YOUNG YAU YAU, CECILIA v. DENTAL COUNCIL OF HONG KONG

HCAL 86/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 86 OF 2009

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J U D G M E N T

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I.   INTRODUCTION

1.  On 4 September 2008 a Committee of Inquiry of the Dental Council found Dr. Young guilty on 2 charges of disregarding her professional responsibility adequately to treat and care for a patient.  The Council ordered that Dr. Young’s name be removed from the General Register for 1 month.  The operation of the Council’s order was suspended for 12 months.

2.  Dr. Young seeks judicial review against the Council’s finding of professional misconduct.  She asks that the Council’s sentence (which she has in fact actually served) be quashed.  It is Dr. Young’s case that the Council’s decision was flawed because, in the preparation of the same, the Council was assisted by its Legal Adviser Mr. Charles Chan.  Dr. Young complains that she was never told that Mr. Chan had advised the Council in the preparation of its decision.  Dr. Young says that she never had an opportunity to rebut any negative advice that Mr. Chan may have given in relation to her case.  Dr. Young contends that there was accordingly a failure to follow natural justice and apparent bias in the Council’s mode of proceeding.

3.  The Dental Council resists Dr. Young’s application on 3 bases.  First, the Council says that there was undue delay in Dr. Young’s application for judicial review (which was brought on 31 July 2009).  Second, the Council denies that Mr. Chan’s assistance in drafting its decision constituted a denial of natural justice or imbued the disciplinary proceedings with the appearance of bias.  Third, the Council argues that in any event Dr. Young waived any right that she might have had to rely on Mr. Chan’s participation as a ground for setting aside the decision.

II.  DISCUSSION

A.  Was there undue delay?

4.  The Council’s decision and order were served on Dr. Young under cover of a letter sent by registered mail on 11 September 2008.  The Council’s order was gazetted on 24 October 2008.

5.  Dr. Young approached the Legal Aid Department on 5 September 2008.  Legal Aid asked for copies of the transcript, but took no further step.

6.  At some time shortly after 11 October 2008 Dr. Young (then acting on her own) attempted to file a Notice of Appeal against the Council’s decision.  She was, however, apparently told by someone at the High Court Registry that she had a longer time to file an appeal.

7.  The Notice of Appeal was ultimately filed on 14 November 2008.  However, the Court of Appeal struck out the appeal on 3 June 2009.  The Court did so because, while appeal from a disciplinary decision of the Dental Council lies to the Court of Appeal, under Dentists Registration Ordinance (Cap.156) s.23(3A) an appeal must be brought within 1 month of the relevant order having been served.  The section further denies the Court of Appeal jurisdiction to extend the 1 month time limit.  The Court of Appeal thus could not entertain Dr. Young’s appeal or even extend time in which to hear the same.  See Young Yau Yau Cecilia v. Dental Council Civil Appeal No. 342 of 2008 (3 June 2009).

8.  The Court of Appeal reached its conclusion to strike out with “some degree of reluctance”.  The Court suggested that it might be possible to apply for judicial review.  But the Court left open the question “whether or not [judicial review] would be open in this case, having regard to the time which has expired”.

9.  Read in context, the Court of Appeal appears to have been signalling that, but for s.23(3A), it would have been prepared to extend time.  It is likely that the Court would have been so inclined given that Dr. Young had attempted to file her appeal shortly after the peremptory 1 month time limit had expired, and given the possibility that she may have been misled by the statement of someone in the High Court Registry as to the true deadline.  It seems to me that any Court (myself included) would have felt similarly inclined for the reasons just stated.

10.  Had Dr. Young filed a judicial review application (rather than a Notice of Appeal) on 14 November 2009, she would have been well within the 3 month time limit usually followed in judicial review applications. Her application (which raises arguable grounds) would have been heard as a matter of course if she had followed the judicial review procedure.

11.  In such situation, now to hold that Dr. Young is out of time for judicial review would be putting a premium on form over substance.  Dr. Young would be penalised merely because (while acting in person) she took out an appeal rather than a judicial review.  Such an outcome would be wrong in principle on all the facts of this case, especially the possibility that Dr. Young may have been wrongly informed of the applicable deadline by the High Court Registry.

12.  The relevant time reference is thus not 31 July 2009 (when Dr. Young actually applied for judicial review) but 14 November 2008 (when Dr. Young wrongly applied by Notice of Appeal).  The latter date being within the time limit for judicial review applications, I do not think that there was undue delay.

