HKSAR v. CHAN WONG AND ANOTHER

HCMA 314/2022

[2024] HKCFI 814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 314 OF 2022

(ON APPEAL FROM TMCC 1368 OF 2021)

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BETWEEN

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J U D G M E N T

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1.  The first and second appellants (A1 and A2) appeal against their convictions on 19 July 2022 by the magistrate Ms Debbie Ng (“the magistrate”). I shall refer to A1 and A2 by their trial designations namely D1 and D2 respectively.

2.  D1 was convicted of seven counts of practising dentistry within Hong Kong whilst not being a registered dentist (Charges 1 to 7), contrary to section 3(1)(a) of the Dentists Registration Ordinance (Cap. 156). D1 was sentenced to pay a fine of $60,000 for charge 1 and to serve a total of 12 months imprisonment for charge 2 to 7.

3.  D2 was convicted of two counts of aiding and abetting D1 in practising dentistry within Hong Kong whilst not being a registered dentist (Charges 8 and 9). D2 was sentenced to pay a fine of $60,000 for Charge 8 and charge 9 respectively making a total fine of $120,000.

4.  The offence dates of D1 and D2 are as listed below :-

Charges	Dates	Defendant(s)
1	27 April 2017 (Thursday)	D1
2 / 8	31 May 2017 (Wednesday)	D1 and D2
3 / 9	7 June 2017 (Wednesday)	D1 and D2
4	8 June 2017 (Thursday)	D1
5	13 June 2017 (Tuesday)	D1
6	25 June 2017 (Sunday)	D1
7	6 July 2017 (Thursday)	D1

Background

5.  D1 is a dental technician. He was and has never been registered as a dentist in Hong Kong. D2 was and is a registered dentist and a registered specialist in prosthodontics with the Dental Council of Hong Kong.

6.  At all material times, D1 was the sole shareholder of Kudos Implant Limited (“KIL”) which owned and operated a dental clinic (“the Clinic”) at Rooms 212 and 214 in Central Services Building, Nan Fang Industrial City in Tuen Mun. He also owned a Laboratory (“the Lab”). D2 was the sole director of KIL at all material times. D2 was and is the sole attending dental practitioner who saw patients at the Clinic every Monday and Wednesday afternoon during the relevant period. D1 split his income from the Clinic with D2 on a 50-50 basis.

7.  There was no dispute in this case that Ms Lee Ming-yuet (“PW1”) received dental treatment at the Clinic on 31 May 2017. On that day PW1 had a total of nine teeth removed (eight from her upper jaw and one from her lower jaw bone). After removal of her teeth, six dental implants (sometimes referred to as screws) were put into her upper jawbone.

8.  The six dental implants embedded into PW1’s jaw was ultimately to be fitted to a prosthesis which was made by D1 the dental technician. The prosthesis is a bridge which contained 14 artificial teeth. The fitting of the bridge to the implants was done by screwing it onto the six already embedded implants. The ultimate purpose was therefore to replace the original eight teeth extracted from PW1’s upper jaw with artificial teeth.

The prosecution case

9.  The prosecution called two witness PW1 and PW2 to testify at the trial. They were PW1 and her elder sister Ms Li Ming-chu (Sony) (“PW2”). The trial took 11 days[1] and took place some 4 years after the offences.

10.  The prosecution case was that PW1 received dental treatment between 27 April 2017 and 10 July 2017 at the clinic either from D1 or D2 or both on a particular day. At all material times, PW1 and PW2 believed D1 was a dentist.

11.  Sometime in April 2017, PW1 told her elder sister PW2 she had problems with her teeth. As PW2 had previously received good dental treatment from D1 on a number of previous occasions and had known him for over 20 years she referred PW1 to D1 for her dental problems. PW2 addressed D1 as John however in her circle of friends who knew D1 they all referred to him as “Dentist Chan.”

12.  On 27 April 2017, PW1 and PW2 went to the Clinic together. PW2 introduced PW1 to D1. At the Clinic D1 examined PW1’s teeth. He told PW1 that she had loose upper teeth that were useless. D1 informed PW1 and PW2 that eight dental implants were required at $30,000 for each implant and the total price would be $300,000. As PW2 believed that PW1 only had four loose teeth with problems PW2 asked D1 if PW1 could only have four dental implants. D1 told PW2 that PW1 should have dental implants for 8 teeth. Both PW1 and PW2 considered the cost expensive and needed time to consider the proposal. (Charge 1)

13.  After the dental examination on 27 April 2017, PW1 and PW2, D1 and his wife DW4 went for a meal together at the Gold Coast Clubhouse. During the meal they had discussions about the cost of the implants.

14.  On 21 May 2017, PW2 texted D1 on Whatsapp informing him that PW1 was complaining about her teeth. PW2 told D1 said she was in financial constraints and would assist PW1 to pay $30,000 first and suggested that she (PW2) would gradually repay the balance the following year. D1 responded he would help her.

15.  On 28 May 2017, D1 informed PW2 by Whatsapp that he had made an appointment with Dr Chung for PW1 on 31 May at 4 pm. PW2 told D1 that was she unable to attend with PW1 on that day.

16.  On 31 May 2017, PW1 went to the Clinic alone. She knew that she would have dental treatment for dental implants. D1 introduced PW1 to D2. It was the first time PW1 met D2. D2 extracted eight teeth from her upper jaw and one tooth from her lower jaw. Thereafter six implant fixtures were drilled into PW1’s upper jaw bone by D1 in the presence of D2. A dental impression with the implant fixtures were taken of her mouth. PW1 felt very painful and D1 prescribed some pain killers. Just before she left the clinic PW1 paid $30,000 cash to D1. D1 told D2 that the remaining sum would be paid next year by PW2. PW1 went to dinner with D1, D2 and DW4 but she did not eat anything. (Charges 2 and 8)

17.  A week later on 7 June 2017 (Wednesday), a bridge comprising 14 artificial teeth (the 1st set) was attempted to be affixed on PW1’s upper jaw. In the midst of the installation of the bridge by D2, DW3 a lady dentist Dr Deborah Chan arrived. D2 introduced DW3 to PW1 but did not tell PW1 why DW3 was there. PW1 heard the sentence “instant dental implantation after teeth extraction, teeth can be seen in 5 days.” After about 30 minutes DW3 left. PW1 had immense pain.

18.  The bridge to be properly and completely affixed to PW1’s upper jaw required 6 screws.

19.  After DW3 left D1 affixed four screws on to PW1’s upper jaw. D2 then tried to affix the remaining two screws but was unable to do so. D2 then put two pieces of cotton buds into her mouth in place of the two missing screws and asked PW1 to leave. (charges 3 and 9). D1 called PW1 later that evening and told her to return to the Clinic the following day.

20.  As requested by D1 the night before, PW1 went to the Clinic on 8 June 2017 (Thursday). D1 did some dental treatment in PW1’s mouth and eventually removed the bridge installed the day before from her mouth. D1 tried in vain to put the bridge back into PW1’s mouth. PW1 then left the clinic without a bridge on her upper jaw. D1 told PW1 that he would make another set of teeth for her when he returned to Hong Kong after he returned from his trip abroad. (Charge 4)

21.  On 13 June 2017 (Tuesday) D1 contacted PW1 and told her to go the clinic and D1 installed a 2nd bridge. (Charge 5).

22.  The following day on 14 June 2017 (Wednesday) after the effect of the local anesthetic had gone, PW1 sent messages and photos of herself to D1 in Whatsapp complaining that the teeth were too big and protruding and her appearance had changed. Upon D1’s request PW1 went to the clinic. At the clinic D2 shortened PW1’s upper teeth. D2 told her there was no problem and she just had to be accustomed to it.

23.  About a week later on 21 June 2017 (Wednesday), PW1 was in pain. She told D1 she could not speak clearly, her face was distorted and she could not eat. Upon D1’s request PW1 went to the Clinic. PW1 repeated her problems to D1 and D2. D2 told her that even construction of a building needed a firm foundation and told her she just needed to get used to it. D2 shortened her teeth again.

24.  On 25 June 2017 (Sunday) PW1 stated she was in pain. PW1 contacted D1 by Whatsapp and telephone complaining of repeated pain, she was unable to eat and had facial muscular spasm. Upon D1’s request PW1 went to the clinic. D1 gave PW1 a LA injection and D1 removed the bridge from her mouth. D1 told PW1 that he would make a new bridge with shorter teeth. PW1 left the clinic with no upper teeth. PW1 later sent a Whatsapp message to D1 saying “no pain, fine.” (Charge 6)

25.  On 27 June 2017, PW1 wrote a long message in Whatspp to D1 expressing her preference for implants and complained about her sufferings and how she wanted less than eight implants and D1 told her that she needed that number for a good foundation. PW1 also mentioned the meal with D1 and the cost reduction from $300,000 to $150,000.

26.  On 28 June 2017 PW1 sent D1 in Whatsapp photos of artificial teeth and mentioned that her daughter in law was a dental nurse and her daughter in law’s brother was a dentist.

27.  A day later on 29 June 2017 PW1 sent D1 in Whatsapp asking when she could start afresh. D1 responded he was modifying and would inform her after the modification.

28.  On 1 July 2017, a Saturday, D1 called PW1 to attend the clinic the next day Sunday between 5 and 6 pm. PW1 complained to D1 in Whatsapp message how could she meet others and eat without any teeth. D1 did not respond. On the same day, Saturday, PW2 sent a Whatsapp message to D1 complaining about the problems PW1 was encountering. PW2 complained to D1 the first set of denture did not fit and could not be put in even after forcing it in. PW1 could not sleep all night the next morning D1 removed it. PW2 complained the 2^nd set was worse, crooked, large and protruding, she asked D1 how he would handle then. D1 responded he had already done it thrice, he tried his best to help PW1 and had worked until 3 am. D1 hoped PW2 would come with PW1 the next day to take a look at the shape and give some comments. PW2 replied expressing her disappointment.

29.  On 2 July 2017 (Sunday), D1 sent PW1 a Whatsapp message asking PW1 to come at 11 am or after PW1 woke up. At 1547 PW1 sent D1 a Whatsapp that she had arrived. At the clinic PW1 told him how her life was affected and her problems. D1 told PW1 that he would make another set of bridge for her. D1 arranged to meet PW1 on 6 July.

30.  On 6 July 2017 (Thursday) upon D1’s request PW1 attended the clinic. D1 installed a third bridge into PW1’s mouth. D1 asked her to return on 10 July 2017. After the local anesthetic had gone PW1 was in pain and said she found the 3^rd bridge was very ugly. (Charge 7)

31.  On 10 July 2017 (Monday) PW1 attended the clinic. PW1 told D2 her problems with her upper bridge and began crying. D2 told PW1 that everything was fine. D2 told PW1 that D1 did very well and he had many students. PW1 then left as she was under the impression that D2 was implying that she was imagining her problems. PW1 had no further contacts with D1 or D2 after 10 July 2017.

32.  On 11 July 2017, PW1 wrote a long Whatsapp message to D1 telling him that PW2 just wanted her to be happy by paying for her dental treatment but it resulted in a change of her appearance pain and numerous problems. D1 did not respond.

33.  Sometime in July 2017 PW1 came across D1 on the footbridge and D1 offered to refund $30,000 to her and told her to see another dentist. PW1 refused the offer of the refund.

34.  On or before 3 August 2017 PW1’s daughter in law informed PW1 that she could not find D1’s Chinese name on the register of dentists. On 3 August 2017, PW1 then sent a Whatsapp to D1 asking for his Chinese name. D1did not reply.

35.  PW1 reported the matter to the police on 7 August 2017 and on 9 August 2017. On 28 August 2017, D1 and D2 were arrested and were eventually charged with the above offences.

36.  It was the prosecution case that three sets of bridges had been installed in PW1’s mouth, that is on the 7, 16 June and 6 July 2017. These three ill-fitting bridges caused PW1 great pain and distress. She was frustrated by the treatment she received from D1 and D2. PW1 subsequently sought treatment from other dentists. The first bridge affixed on the 7 June was removed on 8 June, the second bridge affixed on 16 June was removed on 25 June.

37.  The prosecution case was that the dental implants and the bridges made for PW1 were ill fitting and a failure. Thereafter PW1 could no longer have any artificial teeth in her upper jaw and was left toothless on her upper jaw. She suffered from spasms and cramps. As PW1 could hardly eat she lacked nutrients and hair loss.

