Doctor Roger Gordon Bishop v. The Dental Council of Hong Kong

CACV000052/1983

Professional discipline - appeal from determination of Dental Council - reg. 37(1) of the Dentists (Registration and Disciplinary Procedure) Regulations - even where the legal Adviser has tendered legal advice to the Council in the absence of the parties in contravention of that regulation, the appeal must fail since the defect could not fairly be said to have been of sufficient significance to the result to invalidate the Council's decision.

[Fox v. G. M.C. [1960] 1 W.L.R. 1017 applied].

Date of hearing: 5th and 6th July 1983.

Date judgment delivered: 12th July 1983.

BETWEEN

__________

Coram: Hon. Leonard, V.-P., Cons and Fuad, JJ.A.

Date: 12th July 1983

___________

JUDGMENT

___________

Fuad, J.A. :

1. This is an appeal under s.21(1) of the Dentists Registration Ordinance [Cap. 156] ("the Ordinance") from a decision of the Dental Council in the exercise of the disciplinary jurisdiction conferred upon it by s.18 of the Ordinance. The appellant is Dr. Roger Bishop who, on the 17th March 1983, was found guilty of unprofessional conduct and ordered to be reprimanded.

2. Dr. Bishop is a Licentiate in Dental Surgery of the Royal College of Surgeons of England, a Bachelor of Dental Surgery and a Licentiate of Dental Surgery, both of Leeds University. He obtained all these qualifications in 1965.

3. The history of the matter before us is this. In March 1979 Dr. Bishop entered into a five-year agreement with Cathay Pacific Airways to set up and run a dental clinic in one of their buildings at Kai Tak Airports.  The clinic opened in June 1979 and Dr. Bishop's main obligation was to treat members of the staff of Cathay Pacific and of other companies in the Swire Group, and their dependents. While this formed the major part of his work, he had some purely private patients.

4. Dr. Alison Allan (whose complaint led to Dr. Bishop's appearance before the Dental Council) qualified as a Bachelor of Dental Surgery at Edinburgh University in 1979. Dr. Bishop employed Dr. Allan as his associate in September 1979. Disagreements between them arose which resulted in Dr. Allan having her employment terminated with effect from the end of April 1982.  Dr. Bishop had given her notice on the 7th February.

5. While Dr. Allan was serving out her notice, on the 23rd February 1982, Cathay Pacific gave Dr. Bishop notice that his services would no longer be required from the 1st September.

6. As soon as Dr. Bishop received his notice, as might be expected, he began to consider his future. On the 12th March 1982 Solicitors acting for Dr. Bishop wrote to Cathay Pacific indicating that he intended "to sell the business of the dental clinic as a going concern" and drawing attention to a letter from Cathay Pacific dated the 15th December 1980 whereby they had confirmed that their understanding of a certain paragraph in Dr. Bishop's agreement was that if he wished to dispose of the assets of the clinic, they would have no objection provided their prior approval was obtained. The letter concluded by saying that Dr. Bishop's successor would, of course, need to know the terms upon which he would be engaged to run the clinic, and called for an indication of what those terms would be so that they could advise their client.

7. Dr. Bishop wrote himself to Cathay Pacific on the 15th March 1982. He referred to earlier correspondence about why his services had been terminated, complaining about the reasons he had been given. He asked for a reply further explaining the grounds of his dismissal and confirming that neither his competence nor the quality of his work had been in question. He made mention of his Solicitors' letter and ended by saying "Doubtless therefore you will let me know the general terms upon which my successor is to be allowed to run the clinic, because this will clearly be a critical consideration for anyone who is considering purchasing the business." Cathay Pacific replied to Dr. Bishop's own letter on the 23rd March. About the dismissal, they simply said that they had exercised their contractual right to end the engagement on six months' notice. The letter concluded " ... any agreement with any dentist who is given permission to practise in this Building will be on the basis that we will provide space and utilities only," Dr. Bishop's Solicitors received no reply to their letter of the 31st March seeking further information about the terms proposed to be offered to his successor "[to] assist our client to transfer his assets."

