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

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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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J U D G M E N T

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Chief Justice Ma:

1. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2. This appeal raises questions concerning the relationship between offences involving dental companies under the Dentists Registration Ordinance (“DRO”)[1] and disciplinary charges relating to unprofessional conduct brought before the Dental Council of Hong Kong (“the Council”).  Issues concerning procedural fairness and the jurisdiction of the Court of Final Appeal and the Court of Appeal to remit issues for re-hearing by the Council also arise.

A.  Relevant provisions of the DRO and the Disciplinary Code

3. A person who wishes to practise dentistry is required to be registered under the DRO after having passed the qualifying examinations.  Practising dentistry without being registered is an offence punishable by a fine and three years’ imprisonment on summary conviction and by five years’ imprisonment on conviction on indictment, and if injury to the “patient” results, by imprisonment for up to seven years.[2]

4. Additionally, the DRO provides that a registered dentist “shall not practise as a dentist in Hong Kong, unless he is the holder of a practising certificate which is then in force”.[3] Practising certificates are issued by the Council’s Secretary and are valid for 12 months.

5. Section 15(3)(ba) provides that the Council may order the removal of a registered dentist’s name from the General Register if he or she has practiced dentistry in Hong Kong for a period exceeding 6 months without having obtained a valid practising certificate.

6. DRO section 12(1) enables a body corporate[4] to carry on the business of dentistry provided (inter alia) that “a majority of the directors and all persons practising dentistry are registered dentists”.

7. Section 12(3) requires every body corporate carrying on the business of dentistry to file an annual return with the Registrar of Dentists (“the Registrar”), stating the names and addresses of all persons who are directors or managers of the company, or who perform dental operations in connection with the business of the company.  The subsection goes on to provide that “if any such body corporate fails so to do, it shall be deemed to be carrying on the business of dentistry in contravention of the provisions of this section.”

8. If a company carries on the business of dentistry in contravention of section 12, the company “and every director and manager thereof” commits an offence and is liable on summary conviction to a fine of $2,000 for each offence.[5] However, in relation to a director or manager, section 12(2A) makes it “a defence for him to prove that the offence alleged to be committed by the body corporate was committed without his knowledge.”

9. Section 17 of the Code of Professional Discipline for the Guidance of Dental Practitioners in Hong Kong (“the Code”) issued by the Council[6] refers dentists to DRO section 12 and states the Council’s position regarding directors of dental companies in the following terms:

“The Council wishes it to be understood that a dental practitioner ... who becomes a director of a body corporate carrying on the business of dentistry thereby accepts responsibility for the maintenance of a high standard of professional conduct in that practice or business and may be required to answer to the Council for any act or omission in the conduct of that practice or business which appears to the Council to be such as would, if attributed to an individual dental practitioner, constitute unprofessional conduct. Attention is directed to Section 12 of the Dentists Registration Ordinance.”

10. DRO section 27, headed “Covering” provides as follows:

“Any registered dentist who practises dentistry in premises in which an unregistered person practises dentistry commits an offence and is liable on summary conviction to a fine at level 3 and to imprisonment for 6 months.”[7]

11. This is also referred to in section 15 of the Code (also headed “Covering”) as follows:

“15.1 The Council considers that a dental practitioner should in no way countenance, help, encourage or assist, either wilfully or by neglect, the practice of dentistry by an unregistered person.

15.2 Section 27 of the Dentists Registration Ordinance reads “Any registered dentist who practises dentistry in premises in which an unregistered person practises dentistry shall be guilty of an offence...”

15.3 Section 2(2) of the Ordinance sets out in what circumstances a person practises dentistry...”

12. DRO section 18 empowers the Council to conduct disciplinary proceedings and provides that it may, after due inquiry, if satisfied that any registered dentist has (inter alia) been convicted of any offence punishable with imprisonment or been guilty of unprofessional conduct, impose sanctions ranging from removal of the dentist’s name from the General Register down to a reprimand. 

13. It is important for the purposes of this appeal to note that “unprofessional conduct” is defined 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.”[8]

B.  The disciplinary proceedings, leave to appeal and the Council’s concession

B.1  The disciplinary proceedings

14. The facts are not in dispute.  The four appellants are registered dentists who were directors of a dental company called Health & Care Dental Clinic Limited (“the company”) over the relevant period.  On 8 August 2005, the company employed Dr Jeremy Tung (“JT”) who had been registered as a dentist three days earlier.  JT held valid practising certificates for the years 2005, 2006 and 2007.  However, although he was repeatedly asked by company staff for his renewed practising certificate, he failed to renew his practising certificate for the years 2008, 2009 and 2010.  His failure to renew led (apparently unknown to himself) to the removal of his name from the General Register on 17 July 2008.  However, JT continued thereafter to practise dentistry as an employee of the company.  Part of his routine involved practising on Tuesdays and Thursdays at the clinic which the 2^nd appellant (“Dr Chu”) attended on Fridays.

15. It was an agreed fact that JT’s failure to apply for renewal of his practising certificate in 2008 was “unknown to the [appellants] and unknown to [the company]”.[9] It was also agreed that:

“As soon as it was brought to the attention of the [appellants] on 16^th April 2010, that [JT] had failed to maintain his annual practising certificate, they immediately suspended his duties, and subsequently terminated his employment on 6 May 2010.”[10]

16. JT applied to be restored to the General Register, but on 22 March 2011, the Council refused his application and referred his case to the police.  The Council’s refusal was quashed for procedural unfairness in judicial review proceedings brought by JT.[11]  However, he was prosecuted for practising dentistry as an unregistered person, pleaded guilty and was fined $20,000.  The Court was informed that JT has since been restored to the General Register.

B.2  The disciplinary charges

17. In 2013, disciplinary charges (as amended) were laid against each of the appellants in the following terms:

“That you, being a registered dentist, during the period from 17 July 2008 to 16 April 2010 –

(i) and being a director of [the company], employed [JT] to perform dental service when he was no longer a registered dentist after his name had been removed from the General Register on 17 July 2008 (“the 1^st charge”); and/or

(ii) failed to take adequate steps to ensure that there was no unregistered person practising dentistry in the premises in which you practised dentistry (“the 2^nd charge”);

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

18. All the appellants were convicted on the 1^st charge and Dr Chu alone was convicted on the 2^nd charge since only he practised at the same premises as JT (although on different days of the week).