38.  The balance of the payment for the dental implants was not paid to D1 and D2 as PW2 believed the work done on PW1 was far from satisfactory and because it has caused PW1 extreme pain and suffering.

The defence case

39.  Mr John Reading SC represented both defendants at the trial before the magistrate. Both Defendants elected to give evidence and two defence witnesses testified. In summary, the defence case at trial was that D2 carried out all dental treatment on PW1. D1 never or at any time presented himself to be a dentist nor he carry out any dental treatment on PW1. D1’s case was that at times he met PW1 and PW2 in the lab but not in the Clinic. D1 as a dental technician was responsible for constructing, and perfecting the bridge which comprised 14 teeth that were to be inserted by D2 onto the implant fixtures that D2 had embedded into PW1’s jawbone. D2 had performed all the drilling in the jaw inserted for the dental implants and all the connecting and disconnecting of the two sets of bridge onto the implant fixtures in PW1’s mouth.

40.  The two defence witnesses called were Dr Deborah Chan (“DW3”) a registered dentist who attended the Clinic on 7 June 2017 to observe D2’s installation of the bridge into PW1’s mouth. Her evidence was that D1 did not participate in the operation or in any dental treatment on PW1 whilst she was present. The other witness was DW4, D1’s wife (“DW4”) who was the dental nurse at the Clinic. DW4 stated that when D2 attended the Clinic she was always present with him and further claimed that D1 did not carry out any dental treatment on PW1.

41.  The defence case was only two sets of bridges not three bridges as was alleged by the prosecution were inserted into PW1’s jaw. The first bridge was successfully and completely inserted into PW1’s upper jaw by D2 on 7 June 2017 in the presence of DW3. The first bridge was retained in PW1’s jaw until D2 removed it on 26 June 2017. After removal of the second bridge D1 then took it to the lab for modification on 4 July and D2 inserted it back into PW1’s jaw on 6 July 2017.

42.  It was the defence case that both PW1 and PW2 were not honest nor reliable witnesses. There were material inconsistencies within PW1’s own evidence in relation to the events on 7 June 2017 and to PW2’s evidence and the defence witness, DW3 an independent witness.

43.  The defence case was that the 2 sets of bridges containing 14 teeth were satisfactorily done. A second bridge was made by D1 in accordance to the request of PW1. The two bridges were otherwise satisfactorily made and affixed into PW1’s upper jaw in her mouth. As PW1 did not like the look of the teeth affixed to the bridge she became emotional and unreasonably complained that the artificial teeth had changed her appearance and caused her pain. Additionally as PW1 and or PW2 did not want to pay the outstanding balance due to D1 and D2 for the dental implants and treatment done, PW1 reported both D1 and D2 to the police. Both PW1 and PW2 fabricated their accounts.

The Whatsapp messages

44.  The prosecution and defence relied upon the admitted Whatsapp messages exchanged between PW1 and D1 exhibit P9 and P9A, PW2 and D1 exhibit P10 and P10A, and PW2 and D2 P11 and P11A.

Expert report

45.  The Prosecution adduced an expert in prosthodontics Dr Wong Tsz-leung’s expert report (“Expert Report”) without calling him to give evidence. The opinions expressed in the Expert Report were not in dispute, save that D1 denied that he had carried out the acts stated in the Expert Report.

Issue at trial

46.  The core issue at trial was whether D1 did practise dentistry (without registration) at the material times as PW1 alleged and if D1 did, whether D2 did assist D1 in the practice, and whether D2 intended to assist so. The determination of these issues turned on the credibility of PW1 and to a more limited extent PW2.

The magistrate’s findings

47.  In a very detailed 70 page Statement of Finding (“SOF”) the magistrate after having considered all the evidence and submissions made by counsel Mr John Reading SC for both defendants, found both PW1 and PW2 to be honest and reliable witnesses. She accepted PW1 and PW2’s evidence in their entirety.

48.  The magistrate considered each and every charge individually setting out the prosecution evidence and the defence evidence. She arrived at her conclusion after a very thorough and careful analysis of all the evidence.

49.  Giving comprehensive reasons the magistrate rejected the evidence of D1, D2 and DW4. She found DW3’s evidence too general and lacked detail[2].

50.  The magistrate’s findings as to the details of the treatment D1 and D2 did on PW1 and the Whatsapp’s messages exchanged between D1, D2, PW1 and PW2 on divers dates were helpfully set out below in the appendix of her Statement of Findings (SOF)[3].

Appendix

Date	Chronology of events / P : Prosecution / D : Defence Whatsapp messages between PW1 and D1 (P9/P9A) Whatsapp messages between PW2 and D1 (P10/P10A) Whatsapp messages between PW2 and D2 (P11/P11A
27.4.17 Thursday (Charge 1)	P: D1 examined teeth for PW1 and PW2 in the clinic. D1 suggested implantation for PW1. PW1, PW2, D1 and DW4 went for meal at Gold Coast Club.
	D: D1 never did dental examination for PW1/PW2. D1 met PW1 and PW2 in the Laboratory. D1 and DW4 never went to Gold Coast with PW1 or PW2.
21.5.17 Sunday	P10/10A: PW2 asked D1 to help PW1 with her teeth, PW2 mentioned her financial problem, method of payment etc. D1 responded that he would help her.
28.5.17 Sunday	P10/P10A: D1 made an appointment for PW1 and “Dr Chung” (D2). D1 responded that “got it”.
31.5.17 Wednesday (Charge 2 and 8)	P: D2 extracted PW1’s 9 teeth. In the presence of D2, D1 did an operation on PW1. PW1 paid $30,000 to D1.
	D: Only D2 did the treatment as marked on P8. D1 did not participate. D1 was in his Lab. D1 only came to install suction machine and later collected PW1’s dental impression. $30,000 was paid to DW4.
1.6.17 Thursday	P9/P9A: PW1 addressed D1 as “Dr Chan” and requested whiter teeth. D1 responded “sure”.
7.6.17 Wednesday (Charge 3 and 9)	P: D2 did treatment on PW1, and DW3 came to observe. After DW3 left, both D1 and D2 did dental treatment upon PW1. D2 inserted the first bridge to PW1.
	D:DW3 attended. Only D2 did the treatment for PW1. Marked on P8 (“Upper screw retained Bridge inserted”). D1 was there but he did not treat PW1. D1 returned to his Lab. D2 inserted a bridge to PW1. PW1 called D1 and was emotional. D1 felt stressed and asked PW1 to come next day to check the bridge.
	P9/P9A: PW1 sent D1 some photos showing her teeth in the past. D1 responded “come ASAP today”. PW1 responded “I am on the way now.”
8.6.17 Thursday (Charge 4)	P: D1 removed the first bridge and trimmed PW1’s teeth in the Clinic. D1 failed to insert the bridge again.
	D: D1 met PW1 in the Lab. D1 informed D2 about PW1’s complaints. PW1 retained her bridge in her mouth. D1 did no treatment for her.
	P9/P9A: D1 reminded PW1 to pay attention to oral hygiene. PW1 sent some photos to D1.
11.6.17 Sunday	P9/P9A: PW1 expressed her worries. PW1 sent some photos to D1. D1 responded that he was working on it.
13.6.17 Tuesday (Charge 5)	P: D1 inserted 2nd bridge to PW1’s upper jaw.
	D: (On a date not recorded, D2 adjusted PW1’s teeth, D1 was not there.) D2 examined PW1’s teeth for screw tightening, and PW1 was satisfied with the bridge. Marked on P8 (“Tightening of screws”). D1 met PW1 in the Lab and he showed her the teeth in wax. They discussed the colour of the teeth. If PW1 was satisfied, D2 would take out her bridge and D1 would make a sample. D1 did not carry out dental treatment for PW1.
	P9/P9A: PW1 said that she had arrived for 20 minutes. D1 responded that he would be right there. At 23.12, D1 said “after the anesthesia wears off”. PW1 sent D1 photos of her look and an artificial teeth.
14.6.17 Wednesday	P: After LA injection was gone, PW1 woke up and found her look different. She called D1. D1 asked her to go to Room 214. D1 and D2 were there. D2 shortened the teeth for her.
	D: D1 did not meet PW1 in Room 214. D2 did not see PW1 at all.
	P9/P9A: PW1 sent D1 her photos showing her teeth to D1, complaining the teeth were too big and protruding, and her appearance had changed. P10/P10A: PW2 sent PW1’s photos to D1 (same photos as PW1 sent D1)
18.6.17 Sunday	P9/P9A: PW1 sent a recording to D1.
20.6.17 Tuesday	P: During trial, PW1 at first disagreed that D2 adjusted the bridge for her on 20.6.17, but the next day, she clarified that she was not sure, maybe on 20 or 21 June 17.
	D: D1 did not see PW1. D2 adjusted PW1’s teeth. Marked on P8 (“Adjustment to occlusion. Wants smaller teeth.) D2 told PW1 to wait for implants to integrate.
21.6.17 Wednesday	P: D1 asked PW1 to go to Room 214 again at about 4 to 5 pm. PW1 told D1 and D2 the problems. D1 uttered that even construction needed a firm foundation. D2 shortened the teeth for PW1 again. Both said there was no problem with her teeth. PW1 returned home and in pain. D1 asked her to return to Room 214.
	D: D1 did not meet PW1.
	P9/P9A: PW1 complained in details the problems and pain she encountered with the bridge.
23.6.17 Friday	P9/P9A: PW1 informed D1 that she wished to cut short (the teeth), and she sent D1 some photos of some teeth. D1 asked PW1 to come the next Monday at 4 pm for repair (26/6). D1 assured PW1 that it was their responsibility to make D1 satisfied and happy.
24.6.17 Saturday	P10/P10A: PW2 sent a photo showing PW1 was in pain lying in bed. PW2 told D1 that PW1 was in pain everyday, and worried about her, and requested D1 to remove the teeth.
25.6.17 Sunday (Charge 6)	P: D1 asked PW1 to go to Room 214. D1 removed the 2nd bridge for PW1 and discussed how to make the 3rd bridge. After removal, PW1 felt better, and less pain but dizzy.
	D: D1 did not meet PW1 and did not conduct any treatment. D1 made an appointment for PW1 to see D2 on 26.6.17.
	P9/P9A: PW1 sent D1 a recording and photos. D1 responded that he got it. PW1 said “no pain, fine”. PW1 sent a few more her photos. D1 responded that he got it.
26.6.17 Monday	P: PW1 did not meet D1 or D2 at all on 26.6.17.
	D: D2 removed the (1st) bridge for PW1 and placed healing abutments. D2 told DW4 to pass the bridge to D1 to modify. D2 rushed to his daughter’s birthday and forgot to make a record on P8. D1 did not see PW1. DW4 asked D1 to go to pick up PW1’s bridge for modification, D1’s colleague picked up the bridge. D1 started to modify it.
	P9/P9A: PW1 sent D1 her old photos and made requests of how the teeth should look. D1 responded that he got it and asked after if PW1 had any pain that day. PW1 responded that she had no pain (at 10.10)
27.6.17 Tuesday	P9/P9A: PW1 sent D1 some photos. PW1 wrote a long message at 16.09 expressing her preference. She expressed her wish to have implant even though paying some hundred thousands and she was surprised that “I found it strange that you inserted a full set of steel teeth into my mouth which is too worn out for the insertion… and she complained the sufferings she had. She also complained her original request was to have less implants but D1 told not, but at least 8 implants be done for good foundation. PW1 addressed D1 as Mr Chan. PW1 mentioned that during the meal, D1 asked for $30,000 each and a total of $300,000 but D1 would reduce to 150,000 and could be paid by instalments. D1 did not respond.
28.6.17 Wednesday	P9/P9A: PW1 sent D1 some photos of artificial teeth. PW1 sent D1 a recording and her daughter-in-law’s certificate stating she had 6 years experience as a dental nurse, and studied anaesthesia, and disclosed her brother was a dentist. D1 did not respond.
29.6.17 Thursday	P9/P9A: PW1 asked when (she) could start afresh. D1 responded that he was modifying and would inform her after the modification.
1.7.17 Saturday	P: D1 called PW1 asking her to attend on 2 July 2017 at 5 to 6 pm.
	D: D2 left Hong Kong for a trip from 30 June to 5 July 2017.
	P9/P9A: PW1 complained to D1 how she could meet others and eat without any teeth. D1 did not respond. P10/P10A: PW2 addressed D1 as John. She complained to D1 about the problems PW1 encounter. PW1 told her that they appeared to put the blame on PW1, though PW1 had trusted in him. PW2 complained that “the first time, the set of denture did not fit, and could not be put in. PW1 could not sleep all night… the next morning, D1 told PW1 to go in the morning, and had it removed. PW2 complained that the 2nd set was worse, was crooked, large and protruding... and asked D1 how he would handle then. D1 responded that he had already redone it thrice. He hoped PW2 would come with PW1 the next day to take a look at the shape and give some comments. PW2 expressed her anger saying “is it that people with no money have to suffer!” PW2 stated that PW1 trusted D1 and let him remove whole set of teeth. D1 responded that he tried his best to help her.
2.7.17 Sunday	P: PW1 met D1 in Room 214 and she told him the problems and how her life was affected. D1 told PW1 that he would make another set of bridge for her. D1 arranged her to meet on 6 July 2017. But, PW1 wanted to see another dentist.
	D: D1 almost finished the modification of the bridge and met PW1 in his Lab. PW1 was satisfied with that bridge.
	P9/P9A: D1 asked PW1 to come at 11 am or told him when she wished to come after she woke up. At 15.47, PW1 responded that she had arrived. At 18.44, PW1 sent D1 a video.
3.7.2017 Monday	P9/P9A: PW1 wrote to D1 expressing that she wanted her appearance back. She told D1 to watch the video to see her pain. D1 responded telling her to forget the past and he would complete it ASAP.
4.7.17 Tuesday	P: PW1 consulted another dentist.
	D: D1 finished the bridge in his Laboratory and handed it to D2.
5.7.17 Wednesday	D: D2 returned to HK.
	P9/P9A: PW1 sent D1 some of her past photos. She complained “you didn’t even take a look (before) extracting all my teeth.” D1 did not respond.
6.7.17 Thursday (Charge 7)	P: D1 asked PW1 to attend Room 214. D1 inserted the 3rd bridge on PW1’s upper jaw. PW1 did not see D2. PW1 was in pain thereafter.
	D: D1 did not see PW1 at all or did any treatment. After the trip, D2 inserted the alternated (2nd) bridge for PW1, and marked in P8 (“Insertion of new bridge as requested made according to her provided photos”), and PW1 was satisfied. D2 told DW4 to collect outstanding sum.
10.7.17 Monday	P: PW1 attended Room 214. PW1 told D2 her problem, but D2 kept telling her that was fine. PW1 was frustrated. Sometime in July, PW1 came across with D1 on the footbridge, and D1 offered to refund $30,000 to her and told her to see other dentist. PW1 refused the offer.
	D: D2 checked the bite and function of PW1’s bridge. D2 took photos of PW1. PW1 was emotional. D2 took a video of PW1. D1 did not see PW1. Marked in P8 (“Review. Everything fine. Unstable emotions. Complaining of facial disfigurement subjectively. Reassurance and advised family members to be more supportive by Whatsapp”). D1 did not bump into PW1 on footbridge, but he did see her standing there quietly.
	P9/P9A: PW1 addressed D1 as Mr Chan , and apologize for not speaking nicely. D1 responded that “Dr Chung (D2) has already completed the best for you. You just get used to it for three months, no worries.”
11.7.17	P : Nil
	D: D2 sent whatsapp to PW2 and recommended PW1 to seek professional help due to her unstable emotion.
	P9/P9A: PW1 wrote a long message talking about her past life. She mentioned her sister wanted her to be happy by paying the bridge for her, but it resulted in a change of appearance pain, and numerous problems. D1 did not respond. P11/P11A: D2 wrote to PW2 claiming after seeing PW1 the day before, he found PW1 was unstable in her emotions. D2 told PW2 to support PW1 more. He sent PW1’s photo to PW2.
13.7.17	P9/P9A: PW1 asked D1 for the brand of the screw. D1 did not respond.
14.7.17	P9/P9A: PW1 asked D1 again to ask D2 the brand of the screw. D1 responded that PW1 could ask D2 when they met in the next follow up treatment. He was busy (at the moment). PW1 asked if her daughter-in-law could speak to D2. D1 replied that she could, and would arrange at Mongkok.
3.8.17	P9/P9A: PW1 wrote to D1 saying she had calmed down because a lots of friends and family supported her. PW1 expressed that she and her family wished to know the Chinese name of D1. D1 did not respond.
(   ).8.17	P11/P11A: D2 sent an invoice to PW2 with (incorrect) treatment date, and requested PW2 sending it to PW1. The invoice dated 3.8.2017.
7-9.8.17	P9/P9A: PW1 reported the case to police.
28.8.17	P: Police arrested D1 and D2.
23.3.18	P11/P11A: D2 sent the invoice again to PW2 and a reminder to PW1 to follow up dated 21.3.18.

