YOUNG YAU YAU, CECILIA v. DENTAL COUNCIL OF HONG KONG

CACV 72/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 72 OF 2010

(ON APPEAL FROM HCAL NO. 86 OF 2009)

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Hon Hartmann JA:

Introduction

1.  In September 2008, pursuant to s. 18 of the Dentists Registration Ordinance, Cap. 156, the Dental Council conducted an inquiry into allegations of professional misconduct by the respondent, Dr Young, doing so through a Committee of Inquiry.  A Legal Adviser was present at the inquiry hearing, his presence being required by Reg. 35 of the Dentists (Registration and Disciplinary Procedure) Regulations, Cap. 156A.

2.  When the Committee of Inquiry retired to consider its judgment, the Legal Adviser accompanied it.  Although, on the evidence, he did not render any advice to the Committee to assist it in its deliberations, once those deliberations had been finalised he did prepare a draft judgment.  He did so in order to put the findings and reasoning of the Committee into coherent form.  The draft was then considered by the Committee members, being duly edited where necessary and agreed upon so that, to use the words of the Committee Chairman, “the final judgment was exclusively our own collective product.”

3.  In its judgment, the Committee found that the allegations of unprofessional conduct had been substantiated and imposed what it considered to be an appropriate disciplinary punishment.

4.  Dr Young instituted judicial review proceedings, seeking orders of certiorari to quash the decision finding her guilty of unprofessional conduct and imposing a punishment.  The basis of her application was the assertion that the Legal Adviser, in acting in the manner described above, adopted a procedure that was materially unfair and gave the appearance of bias.

5.  In a judgment dated 2 March 2010, Reyes J found that the fact that the Legal Adviser had accompanied the Committee when it retired to consider its judgment and that he had prepared a draft judgment for consideration by the Committee did constitute a procedure which “breached natural justice and gave the appearance of bias”.  He therefore quashed the findings, remitting the matter to a differently constituted Committee of Inquiry for reconsideration.

6.  In coming to his decision, Reyes J found that the facts of the case before him were “identical” to the facts considered by the Court of Appeal in its judgment in Chan Hei Ling v. Medical Council of Hong Kong [2009] 4 HKLRD 174, a judgment which at the time was subject to appeal to the Court of Final Appeal.  Indeed, he found that the Legal Adviser in the case before him had done precisely that which the Court of Appeal said should not have been done.  In light of those findings, he was therefore bound by the Court of Appeal’s judgment.

7.  The Dental Council appealed the judgment of Reyes J.  It did so on the basis that, subsequent to the handing down of that judgment, the Court of Final Appeal, in its judgment in Medical Council of Hong Kong v Chan Hei Ling [2010] 3 HKLRD 667, had set aside the findings of the Court of Appeal, restoring the findings of professional misconduct made by the Medical Council in that case.  That being the case, if the conduct of the Legal Adviser to the Medical Council in Chan Hei Ling was confirmed to be permissible, it followed – the facts being identical – that the conduct of the Legal Adviser to the Dental Council was confirmed to be permissible too.

8.  When the appeal came before this Court, Mr Dykes SC, leading counsel for Dr Young, conceded that the conduct of the Legal Adviser to the Dental Council in retiring with the Committee of Inquiry and in preparing a draft judgment for the Committee could no longer of itself be held to constitute conduct that was unlawful.  However, in new grounds of appeal contained in a notice of application to amend Dr Young’s Form 86A, he sought to argue that the Legal Adviser’s conduct in certain other respects had vitiated the lawfulness of the proceedings.

9.  These new grounds were to the effect that, during the course of the hearing itself, the Legal Adviser had acted so as to make himself the de facto Chairman, for all intents and purposes thereby making himself a member of the Committee of Inquiry.  This, in law, he was not permitted to do.  In the result, his conduct rendered the Committee less than a competent, independent and impartial tribunal as required by Article 10 of the Hong Kong Bill of Rights Ordinance, Cap. 383, the article reading (in part):

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

10.  It was effectively conceded by Mr Dykes that, if permission to rely on the new grounds contained in the notice to amend, was refused then the appeal by the Dental Council must be allowed.  On that basis, we dealt first with his application to amend the Form 86A.