B.  Were the Council’s disciplinary proceedings flawed?

13.  Dental (Registration and Disciplinary Procedure) Regulations (DR) r.35 requires that a Legal Adviser “be present at every inquiry held by the Council”.  In the absence of a Legal Adviser “no such inquiry shall commence”.

14.  DR r.37(1) further provides:-

“When the Legal Adviser advises the Council on any question of law as to evidence, procedure or any other matter in any inquiry under section 9 or section 18 of the Ordinance he shall do so in the presence of every party to the proceedings or the person representing each party or, if the advice is tendered after the Council has commenced to deliberate as to its findings, every such party or person as aforesaid shall be informed of the advice that the Legal Adviser has tendered.”

15.  Mr. Chan retired with the other members of the Committee of Inquiry into a room for final deliberation.  He was present throughout the Committee’s deliberation.  The Council’s affidavit evidence on this is as follows:-

“10.   The Legal Adviser did not tender further legal advice to us during our deliberation.  If there had been any such advice, we would have ensured that parties were informed in accordance with the statutory requirement under regulation 37(1) of the Regulations.

11.    All findings and decisions were made by us.  The Legal Adviser did not take any part in our discussion or decisions.

12.    During deliberation, the Legal Adviser took notes of our discussion.  After we had reached our final decision on the charge, the Legal Adviser organized our findings, reasoning and decisions into a draft judgment.  This was done in our presence.

13.    We then thoroughly studied the draft judgment from the beginning to end to ensure that it was an accurate record of our findings, reasoning and decisions.  The draft was considered from sentence to sentence, and amended whenever necessary.  The final judgment was exclusively our own collective product, and did not contain anything which was not our own findings, reasoning and decision.”

16.  Mr. Anthony Ismail (appearing for the Council) acknowledges that, before this Court, the Council’s arguments are constrained by the Court of Appeal’s decision in Chan Hei Ling v. Medical Council [2009] 4 HKLRD 174.

17.  Regulation 8(1) of the Medical Registration (Miscellaneous Provisions) Regulations (MR) (concerning disciplinary proceedings before the Medical Council) is nearly identical in terms to DR r.37(1).  In Chan Hei Ling a Legal Adviser was present at the deliberations of a Committee of Inquiry of the Medical Council.  The Legal Adviser also assisted in the drafting of the Committee’s decision.  The Court of Appeal unanimously held that as a result the Committee’s decision was flawed.

18.  Le Pichon JA stated (at para.16):-

“The authorities cited made clear, in no uncertain terms, that communication in any form by a non-member [such as a Legal Adviser] with a tribunal in the absence of the parties would give rise to a perception of unfairness, that justice would not be seen to be done inasmuch as the tribunal might have been influenced by what might have been communicated.  A non-member who is present during the tribunal’s deliberations plainly is in a position to communicate with the Council.  Whether he actually does so is irrelevant because his mere presence would give rise to a perception of unfairness.  Equally, the involvement of a non-member in the drafting of the decision, even a first draft which is subject to review by the members of the tribunal, inevitably, would open up the possibility of the tribunal having been influenced as to the contents of the decision, for example, through using or adopting thoughts and expressions in the decision emanating from the non-member that might not otherwise have featured in the decision.  It is, thus, objectionable.”

19.  Cheung JA stated (at paras. 69-70 and 72):-

“Ma CJHC had stated in Dr. Wu Hin Ting v. Medical Council [2004] 2 HKC 367 that the better practice is for the Legal Adviser not to retire together with the Medical Council.  Although he had also stated that it is for the Medical Council to decide whether to allow the Legal Adviser to be retired with them, I am of the firm view that the Legal Adviser should not retire with the Medical Council.  This is in line with the ‘better practice’ requirement.  In my view no amount of explanation can dispel the legitimate concern that the decision may be influenced by the views of the Legal Adviser who is not a member of the Medical Council if he is allowed to be present and to express his views on ‘points of law’ on his initiative during the deliberation.  The distinction between law on the one hand and mixed law and fact on the other hand is often a very fine one and is difficult to draw.  Just as a lay jury in a criminal trial must deliberate on its own, the Medical Council must likewise deliberate on its own. The [Basic Law] art.10 requirement of a tribunal being competent, independent and impartial outweighs any counter argument that it may be more convenient for the Legal Adviser to tender his advice if he is allowed to follow the deliberation.

