E s 19 Inquiry in public or in camera PART IV PROCEEDINGS AT AN INQUIRY OF COUNCIL (1) At the discretion of the Council, an inquiry of the Council may be open to the public or partly open to the public and partly held in camera. (2) At any stage of an inquiry, the Council may decide that the remainder of the inquiry should be open to the public or be held in camera, as the case may be. (Enacted 1996) Cap 161E s 20 Adjournment of inquiry (1) The Chairman may adjourn an inquiry to such date as he thinks fit. (2) The Secretary shall, where appropriate, give notice of an adjournment to the defendant and to the complainant. (Enacted 1996) Cap 161E s 21 Representation (1) Any party to an inquiry may be represented by a solicitor or counsel. (2) On the application of the Chairman, the Secretary for Justice may appoint a legal officer within the meaning of the Legal Officers Ordinance (Cap 87) to carry out the duties of the Secretary in respect of an inquiry. (L.N. 362 of 1997) (Enacted 1996) Cap 161E s 22 Record of proceedings (1) The Council may appoint a shorthand writer to prepare a verbatim record of the proceedings of an inquiry or, alternatively, the Secretary may cause the proceedings to be recorded on tape and may arrange for the transcription of the tape recording into a verbatim record in writing. (2) If a verbatim record of the proceedings or any part of it has been prepared, the Chairman, on application to him by any party to the proceedings and on payment to him of the appropriate prescribed fee for the issue of the record, shall furnish the party with a copy of the record or part. (Enacted 1996) Cap 161E s 23 Opening of inquiry (1) At the opening of an inquiry the Secretary shall read the notice of inquiry to the Council. (2) If the defendant is not present or represented by his solicitor or counsel at the opening of the inquiry, the Secretary shall furnish to the Council such evidence as the Council may require to prove that the notice of inquiry was served on the defendant in accordance with the provisions of section 51 and, on the Council being satisfied as to such evidence, may proceed with the inquiry in the absence of the defendant. (3) If the defendant is present at the inquiry, the Chairman, immediately after the charge has been read, shall inform him of his right to cross-examine witnesses, to give evidence and to call witnesses on his behalf. (4) After an inquiry has been opened under this section, it may be proceeded with to its conclusion notwithstanding the absence of the defendant. (Enacted 1996) Cap 161E s 24 Objections on point of law (1) After the reading of the notice of inquiry the defendant, in person, or his solicitor or counsel, may object to any charge on a point of law and, upon such objection, any other party to the inquiry may reply thereto and, if any such party replies to such objection, the defendant or his solicitor or counsel may answer such reply. (2) If such objection is upheld by the Council the charge to which such objection relates shall be considered only subject to such objection. (Enacted 1996) Cap 161E s 25 Order of procedure (1) Subject to sections 23 and 24 and subsection (2), the following order of procedure must be observed in an inquiry- (a) the Secretary shall present the case against the defendant and adduce evidence in support thereof and shall close the case against the defendant; (b) at the conclusion of the presentation of the case against the defendant, he, in person or by his solicitor or counsel, may make either or both of the following submissions in relation to any charge in respect of which evidence has been adduced- (i) that sufficient evidence has not been adduced upon which the Council can find that the facts alleged in that charge have been proved; (ii) that the facts alleged in the charge are not such as to constitute the offence charged, and where such submission is made, a reply thereto may be made by the Secretary, and the defendant may answer such reply; (c) if a submission is made under paragraph (b), the Council shall consider and determine whether the submission shall be upheld and- (i) the Chairman shall announce the determination of the Council; and (ii) if the Council uphold the submission in respect of any charge, the finding shall be recorded that the defendant is not guilty on that charge; and (iii) if the Council reject the submission, the Chairman shall call upon the defendant to state his case; (d) the defendant, in person or by his solicitor or counsel, may then adduce evidence in support of his case and may make one and only one address to the Council, and where evidence has been adduced by or on behalf of the defendant such address may be made either before or after such evidence has been adduced; (e) at the conclusion of the case of the defendant, the Secretary may address the Council in reply, and if the Secretary makes such a reply, the defendant, in person or by his solicitor or counsel, may make one and only one address to the Council in reply to this address of the Secretary. (2) At the request of the complainant or his counsel or solicitor, the Council may permit the complainant or his counsel or solicitor to present the case against the defendant if the Council thinks it appropriate in the