Appeal

51.  In this appeal, Mr Derek Chan SC leading Ms Rosa Lee and Kelly Cheng appeared for D1. Whilst trial counsel, Mr John Reading SC leading Ms Larissa Wong appeared for D2. Ms Ranee Khubchandani, SPP appeared for the respondent.

52.  In addition to the magistrate’s table of finding above I have also adopted below Ms Khubchandani helpful table as to the prosecution’s summary of charges and what D1 and D2 was found to have done on each day of the charges. This table omits the Whatsapp records but the spacing in the table is to show the order of what D1 and D2 did.

Charge	Date	D1 did the following:	D2 did the following:
1	27 April 2017 (Thursday)	- Examined PW1’s teeth. - Used a pair of pliers to show PW1’s loose teeth to PW2. - Proposed method of treatment and discussed fee for treatment.	Nil
2/8	31 May 2017 (Wednesday)	- D1 took PW1 to a room in Room 214 where D2 and DW4 were present. - D1 gave LA injection to upper part of PW1’s mouth, drilling on PW1’s upper jaw and taking things in and out of PW1’s mouth. - D1 and D2 then took PW1 back to Room 214 where D1 continued taking things in and out of PW1’s mouth. - Al prescribed painkillers to PW1 to relieve pain after the treatment.	- D2 extracted 8 teeth from PW1’s upper jaw and 1 tooth from her lower jaw with LA injection. - D1, D2 and DW4 brought PW1 to Room 212. D2 sat in left corner of room while D1 carried out dental procedures. - D2 sat at the side while D1 carried out dental procedures. - D1 asked D2 to take dental impression for PW1. D2 took dental impression for PW1. - PWl paid HKD 30,000 in cash to Al in front of D2 and DW4.
3/9	7 June 2017 (Wednesday)	- D1 then gave LA injection to PW1 in the presence of D2. D1 fixed four screws in PW1’s upper jaw.	- D2 inserted the implant bridge for PWl after giving a LA injection. D2 was unable to fix the screws. - D2 was present while D1 performed dental procedures. - D1 asked D2 to fix the remaining 2 screws but D2 failed. D2 placed cotton pellets into PW1’s mouth and asked PWl to leave.
4	8 June 2017 (Thursday)	- Gave LA injection to PW1. - Performed operation in PW1’s mouth by putting something in and out. - Trimmed PW1’s lower teeth. - Attempted to insert the bridge into PW1’s mouth.	Nil
5	13 June 2017 (Tuesday)	- Gave LA injections. - Inserted bridge on PW1’s upper jaw.	Nil
6	25 June 2017 (Sunday)	- Gave LA injections. - Removed upper bridge and screws from PW1. - Discussed with PW1 on making a new bridge with shorter teeth.	Nil
7	6 July 2017 (Thursday)	- Gave LA injections. - Inserted new bridge on upper jaw of PW1.	Nil

D1’s grounds of appeal

53.  In support of D1’s appeal against conviction D1 relied on 6 grounds of appeal:-

Ground 1: the Magistrate failed to properly analyse and/or give sufficient regard to the inconsistencies and improbabilities in PW1’s evidence. Comprising of Grounds 1A to 1D.

(i) The direct conflict between the evidence of PW1 and DW3;

(ii) The direct/inherent conflict within the evidence of PW1;

(iii) The contradiction between the evidence of PW1 and PW2; and

(iv) The direct conflict between the evidence of PW1 and contemporaneous evidence.

Ground 2: the Magistrate erred in accepting the Prosecution’s case (and rejecting the Defence’s case) on the basis of a wrong finding as regards the number of bridges fitted in PW1’s mouth.

Ground 3: there was impermissible use of hearsay evidence by the Magistrate.

Ground 4: in rejecting the Defence’s case, the Magistrate made a number of erroneous findings (other than those already covered in the grounds above) which lacked evidential basis and/or were otherwise not the only reasonable inference borne from the evidence regarding :

(i) The place and content of the first meeting between PW1, PW2 and D1;

(ii) Whether D1 clarified to PW1 that he was not a dentist;

(iii) D1’s role on 31 May 2017; and

(iv) D2 failing to make a treatment record on Exhibit P8 [AB/354-356] [4] in respect of the appointment on 26 June 2017.

Ground 5: the Magistrate placed improper weight on evidence which were irrelevant or inadmissible against D1.

Ground 6: by reason of the aforesaid grounds, D1’s convictions were unsafe and/or unsatisfactory and they ought to be quashed.

Ground 1

54.  Mr Chan submitted that PW1’s evidence was inherently improbable in that D1 a mere dental technician was heavily involved in a highly complex dental procedure when a highly experienced and distinguished dental surgeon, D2, simply stood by. Moreover, PW1’s evidence was internally inconsistent and inconsistent with other evidence. The magistrate failed to deal with the inconsistencies or dealt with them wrongly and or inadequately. Those errors affected the magistrate’s finding on PW1 being a credible and reliable witness.

Ground 1A– direct conflict between the evidence of PW1 and DW3

55.  This ground was that PW1’s evidence directly contradicted with DW3’s evidence in relation to the events that occurred on 7 June 2017. It was Mr Chan’s submission that it was inherently improbably that D2 a specialized dentist in implants was unable to affix the bridge on 7 June and necessitated D1’s participation. Moreover, PW1’s evidence directly contradicted DW3, an independent and professional dentist who was there to observe the procedure carried out by D2 and said that she left after the completion of the insertion of the bridge into PW1’s mouth. In the circumstances no work was required to be done by D1 after DW3 left as the bridge was successfully affixed onto the implants in PW1’s mouth.

Prosecutions reply

56.  Ms Khubchandani submitted that the magistrate had carefully considered DW3’s evidence. Although she did not find DW3 to be a dishonest witness she found that her memory of the events on 7 June 2017 was not clear. Specifically the magistrate referred to DW3’s witness statement to the police dated 11 June 2021 (i.e. 4 years after the event) when DW3 said she honestly she did not remember anything at that time, but that she had to check her diary and tried to recall afterwards.[5] The magistrate found PW1’s recollection of that day to be clearer and more accurate than DW3 as PW1 was the victim of a traumatic disaster whereas DW3 was a mere observer for a short period of time.

57.  Ms Khubchandani submitted that in any event according to the evidence of DW3, D1 and D2 they all admitted that DW3 had left before the entire procedure was over.

58.  As to whether D2 had been successful in putting in the implant bridge that day, DW3 was unable to answer with certainty [AB§ 1190A-C]:

“Court: Hold on. (Pause) So was he – or was Dr Chung successful in putting in the implant bridge?

A: I think so.

Court: “I think”, you are not sure?

A: It was put in. It was, I mean, all done in the mouth. Nothing taken back out so yes.”

59.  Ms Khubchandani contended that from DW3’s evidence she left after she thought D2 had successfully put the bridge into PW1’s mouth but from PW1’s evidence the bridge had not been successfully installed.

60.  There was no dispute in the evidence between D1, D2, DW3 and PW1 that when DW3 left the treatment room PW1 was still in the treatment room.

61.  Ms Khubchandani submitted that there was no fundamental contradiction in the evidence of PW1 and DW3.

Consideration

62.  The magistrate found that although DW3 observed the dental treatment, DW3 did not observe all of the treatment. On the evidence before her she found the installation of the bridge was not completed or successfully installed when DW3 had left. After DW3 left D1 and D2 continued to work on the installation of the bridge.