8. After receiving his notice, Dr. Bishop advertised his practice internationally in the major dental journals and received a number of offers from dentists. He passed on to Cathay Pacific details of the dentists whose offers he had found suitable. Dr. Bishop's Solicitors wrote to Cathay Pacific on the 22nd June about one specific approach made by a Dr. Yung, asking for a quick reply as to whether Dr. Yung's application was to be accepted. On the 20th July Dr. Bishop wrote to Cathay Pacific himself complaining that the delay in the appointment of his successor was having repercussions upon him. He pointed out that nearly five weeks had passed since Dr. Yung had agreed to purchase the saleable assets of the clinic. On the Same day (the letter may have crossed) Cathay Pacific wrote to Dr. Bishop informing him that they had given full consideration to the applications "with particular attention being paid to those recommended by your goodself, as well as to those on whose behalf representations had been made by our employees". The letter announced the decision that Dr. Allan would be offered the appointment of Company Dental Officer and gave the names of two other dentists who would be invited to act as Dental Advisers to Cathay Pacific.

9. On the 22nd July Dr. Bishop addressed the following letter to Dr. Allan:

10. On the 2nd August Dr. Bishop wrote to the Medical Protection Society in London seeking their advice on three specific aspects of the position he found himself in. He asked if the manner of his dismissal impugned his profession al reputation; whether his agreement With Cathay Pacific entitled him to sell the assets and goodwill of his practice as a going concern; and whether he had grounds for a formal complaint to the Hong Kong Dental Council against Dr. Allan if she accepted the Cathay Pacific post without buying the goodwill and residual assets. The Medical Protection Society's reply Came by telex on the 13th August and in effect suggested that he seek further advice from his solicitors. It is clear that Dr. Bishop did not wait for the Society's views before he took further steps.

11. Dr. Allan replied on the 6th August to Dr. Bishop's letter of the 22nd July. She said she would certainly be prepared to consider, if she were to be appointed Company Dental Officer, whether or not it would be appropriate for her to buy such assets of his practice he intended to sell. She asked for the relevant details, together with his accountants' report which she wanted her accountant to consider. She also asked to see the accounts of the practice dating back to its commencement, and to be told which assets were not for sale. She hoped he would appreciate that she could not enter into any commercial arrangement until an agreement could be reached.  Until then she did not consider herself under any obligation to buy his practice or any part of it.

12. Before, it seems, Dr. Allan's letter reached him, on the 8th August Dr. Bishop lodged the following formal complaint with the Dental Council.

13. It was on the 10th August 1982 that Dr. Bishop wrote the letter to Dr. Allan which eventually led to these proceedings. This is what he said -

14. Dr. Allan replied on the 18th August.  She said that in view of the contents of the penultimate paragraph of his letter, she could negotiate no further with him for the purchase of any assets of his practice. She took exception to the statement in the last sentence of that paragraph. She could see no connection between the value of assets he wished to sell and the complaint he had made against her to the Dental Council. She could not imagine what type of complaint it would have been and could only believe that it was unfounded. She hoped he had given serious consideration to this matter and that he would be prepared to apologise in writing to her in respect of any inappropriate allegation he had made. She enclosed a copy of a letter, dated the same day, she had written to the Dental Association. In that letter she referred to Dr. Bishop's letter of the 10th August and sent them a copy of it. She asked for details of Dr. Bishop's formal complaint so she might respond to it. She asked for advice on how she should handle the matter to protect her professional reputation, and how she should deal with the "offer" by Dr. Bishop which she felt amounted to intimidation. She sent copies of all the relevant letters suggesting they might be forwarded to the Medical Protection Society on her behalf. Dr. Allan wrote in similar terms to the Dental Council on the 25th August.