19. The appellants’ appeal to the Court of Appeal was dismissed.[12]

B.3  The grant of leave to appeal

20. The Appeal Committee[13] granted leave to appeal in respect of the following questions of law (which reflect the Court of Appeal’s reasoning, to which I shall return):-

"In disciplinary proceedings charging registered dentists who are directors of a dental company for unprofessional conduct by reason of that company having breached its statutory duty under the Dentists' Registration Ordinance (Cap 156) section 12 by employing an unregistered person to perform dental services:-

(i) Was the Council entitled to find unprofessional conduct is made out even though that unregistered person had previously been duly registered and his removal from the General Register was unknown to the applicants and unknown to the dental company over the relevant period? ("Question 1")

(ii) Does the answer to the foregoing Question depend on whether such absence of knowledge is properly characterised as negligent or as involving negligence rising 'to the level of an elemental and grievous failure'? ("Question 2")

(iii) Was the Court of Appeal right to hold that directors of dental companies have a professional duty to ensure that only registered dentists are employed by the company, to verify the registered status of employed dentists in compiling the annual return and to confirm the accuracy of the annual return; and that inserting the relevant person's name in the annual return required to be filed by DRO section 12(3) amounted to a warranty that he was a registered dentist? ("Question 3")

21. In addition, leave was granted on the “or otherwise” limb on the basis that reasonably arguable questions arise relating to want of procedural fairness.

B.4  The Council’s concession

22. Mr Stewart Wong SC, appearing for the Council,[14] concedes that the appellants’ convictions cannot stand because of procedural unfairness. The Council acknowledges that the appellants did not know about JT’s lack of registration but submits that the convictions can nonetheless be sustained on the basis that such lack of knowledge was due to “negligence to a level of elemental or grievous failure” on the appellants’ part.  The Council accepts, however, that “the Appellants did not have a fair opportunity to deal with this issue at the Inquiry as this had not been expressly and fairly put as part of the case against them (whether in the Charges (originally or as amended) or as presented at the Inquiry).”  Thus, while it does not seek to support the convictions, the Council invites the Court, after answering the Questions 1 to 3 in order to “provide authoritative guidance to the Council in this and future cases, to remit the matter back to the Council for fresh consideration (and with further amendment to the Charges (with leave of the Council) if thought fit)”.

23. The premise of this invitation to the Court is that Questions 1 to 3 should be affirmatively answered and that the appellants may properly be found guilty of disciplinary offences as directors of the company on the basis of the high level of negligence contended for despite having no knowledge of JT’s unregistered status.  Mr Johnny Mok SC, appearing for the appellants,[15] takes issue with that premise.  The appellants also argue that the Court lacks jurisdiction to remit or alternatively, that such remitter would be oppressive and unfair and so should be refused in the exercise of the Court’s discretion.

24. Given that the Council does not seek to uphold the convictions, it would be open to the Court simply to decide whether it can and should remit the case to the Council.  However, since the Council’s invitation to remit is premised on affirmative answers to Questions 1 to 3 and, as those questions have been fully argued, it is appropriate for them to be addressed.

C.  The Council’s decision

25. The Council treated the first charge as based on the offence created by section 12(2) of DRO, interpreting that section as requiring a dental company “to ensure that it employs only registered dentists to perform dental operations”.[16] In support of this interpretation, it relied on section 12(3), stating:

“... under section 12 of the Ordinance the dental company is required to make an annual return to the Registrar of Dentists setting out, inter alia, all persons who perform dental operations in connection with the business of the company, stating the status of each of such persons. The company must verify the registered status of each person who performs dental operations before making the annual return in the prescribed form ... This can easily be done by verifying from the General Register which is published on the website of the Dental Council.”[17]

26. The Council regarded the duty of the company so conceived as extending to the appellants, its directors, whom it regarded as the “brain and mind of the company” and “directly responsible for” its affairs.[18]  It held that the fact that the staff had repeatedly urged JT to renew his practising certificate meant that:

“... they knew that he was practising dentistry without a valid practising certificate.”[19]

27. The Council found that the company had failed to verify, or had turned a blind eye to, JT’s non-registration.  It held that:

“In either case, the 4 Defendants as directors failed to fulfill their statutory duty to ensure that all persons employed to perform dental operations are registered dentists.”[20]

28. In reaching that conclusion, the Council also referred to section 17 of the Code and decided that failure to ensure that all persons performing dental operations in the dental company were registered dentists was conduct which would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency.

29. The Council referred to DRO section 27 as the basis for the second disciplinary charge, holding that it “imposes a positive duty on every registered dentist to ensure that there is no unregistered person practising dentistry in the same premises with him”.  Pointing out that DRO section 14 requires dentists conspicuously to exhibit their certificates of registration at the premises where they practise, coupled with the fact that Dr Chu was a director of the company, the Council held that it was an “irresistible inference” that Dr Chu knew that JT was practising in the same premises and that it was unprofessional conduct for Dr Chu to have failed to ensure that JT was not an unregistered person so practising.

30. On the 1^st charge, the Council ordered the name of the 1^st appellant to be removed from the General Register for a period of three months and the names of the other appellants to be removed for a period of two months.  On the 2^nd charge, Dr Chu’s name was ordered to be removed from the General Register for a period of one month to run concurrently with the order made on the 1^st charge.

