HENK TIDEMAN v. THE DENTAL COUNCIL OF HONG KONG

HCAL 85/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 85 OF 1999

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J U D G M E N T

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1. The Applicant in this matter is by professional training a dentist. As a young man, he received his training in the Netherlands, qualifying at the University of Utrecht in 1967. Thereafter he pursued further studies in the Netherlands and enjoyed a career in that country both as a practising dentist and as an academic.

2. In or about 1988, having spent several years in Australia, the Applicant came to Hong Kong to pursue his academic career. Seemingly, however, it was only in December 1996 that he resolved to seek registration as a dentist to enable him to practice without restraint in the Territory. He therefore wrote to the Dental Council, a body constituted in terms of the Dentists Registration Ordinance, Chapter 156, ('the Ordinance') to seek confirmation that he was duly qualified by reason of his training and professional accomplishments to be registered.

3. Protracted correspondence then ensued with the Dental Council which was not concluded until August 1998. Initially, the Council sought details of the Applicant's training and qualifications, clearly implying that it would consider his application on its merits. Later, however, it informed the Applicant that it would not, as a matter of policy, entertain the application. Put succinctly, the Council advised the Applicant that it now had a policy of requiring all persons trained outside of Hong Kong to pass a 'universal licensing examination' before they could be eligible for registration. The letter of the Council dated 3rd August 1998 intimated that it was in its opinion, only through this examination system that 'the standard and competence of individuals rather than the reputations of the institutions can be objectively assessed, thus maintaining a uniformity of standards'.

4. At all times material to his application to the Dental Council, the Applicant has been a professor of dentistry at the University of Hong Kong where inter alia he has been head of the Department of Oral and Maxillofacial Surgery. He has been a member of the Board of Governors of the Prince Philip Dental Hospital and, by way of deep irony, a member of the Dental Examination Board and indeed the Chief Examiner of that board. It is not disputed that he has had a distinguished academic record and has contributed to the literature of his chosen science.

5. Being aggrieved by the refusal of the Dental Council to entertain his application in the manner presented by him, the Applicant has sought by way of judicial review to challenge that decision.

6. At the outset it should be said that Mr. Coleman, who appeared on behalf of the Dental Council, has emphasised that the decision of the Council was one of policy, a policy clearly contemplated in the Ordinance. The decision was not therefore to be taken as a rejection of the Applicant personally.

7. Both counsel who appeared in this matter agreed that the central issue to be resolved was a 'crisp point of statutory interpretation' and it is upon this basis that it is necessary to consider the provisions of the Ordinance.

8. Section 3 of the Ordinance makes it a criminal offence to practise dentistry in Hong Kong unless duly registered. To be registered, however, a person must be qualified. In this regard, the relevant portions of section 8 of the Ordinance read:

Only a person who -

(a) has passed the Licensing Examination and has complied with the conditions, if any, imposed by the Council under section 4A(2);

(b) has successfully completed or passed an education programme, course of study or examination, as the case may be, approved under section 4A(4); or

(c) ...

is qualified to be registered under this Ordinance.

9. Section 4A of the Ordinance reads in its entirety as follows:

Council to set Licensing Examination

(1) The Council shall set an examination, called the Licensing Examination, the passing of which qualifies a person to be registered under section 8.

(2) The Council may impose such conditions as it thinks fit, being conditions which are relevant to the assessment or improvement of a person's professional knowledge in dentistry, which a person must comply with before the Council allows him to sit the Licensing Examination or any part thereof.

(3) The Council may prohibit a person from sitting the Licensing Examination if the person has sat any one part of the Licensing Examination 5 consecutive times and has failed each time.

(4) Where the Council is of the opinion that -

(a) the successful completion of any dental education programme or course of study provided by a university or other institution, in Hong Kong or elsewhere; or

(b) the passing of any examination in dentistry set by a licensing body in a place outside Hong Kong responsible for licensing of dentists in that place,

shows the achievement of a standard not lower than that achieved by the passing of the Licensing Examination, the Council may approve such programme, course of study or examination for the purpose of this section.