63.  The magistrate stated at para 250 to 253 of SOF : [6]

“250. DW3 stated that she left the Dental Clinic when she thought the procedure was done. Both D1 and D2 said that DW3 left when the treatment was almost successful/completed. The main issue for this date was: did D1 participate in the dental treatment on 7 June 2017?

251. According to DW3’s evidence, D1 was present, and she believed that D1 went in and out the room, but he did not participate, only D2 did so.

...

253. According to PW1, after DW3 left, D1 participated by giving her another LA injection and he fixed 4 screws on her upper jaw, while D2 failed to fix the remaining two screws and put 2 pieces of cotton pellet into her mouth and asked her to leave.

64.  It is appropriate at this stage to set out the undisputed evidence of the Expert on the procedure for installing the bridge. At paragraph 6 of the Expert Report it can be summarized as follows :-

“The dentist will connect and disconnect the dental prosthesis (the bridge) on the embedded implant fixtures by ‘screwing in and out’ every time the prosthesis is fitted into the patients mouth.”

65.  According to D2’s evidence he further explained that in the middle of the procedure for installing the bridge to the implants different screws would be put in and out. In the end, a formal screw had to be fixed to a certain torque.

66.  The magistrate found that DW3 left when she thought the installation of the bridge was completed by D2 as DW3 “said nothing was taken back out.” By taking nothing back out DW3 believed that the installation of the bridge was successful[7]. It is however clear, on PW1’s evidence that although “nothing was taken back out” (ie the bridge) it did not equate to the fact that the installation of the bridge was successfully affixed, completed or finished. PW1 stated that after DW3 left more dental work was in progress. The fact that the procedure was not finished was reinforced by D1 and D2’s own testimony who both stated that DW3 had left when the treatment was almost complete. There was no dispute that when DW3 left the treatment room, PW1 was still lying on the dentist chair.

67.  If the bridge was successfully affixed to PW1’s mouth when DW3 was present then Mr Chan’s submission would be correct that nothing clinical could have been done by D1 or D2. However as the magistrate had found and was entitled to believe PW1 the bridge was not completely or successfully affixed in PW1’s mouth. After DW3 left D1 and D2 continued to fix screws into PW1’s upper jaw. At that time when both D1 and D2 were affixing the screws DW3 was not present.

68.  Notably the magistrate was aware that what happened when DW3 left the treatment room was solely dependent on the credibility of PW1’s evidence.

69.  The magistrate was conscious of the fact that DW3 was an independent witness. In her careful analysis of DW3’s evidence I am unable to find any error in her finding that DW3 was not present for all the dental treatment but only observed part of the dental treatment. Further her finding that DW3 was unable to remember much evidence due to the passage of time and her evidence was too general and lacked details cannot be criticized. The magistrate was after hearing and observing PW1 give evidence entitled to find that PW1 did not make up these allegations against D1 and D2.

70.  There was no inconsistency between PW1 and DW3’s evidence. There was no disarray in the magistrate’s analysis. The magistrate carefully considered the evidence and accepted further clinical work was done on PW1 by D1 and D2 after DW3 left.

Ground 1B – direct conflict within the evidence of PW1

71.  D1 submitted that there was two critical contradictions in PW1’s version of events in relation to 8 June 2017. On the first day of the trial in PW1’s examination in chief PW1 said on 7 June 2017, she left the clinic without teeth on her upper jaw, meaning no bridge was installed on her upper jaw. Her evidence was that she was to return the next day 8 June, to complete the unfinished procedure of the insertion of the bridge.

72.  On the second day of the trial, PW1 recanted her evidence that she left the clinic without teeth and fundamentally altered her evidence to the effect that she left the clinic with teeth, that is a bridge was installed on her upper jaw albeit with two screws missing.

73.  Mr Chan agued that the above created two critical internal contradictions in PW1’s version affected the events in relation to 8 June 2017.

74.  Firstly, as the bridge had been “completely” installed into PW1’s mouth on 7 June 2017, PW1 simply had had no reason to attend the clinic on 8 June and offered no alternative reason as to why she needed to go back the following day.

75.  Secondly, as the bridge had been completely installed in PW1’s mouth on the 7 June 2017, PW1’s evidence on 8 June on the dental treatment undertaken by D1 could not be true. The magistrate erred in finding that the bridge was removed on 8 June 2017 because PW1 believed that the set of teeth on the tray was removed from her upper jaw. Because of the magistrate’s erroneous premise that the bridge was removed by D1 on 8 June 2017 it was fundamental to her flawed analysis in respect of events which transpired on 13 June 2017.

76.  It was contended that the magistrate failed to recognize the fundamental inconsistencies and problems created by PW1’s partial recanting of her evidence on the first day. Her findings that PW1’s belief that the dental procedure was not finished on 7 June 2017 was illogical and unsupported by evidence given PW1’s subsequent testimony that a bridge was “successfully” installed on 7 June and no further dental procedures had to be carried out on the following day, 8 June.

77.  Further there was no reason proffered by PW1 why the successful installation of the bridge on 7 June 2017 was to be removed on the following day 8 June 2017.

Respondents reply

78.  Ms Khubchandani submitted that the fact PW1 changed her evidence that she left with a bridge affixed in her upper jaw on 7 June on the second day of the trial was consistent with the defence case that a bridge had been installed but not consistent with the defence case that the installation of the bridge had been “successful” or “complete.” The defence case that the installation was “successful” or “complete” or finished was contrary to the prosecution case.

79.  It was the prosecution case and that on the evidence of PW1 there was no “successful” installation of the bridge on 7 June 2017 but that the installation was unfinished. PW1’s evidence was that the bridge inserted into her mouth on 7 June 2017 was incomplete as although D1 fixed four screws, D2 failed to fix the remaining two screws therefore D2 on 7 June put in two pieces of cotton buds and asked PW1 to leave.

80.  On 8 June 2017, PW1 testified the reason why she returned to the clinic on 8 June was because D1 called her at about 10 pm on the evening of 7 June 2017 (after she left the clinic) to return to the clinic the following day at 9 am. PW1 thought it was for D1 to complete the installation of the bridge as it was not finished. However, PW1 could not remember if D1 haven her any reason for asking her to return the following day.

81.  PW1’s testimony relating to events on 8 June 2017 were the respondent submits, unambiguous D1 gave her an anesthetic injection and put something in, took something out, and then put something in. She then saw a set of teeth placed on the tray where the doctor places things. D2 had difficulty putting the bridge back in and she left without teeth.

Consideration

82.  Indisputably on the 1^st day of trial, PW1 said she left the clinic on 7 June 2017 with no teeth in upper jaw. On the second day of trial without any prompting PW1 clarified her evidence that she actually left with teeth. This means that she left with a bridge, being a set of 14 teeth in her upper jaw when she left the clinic the previous day on 7 June.

83.  PW1’s evidence in relation to the installation of the bridge on 7 June was unambiguous that is D2 was unable to fix two screws hence he put in two pieces of cotton in her mouth. Explicitly on PW1’s evidence the installation of the bridge was not completed nor “successful.”

84.  In relation to 8 June, the magistrate was entitled to accept PW1’s evidence that D1 repeated what he did on 7 June, that is putting something in and out her mouth. At that time PW1 saw a teeth placed on a tray next to her. PW1 stated that D1 tried to put the bridge back inside her mouth again but in vain. PW1 said that D1 then trimmed the teeth of her lower jaw but still D1 could not install the bridge. This process as described by PW1 took 45 minutes. After 45 minutes D1 asked her if she hated that set of teeth. PW1 replied she did as they were too long and large and looked very different from her teeth. D1 then undertook to make another set of teeth for PW1 after he returned to Hong Kong as he was going on leave. PW1 left the clinic with no teeth.

85.  D1 later then sent a Whatsapp exhibit P9 to PW1 on 8 June 2017, reminding PW1 to pay attention to oral hygiene. PW1 then sent some photos to D1.

86.  In a Whatsapp message on 11 June 2017, PW1 sent D1 some photos expressing her concern about her mouth and teeth. D1 responded that he was “working on it.” The reply that D1 was working on it is supportive of PW1’s evidence that the bridge was removed. If the bridge was successfully installed as was alleged by the defence, there was nothing for D1 a dental technician to be working on in relation to PW1. D1’s role was allegedly to make the bridge for PW1. D1 working on PW1’s revealed the palpable flaw in the defence case that modification of the first bridge was only done after it was removed on 26 June 2017.

87.  PW1’s testimony as to the events that happened on 8 June 2017 on the removal of the bridge from her mouth was not illogical and there was no inherent contradiction in her own evidence.

Events that happened on 13 June 2017

88.  Mr Chan averred that the magistrate erroneous premise that the bridge was removed by D1 on 8 June 2017 was fundamental to her flawed analysis in respect of the events on 13 June 2017. The magistrate erred in firstly finding that a new bridge was installed by D1 on 13 June 2017. Second that the acceptance of PW1’s evidence that the bridge had been removed prior to 13 June was in direct contradiction with D2’s treatment record in Exhibit P8/D3 of “tightening of screws”.

89.  In dealing with this ground I turn now to deal with the medical record which forms ground 1D of D1’s grounds.

Ground 1D – direct conflict between the evidence of PW1 and contemporaneous evidence

90.  The medical treatment records of PW1 were admitted into evidence as Exhibit P8 and D3 being the typed out medical record of the written record P8. It was the defence case that these were made contemporaneously and were in direct conflict with PW1’s evidence. The magistrate made no finding that they were not contemporaneously made or that they were fabricated despite her irrelevant criticisms of their omissions, brevity and inadequacy. Taken together the records casts significant doubt on the truth of PW1’s version of events.

91.  It was the defence case which was contrary to the prosecution case that only two bridges were installed in PW1’s mouth on 7 June 2017 and only removed on 26 June 2017. There was no record as to the removal of the bridge on 26 June as D2 had to rush off to his daughter’s birthday. But as reflected in the medical records the second new bridge was installed on 6 July 2017.

92.  It was averred that such records were consistent with the defence case as to the removal of the first bridge and insertion of the second bridge. The magistrate erred in failing to test the credibility of PW1’s assertions against the objective documentary evidence and to recognize irreconcilable inconsistencies between PW1’s evidence and such documentary evidence.

93.  In respect of 13 June 2017, D2 recorded “tightening of screws” this could only have been in respect of the bridge already installed on 7 June 2017. The contemporaneous record was in direct contradiction to PW1’s evidence that she had no bridge in her mouth from 8 June and a new one was inserted by D1 on 13 June 2017.

94.  In respect of 6 July 2017, D2 recorded his treatment on PW1 as “insertion of new bridge requested made according to her provided photos” which was in direct contradiction to PW1’s evidence that D1 had inserted a new bridge on 6 July and not D2.

The respondents reply

95.  It was the respondents case that D2 admitted under oath that his treatment records on PW1 were not contemporaneously made. D2 had admitted under cross examination that there may have been omissions in the records as he was busy, they were not full records and the dental treatment on 26 June 2017 about the removal of the bridge was not recorded as he had to rush off to his daughter’s birthday party.

Consideration

96.  The magistrate in her SOF provided her analysis of the treatment records P8 of PW1 in detail at paragraphs 225 to 228. She compared the records to the detailed records made by another doctor who had worked at the same clinic previously. She found the records made by D2 were short, simple, missing as to an entire appointment on 26 June 2017 (of the removal of the bridge) and inaccurate. Having taken into account D2’s evidence in regard to the records she found the treatment records to be unreliable.

97.  The magistrate was fully aware of the contradictions between the records and PW1’s evidence. In particular in respect of 13 June 2017 PW1 disagreed that the relevant entry on the records “tightening of screws” had been done by D2 on that day. The magistrate carefully considered the evidence of PW1. The magistrate was entitled to find PW1’s evidence in relation to the 13 June to be credible. Moreover, the Whatsapp record between D1 and PW1 is supportive and consistent with PW1’s evidence of her account of events on 13 June 2017. On that day at 1917 hours PW1 sent a message to D1 saying she had already arrived for 20 minutes. At 1926 hours D1 responded “I’ll be right there” Later that evening at 2310 hours PW1 sent a photo to D1 of her teeth and at 2312 hours D1 replied “after the anesthesia wears off”. She then sent two more photos one at 2350 hours which were photos of what PW1 looked like and the artificial teeth.

