HKSAR v. CRUZ PABLO JR. IGNACIO

HCMA977/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 977 OF 2007

(ON APPEAL FROM KCCC 3175 OF 2007)

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

1. The appellant was convicted after a trial before Mr Mierczak at Kowloon City Magistracy of an offence of practising dentistry as an unregistered person, contrary to section 3(1)(a) of the Dentists Registration Ordinance, Cap. 156 (the 1^st charge) and of breaching a condition of his stay in Hong Kong, contrary to section 41 of the Immigration Ordinance, Cap. 115 (the 2^nd charge).  He was sentenced to three months’ imprisonment suspended for two years in respect of both offences, the sentences to run concurrently.  He now appeals his convictions.

2. The prosecution case was that PW1, a chief inspector of police, and PW2, another police officer, as a result of information received, went to the premises of the appellant in Tsim Sha Tsui on the charged date.  Both officers were in plain clothes.  When the appellant answered the door PW1 told him that he had something wrong with his teeth and that he wanted them checked.  The appellant initially answered he could not help as the flat had no electricity, but when PW1 said he needed treatment the appellant allowed PW1 and PW2 into his premises. 

3. According to PW1, he sat in a reclining chair similar to that in a dentist’s surgery.  The appellant put on a surgical mask and gloves and picked up a dental mirror.  PW1 asked whether the cost would be around $100 or so and the appellant confirmed that to be so.  The appellant then attempted to examine PW1’s mouth but PW1 and PW2 then brought matters to an end and shortly after that uniformed police officers entered the flat and arrested the appellant.  In the flat were found various dental instruments, equipment and paraphernalia, and antibiotics and drugs used in dentistry.

4. The appellant did not give evidence at trial but presented his defence by way of cross-examination which largely went to the credibility of PW1 and PW2.

5. Mr Tibbo for the appellant advanced a number of grounds of appeal which can be summarised as follows :

6. At the end of argument before me concerning the above grounds of appeal I allowed Mr Tibbo to rely on a further ground of appeal to the effect that section 2(2) of the Dentists Registration Ordinance did not, in defining what is meant by “practising dentistry”, apply to the facts of the present case.  I will deal with the arguments concerning that proposition at the end of this judgment.

7. Before proceeding I should also say that it was common ground that the appellant’s conviction of the 2^nd charged offence was dependent on the propriety of his conviction in respect of the 1^st charged offence.  Both stood or fell together, as the breach of the appellant’s condition of stay alleged was that he had unlawfully practised dentistry when prohibited from employment in Hong Kong.  Argument before me therefore was restricted to the appeal concerning the 1^st charged offence.  

Ground 1

8. Mr Tibbo alleges that the magistrate’s interventions were excessive and slanted in favour of the prosecution.  He says also that as the defence counsel at trial he was prevented by these interventions from properly presenting his case.

9. The interventions complained of by the appellant took place mainly during the evidence of PW1.  I have spent some time reading the transcript of this evidence and it seems to me that the interventions were largely concerned with “housekeeping” matters by way of the magistrate ensuring that he had an accurate note of the proceedings and ensuring that questioning was not repetitive or improper.

10. PW1 was an expatriate officer who gave his evidence in English and on occasion the magistrate had to ask either defence counsel or the witness to wait while he made a note of the evidence.  All such interventions were perfectly proper and indeed necessary and in no way offended against the principle expressed by Denning LJ in Jones v. National Coal Board [1957] 2 QB 55 at 64 :

“The judges’ part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies.  If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well.  Lord Chancellor Bacon spoke right when he said that ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.’”

11. There were other interventions which did not fall into this category and the most significant of these interventions relied upon by Mr Tibbo were as follows :

12. Firstly Mr Tibbo complains that the magistrate “led” the evidence of PW1 so as to have him agree the lighting in the appellant’s flat was merely “dim” rather than “dark” as PW1 had initially said in evidence.  That evidence was as follows :

“A.    And he said that he couldn’t help me because he had no electricity.

COURT:  ‘Can’t help you, I have no electrics.’  Yes.  Yes.

A.  And I could see inside.  Because the door was open, I could see inside, it was dark.  However, I said that I really did need some treatment and could he help.

…

Q.  … And when you went inside, it was extremely dark.

A.  It wasn’t extremely dark, no.

Q.  Well, I put it to you that it was extremely dark and very difficult to see.

A.  No.  There were windows in the flat.

COURT:  Well, it was dim.

