NORMAN ERIC TOMLIN v. THE PRELIMINARY INVESTIGATION COMMITTEE OF THE DENTAL COUNCIL OF HONG KONG

Headnote

Administrative and constitutional law.

Dental Council - complaint of unprofessional conduct by adultery with a patient - role of preliminary Investigation Committee - effect of Dental Council pamphlet on professional discipline.

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JUDGMENT

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Nazareth V-P:

Introductory

1. This is an appeal by the Preliminary Investigation Committee ("PIC") of the Dental Council of Hong Kong against the order of Jerome Chan J made on 15th June 1995. By that order he granted an application for judicial review by Mr Tomlin. the respondent, quashed the decision of the PIC not to proceed with a complaint made by Mr Tomlin, and remitted the matter to the PIC for rehearing.

2. The complaint in question was made in writing to the Dental Council on 18th December 1992 and alleged an improper association by a dentist, Dr Newsome, with Mr Tomlin's wife while she was Dr Newsome's patient. On 14th January 1993, Mr Tomlin was informed by the Secretary of the PIC, who was also the Secretary to the Dental Council, that the Chairman of the former had decided to hold the complaint in abeyance pending the outcome of divorce proceedings between Mr and Mrs Tomlin, which were then pending. On 15th February 1993, Mr Tomlin was unexpectedly informed that the Chairman had decided not to refer the complaint to the PIC as it was "groundless".

3. On 10th June 1993, Mr Tomlin's new solicitors renewed the complaint with further evidence. This time the PIC on 9th November 1993 considered the complaint and decided, as Mr Tomlin was informed by the Secretary, That the matter would not proceed further. Having secured leave from Godfrey JA (sitting as an additional judge of the High Court), Mr Tomlin applied for judicial review of the PIC's decision. On 15th June 1995, Jerome Chan J granted Mr Tomlin's application, quashed the decision of the PIC and remitted the complaint to the PIC for a rehearing.

4. The PIC now appeals against the order of Jerome Chan J, asking that it be set aside. Mr William Marshall QC, who with Miss Daphne Yeung, appears for the PIC submits as its primary ground of appeal that the judge was wrong in holding that the PIC was perverse in deciding not to refer the complaint to the Dental Council.

5. That then is the primary question in this appeal. However, it is necessary to address also questions of procedural error to deal with that primary question, and others that have been raised. Mr Marshall very properly does not oppose consideration of those matters. It is convenient then to begin with the procedural errors, which have to be addressed in the context of the statutory framework provided by the Dentists Registration Ordinance (Cap. 156) ("the Ordinance") and the Dentists (Registration and Disciplinary Procedure) Regulations ("the Regulations").

The Charge

6. The complaint made by Mr Tomlin, it will be recalled, was of an improper association by Dr Newsome with Mrs Tomlin. However, in writing to Dr Newsome to inform him that the PIC would be holding a meeting on 9th November 1993 to consider the complaint, the Secretary did not set out the complaint in the way it was made, but in the form of the following charge prepared with legal advice:

"It is alleged that you, being a registered dentist, did in and after April 1992, abuse your professional position in order to further an improper, immoral, or indecent association or to commit adultery with Mrs Michele Tomlin with whom you stood in a professional relation; contrary to Section 5 of the Waming Notice of the Dental Council of Hong Kong." (emphasis supplied)

7. The Secretary also went on to invite Dr Newsome to submit any explanation of his conduct he had to offer in writing, adding however "If you wish you may also attend the meeting in person".

