DR TSE KIT MING v. THE COLLEGE OF DENTAL SURGEONS OF HONG KONG

HCA 2856/2016

[2020] HKCFI 2453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2856 OF 2016

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J U D G M E N T

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A. INTRODUCTION

1.  The Plaintiff (“Dr Tse”) was convicted by the Dental Council of Hong Kong (“Dental Council”) of a plagiarism charge and his name was ordered to be removed from the General Register of Dentists for 2 months suspended for 2 years.

2.  Pursuant to an informal Agreed Mechanism, the Dental Council brought Dr Tse’s conviction to the attention of the Defendant (“College”). After the suspended sentence was spent and in exercise of its powers under Article 14 its Memorandum and Articles of Association (“Article 14”), the College sought representations from Dr Tse as to his conduct, asserting that it had good reason to form an opinion that Dr Tse’s conviction for the plagiarism charge was likely to be injurious to the interests of the College.

3.  Dr Tse took out this action for various declarations.  Put simply, Dr Tse’s case is that the Dental Council wrongly referred his conviction to the College under the Agreed Mechanism instead of to the Preliminary Investigation Committee (“the PIC”).  Article 14 was unlawful and should be declared null and void.  The College also unlawfully exercised its powers under Article 14 with a view to possible disciplinary action against him.

4.  The College describes the claim as frivolous or vexatious.  It claims that the Agreed Mechanism was just an informal arrangement with no statutory or legal effect.  The College meant to seek voluntary explanations from Dr Tse.  No disciplinary proceedings have yet been commenced by it against Dr Tse and this action was pre-mature.

B.  UNDISPUTED FACTS

5.  Dr Tse is a registered dentist and a registered specialist in oral and maxillofacial surgery.  To be such a specialist, he has to be and is a Fellow of the College.

6.  In about 2009, Dr Tse provided an article together with sets of photographs for publication in the October/November 2009 issue of an internal newsletter called “Pulse” (“Pulse Article”) of the Adventist Hospitals, where he worked as a part-time dentist.  Without his knowledge and consent, the Pulse Article was republished in the South China Morning Post on 16 November 2009 (“SCMP Article”).

7.  As a result of complaints, the Dental Council held an inquiry against Dr Tse and gave its decision on 19 March 2013, finding 2 charges of unprofessional conduct proved, abbreviated in the pleadings as “canvassing charge” arising out of the SCMP Article, and the “plagiarism charge” arising out of both the Pulse Article and the SCMP Article.

8.  The Court of Appeal overturned the conviction for the canvassing charge and part of the conviction for the plagiarism charge in respect of the SCMP Article.  The Court of Appeal also varied the sanction for the remainder of the plagiarism charge to an order for the removal of Dr Tse’s name from the General Register for a period of 2 months, but suspended for 2 years, subject to the condition that he shall not commit any further disciplinary offence within the suspension period (“the Suspended Removal Order”).

9.  Since the decision of the Dental Council dated 19 March 2013, Dr Tse has not committed any further disciplinary offence.  The suspension period came to an end on 18 March 2015.

10.  Notwithstanding that Dr Tse had been duly punished for the plagiarism charge, the College first invoked Article 14 on 16 October 2015 asking Dr Tse to explain his conduct regarding the plagiarism charge (“the First Letter”).

11.  Article 14 provides as follows:

“If any Member violates the Constitution of the College or if his conduct is such as is, in the opinion of the Council, likely to be injurious to the interests of the College and if the Member complained of shall fail to explain his conduct to the satisfaction of the Council they may declare that such Member shall cease to be a Member of the College and his name shall be removed from the register of Members. Such Member may however reapply for admission pursuant to these Articles or appeal against the removal to the Council whereupon the Council shall reconsider the matter and give its decision.”

12.  It transpired that there was an informal “Agreed Mechanism” between the College and the Dental Council, whereby the latter would directly report its disciplinary decisions and orders imposed on registered dentists to the College.  The Dental Council did report Dr Tse’s conviction to the College. It asked the College whether Dr Tse’s Fellowship status was affected to facilitate the Dental Council’s consideration of Dr Tse’s “specialist status”.  That prompted the First Letter.

13.  There is no dispute that:

(1)  The Dental Council is the only body in Hong Kong authorized by law to take disciplinary action against Dr Tse in respect of the plagiarism charge regarding the Pulse Article;

(2)  The College has neither jurisdiction nor power to take disciplinary action against Dr Tse in respect of the plagiarism charge regarding the Pulse Article, whether under Article 14 or otherwise; and

(3)  The Agreed Mechanism has no force of law. 

14.  Dr Tse invites the court to infer that the Agreed Mechanism amounted to a concerted effort to commence a thinly disguised and unlawful second round of disciplinary action against him, in respect of the same plagiarism charge.  Invocation of Article 14 was aimed at removal of Dr Tse’s name from the Specialist Register by the back door.