I also do not accept the role played by the Legal Adviser extends to noting down the deliberation of the Medical Council and then reducing their views into a written decision in legal language for the Medical Council to approve.  Although Mr. McCoy described such an act as the Legal Adviser being in a ‘downstream’ position ‘scribing’ the views expressed in deliberation by the Medical Council, the stark fact is that it was the Legal adviser who prepared the draft decision for the Medical Council’s approval. No amount of alternative phraseology in describing his action can hide this fact.

....

As repeatedly said by the courts in the common law jurisdiction which have been reviewed by this Court in a series of cases involving solicitors and referred to by Le Pichon JA in her judgment that the person who has stood trial before a disciplinary body is entitled to have that body’s reasons for its decision and not the reasons that someone else has composed for the decision.  In my view this requirement is of such fundamental importance and constitutes the necessary and practical application of the constitutional protection. Any other interpretation will render the protection to be merely high sounding aspirations without substance.”

20.  Stone J stated (at paras. 77 and 79):-

“Mr. [Michael] Thomas SC ... made three broad points in his persuasive submission, only one of which struck me as being worth powder and shot, namely that of the participation of the legal adviser in the writing of the decision of the Council consequent upon the disciplinary inquiry.

....

It is simply not possible to act as a ‘scribe’ or mere amanuensis without imparting to the draft thereby produced at the least some gloss or complexion emanating from the mental processes of the writer, and however practically convenient it may have been for the other members of the disciplinary tribunal to have had a draft decision thus produced for their consideration, this practice simply is impermissible in terms of the statutory function of the legal adviser of the Medical Council.”

21.  The present facts are identical to those in Chan Hei Ling as far as Mr. Chan’s role in the Dental Council’s deliberation is concerned.  What Mr. Chan did is precisely that which the Court of Appeal said should not have been done.

22.  Mr. Chan “scribed” the Committee’s views (that is, “organized [the Committee’s] findings, reasoning and decisions”) into a coherent first draft.  In so doing, as the Court of Appeal pointed out in Chan Hei Ling, he would not have simply been conducting a clerical exercise.  He would inevitably have been bringing to bear his legal knowledge to craft a persuasive judgment.  Even if Mr. Chan’s draft was later scrutinised and amended by Committee members, in practical terms the draft operated as a “submission” on how the case against Dr. Young might most effectively be put.

23.  One does not draft a judgment in a vacuum.  In carrying out the task, one needs to pay attention to what the law requires to be established for a guilty finding. The written structure given by Mr. Chan to the Committee’s oral deliberations (for example, how evidence against Dr. Young might logically be marshalled to support the Committee’s conclusion) would necessarily have involved some consideration of the applicable law.  Thus, despite the Council’s denial that Mr. Chan proffered “legal advice” during the Committee’s deliberation, the drafting which he performed must be characterised as a type of legal advice.

24.  Consequently, r.37(1) required the Committee to inform Dr. Young and her lawyers of Mr. Chan’s drafting.  This would not be a mere formality.  Informing Dr. Young and her lawyers would have provided them with a chance to comment on any forensic gloss by Mr. Chan.  But the requirement in r.37(1) was not observed.

25.  The procedure adopted by the Council in Ms. Young’s case was therefore flawed.  Dr. Young did not have an opportunity to be heard on Mr. Chan’s advice, although by r.37(1) she ought to have had such opportunity.  There was a denial of natural justice.

26.  Further, the failure to inform Dr. Young and her lawyers of Mr. Chan’s legal advice gives rise to a perception of apparent bias.  Often in drafting a judgment, additional arguments for and against a particular stance (initially believed to have been settled) come to mind.  Logical difficulties or false assumptions frequently emerge when one attempts to articulate a case on paper.  One might then have to re-think one’s view or possibly change one’s mind altogether.  An objective observer would perceive a real risk of the Committee being influenced and possibly strengthened in their views by the way in which Mr. Chan framed the draft written decision against Dr. Young.  Mr. Chan would in such case have functioned as an additional advocate for the prosecution with a privileged unilateral access to the Committee.

27.  I conclude that the procedure followed by the Council was unfair.  The procedure breached natural justice and gave the appearance of bias.