The PIC proceedings and decision

8. These can be gleaned from the following extracts from the minutes of the meeting on 9th November 1993:

"11.	Members discussed the case in brief and agreed that the major task for the Committee was to determine whether there was any prima facie evidence to show that Dr Newsome had in fact 'abused' his professional position to commit adultery with his patient... Dr Newsome was then brought before the meeting.
12.	After advising Dr Newsome of the powers of the Committee, the Chairman noted that the circumstances in relation to the charge against Dr Newsome were largely proven without doubt. The only point in question was whether an abuse of the dentist's professional position existed.
13.	In reply to the Chairman, Dr Newsome explained that the dental conditions of Mrs Tomlin had provided good teaching material as hers was a particularly difficult treatment case ...
15.	Upon the Chairman's inquiry, Dr Newsome recalled that he had his first social encountering with Mrs Tomlin about two months after his accepting her as his patient. When she disclosed to him her marital problems, he felt sympathy for her and their friendship gradually developed. He confirmed that there had not been any manipulation of his professional position and their relationship was not all related to Mrs Tomlin's treatment.
16.	When Members had no further questions to put to Dr Newsome, he was excused for a while.
17.	The Committee conceded that there was no evidence to support the claim that Dr Newsome had abused his professional position to further an improper association or to commit adultery with his patient.
18.	When Dr Newsome re-joined the meeting. he was advised of the Committee's decision to dismiss the complaint."

Disciplinary proceedings: three stage procedure

First stage: summary consideration by the Chairman, PIC

9. The Regulations provide that upon receipt of a complaint of unprofessional conduct, it shall be referred to the Chairman of the PIC. If it appears to him that the complaint is frivolous or groundless, he may decide that it should not proceed further; otherwise it has to be referred to the PIC (Reg. 14(1)).

Second stage: preliminary investigation by PIC

10. The defendant is informed of the date when the Committee will meet to consider the complaint and is invited to submit any explanation of his conduct or any allegation in the complaint which he may have to offer (Reg. 15). At the meeting, "the complaint... 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... which is available" is to be put before the Committee which determines either (a) that no inquiry shall be held or (b) that the complaint shall in whole or in part be referred to the Council for inquiry (Reg. 15 A).

Third stage: inquiry by the Council

11. The defendant has to be served with a notice of inquiry which has to "specify in the form of a charge or charges the matters into which inquiry is to be made" (Reg. 17). The inquiry has to be held in accordance with the fairly comprehensive provisions of Regulations 17-34 which provide inter alia for documents to be furnished to the Council and be available to each party (Regs 20 and 21), a verbatim record of the proceedings (Reg.24), the defendant to be informed of his right to cross-examine witnesses, to give evidence and to call witnesses (Reg. 25), the order of procedure (Reg.27) addresses in mitigation (Reg.31) and the taking and production of evidence (Reg.33).

The questions raised in the appeal

12. The principal question that arises in this appeal is whether the decision of the of PIC not to refer the complaint to the Council was perverse. The second question is whether there were material procedural errors on the part of the PIC as contended on behalf of Mr Tomlin.

13. It is convenient to begin with the latter.

Procedural errors --- the charge and the Warning Notice

14. Central to the procedural errors alleged and to the question whether the decision of the PIC was perverse are the words "you did abuse your professional position in order to further an improper, immoral or indecent association or to commit adultery", and variations of them that appear in the charge and the PIC minutes, and were clearly the basis of the PIC decision. These words, as they appear in the charge, were adopted from "Section 5" of a pamphlet issued by the Dental Council entitled "Warning Notice of the Dental Council of Hong Kong

Professional Discipline for the Guidance of Registered Dentists". The 1988 edition was provided to the Court. Section 5 thereof is as follows:

"Abuse of Professional Position in order to further an improper association or commit adultery 

          A dental practitioner who abuses his professional position in order to further an improper, immoral, or indecent association or to commit adultery with a person with whom he stands in a professional relationship may be subject to disciplinary proceedings". 

15. On the other hand, s.18 of the Ordinance which specifies in sub-s.(1) a number of disciplinary offences (including "unprofessional conduct") and the penalties therefor, in subs.(2) defines "unprofessional conduct" as "an act or omission of a registered dentist which would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency".

16. If Section 5 purported to say that an improper association with a patient could not constitute unprofessional conduct unless it was furthered by the existence of the professional relationship, then it would prima facie be at variance with s.18(2). But, it seems to me, that Jerome Chan J was quite right in his view that Section 5 was not restrictive in that way; that is plain from the following parts of the "Warning Notice":

PART I

MEANING OF 'UNPROFESSIONAL CONDUCT'

The term 'unprofessional conduct' has been defined by the Dental Council of Hong Kong as 'If a dental practitioner, in the pursuit of his profession, has done something which may be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency judged according to the rules, written or unwritten, governing the profession, then it is open to the Dental Council of Hong Kong. if such be proved, to say that he has been guilty of unprofessional conduct.'