A.  It was dim.  Yes.

Q.  There were windows where?

A.  There was a window in the back of the flat, somewhere in a kitchen or somewhere off the back.

Q.  Right.

A.  It wasn’t dark.  It was dim.”

13. Mr Tibbo says that the state of the flat’s lighting was important because it affected the reliability of PW1 and PW2’s evidence as to what they saw the appellant doing once they had gained entry to the flat.

14. It seems to me that the magistrate’s intervention did not hinder the defence case or alter the effect of PW1’s evidence but was simply designed to gain an understanding as to what the state of the flat’s lighting was, according to PW1.

15. In any event PW1 was not the only witness who gave evidence as to the state of the flat’s lighting.  PW3 and also PW5, another police officer, gave evidence as to the lighting conditions in the flat when they entered it at the time of the arrest of the appellant.  PW3 said the contents of the flat could be clearly seen as light entered the flat through windows, although torches were used when items were seized from drawers or “hidden places”.  PW5 said that because light came in through the toilet windows “one could see clearly what the other person did”.  PW2 had earlier said in her evidence that she had left the front door of the flat ajar when she and PW1 entered the premises and that items could be seen in the flat, but that to carefully check an item a torch had to be used.

16. In the context of the volume of evidence from PW2, PW3 and PW5 the magistrate’s suggesting the adjective “dim” to PW1 was wholly immaterial.

17. The next major intervention relied upon by Mr Tibbo was contained in the cross-examination of PW1 as follows :

“Q.    Now, what I - what I put to you is that Mr Cruz recognised, and this would be people who speak completely different languages, he recognised that you were desperate and you were in pain, and he allowed you to sit on his sofa in his front room.

COURT:  That’s rejected.  That’s what - evidence about which the defendant may give.  He can’t read his mind, Mr Tibbo.

MR TIBBO:  I am putting my case to the [witness].

COURT:  I know what you’re saying.  But he - you’ll have to rephrase it if you’re going to put it.

MR TIBBO:  Okay.

Q.  My client let you in simply on a compassionate basis as a human being.

COURT:  He doesn’t know that.

MR TIBBO:  Okay.”

18. The magistrate was quite right to intervene.  The question asked of the witness was in reality unanswerable.  PW1 could not have known what the motives of the appellant may have been in allowing he and PW2 entry to his flat.  That was either a matter for submissions or, more cogently, a matter for the appellant if he had elected to give evidence.

19. Another complained of passage of evidence occurred as follows :

“Q.    Okay.  Well, my understanding is that you continued to persist, and that, as a decoy, you had made it visibly evident that you were in pain.

A.  I said…

Q.  And that you were suffering from discomfort.

A.  I said, ‘I had a problem with my teeth.  They needed to be checked.’

Q.  I’m not asking you what you said.  I’m asking you that you made it visibly apparent to my client…

COURT:  Well, he doesn’t know what your client — was apparent to your client.  He can’t read your client’s mind.  He said what he said to your client, but he can’t say whether the client took it as ‘Oh, well, you were visibly in pain’, or anything like that.  He can’t read your client’s mind.  Next question, please.”

20. The magistrate’s concern was that the question required PW1 to again answer as to what was in the appellant’s mind.  No complaint can be made of this intervention.  If the question had been as to what PW1 did at the time, perhaps performing some physical act which indicated he was in pain, then the magistrate’s intervention would not have been justified, but that was not in fact the question asked.

21. Another intervention came about when counsel was cross-examining PW1 as to when the appellant put on a rubber surgical glove.  It was the contention of the defence that the appellant may have been wearing a surgical glove prior to PW1 and PW2 gaining entry into the flat and so had not put one on for the purpose of any dental examination of PW1.  PW1 said he noticed the appellant was not wearing gloves when he answered the door and came out into the corridor.  This exchange transpired :

“Q.    Okay.  How do you know my client didn’t have the rubber glove on before you entered the flat?

A,  Because, when he answered the door, he didn’t have any gloves on.