11.  Having heard submissions, we refused leave.  We allowed the appeal, restoring the findings of professional misconduct made by the Dental Council and the disciplinary punishment imposed.  We further ordered that costs should follow the event, being awarded to the Council.  We said that we would give our reasons later and do so now.

The proposed new grounds of appeal

12.  Mr Dykes advanced four proposed new grounds which may be described as follows.  Although the Dentists (Registration and Disciplinary Procedure) Regulations permit only a Committee of Inquiry to question witnesses and other persons present at a hearing before it, confining the Legal Adviser to the specific task of giving legal advice and permitting him to act as a secretary when the Council’s judgment is drafted, the Legal Adviser in this case acted outside of his powers by:

(a) acting as if he was a member of the Committee of Inquiry, taking the initiative to question witnesses and legal representatives without reference to the Committee;

(b) disposing of legal issues that arose during the course of the hearing in a final manner without reference to the Committee,

(c) in the circumstances of this case, by accompanying the Committee when it retired to deliberate rather than waiting until asked to be present when voting took place or when invited to give legal advice;

(d) again in the circumstances of this case, by reason of his conduct described in sub-paragraphs (a) to (c), by playing any role at all in the drafting of the Committee’s judgment.

The nature and strength of the new grounds

13.  In my judgment, when viewed in the round, the proposed new grounds were in the true sense ‘new’ in that they had not arisen naturally from what had been argued before.  While Mr Dykes attempted with his normal skill to create some nexus between what had been advanced previously and what was now sought to be advanced, I was satisfied that in truth the new grounds were essentially independent of the old.

14.  In this regard, it is to be noted that, although Dr Young was legally represented at the hearing, no complaint was made during the course of the hearing itself to the effect that the Legal Adviser was, by his actions, making himself the de facto Chairman.  It is also to be noted that, although Dr Young’s solicitor filed an affidavit in support of her application for judicial review, complaining of the fact that each morning before the commencement of the hearing the Legal Adviser would spend time with the members of the Committee, no complaint was made by him as to the Legal Adviser taking over the running of the hearing.

15.  In the result, nothing was raised during the course of the hearing itself nor was anything put before the Court of First Instance to suggest that the Legal Adviser had assumed the role of de facto Chairman of the Committee.

16.  Accordingly, to make good the proposed new grounds, it was necessary, by way of a highly detailed analysis of the transcript of the proceedings, to identify instances when, so it was argued, the Legal Adviser had impermissibly taken over the conduct of the proceedings.

17.  Fundamentally, therefore, the new grounds, if they were permitted to be argued, required the resolution of a considerable number of factual issues.  I say that they required the ‘resolution’ of such facts because Mr Ismail, counsel for the Dental Council, took issue with each and every cited instance of impermissible conduct on the part of the Legal Adviser.  They were without merit, he said.

18.  The purpose of the analysis of the transcript was of course to attempt to illustrate, by the combined weight of many interruptions and independent actions of the Legal Adviser, that he had persistently exceeded the limits of his regulatory powers.  But the fact remains that many of the instances cited were trivial in nature and manifestly intended by him to ensure no more than that the hearing was conducted in a manner that was fair and orderly.  As such, I found it difficult to see how, in the eyes of the informed bystander, they would undermine the standing of the Committee of Inquiry as a competent, independent and impartial tribunal.

19.  In a recent judgment of this Court in Ip Wing Kin v Medical Council of Hong Kong [2010] 5 HKC 5, Stone J commented:

“In appeals from the Council (or indeed from other disciplinary tribunals), for my part I deprecate an emergent trend towards microscopic analysis of the transcript of the proceedings with the aim of formulating a technical argument that the legal adviser has ‘crossed the line’ thereby rendering an otherwise perfectly sensible and well-run disciplinary proceeding as potentially susceptible to subsequent judicial interference.”

