THE SECRETARY OF THE DENTAL COUNCIL OF HONG KONG v. THE DENTAL COUNCIL OF HONG KONG

1994, MP No. 1403

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The Applicant who is the Secretary to the Dental Council seeks to judicially review the decision of the Council in relation to disciplinary proceedings against a dentist I propose referring to as Dr. A.

2. After I granted the Applicant leave to proceed, the papers were served on Dr. A as an interested party. Mr. Michael Thomas, Q.C. who was representing him made a preliminary application to me to set aside the leave I had granted to the Applicant on the ground that he had an insufficient interest in the matter to enable him validly to have a locus standi. I informed the parties that this application was refused. My reason for this was that I accepted that the role of the Secretary was an important one and that it could be said with a measure of accuracy that the Secretary was both a conduit between the general public and the Council and also in effect acted as prosecutor in disciplinary proceedings. Indeed I accepted the correctness of the submission made by Miss Shine for the Applicant that the Secretary was indeed the right person to initiate an application of this nature. This being the case, he had a sufficient interest in the matter for him to properly be a party to the proceedings.

3. The Applicant seeks an order of Certiorari to quash the decision of the Council in the disciplinary proceedings and consequential relief thereon.

4. Dr. A was in December 1986 convicted by the Supreme Court of British Columbia in Canada of 17 counts of indecent and sexual assaults against female patients while he was treating them. After an appeal he was sentenced to two years imprisonment less 1 day and probation for a further period of two years. In addition to this he was struck off the register of Dentists in British Columbia.

5. After serving his sentence, Dr. A applied to practise as a Dentist in Hong Kong. He did not disclose what had occurred in Canada. In this connection, it appears that he was not required to do so. His application was successful and he practised as a Dentist here. Someone aware of what had happened in Canada made a complaint to the Council hence the disciplinary proceedings.

6. At the conclusion of the hearing, the Council ordered that Dr. A should be permitted to continue to practice subject to the following restrictions:

"(a) practice only in company with other dentist(s) in the same premises, with the exception of hospitals;

(b) any contact with female patients is to be accompanied at all time by a dental surgery assistant;

(c) no administration of any form of anaesthesia except local anaesthesia;

(d) any other forms of anaesthesia should only be performed by qualified anaesthetists; and

(e) 6-monthly psychiatric reports from a local psychiatrist for a period of five years commencing 1st June 1994, the resulting reports shall be presented to the Dental Council;

and such decision will not be gazetted."

7. In the application for relief the applicant submits that he is entitled to relief on these grounds:

"C. Submissions

1. As to the Relief Sought at paragraph 1 above :-

(a) the order of the Dental Council does not fall within the provisions of section 18(1)(i) to (iii) of the Ordinance and therefore can only fall within the provisions of section 18(1)(iv). No tribunal properly directing itself on the relevant law and acting reasonably could have reached the decision that the order made is of lesser severity than those in section 18(i) to (iii) of the Ordinance.

(b) the order of the Dental Council is unreasonable and irrational in that the restrictions imposed by the order on the practice of Doctor A are vague, uncertain and incapable of enforcement. Further, no provision is made in the order in the event of breach of the said restrictions.

(c) The order of the Dental Council is unreasonable and irrational in that in view of the nature and seriousness of the offence charged, no tribunal properly directing itself on the relevant law and acting reasonably could have passed the sentence in the terms of the said order.

2. As to the Relief Sought at paragraph 2 above :-

There is no express provision for an order to be made by the Dental Council under section 18(1)(iv) of the Ordinance with conditions or restrictions in the nature of conditions attached, nor can such a provision be implied. Further, there is a provision in section 18(1A) of the Ordinance allowing for conditions to be imposed where a suspending order is made, but no such provision appears in section 18(1)(iv).

S.18(1) of the Dentists Registration Ordinance, Chapter 156 is in these terms.