PART II

CONVICTIONS AND FORMS OF UNPROFESSIONAL CONDUCT WHICH MAY LEAD TO DISCIPLINARY PROCEEDINGS

This part of the pamphlet sets out certain kinds of offences and of unprofessional conduct which may lead to disciplinary proceedings by the Council. The Preliminary Investigation Committee and the Council must proceed as quasi-judicial bodies. The pamphlet is thus NOT a complete code of professional ethics, nor can it specify all offences which may lead to disciplinary action.

17. The question whether any particular course of conduct amounts to unprofessional conduct and the gravity of such unprofessional conduct and of any conviction, are matters which fall to be determined by the Preliminary Investigation Committee and as appropriate the Council after considering the evidence in each individual case. ...

18. The following paragraphs describe the more common types of offence or unprofessional conduct which may be regarded as grounds for disciplinary proceedings." (emphasis supplied)

19. The reference to the "following paragraphs" on the format and content of the "Warning Notice" clearly includes the paragraph that was referred to before us, and has been referred to in this judgment, as Section 5. Also of relevance is the paragraph at the end of the "Warning Notice" entitled Conclusion" in the following terms:

"It must be emphasized that the categories of unprofessional conduct described in this Warning Notice cannot be regarded as exhaustive, since from time to time with changing circumstances, the Council's attention may be drawn to new forms of unprofessional conduct. Any abuse by a dental practitioner of any of the privileges and opportunities afforded to him, or any dereliction of professional duty or breach of dental ethics, may give rise to a charge of unprofessional conduct." 

It can be clearly seen from the foregoing that Section 5 is merely an example of unprofessional conduct and was not intended to specify exhaustively the only manner in which indecent association or adultery with a patient could constitute unprofessional conduct. If authority were needed for what in my view is perfectly plain in any case, it can be found in the view the Privy Council took in Richard Wordsworth Barker v General Medical Council Privy Council Appeal No.6 of 1971 at pp.4 and 5, of the contents of the pamphlet corresponding to the "Warning Notice" entitled "Professional Discipline" issued by the General Medical Council in England. In particular their Lordships observed that

"The pamphlet does not profess to be a complete code of professional ethics telling doctors in detail what they can and what they cannot do without being guilty of professional misconduct It simply records certain kinds of conduct which have in the past led to disciplinary proceedings and it emphasises that the question whether any particular course of conduct amounts to serious professional misconduct falls to be determined by the Disciplinary Committee after considering the evidence in each individual case." 

20. Nevertheless, Mr Marshall seeks to defend the construction of Section 5 adopted by the Secretary and the PIC. He submits that Section 5 embodies the determination of the Dental Council as being also the disciplinary tribunal in point, of what is regarded as disgraceful or dishonourable by registered dentists of good repute and competency. However, that submission must be rejected. For the reasons I have already given, it is clear that that was not what the Council was saying in Section 5. Moreover, it seems to me upon the wording and scheme of the Ordinance and Regulations that the question of what so constitutes unprofessional conduct is to be determined by the Dental Council in the context of a disciplinary inquiry, after considering the evidence in the individual case. That said, I think it must be recognised that decisions of the Council in disciplinary inquiries might well establish the restrictive position contended for by Mr Marshall upon a general or limited basis. But that is far from being the current position.

21. Plainly, therefore, the charge was a serious procedural error which not only failed to accurately reflect the complaint but introduced a wholly unjustified and potentially fatal obstacle. It is apparent from the minutes that the PIC addressed the charge in the way it was framed, i.e. constrained by the words "abuse your professional position in order to further an improper, immoral, or indecent association or to commit adultery"; and founded their decision upon their view that there was no evidence to support such abuse. The conclusion is inescapable that the actual complaint has never been properly considered by the PIC. Nor is it possible to say what conclusion they would have reached had they not regarded themselves as constrained by the words mentioned. Plainly the complaint should go back for proper consideration. That is sufficient to dispose of the appeal but it seems to me desirable to deal briefly with some of the other matters raised.

