Dr. Yan Wing Yiu v. The Dental Council of Hong Kong

CACV000264/1995

IN THE COURT OF APPEAL

1995, No. 264

(Civil)

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Coram: Hon. Mortimer, V.P., Godfrey, J.A. & Findlay, J. in court

Date of hearing: 29 October 1997

Date of judgment: 29 October 1997

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. We have before us today an appeal by Dr. Yan Wing Yiu ("the dentist"), under the relevant provisions in that behalf contained in the Dentists Registration Ordinance, Cap. 156 ("the Ordinance"), against an order for his removal from the register for 6 months made by the Dental Council of Hong Kong on 5 December 1995. That order was made following an inquiry held by the Council, at the conclusion of which the Council held that it had been proved to its satisfaction that the dentist had been guilty of misconduct in a professional respect in that, he being a registered dentist, did, on 12 March 1994, canvass for the purpose of obtaining patients by associating with or being employed by the "Maggie Beauty Centre" at Room 1219, 12^th Floor, Argyle Centre, Phase 1, 688 Nathan Road, Kowloon which advertises clinical or diagnostic services to the general public, in that the said Beauty Centre arranged for a patient, Miss Lai Sueg Ching, Carol, to see him for treatment.

The background to the order of 5 December 1995

2. The inquiry commenced on 15 December 1994, when the dentist was represented by counsel, and the Council's case against the dentist was presented. The inquiry was not then completed. It was repeatedly adjourned.

3. On 9 August 1995, the Secretary to the Council wrote to the dentist in terms which are self-explanatory and which I shall read :

"Further to my letter dated 29 June 1995, I am now directed by the Chairman of the Dental Council to write to you.

The Chairman has noted with serious concern about the prolonged deferment of the inquiry because ever since the adjournment of the part-heard inquiry on 15 December 1994, the Council did list the resumed hearings on 17 January, 21 February and 15 June 1995 respectively, which were then postponed on each occasion upon your request on various grounds.

It is also noted that you have not so far responded to the earlier direction of the Chairman of the Dental Council on 29 June 1995 that you should substantiate your claim of prolonged health problem by agreeing to your consulting doctor, Dr. LEE Chiu-tong, Frederick, to have your medical records, x-rays films and medical reports, as well as Dr. LEE's professional opinion on your health conditions, etc. released to the Council's appointed medical doctor. In this connection, you should be aware of the importance of the independent assessment, particularly because of the fact that Dr. LEE happens to be one of the three other medical practitioners practising in association with you at the same premises located at Unit 6-A, Cameron Plaza, 23-25A, Cameron Road, Tsim Sha Tsui, Kowloon.

Having regard to the situation, the Chairman has since decided that the resumed hearing of your case should be set down on 13 October 1995 (Friday) commencing at 9:30 a.m. at the Conference Room, Department of Health HQ, 17/F, Wu Chung House, 213 Queen's Road East, Wanchai, Hong Kong.

This letter serves to give you formal notice of the new date and time of the inquiry. You are also reminded that you may appear in person or by counsel or solicitor at the inquiry.

Should you have arranged for your legal representation already, please would you let me know immediately in order that counsel for the prosecution would be able to liaise with your defence counsel/solicitor on matters prior to the conduct of the inquiry.

Please also note that the Dental Council has power under the provisions of the Dentists (Registration and Disciplinary Procedure) Regulation, Cap. 156, Laws of Hong Kong, to proceed with the inquiry in your absence in the circumstances that neither you in person nor your representing counsel/ solicitor is present at the opening of the resumed hearing on 13 October 1995."

4. On 13 October 1995, the inquiry was accordingly resumed. A solicitor appointed by the dentist appeared at the inquiry, and the matter proceeded, but yet again it was adjourned, to a date to be fixed.

5. The inquiry was resumed, finally, on 4 December 1995. On that day, the dentist appeared unrepresented. He complained about the course the proceedings had taken and asked to have the proceedings adjourned so that he could apply for a judicial review.

6. This request was rejected. At the conclusion of the inquiry, as I have said, the Council found the charge against the defendant against the dentist proved. It heard him in mitigation and eventually made the order of 5 December 1995 to which I have already referred.

The subsequent events

7. On 18 December 1995, the dentist gave notice of appeal against the Council's order. Among other things, he complained about the failure to allow him an adjournment to seek a judicial review, a matter I have already mentioned, and about other failures in the procedure adopted by the Council. On 20 December 1995, he gave notice of setting down the appeal. Thereafter, however, he failed to prosecute it. The case went to sleep. Despite considerable correspondence between the Council and the dentist, nothing happened. Finally the Council's patience snapped and it instituted an application for dismissal of the dentist's appeal for want of prosecution.

8. The first hearing of that application took place on 29 March 1996, when it was adjourned generally. Later, it was re-fixed for 27 June 1996, but again it was adjourned. There was still no further movement on the Council's proposal that independent medical evidence be adduced as to the state of the dentist's health and his ability to prosecute his appeal.

