DR. DENG YUMENG AND ANOTHER v. THE DENTAL COUNCIL OF HONG KONG

cacv 157/2005 AND CACV 160/2005

CACV 157/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 157 of 2005

(on appeal from the order of the dental council
of hong kong made on 7^th april 2005)

______________________

BETWEEN

AND

CACV 160/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 160 of 2005

(on appeal from the order of the dental council
of hong kong made on 7^th april 2005)

______________________

______________________

J U D G M E N T

______________________

Hon Rogers VP:

1.  These were appeals from orders of the Dental Council of Hong Kong made on 7 April 2005 whereby the appellants were found guilty of unprofessional conduct and were ordered “to be verbally admonished” and it was ordered that the order would not be published in the Government Gazette.  At the conclusion of the hearing of this appeal, this court reserved its judgment which we now give.

2.  In 2002 the Dental Council received anonymous letters, some of the writers claiming to be dentists, in respect advertisements for dental services.  On previous occasions this court has commented on the fact that anonymous complaints in relation to professional disciplinary matters are the work of cowards and those who are willing to wound but afraid to strike.  In normal cases, anonymous complaints should be consigned to the wastepaper basket.  Nevertheless, it is an unfortunate facet of current professional regulation that professional bodies feel themselves bound to investigate even complaints raised in such a despicable manner.

3.  The first appellant in CACV 160 of 2005 (“the first appellant”) qualified in Beijing where she obtained a PhD specialising in occlusal factors of temporomandibular joint disorders in children.  In the early 1990’s she was a visiting researcher in the United States and later moved to Hong Kong and obtained a postgraduate diploma in dental surgery at Hong Kong University.  She moved to Canada where she qualified in dentistry and worked as a dentist.  Later she obtained an Advanced Diploma in orthodontics at Hong Kong University.  She has an undoubtedly impressive research and academic record in dentistry and has extensive work experience both in Hong Kong and abroad.

4.  Returning to Hong Kong in April 2001, the first appellant had the misfortune to notice an advertisement in the newsletter of the Hong Kong Dental Association.  That concerned a vacancy available at a clinic.  She applied for that post.  It was in a clinic in Causeway Bay.  When she went there, she saw dentists working and she became aware that the clinic had been in business for more than one year.  She was interviewed by a dentist who worked at the Central Branch of the clinic.  She took employment as a part-time dentist, working only one afternoon a week at the Causeway Bay branch.  After she joined the clinic, in July 2001, she attempted to discover who was in charge.  The staff told her that one of the other dentists was a director and that he had been the first dentist to work in the clinic.  The x-ray machine licence was registered in his name.  The business closed in February 2003.

5.  On 5 July 2003 the first appellant was sent a notice of a meeting of the Preliminary Investigation Committee (“PIC”) of the Dental Council.  In that letter, the secretary of the PIC informed the first appellant that complaints had been made of her that, being a registered dentist, she had associated with ASIA-Health Care Management & Services Ltd (“AHMS”) which had been involved in canvassing for the purposes of obtaining patients.  The first appellant replied that she had had absolutely no knowledge of any such canvassing at all and that she had been employed by Allied York Limited (“Allied York”).

6.  The PIC held a meeting on 12 August 2003.  At that meeting the legal adviser drew the members’ attention to the provisions of section 12 of the Dental Registration Ordinance Cap. 156 (“the Ordinance”).  Those provided:

“(1) A body corporate may carry on the business of dentistry if-

(a)  it carries on no business other than dentistry or some business ancillary to the business of dentistry; and

(b)  a majority of the directors and all persons practising dentistry are registered dentists:

Provided that a body corporate which was carrying on the business of dentistry before the date of commencement of this Ordinance shall not be disqualified from carrying on the business of dentistry under this section by reason only that it carries on some business other than dentistry or a business ancillary to that business, if that other business is a business which the body was lawfully entitled at the date of coming into operation of this Ordinance to carry on.

(2) Save as aforesaid it shall not be lawful for any body corporate to carry on the business of dentistry, and any body corporate which carries on the business of dentistry in contravention of the provisions of this section and every director and manager thereof, subject to subsection (2A), commits an offence and is liable on summary conviction to a fine of $2000 for each offence.

(2A) Where a person is charged with an offence under subsection (2) by reason of being a director or manager, it shall be a defence for him to prove that the offence alleged to be committed by the body corporate was committed without his knowledge.