Was the decision of the PIC perverse? - The judge's approach

22. The judge clearly identified the procedural error made by the PIC in taking the restrictive view of Section 5 that they did. That procedural error, as I have indicated, in my view, amply justifies judicial review and, in the light of its consequences, the matter being remitted to the PIC for rehearing. The judge however approached the matter in the following way. He stated at p.8R of his judgment that "the narrow and arbitrarily restrictive view [the PIC] took of the nature and ambit of the complaint could be, though not necessarily, fatal to the reasonableness of its decision. The next question is: did it in fact render the decision unreasonable". He proceeded then to correctly identify the well-known test of unreasonableness, i.e. so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonably have made such a decision. Having referred to McCoan v General Medical Council [1964] 1 WLR 1107 at 1112, James Albert De Gregory v General Medical Council [1961] AC 957 (PC) and the Barker case, he said "The courts have appeared to demand of the medical profession a very high standard of morality" (at p.11). He concluded (at p.12) that "on the judicial observations upon the moral and ethical standard expected of the medical profession, it is obvious that the evidence placed before the PIC amply justified the reference to the Dental Council for further investigation and determination at an inquiry".

The relevant facts

23. I do not find it necessary to go quite so far nor to approach the matter entirely by the same route. We have been told by Mr McCoy, without serious dissent from Mr Marshall, that this is the first case of a complaint of unprofessional conduct by an adulterous association on the part of a dentist to come before the Council. Section 18(2) of the Ordinance requires unprofessional conduct to be determined by the Dental Council upon the basis of what would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency. The standards thus involved might differ from time to time and one jurisdiction to another, those applied in England may not entirely coincide with those that are here regarded as disgraceful or dishonourable. The facts, as have been seen, are not in dispute. The thrust of Dr Newsome's defence, as the judge neatly summed it up in this respect was as follows. Mrs Tomlin never complained of the professional manner in which he had rendered his services. They were merely having a mature adult affair. The two of them were genuinely in love. Mrs Tomlin was physically abused by the complainant and thus their marriage was doomed in any event. Their relationship developed as Mrs Tomlin often came to see him for consolation. The divorce was not the product of the adultery. Therefore Dr Newsome had not abused his professional relationship with Mrs Tomlin. The result was simply a social relationship that was carried on outside the professional relationship of dentist and patient.

24. Before us Mr McCoy points to the love letters exhibited and telephone conversations passing between Dr Newsome and Mrs Tomlin certainly by mid-August, if not earlier, only 4 months after she first came into contact with him as his patient in April 1992; and to her beginning to confide in him the unhappy state of her marriage only 2 months thereafter in June. By August he was clearly in love with her, yet did nothing to end the relationship. Indeed, there is no evidence that she ever ceased being his patient or that the relationship ended. At least one of the letters was addressed to Mrs Tomlin by Dr Newsome while he was on holiday overseas care of his flat, so that she must have had access to it.

25. Mrs Tomlin needed intensive treatment following serious injury to her mouth in a motor accident, and subsequent less than satisfactory treatment she had received left her teeth in a serious condition. The ample opportunity of association in the professional context, and their rapid progress to intimacy raises not merely the question of unprofessional conduct but even the abuse of professional position contemplated by Section 5 in the approach adopted by Lord Denning in De Gregory (at p. 966).

The authorities relied upon

26. For his part, Mr Marshall contended there was no evidence whatsoever of abuse by the defendant of his professional position, submitting virtually that for there to be abuse of professional position, the conduct would have to take place within the four walls of his surgery. The judge disposed of that submission by reference to the three authorities mentioned. In McCoan at 1108, a registered medial practitioner approaching his retirement had sexual relations with a patient who was a divorcee in her fifties. She complained to the General Medical Council when the relationship went sour. The General Medical Council Disciplinary Committee found him guilty of infamous conduct in a professional respect. In his appeal to the Privy Council it was submitted that there had been no injury to the public as the association was successfully clandestine. That there was no element of seduction nor was the association adulterous nor intended ever to lead to matrimony. That the misconduct ceased long before the charge was made and there was no danger of any repetition. And that he had not abused his position for the visit to the surgery when sexual intercourse took place for the first time was not on a professional occasion. In their judgment their Lordships said this:

"...One of the most fundamental duties of a medical adviser, recognised for as long as the profession has been in existence, is that a doctor must never permit his professional relationship with a patient to deteriorate into an association which would be described by responsible medical opinion as improper. It is for this reason that the Medical Acts have always entrusted the supervision of the medical advisers' conduct to a committee of the profession, for they know and appreciate better than anyone else the standards which responsible medical opinion demands of its own profession. Sexual intercourse with a patient has always been regarded as a most serious breach of the proper relationship between doctor and patient and their Lordships do not see how the finding of the committee, on the facts of this case, that the appellant was guilty of infamous conduct in a professional respect can be successfully challenged before their Lordships."