D.  The Court of Appeal’s decision

31. The Court of Appeal noted that unprofessional conduct was not confined to conduct constituting an offence under the DRO[21] and also that the Code did not exhaustively list all instances of such conduct.[22]

32. In assessing the appellants’ conduct, it repeatedly stressed the importance of the “regime of registration” laid down by the DRO[23] and held that the Council was entitled to impose professional responsibilities on dentists in order to support the statutory registration regime and to prevent any “dilution” of the protection it affords against members of the public receiving treatment from unregistered persons practising dentistry.  McWalters JA, giving the reasons of the Court, put this as follows:

“Against this backdrop of the statutory scheme of the DRO, we can see no legal reason why the Dental Council cannot quite properly regard as unprofessional conduct acts or omissions by a dentist which significantly undermine the effectiveness of the registration regime. For the purpose of the disciplinary process it is for the Council to determine what professional responsibilities will be required of dentists and what standards will be set for them in the performance of those responsibilities.”[24]

33. Like the Council, the Court of Appeal found that the appellants were subject to a professional duty as directors of the dental company to ensure that all persons employed by the company to practise dentistry were registered dentists.[25] Although McWalters JA suggested that the Council was not purporting to reach a conclusion as to the legal effect of section 12(2) but merely “expressing its understanding of the spirit and effect of section”[26] in determining whether there had been unprofessional conduct, the Council evidently considered the statutory and professional duties to overlap completely and found that the appellants “as directors failed to fulfil their statutory duty to ensure that all persons employed to perform dental operations are registered dentists”.[27]  Indeed, this view of the effect of section 12 was endorsed by the Court of Appeal stating:

“In the way the Council approached the statutory provisions of the DRO, and specifically section 12 of that Ordinance, we can find no fault in the Council’s conclusion that the appellants, as directors failed to fulfill their statutory duty to ensure that all persons they employed were registered dentists.”[28]

34. This is reinforced by the Court of Appeal bolstering that conclusion by construing DRO section 12(3) as imposing a “duty to ensure” the registered status of persons employed by the company to practise dentistry before listing them in the annual return.  McWalters JA stated:

“... it is implicit that by the act of inserting a person’s name in the return the body corporate is warranting that such a person is a registered dentist. Such a representation is crucial to the registration regime and should not be made without verification of the registered status of each person whose name is being included in the return.”[29]

35. Summarising its conclusion, the Court of Appeal held:

“We can see nothing wrong in the Council concluding that directors of dental companies have a professional duty to ensure that only registered dentists are employed by the company, have a duty to verify the registered status of employed dentists in compiling the annual return and have a duty to confirm the accuracy of the annual return.”[30]

36. McWalters JA, however, went on to hold that the Council’s finding was “based on negligence”:

“It is clear that the Council’s finding was a finding based on negligence. Such a basis for a finding of unprofessional conduct is permitted by the law, but the negligence must be more than ordinary negligence and must rise to the level of ‘an elemental and grievous failure’.”[31]

He continued:

“Applying this test to the facts of this case as contained in the Statement of Agreed Facts, we are of the view that it was open to the Council to find unprofessional conduct merely on the basis of permitting Mr Tung to practise dentistry through a failure by the appellants to properly discharge their statutory duties. This was a failure, as we have mentioned, that continued over 28 months and encompassed two annual returns. It totally undermined the registration regime and was at the most serious level of non-wilful conduct. The appellants took all the benefits that went with operating a dentistry business through a body corporate but failed to properly discharge their responsibilities that accompanied such a form of practice. In convicting the appellants of non-wilful conduct the Dental Council, in our view, had a correct appreciation of the gravity of the appellants’ conduct. We can see no reason for concluding that it applied the wrong test.”[32]

37. It is not entirely clear how this “test” involving negligence amounting to an “elemental and grievous failure” – which I shall call “gross negligence” – fits in with the postulated “duty to ensure”.  It is perhaps best understood as proposing that a failure to ensure the registered status of relevant persons in the absence of knowledge of (or wilful blindness as to) such unregistered status, only constitutes unprofessional conduct if the failure is the result of gross negligence.

38. McWalters JA also pointed to the absence of evidence of what the appellants individually had done to ensure that an adequate administrative system was in place, stating that the evidence “merely described the efforts of various administrative staff of the dental company and did not reveal any specific actions by the appellants”;[33] adding:

“The appellants made a deliberate decision not to adduce any evidence to supplement the Statement of Agreed Facts. That left the Council with no evidence from them in respect of what actions, if any, each of them may have taken in the administration of the company and particularly with regard to completing the annual return and ensuring the accuracy of its contents. If the appellants wished to maintain that they had adequate administrative systems in place notwithstanding the obvious failure of those systems in the present case, then it was for them to place such evidence before the Council.”[34]

39. It is unclear whether the Court of Appeal was implicitly convicting the appellants of failing to have in place an “adequate administrative system” and, if so, how that would fit in with the posited duty to ensure or duty based on gross negligence.  It is perhaps best understood as translating the postulated duties into a duty placing a burden on defendants to show individual efforts at maintaining an adequate administrative system.

40. In relation to Dr Chu, the Court of Appeal reiterated the legitimacy of imposing professional obligations to bolster the registration regime.[35] It pointed to the “warning” against “covering” set out in section 15 of the Code (which refers dentists to DRO section 27) and stated:

“It is hardly surprising in the light of this warning that the Council would view this appellant’s conduct, as a director of the dental company, as constituting unprofessional conduct. Whether the Council would have found the second appellant guilty of unprofessional conduct had he not been a director is another matter. But, that he was a director was clearly a key reason for the Council’s finding for it recognized that there was an overlap in the second appellant’s culpability for the second charge with his culpability for the first charge. Hence, its order that the removal of the second appellant from the General Register for the second charge run concurrently with its removal order in respect of the first charge.”[36]

41. In upholding its decision, the Court of Appeal accorded weight to the Council’s views, stating:

“It has long been recognised that bodies, such as the Dental Council, set up to regulate different professions are best placed to decide what standards are required of the professionals subject to their authority and what conduct should constitute professional misconduct.”[37]

E.  Diffidence of the courts

42. A preliminary matter that arises concerns the degree of diffidence that the courts should show in questioning the disciplinary rulings of the Council. 