C.  Was there waiver?

28.  Mr. Ismail submits that Dr. Young waived the right to rely on the procedural irregularity just identified.  Mr. Ismail says that waiver arises from the following elements:-

(1) On their own evidence, Dr. Young and her solicitor (Mr. Vitus Leung) knew that Mr. Chan retired with the Committee into a room for the Committee’s final deliberation and Mr. Chan “was staying with all Committee members inside the room”.

(2) Dr. Young and Mr. Leung must be presumed to know of Ma CJHC’s dictum in Dr. Wu Hin Ting (mentioned in Chan Hei Ling) that the “better practice” is for a Legal Adviser not to be present at the deliberations of a Committee of Inquiry.

(3) Neither Dr. Young nor Mr. Leung complained about Mr. Chan retiring with the Committee.  They did not draw the Committee’s attention to the “better practice” identified by Ma CJHC.  This is despite Mr. Leung having commented to one of the Council’s secretarial staff present at the Inquiry that “the Legal Adviser should be advising all parties rather than advising the Committee Members in private”.

29.  Mr. Ismail argues that one cannot blow hot and cold.  According to Mr. Ismail, it was incumbent upon Mr. Leung, given his state of knowledge at the time when the Committee retired, to have then and there queried the role being played by Mr. Chan.  Mr. Ismail says that Mr. Leung should have asked the Committee to follow the “better practice” at that stage.

30.  One cannot (Mr. Ismail continues) wait for the outcome of the Committee’s deliberation before objecting.  No complaint having been made to the Committee at the time regarding Mr. Chan, Dr. Young must be taken (Mr. Ismail reasons) to have accepted the situation.  Dr. Young (it is said) must be deemed to have abandoned the right to question the propriety of Mr. Chan’s presence.

31.  In Shrager v. Basil Dighton Ltd. [1924] 1 KB 274 the English Court of Appeal referred to the need to show “substantially a full knowledge of the material facts” (Atkin LJ at 287) before a party can be deemed to have consented to (and thereby waived) the right to object to a state of affairs.  Applying that principle to the facts of the present case, I am not satisfied that Dr. Young and her lawyers can be deemed to have waived their right to object to the non-observance of r.37(1).

32.  Mr. Chan’s retirement with the Committee and his presence at the latter’s deliberations, although not the “better practice,” was on its face consistent with r.37(1).  Dr. Young and Mr. Leung could safely assume that the Committee was aware (as it indeed was) of r.37(1).  Dr. Young and Mr. Leung could also assume that, if Mr. Chan gave any advice during the Committee’s deliberation, the gist of such advice would be communicated in accordance with r.37(1).  Dr. Young and her lawyers would not have had sufficient knowledge of the material facts (namely, Mr. Chan’s actual assistance in the drafting of the Committee’s decision) until recently when the Council filed its affidavit evidence in these judicial review proceedings.

33.  I do not accept that it was incumbent upon Dr. Young and Mr. Leung at the moment of the Committee’s retirement to object to Mr. Chan attending the Committee’s deliberation or to draw attention to the “better practice”.  Dr. Young and Mr. Leung may have been suspicious or unhappy about the turn of events.  But it would have still been reasonable for them to assume that, if legal advice in any form (including in the form of an initial draft) was tendered in the course of closed door deliberation, they would be so informed.  As Atkin LJ observed in Shrager (at 287), “[h]owever suspicious the plaintiff’s advisers may have been, I think that it would have been impossible for them to have acted upon their suspicions and cast doubt upon the good faith of the tribunal unless they had convincing evidence [of an irregularity] upon which to act”.  In my view, there was no “convincing evidence” to found a case of waiver at the time of Committee’s retirement.

34.  Consequently, I find that there was no waiver on Dr. Young’s part.

III. CONCLUSION

35.  The judicial review succeeds.  The Council’s decision and its order of 4 September 2008 are quashed.  The matter will be remitted to a differently constituted Committee of Inquiry for re-consideration.  In making such direction, I should not be taken to have precluded Dr. Young from submitting to the new Committee of Inquiry that, having served her sentence or for whatever other reason, there is no point in further disciplinary proceedings.

36.  There will be an Order Nisi that the Council pay Dr. Young’s costs, such costs to be taxed if not agreed.  Insofar as Dr. Young has been legally-aided, her own costs are to be taxed in accordance with Legal Aid Regulations.