10. The Applicant wished to be registered on the basis that in terms of section 8(b) of the Ordinance he had successfully completed an examination in dentistry approved under section 4A(4); in particular under subsection (b) which spoke of examinations set by licensing bodies outside of Hong Kong. That meant, of course, that the Dental Council had, first, to exercise its discretion in terms of section 4A(4) to approve the examination in dentistry taken by the Applicant in 1967 at the University of Utrecht. If that approval was granted, it would be an approval 'for the purpose of' the section; that is, formal recognition that the passing of the examination set by Utrecht (at least at the time the Applicant studied there) showed the achievement of a standard not lower than that achieved by the Council's own licensing examination. As a result, the successful passing of the same examination or course of study at Utrecht would exempt not only the Applicant but any other person seeking registration from sitting and passing the Council's own licensing examination.

11. It is, of course, fundamental to the Applicant's case that, having submitted details of the course of study undertaken by him in the Netherlands and the examinations passed, the Dental Council was then under a duty to consider whether to approve them for the purposes of section 4A(4). Mr. Dykes, who appeared for the Applicant, argued that this duty to give fair consideration exists because a person in the position of the Applicant may have a right to be registered and without fair consideration that right would be frustrated. In summary, he has argued that the Council's decision, as a matter of policy, not to entertain the application made to it by the Applicant was unlawful because the Council has interpreted section 4A(4) as conferring a discretion whether to entertain such applications where no such discretion exists.

12. Mr. Coleman, however, has argued that to suggest a duty on the part of the Dental Council misconstrues the intention of the legislation which is to define a uniform scheme for registration and also misconstrues the wording of section 4A.

13. Sections 4A and 8 of the Ordinance only came into being in terms of amendments contained in the Medical and Related Professionals (Registration) (Miscellaneous Amendments) Ordinance, 1995. To understand the 'scheme' of this amending legislation, Mr. Coleman has argued that it must be contrasted with the pre-existing registration provisions.

14. Prior to the 1995 amendments, section 8 of the Ordinance identified those persons who were qualified to be registered. That section read:

(1) Subject to the provisions of this Ordinance, the following persons and no others shall be qualified to be registered under this Ordinance -

(a) any person who holds a degree in dentistry of the University of Hong Kong;

(b) any person who holds a degree, diploma or other document which is -

(i) issued by an examining body in the United Kingdom or Commonwealth or the Republic of Ireland; and

(ii) recognized by the General Dental Council of the United Kingdom as qualifying the holder to be registered in the Dentists Register of the United Kingdom;

(ba) any person who holds a degree, diploma or other document which is -

(i) issued by any examining body; and

(ii) recognized by the Council as qualifying the holder to be registered under this Ordinance;

(c) any person who shall by reason of his academic qualification, professional experience and skill, satisfy the Council that he is a fit person to be registered under this Ordinance:

Provided that every person applying for registration under this paragraph shall furnish such evidence of good character as shall satisfy the Council;

(d) any person who was at any time registered under the repealed Ordinance.

(2) Notwithstanding anything contained in subsection (1), the Council may require any applicant for registration to pass such examinations as it may determine.

15. In terms of subsection (1)(c) of that section, provided the Applicant had been able to satisfy the Dental Council that he, as an individual, by reason of his academic qualifications, skill and experience, was fit to be registered and was of good character, he would have been entitled to be registered. It was Mr. Coleman's submission, however, that the scheme effected by the 1995 amendments has brought about a very different result, one that does not place on the Dental Council the responsibility of assessing individual qualifications, skills and experience but rationalises the manner in which all applicants who have been trained outside of Hong Kong are to be treated; namely, by placing upon the Dental Council one duty only; that is, a duty to set licensing examinations which, if successfully completed, will render the applicant qualified to be registered. The other powers given to the Council in terms of section 4A are purely discretionary, said by Mr. Coleman, and are manifestly collateral powers that the Council may or may not exercise as it deems fit in order to give effect to the 'scheme'.