C.  ISSUES

15.  The agreed issues are as follows:

(1)  Since no disciplinary proceedings have been commenced by the College, was it pre-mature for Dr Tse to issue this writ?

(2)  Is Article14 ultra vires the provisions of Hong Kong Academy of Medicine Ordinance, Cap 419 (“HKAMO”), and is therefore null and void and of no legal effect?

(3)  Does Article 14 violate the rules of natural justice, and is therefore null and void and of no legal effect?

(4)  Does Article 14 violate Article 38 of the Basic Law, and is therefore null and void and of no legal effect?

(5)  Does Article 14 violate Article 35 of the Basic Law, and is therefore null and void and of no legal effect?

(6)  Further or in the alternative to (1) to (5) above, is the invocation of Article 14 by the College unlawful in public law terms?

16.  Before analyzing the issues, it is necessary to understand the legislation pre-2006 and the amendments to the Dental Registration Ordinance, Cap 156 that took effect in 2006 (“DRO”) which govern the powers of the Dental Council, the PIC, the Education and Accreditation Committee (“EAC”) and the College.  Of particular importance is (a) the legislative intent for the establishment of a statutory Specialist Register, governing the admission and removal of specialist dentists; (b) the powers and duties of the EAC and Dental Council in relation to the operation of the Specialist Register; and (c) the disciplinary procedure.

17.  There is also the need to look at HKAMO which governs the Hong Kong Academy of Medicine (“HKAM”) and the College.  From there, one can go to the Agreed Mechanism and legal principles governing the College’s exercise of powers under Article 14.

D.  THE LEGISLATIVE FRAMEWORK UNDER THE DRO

D1.  The Dental Council

18.  Powers have been vested solely and exclusively in the Dental Council under DRO as the sole statutory body to govern and regulate the dental profession as early as 1959.  That was long before the establishment of the HKAM as a statutory body in 1992 and the incorporation of the College in February 1993.

19.  The DRO was amended in 2006.  The DRO and the Dentists (Registration and Disciplinary Procedure) Regulations Cap 156A (“the Regulations”) provide a complete statutory code for regulating the registration, discipline and removal of dentists in Hong Kong.  The detailed procedure includes a channel for appeal.

D2.  The Specialist Register

20.  Before 2006, there was no statutory specialist register.  The Dental Council granted specialist titles to registered dentists through administrative arrangements.  The names of such specialist dentists were included in a non-statutory specialist list, which was made publicly available for general information.

21.  In 2005, the Dentists Registration (Amendment) Bill 2005 (“the Bill”) was presented to the Legislative Council.  The proposed amendments would incorporate into the DRO the requirements for accreditation of specialists, including procedures for making and handling applications, criteria for approval or refusal of applications, review mechanisms and so on, as well as procedures and criteria for the removal of specialists from the Specialist Register. The EAC was to be established to handle matters relating to the Specialist Register and specialists.

22.  Of particular relevance in this case is the criteria for the registration and removal of specialist dentists under sections 12B, 12E and 12F respectively of DRO.

23.  The legislative history of section 12B(3) shows the legislative intent of drawing a clear distinction between matters of conduct on the one hand (which concern all dentists), and matters of competence on the other (which concern only specialist dentists).

24.  In the Bill, the proposed section 12B(3)(b) provided that the Dental Council shall not approve an application for specialist registration unless, “the dentist is of good character”.  The Legislative Council Bills Committee queried the legislative intent of this proposed section: Report of the Bills Committee on the Bill dated 11 May 2006 (“RBC”), §13.

25.  The Government explained that the public would expect a higher standard of service when they sought dental treatment from a specialist dentist in his field of specialty.  Academic qualifications alone could not sufficiently determine whether a dentist was suitable for inclusion in the Specialist Register.  In the interest of public health, it was also necessary to consider other factors pertinent to the applicant’s competence and performance in relation to the concerned specialty.  See RBC, §14.

26.  However, the Dental Council expressed the view that the expected moral conduct should be the same for all dentists, regardless of whether they were included in the Specialist Register or not.  Therefore, the moral/conduct element should not be re-examined in an application for inclusion in the Specialist Register. See RBC, §15.

27.  In the light of the views of the Dental Council and the concerns of the Bills Committee, the government subsequently moved an amendment to section 12B(3)(b) to its current form.  The phrase “of good character” was reworded to “competent in the specialty” to reflect the legislative intent that the non-academic factors to be considered in vetting an application for inclusion in the Specialist Register were related to an applicant’s competence only, instead of his moral conduct.

28.  Thus, in the current version of section 12B(3) of DRO, academic requirements aside, competence in the specialty is the only criterion to be considered for a dentist’s inclusion in the Specialist Register.  By the same token, lack of competence (termed as “suitability issue”) is the only ground for removal from the Specialist Register under sections 2(6), 12E(1) and 12F of DRO.

