NG KIN WAI v. THE DENTAL COUNCIL OF HONG KONG

CACV 194/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 194 OF 2010

(ON APPEAL FROM THE ORDER OF THE DENTAL COUNCIL OF

HONG KONG MADE ON 5^TH AUGUST 2010)

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BETWEEN

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J U D G M E N T

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Hon Yuen JA:

1.  I agree with the judgment of Fok JA and the order he proposes.

Hon Fok JA:

2.  On 5 August 2010 the Dental Council of Hong Kong found the appellant guilty of unprofessional conduct.  The Dental Council ordered that the appellant should be reprimanded in respect of the offence and the order be published in the Gazette.

3.  The appellant, being aggrieved by the order made in respect of him by the Dental Council under s. 18 of the Dental Registration Ordinance, Cap. 156 (“the Ordinance”), appeals to this Court pursuant to s. 23 of the Ordinance.

The charge

4.  At the inquiry before the Dental Council, the charge against the appellant was:

“That he, being a registered dentist, in about October 2009, quoted on his visiting card the title of ‘Specialist in Community Dentistry「社區牙科醫學專科醫生」’ but his name was not included in the Specialist Register at the material time; and that in relation to the facts alleged he has been guilty of unprofessional conduct.”

The facts

5.  The appellant is a registered dentist.

6.  In October 2009, he used the title “Specialist in Community Dentistry” (in English) and “社區牙科醫學專科醫生” (in Chinese) on his name cards.

7.  It is a fact that the appellant is and was not included in any Specialist Register and so he was not entitled to be known as a specialist in any dental specialty.

8.  In this appeal, as in the inquiry before the Dental Council, the appellant admits that in or around October 2009, he did include in his name card “Specialist in Community Dentistry” when his name was not included in the Specialist Register.

9.  So far as the Specialist Register is concerned, the following facts are relevant.

10.  The statutory register of specialist dentists, called the Specialist Register, was established on 30 November 2006.  Since the establishment of the Specialist Register, only registered dentists whose names are included on the Specialist Register are entitled to be known as a specialist in any particular dental specialty.

11.  Prior to the establishment of the Specialist Register, some registered dentists were given approval by the Dental Council to use specialist titles under an administrative scheme.  However, such specialist titles under the administrative scheme were specific titles such as “Orthodontist” or “Endodontist” and the word “Specialist” was not used in any of the titles approved under that scheme.

12.  When the Specialist Register was established in November 2006, the administrative scheme came to an end.  Registered dentists must now apply in accordance with s. 12B of the Ordinance in order to be included in the Specialist Register.  The procedure for application for inclusion in the Specialist Register is governed by s. 12B of the Ordinance.  By s. 12B(1), a registered dentist who wishes to have his name included in the Specialist Register under a specialty may apply to the Dental Council, in such form and manner as may be specified by the Council, for the inclusion.  By s. 12B(2), the Dental Council may not approve such an application unless the dentist satisfies certain conditions.  Those conditions are set out in s. 12B(3) as being that:

“(a) the dentist—

(i) has been—

(A) awarded a Fellowship of the Academy of Medicine; and

(B) certified by the Academy that he has completed the postgraduate dental training, and has satisfied the continuing education requirements, determined by the Academy for the specialty; or

(ii) has been certified by the Academy of Medicine that—

(A) he has achieved a professional standard equivalent to that recognized by the Academy for the award of its fellowship; and

(B) he has completed the postgraduate dental training, and has satisfied the continuing education requirements, comparable to those determined by the Academy for the specialty; and

(b) the dentist is competent in the specialty.”

By s. 12B(4), upon receipt of an application, the Dental Council must refer the application to a body known as the Education and Accreditation Committee (“EAC”) for its recommendation as to whether the dentist satisfies the conditions in sub-s. (3).

13.  Before the application is approved and the dentist’s name is actually included in the Specialist Register, the applicant is not entitled to use the specialist title “Specialist in [the relevant dental speciality]”.

14.  By s. 25A of the Ordinance:

“A person commits an offence if—

(a) his name is not included in the Specialist Register; and

(b) he wilfully or falsely—

(i) pretends that his name is included in the Specialist Register; or

(ii) takes or uses any name, title, addition or description implying (whether in itself or in the circumstances in which it is used) that—

(A) he is a specialist dentist; or

(B) his name is included in the Specialist Register.”

A person is liable, on summary conviction of the offence under s. 25A(1), to a fine at level 6 and to imprisonment for a maximum of 3 years: s. 25A(3).