43. The starting point is section 18(2) which 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”.  As the Code explains:

“The question of whether any particular course of conduct amounts to unprofessional conduct, and the gravity of such unprofessional conduct and of any conviction, are matters which the Council will determine after considering the evidence in each individual case.”[38]

44. This must of course be understood in the light of the governing statutory definition.  What the Code is saying is that the Council decides whether the dentist’s conduct in a particular case should be “reasonably regarded as disgraceful or dishonourable” in accordance with the statutory definition and if so, how grave that misconduct is.  It is not saying that the question of what amounts to unprofessional conduct is at large, to be determined by the Council as it sees fit.

45. As noted above the Court of Appeal’s approach was to regard bodies like the Council as best placed to decide whether a dentist’s conduct should be regarded as constituting professional misconduct.  In addressing that question within the framework of the statutory definition, that proposition will often be correct.  However, much depends on the nature of the issue in question. 

46. Thus, in Ghosh v General Medical Council,[39]Lord Millett, delivering the judgment of the Privy Council regarding sentences imposed for professional misconduct, emphasised that the courts’ powers “are not as limited as may be suggested by some of the observations which have been made in the past.”[40]  His Lordship held that while the Board would “accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public”, it would “not defer to the committee's judgment more than is warranted by the circumstances.”

47. In Preiss v General Dental Council,[41] Lord Cooke of Thorndon pointed out that with the coming into operation of the Human Rights Act 1998, the tendency to “read down rights of appeal in disciplinary cases is to be resisted”.  Echoing Lord Millett in Ghosh v General Medical Council, Lord Cooke added:

“An instance, on which some reliance was placed for the General Dental Council in the argument of the present appeal, is the observation in Libman v General Medical Council [1972] AC 217, 221, suggesting that findings of a professional disciplinary committee should not be disturbed unless sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence was misread. That observation has been applied from time to time in the past, but in their Lordships’ view it can no longer be taken as definitive. This does not mean that respect will not be accorded to the opinion of a professional tribunal on technical matters. But, as indicated in Ghosh, the appropriate degree of deference will depend on the circumstances.”

48. This approach was adopted by the Court of Appeal in Lau Koon Leung v Medical Council of Hong Kong.[42]  While acknowledging that the courts should remain cautious in respect of sentences, Yuen JA explained that the earlier reluctance of the courts to interfere was consistent with professional bodies not then being required to give reasons for their disciplinary rulings, the position having since changed.  This approach, in which the “appropriate  degree of deference” depends on the circumstances, was approved by this Court in Solicitor (24/07) v Law Society of Hong Kong.[43]

49. Clearly, it is sensible for the Court to be diffident about interfering with a disciplinary body’s assessment of matters calling for professional judgment and expertise.  This is likely to be the case, for instance, where professional misconduct is alleged in connection with technical or clinical judgments or competence.  It may also be the case where the unprofessional conduct raises questions of professional ethics governing, for instance, the relationship between a professional and his or her clients or patients or fellow members of the profession.  But diffidence is not called for where the alleged misconduct does not concern such areas of professional expertise.  The Court in Mallon v General Medical Council,[44] expressed this as follows:

“The spectrum of serious professional misconduct can range from conduct that is entirely non-clinical, such as defrauding the National Health Service or sexually harassing an employee or colleague, to conduct in the course of clinical practice, such as the carrying out of a reckless surgical procedure. In a case of the former kind, a court might conclude that there was little to inhibit it from substituting its own judgment for that of the panel if it should have cause to differ from it. In a case of the latter kind, which involves a technical question of medical malpractice, the court is, we think, at a serious disadvantage to the panel whose decision is impugned.”

50. The present case does not call for reticence on the Court’s part.  The alleged unprofessional conduct concerns the responsibility of director-dentists for the fact that their company had employed a dentist who had, without their knowledge or the company’s knowledge, continued to practise after failing to renew his practising certificate and consequently been de-registered.  It is not a case involving technical or clinical judgment or professional expertise.  It involves attributing responsibility to directors for a corporation’s failure to comply with a regulatory requirement – a matter that the Court is itself well-equipped to deal with albeit in the context of the practice of dentistry.

F.  The 1^st charge

51. The Council was right to concede that the convictions cannot be sustained.  The many flaws in the process leading to those convictions began with the way the 1st charge is formulated. 

52. Since the case against the appellants was that they were guilty of unprofessional conduct, it was incumbent on the Council, applying the definition in section 18(2), to identify the act or omission which it was alleged would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency. The 1^st charge[45] simply alleges that the appellants “employed JT to perform dental service when he was no longer a registered dentist” and were thereby guilty of unprofessional conduct.  The act relied on was therefore the act of employing JT.  The transcript shows that, prosecuting the case on the Council’s behalf, its Legal Officer essentially did no more than read out the charges, the Statement of Agreed Facts and official documents relating to registration and annual returns.  On that basis, he advised the Council that “The Secretary has no difficulty in proving charge (i)”.  The solicitor appearing for the appellants said that she “accepted the facts of charge (i)” and had no comments to make.

53. It was an agreed fact that the act of employing JT was the act of the company with whom he had an employment agreement.  It was not the act of the appellants. 

54. The charge was thus defective.  But as it is framed against each appellant as someone “being a registered dentist ... and being a director [of the company]”, the Council’s intention was evidently to allege unprofessional conduct mirroring the statutory offence created by section 12(2) which applies to director-dentists.  The Council’s ruling[46] expressly refers to the appellants as being in breach of the section 12 “statutory duty” and 12(3) is relied on in support.

G.  Errors in the Council’s decision

55. The Council appears to have drawn no distinction between the appellants as directors and the company itself, stating that they were the company’s “brain and mind” and were “directly responsible for its affairs”.  In so far as they were approaching the disciplinary offence as involving unprofessional conduct which reflects the section 12(2) offence, a distinction plainly had to be drawn: the section 12(2A) defence only avails directors and not the company.  Directors are not liable if they did not know of the company’s contravention of section 12 whereas the company has no such defence.  Directors therefore cannot simply be equated with the company for the purposes of a disciplinary charge based on section 12.

56. The Council attributed to the company knowledge that JT was practising dentistry “without a valid practising certificate”[47] because its staff had repeatedly chased JT for his certificate.  It was unnecessary to make such an attribution since the lack of knowledge defence was not in any event available to the company.  It may however be that, having equated the directors with the company, the Council wished to treat such knowledge as attributable also to the appellants.  If so, that approach was flawed in several respects.