29.  EAC is the Committee to consider (i) the applications for inclusion in the Specialist Register and make recommendations to the Dental Council as to whether the applicant satisfies the criteria for inclusion: section 12B(4) and (5) of DRO; or (ii) where a complaint is received, recommend to the Dental Council whether a dentist should be removed from the Specialist Register: section 12F(1)(c) of DRO.

D3.  Discipline procedure

30.  The DRO and the Regulations lay down a detailed procedure for disciplining dentists and specialist dentists.  By virtue of the provisions in section 12E of DRO, as well as regulations 13 and 13A(1) of the Regulations, all complaints would first of all be referred to the PIC, and the chairman of the PIC would have to ascertain whether the complaint involves a “conduct issue” or “suitability issue” or both.

31.  In this connection, section 18(2) of DRO defines “unprofessional conduct” as follows:

“any act or omission of a registered dentist which would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency.”

32.  On the other hand, section 2(6) of DRO defines a complaint or information about “suitability” as follows:

“For the purpose of this Ordinance, a complaint or information involves a suitability issue if the complaint or information concerns the question of whether the name of a registered dentist should be included in, or removed from, the Specialist Register.”

33.  If the complaint involves both a conduct issue as well as a suitability issue, then the conduct issue would have to be dealt with first under the Regulations by PIC and the Dental Council: section 12E(3) of DRO.  And as soon as practicable after the matter has been dealt with under the Regulations, the matter involving suitability shall be referred to the EAC to be dealt with in accordance with section 12F of DRO.  See section 13A(2) of the Regulations.

34.  Once seized of the matter, the EAC has power under sections 5C(d) and 12F(1)(c) of DRO to recommend to the Dental Council that the name of a specialist dentist be removed from the Specialist Register, or be so removed for such period or until the occurrence of such event as the EAC recommends.

35.  Removal from the General Register will have the automatic effect of removal from the Specialist Register: section 15A(1) of DRO.

36.  The EAC’s recommendation under section 12F is subject to a review procedure: section 12F(5) to (7) of DRO.

37.  Having regard to the recommendation made by the EAC, the outcome of any review under section 12F(6), and the dentists’ representations on the result of the review under section 12F(7), the Dental Council has power under section 15A(2) of DRO to remove the dentist from the Specialist Register.

38.  Section 23(1)(c) of DRO confers a right of appeal against removal from the Specialist Register to the Court of Appeal.  No removal shall be effected until after the appeal is finally determined: section 22(2A) of DRO.

E.  ROLE OF HKAM AND THE COLLEGE UNDER THE HKAMO

39.  The College is one of the 15 Academy Colleges, and the only dental College, under and recognized by the HKAM under section 6 of HKAMO.  Since the establishment of the statutory specialist registration system in 2006, the HKAM and the College have become part of that statutory system under the DRO and HKAMO.

40.  A dentist who applies for inclusion in the Specialist Register must fulfil, amongst others, a dual-fellowship requirement:

(1)  Under section 12B(3) of DRO, the dentist has to be a Fellow of the HKAM; and

(2)  Under section 3(3)(a) of HKAMO, before a dentist can become a Fellow of the HKAM, he has first to become a Fellow of the College and be recommended by the College to be admitted as a Fellow of the HKAM.

41.  Mr Maurice Chan, counsel for the College, submits that under section 3(3)(b) of HKAMO, one need not be a Fellow of the College to be a member of HKAM by being Honorary Fellow.  But, with respect, that channel of membership does not concern Dr Tse or section 12B(3) of DRO.

42.  Paragraph 7 of the Dental Council’s “Application for Specialist Registration Guidance Notes” states that the requisite qualifications for an applicant applying for inclusion in the Specialist Register in all the 8 dental specialties are that he must be an FHKAM (Dental Surgery) as well as a FCDSHK with one of the 8 dental specialties.

43.  In summary, a dentist who desires to become a specialist dentist has to join the College, undergo the training organized by it, as well as pass the examinations organized by the College before he can be admitted as a Fellow of the College.  He could then be recommended by the College to be admitted as a Fellow of the HKAM.

44.  After he is registered as a specialist dentist by the Dental Council, he has to attend the CPD courses organized by the College: section 12D of DRO.

45.  It is clear from section 6 of HKAMO, as well as Clause 3 (objects clause) of the Memorandum of Association of the College that the College is to play a supporting role to the HKAM in matters of dental education, training, research and accreditation.

46.  I have set out the legislative framework rather fully to illustrate one point: neither the HKAM nor the College has any role to play in the taking of disciplinary actions or imposition of disciplinary sanctions against dentists or specialist dentists under the statutory framework.  Nor is the Agreed Mechanism part of the statutory or disciplinary framework.

F.  THE AGREED MECHANISM

47.  Back in February 2015, when a dentist (Dr X, whose name this court has ordered to remain anonymous) applied to the Dental Council for specialist registration.  He had a previous disciplinary conviction.  The question was whether he should be included in the Specialist Register.  Different views were held.

