DR SIN CHUNG YIN RONALD AND OTHERS v. THE DENTAL COUNCIL OF HONG KONG

CACV 1211/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1211 OF 2001

(ON APPEAL FROM THE ORDER OF THE DENTAL COUNCIL
OF HONG KONG MADE ON 11TH MAY 2001)

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J U D G M E N T

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Hon Rogers VP:

1. I have had the advantage of reading the judgments in draft of Le Pichon and Yuen JJA. I agree with the judgment of Le Pichon JA that this appeal must be dismissed for the reasons given by her. I would only wish to add a few words in relation to the question of reasons.

2. The giving of reasons by disciplinary tribunals is undoubtedly a very important matter. A person who has been charged and particularly convicted of a disciplinary offence is entitled to know the reasons why that has happened. Lord Lane CJ expressed the matter, albeit not in relation to a decision of a disciplinary tribunal, sometime ago in his judgment in the case of R v. Immigration Appeal Tribunal, ex p Khan [1983] QB 790 at 794-5:

"Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

3. For the reasons set out in the judgment of Le Pichon JA I consider that the facts found by the tribunal are quite clear and that the basis for the decision is also beyond doubt. If the bases upon which the decisions against the appellants had been unclear then the matter might have been different. An example of such a case was in Fu Ning Dispensary v. Pharmacy and Poisons Board [1995] 3 HKC 497. In that case the appellant had relied upon the defence that it had taken all reasonable steps to make sure that a particular event did not happen. Because of the absence of reasons it was not clear whether the tribunal in that case had ruled against the appellant on the basis that the steps, even if taken, were insufficient or that it was not satisfied that the steps had been taken.

4. Whilst reiterating, yet again, that it is a counsel of prudence for a disciplinary tribunal to give reasons, I do not consider that in this case the circumstances are such that the decisions of the tribunal should be set aside.

Hon Le Pichon JA:

5. This is an appeal by five dentists from decisions of the Dental Council of Hong Kong ("the Council") dated 11 May 2001 finding them guilty of unprofessional conduct.

Background

6. There were originally seven appellants all of whom are dentists registered under the Dentists Registration Ordinance, Cap. 156. The 1st, 2nd and 3rd appellants were the directors and shareholders of the Health and Care Dental Clinic Limited ("the Clinic") which operated dental practices at (a) Shop 218, Ground Floor, Lok Hing Terrace, 350 Chai Wan Road, Chai Wan, Hong Kong ("the Chai Wan dental practice"), (b) Shop 5, 68 Kau Yuk Road, Yuen Long, New Territories ("the Yuen Long dental practice") and (c) Shop 5B, Level 2, Tai Po Plaza, Tai Po, New Territories ("the Tai Po dental practice"). The 4th appellant ("Dr Chan") was employed by the Clinic between August 1998 and April 1999 and practised dentistry at the Yuen Long and Tai Po dental practices. The 5th appellant ("Dr Ho") was employed by the Clinic between December 1998 and September 1999 and practised dentistry at the Chai Wan dental practice. The 6th appellant ("Dr So") was employed by the Clinic between July 1998 and April 1999 and practised dentistry at the Yuen Long and Tai Po dental practices. The 7th appellant (Dr Shiu) was employed by the Clinic between July 1998 and September 1999 and practised dentistry at the Chai Wan dental practice. On 23 September 2002, the 1st and 2nd appellants abandoned their appeal.

7. The Council received various complaints and information alleging that the appellants had been guilty of unprofessional conduct. The complaints were referred to the Preliminary Investigation Committee ("the Committee") for consideration. The appellants had been given notice of the meeting of the Committee. The substance of the complaint/information as well as the supporting documentation were set out in detail in the relevant notices sent to the appellants who were invited to make written submissions for the Committee's consideration, it being the Committee's duty to decide whether an inquiry by the Council should be held. On 31 March 2001, the Council sent a notice to each of the appellants advising him that an inquiry was to be held into the charges named in the relevant notice. The appellants were invited to answer the charges in writing and to appear before the Committee whether in person or by counsel or solicitor.

