Dr. Wong Ying Kit Steven v. The Dental Council of Hong Kong

CACV 3748/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3748 OF 2001

(ON APPEAL FROM THE ORDERS
OF THE DENTAL COUNCIL OF HONG KONG
MADE ON 18 SEPTEMBER 2001 AND DATED 24 SEPTEMBER 2001)

_________________________

_________________________

Coram: Hon Rogers VP, Le Pichon JA and Chu J in Court

Date of Hearing: 11 March 2004

Date of Judgment: 11 March 2004

Date of Handing Down Reasons for Judgment: 24 March 2004

_________________________

REASONS FOR JUDGMENT

_________________________

Hon Rogers VP:

1.I agree with the reasons for judgment of Le Pichon JA.

Hon Le Pichon JA:

2.This was an appeal from the order dated 18 October 2001 made by the Dental Council ("the Council") of Hong Kong that the appellant, being a registered dentist, had exhibited signboards above the doorway of his dental surgery at Shaukeiwan which exceeded the permitted limit of such signboards in that precise location as approved by the Council and that in relation to the facts alleged, the appellant had been guilty of unprofessional conduct. The Council further ordered that the appellant be verbally admonished and that such order should not be published in the Government gazette. At the conclusion of the hearing, the appeal was dismissed with written reasons to be handed down later which we now do.

Background

3.The appellant graduated from the University of Hong Kong in 1991 with the degree of Bachelor of Dental Surgery. In March 1999, he responded to an advertisement for a job in a dental clinic operated by the Yan Chai Group of Hospitals ("Yan Chai"). After an interview with a doctor Li Nim Wai, a director of Yan Chai, the appellant was offered a job in Yan Chai's dental clinic situated in Shaukeiwan. He signed the contract of employment on 22 April 1999 and was taken to see the clinic the same evening. He commenced the following day which coincided with the opening of that dental clinic.

4.The signs in question were ready in place when the appellant arrived for work on 23 April 1999. Each of the signs contained the logo of Yan Chai and Chinese characters which, when translated into English, read "Yan Chai Hospital Dental Clinic". The signs did not contain the name(s) of the dentist(s) working there.

5.Complaint letters were received from other dentists practising in Shaukeiwan and in Tokwawan shortly after the opening of the clinics in those areas. The letters were addressed to the Yan Chai Hospital Board for the attention of Mr Li and the first of these, signed by seven dentists, was dated 29 April 1999. It is to be noted that Dr Li was in charge of the overall supervision of dental clinics operated by Yan Chai at various locations in Hong Kong. As regards the Tokwawan clinic, the Council also took action and one of the employed dentists there faced charges similar to those of the appellant and the charges had been heard together. She was found guilty of professional misconduct in respect of which there is no appeal.

6.The appellant's evidence was that after receiving the complaints, he took the matter up with Dr Li when the latter inspected the Shaukeiwan clinic:

DR WONG:	I told Dr [Li] that when we went to work we discovered under the gate some letters of complaint about the over-size of the signboards. So I told Dr [Li] how I handled the case and Dr [Li] told me that Yan Chai is a statutory charitable organisation recognised by the Government. The size of the signboard was not governed by the rules in regard to the size of signboards laid down by the Dental Council. He also said that if there's any problem the Yan Chai Hospital would handle it.
DEFENCE COUNSEL:	Did you, in fact, look at the Warning Notice, the little red book, and see if Dr [Li] - what Dr [Li] said was true?
DR WONG:	Well I roughly read it. The size of, the signboard was not the same as stipulated in the red booklet, and I was told that the size stipulated in the red booklet would not apply to our signboard.
DEFENCE COUNSEL:	So were you satisfied with what Dr [Li] said to you - that the signs were not within the purview or the scope of the Warning Notice?
DR WONG:	Right. That's what Dr [Li] said.
(Tr. p.64 l.37 - p.65 l.26)

7.Another dentist, a Dr Chan, joined the Shaukeiwan clinic in June 1999. From the transcript, it would appear that the conversation with Dr Li took place in Dr Chan's presence.