Q.  Well, how could you see his hands?

A.  Because he opened the door with his hands and he’s standing outside the door.

Q.  Well, I confirm with you that he only opened the door a little bit to look outside.

A.  .No, he opened the door.

Q.  How could you be sure of what you saw when you were in the flat?

A.  Because…

Q.  It was dark.

A.  It wasn’t dark, it was dim.

Q.  Okay.  But it was…

A.  And he stepped out into the corridor which was light.

Q.  Now, he stepped out into the corridor.

A.  Yes.

Q.  Okay.  To my understanding, when I examined you earlier, you said he never stepped out in the corridor.

A.  You didn’t ask me that question.

Q.  I did.

A.  No, you didn’t.

Q.  I said he had cracked open the door to look outside.

COURT:  Don’t argue with a witness, Mr Tibbo.  Just ask the questions.”

22. The magistrate was quite right to intervene when he did.  Counsel and PW1 were at loggerheads and the evidence was going nowhere.

23. Most of the magistrate’s complained of interventions occurred during the evidence of PW1.  But complaint is also made of this passage of evidence concerning the cross-examination of PW2 :

“Q.    And any rubber glove that you allege was on my client’s hand, you never actually saw him put this glove on his hand.

INTERPRETER:  Sorry, I don’t understand.

COURT:  Did you see the defendant put on the rubber glove?

A.  Yes, I saw him wearing it.

COURT:  No, did you see him put it on?  At what stage did he put it on?  Did you see it, or you just saw him wore it - wearing it?

A.  We sat down and then he wore the glove.

COURT:  So you didn’t see him put it on.  He always wore it.

A.  He sat down, and then he wore a glove, and then he took the mirror.

COURT:  Did you see him put the glove on?  You keep saying he wore it, but did you actually see him put it on?

A.  Yes.

COURT:  You saw him put it on, okay.  Thank you.”

24. It is suggested that the magistrate led this evidence from PW2, but it is apparent that the magistrate was simply attempting to get the witness to answer the question which had been asked of her.  The magistrate was entitled to do so and, given the importance which was placed on this issue by the defence, was perhaps obligated to do so.  There is nothing in this complaint. 

25. Other complaints are made by Mr Tibbo under this ground but in my view, although on occasion it was not necessary for the magistrate to intervene, the interventions which did occur both in regard to their number and quality fell far short of either significantly hindering the defence case or of possibly creating in the mind of an informed observer any suspicion of bias on the part of the magistrate.  

26. This ground failed. 

Ground 2

27. It was established during the cross-examination of PW2 that when she subsequently made a record of events in her police notebook she had not recorded any of PW1 telling the appellant he had pain in his teeth or the appellant putting on rubber gloves or holding a mirror in his hand.  PW2 said that was because her notebook entries were “simple information”.

28. In re-examination the prosecutor referred PW2 to the contents of her witness statement which had been made the following day and her evidence was that the matters not recorded in her notebook were contained in that witness statement. 

29. Defence counsel made an application to further cross-examine PW2 on the contents of the witness statement but the magistrate refused leave to do so. 

30. Mr Tibbo suggested to me that if he had been allowed to further cross-examine PW2 on her witness statement he would have asked her why she had only made that statement the following day.  He says he would also have asked why she had forgotten she had recorded those matters in her witness statement. 

31. As to the first matter there is quite plainly nothing unusual about a police officer making his or her witness statement a day or even several days after the subject events having taken place and it is difficult to see how this line of questioning would have assisted the appellant.  As to the second matter upon which he proposed to further cross-examine PW2 it is quite plain that PW2 had in fact forgotten the matters referred to above were recorded in her witness statement.  This evidence came into being as a result of an inquiry by the magistrate :

“Q.    Well, I put it to you that there’s no attempt; there was no holding of any mirror in the client’s hand - my client’s hand; and that you were in a very dark flat and none of this happened; as none of it is recorded in your notebook.  Nothing is in your notebook.

A.  Disagree.

Q.  Right.

COURT:  Is it recorded, madam, anywhere, other than your evidence today, that - this part about he put the glove on, the mirror and the hand, attempted to look at PW1’s teeth?  It’s not in your notebook, we’ve ascertained that.  Is it recorded anywhere?

A.  In my mind.

COURT:  Only your mind, okay.  But it’s not in your statement either, I presume?

A.  I don’t think so.

COURT:  Thank you.”

32. There is no doubt that PW2 was wrong in this regard.  She had obviously forgotten she had mentioned these matters in her witness statement.

33. Precisely what benefit Mr Tibbo’s proposed question would have had as to why she had forgotten that is difficult to see.  But in any event defence counsel must have been perfectly aware that PW2 had in fact mentioned these things in her witness statement.  It would have been quite wrong for the court to have remained under the misapprehension that PW2 had not recorded these events anywhere prior to giving evidence and it must have been equally obvious to defence counsel that if he left matters there the prosecution was entitled to set matters right in re-examination.  It must have been obvious to defence counsel that, if he wished, he could cross-examine PW2 on the contents of her witness statement then and there.  But he chose not to do so. 