8. Dr Chow faced 12 charges. 8 had been found proved. In summary, Dr Chow had been found to have (i) displayed signboards exceeding the permitted size limit as approved by the Council at the Chai Wan, Yuen Long and Tai Po dental practices; (ii) exhibited a total number of signboards at the Chai Wan, Yuen Long and Tai Po dental practices which exceeded the limit permitted by the Council; (iii) canvassed for the purpose of obtaining patients by displaying a notice at or close to the entrance of the Tai Po and Chai Wan dental clinics advertising the "Children Dental Scheme" run by the relevant dental practice; and (iv) displayed one signboard at the second floor level of Tai Po Plaza which was illuminated and featured with tooth cartoons as ornaments. An order was made that Dr Chow be reprimanded and that the order of the Council be gazetted.

9. Each of Dr Chan and Dr So faced 7 charges, 4 of which had been found proved. Each of them had been found to have (i) displayed signboards that exceeded the permitted size limit as approved by the Council at the Yuen Long and Tai Po dental practices; (ii) exhibited a total number of signboards at the Yuen Long dental practice which exceeded the limit permitted by the Council; and (iii) canvassed for the purpose of obtaining patients by displaying a notice at all close to the entrance of the Tai Po dental practice which advertised the "Children Dental Scheme" run by that practice.

10. Each of Dr Ho and Dr Shiu faced 5 charges, 3 of which had been found proved. Each of them had been found to have (i) displayed a signboard at the Chai Wan dental practice that exceeded the permitted size limit as approved by the Council; (ii) exhibited a total number of signboards at the Chai Wan dental surgery which exceeded the limit permitted by Council; and (iii) canvassed for the purpose of obtaining patients by displaying a notice at or close to the entrance of the Chai Wan dental practice which advertised the "Children Dental Scheme" run by that practice.

11. In respect of the 4th to 7th appellants, it was ordered that warning letters should be served on them but that the orders should not be gazetted. In the case of all the appellants, the charges which stood dismissed related to canvassing for the purpose of obtaining patients through websites.

The statutory framework

12. Section 29(1C)(d) of the Ordinance empowered the Council (subject to the approval of the Secretary for Health and Welfare) to provide by regulation the procedure to be followed in relation to the submission of complaints or information to the Committee, their preliminary investigation by the Committee, the formulation of charges arising therefrom and inquiries held by the Council under the Ordinance. The Dentists (Registration and Disciplinary Procedure) Regulations ("the regulations") were enacted pursuant to that power.

13. Where the Committee determines that an inquiry be held, the powers of the Council upon such inquiry are to be found in section 18 of the Ordinance. Subsection (1) provides that if, after due inquiry into any case referred to it by the Committee the Council is satisfied that any registered dentist has been guilty of unprofessional conduct, the Council may, in its discretion do a number of things including the making of an order that the registered dentist's name be removed from the register or that he be reprimanded or the making of any other order which is not of a greater severity. Subsection (2) provides that:

" (2) For the purposes of subsection (1), 'unprofessional conduct' (不專業行為) means 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."

14. There is an appeal provision. Any person aggrieved by an order made in respect of him under, inter alia, section 18 may appeal to the Court of Appeal who may confirm, reverse or vary the order appealed against. See section 23 of the Ordinance.

Warning Notice

15. Other than the statutory definition for "unprofessional conduct" in section 18(2) of the Ordinance, neither the Ordinance nor the regulations deal further with what might constitute unprofessional conduct. There is, however, a document described as the "Warning Notice of the Dental Council of Hong Kong" which is issued to all registered dentists. The subject matter of this pamphlet is "Professional Discipline for the Guidance of Registered Dentists" and for the purposes of this appeal, it is the 1995 Edition of the Warning Notice that is relevant. It is apparent from the opening paragraph which urged all registered dentists to read through the warning notice and to acquaint themselves thoroughly with its contents, that it contained "accepted codes of professional ethical behaviour", such that even "inadvertent transgressions" might lead to disciplinary action by the Council. It also made plain that one of the functions of the Council is the maintenance of ethical standards in the profession.