48.  On 4 March 2015, the Dental Council asked HKAM whether there was any established arrangement or policy on consideration of change in the Fellowship status upon receipt of the Fellow’s report of disciplinary or conviction record, and the mechanism for report of such records, if any.

49.  HKAM considered its role in an application for specialist registration was to confirm, upon request by the Dental Council, the Fellowship status of the applicant (if he was an HKAM Fellow) and that he/she had fulfilled the continuing education requirements as determined by the HKAM for the specialty he applied for.  HKAM drew the Dental Council’s attention to the Bylaw 6.5 of HKAM under the heading of “Termination of Membership”, which provided that:

“The membership of the Academy of a person, whose name is on the General Register kept under the [MRO] (Cap 161) or the [DRO] (Cap 156), shall cease upon the removal of the name from the General Register in consequence of a disciplinary inquiry by the Medical Council of Hong Kong under the [MRO] or the Dental Council of Hong Kong under the [DRO].”

50.  Accordingly, only where a dentist was removed from the General Register as a result of a disciplinary inquiry would he cease to be a member of the HKAM.  HKAM declined the request of the Dental Council to set up an arrangement, whereby the HKAM would review the fellowship status of an applicant for specialist registration in the light of his or her disciplinary or conviction record.  See letters dated 4 March 2015 from the Dental Council and 5 March 2015 from HKAM.

51.  EAC, having sought legal advice, was convinced that the disciplinary record of Dr X did not affect his competence in the specialty and so EAC recommended to the Council to have Dr X’s name included in the Specialist Register.  See §28 of the minutes of the 152^nd Policy Meeting of the Dental Council (“Policy Meeting”) dated 16 February 2015 and §18 of the minutes of the 153^rd Policy Meeting dated 9 April 2015.

52.  Dr Lee Kin Man (PW1), the Chairman of the Dental Council, took a different view, ie that the disciplinary record of an applicant for specialist registration might affect his/her Fellowship status with the College and/or HKAM.  That in turn would have a bearing on the Dental Council’s consideration on his/her Specialist Register application: §32 of the minutes of the 152^nd Policy Meeting.

53.  Dr Lee knew that the EAC was the only sub-committee under the Dental Council to deal with the Specialist Register and other matters related to specialist registration and maintenance.  However, he claimed that, as the DRO was silent on the matter, the Dental Council would not be prohibited from referring their disciplinary orders to the College.

54.  Subsequent to the 153^rd Policy Meeting, on 20 April 2015, a protocol (ie the Agreed Mechanism) was set up by Dr Lee and Dr Chan Sai Kwing (“Dr Chan”, PW2), then Chairman of the College.  The College would inform the Dental Council of any change of status of their fellows so that the Dental Council could take the actions deemed appropriate. See §§24-26 of the minutes of the 153^rd Policy Meeting.

55.  The College submits that the “Agreed Mechanism” was merely an informal arrangement whereby the Dental Council brought to the notice of the College disciplinary convictions or orders of individual dentists; nothing more.

56.  I agree to the extent that the Agreed Mechanism, not being part of the statutory framework, facilitated informal communications between 2 bodies related to the dental profession.  As Dr Chan testified, there was no secret pathway between the Dental Council and the College, because everything (presumably meaning the decision on disciplining Dr Tse) was gazetted and published.  The Dental Council and the College could get all the papers without asking.

57.  What was problematic was the Dental Council’s intention to consider Dr Tse’s specialist status beyond the statutory framework and, with knowledge of that intention, the College’s step further to consider Dr Tse’s Fellowship.

58.  In my view, the views held by EAC and HKAM were correct in the light of the statutory framework.

G.  THE INVOCATION OF ARTICLE 14

59.  Six months after expiry of the Suspended Removal Order, on 10 September 2015, the Dental Council sent a letter to Dr Chan of the College, the material paragraphs of which were:

“In accordance with the agreed mechanism for the Dental Council of Hong Kong (“the Council”) to report disciplinary orders imposed on individual registered dentist to [the College], I would like to report in the following paragraph for your information such a disciplinary order.

…

Since Dr Tse’s name is included in the Specialist Register under the specialty of Oral and Maxillofacial Surgery, I should be grateful for your advice on whether the Fellowship status of Dr Tse is affected by the above disciplinary order to facilitate the Council’s consideration of Dr Tse’s Specialist status.” (underline added)

A copy of this letter was subsequently sent by the College to Dr Tse on 10 December 2015.

60.  After lengthy deliberation, the College opined that Dr Tse’s case might bring about disrepute to the College and thus agreed that a warning letter should be issued with reference to Article 14.

61.  Post-meeting, after circulation to members, a letter “with more gentle tone requesting written explanations from Dr Tse was finally furnished and it will be sent to the Hon Legal Advisor for his advice.”  See §7 of the minutes of the 232^nd meeting of the Council of the College held on 14 September 2015.  That letter was the First Letter.