34. In re-examination PW2 was simply asked by the prosecutor whether she had mentioned the matters in her witness statement and she (after being shown that statement) replied in the affirmative.  In the present case defence counsel has no basis to suggest he was taken unaware by this re-examination.  He must have appreciated its likelihood during his own cross-examination and at that time could have proceeded with the cross-examination he now suggests he was denied.

35. The magistrate had a discretion to refuse any further cross-examination by defence counsel on this matter.  There was nothing unreasonable in that refusal and indeed, as I have said, it is difficult to see any benefit which might have come out of any further cross-examination. 

36. This ground also failed.

Ground 3

37. Mr Tibbo complains the magistrate failed to resolve discrepancies between the evidence of PW1 and PW2.

38. The major discrepancy concerned PW1’s evidence that he had sat in what was described as a “tiger skin” coloured chair which was a reclining chair next to the sofa where PW2 sat when he spoke to the appellant and was there when the appellant approached him to examine him and stood next to him.  PW2 on the other hand said in her evidence that PW1 was at all times sitting on the sofa next to her and that it was the appellant who on occasion sat on the reclining chair.  This was a significant discrepancy between the evidence of PW1 and PW2.

39. The magistrate said this :

“    I found PW1-2 to be honest believable witnesses and I accept what they say.  PW1 gives a clear account of going to the premises and enquiring of the appellant as to whether he was Dr. Cruz, which the appellant acknowledged, and asked what he (PW1) wanted.  I am satisfied PW1 said that he had something wrong with his teeth and he needed them checked.  At first the appellant had declined to help as there was no electricity, but on being asked again said ‘O.K.’.

…

PW2 who I also accept, to a large extent corroborates PW1, and I saw nothing sinister in that.  There are some discrepancies between her evidence and that of PW1 which I will refer to shortly.  I accept that she had recalled this incident specifically because it was the first time she had been with an expatriate officer (as is PW1) in over 30 years service, on a decoy operation involving an alleged unregistered dentist.  She is not mistaken, and I find that.  She had recorded and I accept that PW1 had opened his mouth.  She remembers the appellant wearing a glove and using a mouth mirror to attempt to check the teeth of PW1.  I saw nothing sinister in that.

  As referred to there are some discrepancies between her and PW1, but they are minor and would not cause me to disbelieve either PW1-2 in any way, shape or form e.g. PW1 saying he was in a chair/PW2 saying it was a sofa; PW1 saying that the appellant had not told him he was an unregistered dentist/PW2 said he did say so; PW1 saying the glove was on the right hand (may have been two gloves)/PW2 saying glove was on the left hand etc.  I accept what PW1-2 have said.”

40. The magistrate resolved this particular discrepancy by referring to it as “minor”.  I am not sure that is a sufficient resolution of the problem.  The “tiger skin” reclining chair was quite distinctive, not so much because of its colour but because of the way it was set up.  From the exhibited photographs it appears to have been utilised as a dentist’s chair with an overhanging light and a nearby bench for materials to be placed upon.  It seems odd that PW2 would not remember PW1 sitting in this chair and the appellant attempting to examine him in it, and in my judgment to refer to this discrepancy as “minor” does not fully deal with it.

41. Nevertheless this present appeal is a rehearing and in the context of the evidence as a whole, including the evidence of PW3 the exhibits officer as to the various pieces of dental equipment found in the premises, whether in drawers or on benches, and that of PW4 as to usage of that equipment and the drugs and medicines found in the premises, I do not think this discrepancy at the end of the day sufficient to ground this appeal.  I take into account also that PW2’s recollection of events was less sure than that of PW1 and her memory on occasion failed her in evidence.  Her forgetting the contents of her witness statement is one example.  Though this particular discrepancy between the evidence of PW1 and PW2 caused me some concern at the end of the day, given the other evidence as to the appellant’s activities in the flat, I am satisfied that, though not minor, it can safely be regarded as of no effect on the conviction. 

42. Other discrepancies, as summarised by the magistrate, can be fairly categorised as minor.  It matters little whether the appellant wore a glove on his left or right hand, or whether the appellant had in fact told PW1 at some stage that he was unlicensed or precisely when PW1 left the premises and, if he did, whether he returned.