15.  On 12 June 2006, the Dental Council sent a letter to dental practitioners registered in Hong Kong informing them that the Dentists Registration (Amendment) Ordinance 2006 had been gazetted and that the major amendments involved the establishment of the new EAC and the setting up of a Specialist Register to include names of those registered dentists who were qualified in various specialist fields of dentistry.  The letter advised that, after the establishment of the new Specialist Register, a registered dentist with the requisite qualifications in any of the existing seven specialist fields of dentistry could apply to have his name included in the new Specialist Register by completing the relevant application form.

16.  By a subsequent letter to dental practitioners, dated 19 October 2006, the Dental Council took the opportunity to report on the latest developments of a number of issues concerning the dental profession in Hong Kong.  One of those issues was the Specialist Register, in respect of which the letter stated (amongst other things):

“The Dentist Registration (Amendment) Ordinance 2006, which aims to establish a statutory Specialist Register under the Dentists Registration Ordinance for registered dentists qualified in various specialist fields of dentistry, will come into operation on 30 November 2006.  Under the Amendment Ordinance, a new statutory Education and Accreditation Committee (“the EAC”) will be set up under the Dental Council to handle matters relating to the Specialist Register and specialist registration, as well as other issues relating to the training and qualifications in dentistry.

…

Any registered dentist who wishes to have his name included in the Specialist Register is advised to follow the procedures stipulated in the Guidance Notes on Application for Specialist Registration which will be made available in the Dental Council’s website by end November 2006 .”

The appellant’s case before the Dental Council

17.  The appellant’s defence at the inquiry before the Dental Council was that he was not aware of the need to apply for inclusion in the Specialist Register and mistakenly believed that he was entitled to use the specialist title because he had applied to add the qualification of “FCDSHK (Community Dentistry)” to his certificate of registration.[1]

18.  The appellant invited the Dental Council to draw the inference that he simply made an honest mistake by referring to himself as a Specialist in Community Dentistry on his name card in October 2009.

19.  On 21 May 2007, the appellant was elected a Fellow of the College of Dental Surgeons of Hong Kong in the Specialty of Community Dentistry.

20.  On 11 January 2008, the appellant submitted a letter addressed to the Chairman of the Dental Council of Hong Kong, the material parts of which read as follows:

“Re: Additional of [sic] Qualification

Grateful if you could add the following title to my registration:-

FCDSHK (Community Dentistry)”

It would appear that the original Diploma in Community Dentistry issued by the College of Dental Surgeons of Hong Kong was submitted with that letter since there is a copy of that diploma on which a chop with the words “Original Seen” has been applied.

21.  On 25 January 2008, the appellant wrote a further letter addressed to the Secretary of the Dental Council, the material parts of which read as follows:

“Re: Dentist Registration

Please add my extra qualification FCD[S]HK (Community Dentistry) to my certificate ($585) and I would like to add a branch registration address as follow: - ($675)

2/F Supreme Comm. Bdg

368 King’s Rd. HK”

22.  By letter dated 11 April 2008, the Dental Council wrote to the appellant to confirm that the qualification “FCDSHK 1993” shown in his entry on the General Register of Dentists had been changed to “FCDSHK (Community Dentistry) 2007” and in addition the practising addresses that appeared against his entry on the General Register of Dentists had been updated to include the branch registration address at 368 King’s Road.  The letter enclosed a duplicate Certificate of Registration, certified copies of that certificate and an official receipt for the fee paid.

23.  On 2 March 2009, the College of Dental Surgeons of Hong Kong wrote to the appellant to confirm that he was appointed a member of the Specialty Board in Community Dentistry 2009 with a term of office from 1 January 2009 to 31 December 2009.  The appointment was on the recommendation of the Chairman of the Specialty Board in Community Dentistry.  On 9 February 2010, the Dental Council renewed that appointment for a further period of 12 months with effect from 1 January 2010.

24.  On 2 September 2009, the College of Dental Surgeons of Hong Kong wrote to the appellant to appoint him as an Examiner for 2009 FCDSHK (Intermediate) Examination in Community Dentistry.

25.  All this, contended the appellant, led him to believe that his name was included in the Specialist Register.  His legal representative[2] submitted to the Dental Council that the appellant’s belief in this regard was honest and, furthermore, that it was based on reasonable grounds.