57. First, the administrative staff’s knowledge cannot in law be attributed to the directors, even if it might be attributed to the company.  And it cannot somehow be attributed to the directors via an attribution of knowledge to the company. 

58. Secondly, the 1^st charge concerned employment of JT “when he was no longer a registered dentist after his name had been removed from the General Register”.  Practising when de-registered is a very different thing from practising dentistry “without a valid practising certificate”.  Section 15(3)(ba) only permits the Council to order the removal of a dentist’s name from the General Register if he or she has practiced dentistry in Hong Kong for a period exceeding six months without having obtained a valid practising certificate.  JT’s name was only removed some seven months after his practising certificate had expired at the beginning of 2008.  A registered dentist may thus not have a valid practising certificate while remaining on the General Register for a period of six months or more.  To infer that the staff knew that JT was practising without a valid practising certificate does not justify a finding that they knew he was no longer registered. 

59. Thirdly, and most importantly, it was an agreed fact (read out at the hearing) that neither the appellants nor the company knew that JT was unregistered.  It was therefore not open to the Council to find the 1^st charge proved on the basis that the appellants is to be treated as having knowledge of JT’s unregistered status.  Moreover, the 1^st charge as formulated was not based on any attribution of knowledge and it was not suggested at the hearing that the alleged knowledge of the staff should be ascribed to the appellants because they were “directly responsible for” the company’s affairs.  Factual questions concerning the management role played by the appellants were not explored and no evidence was adduced to justify a finding that they were “directly responsible for its affairs”. 

60. It may be that in order to overcome the difficulties posed by the agreed fact that the appellants had no knowledge, the Council also found that the appellants had failed to verify or had “turned a blind eye” to JT’s non-registration and found them guilty for “failing to fulfil their statutory duty to ensure that all persons employed to perform dental operations are registered dentists”.  This too is flawed.  “Turning a blind eye” is generally equated in law with knowledge so that this finding remains contrary to the agreed facts.  Secondly, the posited statutory duty on the appellants as director-dentists to ensure that all persons employed to perform dental operations were registered dentists cannot be found.  Section 12 is of course the prime candidate provision.  It penalises the company for carrying on business in contravention of that section but exempts directors who can show that the company’s contravention occurred without their knowledge.  Provisions which exclude directors from liability where they are unaware of the company’s default (an agreed fact in the present case) cannot be read as placing on them a duty under section 12 “to ensure that all persons employed to perform dental operations are registered dentists” regardless of the state of their knowledge.

61. Regarding the 2^nd charge (which the Council took to be based on DRO section 27), the Council – in my view correctly – considered it necessary to establish knowledge on the part of the dentist charged that the unregistered person was practising dentistry in the same premises.  On its face, section 27 penalises the common use of premises for practising dentistry even where the two persons concerned are unaware of each other and have no mutual interaction of any kind.  Such a penalty would serve no useful purpose and the legislative intention cannot have been to lay down such a strict, Draconian, liability.[48] Section 27 therefore requires to be construed employing the presumption of mens rea[49] and the Council was right to ask whether Dr Chu knew that JT was practising in the same premises when no longer registered.

62. The Council concluded that such knowledge was irresistibly to be inferred in the present case because (i) DRO section 14 requires dentists conspicuously to exhibit their certificates of registration at the premises where they practise; and (ii) Dr Chu was a director of the company.  That inference was, however, contrary to the agreed fact that the appellants, including Dr Chu, did not know of JT’s unregistered status.

63. In my view, the decision of the Council was fatally flawed and the appellants should not have been convicted on either charge.

H.  Errors in the Court of Appeal’s judgment

H.1  Endorsement of the Council’s decision based on section 12

64. Two main strands are detectable in the Court of Appeal’s judgment.  First, the Court endorsed the Council’s appellants’ conviction of unprofessional conduct based on breach of their postulated statutory duty under section 12.  It supported the finding that the appellants, as directors, had failed to fulfil their statutory “duty to ensure that all persons employed to perform dental operations are registered dentists” under section 12.[50]  When construing section 12(3), it held that by filing the annual returns, the company had warranted that JT was a registered dentist.”[51]

65. The Court of Appeal then proceeded from implying this warranty by the company to holding that each of the appellants as directors were individually in breach of both a statutory and a professional duty “to ensure that only registered dentists are employed by the company, ... to verify the registered status of employed dentists in compiling the annual return and ... to confirm the accuracy of the annual return.”[52]

66. McWalters JA found the Council’s inference of knowledge “problematic”,[53] but sought to explain it as a finding “not based on a factual finding that each of the appellants knew the unregistered status” of JT but merely reflecting the Council’s finding of a failure to verify as required by section 12(3).[54]  His Lordship held that it was “clear that the Council’s finding was a finding based on negligence”, going on to add that in the present case, this provided a good basis for the conviction since the Council was entitled to view the appellants’ negligence as “more than ordinary negligence” and negligence rising “to the level of an ‘elemental and grievous failure’.”[55]

67. For the reasons given in Section G above, the reasoning of the Council is seriously flawed and the Court of Appeal’s endorsement of that reasoning cannot be supported.  I would add that I can see no basis for implying the asserted warranty from the words of section 12(3).  As further discussed in Section H.2b below, that subsection merely requires a dental company to make annual returns setting out the names and addresses of the directors or managers of the company and those who perform dental operations in connection with the business of the company.  Failure to do so results in the company being deemed to be carrying on the business of dentistry in contravention of section 12, which would then expose the directors to liability under section 12(2) but always subject to the section 12(2A) defence of lack of knowledge – which is available on the facts agreed. The assertion that it was “clear that the Council’s finding was a finding based on negligence” is surprising since there appears to be no such suggestion in the Council’s decision.