DEFENCE COUNSEL:	Was Dr Chan worried about the signs?
DR WONG:	Both of us discussed the matter. We also knew that the Yan Chai Hospital board of directors as well as Dr [Li] also knew this and when Dr [Li] inspected the clinic we mentioned that to him.
DEFENCE COUNSEL:	Right. When you say 'we', you're saying you and Dr Chan?
DR WONG:	I recall both of us mentioned the matter to him.
(Tr. p.66 l.28 - p.67 l.3)

That being so, it is clear that the discussion with Dr Li could not have taken place until after Dr Chan came on board in June 1999.

Unprofessional conduct

8.There is a statutory definition for "unprofessional conduct". This is to be found in section 18(2) of the Ordinance:

"(2) For the purposes of subsection (1), 'unprofessional conduct' (不專業行為) means 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."

9.All registered dentists are issued with a document described as "Warning Notice" of the Dental Council of Hong Kong which deals with "Professional Discipline for the Guidance of Registered Dentists". The 'red booklet' mentioned by the appellant in the passage from the transcript cited above was a reference to the Warning Notice. For the purposes of this appeal, it is the 1995 Edition that is relevant.

10.The opening paragraph urged all registered dentists to become thoroughly acquainted with the contents of the Warning Notice since even inadvertent transgressions could attract disciplinary action. Part II set out the more common types of unprofessional conduct which might lead to disciplinary action. It stated that:

"The question whether any particular course of conduct amounts to unprofessional conduct and the gravity of such unprofessional conduct and of any conviction, are matters which fall to be determined by ... the Council after considering the evidence in each individual case."

A common type of unprofessional conduct set out in considerable detail related to advertising and was described in these terms:

"7. Advertising

A. The tradition that dental practitioners should refrain from self-advertisement has long been accepted by the dental profession. Advertising is incompatible with principles which should govern relations between members of the profession, and could be a source of danger to the public. 'Advertising' in this context will be regarded by the Council in its broadest possible sense to include any means by which a dental practitioner is publicized, either by himself, his servants, agents or others, in a manner which can reasonably be regarded as promoting his own professional advantage. Whether a dental practitioner actually benefits from publicity is no defence to a charge of advertising.

B. The unprofessional conduct of advertising may arise from the publication either directly or indirectly (in any form in Hong Kong or elsewhere) of matter commending or drawing attention to the professional skill, knowledge, services, or qualifications of a dental practitioner when the dental practitioner concerned has instigated, sanctioned or connived at or organized such publication or failed to take adequate steps to prevent publication.

C. Advertising may also be considered to occur if a dental practitioner permits or fails to take adequate steps to prevent the publication either directly or indirectly (in any form in Hong Kong or elsewhere) by other persons of matter which commends attention to his own professional attainments or services, or if a dental practitioner is associated professionally with or employed by persons or organizations which advertise clinical, diagnostic or other services connected with the practice of dentistry. In determining whether unprofessional conduct has occurred, it is relevant to take into account:-

o the extent and nature of, and possible reason for the publicity; and

o the question whether the arrangements appear to have been intended to serve to promote the dental practitioner's own professional advantage or financial benefit.

D. Advertising may arise from notice or announcements displayed, circulated, or made public by a dental practitioner in connection with his own practice, if such notices or announcements materially exceed the limits customary in the profession: examples of permitted notices and announcements are given in Appendices I to IX. Rules for the guidance of dental practitioners in relation to signs, visiting cards etc., ... are set out below:-

(1) Signs: The Council disapproves of the exhibition in connection with a practice of any sign which, by its nature, position, size or wording, exceeds what is reasonably necessary to indicate the location of, and entrance to the premises concerned."

General guidelines then spelt out in great detail what was or was not permissible.

This appeal

11.The appellant's case was that:

(a) there had been no breach of the Warning Notice;

(b) even if there had been a breach, that breach did not constitute "unprofessional conduct".

Had the Warning Notice been breached?

12.It is common ground that the two signs in question exceeded the dimensions prescribed in the general guidelines. Nevertheless, the appellant contended that there had been no breach because the signs were not "signboards" for the purposes of the Warning Notice:

"(a) SIGNBOARDS (GENERAL)

(i) Definition

The word signboard means any composite or individual notice containing the particulars mentioned at subparagraph (ii) below which is exhibited in connection with a dental practitioner's own practice."

It was said that the particulars permitted under subparagraph (ii) consisted of (1) the name of the dental practitioner, (2) the appropriate title of the dental practitioner, (3) qualifications and (4) indication of the location of the clinic but that the signs in question merely contained the words "Yan Chai Hospital Dental Clinic" and referred to none of those particulars. Moreover, it was submitted that the signboards were not the appellant's signboards but those of Yan Chai in that the clinic was Yan Chai's rather than the appellant's dental surgery. Nor had the signs been exhibited by him.