circumstances of the case and in which event, a reference to the Secretary in subsection (1) is to be read as a reference to the complainant or his counsel or solicitor, as the case may be. (Enacted 1996) Cap 161E s 26 Postponement of judgment (1) At the conclusion of the proceedings under section 25, the Council shall consider and determine whether to postpone judgment. (2) If the Council decides to postpone judgment, the judgment of the Council stands postponed until such future meeting of the Council as the Council may decide, and the Chairman shall announce the decision of the Council in such terms as the Council may approve. (3) If the Council decides not to postpone judgment, the Council shall consider and determine whether the facts alleged in any charge before the Council have been proved to its satisfaction and whether the defendant is guilty of the offence charged. (4) When the Council has come to its decision under subsection (3) the Chairman shall announce the decision of the Council in such terms as the Council may approve. (Enacted 1996) Cap 161E s 27 Notice of determination of judgment (1) When, under section 26(2), the judgment of the Council in respect of a charge stands postponed to a future meeting of the Council, the Secretary shall serve on the defendant a notice specifying the date, time and place fixed for the meeting of the Council and inviting him to appear at the meeting. (2) If there is a complainant in respect of the charge, the Secretary shall send him a copy of the notice served under subsection (1). (3) At the future meeting the Chairman may invite the Secretary to recall, for the information of the Council, the position in which the case stands and the Council may hear any other party to the proceedings. (4) The Council shall then consider and determine its judgment in the manner set out in section 26(3) and the Chairman shall announce the decision of the Council in such terms as the Council may approve. (Enacted 1996) Cap 161E s 28 Postponement of sentence (1) After the announcement of the decision of the Council in respect of the charge, if the decision is a finding of guilt of the offence charged, the Council shall consider and determine whether or not to postpone sentence on the defendant. (2) If the Council decides to postpone sentence, the sentence of the Council stands postponed until such future meeting of the Council as the Council may decide, and the Chairman shall announce the decision of the Council in such terms as the Council may approve. (Enacted 1996) Cap 161E s 29 Address in mitigation (1) At any meeting of the Council at which sentence on a defendant is to be decided by the Council, the Secretary or other person presenting the case to the Council may produce to the Council the records of any meeting of the Council at which an order was made against the defendant pursuant to section 19B(2), 21 or 21A of the Ordinance. (2) Before the Council decides the sentence, the Chairman shall ask the defendant whether he wishes to address the Council, and the defendant, in person or by his solicitor or counsel, may address the Council by way of mitigation and may adduce evidence as to the circumstances leading to the offence, as to the character and antecedents of the defendant and as to the circumstances leading to any previous order as notified to the Council under subsection (1). (3) The Council shall then consider and determine the sentence on the defendant and the Chairman shall announce the decision of the Council in such terms as the Council may approve. (Enacted 1996) Cap 161E s 30 Notice of postponement of sentence (1) Where, in accordance with the provisions of section 28, the decision of the Council in regard to the sentence in respect of any charge stands postponed to a future meeting of the Council, the Secretary shall serve on the defendant a notice specifying the date, time and place fixed for the meeting of the Council and inviting him to appear at the meeting. (2) If there is a complainant in respect of the charge, the Secretary shall send him a copy of the notice served under subsection (1). (Enacted 1996) Cap 161E s 31 Evidence (1) The rules of evidence do not apply to the proceedings of an inquiry. (2) Evidence may be taken by the Council by oral statement on oath or by written deposition or statement and the Chairman may administer an oath. (3) Every witness shall be examined by the party calling him and may then be cross-examined by the other party and only upon matters arising out of the cross-examination may be re-examined by the party calling him. (4) The Council may decline to admit the evidence of any deponent to a document who is not present for, or who declines to submit to cross- examination. (5) The Chairman, and members and assessors of the Council through the Chairman, may put such questions to the parties or to any witness as they think desirable. (6) The Council may at the hearing of an inquiry admit or take into account any statement, document, information or matter whether or not it would be admissible in a court of law. (Enacted 1996) Cap 161E s 32 Voting (1) In the taking of votes of the Council on any question to be determined by it, the Chairman shall call upon the members and assessors, if any, to signify