H.2  A disciplinary offence to support the registration regime

68. The second strand of the Court of Appeal’s decision is based on breach of a professional duty fashioned as a necessary adjunct to the statutory registration regime to prevent dilution of the protection that regime affords to the public.  McWalters JA stated that:

“It has long been recognised that bodies, such as the Dental Council, set up to regulate different professions are best placed to decide what standards are required of the professionals subject to their authority and what conduct should constitute professional misconduct.”[56]

69. His Lordship held that the Court of Appeal could see no legal reason why the Dental Council cannot “quite properly regard as unprofessional conduct acts or omissions by a dentist which significantly undermine the effectiveness of the registration regime”[57].  Emphasising that the Council is not confined by any mens rea or other requirements of statutory offences in the DRO,[58] McWalters JA added:

“If, within the context of the DRO and the registration regime it creates, the Council can reasonably adjudge that imposition on dentists of certain responsibilities will assist in ensuring the effectiveness of the registration regime and contribute to protecting the public from having dental services provided to them by unregistered dentists, then it is entitled to determine that a failure to comply with those responsibilities may, depending on the circumstances of the individual case, constitute unprofessional conduct.”[59]

70. On this strand of its reasoning, it appears that the Court of Appeal considered professional misconduct sufficiently established if gross negligence is proved.[60]

71. So far as penalising individual directors of a dental company was concerned, McWalters JA held that:

“Regarding these directors as ‘directly responsible for the affairs of the company’ is quite uncontroversial and consistent with both the law and common sense.”[61]

72. As we have seen, the Court of Appeal concluded that a professional duty could be deduced as follows:

“We can see nothing wrong in the Council concluding that directors of dental companies have a professional duty to ensure that only registered dentists are employed by the company, have a duty to verify the registered status of employed dentists in compiling the annual return and have a duty to confirm the accuracy of the annual return.”[62]

73. Moreover, the Court of Appeal evidently considered it a facet of this duty to ensure or verify, that each director was required to make individual efforts to ensure that an adequate system existed to verify the registered status of dentists in the position of JT.

74. With respect, in my view, this strand of the Court of Appeal’s reasoning cannot be supported for three main reasons.

H.2a “Unprofessional conduct” and section 18(2)

75. In the first place, it is not correct to hold that the Council is free to create a head of unprofessional conduct simply because the Council “can reasonably adjudge that imposition on dentists of certain responsibilities will assist in ensuring the effectiveness of the registration regime”. 

76. What constitutes “unprofessional conduct” is not at large.  It is not dependent simply on the Council’s view as to what might reasonably be required to support a desirable statutory objective.  The Council’s disciplinary powers are conferred by DRO section 18(1) which provides that if, after due inquiry the Council is satisfied (inter alia) that a registered dentist has been guilty of unprofessional conduct, it may impose specified penalties on him ranging from de-registration down to a reprimand.  Crucially, section 18(2) defines “unprofessional conduct” for these purposes 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.” 

77. This is not to suggest that unprofessional conduct is confined to matters prohibited by specific DRO offences on proof of the elements necessary to sustain criminal liability.  On the contrary, the Council is plainly entitled to identify classes of acts or omissions as constituting unprofessional conduct and to give guidance to that effect in the disciplinary Code as well as to adjudicate charges relating to such conduct in individual cases, provided always that the relevant acts or omissions would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency.[63] While, as noted above,[64] the Court is likely to be reluctant to interfere with the Council’s determination of what constitutes such misconduct where the decision involves clinical expertise or a professional ethical judgment and less reluctant to do so where it involves no such specialist expertise, the question whether the acts or omissions relied on are properly classified as unprofessional conduct is ultimately a question of whether section 18(2) has been properly applied – a matter to be decided by the Court.

78. The first difficulty with the Court of Appeal’s second strand of reasoning is that it seeks to justify the convictions on the basis of a professional duty founded solely on a perceived need to reinforce the statutory registration regime without reference to the section 18(2) definition.  The Court of Appeal held that such professional misconduct was established if the appellants’ “failure to ensure” was grossly negligent and that “[applying] this test to the facts ... contained in the Statement of Agreed Facts, ... it was open to the Council to find unprofessional conduct merely on the basis of permitting Mr Tung to practise dentistry through a failure by the appellants to properly discharge their statutory duties”.[65] That was evidently a reference to a failure to verify JT’s registered status when filing annual returns “that continued over 28 months and encompassed two annual returns”.[66]  Leaving aside the difficulty of construing section 12 as imposing such a duty discussed above, the key question – whether and if so, how, their alleged failure in relation to the company’s duty to make such annual returns can be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency – was not addressed. 

H.2b The statutory registration regime and the appellants’ conduct

79. On a proper appreciation of the nature of the statutory registration regime and of any default that may be attributable to the appellants, I am unable to see how their conduct could reasonably be said to fall within the section 18(2) definition.  This is the second main reason for my inability to accept this strand of the Court of Appeal’s reasoning.

80. The Court of Appeal evidently considered the conduct of the appellants such as to “significantly undermine the effectiveness of the registration regime”.[67] McWalters JA went so far as to hold that their failure to verify JT’s registered status “totally undermined the registration regime and was at the most serious level of non-wilful conduct”.[68]  I am unable to accept that this represents a realistic or fair assessment.

81. It is no doubt correct to say that the registration regime is important in that it lays down the threshold conditions for being permitted to practise dentistry and provides the basic framework for the Council’s regulation of the profession.  However, the DRO’s provisions show that the scheme is intended to involve a system for monitoring the registration of dentists operated by the Council and the Registrar.  The primary obligation to secure and maintain one’s registered status is placed on the individual dentist.

82. Thus, it is the Council that sets the licensing exams which (alongside university degrees) qualify a dentist for registration.[69]  It is the Registrar who keeps and maintains the General and Specialist Registers and it is to the Registrar that a dentist applies for registration.[70]  It is the Council that issues the certificate of registration and (through its Secretary) the annual practising certificate.[71] And it is the Council which has power to order the name of a registered dentist to be removed from the Register.[72] 

83. The fact that the Council issues both the registration and practising certificates and orders de-registration means that it knows at any moment who are the persons holding such certificates and also who has been de-registered or failed to renew their practising certificates.  As the Court of Appeal noted, the Council publishes the names of dentists in the General Register on its website.[73]

84. By requiring a dental company to file an annual return stating the names and addresses of all persons who are directors or managers of the company, or who perform dental operations in connection with the business of the company, section 12(3) is designed to give the Council all the information it needs to enforce the company’s duty not to carry on business in contravention of section 12.  Once a company files its annual return, the Council is able to tell from its own records whether any of the persons listed as dentists have not been issued with a registration or practising certificate or has had his or her name removed from the General Register.  There is no need to imply a warranty that the company – much less its directors – has independently verified the registered status of all its dentists.  The Council, doing its job, would in any event naturally be expected to check the annual return against its own authoritative records.