43. Mr Tibbo has provided me with a catalogue of further consistencies and discrepancies in the evidence of PW1 and PW2.  Most are wholly insubstantial and reflect the kind of uncertainties and contradictions one would expect to find in the evidence of honest witnesses.  It is sufficient to say that these supposed inconsistencies could in no practical or common sense way undermine the credibility of PW1 and PW2.

44. The general consistency between the evidence of PW1 and PW2 as to what was said and done by the appellant was convincing and at the end of the day I agree with the magistrate’s assessment of both witnesses as being credible in the important parts of their evidence. 

45. This ground ultimately failed.

Ground 4

46. The complaint advanced on behalf of the appellant under this ground is that the magistrate wrongly took into account evidence he should have ignored. 

47. Firstly the magistrate is criticised for having found, from PW1’s evidence, that the appellant donned a surgical mask.  Mr Tibbo argues no such mask was ever exhibited or seized and that this evidence from PW1 should have been ignored.  The mere fact that an item is not exhibited is no reason to ignore evidence concerning that item.  But in any event it is quite clear from the photographs taken of the premises that a face mask was hanging from a hook on the wall of the flat, at least at the time the photographs were taken.  That is evidence which wholly supported PW1’s evidence in this regard and the magistrate was certainly entitled to take PW1’s evidence regarding the appellant wearing a face mask into account.

48. The magistrate is criticised also for accepting that the appellant donned a surgical glove or gloves.  This criticism was based on the uncertainty in the evidence as to whether the appellant put on or wore one surgical glove or two.  That uncertainty provides no reason for the magistrate to ignore the evidence that the appellant was wearing at least one surgical glove when he approached PW1 with a dental mirror.

49. It is also suggested that the magistrate took into account hearsay evidence given by PW5, a police officer who entered the appellant’s premises only at the time of his arrest, to the effect the appellant wore a glove and used dental equipment.

50. PW5 was tendered for cross-examination and this evidence then came into being in the following way :

“Q.    I can assist you.  It’s at page 39, last sentence.  From that point on.  You can read it out loud if you’d like.

A.  (Witness gives evidence in English)  Okay.  In my record, I’ve recorded ‘A briefing is given by her’ — which means my superior, Ellen Chung — ‘that the suspect, the AP, arrested person’, and then ‘have just commit an offence, who admitted to the decoy that he’s a dentist without any licence.  AP1’ — which means it’s the AP — ‘also wore a glove in his left hand, and used the equipment to check the decoy’s mouth.’

…

Q.  So, he checked the decoy’s mouth?  You were told he actually checked the decoy’s mouth; is that correct?

A.  … Since I was not present, I cannot be sure, but from what she told me, it’s something like he was about to put a tube into his mouth.  And she knew it, because she witnessed that.”

51. I am not sure why this evidence was led by defence counsel, presumably on the basis of PW5 being told something by PW2 which was inconsistent (though more damning) than her evidence.  But in any event the magistrate merely said this in his statement of findings concerning that evidence :

“    Lastly PW5 another police officer was called for cross-examination.  He was questioned as to how dim the room was, with the door slightly ajar, and closed.  It was put to him that the appellant was an unlicensed dentist who had worn a glove and inspected PW1’s teeth with tools, to which he agreed.”

52. That was said in the course of the magistrate briefly summarising the evidence of each witness (including PW5).  It is true that the magistrate was not wholly accurate in saying PW5 had agreed to these matters.  PW5 had merely agreed in his evidence that he had been told this by PW2.  

53. But in any event at the point in his statement of findings when the magistrate analysed the evidence and arrived at his conclusions it is apparent that he does not mention the complained of aspect of PW5’s evidence further.  It is quite obvious that the magistrate was perfectly aware PW5 was not present at the time of these events and his evidence was of no import in this regard.  It is clear the magistrate did not take this evidence into account against the appellant.

54. Other complaints are made under this ground but they are of even less substance and I do not need to deal with them.

55. This ground failed.

Ground 5

56. The complaint is made under this ground that the magistrate failed to take into account evidence favourable to the appellant.  Firstly Mr Tibbo argues that the appellant’s lack of English proficiency was not properly considered by the magistrate.  The answer to that complaint is that as the appellant did not give evidence and did not call any witnesses, the only evidence before the magistrate was that of PW1 to the effect that the appellant appeared to have understood what PW1 said to him.  If PW1 and PW2’s evidence was accepted, as it was by the magistrate, then indeed the only rational explanation for the behaviour of the appellant was that he had understood what PW1 had said to him.