16. Part I set out the meaning of "Unprofessional Conduct". Part II, in pertinent part, read:

"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.

...

The following paragraphs describe the more common types of offence or unprofessional conduct which may be regarded as grounds for disciplinary proceedings.

...

7. Advertising

(A) The tradition that dental practitioners should refrain from self-advertisement has long been accepted by the dental profession. Advertising is incompatible with principles which should govern relations between members of the profession, and could be a source of danger to the public. 'Advertising' in this context will be regarded by the Council in its broadest possible sense to include any means by which a dental practitioner is publicized, either by himself, his servants, agents or others, in a manner which can reasonably be regarded as promoting his own professional advantage. Whether a dental practitioner actually benefits from publicity is no defence to a charge of advertising.

...

(D) Advertising may arise from notice or announcements displayed ... by a dental practitioner in connection with his own practice, if such notices or announcements materially exceed the limits customary in the profession: examples of permitted notices and announcements are given in Appendices I to IX. Rules for the guidance of dental practitioners in relation to signs ... are set out below:-

(1) Signs: The Council disapproves of the exhibition in connection with a practice of any sign which, by its nature, position, size or wording, exceeds what is reasonably necessary to indicate the location of, and entrance to the premises concerned.

The following are general guidelines in respect of Signboards/Directory Boards/Directional Notices and Notices of Consulting Hours:-"

The Warning Notice went on to spell out the general guidelines in relation to advertising in painstaking detail. For present purposes, those relating to "signboards" are particularly relevant. There are restrictions as to content (i.e. what information may be displayed), dimension, size as well as the number of signs permitted and where they might be exhibited.

17. It is to be noted that the warning notice has no statutory force: rather, it encapsulates what the Council, in its regulatory role in maintaining the profession's ethical standards, considers to be acceptable professional conduct. All registered dentists were put on notice that even an unintentional transgression might attract disciplinary proceedings. Suffice it to say that the nature of the warning notice must have a bearing on the approach that should be adopted when it comes to interpretating its provisions: it would be wrong to construe it as one would a piece of legislation.

The proceedings below

18. The Council before whom the enquiries were being conducted consisted of five members, four of whom were dentists. The fifth was a lay member. Government counsel was appointed as the legal officer to carry out the duties of the Secretary in the inquiry and assumed the role of prosecutor. The appellants were represented by counsel.

19. The case against the appellants was based entirely on documentary evidence including photographs. No oral evidence was adduced against them. The photographs which are not disputed were taken by the Hong Kong Police and showed in respect of each of the three dental practices, the signboards of the appellants, the Clinic and the notices concerning the "Children Dental Scheme" and, in the case of the Tai Po dental practice, the directional sign at the top of the first floor escalator.

20. At the conclusion of the hearing, the Council announced its decision. Taking Dr Chow's case as an example, the chairman of the Council said this:

"For charge (a), (b), (c), (d), (e), (f), (g), (h)(i) and (h)(ii), we find the facts proved and tantamount to unprofessional conduct. For (i)(i), (j)(i) and (k)(i) and (l)(i), we do not find the charge proved. For (i)(ii), (j)(ii), k(ii) and l(ii) we find it proved but not tantamount to unprofessional conduct."

The charges referred to relate to those particularized in the notice of inquiry sent to Dr Chow. Counsel for the defence then invited the Council to give its reasons but received a response that was not altogether intelligible, to the effect that "the voting is quite unanimous". Pleas in mitigation followed after which the Council announced the sentence. As noted above, the 3rd appellant was to receive a reprimand to be gazetted and the employee dentists namely the 4th to 7th defendants were to receive a warning letter without the same being gazetted. On 16 May 2001, a written order was sent to each of the appellants by the Council.