27. In De Gregory, when the wife realised she was becoming fond of the family doctor, she took her name off his list Later they began to commit adultery. She left her husband and children to live with him. In the doctor's appeal against a finding of infamous conduct in a professional respect by the Disciplinary Committee, Lord Denning giving the judgment of their Lordships said this:

28. In Barker's case, a doctor to a family developed a relationship with the wife after she began giving him lessons in German. Without telling her husband, the wife took her name off the doctor's list. The relationship of pupil and teacher changed into a relationship of a different character and they began to commit adultery. For present purposes it is only necessary to recount that upon the doctor's appeal to the Privy Council against the finding of the General Medical Council Disciplinary Committee that he was guilty of serious professional misconduct, their Lordships had this to say at pp.4 and 5 of their judgment:

"There is no real distinction to be drawn between the case of a doctor who asks a patient who is a married woman to give him German lessons and gradually becomes aware that they are falling in love with each other and the case of a doctor who is frequently asked to visit a patient who is a married woman while her husband is out of the house and gradually comes to realise that he is not being sent for because his professional services are needed but because the lady is in love with him. In either case a time must come when the doctor will be guilty of serious professional misconduct if he allows the association to continue."

Their Lordships also cited with approval the passage already quoted from Lord Denning's judgment in De Gregory.

29. It can be seen from the foregoing, particularly the passage from McCoan that the approach of the courts in relation to sexual intercourse with a patient, for instance, has been founded upon what has always been regarded as a most serious breach of the proper relationship between doctor and patient in the view of committees of the medical profession.

Conclusion

30. The foregoing dicta cannot have any decisive effect upon the outcome of disciplinary inquiries into complaints of the present sort given that it is for the dental profession itself to determine what is unprofessional conduct under the provisions of s.18(2) of the Ordinance. Nevertheless such dicta do, a fortiori given the respect the dicta of courts of such authority are entitled to, demonstrate how, in the very respects sought to be relied upon by Dr Newsome, the complaint cannot be said to be "groundless" and at the very least ought to be inquired into by the Council. It is not merely a matter of bare statutory requirement that such matter should be determined by the Council. The Council with all their prescribed powers and procedures are much better equipped to do so. Being a broader based body of 10 members, as opposed to the 3 members of the PIC, they are better able to reflect the views of registered dentists under s.18(2) as to what would be regarded as disgraceful or dishonourable. That is all the more important with reference to what is said to be the first complaint of unprofessional conduct by adulterous association with a patient.

31. The crucial consideration seems to me to be that it was for the Dental Council (and not for the PIC) to determine whether the conduct complained of had to be an abuse of a dentist's professional position in order to further an improper association or to commit adultery before it could amount to unprofessional conduct. If there was any possibility that the Dental Council might have come to the view that abuse of professional position to further the association or to commit adultery was unnecessary, then the PIC would have to refer the complaint to the Dental Council for inquiry.

32. In the "Warning Notice" the Dental Council had refrained from stating that abuse of professional position to further the association or adultery was an essential ingredient of unprofessional conduct. On the contrary, the "Warning Notice" expressly cautioned against that view. Moreover, in my view, it is questionable at the very least whether the Dental Council could by the "Warning Notice" simply proclaim such a restriction or qualification of what constitutes unprofessional conduct. The Council themselves say in the "Warning Notice", echoing the observation of the Privy Council in the Barker case:

"The question whether any particular course of conduct amounts to unprofessional conduct... [is a matter] which fells to be determined by the PIC and as appropriate the Council after considering the evidence in each individual case..."

The Council apparently has not yet considered any individual case. It cannot be for the PIC to pre-empt the Council upon a matter so crucial and fundamental by denying them the opportunity of addressing it, any more than by usurping the Council's statutory function and power of hearing the evidence and determining complaints.