9. On 3 December 1996, the matter was due to come before the court again, but that date was vacated so that further medical reports on the dentist could be obtained. Again, nothing happened.

10. On 26 June 1997, the Council applied for directions for a date to be fixed for the hearing of the appeal, and it was ordered that a date be fixed in October 1997, for a hearing of half a day. That date was in due course fixed for today.

11. However, it soon became clearer than ever that the dentist had no serious intention of prosecuting his own appeal. Before the fixed hearing date, he took two further steps.

12. His first step was to apply to the Chief Executive, by way of petition, to adjourn the hearing fixed for today. The Chief Executive referred that petition to the appropriate authorities for consideration and so informed the dentist. As a result of that, the dentist wrote to the court, on 21 October 1997, stating as follows :

"I would presume that the Appeal date scheduled on 29^th October 1997 should be adjourned accordingly pending for instruction from the Chief Executive meanwhile so as not to waste the time of the Court."

13. The dentist's letter of 21 October 1997 was placed before a Justice of Appeal on whose instructions the Deputy Clerk of Court wrote to the dentist, on 22 October 1997, in the following terms :

"The 'Appeal date schedule on 29 October 1997' to which you refer will not be adjourned 'pending for instruction from the Chief Executive .....'

The Chief Executive has nothing to do with the listing of dates in the Court of Appeal.

Application for the vacation of dates listed for hearings in the Court of Appeal must be made to the Court."

14. That avenue of further procrastination having been stopped up in this way, the dentist took his second step. On 28 October 1997, the day before the hearing, he procured his own admission to hospital, complaining of an asthmatic attack. He did not appear before us today.

15. We now have to decide what to do about this appeal.

The Council's submission

16. Mr. Fitzpatrick, for the Council, has submitted to this court that it has power to strike out the dentist's appeal and that it should do so. He submits there has been a plain abuse of the process of the court by the dentist, who has shown he has no intention of prosecuting his appeal.

Should we accept this submission?

17. To strike out an appeal in the absence of an appellant, who claims to be unable to prosecute his appeal because he is in hospital and unable to attend the hearing, is a strong thing to do. Absent clear evidence satisfying the court that the appellant has abused its process, this court would not do such a thing.

18. But, for my part, I am satisfied here that the appellant has demonstrated by his conduct that he does not seriously intend to prosecute his appeal, but only to delay it. That, as it seems to me, is as plain an abuse of the process of this court as one could find.

19. Once an order such as that under appeal here is made against a dentist, it must of course be carried out. However, by s.22(2) of the Ordinance, it is provided as follows :

"(2) The Registrar shall not remove the name of a registered dentist from the register before the expiry of 1 month after the date of service of an order of the Council made under section 18(1) on the person concerned and in the case of an appeal shall await the decision of the Court of Appeal." (emphasis added)

20. Accordingly, in this case, the Registrar has not removed the name of the dentist from the register because he is, quite properly, awaiting the decision of this court upon the dentist's appeal. If the current state of affairs is not to go on for ever, it is essential that this court should now step in and put an end to the matter.

Conclusion

21. I, for my part, would accede to the application made by Mr. Fitzpatrick on behalf of the Council and strike out this appeal, which I am quite satisfied is not being prosecuted bona fide.

22. There is nothing further I wish to add.

Findlay, J. :

23. I agree.

Mortimer, V.P. :

24. I also agree.

25. Mr Fitzpatrick for the Dental Council, has put before this Court material which clearly demonstrates that in spite of being given every latitude the appellant is determined not to provide any independent medical evidence of his condition, or submits to independent medical examination, to demonstrate that he is unable to attend to prosecute his appeal.

26. The best that could be done - it was a long time ago now - was when Dr Yan put before the Council some medical notes from the doctor with whom he used to practise. Those were examined by an independent consultant who concluded that:

"... no concrete evidence has been presented by Dr Yan to support that he indeed suffers from a severe asthmatic condition, and no acceptance risk has been found to bar him from attending the court proceedings."

That was the conclusion that the consultant reached on the information in front of him.

27. The appellant has been so persistent in his lack of cooperation to provide independent medical evidence and to bring his own appeal before the Court, that the only conclusion that I can reach is that he does not wish to proceed with the appeal. Indeed he wishes to avoid the hearing, and thereby avoid any conclusion of the appeal and continue to benefit from the suspension of the order of the Dental Council of Hong Kong that he be removed from the register for six months. He is not acting bona fide. He is abusing the process of the Court and we have no alternative but to bring these proceedings to an end. I agree that the appeal should be struck out and that is the order of the Court.

28. We also order that the Dental Council shall have the costs of the appeal.

Representation:

Appellant - absent

Mr. Fitzpatrick instructed by Department of Justice for the Respondent