62.  By a letter dated 18 April 2016, Dr Tse’s former solicitors asked the College:

“by asking Dr Tse to provide an explanation under Article 14 of the Memorandum and Articles of the College, whether you are considering disciplinary action against Dr Tse under Article 14.”

63.  By a letter dated 19 May 2016, the College answered:

“Thirdly, it is of course the unambiguous business of the College to consider what Dr Tse wants to say about his plagiarism conviction regarding his Pulse article, and to determine whether his explanations, if any, warrant his removal from the register of our fellows. What other purposes could the College be making such an enquiry for?”

64.  Thus, it was plain that the College has set in motion the machinery of Article 14 which might lead to removal of Dr Tse’s Fellowship with the College, and the Dental Council’s consideration of Dr Tse’s specialist status.

65.  On 22 December 2016, the College informed the Dental Council that the Gazette Notice had been deliberated and that Dr Tse has commenced legal proceedings against the College before its Council has come to any conclusion regarding his Fellowship status.  Thus, in the meantime, the issue would be put on hold until further notification.

66.  It is Dr Tse’s case that the plagiarism conviction was clearly a matter of conduct, and involved no question of his competence as a specialist.  After the completion of the inquiry by the Dental Council pursuant to regulation 13 of the Regulations, no reference was made by the PIC to the EAC under sections 12E(3)(b) and 12F of DRO.  He has been duly punished by the Suspended Removal Order. 

67.  In the circumstances, Dr Tse contends that the College’s invocation of Article 14 is unlawful as it constitutes an abuse of the contractual discretion in breach of what are known as the Braganza principles defined below.  It is unlawful because the invocation of Article 14 was not done in good faith, took into account irrelevant considerations, and was Wednesbury unreasonable. 

68.  I now turn to individual issues.

H.  LEGAL PRINCIPLES ON THE COURT’S POWERS TO INTERVENE IN THE COLLEGE’S DECISION

69.  As early as 1952, Denning LJ (as he then was) in Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329, at 343, drew a distinction between the court’s approach to clubs and domestic tribunals regulating trades and professions.  In respect of the latter, the courts may intervene to protect the right to work:

“The question in this case is: to what extent will the courts examine the decisions of domestic tribunals on points of law? This is a new question which is not to be solved by turning to the club cases. In the case of social clubs, the rules usually empower the committee to expel a member who, in their opinion, has been guilty of conduct detrimental to the club; and this is a matter of opinion and nothing else. The courts have no wish to sit on appeal from their decisions on such a matter any more than from the decisions of a family conference. They have nothing to do with social rights or social duties. On any expulsion they will see that there is fair play. They will see that the man has notice of the charge and a reasonable opportunity of being heard. They will see that the committee observe the procedure laid down by the rules; but they will not otherwise interfere …

It is very different with domestic tribunals which sit in judgment on the members of a trade or profession. They wield powers as great as, if not greater than, any exercised by the courts of law. They can deprive a man of his livelihood. They can ban him from the trade in which he has spent his life and which is the only trade he knows. They are usually empowered to do this for any breach of their rules, which, be it noted, are rules which they impose and which he has no real opportunity of accepting or rejecting. In theory their powers are based on contract. The man is supposed to have contracted to give them these great powers; but in practice he has no choice in the matter. If he is to engage in the trade, he has to submit to the rules promulgated by the committee. Is such a tribunal to be treated by these courts on the same footing as a social club? I say no. A man’s right to work is just as important to him as, if not more important, than his rights to property. These courts intervene every day to protect rights of property. They must also intervene to protect the right to work.

But the question still remains: to what extent will the courts intervene? They will, I think, always be prepared to examine the decision to see that the Tribunal has observed the law. This includes the correct interpretation of the rules.” (underline added)

70.  In Denning LJ’s view, the courts can also intervene (i) where the tribunal seeks to deprive a member of his livelihood or to injure him in it, unless the contract, on its true construction, gives the tribunal power to do so (at p344); or (ii) to decide the scope of the tribunal’s jurisdiction.  The remedy by declaration and injunction is available.

71.  Lee v Showmen’s Guild was applied to Hong Kong in Ho Man Fat (No.2) v The Royal Hong Kong Jockey Club [1976] HKLR 452, at 476 to 477, McMullin J.  There the court intervened to protect good reputation and where the question was whether there was any evidence to support a decision of an administrative or executive nature.  The disqualification and suspension order as regards membership and the horse were declared null and void.