57. Other evidence suggested to have been overlooked by the magistrate which favoured the appellant was in large part concerned with evidence which was marginal or secondary to the important issues in the case and which was called in aid both before the magistrate and in this court in attacking the credibility of PW1 and PW2.  In large part that evidence comprised matters of contention which, once the evidence of PW1 was accepted, rendered the parts of it relied upon by Mr Tibbo as being of no weight.  Other aspects of it have been dealt with under the 3^rd ground of appeal.  

58. In short nothing substantial was advanced under this ground concerning the evidence requiring the magistrate to expressly deal with any particular part of that evidence said to be favourable to the appellant.  In my view once the magistrate had generally accepted the evidence of PW1 and PW2 to be reliable there was, in the circumstances of this case, no need for him to go on and consider the minutiae of the evidence which, from another perspective, could be said to favour the appellant.

Ground 6

59. Under this ground Mr Tibbo effectively argues that even if the evidence of PW1 and PW2 as to what the appellant had said and done was accepted, there were other explanations consistent with the appellant’s innocence.  The other main explanation relied upon was that as a wholly humanitarian gesture the appellant had decided to examine PW1’s teeth.  The argument is that the evidence before the magistrate was consistent with such an inference and that the magistrate was therefore wrong to draw an inference of guilt because that was not the only inference consistent with the facts accepted by him. 

60. The simple answer to that is that the magistrate accepted the evidence of PW1 and PW2 that the appellant had agreed a sum of $100 be charged for his service.  That fact, once accepted, rendered the “humanitarian” inference urged upon the magistrate and this court unsustainable.

61. There was nothing in this ground. 

Ground 7

62. This ground was really a compendium of the others and with their failure so it must also fail.  But I might add this.  From the photographs taken in the appellant’s premises after his arrest it is patently obvious that he had his premises, although a residential flat, set up as a dentist’s studio.  It was suggested that, as he was a registered dentist in the Philippines, he had his equipment with him in Hong Kong, though one may wonder why that was so if he was prohibited from working in Hong Kong.

63. Although the defence case at trial was that these items were stored away it is plain that though many items were in drawers and on shelves they were not in “storage” and were set up and were available for immediate use.  It is very difficult to imagine any reason for the appellant’s flat to be equipped as it was other than for the purpose of him practising dentistry.  I am perfectly satisfied that the conviction of the appellant was not unsafe or unsatisfactory.

Additional ground of appeal

64. During argument I allowed further submissions as to whether, even accepting the evidence of PW1 and PW2, the appellant had practised dentistry as defined by section 2(2) of the Dentists Registration Ordinance.

65. That section is as follows :

“(2)    A person shall be deemed to practise dentistry within the meaning of this Ordinance, who, for the sake of gain or otherwise, holds himself out, whether directly or by implication, as practising or being prepared to practise dentistry, or treats or attempts to treat or professes to treat, cure, relieve or prevent lesions or pain of the human teeth or jaws; or performs or attempts to perform any operation thereon, or inserts or attempts to insert any artificial teeth or appliances for the restoration, regulation or improvement of the teeth or accessory structures.”

66. It can be seen that there are four categories of activity which are deemed to be the practice of dentistry :

(1) holding oneself out as practising or being prepared to practise dentistry;

(2) treating, attempting or professing to treat, etc., lesions or pain of teeth or jaws;

(3) performing or attempting to perform an operation on teeth or jaws; and

(4) inserting or attempting to insert artificial teeth or appliances for the regulation or improvement of teeth or associated structures.

67. Mr Tibbo’s argument proceeds in this way : if PW1’s evidence was accepted, as it was by the magistrate, then PW1 simply told the appellant that he had “a problem” with his teeth.  That being so the appellant had done nothing more than attempt to examine PW1’s teeth for the purpose of locating that problem.  Such an act is not within one of the categories of activity specified in (1) to (4) above. 