(3) Every body corporate carrying on the business of dentistry shall within 7 days of 1 January in every year transmit to the Registrar a statement in the prescribed form containing the names and addresses of all persons who are directors or managers of the company, or who perform dental operations in connection with the business of the company, and, if any such body corporate fails so to do, it shall be deemed to be carrying on the business of dentistry in contravention of the provisions of this section.

(4) Nothing in this section shall prevent the carrying on of the business of dentistry by the operating staff of any hospital of any description (including an institution for out-patients only), or of any dental school, which is approved for the purposes of this section by the Chief Executive in Council.”

7.  The matter was left over until the meeting of the PIC that took place in January 2004.  At that meeting, on the advice of the legal adviser, the PIC determined that as far as canvassing for patients was concerned not only were the complaints anonymous but that it would be difficult to prove that the dentists did have knowledge of the promotional activities of AHMS as they had been employed by another company.  However, since there was evidence that Allied York carried on the business of dentistry without a majority of the directors and all persons practising dentistry being registered dentists, the PIC was invited by the legal adviser to consider whether it was unprofessional conduct for dentists to be employed by and for dental services to be provided to the public through a dental company which operated in contravention of section 12 of the Ordinance.  It thus came about that on 9 March 2004 the secretary of the Dental Council wrote to the first appellant in the following terms:

“I refer to the Notice of Meeting of the Preliminary Investigation Committee (PIC) the Dental Council issued to you dated 5 July 2003.

Please be informed that, during its meeting held on 6 January 2004, the Committee decided to revise the said Notice, in a manner as detailed below.

The substance of the matter you are now required to answer to is that you, being a registered dentist, from about July 2001 to about February 2003 provided dental services to the public through a Allied York & Associates Dental Clinic Limited (known as Allied York Limited before October 2001), which carried on business of dentistry without a majority of the directors been registered dentists; and that in relation to the facts alleged you have been guilty of unprofessional conduct.”

8.  The Dental Council proceeded to hear the charge, despite objection as to the procedure adopted by the PIC, and the first appellant was found guilty of unprofessional conduct as charged.  The charges in respect of the other two appellants followed a similar course.  The second appellant in CACV 160 of 2005 probably saw a similar advertisement in the Hong Kong Dental Association’s newsletter in about May 2002.  He returned to Hong Kong from Canada to attend a job interview and took up employment in June 2002 with Allied York.  His employment with them lasted until the business closed in January 2003.  The appellant in CACV 157 of 2005 saw an advertisement for recruitment of dentists in the Ming Pao newspaper.  At the time he was a fresh graduate from Hong Kong University.  He attended an interview in a garment factory but was led to believe that the person who interviewed him had a partner who was a dentist.  At the time the clinic where he would work had not been opened.  He worked in the Causeway Bay clinic and in the Shatin clinic, again, until January 2003 when the business closed down.

9.  The first point taken by all the appellants was that the procedure adopted by the PIC was flawed and ultra vires and, as a result, the proceedings before the Dental Council were without jurisdiction.  The point relied upon is that the Council’s disciplinary powers stem from section 18(1) of the Ordinance.  Under those provisions the Council may only conduct an inquiry as to whether a registered dentist has been guilty of unprofessional conduct if a case has been referred to it by the PIC.  Section 29(1C) provides for the making of regulations in respect of the PIC.  In particular section 29(1C)(d) provides for making of regulations in respect of the procedure to be followed when complaints are submitted to the PIC.  It is said the PIC acted beyond those powers given to it by regulations made under statutory powers.

10.  The Dentists (Registration and Disciplinary Procedure) Regulations (the “Regulations”) have been made under section 29(1C)(d).  Regulation 13 provides that where a complaint is made to or information is received by the Secretary of the Council that a registered dentist has been guilty of unprofessional conduct the Secretary is required to submit the complaint or information to the PIC.  Regulation 14 then provides that the matter has to be considered by the chairman of the PIC who may require that the complaint or information be formulated in writing and supported by one or more statutory declarations as to the facts of the case.  Unless the chairman of the PIC considers that the complaint or information is frivolous or groundless he is required to direct that it be referred to the PIC.  Regulation 15A is particularly pertinent for the purposes of this appeal.  That reads:

“(1) At the meeting at which the complaint or information is considered by the Committee, the Secretary shall put before the Committee the complaint or information, any statutory declaration received therewith, any explanation submitted by the defendant and any other document or matter in the nature of evidence relevant to or in support of the complaint or information and which is available.