33. Having regard to the foregoing considerations, and given that the circumstances are not disputed as recognised by the PIC, the decision of the Committee not to refer the complaint to the Council for inquiry, can only be regarded as perverse, i.e. so unreasonable that no reasonable Preliminary Investigation Committee properly applying their minds to the question could have arrived at it (see Associated Provincial Picture Houses Ltd v Wednesbury Cooperation[1948] 1 KB 223 and CCSU v Minister for Civil Services [1985] AC 410).

34. It follows that the judge was quite right in granting the application for judicial review and remitting the matter back to the PIC. I would accordingly dismiss the appeal but modify the directions the judge gave, by making an order nisi first that the complaint be remitted to the PIC for reconsideration of the complaint upon the basis of the definition of "unprofessional conduct" in s. 18(2) of the Ordinance, and bearing in mind that Section 5 of the "Warning Notice" embodies but one example of unprofessional conduct; and second that Mr Tomlin is to have his costs of this appeal, of his application for leave to apply for judicial review made to Godfrey JA and of his application for judicial review made to Jerome Chan J.

Godfrey JA:

35. Under the Dentists Registration Ordinance, Cap. 156, the question whether for disciplinary purposes a dentist has been guilty of unprofessional conduct is to be decided by the Dental Council, after an initial consideration by its Preliminary Investigation Committee ("PIC"). In my judgment, the court should be careful, I in reviewing any decision of the Council, or of the PIC, not to usurp their functions by substituting the court's own views for theirs upon what may or may not constitute unprofessional conduct. The Ordinance does not require the professional conduct of dentists to be judged by the standards of a bench of judges (or, for that matter, by the standards of a bench of bishops) and, for my part, I do not think it desirable for judges to express either approval or disapproval of the standards adopted by the Council or by the PIC. The Council, and the PIC, apparently take the view that the act of adultery by a dentist with his patient is not per se an act which would reasonably be regarded as disgraceful or dishonourable by registered dentists of good repute and competency (see s.18(2) of the Ordinance). It is, apparently, only when a dentist abuses his professional position in order to commit the cat of adultery with his patient that the Council, and the PIC, draw the line. Whether that is where the line ought to be drawn is not a matter for the court. Some judges may think it is, some may think it is not Their views, whatever they may be, are irrelevant. The judges are not the guardians of public morals and are no better able than the Council or its PIC to reflect whatever view of such matters the public may appear from time to time to espouse (especially when the public is seized by what Macaulay once called "one of its periodical fits of morality").

36. For these reasons. I would not for myself be disposed to interfere with any decision of the Council, or of the PIC, to refuse to exercise, or initiate the exercise, of disciplinary powers in respect of a dentist who they conclude has not abused his professional position in order to commit adultery with his patient.

37. However it is the duty of the Council under the Ordinance to give proper consideration to every complaint of unprofessional conduct made against the dentist. If, on a proper consideration of the complaint by the Chairman of the PIC, it appears to the Chairman that the complaint is frivolous or groundless and should not proceed further, he need not (and no doubt will not) refer it to the PIC for its consideration: otherwise he must direct it to be so referred: see the Dentists (Registration and Disciplinary Procedure) Regulations, regulation 15(1). When the Chairman does direct that the complaint be referred to the PIC, the "defendant" (as he is called) must be notified of the complaint and informed of the substance thereof: see regulation 15 (2) (a) and (b). At or after the hearing at which the complaint is considered by the PIC, it must determine either that no inquiry should be held or that the complaint be referred to the Council for inquiry: see regulation 15 A(2). If the PIC's determination is perverse, i.e. a determination which no reasonable PIC could have made on the material before it, no doubt the court has power to review and will review the determination. So, too, if the proceedings of the PIC were flawed by some procedural irregularity of sufficient seriousness to vitiate the determination.

38. The question therefore becomes whether the determination of the PIC in the instant case was either perverse or flawed by so serious a procedural irregularity as to justify the court's intervention.