16. I confess that I find force in Mr. Coleman's submissions. Clearly, in my view, the setting up of a universal licensing examination was the centre of the legislative 'scheme' brought into effect by the 1995 amendments. At the second reading of the amending bill (on 16th November 1994) the Secretary for Health And Welfare, who moved that reading, said of the proposed sections 4A and 8:

The first proposed change concerns the recognition of overseas qualifications for registration of dental practitioners. Under the existing Dentists Registration Ordinance, holders of United Kingdom, Irish or Commonwealth diplomas are automatically entitled to register as dental practitioners in Hong Kong. This is discriminatory and contravenes the provisions of the General Agreement on Trade in Services. The Ordinance therefore needs to make provisions for the use of a universal licensing examination for the registration of dental practitioners in Hong Kong, irrespective of where the practitioner received his or her training in dentistry. [my emphasis]

17. In my judgment, Mr. Coleman's contentions are supported by a plain reading of section 4A. I note that section 4A(1) clearly imposes a duty on the Dental Council to set licensing examinations. That subsection reads:

(1) The Council shall set an examination, called the Licensing Examination, the passing of which qualifies a person to be registered under section 8. [my emphasis]

18. Thereafter, however, the section is couched in discretionary terms. In this regard, subsection (2) reads:

(2) The Council may impose such conditions as it thinks fit, being conditions which are relevant to the assessment or improvement of a person's professional knowledge in dentistry, which a person must comply with before the Council allows him to sit the Licensing Examination or any part thereof. [my emphasis]

19. In my view, it cannot be suggested that the Council has any duty to impose conditions. It does, however, have the power vested in it to do so if in its unfettered discretion (but acting fairly and reasonably) it considers it necessary to do so.

20. Similarly, in my view, subsection (3) also does no more than vest the Council with a power which it may exercise in its unfettered discretion provided always the discretion is exercised fairly and reasonably. Subsection (3) reads:

(3) The Council may prohibit a person from sitting the Licensing Examination if the person has sat any one part of the Licensing Examination 5 consecutive times and has failed each time. [my emphasis]

21. Subsections (2) and (3), in my opinion, are there to enable the Council to exercise its discretion to ensure that persons registered to practise in Hong Kong are of the required standard. Those discretionary powers clearly support and are ancillary to the single duty; namely, to set licensing examinations.

22. I believe subsection (4) must be read in the same way, the more so when context helps to define meaning. Subsection (4) reads:

(4) Where the Council is of the opinion that -

(a) the successful completion of any dental education programme or course of study provided by a university or other institution, in Hong Kong or elsewhere; or

(b) the passing of any examination in dentistry set by a licensing body in a place outside Hong Kong responsible for licensing of dentists in that place,

shows the achievement of a standard not lower than that achieved by the passing of the Licensing Examination, the Council may approve such programme, course of study or examination for the purpose of this section. [my emphasis]

23. I am of the opinion that this subsection does no more than give to the Dental Council a discretionary power to approve courses of study or examinations set by academic institutions or other licensing bodies if the Council is satisfied that they show the achievement of a standard not lower than that achieved by passing its own universal licensing examination. There are patently sensible reasons behind the granting of this discretionary power. For example, I am informed that the Council has (to date) only approved one course a study in terms of the subsection: that provided by the Hong Kong University School of Dentistry. But in this regard it is logical to assume that there has been liaison between the Dental Council and the only local institution to provide dentistry studies to ensure a mutually acceptable level of competence on the part of graduating students. Why then, if that has been achieved, submit graduates to a further mirror examination? The approval of the local university examinations is a rational, collateral decision that supports the legislative scheme without in any way undermining it.

24. However, in my view, that is far removed from the imposition of a duty on the Council to give full and fair consideration not to the merits of an individual dentist trained overseas, which is no longer permitted by the Ordinance, but to the merits of the examinations (and thereby the courses of study) set by overseas institutions. For it is effectively now institutions which are to be approved in terms of the amended Ordinance not individuals. If it was the duty of the Council to consider the merits of each and every institution and the studies set by it in respect of each and every application received that would, in my opinion, place an onerous burden on the Council, one which I am satisfied was never intended by the legislature and which is not to be derived from a plain reading of section 4A.