26.  The appellant supported this contention by reference to an email from Professor Edward C.M. Lo, the Chairman of the Specialty Board in Community Dentistry of the College of Dental Surgeons of Hong Kong, dated 3 February 2010.  In that email, Professor Lo noted from the Dental Council website that only two members of the Specialty Board were listed in the Specialist Register of Community Dentistry.  He encouraged other members of the Specialty Board to apply to be included in the Specialist Register and concluded:

“Please note that replacing your FCDSHK qualification with the new one FCDSHK (Community Dentistry) in your certificate of registration will not automatically place your name in the specialist register. You need to submit an application to effect that.”

The Decision of the Dental Council

27.  In its Decision, the Dental Council noted that the facts that in October 2009 the appellant used cards bearing the title specialist and that his name was not included in the Specialist Register at the material time were admitted.  The Dental Council also noted the defence was that the appellant was not aware of the need to apply for inclusion in the Specialist Register and that he mistakenly believed he was entitled to use the specialist title.

28.  The appellant did not give evidence at the inquiry and the Dental Council noted that the significance of this was that there was no direct evidence of what he had in mind when he made his application to add the extra qualification FCDSHK (Community Dentistry) to his Certificate of Registration in January 2008.  This was therefore a matter of inference for the Dental Council.

29.  At paragraphs 9 to 11 of its Decision, the Dental Council said:

“9. It is the professional duty of every registered dentist to familiarize with the legislation governing the practice of dentistry and to comply with the statutory requirements. This is made clear in the pre-amble of the Code of Professional Discipline. One of the most important legislation in relation to the practice of dentistry is the Dentists Registration Ordinance. Breach of the statutory requirements in some cases will constitute criminal offences.

10. On the other hand, breach of the statutory requirements is also a breach of a dentist’s professional duty, as a registered dentist cannot practise in violation of the legal requirements. It is no defence for a dentist to say that because he is ignorant of the law therefore it is excusable for him to engage in the unlawful conduct. That proposition involves failure of the dentist’s professional duty on two fronts: (i) failure to acquaint with the relevant legislation, and (ii) failure to ensure that he practises within the legal framework and not to engage in unlawful conduct. That cannot be right. Given the Council’s duty to regulate the professional conduct of registered dentists and to protect the public, we cannot condone unlawful conduct of registered dentists as acceptable conduct.

11. We are satisfied that the [appellant’s] conduct in using a title which he was not entitled to use is conduct which would be reasonably regarded as disgraceful and dishonourable by registered dentists of good repute and competency.  That alone is sufficient for us to find him guilty of unprofessional conduct as charged, and we so find.”

30.  The Dental Council went on to address the defence of honest mistake raised by the appellant.  At paragraphs 12 to 16 of its Decision, the Dental Council said:

“12. For the sake of completeness, we wish to say that we do not accept that the [appellant] made an honest mistake believing that he was entitled to use the specialist title. Firstly, his application in January 2008 was specifically stated as adding an extra qualification to his certificate. As he was not included in the Specialist Register, the only certificate that he had was the certificate of registration certifying that he was included in the General Register. Judging by all common sense, he could not have believed that by such application his name would automatically be included in the Specialist Register. Even if assuming that he honestly had such a belief, there was no reasonable ground for such belief.

13. Secondly, before the date of the present disciplinary offence, the [appellant] was a member of the Specialty Board in Community Dentistry and also an Examiner for the 2009 FCDSHK (Intermediate) Examination in Community Dentistry. In those positions he was expected to be familiar with the relevant legislation governing the practice of dentistry, in particular practice as a specialist dentist. If the [appellant] were unaware of the relevant legal requirement, it would have been an insult to the profession, in particular the specialty of Community Dentistry, for a person who is completely ignorant of such obvious legal requirement on the use of the specialist title to be on the specialty board and the examiner of the specialty. We do not accept that he was unaware of the legal requirement.

14. Thirdly, the specialist title quoted by the [appellant] is in a form which was not in existence before the establishment of the Specialist Register. Judging from the fact that the specialist title he quoted was exactly in the recognized form after establishment of the Specialist Register instead of the previous form under the Council’s administrative scheme which ended in November 2006, he must have been aware of the legislative change. It would be surprising that he selectively recognized the establishment of the Specialist Register but not the associated provisions for inclusion in the Specialist Register.

15. Fourthly, members of the dental profession have been reminded by the Council in June 2006 and October 2006 of the need to apply for inclusion in the Specialist Register. There was no reason for the [appellant] to turn a blind eye to such reminders.

