SIN CHUNG YIN RONALD AND OTHERS v. THE DENTAL COUNCIL OF HONG KONG

CACV149/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.149 OF 2013

(ON APPEAL FROM THE DENTAL COUNCIL OF HONG KONG

DISCIPLINARY INQUIRY PROCEEDINGS NO. DC1190/9/H)

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JUDGMENT

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Hon McWalters JA (giving the judgment of the Court):

Introduction

1. The applicants were found guilty of unprofessional conduct by the Dental Council in that, each being a Director of Health & Care Dental Clinic Limited (“Health & Care”), between 17 July 2008 and 16 April 2010, they employed Mr Jeremy Tung to perform dental services when he was no longer a registered dentist after his name had been removed from the General Register on 17 July 2008.

2. The 2^nd applicant only was convicted by the Council of the 2^nd charge which alleged that he failed to take adequate steps to ensure that there was no unregistered person practicing dentistry in the premises in which he practiced dentistry. The applicants were sentenced by the Dental Council to removal from the General Registry for a period of 3 months for the 1^st applicant and 2 months for the other applicants.  The applicants appealed the conviction and sentences to the Court of Appeal and on the 11 April 2014 we dismissed their appeal. 

3. The applicants now apply by way of Notice of Motion for leave to appeal to the Court of Final Appeal pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  The applicants assert that the appeal involves questions of great general or public importance, namely:

“(1) Question 1: Whether a decision of a professional disciplinary tribunal would be irregular if the defendants were not informed of the substance of the complaint against them before the judgment of the tribunal was made. In particular:

(a) Whether regulation 17(3)(a) of the Dentist (Registration and Disciplinary Procedure) Regulations (Cap 156A) (‘DRDPR’) and the standard Form 6 in Schedule 1 of the DRDPR requires the Secretary to the Dental Council to particularise the facts in the Charge Sheet which form the basis of the charge of unprofessional conduct against the defendants, prior to the inquiry being held;

(b) Whether the legal officer conducting the prosecution of the charge against the defendants is under a duty to bring to the attention of the tribunal all material facts and law relied on in accusing the defendant guilty of professional misconduct, and whether a failure to do so would render the decision of the tribunal irregular;

(c) If not, whether a professional disciplinary tribunal is open to infer, and subsequently find, the defendants guilty of professional misconduct on the basis of allegations of fact and breach of statutory duties not advanced by the legal officer in the course of its case.

(2) Question 2: On the basis of the aforesaid reasons, whether the inquiry process to which the Applicants were subject in the present case was contrary to natural justice and procedural fairness.

(3) Question 3: Whether a professional disciplinary tribunal can find the defendants guilty of misconduct without making a finding that the Applicants have the requisite mens rea. In particular:

(a) When it is said that ordinary negligence does not suffice to constitute unprofessional conduct and what must be shown is an ‘elemental and grievous failure’, whether that means the Applicants cannot be guilty of professional misconduct until and unless they are found to have the requisite mens rea.

(b) Whether the necessity of proving a mental element in finding the defendants guilty of professional misconduct on the basis of breaching the statutory duties stipulated in section 12(3) of the Dentists Registration Ordinance (Cap 156) (“DRO”) is supported by section 12(2A) of the DRO which expressly provides that a lack of knowledge is a defence to a criminal prosecution brought under section 12(1) of the same ordinance.

(c)   Whether it is open to a professional disciplinary tribunal to find the defendants having committed an ‘elemental and grievous failure’ without probing into whether the defendants have taken adequate steps to prevent a breach of the statutory requirements relied on by the tribunal in finding the defendants guilty of professional misconduct.”

Alternatively, the applicants seek leave pursuant to the same section on the ground that the appeal “ought otherwise be submitted to the Court of Final Appeal for decision having regard to the procedural unfairness and serious miscarriage of justice to which the Applicants were subject for the reasons stated above”.

4. Pursuant to directions given to the parties this application is being dealt with by way of written submission without an oral hearing. 

The Questions

5. The first question assumes that the defendants were not informed of the substance of the complaint against them before the judgment of the tribunal was made and that the legal officer conducting the prosecution did not bring to the attention of the Council all material facts and law relied upon for the purpose of proving the applicants were guilty of unprofessional conduct.  Having made these assumptions the question then query whether the Secretary to the Council is required to particularise the facts in the Charge Sheet which formed the basis of the charge of unprofessional conduct and whether the legal officer is under a duty to bring to the attention of the tribunal all material facts and law relied upon and finally whether the tribunal can find the applicants guilty of unprofessional conduct on the basis of allegations of fact and breaches of statutory duties not advanced by the legal officer in the course of the prosecution. 

6. However none of these assumptions were ever a live issue on the appeal. Nor was any point taken at the hearing of the Dental Council that the applicants were unprepared for the hearing to take place, lacked sufficient information on the prosecution’s case or needed an adjournment in order to respond to any changes in the prosecution’s case.  None of these matters arise from the judgment of the court and, in terms of what happened at trial, are quite hypothetical.  This is an important consideration when granting leave, for whether a particular professional who is the subject of disciplinary proceedings has been treated fairly in respect of those areas on which the questions focus is always going to be case sensitive. 

7. The second question relies for its merit on the assumptions made in the first question and we have indicated those assumptions are not substantiated by what took place at the tribunal and before us. 

8. As to the third question we made it quite clear in our judgment that the finding of unprofessional conduct by the Dental Council was based on a finding of negligence that reached the level of elemental and grievous failure.  The law on this area is settled and clearly does not require specific mens rea. This case involved the application of established legal principles to the facts of the case and does not give rise to any question of great general or public importance. 

The “or otherwise” Limb of Section 22(1)(b)

9. The applicants also rely upon section 22(1)(b) and what has become known as the “or otherwise” limb of the subsection.  This limb requires the applicants to show that exceptional circumstances exist which provide them with “an utmost probability, or even virtual certainty” of success without losing sight of the merits of the appeal.[1] The application under this alternative limb is put on the basis that a serious miscarriage of justice is involved.  But no further elaboration of this limb is advanced by the applicants in their written submission.  Such a bare assertion comes nowhere near close to satisfying the requirement of the “or otherwise” limb as laid down by appellate authority.

Conclusion

10. For these reasons we find no merit in the application for leave to appeal and dismiss it with costs to the respondent.