their votes by raising their right hands, and shall thereupon declare the determination of the council in respect of such question. (2) Where the determination of the Council so declared by the Chairman is challenged by any member or assessor of the Council, the Chairman shall call upon each member or assessor severally to declare his vote, announce his own vote and announce the number of members and assessors (if any) of the Council who have voted each way, and the result of the vote. (3) Where on any question to be determined by the Council the votes are equal, the question shall be deemed to have been decided in favour of the defendant. (4) No person other than members and assessors of the Council and the Legal Adviser to the Council may be present when the Council votes on any matter. (Enacted 1996) Cap 161E s 33 Reference of case to Health Committee by Council (1) If after a case has been referred to the Council for inquiry and- (a) before the inquiry is opened, it appears to the Chairman, upon complaints or information subsequently received; or (b) before the inquiry is concluded, it appears to the Council, that the registered medical practitioner may be physically or mentally unfit to practise medicine, surgery or midwifery, the Chairman or the Council, as the case may be, may direct that the inquiry be withheld or be adjourned and the case be referred to the Health Committee. (2) On the Chairman or the Council referring a case of fitness to practise of a registered medical practitioner to the Health Committee, the Chairman or the Council may direct the Secretary to, and the Secretary when so directed shall, by notice in writing, invite the registered medical practitioner- (a) to submit to medical examination by one or more medical examiners acceptable to the Health Committee within such time as specified in the notice; and (b) to agree to those examiners furnishing to the Health Committee, before it considers the case, to assist the Health Committee in deciding the case, medical reports on his fitness to practise, either generally or on a limited basis, with recommendations, if any, on the management of his case. (3) The cost of any medical examination under subsection (2) shall be payable by the registered medical practitioner. (4) If, after a hearing, the Health Committee certifies to the Council that the registered medical practitioner is physically and mentally fit to practise medicine, surgery or midwifery, the Council shall commence or resume inquiry, as the case may be. (Enacted 1996) Cap 161E s 34 Review by Council (1) Where the Council has decided to review its decision under section 21 of the Ordinance and has decided to invite the parties to the inquiry to attend the review, the Chairman shall direct the Secretary to notify the parties in writing and invite them to appear before the Council at the time and place fixed for the holding of the review, and the Secretary shall comply with the direction. (2) At the review, the Council may invite the parties to address the Council in such order as the Council thinks fit. (3) Where the Council has invited the parties to attend a review, the Council may proceed with the review notwithstanding the absence of any party. (4) After a review by the Council under section 21(4B) of the Ordinance, the Chairman shall announce the Council's latest decision in writing and direct the Secretary to serve a notice of the decision on the defendant and to notify the complainant accordingly. (5) The Secretary shall comply with a direction under subsection (4). (Enacted 1996) Cap 161E s 35 Notice of hearing by Health Committee PART V PROCEEDINGS OF HEALTH COMMITTEE (1) As soon as it is practicable after a case has been referred to the Health Committee, the Secretary shall fix a date for a hearing by the Health Committee and shall serve on the registered medical practitioner notice of the hearing- (a) informing the practitioner that the case has been referred to the Health Committee for that Committee to determine whether his fitness to practise is impaired; (b) stating the date, time and place of the hearing of the case by the Health Committee; (c) inviting him to attend the hearing, but informing him that assistance by counsel or solicitor is not allowed at the hearing; and (d) enclosing copies of any documents, statements or reports about the registered medical practitioner which may be submitted to the Health Committee for consideration. (2) Except with the consent in writing of the registered medical practitioner, the case shall not be heard less than 21 days after the date of service of the notice under subsection (1). (3) The Secretary shall notify the complainant of the hearing of the case by the Health Committee. (Enacted 1996) Cap 161E s 36 Documents and witnesses (1) The registered medical practitioner may, not less than 14 days before the date fixed for the hearing by the Health Committee, request, by notice in writing addressed to the chairman of the Health Committee, that any document which may be considered by the Committee be supported by oral testimony of the author. (2) Upon a receipt of a notice under subsection (1) and, if the chairman of the Health Committee is satisfied that the request should, in the interest of justice, be