98.  The Whatsapp messages are communications between D1 and PW1 on 13 June 2017. These messages notably are not between PW1 and D2. The messages and photos sent at 2350 hours when read together and are supportive and consistent with PW1’s evidence that on 13 June 2017 she went to the clinic and D1 installed a second bridge in her mouth.

99.  Moreover on 14 June 2017 (Wednesday), the following morning PW1 said after the local anesthetic injection had worn off, she woke up and found her look different. PW1 then sent photos of her mouth and upper teeth to D1 by Whatsapp at 1610 hours, 1634 hours and 1650 hours and at 1613 hours and 1614 hours wrote in two texts “even my appearance has changed” “too large, protruding too much.” She then called D1. This is further supportive and consistent with PW1’s evidence that a new bridge had been installed as she was complaining to D1 about the change of her appearance and the bridge that had been installed on 13 June 2017.

100.  It was PW1’s evidence that D1 asked her to go to Room 214. She then went to the clinic and saw DW4, D1 and D2 there. D2 shortened the teeth for her. D2 told her that there was no problem and she just had to be accustomed to it. If the teeth that PW1 was complaining about in her texts on the 14 June were the same teeth as that installed on 7 June 2017, it was illogical that PW1 would be complaining about the size and protrusion a week later and not sooner. The texts were supportive of her evidence that she was dissatisfied with the second bridge affixed in her mouth the day before on 13 June 2017.

101.  A week later on 21 June 2017 (Wednesday), at 1336 hours PW1 sent D1 a Whatsapp message complaining in detail about the bridge and the pain she endured. Upon D1’s request PW1 went to the clinic. PW1 repeated her complaints to D1 and D2 again. D1 said that even construction of building needed a firm foundation, and told her that she just needed to get used to it. D2 then shortened her teeth again. Both D1 and D2 said that there was no problem with the teeth. She returned home still in pain. PW1 said she still could not eat and had spasms.

102.  Two days later on 23 June 2017, at 1018 am PW1 sent a Whatsapp to D1 requesting for the teeth to be shortened next time as she ate like a patient with mental illness. She sent photographs of her teeth at 1019, 1024, 1025, 1028, 1031 hours. In describing the photos PW1 said her four front teeth are made ultra thin, the four missing ones had been made longer. D1 replied at 1033 hours please come over for modification at 4 pm next Monday. He assured PW1 that it was their responsibility to make PW1 happy.

103.  The following day on 24 June 2017, a Saturday PW2 sent D1 two photos in Whatsapp of PW1 lying in bed telling him PW1 was in pain. She told D1 that PW1 could not take it anymore. She was in pain everyday. PW2 asked D1 to remove the set of dentures for PW1 first. She told D1 that PW1 had severe throbbing pain and had difficulty eating.

104.  On 25 June 2017 (Sunday- charge 6) PW1 was in pain she telephoned D1 complaining of repeated pain, and she was unable to eat, and had facial muscular spasm. D1 asked PW1 to go to Room 214. PW1 contacted D1 via WhatsApp audio at 1700 hours and D1 responded that he got it. PW1 arrived there and no other person was there except D1. D1 then removed the bridge (the second bridge) from PW1. After the removal PW1 then discussed with D1 the making of a new bridge with shorter teeth. PW1 then left with no upper teeth in her mouth. At 2227 hours PW1 sent whatsapp message to D1 after removal of the teeth, that she felt no pain and was fine.

105.  The following day on 26 June at 1005 hours PW1 sent D1 a whatsapp message attaching two photos of what she took 3 ½ years ago making requests to D1 of how her teeth should look like. D1 replied got it and do you feel any pain today. At 1010 hours PW1 replied no pain. PW1 said that she did not see D2 on 26 June 2017.

106.  The following day on 27 June 2017, PW1 sent D1 on Whatsapp some photos. PW1 wrote a number of long messages commencing at 1609 hours to 1743 hours. In summary PW1 expressed her wish to have implant even she had to pay some hundred thousands. She was surprised “I found it strange that you inserted a full set of steel teeth into my mouth which is too worn out for the insertion. She asked if the implants could be made one by one. She complained of her pain and sufferings for the past 10-12 days. She also complained about her original request was to have less implants but D1 told her she had to have at least 8 implants for good foundation. She said that originally each tooth was to cost $30,000 with a quote of $300,000 but when they had a meal he agreed to reduce it to $150,000 and she could pay by instalments. She hoped they could resolve her issue as soon as possible. She referred to D1 as Mr Chan in the messages. D1 did not respond to the messages.

107.  These numerous Whatsapp communications and others between PW1 and D1 were supportive and consistent with PW1’s oral testimony. They supported PW1’s credibility. The messages sent by PW1 and PW2 to D1 were supportive of their evidence that PW1 went to the clinic on Sunday 25 June to remove the bridge, instead of waiting until Monday 26 June when D1 had originally asked her to return to the clinic. On a Sunday 25 June PW1 sent D1 via Whatsapp at 2227 hours saying she had no pain. The only reasonable inference to be drawn was because the bridge causing her pain had been removed. It is inconceivable that PW1 would be complaining of pain on Sunday morning and then suddenly the pain miraculously disappeared on Sunday evening without intervention. PW1 evidence was that there was no pain because the bridge had been removed by D1 and the Whatsapp message is supportive and consistent with her evidence.

108.  The Whatsapp records were a reliable yardstick in determining the credibility and reliability of PW1’s evidence. In the circumstances the magistrate did test the credibility of PW1’s evidence against the medical treatment records and was entitled not to find the medical treatment records unreliable.

109.  Furthermore the magistrate found reasonably that despite not making detailed or incomplete records of treatment on PW1, the last entry on the record made by D2 on 10 July 2017 was unprecedented and inconsistent to D2’s previous practice in making records. I entirely agree. The lengthy record was entirely inconsistent to anything written previously. The record of PW1’s “unstable emotions, complaining of facial disfigurement subjectively. Reassurance and advised family members to pay more attention by Whatsapp.” Previously D2 omitted important clinical records such as removal of the bridge, medication given, yet on 10 July found it important to make a long record not related strictly related to clinical procedures.

110.  On all the evidence the magistrate was entitled to find the medical records unreliable and correct to find D1 inserted a new second bridge into PW1’s mouth on 13 June 2017 and removed it on 25 June and installed another third bridge on 6 July 2017.

Ground 1C – contradiction between the evidence of PW1 and PW2

111.  D1 submits that the magistrate failed to pay regard to or resolve a number of material inconsistencies between the evidence of PW1 and PW2, which again tainted her overall assessment of PW1’s credibility.

112.  Firstly, it was submitted that there were inconsistencies between the evidence of PW1 and PW2 regarding the installation of a bridge on PW1 on 7 June and the removal of one from PW1 on 8 June 2017.

The relevant evidence of PW2 by D1 is set out below:

“Lee Ming-yuet, my sister, said she went there for a few times but D1 refused to remove it for her. D1 only said that he would modify it for her but, every time, he refused to remove it. I don’t remember which day. On that day, I was …” [AB/813D-G] (emphasis added)

113.  Secondly, Mr Chan has referred to the content of the conversations between PW1, PW2 and D1 on 27 April 2017 to which he avers that D1’s evidence is consistent with PW2 and inconsistent with PW1’s. They directly impacted the allegations in respect of Charge 1, namely that D1 allegedly held out as a dentist by inter alia discussing the method and fee of treatment (by implantation) with PW1 and PW2 on 27 April 2017.

114.  These being as follows:

(a) Both PW2’s and D1’s evidence were consistent with the fact that (i) PW1 had previously consulted and received advice from other dentists before seeing D1 on 27 April 2017, (ii) PW2 said to D1 on 27 April 2017 that PW1 preferred to have dental implants despite being previously advised that it was possible for her to receive removable dentures instead, and (iii) PW2 asked D1 if he could request the dentist to give PW1 a favourable price to undergo her preferred implant therapy at the Clinic.

(b) However, to the contrary, PW1 denied points (i) and (ii) above and claimed that she had no knowledge of point (iii) above.

115.  Thirdly, the evidence of PW1 and PW2 as to what was discussed during the alleged meal at Gold Coast Club on 27 April 2017 after visiting the Clinic was also inconsistent.

Respondents reply

116.  Ms Khubchandani submissions were that the evidence of PW2 was taken out of context and PW2 was explaining why she had not paid the balance of $120,000. PW2 described a period of time when PW1 had been in agony because of the dental implants and wanted the dental implants removed. PW2 did not mention any specific date(s).

117.  Ms Khubchandani contends in relation to refusal of the removal of the bridge there are no inconsistencies between the evidence of PW1&2 regarding the installation of a bridge on PW1 on 7 June 2017 and the removal of one from PW1 on 8 June 2017.

118.  Firstly PW1’s evidence that she was in pain during the whole period after a new bridge ( the second bridge) had been installed on 13 June 2017. On 14 June 2017 and 20/21 June 2017, PW1’s teeth were cut short and the bridge adjusted and PW1 was assured that she had no problems.

119.  Secondly PW2’s evidence that PW1 had gone for a few times but D1 had refused to remove the implants for her is therefore consistent with PW1’s evidence of the events during the period from 14 June 2017 to 25 June 2017. On 25 June 2017, D1 finally removed the bridge that had been installed on 13 June 2017 for her.

120.  Thirdly, as reflected in the WhatsApp conversations, PW2 requested D1 to remove the set of denture on 24 June 2017 Saturday. The following WhatsApp messages were sent between PW2 and D1:-

“[24 June 2017: From PW2 to D1] ‘John(,) my younger sister can’t (homonym) take it anymore; (she’s) in pain every day; I fear that something may happen to her; please remove the set of denture for her first; (she) has severe throbbing pain (and) has difficulty in eating’ [AB§502 (English translation); AB§479 (original text)].

[1 July 2017: From PW2 to D1] ‘John(,) my younger sister told me that you seemed to have passed all the problems to her. Upon witnessing my younger sister’s conditions this month, my family, many friends [including 2 friends whom I intend to refer to your clinic for dental implants] and I find it unacceptable; (she) suffered every day (and) had difficulty in eating. (Her) face was crooked when (she) ate. The pain reduced (her) to tears on several occasions. They all asked her to go to hospital, but she said (she) believed you. There’s no way that (she has to) take painkillers every day. The first time, the set of denture did not fit (homonym) (and) couldn’t be put in (homonym). She couldn’t sleep all night (after) forcing it in (homonym). On the next morning, (as) you told her to go to (your clinic) in the morning, (she went there) and had it removed; the second set was worse: (it) was crooked, (too) large and protruding. (It’s) as if (she’s) acting in a horror movie. Everyone said (‘)All my eye(!)(‘”on seeing it. I haven’t wanted to meet up with you all this time because I’m very unhappy (homonym)…’ [AB§504(English translation); AB§480 (original text)]

[1 July 2017: From D1 to PW2] ‘Sony(,) I have already redone it thrice(.) (I) hope you’ll come with her tomorrow to take a look at the shape of the denture and to give some comments, okay?’ [AB§504 (English translation); AB§480 (original text)]

[1 July 2017: From PW2 to D1] ‘You made (dentures that) didn’t fit (homonym) and had to redo it. What does this have to do with her(?)’ [AB§507 (English translation); AB§481 (original text)]

[1 July 2017: From D1 to PW2] ‘It’s she who thought that (the dentures) were too large (and) needed to be redone. (I) don’t blame her. (I) hope the denture teeth will be made to her satisfaction this time before the completion!’ [AB§507 (English translation); AB§481 (original text)]”

121.  As regards point two Ms Khubchandani contends PW1 and PW2 were materially consistent and unshaken in their evidence that D1 had examined PW1’s teeth, used a pair of pliers to show PW1’s loose teeth to PW2 and had discussed the method of treatment, i.e. dental implantation and fees for treatment with them on 27 April 2017], which are the crux of Charge (1).

122.  The slight discrepancies raised in the exact content of the conversations between PW1, PW2 and D1 on 27 April 2017 concerning whether or not PW2 had told D1 that PW1 had consulted other dentists beforehand, preferred to have dental implants and had requested another dentist to treat PW1 at a favourable price, are only minor issues that does not affect PW1’s overall credibility.

Consideration

123.  I accept Ms Khubchandani submission that where PW2’s evidence was inconsistent with PW1’s it was minor and it did not affect the overall credibility of PW1.