68. In Chan Hor Chuen v. R (1960) HKLR 257 Blair-Kerr J said :

“    Sub-section 2(2) does not interfere in any way with the ordinary meaning of the expression ‘practise dentistry’, but it does deem certain specific activities to amount to ‘practising dentistry’ for the purposes of the Ordinance, …”

69. I agree with those comments.  It seems to me that the definition in section 2(2) is not intended to be an exclusive or exhaustive definition of what amounts to the practice of dentistry, but is rather the specification of certain acts which are deemed to amount to the practice of dentistry.  Accordingly the prosecution would be entitled to establish, outside of the terms of section 2(2), that a defendant had practised dentistry. 

70. In Chan Hor Chuen Blair-Kerr J however additionally went on to say this :

“    …What is prohibited by ss. 3(1) and 27 is illegal ‘practice’, not an illegal ‘act’.  From the very nature of things, ‘practice’ signifies a state of affairs extending over a period rather than occurring at some given moment of time; and, if the Crown allege that the illegal ‘practice’ continued over a period, and the premises were observed for several days, during which time evidence was obtained, the cumulative effect of which might well be sufficient to prove such a practice, although any single act of the defendant during those days, if taken by itself, might be insufficient to do so, …”

and cited Apothecaries Company v. Jones (1893) IQB 26 per Hawkins J where he had said :

“    I do not wish it to be understood that in cases arising under the Act…, the fact that an uncertified person on two separate days prescribed and made up medicine for different persons would necessarily justify a conviction for a separate offence on each day, for it is not difficult to imagine cases in which acts of prescribing and making up medicine on several closely following days might taken together afford abundant evidence of practising. …”

71. As against those comments is the judgment of De Basto J in R v. Law Hau Che, HCMA894/1989 where he said :

“    The second ground of appeal is That the word ‘practise’ in the relevant section connotes a habitual or continuous course of conduct.  I was referred to the definition of ‘practise’ in Strode’s Judicial Dictionary and to the case of Apothecaries Co v. Jones (1893) 1 Q.B. 89.  In that case the Defendant gave medical advice and supplied medicine to three different persons at different times on the same day.  He was charged for three offences and the single judge held that the words ‘act or practice as an apothecary’ were directed against a habitual or continuous course of conduct and the Defendant was not guilty of a separate offence in attending each of the three persons.  I do not think that case is authority for the proposition put forward by the Appellant but even if it were I would not have followed it.”

72. In my judgment the expressed view of De Basto J must be preferable to those expressed in Chan Hor Chuen or Apothecaries Company so far as those latter judgments may have suggested so far as this case is concerned that a single activity could not amount to the practice of dentistry.  An individual may well practise dentistry on a particular occasion.  That is envisaged by the definition itself deeming particular acts as the practice of dentistry.  The Shorter Oxford English Dictionary also defines “practise” as, inter alia, to “perform, do, carry out… act, operate”.  It seems to me that for the purposes of the present legislation “practise” need not be and was not intended to be restricted in its meaning to an habitual practice over time.

73. Accordingly it was sufficient for the prosecution to establish only that the appellant performed an activity which, whether by way of one of the provisions deemed to be the practice of dentistry by section 2(2) or independently of that subsection, amounted to the appellant practising dentistry, though as will be seen the terms of section 2(2) are sufficient to deem the appellant’s acts as the practising of dentistry.

74. I should say that the magistrate did not deal with the matters raised in argument before me in this regard for the simple reason that they were not relied on before him, and contented himself with finding :

“    … The appellant clearly was not a registered dentist in Hong Kong (although items seized suggest he was a registered dentist in the Phillipines).  Clearly here he did practice dentistry.  His actions as outlined by PW1-2 clearly falls squarely within the definition.  There is also the dentistry paraphernalia.  The irresistible inference is that he was not a registered dentist, who practised dentistry in Hong Kong.  There can be no other inference from the evidence as accepted by me beyond a reasonable doubt, other than guilt.  I found that charge proved.”

75. I think his conclusion was correct.  Section 2(2) includes as one of the specified acts amounting to the practising of dentistry, a circumstance where a defendant “holds himself out whether directly or by implication as practising or being prepared to practise dentistry”.

76. In the present case, if the evidence of PW1 and PW2 is accepted, the appellant attempted, having donned a face mask and a surgical glove, to examine the teeth of PW1 with a dental instrument.  He was unable to do so only because PW1 brought the proceedings to a halt. The appellant was obviously from his actions, including his having agreed a fee for his services, and from the arrangement of dental equipment in the premises, holding himself out at least by implication as practising or, at the very least, being prepared to practise dentistry.  As the magistrate remarked no other inference from those facts could be drawn.  This argument must also fail and the appeal is dismissed.