acceded to, the chairman of the Health Committee may direct that the document is admissible for the purpose of the hearing only if the author is called as a witness and is available for questioning. (3) At any stage of a hearing, the Health Committee may, after the registered medical practitioner is supplied with a copy of a written statement, allow the admission of the statement at the hearing notwithstanding that a copy of the statement has not been supplied to the registered medical practitioner concerned in accordance with section 35(1) or that the author of the statement may not be called as a witness in accordance with the foregoing provisions if- (a) the registered medical practitioner consents to the admission; or (b) after obtaining legal advice, the Health Committee is satisfied that the admission is desirable to enable the Committee to perform its duty. (4) Any material which has been excluded from disclosure to the registered medical practitioner under section 10 must not be presented to the Health Committee. (5) The chairman of the Health Committee may administer an oath. (Enacted 1996) Cap 161E s 37 Order of procedure of Health Committee (1) The Health Committee is to meet in private. (2) At the commencement of a hearing by the Health Committee, the chairman of the Health Committee shall invite the chairman of the Preliminary Investigation Committee or, in his absence, the deputy chairman of the Preliminary Investigation Committee, or, if the complainant is a registered medical practitioner and he is willing, the complainant, to present the case and to call any witness to give oral evidence. (3) If the registered medical practitioner is not present at the commencement of the hearing, the Secretary shall furnish to the Council such evidence as the Council may require to prove that the notice of hearing was served on the registered medical practitioner in accordance with section 51 and, on the Council being satisfied as to such evidence, may proceed with the hearing in the absence of the registered medical practitioner. (4) If the registered medical practitioner is present at the hearing, the chairman of the Health Committee shall, before the case is presented pursuant to subsection (2), inform the registered medical practitioner of his right to cross-examine witnesses, to give evidence and to call witnesses on his behalf. (5) After the case has been presented pursuant to subsection (2), the registered medical practitioner may address the Health Committee and may adduce evidence as to his fitness to practise. (6) Witnesses called on behalf of any party to the hearing may be questioned by the other party or by the chairman, the deputy chairman or any other member of the Health Committee. (7) Where any evidence has been adduced on behalf of the registered medical practitioner, the chairman or the deputy chairman of the Preliminary Investigation Committee or the complainant, as the case may be, may address the Health Committee and, if he addresses the Committee, the registered medical practitioner may address the Committee a second time. (8) After a hearing has been commenced under this section, it may be proceeded with to its conclusion notwithstanding any absence of the registered medical practitioner. (9) The Health Committee may adjourn a hearing to such a date as it thinks fit. (10) After all the parties have finished adducing evidence and addressing the Health Committee, the Committee may adjourn the case in order to obtain further medical reports or other information as to the physical or mental condition or as to the fitness to practise of the registered medical practitioner. (Enacted 1996) Cap 161E s 38 Finding of Health Committee (1) After hearing all the parties and if the Health Committee does not adjourn the case under section 37(9) or (10), the Health Committee may postpone their finding as to the fitness to practise of the registered medical practitioner or proceed to determine whether the registered medical practitioner is physically or mentally unfit to practise medicine, surgery or midwifery. (2) In reaching the determination under subsection (1) the Health Committee may regard either- (a) a current physical or mental condition, or a continuing and episodic condition; or (b) a condition which, though currently in remission, may be expected to cause recurrence of impairment, as a current impairment. (3) Where, under this Regulation, the registered medical practitioner has been invited to submit to medical examinations and to agree to furnishing medical reports by the examiners but, without reasonable excuse, has refused or, in the opinion of the Health Committee, has failed to do so, the Committee is entitled, if it thinks fit, to find that the registered medical practitioner is physically or mentally unfit to practise medicine, surgery or midwifery on the basis of the information before the Committee notwithstanding the fact that the practitioner has refused or failed to submit to medical examination. (4) If the Health Committee finds that the registered medical practitioner is physically or mentally unfit to practise medicine, surgery or midwifery, the Committee shall proceed to make such recommendation to the Council under section 20V of the Ordinance as it