124.  PW2 Whatsapp message to D1 on Saturday 24 June about D1 refusing to remove the bridge is mentioned above. It is consistent with PW1’s evidence that the first bridge PW1 did not fit and was removed the following morning. The second bridge was crooked, too large and protruding. PW2’s evidence as referred to by Mr Chan on the evidence is referring to the refusal to remove the second bridge. When read together with PW2’s message PW2 was not referring to removal of the first bridge. PW1 and PW2’s evidence is consistent as to the installation and removal of the bridge on 7 and 8 June 2017 respectively.

125.  What is apparent from PW2’s evidence is that PW2 addressed her Whatsapp message to D1 and to his refusal to remove the bridge. Although she knew D2 this was not sent to D2. It was PW2’s belief all along that D1 was the one who was installing and removing the bridge from PW1.

126.  As is mentioned above the magistrate accepted PW1’s evidence that a second bridge was installed on 13 June 2017 and D1 and D2 refused to remove it despite PW1’s complaints.

127.  As to the payment of the implants the whatsapp message sent from PW2 to D1 on 21 May 2017 is supportive of PW2’s evidence that she was the one paying for the implants for PW1 and that she had financial problems. PW2 suggested she pay $30,000 first and gradually pay the remaining balance mid next year. D1 then made an appointment for PW1 to go to the clinic. These negotiations were with D1 about the price.

128.  Notably PW1 and PW2 were materially consistent in their evidence that D1 had examined PW1’s teeth on 27 April 2017. D1 had used a pair of pliers to show PW1’s loose teeth to PW2 and had discussed the method of treatment, i.e. dental implantation and fees for treatment with them on 27 April 2017. Significantly when PW1 was cross-examined that PW2 mentioned in her presence on 27 April there was another dentist and not D1 that would treat her PW1 disagreed.

129.  The minor inconsistencies as to the content of the conversations at dinner on 27 April 2017 and what was said in the clinic earlier were minor. They did not affect PW1 or PW2’s overall credibility.

Ground 2

The Magistrate erred in accepting the Prosecution’s case (and rejecting the Defence’s case) on the basis of a wrong finding as regards the number of bridges fitted in PW1’s mouth

130.  Mr Chan submitted that the Magistrate erred in finding that a total of three bridges were inserted into PW1’s mouth and thereby erred in accepting the evidence of PW1 and PW2 and rejecting the Defence’s case in this regard on the basis of the said erroneous finding.

131.  Firstly the magistrate erred by rejecting the defence case that the Whatsapp message to PW2 saying “Sony I have already redone it thrice” that the redo was never about inserting a bridge into PW1’s mouth three times but redoing or remaking one that D1 broke himself.

132.  Secondly the magistrate erred in accepting the evidence of PW1 that a second bridge was inserted on the 13 June as evidence of the insertion of the second bridge was made before PW1 recanted her evidence ( on the second day of trial) and therefore according to PW1’s evidence at that time (on the first day of trial) the first bridge had never been installed. Therefore on the basis of PW1’s evidence there were never three bridges installed.

133.  Thirdly even on her evidence which she recanted that on 7 June 2017 a bridge was installed, PW1 did not testify to any removal of an already inserted bridge on 8 June or 13 June 2017. Therefore on PW1’s evidence no insertion of a new bridge was possible on 13 June 2017 as one had already been installed on 7 June.

Consideration

134.  I have dealt with the number of bridges inserted into PW1’s mouth above. The magistrate was wholly justified in finding on the evidence that on three sets bridges had been inserted into PW1’s mouth on the 7 and16 June and 6 July 2017.

Ground 3

The Magistrate’s impermissible use of hearsay evidence

135.  Mr Chan submits that the magistrate erred in relying on the Whatsapp messages between D1 and PW1 on 27 June 2017 in Exhibit P9 and P9A in finding as a matter of fact that there was a meal on 27 April 2017 two months earlier. The magistrate stated:

“186. I noticed from the whatsapp message at 1704 hours dated 27 June 2017 between PW1 and D1 (P9 and P9A), in which PW1 wrote that -

‘You said that each (tooth) costs 30,000 (dollars and) the quotation was 300,000 (dollars). When (we) had meal, you said that (you’d) reduce it to 150,000 (dollars) to help me and it could be paid in instalments .... I could recover my appearance when I get it done ...’

187. The content of this whatsapp message was not disputed by Defence. Therefore, I believed that there was indeed a meal between D1 and PW1 and PW2, and DW4, in which they came to an agreed price i.e. $150,000, during a meal.” (emphasis added)

136.  Mr Chan contended that it was impermissible for the magistrate to rely on the statement as the truth when it was only admissible to prove the fact that it was made. The magistrate’s finding that a meal occurred on 27 April 2017, as well as the contents discussed therein, was strictly dependent on taking into account the prior consistent WhatsApp statement for the truth of what it asserted. This was a blatant breach of the hearsay rule which undermined the correctness of the magistrate’s conclusions in this regard.

Respondents reply

137.  The WhatsApp communications between PW1 and D1 [P9 and P9A], PW2 and D1 [P10 and P10A] and PW2 and D2 [P11 and P11A] had been admitted by way of s.65C, with the parties agreeing that the WhatsApp messages have not been tampered with and the chain of evidence were not in dispute.

138.  There was no dispute that the relevant WhatsApp communications had been sent and received by the respective parties. It was not put to PW1 and PW2, that the content of the WhatsApp communications were inaccurate or fabricated.

139.  In this case, throughout the trial, both the prosecution and the defence relied on the WhatsApp communication between the parties to prove their cases.

Consideration

140.  The Whatsapp messages were admitted by the parties. It is clear that the parties relied on the Whatsapp messages to prove their cases. As is illustrated even in Mr Chan’s ground 4A(iii) below, the defence relied on the Whatsapp communication between PW2 and D1 to show negotiations as to the dental fees as to the truth of what was said not only as to the fact that were said. The magistrate found the Whatsapp communication was supportive of PW1’s oral testimony to the extent only that there was a meal on 27 April 2017. There is no substance in this ground and there was no breach of the hearsay rule.

Ground 4A –

Place and content of the first meeting between PW1, PW2 and D

141.  Mr Chan submits that the magistrate erred in finding that the only reasonable inference that PW1 consulted D1 on 27 April 2017 was for dentistry advice. It was contended that it appears that the magistrate took the view that based on the evidence, it was more “reasonable”, “natural”, “sensible” and “logical” that PW1 consulted D1 for dentistry advice at the Clinic on 27 April 2017 because: (i) it would make no sense for PW1 to seek advice for her dental problems from a dental technician rather than a professional dentist, and that (ii) without dentistry advice, it would have been too “hasty”, “impulsive” and “drastic” for PW1 to have decided to undertake a complicated dental procedure during her next visit with D2 on 31 May 2017.

142.  It was submitted that these findings were not the only reasonable inferences that could be drawn from the evidence, particularly in view of the following.

(i) D1 and PW2 had a prior personal relationship of over 20 years there was nothing unnatural for PW1 and PW2 to wish see D1 a person whom PW2 was already acquainted with.

(ii) As PW1 had already consulted other dentists and according to PW2 and D1’s evidence had decided on dental implants it was not the case that PW1 rushed into a decision of removing 9 teeth in one go without thorough consideration before the operation, without professional advice.

(iii) PW1 knew well in advance of meeting D2 what she wanted to do and how much the dental treatment was to cost as a result of negotiations between PW1 and PW2 on the one hand and D1 and PW2 prior to 31 May 2017 as shown in the relevant Whatsapp records in Exhibit P10/P10A.

Consideration

143.  I accept Ms Khubchandani’s submissions in reply on this ground. It is inconceivable that PW1 would rely on advice by a dental technician to provide crucial dentistry advice when she had consulted other dentists already. Had PW1 and PW2 known that D1 was a dental technician and not a dentist, it would be unreasonable, illogical and foolhardy to entrust D1 with PW1’s teeth, looks and ability to eat rather than a dentist. The only reason why PW2 would have taken PW1 to consult D1 is because PW2 believed he was a dentist and not because she had known him for 20 odd years.

144.  In addition, D2 only saw PW1 for the first time on 31 May 2017. He examined her teeth then removed nine teeth from her mouth, an extremely large amount of teeth. Although PW1 had consulted other dentists it was D1 who had told PW1 and PW2 that PW1 needed to have eight dental implants and hence the removal of eight teeth. There was no evidence that any other dentist had told her she needed to remove so many teeth. It was therefore reasonable for the magistrate to conclude that PW1 had consulted D1 previously on 27 April and thereafter PW1 had given consideration to her decision to remove at least eight teeth.

Ground 4B –

Whether D1 clarified to PW1 that he was not a dentist

145.  It was D1’s submissions that the magistrate’s finding that she did not believe D1 had explicitly indicated that he was not a registered dentist to PW1 and PW2 was not justified, given PW1 herself deliberately changed her reference to D1 from “Dr Chan” on 1 June 2017 to “Mr Chan” on 11 and 27 June 2017 and 10 July 2017 in her WhatsApp messages with D1 in Exhibit P9/P9A. PW1 did not change back to referring to D1 as “Dr Chan” in WhatsApp messages until 3 August 2017, when she was already in active preparation to make a complaint against D1.

Consideration

146.  I also accept the submissions by the respondent in reply to this ground. The points raised by D1 has been thoroughly considered by the magistrate in her SOF from paragraph 266 to 277. Firstly when PW1 initially addressed D1 as Dr Chan in the Whatsapp message P9/P9A on 1 June 2017, D1 as would be expected, importantly did not reply in writing that he was not dentist.

147.  The magistrate rejected D1’s explanation that he had called and told PW1. She accepted PW1’s evidence that she changed to call him Mr Chan as D1 asked PW1 to call him John not long after a few procedures, as there were more familiar he asked her to call him John just like her sister.

148.  In addition to Ms Khubchandan’s submissions if D1 had told PW1 that he was not a dentist it is irreconcilable why PW1 asked for D1’s Chinese name. On 3 August 2017 PW1 sent D1 a Whatsapp message asking for his Chinese name. In that message she addressed D1 as Dr Chan. D1 however did not respond to her. PW1 explained the reason for her asking for D1’s full name was that her daughter-in-law was unable to find D1’s name “John Chan” from the register of dentists. It is evident that up until 3 August 2017 PW1 considered D1 was a dentist. It was of no surprise that D1 did not respond to PW1’s Whatsapp message and therefore did not give his Chinese name to PW1 because he was alerted that PW1’s daughter in law was looking him up to see if he was a registered dentist. The magistrate was correct to state by then, D1 was made aware that PW1’s family member(s) had certain knowledge of dental practice.

149.  The magistrate was fully entitled to find on the evidence that D1 did not tell PW1 he was not a dentist. Moreover PW1’s belief that D1 was a dentist is demonstrated by the magistrate’s acceptance of PW1’s genuine belief that D1 was a dentist when PW1 said in evidence[8] all along, she thought undergoing dental treatment in Hong Kong was safe, she had never thought there would be unregistered dentist’s in Hong Kong, until her daughter-in-law told her there were many.

Ground 4C – D1’s role on 31 May 2017

150.  The magistrate erred in rejecting D1’s testimony that he only helped D2 to prepare the saliva machine on 31 May 2017 by taking into account erroneous or irrelevant facts that DW4 could have done it and DW4 did not testify why she did not do so. The fact was D2 gave evidence that both D2 and DW4 were occupied preparing for teeth extraction is why D1 was asked to help prepare the suction machine.

Consideration

151.  The magistrate considered D1’s claim that he had been requested to connect a saliva machine when he was in the lab. She did not accept D1’s account that he had to come all the way from the lab to do this job. Even if the magistrate’s finding that anyone could have plugged in the suction machine was irrelevant she was fully entitled to reject D1’s testimony as she accepted after careful consideration PW1’s evidence as to what D1 did on 31 May 2017.

Ground 4D – D2 failing to make a treatment record on Exhibit P8 in respect of 26 June 2017

152.  The magistrate erred in rejecting D2’s explanation that he forgot to make a record of removal of PW1’s bridge on 26 June 2017 because he was hurrying to his daughter’s birthday. There was undisputed evidence that it was D2’s birthday that day and it was admitted and accepted by D2 that he did not maintain a practice of keeping all PW1’s treatment records in detail. Therefore the rejection of D2’s evidence led to the magistrate’s unjustified conclusion that D2 did not remove PW1’s bridge on that day and there was no treatment at all by D2.