This appeal

21. Mr McCoy SC raised a number of issues on this appeal which are considered below.

Substantive ultra vires

22. The order of procedure to be observed at the inquiry is to be found in regulation 27. Mr McCoy took exception to regulation 27(e) which gave the Secretary the right to the last address to the Council. This right arises where either evidence has been adduced by the dentist in addition to the dentist's own evidence or with the special leave of the Council. In the present case, the appellants did adduce additional evidence. Mr McCoy submitted that the concept that the prosecutor, as of right, may make the closing address to the decision-maker in proceedings with penal consequences is repugnant to the general law. He reasoned that since any trial is about persuasion, the right to make the final address is not procedural but has a substantive law content and is an incident of the fact that as the onus of proof is on the prosecutor, the defendant has the right to the last word.

23. Mr McCoy referred to Powell v May [1946] 1 KB 330 at 334 where Goddard CJ held that:

"There is no question but that a by-law which is repugnant to the general law is invalid .... Obviously, it cannot permit that which a statute expressly forbids nor forbid that which a statute expressly permits, though it can, of course, forbid that which otherwise would be lawful at common law ..."

Mr McCoy then cited some examples where delegated legislation has been held to be ultra vires including the following: where it (a) reversed the onus of proof (Willoughby Municipal Council v Homer (1926) 8 LGR (NSW) 3); (b) denied access to the courts (R & W Paul Ltd v The Wheat Commission [1937] AC 139); (c) excluded the principles of natural justice (Drew v Attorney General [2002] 1 NZLR 58 (CA); (d) impeded common law rights (Re The Municipal Corporations' Act 1890, Ex parte Burford [1920] SALR 54; (e) prevented a fair trial (Ex parte Reid; Re Lynch (1943) 43 SR (NSW) 207). These examples appear in Pearce's Delegated Legislation in Australia and New Zealand (1977 Edition) under the rubric 'Repugnancy to Common Lawby the following general statement at [425]:' which was prefaced

"In the absence of a Bill of Rights, the courts have adopted a number of basic assumptions on which they approach the interpretation of legislation. ... Unless there is clear authority in an empowering Act for delegated legislation to override an assumption, the delegated legislation will be invalid. The following cases provide examples of this approach of the courts." (emphasis added)

24. But what is meant by 'the general law' of the land in the context of Hong Kong which has both a Bill of Rights Ordinance and the Basic Law? The English, Australian and New Zealand cases cited give little assistance because of the absence of a bill of rights in those jurisdictions when the cases were decided. Given the different circumstances pertaining in Hong Kong, it is not entirely clear what substantive content can be given to 'the general law' upon which Mr McCoy appeared to rely other than the Bill of Rights and the Basic Law. However, there is no allegation that the proceedings below infringed Article 10 of the Bill of Rights Ordinance, Cap. 383 which guarantees the right to "a fair and public hearing" despite the fact that the thrust of the complaint was that the procedural rule prevented a fair trial.

25. Mr Grossman also referred to the decision of the Canadian Supreme Court in R v Rose [1998] 129 CCC (3d) 449 where by a majority, it was found that there had been no breach of the right to procedural fairness in not permitting the accused to have the last word. So even assuming that 'the general law' in the context of Hong Kong can mean something other than the Bill of Rights Ordinance and the Basic Law, it would seem that not having the last word would not necessarily vitiate proceedings with penal consequences.

26. For my part, I am far from persuaded that, on the facts of this case, the appellants have suffered any real prejudice as a result of regulation 27(e) or that they did not have a fair hearing even if (contrary to my view) some meaning can be attributed 'the general law' other than the Bill of Rights and the Basic Law. In the circumstances, I do not see any rational basis for striking down regulation 27(e).

Matters arising from the specific charges

Signboards - contents

27. Dr Chow was charged with and convicted of exhibiting a directional signboard at the second floor level of Tai Po Plaza in which the Tai Po dental practice was situated "which was illuminated and featured with tooth cartoons as ornaments".

28. The detailed general guidelines in relation to advertising contained the following restriction regarding signboards:

"(ii) Restriction

... Signboards may not be of an ornate type nor may they be illuminated except at night or when situated in a dark place ...

The only particulars which may appear on the signboards are:-

(1) The name of the dental practitioner with the appropriate prefix Dr./Mr. (牙科醫生/牙醫) (OR the name by which the practice is known) in Chinese and English.