"18. Disciplinary inquiries by the Council

(1) If, after due inquiry into any case referred to it by the Preliminary Investigation Committee in accordance with regulations made under section 29, the Council is satisfied that any registered dentist (Amended 12 of 1968 s.4)

(a) has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment; or (Amended 79 of 1984 s.7)

(b) has been guilty of unprofessional conduct; or

(c) has obtained registration by fraud or misrepresentation; or

(d) was not at the time of his registration qualified to be registered; or

(e) has contravened the provisions of section 17,

the Council may, in its discretion -

(i) order the name of the registered dentist to be removed from the register; or

(ii) order the name of the registered dentist to be removed from the register for such period as it may think fit; or

(iii) order the registered dentist to be reprimanded; or

(iv) make any other order as it thinks fit, but no such order shall be of greater severity than those in paragraphs (i) to (iii), (Replaced 16 of 1992 s.2)

and may, in any case, make such order as the Council thinks fit with regard to the payment of the costs of the Secretary, a complainant, a counsel or solicitor present at the inquiry and the registered dentist or any one or more of them, and any costs awarded may be recovered summarily as a civil debt in accordance with the Magistrates Ordinance (Cap. 227). (Amended 49 of 1977 s.8)

8. Before considering the submissions which were made by Miss Shine, I think that it may be useful to attempt to formulate the principles which have to be borne in mind by the Council when hearing disciplinary proceedings. These were helpfully set out in the speech of Lord Diplock at page 333 of Ziderman v. Dental Council [1976] 1 WLR 330.

"The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession. So, quite apart from section 25(2)(a) of the Dentists Act 1957, it would be the duty of the committee, before deciding to inflict the only and draconian penalty which lies within their power, to satisfy themselves that the offence of which the dentist had been convicted was of so grave a character as to show that he was unfitted to continue to practise his profession."

9. It is accordingly necessary to bear in mind that what the Council was concerned with was not punishing Dr. A but making a determination which was designed to protect the public and to uphold the goodname of the Dentists profession in Hong Kong. It is important to bear this in mind in these proceedings.

10. Miss Shine's submission can conveniently be dealt with under 3 main heads.

1. Does the Council have power to impose the conditions it did under S. 18(1)(iv) above?

11. She submitted that it had no such power. She argued that the power to impose conditions was subject to a restriction that the conditions imposed would be of no greater severity than the punishments contained in S. 18(1)(i) - (iii). That is removal from the Register either permanently or temporarily, or being reprimanded. These punishments all have to be gazetted.

12. Miss Shine contended that conditions could only be imposed if a suspended removal order was made of the type referred to in S. 18 (1A).

13. The reason she gave for this was that unless the Order was suspended in this way there would be no satisfactory way in which the conditions could be enforced. I do not accept the validity of this contention. There are many ways in which the conditions could be enforced other than terminating the suspension. If evidence was forthcoming that any of the conditions was not being complied with, this of itself would in all probability constitute professional misconduct. I do not think that s. 18(1A) sheds any light upon the construction of s. 18(1).

14. As I read the section, the only constraint on imposing conditions is the requirement that the punishment will not be more severe than the penalties referred to in s.18(1)(i) - (iii). This must be a matter for the judgment of the Council. It is as I have stated necessary to bear in mind that these other penalties have to be gazetted and this of itself is quite a severe sanction.

15. In the present case there was evidence before the Council that Dr. A had of his own volition, prior to the present disciplinary proceedings being commenced adopted the safeguards referred to in the conditions imposed by the Council. It is, therefore, arguable that the conditions which were imposed were less severe than the penalties referred to in s. 18(1)(i) - (iii).

16. What is of greater importance is that I consider that the section has to be interpreted in the context of the duties which have to be performed by the Council as propounded by Lord Diplock in Ziderman v. Dental Council. I have no doubt that the conditions imposed by the Council were not ultra vires and that in general terms the conditions were not more severe than the other penalties referred to.