13.It is clear from the Warning Notice that the particulars that may appear on the signboards are not restricted to "the name of the dental practitioner" as was submitted. Item 1 of sub-paragraph (ii) setting out the permitted particulars reads:

"1. The name of the dental practitioner with the appropriate prefix Dr./Mr. (牙科醫生/牙醫) (OR the name by which the practice is known) in Chinese and English." (emphasis added)

As to the approach to be adopted when interpreting the provisions of the Warning Notice, I can only repeat what I had said in Dr Ronald Sin & Others v Dental Council of Hong Kong, unreported, CACV 1211/2001, 18 December 2002:

"17. It is to be noted that the warning notice has no statutory force: rather, it encapsulates what the Council, in its regulatory role in maintaining the profession's ethical standards, considers to be acceptable professional conduct. All registered dentists were put on notice that even an unintentional transgression might attract disciplinary proceedings. Suffice it to say that the nature of the warning notice must have a bearing on the approach that should be adopted when it comes to interpretating its provisions: it would be wrong to construe it as one would a piece of legislation."

Adopting that approach, it is clear that the reference to "a dental practitioner's own practice" means the place where a dental practitioner practises his profession. It is not to be read as applying only where the practitioner is the beneficial owner of the practice. There was no such requirement. In my view, the signs in question were "signboards" for the purposes of the Warning Notice.

14.The charges in respect of the signboards were framed as follows:

"That [the appellant], being a registered dentist ... exhibited a signboard ..."

It was contended that as the appellant had not been responsible for the erection of the signboards, the charge not been made out. I do not agree. In the context, "exhibit" is synonymous with "display". There was no requirement that the person must also have been responsible for erecting the signboards. Accordingly, I agree with the Council that the charges in relation to the signboards had been made out.

Unprofessional conduct

15.As regards the steps that had been taken by the appellant after he became aware of the complaints, as noted in paragraph 6 above, what he did was to take the matter up with Dr Li when the latter came to inspect the clinic and that this took place after Dr Chan joined the clinic in June 1999. As noted above, the first of the complaint letters was dated 29 April 1999. It would also appear that the appellant was content with Dr Li's response and took no further action.

16.In explaining the conclusion that the appellant was guilty of unprofessional conduct, the Council had this to say:

The Council found that, in respect of the signboards, the defendant dentists were cognisant of the blatant violation of the Code and it felt that they should have taken stronger action in relation to this matter.

...

The disregard of the provisions regarding signboards, we consider, is a serious matter. It can cause unfair advantage to one clinic at the expense of others. All dentists, whether under employment or otherwise, need to pay attention to and comply with the provisions in the relevant code issued by the Dental Council. Any negligence or neglect in this respect may lead to disciplinary action.

(Tr. p.101 l.7 - l.35)

Plainly, the Council considered that the appellant had simply not done enough and that was the crucial issue in terms of whether or not there had been unprofessional conduct.

17.Counsel for the appellant submitted that there was nothing which the appellant did, or failed to do which could reasonably be regarded as disgraceful or dishonourable by registered dentists of good repute and competency to render him liable: indeed, the Council had not specified what "stronger action" could have been taken which, it was submitted, meant that it was unable to do so.

18.I do not agree that it was incumbent on the Council to identify specific steps which the appellant ought to have taken in the absence of which, it was to be inferred that it was unable to do so. For one thing, the inference sought to be drawn was not legitimate. Various steps which the appellant could have taken spring readily to mind: the appellant could have written to Yan Chai about the complaints and requested that remedial action be taken forthwith. There is a difference between the making of a complaint orally or in writing. In the latter case, the recipient has to commit himself in writing either way in response to any request for remedial action. Such a request is likely to command more attention and elicit a considered reply. Then, in the absence of any satisfactory response, the appellant could have sought guidance from the Hong Kong Dental Association. Indeed the Warning Notice concludes with a note to that effect.

19.In the present case, the oral response of Dr Li when the matter was taken up with him by the appellant was not that he was proposing to take immediate steps to resolve the complaints; rather, there was a bald assertion to the effect that the Warning Notice did not apply to the signboards in question. The appellant let matters rest there. In the circumstances, the Council was perfectly entitled to come to the view that the appellant had simply not done enough.