25. Mr. Dykes has argued that if there was no duty placed on the Dental Council to at least consider applications made to it under subsection (4) then the legislative intention that overseas dentists who had achieved the required professional standard should be registered would be subverted. I disagree. In my view, the intention of the legislation was that the Council had a duty to set a universal licensing examination so that overseas dentists who had achieved the required professional standard would be able to demonstrate that fact by passing the examination. The legislature was not thereby subverting the ability of overseas dentists to practice in Hong Kong, it was simply concentrating the test for registration into the form of an examination and, at the same time, giving to the Dental Council the discretion, if it so desired, to approve local and overseas courses of study as being the equivalent of the universal licensing examination.

26. Despite the discretionary language employed in subsection (4), Mr. Dykes has submitted that a duty nevertheless exists in terms of which the Dental Council must at least consider the merits of applications made to it in terms of that subsection. In this regard he has referred me to Julius v. Bishop of Oxford (1880) S App Cas 214, more particularly to the speech of Lord Penzance at 231:

In all these instances the Courts decided that the power conferred was one which was intended by the Legislature to be exercised; and that although the statute in terms had only conferred a power, the circumstances were such as to create a duty.

In other words, the conclusion, arrived at by the Courts in these cases was this - that regard being had to the subject-matter - to the position and character of the person empowered - to the general objects of the statute - and, above all, to the position and rights of the person, or class of persons, for whose benefit the power was conferred, the exercise of any discretion by the person empowered could not have been intended.

27. Mr. Dykes has also brought to my attention the speech of Lord Blackburn at 241-243:

But there are cases in which the authority or power given is not to do a judicial act, and yet there is a duty on the donee to exercise the power if it appears to be given to the donee for the purpose of making good a right, and he is called upon by those who have that right to exercise the power for their benefit.

28. I do not accept, however, that section 4A, read as a whole, gives a right to an overseas dentist to call upon the Dental Council to consider in full and fair fashion the nature and quality of his foreign qualifications and thereby formally approve the course of study and examinations which gave rise to such qualifications. The right conferred an overseas dentists by section 4A is to require the Dental Council at reasonable times to set a licensing examination so that they may demonstrate that they have a achieved the level of professionalism required to practise in the Territory.

29. Lord Penzance in his speech supra spoke of the need to consider the subject matter of the legislation, its general objects and to the rights of the persons for whose benefit the power was conferred. I am of the firm view that the power to approve both local and overseas courses was conferred for the benefit of the Dental Council in its work of constituting a rational scheme of registration, it was not conferred for the benefit of overseas dentists who always have the route open to them of sitting the licensing examination.

30. In the circumstances, I am satisfied that the Dental Council was entitled lawfully in terms of the Ordinance to adopt a policy that it would not (at this time) undertake the onerous task of assessing overseas courses of study and examinations but would rather require dentists trained overseas to pass the licensing examination, a simple method of revealing merit that did not differentiate between institutions and was to that end an equitable process.

31. I readily accept that the Applicant is a dentist of most impressive achievement but that, in my view, does not alter the principle set down in the legislation. Mr. Coleman has said that it would not be a matter of great difficulty to arrange the setting of a licensing examination and its marking in a way that did not bring about a conflict of interest despite the Applicant's position on the examining board. I agree. There is therefore no handicap preventing the Applicant seeking registration in the manner prescribed in the Ordinance and adhered to by the Council.

32. In the circumstances, despite the personal sympathy that I have for the Applicant's predicament, his challenge by way of judicial review must fail.

33. This brings me to the matter of costs. Again I have sympathy for the Applicant. After long correspondence it appears that the Dental Council, to employ an old adage, changed horses in mid-stream. I can understand the frustration and the degree of confusion that engendered. But, as I have said, it was lawful for the Council to adopt the policy it did and I do not see that the Applicant's early difficulties with the Council reflect directly on the merits of his litigation. I must, therefore award costs to the Council but in case there are matters I have not considered I will make that an order nisi.

34. My orders, therefore, are that the application be dismissed and that there be an order nisi for costs in favour of the Respondent, to be taxed if not agreed.