thinks fit. (5) Where the Health Committee decides to make a recommendation- (a) that the name of a registered medical practitioner be removed from the General Register for a period not exceeding 12 months; or (b) that the order for removal be suspended subject to such conditions as recommended by the Committee, the Committee may, when announcing the decision, announce that the Committee will conduct further hearing at such time specified or to be specified by the Committee, whichever is appropriate, and the Committee may also specify the medical reports as to the fitness to practise of the registered medical practitioner, or any other information, which the Committee will require at the further hearing. (6) If, following a referral, the Health Committee finds that the registered medical practitioner is physically or mentally fit to practise medicine, surgery or midwifery, the Health Committee shall certify its opinion in writing and report back to the Council or the chairman of the Preliminary Investigation Committee, as the case may be. (7) The chairman of the Health Committee shall announce the determination of the Committee in such terms as the Committee may approve and notify the registered medical practitioner and the complainant (if any) of the determination. (Enacted 1996) Cap 161E s 39 Direction for further hearing by Health Committee PART VI FURTHER HEARING OF HEALTH COMMITTEE (1) The Chairman may direct the Health Committee to conduct a further hearing of a case which has been heard by the Health Committee where- (a) the Council has made an order under section 21(1) or 21A of the Ordinance pursuant to a finding of physical or mental unfitness to practise of a registered medical practitioner and the Council has, since the making of the order, received information as to that fitness to practise of the registered medical practitioner which, in the opinion of the Chairman, justifies the review of the order; or (b) the Council has made an order under section 21(1) or 21A of the Ordinance pursuant to a finding of physical or mental unfitness to practise of a registered medical practitioner which has been suspended subject to the compliance of certain conditions and it appears to the Chairman based on any complaint or information received, that there has been a non-compliance with any of those conditions. (2) The chairman of the Health Committee may order a further hearing by the Committee where the Committee has announced that there will be further hearing of the case under section 38(5). (Enacted 1996) Cap 161E s 40 Notice of further hearing (1) If the Chairman or the chairman of the Health Committee, as the case may be, makes a direction or order under section 39, the Secretary shall fix a date for the further hearing. (2) The Secretary shall, not later than 14 days before the date fixed for the further hearing, serve a notice on the registered medical practitioner- (a) specifying the date, time and place of the hearing, and inviting the registered medical practitioner to appear at the hearing; and (b) stating the nature of the information, complaint or circumstances in consequence of which the hearing is conducted, if applicable. (Enacted 1996) Cap 161E s 41 Further medical examination (1) Where the Chairman or the chairman of the Health Committee directs or orders the Health Committee to conduct a further hearing, the Chairman or the chairman of the Committee may direct the Secretary to, and the Secretary when so directed shall, by notice in writing, invite the registered medical practitioner- (a) to submit to medical examination by one or more medical examiners acceptable to the Committee within such time as may be specified in the notice; and (b) to agree to those examiners furnishing to the Health Committee, before it considers the case, to assist the Committee in deciding the case, medical reports on his fitness to practise, either generally or on a limited basis, with recommendations, if any, on the management of his case. (2) The cost of any medical examination under subsection (1) shall be payable by the registered medical practitioner. (Enacted 1996) Cap 161E s 42 Order of procedure for further hearing by Health Committee (1) At the opening of the further hearing, the chairman of the Health Committee shall recall, for the information of the Committee, the position in which the case stands. (2) The Health Committee shall then conduct the further hearing in the same manner as it conducts a hearing and the provisions of the Ordinance relating to a hearing by the Committee and Part V, with any necessary modifications, apply to a further hearing under this Part. (3) After a further hearing by the Health Committee, the Committee may, in the light of the results of the hearing- (a) make no further recommendation; or (b) make such new recommendation under section 20V of the Ordinance as it thinks appropriate in addition to, or in substitution of, the previous recommendation. (Enacted 1996) Cap 161E s 43 Procedure on appeal under section 20F(2) of Ordinance PART VII PROCEDURE ON APPEALS AND REVIEWS UNDER PART IIIA OF ORDINANCE (1) An appeal against a decision of the Licentiate Committee to the Council under section 20F(2) of the Ordinance shall be instituted by the appellant