72.  The leading authority in this area of the law is the decision of the United Kingdom Supreme Court in Braganza v BP Shipping Ltd & anor [2015] 1 WLR 1661, Baroness Hale at §§18-24, 27-30; §§102-104, Lord Neuberger. The principles may be summarized as follows.  Where a contract confers a power to exercise a discretion upon a party, it is not for the court to rewrite the parties’ bargain for them.  That party and not the court is the primary decision-maker.  The law implies a term that that party exercises the discretion in good faith, honestly, and not arbitrarily, capriciously, perversely, irrationally, or for an improper purpose.  The Wednesbury reasonableness test applies, ie the court will examine whether the decision-maker has refused to take into account relevant matters or has taken into account irrelevant matters.  Even where the right matters have been taken into account, the outcome must not be so unreasonable that no reasonable decision-maker could ever have come to it.  (“the Braganza principles”)

73.  At §18 of the Braganza case, Baroness Hale with whom the other 4 law lords agree, explains the reasons for the Braganza principles:

“Contractual terms in which one party to the contract is given the power to exercise a discretion, or to form an opinion as to relevant facts, are extremely common. It is not for the courts to rewrite the parties’ bargain for them, still less to substitute themselves for the contractually agreed decision-maker. Nevertheless, the party who is charged with making decisions which affect the rights of both parties to the contract has a clear conflict of interest. That conflict is heightened where there is a significant imbalance of power between the contracting parties as where there often will be in an employment contract. The courts have therefore sought to ensure that such contractual powers are not abused. They have done so by implying a term as to the manner in which such powers may be exercised, a term which may vary according to the terms of the contract and the context in which the decision-making power is given.”

74.  The Braganza principles have been applied in Hong Kong in the context of the exercise of the power to terminate insurance agency contracts: So Sheung Hin Ben v Chubb Life Insurance [2018] 5 HKC 47; FWD Life Insurance Co (Bermuda) Ltd v Poon Cindy [2019] 3 HKLRD 455, §§35-39.

I.  ISSUE 1: IS THIS ACTION PRE-MATURE?

75.  The College contends that this action is pre-mature because the College has not done anything yet to terminate his fellowship status.

76.  The answer to this contention can be found in the decision of the House of Lords in Pharmaceutical Society of Great Britain v Dickson [1970] AC 403.

77.  In that case, the Pharmaceutical Society was registered by statute as representing the profession of registered pharmacists.  It was concerned at the extension of the range of non-pharmaceutical goods sold in chemists’ shops and the effect which it might have on the quality and status of the profession, proposed a new rule for inclusion in the code of ethics and submitted it in the form of a motion to a specially convened meeting of members.  The effect of the motion was that, except with the approval of the council of the society, new pharmacies had to be situated in physically distinct premises and their trading activity had to be confined to the sale of pharmaceutical, professional and traditional goods.  Existing pharmacies, except with the approval of the council of the society, were not to extend their existing range of non-traditional goods.  At the meeting, which was attended by some 6,000 of the society’s 29,000 members, the motion was passed by a majority of 3,690.

78.  In this connection, one should note that the society was governed by a council with power to make by-laws in furtherance of the objects.  Its disciplinary body was an independent statutory committee which could inquire into charges of misconduct against a member and strike off the register a particular pharmacist or company premises.

79.  A member of the society, the retail director of Boots, commenced proceedings against the society even before the convention of the aforesaid special general meeting.  The society claimed that the action was pre-mature and that there was no justiciable issue.

80.  If the motion were to stand, it would become a rule of professional conduct. Although there was no immediate threat of statutory/disciplinary action, the House of Lords held that it was not pre-mature for the applicant to come to court. The applicant’s freedom of activity was challenged.  He should not be put to great expense in his trade and then wait for some indefinite time to suffer the embarrassment of being charged with professional misconduct. If the society had no right to impose the restriction or lay it down that non-compliance with such restriction would be misconduct, the applicant could come to court immediately to challenge the validity of the rule and seek a declaration or injunction as would make his position clear.

81.  Lord Upjohn explained the rationale at 433E-434B:

“Then, it was said that in any event the action was premature. The objecting member must wait, apparently, until the council think fit to bring him before the statutory committee, it may be years later, for it was said there was no immediate threat to do so. As a matter of common sense this is most unreasonable. Why should a trader be put into the position where he may expend large sums on expanding his trading activities in defiance of the code of ethics and then be compelled to wait until at some indefinite time in the future the council choose to bring him before the statutory committee for his alleged misconduct, and only then, possibly, he finds all his hard work and expenditure rendered useless. The law is full of examples to show that a person whose freedom of activity is challenged can in a proper case have the issue determined so that he knows where he stands.