(2) The appropriate term 'Dental Surgeon/Registered Dentist' (牙科醫生/註冊牙醫) or other title specifically approved by the Dental Council.

(3) Qualifications registered with the Dental Council together with the appropriate Chinese translation as specifically approved by the Dental Council.

(4) An indication of the situation in the building of the dental practitioner's office."

Mr McCoy sought to draw a distinction between "ornaments" and the word "ornate", suggesting that they have erroneously been treated as meaning the same thing. But what is plain from the general guidelines set out above is that signboards may only contain the particulars listed and nothing else. Cartoons, whether of teeth or other matters, have no place on a dentist's signboard. Moreover, the fact that the signboard in question was a directional notice made no difference since it was expressly provided that "directional notices must not contain more particulars than those which may appear on signboards." See paragraph (e) of the general guidelines.

Frosted-glass nameplate

29. Photographs of the front entrances of the relevant dental practices which were before the Committee showed a glass shop front with a frosted part containing particulars which may appear on signboards. The fact that the particulars appear on frosted glass rather than on board makes no difference: they undoubtedly constituted a nameplate or sign advertising the professional services of the dentist in question.

30. Mr McCoy sought to suggest that during the course of the hearing, the legal officer sprung a new point on the appellants namely, that he regarded the name of a dentist appearing on the frosted part of the glass shop front of the surgery as a "sign" for the purposes of the warning notice. What a reading of the transcript shows is that the reason why defence counsel was "surprised" was because he had not understood that the charge could extend to frosted nameplates. But that is something quite different from a new point being sprung on defence counsel. The point taken is thus devoid of merit.

The dimensions of the signs

31. Mr McCoy made the point that other than assertions made in the complaint letters regarding the size of one of the signs at the Chai Wan dental practice as being 9 ft by 4 ft and the directional sign at Tai Po being 40 sq ft, no evidence had been adduced as to the dimensions of the signs said to contravene the dimensions allowed. The signs in question were the directional sign and those fitted directly above the doorway to the various dental practices across the relevant shop front. Photographs of these signboards were in evidence. The permitted size of such signs for ground floor premises i.e. both Chai Wan and Yuen Long, was 6 sq ft. In the case of the Tai Po dental practice which was on the 2nd floor, the permitted size was 12 sq ft. Quite apart from the fact that issue had never been taken with the assertion that the size of these signboards was excessive, it is obvious beyond peradventure when one peruses the photographs of the relevant signs that they unquestionably exceeded the permitted limit.

"Exhibiting"

32. The criticism here was that "exhibiting" requires a positive act of exhibition. It was submitted that the 4th to 7th defendants being employees had no power or control over the practice signs i.e. those which read "Health & Care Dental Clinic (恒健牙科醫務所)". It was submitted that only the partners who managed the practices could make decisions to exhibit such signs.

33. A dentist who chooses to practice his profession as a dentist whether a partner or an employee, has professional responsibilities. He has to abide by and maintain the standards set by the regulating body of his profession. The detailed provisions relating to signs were designed to ensure that dentists refrain from self-advertisement, that being a tradition that has long been accepted by the profession. It is evident from paragraph 7(C) of the warning notice that this applies to all dental practitioners including those who are employed:

"Advertising may also be considered to occur if a dental practitioner permits or fails to take adequate steps to prevent the publication either directly or indirectly (in any form in Hong Kong or elsewhere) by other persons of matter which commands attention to his own professional attainments or services, or if a dental practitioner is associated professionally with or employed by persons or organizations which advertise clinical, diagnostic or other services connected with the practice of dentistry ..."

Absence of reasons

34. At the conclusion of the hearing, defence counsel asked the Council for its reasons. No reasons were given by the Council whether at the time of the decision or in the written orders sent to the appellants on 16 May 2001. Mr McCoy criticised the Council for not making any findings of fact and for not giving any reasons for its decision. The validity of these criticisms can only be determined in the light of the actual orders made. They were similarly worded and it would suffice to set out only one of the orders.