17. This view of the matter is reinforced by the extract from Hansard which was cited to me by Mr. Thomas which states that one of the main objects of the amending legislation was to build into the scheme a larger measure of flexibility.

2. If the Order was intra vires it must still be within the limits of the Ordinance conferring power and must be reasonable, rational and not capricious.

18. Miss Shine argued that these requirements had not been complied with in the present case. She claimed that the conditions were vague, uncertain and incapable of enforcement.

19. In support of this she outlined the dilemma facing the Secretary in the present situation. She claimed that the order to the effect that it should not be gazetted taken in conjunction with the direction given by the Chairman that anonymity should be preserved effectively tied the hands of the Secretary and would render the policing of the order very difficult if not impossible.

20. With respect I think that this arises out of a misunderstanding of the functions properly exercisable by the Secretary. I agree with the submission made by Mr. Fitzpatrick for the Council that it is inappropriate not to have regard to all of the surrounding circumstances. The Secretary would not be fettered in the manner complained of. Dr. A's colleagues and employees of the practice would be aware of the situation and in the event of there being a breach of the conditions there was every likelihood that the matter would be brought to the attention of the Council.

21. I am also satisfied that the complaint that the conditions are vague and unsatisfactory cannot be sustained. They are quite clear and workable. They are also designed to protect members of the public and to maintain the reputation of the dental profession.

3. That the Order was Wednesbury unreasonable.

22. For the Applicant to succeed on this ground, it is necessary for him to establish in the words of Lord Diplock, page 410 of CCSU v. Minister of Civil Service [1985] AC 374.

" By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (Associated provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] I K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision- maker. 'Irrationality' by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review."

23. I do not think that the Applicant can establish this having regard to all of the surrounding circumstances.

24. On the facts which were before the Committee there was undisputed evidence of the efforts made by Dr. A to rehabitate himself. He had practised in Hong Kong for almost three years and his conduct had been beyond reproach. Some of his colleagues while aware of his background had referred patients to him for treatment and this had been undertaken successfully.

25. There was also the evidence of Dr. Eaves, a Canadian Psychiatrist to the effect that Dr. A was a reformed character and now posed no danger to female patients.

26. All of these matters were imminently matters coming within the competence of the Disciplinary Board. It is also the case that the Court should be slow the upset the finding of such a body.

27. This approach was followed in the opinion of Lord Upjohn at page 1112 of McCoan v. General Medical Council [1964] 1 WLR 1107.

"The powers of the Board to correct the determination of the committee on the hearing of such an appeal are in terms unlimited, but in principle, where a professional body is entrusted with a discretion as to the imposition of the sentence of erasure their Lordships should be very slow to interfere with the exercise of that discretion. There appears to be no authority directly in point under the Medical acts but their Lordships have been referred to some analagous authorities in the cases of professional misconduct of solicitors.

Their Lordships are of opinion that Lord Parker C.J. may have gone too far in In re a Solicitor when he said that the appellate court would never differ from sentence in cases of professional misconduct, but their Lordships agree with Lord Goddard C.J. in In re a Solicitor when he said that it would require a very strong case to interfere with sentence in such a case, because the disciplinary committee are the best possible people for weighing the seriousness of the professional misconduct.

No general test can be laid down, for each case must depend entirely on its own particular circumstances. All that can be said is that if it is to be set aside the sentence of erasure must appear to their Lordships to be wrong and unjustified."

28. What is particularly important in proceedings of this nature is that the Court should not attempt to substitute its own views for those of the Dental Council. I realise that in the present case there has already been a considerable amount of publicity. It is also likely that many people hold strong views particularly having regard to the serious nature of the charges Dr. A was convicted of. This, however, is not a good reason for interfering with the Order which was made. It is necessary to bear in mind the remit of the council to protect the public and to uphold the reputation of the profession. I do not consider that the Applicant has demonstrated that no reasonable person properly advised could have made the Order which was made.

29. For the reasons I have given, I dismiss this application. I will hear the parties on costs.