(2) The Committee, having regard to any explanation or declaration made by the defendant, shall consider the complaint or information, any statutory declaration received therewith and any document or matter put before it by the Secretary under paragraph (1) and, subject to the provisions of this regulation, shall determine either-

(a) that no inquiry shall be held; or

(b) that the complaint or information shall in whole or in part be referred to the Council for inquiry.

(3) Before coming to a determination under paragraph (2), the Committee may cause to be made such further investigations and may obtain such additional advice or assistance as it considers necessary.”

11.  The short point taken by the appellants is that the PIC is required to consider a complaint or information submitted to it.  Once it has considered that complaint or information its function is at an end.  What is said is that when the PIC did consider the complaint which had been made and on 6 January 2004, it decided that no charges should be brought in respect of those complaints.  Thereafter the PIC had no power either to amend the charges or to bring new charges.  Mr Burns, who argued the point on behalf of the appellants in CACV 160 of 2005 and his submissions were adopted on behalf of the appellant in CACV 157 of 2005, put the case on the basis that it was a technical argument but, nevertheless, since it was a question of the exercise of statutory powers, if there had been non-compliance with the Regulations it was nevertheless a good point.  Furthermore he relied upon the decision of this court in Leung Kam Chung v Medical Council of Hong Kong (1996) 6 HKPLR 409 for the proposition that his arguments were soundly based.

12.  In the Leung Kam Chung case the court had held that the corresponding committee to the PIC in relation to the Medical Council had acted ultra vires when it referred new charges to the Medical Council because its function had been at an end when it had expressed satisfaction with the particular doctor’s explanation of the original charges and the committee had acted beyond its jurisdiction in preferring new charges.  In relation to the facts of that case, it is true that there was an additional unfairness in the procedure adopted by the committee because the doctor concerned had not been given proper notice, but in my view, the reasoning of the court, which upheld the judge at first instance, applies equally in this case.  The decision in that case did not turn upon the unfairness in the procedure.  That is clear not only from the decision itself but from the nature of the proceedings which were judicial review.  The decision of that court turned upon the powers of the committee and the legality of its action and nothing else.

13.  In my view, therefore, this appeal must be allowed for the reasons which I have given.  There was a further ground of appeal argued namely that the conduct of the appellants did not constitute unprofessional conduct within the meaning of the Ordinance because it was not such as would reasonably be regarded as being disgraceful or dishonourable by registered dentists of good repute and competency.  That is the definition of unprofessional conduct given in section 18(2) of the Ordinance.

14.  In view of the clear view I have formed in respect of the first ground of appeal I prefer to leave this point open.  In the first place the question of culpability is not an easy one.  Section 12(2A) provides a defence for a person charged with being a director or manager of a business wherein the majority of directors are not registered dentists if the offence had been committed by the company without his knowledge.  In the present case it would seem that the appellants were unaware of the provisions of section 12 of the Ordinance.  Ignorance of the law as opposed to the facts is no defence.  More difficulty arises, however, because it appears that the Dental Council in delivering its determination expressed the view that the obligation on the dentist to ensure the qualification of the majority of directors of a company carrying on a dentistry business was a continuing obligation.  If such an obligation exists, that view would probably be correct.  In the context of an employee this may be putting a very high onus on him or her to have to keep constant vigilance as to who were the directors of the company carrying on the business, which may be different from the company which employs him or her.  It may well be, therefore, that the professional obligations of a dentist with regard to vigilance as to the directorship of the company carrying on business where he or she was working cannot be absolute.  The present 3 cases alone reveal circumstances ranging from the making of enquiries as to who was in charge to a simple employment in what had all the appearances of a legitimate existing dental practice.

15.  I cannot leave the observations in relation to this aspect of the case without the comment that although the Dental Association newsletter contains a statement at the foot of the page that amongst other things “Advertisement in this issue does not indicate nor imply the HKDA approval of the service(s) or product(s)” the denial of, and lack of acceptance of, responsibility is particularly unfortunate given the fact that, quite possibly, those likely to be interested in taking up an appointment so advertised would be those who lacked experience.  One would have hoped that a professional association would have taken at least some care, particularly as the advertisements were carried, seemingly, over an extended period.  It is a matter of conjecture as to whether the Dental Association might not have provided better assistance to newly qualified dentists if it had provided them with a standard clause that dentists could require to be inserted in their contracts of employment which would make it a condition of the contract of employment that the majority of the directors of the company carrying on the business should be dentists.

16.  In the circumstances I would allow these appeals, quash the decisions of the Dental Council and make an order nisi for costs in favour of the appellants.

Hon Le Pichon JA:

17.  I agree.

Hon Sakhrani J:

18.  I also agree.