35. The order made in respect of Dr Chow was in the following terms:

" The Dental Council of Hong Kong, at an inquiry held on 11 May 2001 under section 18 of the Dentists Registration Ordinance, Cap. 156 of the Laws of Hong Kong, was satisfied that you, being a registered dentist and a partner of Health & Care Dental Clinic and/or a director of Health & Care Dental Clinic Limited:-

(a) did on or about l July 1998, 8 September 1998, 18 January 1999, 22 February 1999 and 2 September 1999 exhibit a signboard entitled "Health & Care Dental Clinic (恒健牙科醫務所)" directly above the doorway to the dental surgery at Shop 218, G/F, Lok Hin Terrace, 350 Chai Wan Road, Chai Wan, Hong Kong; the size of such signboard exceeding the permitted limit of a signboard in that precise location as approved by the Dental Council of Hong Kong;

(b) did exhibit a total number of signboards at the dental surgery at the address mentioned in (a) above exceeding the limit permitted by the Dental Council of Hong Kong;

(c) did on or about 2 September 1999 canvass for the purpose of obtaining patients by displaying a notice, at or close to the entrance of the dental surgery at the address mentioned in (a) above, which advertised the "Children Dental Scheme" run by the surgery;

(d) did on or about 7 September 1998 exhibit a signboard entitled "Health & Care Dental Clinic (恒健牙科醫務所)" directly above the doorway to the dental surgery at Shop 5, 68 Kau Yuk Road, Yuen Long, New Territories; the size of such signboard exceeding the permitted limit of a signboard in that precise location as approved by the Dental Council of Hong Kong;

(e) did exhibit a tota1 number of signboards at the dental surgery at the address mentioned in (d) above exceeding the limit permitted by the Dental Council of Hong Kong;

(f) did on or about 22 February 1999 and 28 April 1999 canvass for the purpose of obtaining patients by displaying a notice, at or close to the entrance of the dental surgery at Shop 5B, Level 2, Tai Po Plaza, Tai Po, New Territories, which advertised the "Children Dental Scheme" run by the surgery;

(g) did on or about 28 April 1999 exhibit a signboard entitled "Health & Care Dental Clinic (恒健牙科醫務所)" directly above the doorway to the dental surgery mentioned in (f) above; the size of such signboard exceeding the permitted limit of a signboard in that precise location as approved by the Dental Council of Hong Kong; and

(h) did on or about 22 February 1999 and 28 April 1999 exhibit a signboard entitled "Health & Care Dental Clinic (恒健牙科醫務所)" at the second floor level of Tai Po Plaza in which the dental surgery mentioned in (f) above was situated,

(i) the size of such signboard exceeding the permitted limit of a directional notice in that precise location as approved by the Dental Council of Hong Kong; and

(ii) which was illuminated and featured with tooth cartoons as ornaments.

and that in relation to the facts alleged, you have been guilty of unprofessional conduct.

The Council further ordered on 11 May 2001 that, subject to any appeal which should be lodged within one month after the date of service of the Order of the Dental Council, you should be reprimanded. Such order of the Council shall be published in the Government of Hong Kong Special Administrative Region Gazette."

36. In my view, the factual allegations set out in the order are, in substance, findings of fact made by the Council. So it is not correct that no findings of fact were made although the findings could have been expressed more felicitously.

37. It is common ground that there is no statutory requirement for the Council to give reasons for its decision. However, circumstances may make it necessary. See per Leong JA (as he then was) in Dr Ip Kay Lo v Medical Council of Hong Kong [1998] 4 HKC 257 at 268H. That must necessarily turn on the facts of the particular case. At 270I-271A, Rogers JA (as he then was) observed:

"... it is a counsel of prudence for a tribunal not to assume too readily that the issues being addressed by it are obvious or that the facts upon which it is basing its opinion are obvious. The setting out of the basic facts and the giving of reasons need take no more than a few short sentences."

