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

FACV No. 6 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 OF 2016 (CIVIL)

(ON APPEAL FROM CACV NO. 149 OF 2013)

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JUDGMENT ON COSTS

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Mr Justice Ribeiro PJ:

1.  This is the judgment of the Court.

2.  On 4 November 2016, the Court[1] unanimously allowed the appellants’ appeal, refused to remit the disciplinary charges for reconsideration and made an order nisi that the Council should pay the appellants’ costs here and below, including the costs of the disciplinary inquiry.

3.  The Council accepts that it should pay such costs and submits that the order nisi should be made absolute.

4.  However, the appellants submit that the Court should instead order the Council to pay the appellants their costs here and below with either the whole or half of the costs of the proceedings in this Court to be paid on an indemnity basis.

5.  Two main reasons are advanced for such indemnity costs: (i) the fact that the appellants made an offer without prejudice save as to costs after seeing the printed case filed on the Council’s behalf; and (ii) because the Court held that the disciplinary proceedings had been flawed from the outset, starting with a defectively framed charge, with the Court concluding that the appellants could not be regarded as coming within the statutory definition of conduct “which would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency”.

6.  The Council conceded in its printed case that the disciplinary proceedings had been procedurally unfair and stated that it would not seek to defend the convictions, but would invite this Court, after answering the questions of public importance, to remit the case back to the Council, if thought fit with amendment of the charges, for fresh consideration.

7.  The appellants’ response was to offer, without prejudice save as to costs, not to seek an order for the costs of the proceedings in this Court provided that the Council would agree to their convictions being set aside and not to remit the case to the disciplinary tribunal.  That suggestion was unacceptable to the Council and the appeal proceeded with the outcome described above. 

8.  The Council acted responsibly in accepting that the convictions could not be supported because of fatal procedural flaws. Those were flaws that the Court of Appeal had not corrected.  The Council therefore conceded the appeal and it must follow that the Council must pay the costs here and below, including the costs of the inquiry.  But should it pay them on an indemnity basis?

9.  The issue dividing the parties was whether the case could (as a matter of jurisdiction) and should (as a matter of discretion) be remitted for reconsideration, with the possibility that the charges might be amended.  As the Court pointed out,[2] it was necessary to address the points of public importance, not merely to give general guidance, but also to determine whether, on a proper appreciation of the legal position, any purpose would be served by remitting the case on the available evidence to the disciplinary tribunal for a rehearing.

10.  While the appellants’ offer is plainly a factor which the Court should take into account, we do not consider that offer, taken by itself or in combination with the errors of law found to have been made below, provides a sufficient basis for the exceptional course of ordering costs on an indemnity basis.

11.  The appellants’ argument that there was no jurisdiction to remit was not accepted.  The Court held that on the law as properly understood, there would be no purpose in ordering a remitter.  There is no suggestion that the Council acted other than in good faith in seeking a remitter.  It was carrying out what it perceived to be its duty of protecting the public against persons purporting to practise dentistry without proper certification.  The view taken by the inquiry and the Court of Appeal as to the law and the basis for a re-hearing before the disciplinary tribunal was wrong but not so unreasonable or objectionable as to merit an order of indemnity costs.

12.  Accordingly, we direct that the costs order nisi stand as an order absolute.