39. As to perversity, I am unable to accept that the determination the PIC made here can be so characterised. Once it is accepted, as I do accept, that the PIC was entitled to regard the dentist's adultery with the patient as not amounting per se to unprofessional conduct, and once it is accepted, as I do accept, that it was entitled to conclude on the material before it that there was no evidence on which the dentist could be found to have abused his professional position in order to commit the adultery, the PIC was in my judgment entitled to determine as it did that no inquiry should be held.

40. As to procedural irregularity, the matter does stand somewhat differently. Instead of merely informing the dentist of the substance of the complaint, the PIC called on the dentist to face a specific, and narrow, charge of unprofessional conduct, something which ought to happen only at the stage after the PIC has determined that an inquiry ought to be held : see regulation 17(3). In framing this charge, and facing the dentist with it, at the stage before the PIC had made a determination, the PIC's secretary clearly jumped the gun: But if I am correct in my opinion that the PIC was entitled to proceed on the footing that adultery with a patient per se is not unprofessional conduct, this procedural irregularity does not seem to me to vitiate the determination of the PIC, for it is as plain as a pikestaff that this is the determination it would have made, and would have been entitled to make, even if the procedural irregularity had not occurred. I can detect no other relevant procedural irregularity.

41. I would therefore be in favour of allowing this appeal, but since Nazareth. V. P. and Liu, J. A. are of a different opinion, I accept that it must be dismissed.

Liu JA:

42. On 18 December 1992, Mr Tomlin complained of adultery between Dr Newsome and his wife with whom the dentist stood in a professional relationship. On 1 September 1993, at the hearing of the divorce petition, Dr Newsome admitted adultery.

43. The substance of Mr Tomlin's complaint on his allegation was the dentist's unprofessional conduct. Unprofessional conduct for an inquiry to be conducted by the Council under s. 18(1) is defined in s. 18(2) of the Ordinance. When a complaint is received by the Secretary and submitted to the chairman of the Preliminary Investigating Committee (PIC) (regs. 13 & 14), he is to direct that the complaint be referred to the PIC unless it is frivolous or groundless (reg. 15(1)). The Secretary, as directed by the chairman of the PIC shall, among other things, inform the dentist of the substance of the complaint (reg. 15(2) (b)). The Secretary shall put before the PIC the complaint (reg. 15A(1)). Under reg 15A(2) the Committee may decide that no inquiry needs to be held or that the complaint be wholly or in part referred to the Council for holding an inquiry. It is in the Council's notice of inquiry which is required to be served that the charge is formulated Reg 17(3) (a). The Council must follow set procedure which provides for, inter alia, consideration and determination by the Council as to whether or not there was sufficient evidence to support the charge. If there was no or insufficient evidence for proving the charge, the Council must return and record a not guilty finding. The complainant by himself or his legal representative may be heard in submissions (reg. 27(b)(i) and (c)(ii)). It is a 3-stage statutory regime: The Committee chairman to sift out the frivolous and groundless complaints which should not proceed further, the PIC to decide whether or not the material would call for any inquiry, and the Council to consider, on the law and the merits, whether or not to return a finding of guilty on the charge formulated against the registered dentist.

44. In this case, the Secretary was not obliged to reduce the substance of the complaint into writing or a charge. He was only to submit the complaint to the PIC. Under reg. 14(1), the Committee chairman could have required the complaint to be formulated in writing setting out the grounds of the complaint. This was not requested. When the complaint was referred to the PIC, the Secretary was to inform Dr Newsome of the substance of it. By his letter dated 12 September 1993, the Secretary notified Dr Newsome in these terms:

"It is alleged that you, being a registered dentist, did in and after April 1992. abuse your professional position in order to further an improper. immoral, or indecent association or to commit adultery with Mrs Michele Tomlin with whom you stood in a professional relation; contrary to Section 5 of the Warning Notice of the Dental Council of Hong Kong."

45. That notification should not have sought to modify the substance of Mr Tomlin's complaint. The complainant, Mr Tomlin, had never been shown the purportedly formulated complaint by the Secretary before the conclusion of the PIC proceedings. At the meeting of the PIC, the Secretary was to put before the PIC the complaint (reg. 15A(1)). He "shall put before the (PIC also) any statutory declaration received (with the complaint), any explanation submitted by the defendant and any other document or matter in the nature of evidence" (reg. 15A(1)). (Emphasis supplied). In the course of its deliberations, the PIC "may cause to be made such further investigations..... as it considers necessary" (reg. 15A(3)). The PIC had to consider the complaint together with all these submissions, including matters "in the nature of evidence", and determine whether or not the complaint be referred wholly or in part to the Council for inquiry (reg. 15A(2)). The sections and regulations above referred to are, of course, those in the Dentists Registration Ordinance and the Dentists (Registration And Disciplinary Procedure) Regulations.