38. Although in Stefan v General Medical Council [1999] 1WLR 1293, the Privy Council held that there was a duty at common law upon the Health Committee to state the reasons for their decision, their Lordships were at pains to point out (at 1297B) that they were "concerned solely with the existence of an obligation of the Health Committee to give reasons for their decision and not with the position regarding the giving of reasons by the Professional Conduct Committee." They expressly refrained from expressing any view on that matter. The Health Committee deals exclusively with the fitness to practice of a fully registered person, having to judge whether that person's fitness is seriously impaired by reason of his physical or mental condition. Pausing here, it is to be noted that the Council in the present case was plainly performing the functions of the Professional Conduct Committee and not those of the Health Committee. The Privy Council further accepted that there were points of difference between the Professional Conduct Committee and the Health Committee. One of the differences is that an appeal against a decision of the Professional Conduct Committee is at large whilst an appeal against a decision of the Health Committee is limited to a point of law. In view of those matters, I do not read the Stefan case as authority for the proposition that irrespective of the facts of the particular case, the absence of reasons would necessarily vitiate the decision of a professional conduct committee such as the Council.

39. In the present case, the issue before the Council was whether, in respect of each of the appellants, the factual allegations had been made out and to the extent that they had been made out, whether they amounted to unprofessional conduct. Any registered dentist faced with the factual allegations made would have no difficulty in relating them to the warning notice which, as noted above, set out in painstaking detail what is and what is not permissible in relation to advertising and canvassing. The present case is simple and straightforward. The issues and the facts can be said to be obvious. Factually, this case is very different from the case of Dr Ip Kay Lo. It is implicit from the orders made that the Council, having found the particularized factual allegations proved, considered that the contraventions of the warning notice amounted to unprofessional conduct. Though implicit rather than explicit, that was the reason for the Council's decision. Whilst it would undoubtedly have been preferable had the Council not adopted such a shorthand and roundabout way of stating the obvious and elaborated on its reasoning, I do not consider the shortcomings so serious as to vitiate the decision.

Unprofessional conduct

40. Mr McCoy submitted that the legal adviser had misunderstood and misapplied the decision in Dr Lam Kwok Pun v Dental Council of Hong Kong [2000] 4 HKC 181 (CA). The nub of his attack was that the legal adviser had misdirected the Council on the standard of proof.

41. The advice rendered appears in the following passages from the transcript (at pages 200-202):

"... the Court of Appeal indicated that you must in fact consider purely what is in section 18 (2) whether it is 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. So you will have to decide what is disgraceful or dishonourable.

... the case of Yan Wing Yiu v The Dental Council of Hong Kong ... was a civil appeal, 213 of 1993, and the Court of Appeal said there that the Dental Council must when considering the charge of unprofessional conduct satisfy itself that what was done or omitted to be done was such that dentists of good repute and competency would reasonably be regarded as disgraceful or dishonourable. So you have got to decide whatever conduct you find to be proved whether it is disgraceful or dishonourable ..."

The legal officer then referred to the decision in Wong Kai Fou v The Medical Council which had been referred to by the appellants' counsel and explained it in these terms:

"... there the Court said that it was not necessary to consider the proposition which had been canvassed that if you are a member of a profession which restricts advertisement, there is an element of turpitude in seeking to evade that restriction to the advantage of yourself and the disadvantage of those who observe the restrictions. In my opinion, you are entitled to consider when you are looking at this matter whether in this profession given that there are restrictions on advertisements on the size of signs, etc. whether dentists of good repute and competency would reasonably regarded it as disgraceful or dishonourable for a member of the profession evading that restriction to the advantage - to his advantage and to the disadvantage of those who observe the restrictions."

42. In my judgment, the advice rendered was unexceptionable. The Council in its role as the regulating body set the parameters of acceptable professional conduct. The appellants went beyond those parameters. The Council was perfectly entitled to consider that transgressions of the clear boundaries delimiting the manner in which dentists could advertise their professional services as unprofessional conduct.