Consideration

153.  I have dealt with this above. In arriving at her finding the magistrate considered PW1 and PW2’s evidence in addition to the Whatsapp communications between PW2 and D1 on 24 June and between PW1 and D1 between 13 June 2017 on 25 June 2017.

154.  In relation to D2’s failure of recording the removal of PW1’s bridge on 26 June because he was hurrying home for his daughter’s birthday and therefore omitted to make any record in the treatment record P8 the magistrate found as follows and was entitled to reject his explanation. At 281 of the SOF finding the magistrate stated :

“218. A medical record of a patient was an essential record. Removing a bridge from a patient was an important step in the treatment. I found it unconvincing that the record was missing because D2 was hurrying to his daughter’s birthday. I found, as a professional dentist, keeping a patient’s accurate record of treatment and progress, was much more important than a mere birthday party. I did not accept D2’s explanation. Rather, I could draw an only and irresistible inference that - D2 did not treat PW1 at all on 25 June 2017 or 26 June 2017, that is why, there was no such record of treatment on P8.”

Ground 5: the Magistrate placed improper weight on certain evidence which was irrelevant or inadmissible against D1

155.  Mr Chan submitted that the magistrate took into account several matters which were no more than background context upon which no weight should have been placed as evidence against D1, and ought not to have featured at all in the magistrate’s reasons for rejecting the defence’s case.

(i) The magistrate wrongly took into account PW2’s alleged dental appointments with D1 prior to the charge period and on 27 April 2017 as similar fact evidence in finding that D1 provided dental treatment to PW1 on 27 April 2017;

(ii) The magistrate wrongly took into account D1’s alleged holding out or conducting dental treatments as a dentist to his friends or friends of PW2 and

(iii) The magistrate erred in placing weight and and/or allowing herself to be improperly influenced by PW1’s then appearance in Court which was irrelevant:

Consideration

156.  It was clear from the magistrate’s SOF that she relied on PW2’s and PW2’s friends previous dealings with D1 as a dentist only as background explaining why PW2 introduced and took PW1 to consult D1. PW2 thought highly of D1 as a dentist. Given the treatments she received from D1 she found him worthy of introducing her sister PW1 to D1. It is significant that PW2 mentioned she had previously received dental treatment from D2 yet PW2 still referred PW1 to D1 and not D2.

157.  The magistrate did not rely on the evidence of PW2 as similar fact evidence nor evidence to prove D1’s propensity. The magistrate explained that although PW1’s daughter-in-law was a dental nurse whose brother was a dentist, PW1 did not consult them in the beginning but consulted D1 on PW2’s recommendation. The magistrate relied upon it as background evidence and not similar fact evidence or evidence to show propensity.

158.  PW1’s appearance was referred to by the magistrate as she was curious why PW1 was wearing a hat in court throughout. The magistrate also wished to know PW1’s health condition. The magistrate’s perception of PW1’s physical appearance was an observation she was entitled to make and set out. There is no merit in the submissions that the magistrate was improperly influenced by PW1’s appearance in court.

159.  There are no merits in any of D1’s grounds of appeal.

D2’s Grounds of Appeal

160.  D2 relies on a single ground of appeal and contends that there is a lurking doubt as to whether D2 had committed either offence (Charge 8 and charge 9), and accordingly, having regard to all the circumstances, the convictions of D2 were unsafe and unsatisfactory. The particulars are as follows:-

1.1 The magistrate erred in accepting “entirely” the evidence of PWs 1 and 2, because there were inconsistencies in their evidence, they having at various times during their testimony given different versions of the same events, thus casting serious doubt on the reliability of their evidence.

1.2 The magistrate erred in comparing the evidence of the prosecution witnesses and defence witnesses as a basis for rejecting the evidence of the defence witnesses.

1.3 The magistrate unfairly rejected the contents of the D2’s contemporaneous clinical records, finding them to be too brief and lacking in detail, without expert evidence in respect of the status of those records.

1.4 In rejecting the evidence of D2 the magistrate provided no or no sufficient reasons for doing so.

1.5 The magistrate made findings of fact based on speculation and supposition, in circumstances where there was no or no sufficient evidence to support those findings.

Ground 1.1 The magistrate erred in accepting “entirely” the evidence of PWs 1 and 2, because there were inconsistencies in their evidence, they having at various times during their testimony given different versions of the same events, thus casting serious doubt on the reliability of their evidence.

161.  Mr John Reading SC submitted that in accepting the evidence of both PW1 and PW2, and rejecting that of the defence, the magistrate seemed to have based her reasoning primarily, if not solely, on the basis that she did not believe the prosecution witnesses would make up the allegations because they did not want to pay for the outstanding balance for the treatments.

162.  Although this ground also referred to inconsistencies within PW1’s evidence the inconsistencies were not set out clearly in the submissions but buried amongst the extensive submissions regarding all of the witnesses evidence. I have endeavoured to find and list them below from the submissions filed. Moreover clouded amongst the submission it appears that Mr Readings submissions also relies on the inconsistencies of PW1’s evidence and the defence witnesses evidence and how the magistrate erred in accepting PW1’s evidence and rejecting the defence evidence.

163.  So far as I can glean from the submissions the inconsistencies in PW1’s evidence and the error in accepting PW1’s evidence referred to by Mr Reading are as follows:-

(1) In PW1’s oral evidence she left without teeth on 31 May 2017 and could not eat however during cross examination PW1 agreed that she went PW2 a Whatsapp message on 1 June stating she was able to eat[9];

(2) PW1 stated that she did not know who would perform the dental treatment on her on 31 May 2017. In this regard D1 had sent a Whatsapp message to PW2 on 28 May 2017 at 2322 hours specifying that PW1’s appointment on 31 May 2017 was with D2 [10](exhibit P10);

(3) In relation to the treatment on 31 May 2017, the magistrate erred in rejecting D2 was the person doing the dental treatment on PW1 and erred in relying on PW1’s voice identification of D1 as the one doing the treatment (voice identification) when D1 was not present.

(4) In relation to the evidence of 7 June 2017, PW1 stated on the 1^st day of trial that she left without teeth, however on the second day of trial PW1 retracted her evidence asserting that she left with teeth in her upper jaw[11] ( that is a bridge inserted in her mouth); PW1’s revised account on the second day of the trial mirrored D2’s evidence which is consistent with and corroborates D2’s evidence[12]. PW1’s change of her evidence cast a substantial doubt on the reliability of PW1’s evidence[13].

(5) PW1 change of evidence on 7 June was significant as she changed her evidence from alleging having a dental mould on 7 June 2017 inserted on the first day of trial to have a set of teeth being inserted on the second day of trial which was two entirely different objects.

164.  In relation to the treatment on 31 May 2017, Mr Reading submitted that as PW1 said her eyes were covered by a black cloth during the procedure, she could not see clearly. PW1 also stated that she concluded D1 carried out the procedures on her by listening to D1’s voice and felt his arm resting on her head. It was further submitted that the dental procedures were complicated and required a high level of skill. It would seem to have been impossible for D1, a technician who received no dental training and only learned his craft through apprenticeship to perform any of the sophisticated dental procedures that were allegedly performed. In the circumstances, the magistrate erred in accepting PW1’s voice identification of D1 and in accepting that D1 a technician could perform the sophisticated dental procedures.

165.  It was D2’s case that PW1’s evidence was inconsistent with DW3’s evidence on 7 June 2017. DW3 was an independent witness who stated that she left the clinic after the set of teeth was placed into PW1’s mouth. That is that the installation of the bridge was completed and successful. PW1’s initial evidence on leaving without teeth on 7 June 2017 was inconsistent with DW3 when it was clear that DW3’s evidence was correct. It was illogical for the magistrate to accept PW1’s revised evidence that although the bridge was installed it was incomplete or not successfully installed.

166.  It was Mr Readings submissions that the inconsistency in PW1’s evidence in relation to leaving the clinic without teeth to with teeth on 7 June 2017 was significant, so illogical and substantial that none of her evidence could be salvaged and the magistrate should not have relied upon PW1’s evidence[14]. The inconsistency was a material irregularity in PW1’s evidence and the magistrate erred in accepting PW1’s evidence[15].

167.  The evidence given at trial was that that a dental mould was a cast made from impressions taken from the patient’s mouth after her teeth had been removed and the implants attached to her upper jaw using screws. The mould was then used as the template for manufacturing the bridge, which would later be attached to the implants. PW1 used the word dental mould inserted on the 1^st day of trial and changed her evidence from a dental mould to a bridge or a set of teeth on the second day of trial. PW1 was all along deliberate in her choice of words. It was clear that she could differentiate between a dental mould and an actual bridge or set of teeth, and hence, chose to refer to them using different terms. This was significant as they were two entirely different objects. This cast doubt on the accuracy of PW1’s evidence.

Consideration

168.  The reasons set out in relation to the non payment of the balance was one of the reasons the magistrate gave in her detailed reasons for accepting PW1 and PW2’s evidence it was not the primarily base for accepting the prosecution witnesses because they did not want to pay for the outstanding balance for the treatments.

169.  The relevant findings in relation to the payment of the outstanding sum was stated at paragraph 291 and 295 of SOF as follows:

“291. I had observed and considered all the evidence of PWl, I found PWl had been an honest woman, who accepted her sister PW2's offer to consult D 1, PW2' s long-time friend, for dental treatment. All along, PW 1 had trusted in Dl was a registered dentist. Only when the bridge did not fit in and she had pain and suffering, then, she complained to D 1 and D2. I found PW 1 simply wished to have a set of new bridge that could fit in, so that she could lead a new life with teeth. And, PW2 had already undertaken to pay for her by instalment at the time. I did not believe that PWl needed to make up such a long story to frame up D 1 and D2 merely because she was unhappy or dissatisfied or did not want to pay the outstanding sum. I found PWl was an honest, credible and reliable witness. I accepted all her evidence.

...

295. PW2 explained that she had not settled the sum because the work done was far from satisfactory, and PW1 suffered so much[16]. I did not believe PW2 made up all these allegations against D1, a long time old friend, merely because she did not want to pay the outstanding sums.”

170.  At paragraph 277 the magistrate stated :

“277. I observed the demeanor, response and tone of PW1 when she testified. I found PW1 was all along very natural, spontaneous, direct, frank, straightforward, honest and genuine.”

171.  As regards identifying that it was D1 doing dental treatment on 31 May 2017. There was no dispute that PW1 met D2 for the first time on 31 May 2017. PW1 had already met D1 on 27 April 2017 and went with him for a meal that same day. PW1 evidence was that after her teeth were extracted she waited for about 45 minutes until the bleeding had stopped. She then went into room 212 together with DW4, D1, D2 and PW4. DW4 and D2 went to the left side of the room and sat down whilst D1 and PW1 went to the right side of the room. PW1 then lay on the medical bed. D1 put a black cloth over PW1’s eyes however light could still go in. Whilst D1 was talking to PW1, D1 leaned onto PW1’s head and gave her a LA injection on her upper mouth. D1 then kept drilling inside the upper part of her oral cavity and pressed on her head for about 20 minutes. D1 kept putting in and taking out something from her mouth. During the drilling D1 and D2 were chatting to each other.

172.  On 31 May 2017, D1’s voice would have been more familiar to PW1 than D2’s voice. PW1 did not say she was unable to see anything through the black cloth. PW1 said there was still light coming through the cloth. Immediately prior to the cloth being placed over her eyes PW1 saw D1 next to the dental chair before the treatment began. This was not a situation of PW1 identifying D1 purely by his voice. D1 was at all material times speaking to PW1 before the cloth was placed over PW1’s eyes. PW1 had seen D1 immediately before any treatment began. PW1 had seen D2 and DW4 sitting in another part of the treatment room. The magistrate was therefore justified in concluding on all the evidence that PW1 correctly identified it was D1 who did the drilling.

173.  Turning to the credibility of PW1 the magistrate clearly set out under paragraphs 282 to 289 her analysis of the credibility of PW1.

“287. I found PW1 did not present to be a person who did not want to pay for the outstanding sum. I was not impressed or convinced when Defence submitted that PW1’s replies above were attempts to gain sympathy. I thought any reasonable person would have some sympathy seeing her situation. I observed that even Dr Chung, D2, had some sympathy as he frankly admitted in his testimony.

