Sin Chung Yin Ronald and Others v. The Dental Council of Hong Kong

FAMV No. 2 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2015 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 149 OF 2013)

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BETWEEN:

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DETERMINATION

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Mr Justice Ribeiro PJ :

1.We are satisfied that leave to appeal should be granted in respect of the following questions raising points of law of the requisite public importance, namely:

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:-

(a) 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?

(b) 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’?

(c) 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?

2.We also grant leave to appeal on the basis that reasonably arguable questions relating to essential procedural fairness arise which ought to be submitted to the Court for decision in relation to the findings of the Council, upheld by the Court of Appeal, bearing on the applicants’ knowledge or negligence, in the light of the Charge’s formulation and the manner in which the Inquiry was conducted.

3.The appeal will be heard on 14 October 2016.

Mr Johnny Mok SC and Ms Catrina Lam, instructed by Ching & Co., for the Applicants

Mr Anthony Ismail, instructed by the Department of Justice, for the Respondent