20.Counsel for the appellant further submitted that for conduct to be "disgraceful or dishonourable" within section 18(2) of the Ordinance, there had to be an element of a moral turpitude. He relied on the decision of this court in Lam Kwok Pun v Dental Council of Hong Kong [2000] 4 HKC 181 at 183-4. As a preliminary matter, it is to be noted, first, that Lam Kwok Pun is not authority for the proposition that the phrase "disgraceful or dishonourable" is synonymous with "moral turpitude" for that would be rewriting the Ordinance. Second, contrary to what counsel for the appellant submitted, the statement in Lam Kwok Pun at 183F that "Felix continues to be directly applicable under section 18(2) ..." was not part of the judgment: rather, it was a quotation from the first ground of appeal. In any event, Felix v General Dental Council [1960] AC 704 was a case dealing with the Dentists Act 1957, section 29 where the wording "infamous or disgraceful conduct" was materially different from section 18(2) of the Ordinance. Third, Felix decided that the relevant conduct, in Felix's case being "infamous or disgraceful conduct" should be construed in conjunction with the words "in a professional respect". See Felix at 719.

21.The appeal in Lam Kwok Pun was grounded on a misdirection in law by the legal adviser to the Dental Council inasmuch as the test to be applied was said to be that in Doughty v General Dental Council [1988] AC 164. Mayo VP, with whom the other members of the court concurred, considered that section 20(1) of the Dentists Act 1984, which was the relevant statutory provision in Doughty, was in stark contrast to section 18(2) in that the English statute did not include words indicative of moral turpitude such as 'disgraceful' or 'dishonourable'. Whether Mayo VP was there stating that for conduct to be 'disgraceful' or 'dishonourable' it must involve acts of a moral turpitude is an open question. In any event, it is clear from Felix that those epithets should be construed in conjunction with the words "in a professional respect".

22.In this regard, the following passage from Ex parte Meehan [1965] NSWR 30 at p.35 line 52 to p.36 line 18 is instructive and I quote:

"Consideration of the cases and of the provisions of the legislation in force in this State suggest that the only generalization as to the meaning in that legislation of "infamous conduct in any professional respect", which can be attempted as capable of application to the varying situations which may arise, is that it refers to conduct which, being sufficiently related to the pursuit of the profession, is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence. Like the word 'infamous' such suggested alternatives as 'disgraceful' or 'dishonourable' or 'shameful' must be understood by reference to this context of professional disapprobation; and due regard must be had to the varying classes of conduct to which these epithets, used in this special professional sense, may come to be applied. Some forms of misconduct by medical practitioners may in themselves bear the badge of iniquity, in general as well as in professional estimation, and thus be 'infamous' in the ordinary, as well as in the special professional, sense. Other forms of misconduct may be 'infamous' in a professional sense and yet not be so regarded in the ordinary and general use of that expression. Then there are those whose infamy is a matter of degree and which, if they are reasonably to be regarded as infamous in a professional respect, must be accompanied by some element of moral turpitude. Deviations from accepted procedures in the actual practice of the art may sometimes become, and with reason, the subject of professional reprobation, although unattended by any taint of moral obliquity. But in this branch also of the subject, decision must be dependent upon the circumstances of the particular case and upon questions of degree. In short, whether moral turpitude is a necessary ingredient of 'infamous conduct in any professional respect' is a matter on which no general rule can be laid down, the answer being dependent upon the nature of the conduct which is in question in each instance."

23.In the present case, the Council found that the appellant knew that the signs were in breach of the Warning Notice. Insofar as moral turpitude is concerned, a dental practitioner who was "cognisant of the blatant violation of the Code" and who "should have done more" in respect of the breach was someone who was consciously at fault. In the professional context, the Council clearly considered the disregard of the provisions of the signboard a serious matter. As the Council explained, it could 'cause unfair advantage to one clinic at the expense of others'. It was thus conduct which attracted professional disapprobation and if moral turpitude were an essential ingredient, it was undoubtedly present.

Hon Chu J:

24.I agree.

Representation:

Mr K Y Thong, instructed by Messrs Johnson, Stokes & Master, for the Appellant

Mr Russell Coleman, instructed by the Department of Justice, for the Respondent