Conclusion

43. I would dismiss this appeal. I would also make an order nisi for costs in favour of the Council.

Hon Yuen JA:

44. With respect to the other members of this court whose judgments I have read in draft, I would allow the appeal on the ground that the Council has failed to provide any reasons for its decision. In Stefan v General Medical Council [1999] 1 WLR 1293, the Privy Council held that notwithstanding the absence of any statutory requirement for reasons for decision, the Health Committee of the General Medical Council was under a common law obligation to give reasons for decision in the light of the decision-making body's judicial character, the framework in which it operated and the provision of a right of appeal.

45. Whilst that case involved a decision of the Health Committee and not the Professional Conduct Committee, the Privy Council noted Lord Scarman's observation made in 1984 in Rai v G.M.C. that reasons should be given for the finding of serious professional misconduct, though not for the imposition of penalties (as confirmed in Dad v General Dental Council [2000] 1 WLR 1538, 1541), as the giving of reasons can be beneficial and assist justice: (1) in a complex case to enable the doctor to understand the committee's reasons for finding against him; (2) where guidance can usefully be provided to the profession; and (3) because a reasoned finding can improve and strengthen the appeal process.

46. In Stefan the Privy Council, after considering the advantages and disadvantages in a decision-making body giving reasons for its decisions (at 1300), held that the provision of a right of appeal and the judicial character of the decision-making body point to an obligation to give reasons (at 1303).

47. Similarly in the present case, the Dental Council's hearing was of a judicial character, the framework in which it operated contained detailed regulations as to its functions and procedure, and there is a right of appeal to the Court of Appeal in s.23 of the Dentists Registration Ordinance.

48. For my part, the general right of appeal given in s.23 "points to the view that as a matter of fairness in deciding whether there are grounds for appeal, and as a matter of assistance in the presentation and determination of any appeal, the reasons for decision should be given" (Stefan at 1301).

49. This is particularly so where the hearing before the Council did not proceed purely on disputes of fact. Counsel who appeared for the appellants before the Council had submitted (correctly) that the Warning Notice should not be regarded as a statute, any contravention of which leads, without the need for any further consideration, to a finding of professional misconduct.

50. On behalf of the employee dentists, the point was made that in the light of their particular circumstances, they were not guilty of "disgraceful or dishonourable" conduct, because (a) they were junior members of the profession (having just left university before being employed at this practice); (b) there was unchallenged evidence that most of the signs had been put up before they were employed; (c) they had not participated in, nor had been consulted on, the display of any of the signs (a matter in which, on the evidence, the employer dentists exercised sole discretion), and (d) when there were a number of similar signs for dental practices in the same locality or similar localities.

51. The point was made by their counsel to the Council that in those circumstances, the employee dentists reasonably assumed the propriety of the actions of senior dentists who were their employers. Even if that assumption were considered not to be reasonably made, their omission to challenge their employers amounted only to carelessness on their part, but not "disgraceful or dishonourable" conduct such as to warrant culpability of a charge of "professional misconduct".

52. Against the background of submissions such as these, which went beyond mere disputes of fact, a decision finding the employee dentists guilty of professional misconduct without any reasons being given could not but lead to grievance. When counsel appearing before the Council asked for reasons for the decision, the reply was that the voting was unanimous. The irrelevance of that reply can only serve to aggravate the grievance.

53. Irrespective of sentence, a finding of culpability of "professional misconduct" is a serious mark on the record of any professional person, whether a junior member of the profession just starting out, or a senior member of the profession with a hitherto unblemished reputation. As noted in Stefan, the giving of reasons strengthens the decision-making process and increases confidence in it. It also provides the parties with material on which a reasoned decision could be made (rather than a decision based solely on grievance) whether to proceed to exercise a general right of appeal. It also assists the appellate body in the determination of the appeal as, in my view, without knowing why or how the decision was arrived at, an appellate body is left to an ex post facto effort to make inferences and rationalizations, a process which is unsafe and may be unjust.

54. For those reasons, I hold that the Council was obliged to provide reasons for its decision, and I would allow the appeal with a consequential order that the case be remitted to the Council freshly constituted with directions to rehear and reconsider the case and to give reasons for its decision following such rehearing and reconsideration.

Hon Rogers VP:

55. There will be an order as proposed in paragraph 43.