46. It is reasonably clear that the PIC had merely to determine whether or not the complaint should go forward. Put another way, the PIC was to consider and, if necessary, further investigate whether the material placed before it, which was not tendered for evaluation in the strict evidentiary sense, would justify the initiation of an inquiry. The PIC was not called upon to make a definitive determination of the complaint. The deliberation of the PIC was a preliminary to a decision whether or not the complaint. should proceed to the third stage in the statutory regime for an inquiry. That was the test to be applied. On 9 November 1993, the PIC concluded that "there was no evidence to support the claim that Dr Newsome had abused his professional position to further an improper association or to commit adultery with his patient". First, emphasis had been placed by the PIC on "abuse" of the dentist's professional position. Such emphasis on any one feature of the composite question of unprofessional conduct clouded the decision which the PIC had to make. Further, the substance of Mr Tomlin's complaint as it had been made was not put simply to the "IC which had before it a convoluted and distorted version of the original complaint Worse still, the PIC applied the wrong test. The deliberation in the PIC should not have been taken beyond such a preliminary. It was simply to determine whether or not an inquiry should be set on foot. It was not to make a definitive determination as to whether the complaint was supported or unsupported by evidence. If it had been a groundless or frivolous complaint which should not proceed further, it would have been sifted out by the Committee chairman. Evidently the PIC did not enjoy the advantage of having matters fully canvassed in the context of our adversarial judicial system. In any event, it should never have proceeded to treat and evaluate the material before it as evidence for making any holding, including the one that the "evidence" did not support the complaint. That would be the task of the Council in an inquiry in which the case against a registered dentist on a formulated charge would have to be presented with evidence adduced "in support thereof". Reg 27(a). In this case, a charge to be supported by evidence had yet to be formulated. In the absence of any charge, it is impossible to surmise whether further evidence could or would have been adduced, But, what cannot be denied is that insofar as the PIC purported to view any matter before it as evidence, it was not properly tested. Moreover, the PIC must not usurp the Council's duty to be discharged under Reg. 27(b)(i) and (c)(ii) by holding definitively that "there was no evidence to support" the complaint. It is difficult to delineate the function of the PIC, but insofar as it transgressed the bounds of statutory duty of the Council, a wrong test must have been applied.

47. In R. v. Secretary for the Home Department, Ex parte Brind & Others, [1991] 1 A.C. 696, Lord Ackner discussed different Wednesbury grounds: Judicial supervisory intervention may be invited under the Wednesbury grounds when the decision-maker is shown to have "failed to call his attention to matters which he was bound to consider ... or ... included in his consideration matters which were irrelevant". (P.757B). "In neither of those senses can it be said that the (decision-maker) acted reasonably" (p. 757 B/C), thus failing to exercise his power according "to the Wednesbury doctrine, with the result that his failure to do so rendered his decision unlawful". (P. 761 H, emphasis mine). Determinations affected by these errors are "unlawful on Wednesbury grounds". See the rubric at p.757 A/B : "2. The directives were unlawful on Wednesbury grounds". Professor Wade broadly attributes these errors to a decision-maker having applied the wrong test which was the cause of the errors. See p.414 Wade on Administrative Law, 6th edn. Conversely, in applying the wrong test, a decision-maker must have failed to pay regard to relevant considerations and/or ignore irrelevant considerations and hence acted unlawfully in the Wednesbury sense. The PIC was invited to consider virtually the wrong question and it did not apply the right test. Its decision should be quashed. I, too, would dismiss the appeal with an order nisi for costs and remit the complaint back to PIC with the direction the Vice-President proposes.

Nazareth V-P:

48. The appeal is accordingly dismissed by a majority and there will be an order nisi that the matter be remitted to the PIC for reconsideration of the complaint on the basis I mentioned earlier with the costs order nisi also mentioned.