giving to the Secretary, within the time specified in section 20F(2), a notice of appeal in writing setting out the decision appealed against and the grounds of the appeal. (2) The appellant shall at the same time as he gives notice of appeal to the Council serve on the secretary of the Licentiate Committee a copy of his notice of appeal. (3) The Chairman shall fix the date, time and place of the hearing of an appeal and the Secretary shall give 14 clear days' notice thereof both to the appellant and to the secretary of the Licentiate Committee. (4) For the purpose of the hearing of an appeal under this section, the quorum of the Council is 5, including the Chairman. (5) The appellant may appear at the hearing of his appeal and may be heard in person or by his representative. (6) The Licentiate Committee may appear at the hearing of an appeal and may be represented by any member or the secretary of the Committee, or by counsel or solicitor. (7) If the appellant or the Licentiate Committee wish to submit written representations relating to an appeal for consideration by the Council at the hearing of such appeal, the appellant or the Licentiate Committee, as the case may be, shall send the representations to the Secretary not less than 7 days before the hearing and shall at the same time send a copy thereof to the other party. (8) At any time before the hearing of an appeal, the appellant may withdraw the appeal by notice in writing addressed to the Secretary and copied to the secretary of the Licentiate Committee. (9) The appellant and the Licentiate Committee are each entitled to make opening statements, to call witnesses, to cross-examine any witnesses called by the other party and to address the Council. (10) If the appellant or the Licentiate Committee or both of them fail to appear or to be represented on the hearing of the appeal, the Council may- (a) adjourn the hearing to a later date; (b) proceed to hear the appeal; or (c) if the appellant fails to appear, dismiss the appeal. (11) If the Council hears an appeal in the absence of either or both parties it shall consider any representations submitted by the party or parties under subsection (7). (12) All appeals are to be heard in private. (13) The Chairman may- (a) extend the time appointed in this Part for doing any act notwithstanding that the time appointed may have expired; (b) postpone the day or time fixed for, or adjourn the hearing of, any appeal; (c) at the request of the appellant or the Licentiate Committee, by notice summon any person to appear before the Council on the hearing of an appeal and may examine him as a witness either on oath or otherwise; (d) administer an oath. (14) At the hearing of an appeal, the Council may admit or take into account any statement, document, information or matter, whether or not it would be admissible in a court of law and the rules of evidence do not apply to the appeal hearing. (15) The Secretary shall, within 28 days of the decision of the Council, notify the appellant in writing thereof. (16) Subject to this section, the Council shall regulate its own procedure. (Enacted 1996) Cap 161E s 44 Procedure on review under section 20G(1) of Ordinance (1) A review by the review sub-committee under section 20G(1) of the Ordinance is instituted by the applicant sending to the secretary of the review sub-committee, within the time specified in section 20G(1), an application for a review in writing, setting out the decision to be reviewed and the grounds for seeking a review, and any written representations which he wishes the review sub-committee to consider on the review. (2) The secretary of the review sub-committee shall, not later than 14 days after the receipt of an application under subsection (1), refer the application to the review sub-committee together with any written representations submitted by the applicant. (3) On a review, the review sub-committee shall consider any written representations submitted by the applicant. (4) The secretary of the review sub-committee shall, within 7 days of the sub-committee's decision, notify the applicant in writing of the decision and the reasons therefor, and, if the review sub-committee has confirmed or varied the decision the subject of the review, inform him of his right of appeal to the Licentiate Committee under section 20G(3) of the Ordinance. (Enacted 1996) Cap 161E s 45 Procedure on appeal under section 20G(3) of Ordinance (1) An appeal against a decision of the review sub-committee to the Licentiate Committee under section 20G(3) of the Ordinance is instituted by the appellant giving to the secretary of the Licentiate Committee, within the time specified in section 20G(3) of the Ordinance, a notice of appeal in writing setting out the decision appealed against and the grounds of the appeal. (2) The procedure on appeals under section 20F(2) of the Ordinance set out in section 43, other than section 43(1), applies to appeals under section 20G(3) of the Ordinance, as if references in section 43 to the Council were references to the Licentiate Committee and references in section 43 to the Licentiate Committee were references to the review sub-committee. (Enacted 1996) Cap 161E s 46 Institution of appeal PART VIII PROCEDURE ON APPEALS UNDER