Thus, a trader who is said to require some licence to trade may come to the court and ask for a declaration to the contrary and not wait until he is prosecuted: Rossi v. Edinburgh Corporation [1905] A.C. 21. This principle is not confined to trade. A person whose freedom of action is challenged can always come to the court to have his rights and position clarified, subject always, of course, to the right of the court in exercise of its judicial discretion to refuse relief in the circumstances of the case. In the judicial exercise of this discretion the court may declare the rights of the parties and by of way ancillary relief grant injunctions, and so on. …

In addition to this, it is quite clear that, as a member of the appellant society, the respondent is entitled to come to the court now and complain that the appellant society is proposing to go outside the expressed terms of the Charter and ask for an injunction to restrain it from doing so. See Jenkin v. Pharmaceutical Society of Great Britain [1921] 1 Ch. 392. I shall return to this aspect of the matter when considering the second issue. The quia timet cases relied on by the appellant society do not, with all respect to the argument, really touch on this point. In any event upon the pleadings, it seems to me quite clear on the admissions contained in paragraph 8 of the defence that the appellant society are now threatening and intending to carry out the July motion unless restrained by the court, and this alone justifies immediate action against them.” (emphasis added)

See also Lord Reid, at 420 D-E, Lord Morris of Borth-Y-Gest, at 426D-F, Lord Wilberforce, at 437F and Lord Hodson at 429 F-H.

82.  In the present case, the removal of his Fellowship status with the College can directly cause Dr Tse to lose his status as a general and specialist dentist: see paragraph 40 above.  His professional status and livelihood are under threat.  He is facing the risk of being punished for the same conduct offence twice.

83.  Mr Maurice Chan seeks to distinguish Pharmaceutical Society v Dickson on the ground that the motion in that case had been passed in an EGM with the consequence that it would become a binding code of ethics to be enforced.  This case is not dealing with a rule that binds the College members but an informal administrative arrangement made on a social occasion between the Chairman of the Dental Council and the then President of the College. Between Dr Tse and the College, there was no decision made by the College; only a request for voluntary explanation.

84.  I am unable to agree.  The Agreed Mechanism did not have the force of law. The fact that Article 14 has remained in the Articles of Association for years was not a factor to distinguish Pharmaceutical Society v Dickson. The tone of the letter dated 19 May 2016 from the College did not show that the College expected a “voluntary” or “informal” explanation from Dr Tse.

85.  Applying the principles in Pharmaceutical Society v Dickson, I hold that this action is not pre-mature.  Dr Tse is entitled to come to court for a ruling as to proprietary of the College’s conduct and to leave his position without doubt.

J.  ISSUE 2: IS ARTICLE 14 ULTRA VIRES THE PROVISIONS OF HKAMO?

86.  Mr Tang, counsel for the Plaintiff, submits that by virtue of Section E above, Article 14 is ultra vires HKAMO, as HKAMO does not confer any power on HKAM or the College to admit, remove or impose disciplinary sanctions on registered dentists or specialist dentists.

87.  I consider Mr Tang as going too far.  Bylaw 6 of HKAM (November 2012) gives power and discretion to the HKAM Council to terminate a person’s membership where, amongst others, a person was found guilty of misconduct in a professional respect by the Medical Council; or has ceased to be a member of the College.  It deals with membership of HKAM but not that of the College.

88.  No doubt DRO, HKAMO and Bylaw 6 have, by necessary implication, abrogated a lot of powers of the College over its members.  However, Article 14 only talks about conduct injurious to the interests of the College, which would include its objects of education, research and accreditation.  The sanction under Article 14 is removal from the register of members, ie removal of someone’s Fellowship but not disciplinary sanctions of the kind contemplated by DRO. 

89.  I pause to add that, despite raising this issue, Mr Tang is not suggesting that the utility of Article 14 is limited to scenarios like the present and he has not asked for Article 14 to be struck down.  He concedes that if, for example, a member exhibits unruly behaviour whilst the College is holding its AGM, the College can of course invoke Article 14 to ask the member to explain his conduct to the satisfaction of the Council.  That may not necessarily involve disciplinary action under the statutory framework. 

90.  I can also think of a situation when a Fellow’s conduct is in question and he has not yet been registered as a dentist.  The College may still have power under Article 14 to remove his Fellowship. 

91.  I decline to declare Article 14 ultra vires the HKAMO.  The more pertinent issue is Issue 6.

K.  ISSUES 3-5: DOES ARTICLE 14 VIOLATE THE RULES OF NATURAL JUSTICE, ARTICLE 38 OR ARTICLE 35 OF THE BASIC LAW?

92.  Issues 3-5 can be considered together.  The College accepts that under Article 14, when exercising its power of removal from the register of Fellowship, its Council is at the same time (i) an interested party; (ii) an adjudicator; and (iii) a review body.

93.  Mr Tang contends that Article 14 breaches the first limb of natural justice (no man shall be a judge of his own cause) and the second limb (hear both sides).  There is no appeal mechanism for aggrieved members whose Fellowships are removed, thereby violating Article 35 of the Basis Law which guarantees the right of access to the courts.  It deprives Dr Tse of his rights guaranteed by the laws under Article 38 of the Basic Law.

94.  Articles of Association is a contract formed between members of the College.  As stated above, Article 14 may cover conduct which falls outside the statutory framework.  It is for the members to determine for themselves the procedure they want to adopt for certain investigation, although the College must observe the principles of natural justice and the members cannot by agreement oust the jurisdiction of the courts:  Lee v Showmen’s Guild, at 342, Denning LJ. 