85. As DRO section 3 makes clear, the system places the primary duty to maintain one’s registered status on the individual dentist. It makes it a criminal offence for any person to practise dentistry, not being a registered dentist, the penalty on summary conviction being a fine of up to $100,000 and imprisonment for three years; and upon conviction on indictment being imprisonment for 5 years or, in cases where injury results, imprisonment for 7 years.

86. In contrast, the maximum penalty prescribed by section 12(2) where a dental company carries on business in contravention of section 12 is a fine of $2,000.  This would apply where the company fails to file a proper section 12(3) annual return or where it carries on business without every person practising dentistry as part of that business being a registered dentist.  The regime obviously casts dental companies in a merely incidental role, limited to providing the information required in the annual return.  By giving directors a defence if they can show that the company’s default occurred without their knowledge, the regime places an even smaller responsibility on them.

87. Significantly, under DRO section 18(1)(a), one of the conditions for the Council to exercise its disciplinary powers is a registered dentist’s conviction “of any offence punishable with imprisonment”. It follows that even if the appellants had been convicted of an offence under section 12(2), such conviction would not have been sufficient to ground disciplinary proceedings since the offence is not punishable with imprisonment. 

88. There is therefore no basis in the present case for thinking that the appellants “undermined the effectiveness of the registration regime” significantly or at all.  The system might be undermined if something had been done to mislead the Council or prevent it from knowing the true registered status of a person practising dentistry.  The appellants did nothing of the sort.  In filing the annual returns, the company duly provided the information required.  The Council was well aware from its own records that JT had not renewed his practising certificate and, seven months later, it took his name off the General Register.  They knew from the annual returns that he had been practising dentistry with the company during that period and brought disciplinary proceedings against the appellants.  I am therefore quite unable to see how the appellants’ acts or omission could reasonably be regarded as disgraceful or dishonourable by registered dentists of good repute and competency.  There was no justification here for creating a disciplinary offence going beyond the existing statutory sanctions with the purported aim of buttressing the system of registration which has no discernible need for such buttressing.

89. Concern was expressed by the Court of Appeal as to how undermining the registration regime would dilute protection of the public from unregistered dentists.  Certainly, in a case involving an unqualified, unlicensed backstreet practitioner, the registration requirement and the severe penalties under DRO section 3 would play an important role to protect the public against the unregistered practitioner.  But no such concerns apply in cases like the present.

90. The third reason for my inability to accept the second strand of the Court of Appeal’s reasoning relates to procedural unfairness.  The disciplinary offence elaborated by the Council and the Court of Appeal is far removed from the charges faced by the appellants and their convictions are based on factual and legal bases which were not part of the Council’s case and were contrary to the agreed facts, namely: that they were directly responsible for the company’s affairs and could be treated as knowing of JT’s unregistered status; that they were guilty of gross negligence in failing to ensure or to verify the registered status of JT; that they had failed to make individual efforts to ensure that an adequate administrative system existed in the company to verify his registered status; and that by their conduct, they had undermined the statutory registration regime.  As Mr Wong SC rightly concedes, the appellants were not given the opportunity to address these issues.

I.  The Questions on which leave to appeal was granted[74]

91. The Questions of law have substantially been answered in the course of the foregoing discussion. 

I.1  Questions 1 and 2

92. Questions 1 and 2 can be taken together.  The Questions are premised on the unprofessional conduct being based on the company’s breach of section 12.  On that footing the answer to Question 1 is plainly “No”.  Since Question 1 accepts that the appellants did not know of JT’s removal from the General Register, the appellants are exonerated under section 12(2A).  On this footing, the answer to Question 2 would also be “No”.  The absence of knowledge would be decisive and unprofessional conduct mirroring statutory liability under section 12 could not be established on the basis of either ordinary or gross negligence.

93. However, I have examined the Court of Appeal’s second strand of reasoning which seeks to justify the convictions on the basis of a free-standing head of unprofessional conduct that is not a mere reflection of the statutory offence.  It is fashioned as described in Section H.2 above, and conceives of misconduct consisting of a grossly negligent breach of a duty to ensure JT’s registered status penalised in order to bolster the registration regime.  For the reasons set out above, I have concluded that there is no justification for convicting the appellants of such unprofessional conduct and so would equally give negative answers to Questions 1 and 2 on this alternative basis.

I.2  Question 3

94. For the reasons given in Sections H.1 and H.2b above, the answer to Question 3 is “No”.  A professional duty on individual director-dentists to verify the registered status of employed dentists and to confirm the accuracy of the section 12(3) annual return cannot be imposed on the basis that filing such an annual return amounts to warranting such registered status.

J.  Remitter and disposal of the appeal

J.1  Jurisdiction to remit

95. The Council has invited the Court to “remit the matter back to the Council for fresh consideration (and with further amendment to the Charges (with leave of the Council) if thought fit)”.  The first question is therefore whether the Court has jurisdiction to remit.

96. Section 17 of the Court’s statute[75] relevantly provides:

(1)  The Court may confirm, reverse or vary the decision of the court from which the appeal lies or may remit the matter with its opinion thereon to that court, or may make such other order in the matter, including any order as to costs, as it thinks fit.

(2)  For the purpose of disposing of an appeal, the Court may exercise any powers of the court from which the appeal lies (including the power to order a retrial), or may remit the case to that court.   

97. Mr Mok SC submits that section 17(1) has no application since the Council is not suggesting a remitter back to the Court of Appeal but to the Council which is obviously not the court from which the appeal lay.