20.  I considered these comments to be particularly apt in the present case.  With respect, the analysis of the transcript was in many respects a sterile one.  To underscore the point, in the exercise of considering the many instances of asserted impermissible conduct on the part of the Legal Adviser, it did not occur to me at any time – on the face of what appeared in the transcript – that here was convincing evidence that the Legal Adviser, by his actions, had ousted the Chairman from his role.  My impression was to the contrary.

21.  By way of illustration, I cite two of the instances of asserted impermissible conduct.

22.  In the first example, objection was taken to the Legal Adviser’s interruption of the proceedings, acting without the Chairman first seeking his advice, when he enquired whether Dr Young, who was not present at some point during the hearing, was absent by choice or, if not, whether an adjournment was to be sought to accommodate her until she was able to attend.  On any assessment, that so-called interruption was intended to benefit Dr Young, to make sure that the proceedings were not continuing in her absence when she wished to be present.  Being legally qualified, the Legal Adviser would well have understood the importance of ensuring that Dr Young, the defendant, was able to be present if she wished to be.  Looking to the substance of what was said and done, I fail to see how an informed bystander would consider it to have been anything more than the Adviser, as a legally qualified officer to the Committee of Inquiry, acting in respect of a procedural or administrative issue to ensure the fairness of the proceedings.  This could not be seen as any attempt to assume the role of Chairman.

23.  By way of further example, objection was taken to the fact that, without first advising the Chairman and having the Chairman deal with the matter, the Legal Adviser verbally summarised the gestures of a witness so that there would be an accurate record on the transcript of what the witness was attempting to describe.  Again, manifestly, this was a sensible interruption, if it can be described as an interruption, in order to ensure – for the benefit of all parties – that there was a proper record of the proceedings.

24.  Perhaps, by way of counsel of perfection, the Legal Adviser may more prudently have acted so as to put the two instances referred to above through the mouth of the Chairman.  But judicial review is not concerned, in cases of this kind, with arid technicalities.

25.  Indeed, it was my impression, having considered the proposed grounds, that it was doubtful whether, if presented by way of an application for leave to apply for judicial review, they would be considered reasonably arguable.

The exercise of the court’s discretion

26.  In the judgment of this Court in Cathay Pacific Airways Flight Attendants Union v The Director-General of Civil Aviation [2007] 2 HKC 393, at 411, the Chief Judge, as he then was, confirmed that when new points are sought to be raised on appeal, not having been raised in the court below, it is for this Court to decide in its discretion whether or not to allow the new points to be argued.  In the exercise of that discretion, the Chief Judge gave certain guidelines.

27.  It was said that this Court may be more inclined to allow pure points of law to be raised rather than factual questions or questions of mixed law and fact.  The Chief Judge commented: “The time for going into facts is before the trial court.  It is not for the appeal courts to try and determine disputed facts.”  But, as I have said earlier, the proposed new grounds involved extensive issues of fact, issues that were contested, and had not earlier been raised.  It would therefore have fallen for this Court to conduct an extensive exercise to determine disputed facts, an exercise for which courts of appeal are not best suited.

28.  It was further said by the Chief Judge that this Court “will almost invariably expect an explanation to be given as to why new points raised on appeal (whether of fact or law) were not raised in the court below.”  As the Chief Judge emphasised, this is an important facet of the court’s discretion.  In the present case, the new grounds – and through them the new issues – were first raised by way of the application to amend the Form 86A more than two years after the Committee of Inquiry hearing.  Despite this, no explanation was forthcoming.  

29.  It was as if, recognising that the old grounds no longer presented an answer to the appeal of the Dental Council, a search had taken place in the hope of finding new grounds.  While such grounds were identified, as I have said earlier, they were grounds that had not been raised at any earlier time.  

30.  In the circumstances, I had no doubt that the general interests of justice required that the application to amend be refused.  That decision being made, it followed that the appeal of the Dental Council could not be resisted.

Hon Kwan JA:

31.  I agree with the Reasons for Judgment of Hartmann JA.

Hon Lam J:

32.  I agree and have nothing to add.