95.  In any case, Article 14 does not violate the second limb of natural justice because it is contemplated that a member will have an opportunity to give an explanation.

96.  I decline to declare that Article 14 violates natural justice or is being in breach of Articles 38 and 35 of the Basic Law. Again, the more pertinent issue is Issue 6.

L.  ISSUE 6: IS THE INVOCATION OF ARTICLE 14 BY THE COLLEGE UNLAWFUL IN PUBLIC LAW TERMS?

97.  Dr Lee had no idea whether EAC had been consulted before the letter of the Dental Council dated 10 September 2015 was sent to the College, although he knew that EAC was the entity that should deal with issues on specialist registration.

98.  The First Letter was not prompted by the Gazette Notice but the Dental Council’s enquiry under the Agreed Mechanism.  The College knew the Dental Council’s intended consideration of Dr Tse’s specialist status and that the Dental Council expected to be informed of any change in Fellowship status of Dr Tse.  The College did act under Article 14 to ask for an explanation from Dr Tse plainly to consider if his Fellowship should change.

99.  The College’s invocation of Article 14 was in breach of the Brangaza principles and Wednesbury unreasonable as the College failed to take into account the following:

(1)  The statutory framework under the DRO is the only lawful and proper means to consider removal of Dr Tse from the Specialist Register.  Had it been justified, the Dental Council should have referred Dr Tse’s case to PIC.

(2)  DRO does not empower removal of a person’s specialist status for conduct reason (which was the case of Dr Tse), as opposed to suitability reason.

(3)  Dr Tse has already been punished for his conduct offence.  But for the suspension order, his name would have been removed from the General Registrar, and automatically from the Specialist Register. 

(4)  The College’s request for Dr Tse to explain his conduct may, as threatened by the College, cause the College to terminate his Fellowship.  Such termination would have the domino effect of termination of his Fellowship with the HKAM, which may lead to the removal of his status under the Specialist Register (because he could no longer fulfil the requirement under section 12B(3) of DRO). 

(5)  The College was exposing him to the risk of double jeopardy and causing him to lose his specialist status through the backdoor.

100.  Paragraph 14 above asserts a “concerted action” between the Dental Council and the College as if there was a conspiracy.  I do not think that was the intention of the 2 bodies.  That assertion was not put to Dr Lee and Dr Chan during cross-examination anyway and I decline to make a finding of concerted action.  In any case, whether the 2 bodies were acting in concert or coincidentally shared the same stance did not matter. Opening up the issue of Fellowship of Dr Tse and his specialist status was not appropriate in the circumstances of this case.

101.  I answer Issue 6 in the affirmative with a slight adjustment in wording in accordance with the opening sentence in paragraph 99.

M.  CONCLUSION

102.  Dr Tse seeks various reliefs.  The first 2 are not objected to by the College.  I make the following declarations that:

(1)  The Dental Council is the only body in Hong Kong authorized by law to take disciplinary action against the Plaintiff in respect of the plagiarism charge regarding the Pulse Article;

(2)  The Defendant has neither jurisdiction nor power to take disciplinary action against the Plaintiff in respect of the plagiarism charge regarding the Pulse Article, whether under Article 14 of the Defendant’s M&A or otherwise;

(3)  The purported exercise of powers under Article 14 of the Defendant’s M&A by the Defendant was Wednesbury unreasonable; and

(4)  The court declines to make declarations to the effect that Article 14 is ultra vires the HKAMO, breaches the rules of natural justice or violates Articles 38 and 35 of the Basic Law.

N.  COSTS

103.  Costs should follow the event and be to the Plaintiff.

104.  This case turned much on documents and legal arguments.  The oral evidence was of limited use.  The evidence of Dr Lee and Dr Chan was largely reflected in the documents.  The Agreed Mechanism had no legal basis and that did not require the oral evidence of the 2 dentists to establish. The College had raised their objection when Dr Tse sought to subpoena those 2 dentists.  Although the College produced the documents in the possession of the witnesses at a very late stage, it turned out that the redacted version already disclosed, together with the relevant statutes, were sufficient to dispose of this case.  Uncovering of the redacted parts did not carry Dr Tse’s case further.  After all, what view the Dental Council members took of the legislation or how they applied legislative provisions to Dr X would not bind the Court.

105.  In paragraph 22 of the Decision dated 8 August 2019, this Court stated that if it turned out at the end of the day that Dr Tse really wasted the court’s time on examining these 2 dentists, that could be reflected in an order for costs.  I find that there was such wastage.

106.  I make an order nisi that costs for this trial shall be limited to 2 days’ hearing, with certificate for 2 counsel, which shall be summarily assessed on the papers without attendance.  The Plaintiff shall file and serve his statement of costs by 5 October 2020. The Defendant shall file and serve its grounds in opposition by 12 October 2020.

107.  I thank counsel for their assistance.