98. He also argues that Section 17(2) does not assist because the Court of Appeal itself does not have jurisdiction to order a remitter since DRO section 23 only authorises that Court to “affirm, reverse or vary” the order or decision of the Council appealed from, making no mention of a power to remit.  He points out that in contrast, the Medical Registration Ordinance (“MRO”)[76] expressly empowers the Court of Appeal to “remit the case to the [Medical] Council for an, or another, inquiry”.

99. In support of his argument, Counsel traces the legislative history of DRO section 23 which shows that the “affirm, reverse or vary” formula has remained unchanged since 1959, leading the Court of Appeal in Dr Roger Gordon Bishop v The Dental Council of Hong Kong,[77] and Chow Wai Fu v Medical Council of Hong Kong,[78] to hold that there was no jurisdiction to order a re-hearing and to Fuad JA (who delivered both judgments) suggesting that the DRO be amended to add such a power.

100. Mr Mok SC furthermore points out that although the MRO was amended in 1996[79] to insert the express power to remit, when the DRO, including section 23, was amended in 2006,[80] the legislature did not do likewise.

101. Although those submissions were attractively put, I do not accept that jurisdiction to remit is lacking.

102. It is true that DRO section 23, unlike certain other Ordinances, does not expressly confer a power to remit.  However, I agree with Mr Wong SC’s submission that an express power to remit is unnecessary in the light of the provisions of Order 59 r 10 of the Rules of the High Court[81] which, by Order 59 r 1,[82] are made applicable to every appeal to the Court of Appeal (subject to immaterial exceptions).  Order 59 r 10 relevantly provides as follows:

“(2) The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.

(3) The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require.

(4) The powers of the Court of Appeal under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondent's notice has been given in respect of any particular part of the decision of the court below or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court of Appeal may make any order, on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties.”

103. These provisions are intended to supplement enactments which create a right of appeal to the Court of Appeal, making it unnecessary for them to spell out these general powers on each occasion.  Order 59 r 10(4) is important.  First, it indicates that the powers conferred by the earlier sub-rules are intended to apply in tandem with the Court of Appeal’s powers “for allowing the appeal or ... affirming or varying” the decision appealed from.  And secondly, it empowers the Court of Appeal to “make any order, on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties.”

104. Those latter words are apt to cover a situation where the Court of Appeal considers a remitter appropriate consequential upon its disposal of the appeal.  Thus, it may for instance decide to reverse the Council because of a procedural flaw, but think that, on the merits, there may have been serious professional misconduct which ought to be investigated.  The Court may thus order a remitter so that the merits of the real question in controversy – the charge of unprofessional conduct – can properly be determined.

105. Even where, as applies in this Court, no similar rule has been expressly enacted, it is well-established that there is implied power to make orders reasonably required for the effective exercise of the statutory jurisdiction conferred upon it,[83] mirroring the power provided for in Order 59 r 10(4).

106. In Dr Bishop’s case,[84] the absence of a power to remit was conceded by counsel without reference to the general powers conferred by Order 59 r 10.  Similarly, in Chow Wai Fu’s case,[85] those powers were not referred to and the point was not discussed in any detail.

107. Little can be made of the fact that section 23 was not amended to insert an express power to remit when the DRO was amended in 2006.  As the Hansard and legislative briefing materials show,[86] the purpose of the amendment was to create a Specialist Register putting practitioners of specialist dentistry on a statutory footing and, in relation to section 23, to lay down a time limit for appealing to the Court of Appeal.  The scope of the powers of the Court of Appeal was not touched upon.  In the light of Order 59 r 10, an amendment expressly to provide for a power to remit was in any event unnecessary.

108. I therefore conclude that this Court has jurisdiction, in exercising a power available to the Court of Appeal, to remit a disciplinary inquiry to the Council for re-hearing.

J.2  Whether there should be a remitter as a matter of discretion

109. In my view, there are powerful discretionary reasons for refusing to order a remitter in the present case.

110. The Council’s purpose in seeking a remitter is to bring disciplinary proceedings on a modified basis, alleging a grossly negligent failure on the appellants’ part to ensure or verify JT’s registered status.  That purpose is premised on affirmative answers to Questions 1 to 3.  Those questions have, however, been answered in the negative and I have concluded that the proposed alternative basis for alleging unprofessional conduct rests on an erroneous understanding of the registration regime and a flawed assessment of the culpability of the appellants.  No viable basis has been demonstrated for describing the conduct of the appellants – who would be exonerated for lack of knowledge of the company’s default if charged under section 12 – as involving acts or omissions which would be reasonably regarded as disgraceful or dishonourable by their peers.  The Council’s intended purpose would therefore not be achieved by a remitter.

111. The appellants have had these proceedings hanging over their heads since January 2010.  They have had to cope with findings of professional misconduct and severe sentences, upheld by the Court of Appeal, which I have concluded were seriously deficient from the outset.  If a remitter were ordered, as Mr Wong SC acknowledged, the Council would not simply be asked to retry the existing disciplinary charges since they are plainly defective. The appellants would have to face quite different charges tailored, if possible, to this Court’s judgment.  As a matter of discretion, I can see no justification for permitting the Council such a second bite of the cherry. 

J.3  Disposal of the appeal

112. For the foregoing reasons, I would allow the appeal and refuse an order remitting the matter back to the Council.  In the light of the view I have taken that the proceedings were flawed from the outset, I would make an order nisi that the Council pay the appellants their costs here and below, including the costs of the Inquiry.  I would direct that any submissions which the parties may wish to make as to costs should be lodged in writing within 21 days from the date of the judgment and that, in default of such submissions, the order as to costs should stand as an order absolute without further direction.

Mr Justice Tang PJ:

113. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Fok PJ:

114. I agree with the judgment of Mr Justice Ribeiro PJ.

Lord Phillips of Worth Matravers:

115. I agree with the judgment of Mr Justice Ribeiro PJ.

Chief Justice Ma:

116. The Court unanimously allows the appeal and makes the orders referred to in the final paragraph of Mr Justice Ribeiro PJ’s judgment.