16. We do not think that an honest mistake of the legal requirement is an acceptable defence where the dentist’s conduct involves failure of his professional duty to acquaint and comply with the legal requirement.  Even if it is an acceptable defence, the honest mistake must have been based on reasonable grounds.  In the present case, we find that the [appellant] was not acting under an honest mistake.  Even if he were acting under an honest mistake, there were no reasonable grounds for such mistake.”

The appellant’s case on appeal

31.  The argument of the appellant on this appeal is that the Dental Council’s decision that he was guilty of the charge of unprofessional conduct was fundamentally flawed because the Dental Council did not make any decision as to his mental state before reaching its conclusion (in paragraph 11 of its Decision) that he was guilty.

32.  Mr Gerard McCoy SC, leading counsel for the appellant, submitted that there were two stages to the charge, namely, first, whether the facts in the charge were established, and, secondly, whether the appellant was guilty of the offence charged on the facts proved.

33.  In this regard, reliance was placed on regulation 28(3) of the Dentists (Registration and Disciplinary Procedure) Regulations, Cap. 156A (“the Regulations”) (being the regulations made under s. 29(1C)(d)(v) of the Ordinance) which provides:

“(3) If the Council decides not to postpone judgment, the Council shall consider and determine whether the facts alleged in any charge before the Council have been proved to its satisfaction and whether the defendant is guilty of the offence charged.”

34.  As to the first stage, Mr McCoy accepted that the facts were admitted, namely that the appellant had used name cards describing him as a specialist at a time when his name was not included in the relevant Specialist Register.  However, it was Mr McCoy’s submission that, at the second stage, it fell to the Dental Council to determine how and why that had happened.  To do so, he submitted, it was relevant and necessary for the Dental Council to reach conclusions on his mental state since the offence of unprofessional conduct was not a strict liability offence.  It was only when it was established why the appellant had done what he did that the Dental Council could determine if he was guilty of unprofessional conduct.

35.  Mr McCoy’s short point was that there was a duty on the part of the Dental Council to determine the issues raised by the parties and, unless those issues were determined, the inquiry was not a “due inquiry” as that term is defined in s. 2 of the Ordinance, namely:

“an inquiry by the Council conducted substantially in accordance with the procedure provided by regulations made under section 29(1C)(d)(v)”.

(The reference in the above definition to s. 29(1C)(d)(v) of the Ordinance is a reference to the power granted to the Dental Council to make regulations providing for the procedure to be followed in relation to enquiries held by it under the Ordinance.)

36.  The necessity for a due inquiry, as defined, is because it is only after such an inquiry that the Dental Council may be satisfied that a registered dentist has been guilty of unprofessional conduct so that it may then exercise its discretion to make an order against him.  By s. 18(1) of the Ordinance, it is provided that:

“If, after due inquiry into any case referred to it by the Preliminary Investigation Committee in accordance with regulations made under section 29, the Council is satisfied that any registered dentist- (Amended 12 of 1968 s. 4)

…

(b) has been guilty of unprofessional conduct;

…

the Council may, in its discretion-

…

(iii) order the registered dentist to be reprimanded;

…

and may, in any case, make such order as the Council thinks fit with regard to the payment of the costs of the Secretary, a complainant, a counsel or solicitor present at the inquiry and the registered dentist or any one or more of them, and any costs awarded may be recovered summarily as a civil debt in accordance with the Magistrates Ordinance (Cap 227).”

37.  As regards paragraphs 12 to 16, Mr McCoy submitted that the Dental Council was in fundamental error in holding that an honest belief was no defence if there were no reasonable grounds for such belief.  He relied on R v Bernhard [1938] 2 KB 264 at 271 and R v Skivington [1968] 1 QB 166 for the proposition that the defence of honest mistake may be unfounded in law or in fact.

Discussion

38.  Distilled to its essential point, the issue raised by this appeal is whether the Dental Council was required, in determining whether the appellant was guilty of the charge of unprofessional conduct, to make findings as to his mental state at the time he committed the acts forming the basis of the charge.

39.  In my view, there was no such obligation on the part of the Dental Council in this case.

40.  The charge against the appellant was one of unprofessional conduct.  It was not a charge that included, as an element of the offence, a particular mental element.  Although mere negligence does not equate to unprofessional conduct[3], depending on the circumstances, unprofessional conduct may occur, as Mr McCoy candidly accepted in the course of his submissions, even when a dentist has acted with an honest belief that he was entitled to act as he did.  Whether the conduct is unprofessional is left to the Dental Council to determine, it being the relevant professional body given the task of determining whether that conduct falls within the definition of “unprofessional conduct” in s. 18(2) of the Ordinance, namely:

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

41.  Unprofessional conduct must therefore be contrasted with the offence, under s. 25A of the Ordinance, of falsely pretending to be or taking or using the name or title of a specialist.  I have set out the provisions of s. 25A(1) above.  As that sub-section makes clear, the mental element of that offence requires the dentist to have acted willfully or falsely.