288. Throughout the trial, PW1 had tried her best to recollect the incidents that happened in 2017. Most of the time, she was assertive and spontaneous. Also, she gave vivid details of what had happened in the Dental Clinic. I found only a person who had actual personal experience of the incidents, could provide such details. She was also honest enough to clarify during the next day of the trial that a new bridge was installed in her mouth on 7 June 2017. I found PW1 was honest, consistent, credible, straightforward and she had no exaggeration. She was unshaken during cross examination.”

174.  It was apparent at the hearing of appeal that PW1 had at trial used different Punti (Chinese) words or terms as to what was put into her mouth. All counsel subsequently filed further submissions as to those words used and when PW1 referred to them in the context of her evidence. PW1 had used the words “dental mould” “a set of teeth”, “artificial teeth,” ”dental bridges,” “dental implants,” and “permanent bridge”. Two different English terms were used for the same Punti words (牙模), they were “dental mould (牙模),” and impression (牙模).

175.  On the first day of trial PW1’s said on 7 June 2017 Dr Chung put on the “dental mould” for me” she then said she left the Clinic without teeth. On the second day of trial PW1 corrected herself that after Dr Chung inserted the dental mould for her she actually left with teeth in her upper jaw. Under cross-examination by the defence PW1 agreed that D2 had inserted a permanent bridge for her on 7 June 2017.

176.  Given the procedures that took place PW1’s evidence that D2 inserted a dental mould on 7 June 2017 PW1 was clearly referring to the bridge with 14 artificial teeth. It is understandable how PW1 a lay person could be mistaken in using the incorrect words or terminology. As demonstrated from the transcript at trial there were a variety of different words used for the bridge by the magistrate and counsel for the Prosecution Mr Fan and Mr Reading. The bridge with 14 teeth was referred to as “false teeth,” “artificial teeth,” “a full set of upper teeth, albeit artificial teeth” “a bridge, ” “ upper permanent bridge ” “bridge implant,” “implant,” “implants,” and “the dental bridge.”

177.  On the expert’s evidence it was the undisputed evidence that the dental mould or impression was taken on 31 May 2017. What is abundantly clear from all the evidence is that what was to be inserted into PW1’s mouth on 7 June 2017 was the bridge containing 14 artificial teeth. I am satisfied that although PW1 used the words dental mould on 7 June PW1 reference was to bridge and this inaccuracy did not cast doubt on PW1’s evidence.

178.  As to the other grounds and events relied upon by Mr Reading as to the events on 7 June 2017 those have been dealt with above in relation to D1’s ground. There is no substance in this ground.

179.  There is no inconsistency as to whether PW1 could eat or not eat. PW1 said she could not eat on 31 May yet told PW2 she could eat on 1 June. These are two different days. However even if they referred to the same day it was a minor inconsistency and immaterial in all the circumstances.

180.  The fact that D1 told PW2 that PW1 was going to see D2 in a Whatsapp message is does not mean PW1 had knowledge that she knew she was going to see D2. The message was not sent to PW1 but to PW2. There is no inconsistency at all.

1.2 The magistrate erred in comparing the evidence of the prosecution witnesses and defence witnesses as a basis for rejecting the evidence of the defence witnesses.

181.  In demonstrating the magistrate compared the evidence of the prosecution and defence witnesses Mr Reading referred to paragraphs 303-307 of the SOF. Earlier in her SOF at paragraph 194, when dealing with the issue of payment, the magistrate merely said she found PW1 and PW2’s version reasonable and credible as she found D1 and D2’s not reasonable. It was averred that this was erroneous and contrary to law. D2 relied on to Chan Wing-yuen v The Queen [1977] HKLR 186[17], wherein, McMullin J. held:

“1. In deciding whether a charge has been proved beyond a reasonable doubt it would be wrong for a judge or magistrate the balance the defence and prosecution stories against each other and to conclude that the case has been proved on the basis that the defence story must be rejected, and that consequently the prosecution story must be accepted.”

Consideration

182.  Paragraphs 303 to 307 of the SOF deals with the issue if D2 aided and abetted D1 in practicing dentistry. There is nothing in those paragraphs where the magistrate has compared the evidence of the prosecution and defence witnesses. Contrarily the magistrate expressly stated at paragraph 306, “having considered D2’s evidence as a whole, I did not accept his evidence.” Moreover the magistrate demonstrated throughout the findings her acceptance of PW1’s evidence with reasons and the rejection of D2’s evidence.

183.  At paragraph 194 of the SOF the magistrate was dealing with the issue of whether it was D1 or D2 who determined the fee and the question of $150,000 and the payment method.

“194. I found PW1 and PW2’s version reasonable and credible. I found D1 and D2’s version not reasonable. I did not accept D1 and D2’s version. I accepted PW1 and PW2’s evidence that after discussion, D1 decided the agreed fee for PW1’s dental treatment would be $150,000 and PW2 could pay by instalment next year.”

184.  The magistrate was alive to the defence case that it was D2 who determined the fee. The magistrate considered the evidence and the Whatsapp message between D1 and PW2 about the financial constraints of PW2 in paying the fees on 31 May 2017. She found D1 did not reject PW2’s proposal and said “I’ll help her”. D1 did not say he would discuss with D2. The magistrate did not believe that D1 being the sole shareholder of the clinic and who shared profits with D2 50/50 had no say in the fees but had to consult D2 to determine the price and payment. As D2 did not put his version of events of fees stated in his testimony when cross-examining PW1 the magistrate gave no weight to D2’s version of proposed fees.

185.  After careful consideration of the evidence it was plain that the magistrate was not comparing the witnesses evidence but rejected D1 and D2’s evidence.

1.3 The magistrate unfairly rejected the contents of the D2’s contemporaneous clinical records, finding them to be too brief and lacking in detail, without expert evidence in respect of the status of those records.

186.  Mr Reading complains that the magistrate simply disregarded the written dental records, the clinical notes when they were inconsistent with PW1’s oral testimony on the basis that they were inaccurate and brief.

187.  Moreover, the magistrate suggested that the record was inaccurate as all previous records were brief except for the record on 10 July 2017. Despite there being no evidence to support the magistrate’s conclusion, she concluded the only reason for this disparity was D2’s realization that PW1’s daughter in law was a dental nurse, a fact that was communicated between PW1 and D1 on 28 June 2017; and that D2 therefore started to make detailed written records to pre-empt any future actions. Not only was this purely speculative but the magistrate was in no position to comment nor decide whether a dentists record was “too brief.” Mr Reading contends that there was no expert evidence given at the trial as to the requirements of the entries. The prosecution had cross examined D2 in relation to the Code of Professional Discipline for the Guidance of Dental Practitioners in Hong Kong (“the code”) but the prosecution had failed to prove any breach of the Code regarding the dental records. Hence it was speculative for the magistrate to suggest the dental records made by D2 were substandard to the extent that there was an evidential basis for challenging the truthfulness of the records.

188.  Further, the magistrate’s conclusion was made without properly addressing the defence submission that a minor inaccuracy in the dental records should not affect the weight of what they showed.

Consideration

189.  The magistrate’s rejection of the dental records have been dealt with above under D1’s grounds. The magistrate carefully considered the dental records and was entitled to attach no weight to them. It was not necessary for the prosecution to prove a breach of the code. From all the evidence presented the magistrate was entitled to find that D2 started to make detailed written records to pre-empt any future actions. There was a sudden change from brief or none at all to unnecessarily detailed in relation to the appointment on 10 July 2017.

190.  As the magistrate stated at paragraph 218 of her SOF referred to below she made a specific finding that as there was no record at all on 25 or 26 June 2017 in the dental records of any treatment D2 did not treat PW1 at all on 26 June 2017.

1.4 In rejecting the evidence of D2 the magistrate provided no or no sufficient reasons for doing so.

191.  It was submitted that the magistrate gave no or no specific reasons for rejecting the evidence of D2 a professional man of impeccable character and high reputation.

Consideration

192.  The magistrate was aware that D2 was of clear record and hence of good character and a professional dentist and a registered specialist in prosthodontics. She gave herself the Berrada direction as to credibility and propensity. As stated above the magistrate when considering the evidence of D2 gave cogent reasons for rejecting D2’s evidence.

193.  For a dentist with an impeccable reputation the magistrate was rightly not impressed with D2’s record keeping and giving priority to his daughter’s birthday over his professional tasks. In the SOF at paragraph 218 she stated:-

“218. A medical record of a patient was an essential record. Removing a bridge from a patient was an important step in the treatment. I found it unconvincing that the record was missing because D2 was hurrying to his daughter’s birthday. I found, as a professional dentist, keeping a patient’s accurate record of treatment and progress, was much more important than a mere birthday party. I did not accept D2’s explanation. Rather, I could draw an only and irresistible inference that – D2 did not treat PW1 at all on 25 June 2017 or 26 June 2017, that is why, there was no such record of treatment on P8.”

194.  The magistrate also remarked that D2 had testified that he was not responsible for administrative work yet he demanded payment by sending out two invoices. The magistrate found peculiar and unnatural that D2 suddenly took up the work of a dental assistant or an accounting staff in dealing with PW1’s case from July 2017 onwards. She was entitled to find that D2’s sudden change of role in collection of PW1’s fee was too deliberate, unnatural and pre-emptive and defensive[18]. All these findings concerned D2’s credibility. The magistrate had considered D2’s evidence carefully and provided detailed reasons in her SOF for rejecting D2’s evidence and specifically referred to various issues.

1.5 The magistrate made findings of fact based on speculation and supposition, in circumstances where there was no or no sufficient evidence to support those findings.

195.  D2 also submitted that the magistrate erred to have found three sets of artificial teeth or bridges were installed in PW1’s mouth when D2’s clinical notes suggested that there were only two such installations. Mr Reading contends that the magistrate erred in relying on the time line of the Whatsapp message conversations between D1 and PW1 as well as parts of PW1 evidence instead of relying on the clinical notes compiled by D2 (exhibit P8). D2 contends the inference from the Whatsapp messages that the bridge was removed on 25 June was not the only reasonable inference to draw.

Consideration

196.  The magistrate’s finding of having three sets of artificial teeth or bridges installed in PW1’s has been dealt with above in D1’s grounds. PW1’s evidence was relied upon by the magistrate and her evidence was supported by the detailed Whatsapp messages exchanged between PW1 and D1 and the time line of the messages. The magistrate did not base her findings of fact on speculation and there was clear evidence to support her finding. The clear and distinct time line in the Whatsapp messages exchanged between PW1 and D1 was consistent with and supported PW1’s evidence.

197.  There is no lurking doubt as to the magistrate’s conviction of D2 in relation to both charges. There being no merit in any of the grounds of appeal D2’s appeal against conviction is dismissed.

Discussion generally to D1 and D2’s grounds of appeal

198.  A number of the grounds of appeal and the challenges as to the credibility of PW1 and PW2 were already canvassed in the defence submissions before the magistrate at the trial. The magistrate was meticulous in dealing with the submissions and issues raised by the defence. The magistrate gave an extremely thorough, detailed, careful and full assessment of the evidence of both the prosecution witnesses and the defence witnesses. The magistrate considered the evidence individually on each and every charge. After observing and hearing all the witnesses she concluded that PW1 and PW2 were honest witnesses. She found PW1 was an honest, consistent, credible and straightforward witness. She concluded that PW1 and PW2’s evidence was to be relied upon. I am wholly in agreement with the magistrate. The magistrate’s approach to the reliability of PW1 and PW2’s evidence was sound and the facts provided a substantial case against the defendants. In reviewing PW1’s evidence the magistrate was correct to reject the defence case that PW1 was framing or fabricating her evidence against D1 and D2. The magistrate giving her reasons was entitled to reject DW4’s evidence as untruthful and unreliable in addition to the fact that she was not an independent witness as D1’s wife and D2’s dental assistant at the Clinic. I found no merits in the criticism fully and ably argued by Mr Derek Chan SC and the submissions Mr John Reading SC.

Conclusion

199.  The magistrate made no errors in law or fact in convicting D1 and D2 for the above offences. I am satisfied that all these convictions were neither unsafe or unsatisfactory.

200.  The appeals by D1 and D2 against their convictions are accordingly dismissed.