PART IIIC OF ORDINANCE (1) An appeal against a decision of the Education and Accreditation Committee under section 20O(1) of the Ordinance is instituted by the appellant giving to the Secretary, within the period specified in section 20O(1) of the Ordinance, a notice of appeal in writing setting out the decision appealed against and the grounds of the appeal. (2) The appellant shall, at the same time as he gives the notice of appeal to the Secretary, serve on the secretary of the Education and Accreditation Committee a copy of the notice of appeal. (3) The Chairman shall direct the Secretary to fix the date, time and place of the hearing of the appeal and the Secretary shall give 14 clear days' notice of the hearing both to the appellant and to the secretary of the Education and Accreditation Committee. (Enacted 1996) Cap 161E s 47 Hearing of appeal (1) For the purpose of the hearing of an appeal under section 20O(1) of the Ordinance, the quorum of the Council is 5, including the Chairman. (2) The appellant may appear at the hearing of his appeal and may be heard in person or by his solicitor or counsel. (3) The Education and Accreditation Committee may appear at the hearing of the appeal and may be represented by the chairman of the Committee, any member or the secretary of the Committee, or by counsel or solicitor. (4) If the appellant or the Education and Accreditation Committee wishes to submit written representations relating to an appeal for consideration by the Council at the hearing of the appeal, the appellant or the Committee, as the case may be, shall send the representations to the Secretary not less than 7 days before the hearing and shall at the same time send a copy of the representations to the other party. (5) At any time before the hearing of an appeal, the appellant may withdraw the appeal by notice in writing addressed to the Secretary, and copied to the secretary of the Education and Accreditation Committee. (6) The appellant and the Education and Accreditation Committee are each entitled to make opening statements, to call witnesses, to cross-examine any witnesses called by the other party and to address the Council. (7) If the appellant or the Education and Accreditation Committee or both of them fail to appear or to be represented on the hearing of the appeal, the Council may- (a) adjourn the hearing to a later date; (b) proceed to hear the appeal; or (c) if the appellant fails to appear, dismiss the appeal. (8) If the Council hears an appeal in the absence of either or both parties it shall consider any representations submitted by the party or parties under subsection (4). (9) All appeals are to be heard in private. (10) The Chairman may- (a) extend the time appointed in this Part for doing any act notwithstanding that the time appointed may have expired; (b) postpone the day or time fixed for, or adjourn the hearing of, any appeal; (c) at the request of the appellant or the Education and Accreditation Committee, by notice summon any person to appear before the Council on the hearing of an appeal and may examine him as a witness either on oath or otherwise; (d) administer an oath. (11) At the hearing of an appeal, the Council may admit or take into account any statement, document, information or matter, whether or not it would be admissible in a court of law and the rules of evidence do not apply to the appeal hearing. (12) The Secretary shall, within 28 days of the decision of the Council, notify the appellant in writing thereof. (13) Subject to this Regulation, the Council shall regulate its own procedure in relation to an appeal under section 20O of the Ordinance. (Enacted 1996) Cap 161E s 48 Institution of appeal PART IX PROCEDURE ON APPEALS UNDER PART IIIF OF ORDINANCE (1) An appeal against a decision of the Health Committee under section 20W(2) of the Ordinance is instituted by the appellant giving to the Secretary, within the period specified in section 20W(2) of the Ordinance, a notice of appeal in writing setting out the decision appealed against and the grounds of the appeal. (2) The appellant shall, at the same time as he gives the notice of appeal to the Secretary, serve on the secretary of the Health Committee a copy of the notice of appeal. (3) The Chairman shall direct the Secretary to fix the date, time and place of the hearing of the appeal and the Secretary shall give 14 clear days' notice of the hearing both to the appellant and to the secretary of the Health Committee. (Enacted 1996) Cap 161E s 49 Hearing of appeal (1) For the purpose of the hearing of an appeal under section 20W(2) of the Ordinance, the quorum of the Council is 5, including the Chairman. (2) The appellant may appear at the hearing of his appeal and may be heard in person or by his solicitor or counsel. (3) The Health Committee may appear at the hearing of the appeal and may be represented by the chairman of the Committee, any member or the secretary of the Committee, or by counsel or solicitor. (4) If the appellant or the Health Committee wishes to submit written representations relating to an appeal for consideration by the Council at the hearing of the appeal, the appellant or the Committee, as the case may be, shall send the representations to the Secretary not less th