42.  Here, the appellant was not charged under that section of the Ordinance.  Instead, the appellant was charged with unprofessional conduct which, as I have indicated above, does not include any particular mental state as an element of the offence.

43.  Thus, in the present case, it was open to the Dental Council, in my opinion, once the facts on which the charge of unprofessional conduct were admitted, to proceed to determine whether, on those facts, the appellant was guilty of unprofessional conduct regardless of whether or not he honestly believed he was not obliged to apply for his name to be included in the Specialist Register before using the specialist title.

44.  And this they did in paragraphs 9 to 11 of the Decision, which I have set out above.

45.  It was plainly open to the Dental Council to take the view that a dentist should have familiarised himself with the relevant legislation concerning professional registration and the use of titles.  The legislation has restricted the use of the title specialist to those whose names are included on the Specialist Register.  Professional titles are important and members of the public are likely to rely on the expertise implied by those titles in choosing a dentist and submitting themselves to treatment by that dentist.  Here, regardless of whether the appellant held the honest belief asserted, it was a matter for the Dental Council to decide if his admitted failure to understand and comply with the registration requirements amounted to unprofessional conduct.  As the Dental Council stated, in the first sentence of paragraph 16 of the Decision:

“We do not think that an honest mistake of the legal requirement is an acceptable defence where the dentist’s conduct involves failure of his professional duty to acquaint and comply with the legal requirement.”

46.  The obligation of the Dental Council under regulation 28(3) of the Regulations is only to determine those issues raised by the parties that are relevant to the inquiry before it.  Here, the mental state of the appellant when he used his name card describing himself as a specialist was not material to the question of whether that conduct was unprofessional.

47.  So far as Mr McCoy’s complaints about paragraphs 12 to 16 of the Decision are concerned, here too I am against him.

48.  The charge being one of unprofessional conduct, and not one of wilfully or falsely pretending to be or using the title of specialist, there was no requirement on the part of the Dental Council to determine, on the question of guilt, whether to accept the appellant’s claim to have acted under an honest mistake.  This is reflected in the first sentence of paragraph 16 of the Decision, to which I have already referred.

49.  However, as the Dental Council noted, it addressed this question for “the sake of completeness” and rejected the appellant’s claim that he acted under an honest belief since there were no reasonable grounds for that belief.  I have set out above the reasoning of the Dental Council in this regard and, for my part, I can see no proper basis on which to fault that reasoning.  The cases of R v Bernhard (supra.) and R v Skivington (supra.) were concerned with the specific defence of a claim of right as a defence to larceny and are distinguishable on the basis that a necessary ingredient of the offence was an intent to commit larceny.  Here, by contrast, no specific intent was required to be proved for the charge of unprofessional conduct to be established.

50.  Mr McCoy submitted that the Dental Council’s approach was inconsistent in that on sentencing, despite rejecting the assertion that the appellant acted under an honest mistake in paragraphs 12 to 16 of the Decision, it gave him “credit for [his] honest admission of the facts” (paragraph 19 of the Decision) and gave him the “benefit of [the] doubt” (paragraph 21 of the Decision).

51.  I do not accept this discloses any inconsistency.

52.  In paragraph 19 of the Decision, the Dental Council was simply reflecting the fact that the appellant had admitted the underlying facts that he used the name card with the title specialist at a time when his name was not included in the Specialist Register. Giving credit for that does not imply any requirement to believe his assertion of having made an honest mistake.

53.  The benefit of the doubt in paragraph 21 of the Decision was not the benefit of the doubt as to whether he held the honest belief asserted but rather was as to whether “he may not appreciate the importance of such legal requirement” to be registered in the Specialist Register before using the title specialist.  And as the Dental Council noted, future offenders would not be given the same benefit since their decision would serve to warn them of the importance of complying with the legal requirement.

54.  Although the appellant’s skeleton submissions contained submissions suggesting the Dental Council had erred in respect of the burden and standard of proof, these were not pursued by Mr McCoy in his oral submissions and I am satisfied that there is no substance in these points.

Conclusion

55.  For these reasons, I would dismiss the appeal with costs to the Dental Council.

Hon Chung J:

56.  I agree.