15. It was on the 15th September that she made the formal complaint to the Dental Council against Dr. Bishop which led to the present disciplinary proceedings being taken against him. She began her letter by explaining something of the background history. She said that she, in common with a number of local dentists, had applied for the post to be vacated by Dr. Bishop. She had been selected on the 31st August and she was to take up the appointment in October. She sent the Council copies of the correspondence that had passed between her and Dr. Bishop. Dr. Allan said that she wished to register a formal complaint against Dr. Bishop, arising out of the penultimate paragraph of his letter of the 10th August. As would be seen in that letter Dr. Bishop had advised that he had lodged a formal complaint against her with the Council. However, he had added that if she accepted his price for the assets of his practice (which he had previously indicated in his letter of 22nd July to be $350,000) it would be unlikely that he would pursue the matter further. In other words she felt Dr. Bishop was suggesting that he might withdraw his formal complaint if she paid his price. As she had indicated to Dr. Bishop, she could see no relationship between the value of his assets and the complaint he had lodged. She believed, therefore, that a reasonable interpretation of his letter was that he was seeking to prevent her from negotiating with him on the price of the assets he wished to sell, by impliedly threatening that if she did not accept his asking price without negotiation he might pursue a matter that could affect her professional status and her career. She went on to say that she had considered the matter most seriously before lodging her complaint and had decided that it was only proper to direct the Council's attention to Dr. Bishop's letter of the 10th August. She believed that the manner of his negotiation with her might perhaps be unprofessional conduct within the meaning of the Dentists Registration Ordinance. She asked the Council to consider the matter and take such action as it deemed appropriate. She added that she had been advised that Dr. Bishop might by his letter have committed other offences outside the Dentists Registration Ordinance. She had no wish to take the matter further than the Council, as to do so might create adverse publicity that would be bad for the profession, Dr. Bishop and herself. She would prefer to avoid such publicity but felt that it would be improper to take no action at all.

16. The procedure for which provision is made in Part III of the Dentists (Registration and Disciplinary Procedure) Regulations ("the Regulations") was then set in train. On the 14th December 1982 the Preliminary Investigation Committee deliberated on the matter and decided that an inquiry by the Council should be held. The Council served the requisite notice on Dr. Bishop on the 31st December fixing the hearing date as the 17th March 1983 and informing him of his rights. The charge be had to face was framed like this -

"That the manner in which you conducted negotiations with Dr. Allan in regard to the disposal of the assets of your practice gives rise to a question whether you have been guilty of misconduct in a professional respect in that, having made a formal complaint against Doctor Allan to the Dental Council, did improperly use the fact of such complaint as a means of negotiating the sale of the assets of your practice to Dr. Allan."

17. On the 17th March Dr. Bishop duly appeared before the Council. He was represented by a Solicitor. A Legal Officer, appointed under the proviso to reg. 27(a) of the Regulations presented the case. As required by reg. 35 the Council's Legal Adviser was present at the enquiry. It is convenient here to mention, since the point arises in this appeal, that reg. 37(l) stipulates "when the Legal Adviser advises the Council on any question of law as to evidence, procedure or any other matter in any irquiry ... he shall do so in the presence of every party to the proceedings or the person representing each party." The paragraph continues "if the advice is tendered after the Council has commenced to deliberate as to its findings, every such party or person as aforesaid shall be informed of the advice... tendered."

18. After the formal opening of the inquiry, which was held in camera, the first thing that happened was that Dr. Bishop's Solicitor took objection to the formulation of the charge. This objection was overruled. The Legal Officer then sought to produce in evidence the correspondence, most of which we have earlier reviewed, in presenting the case against Dr. Bishop. His Solicitor objected to their production, not upon any complaint about their authenticity, but on the ground that only material led in support of the complaint before the Preliminary Investigation Committee should be used in the presentation of the case against him. It was wrong, it was submitted, to make use of correspondence that Dr. Bishop had produced and relied upon in his defence before the Committee, and would again be relying upon before the Council. This objection, too, was overruled.

19. The Legal Officer thereupon presented the case against Dr. Bishop. He went through all the relevant correspondence which had been admitted in evidence. He informed the Council that Dr. Bishop's own complaint against Dr. Allan (contained in his letter of the 8th August 1982 to the Council) had been considered and rejected by the Preliminary Investigation Committee. He submitted, in essence, that it was clear that Dr. Bishop had used his complaint against Dr. Allan as a means of putting pressure upon her. He pointed out that his complaint against her had really related to the way she had obtained her position with Cathay Pacific and yet he had seemed prepared not to pursue that complaint, entirely unrelated to the sale of his assets, if she went ahead and completed the negotiations for buying his assets. Dr. Bishop had used his complaint to the Council as leverage to obtain his "asking price". The Legal Officer submitted that on the basis of the documents he had reviewed, the charge had been substantiated.

20. Dr. Bishop's Solicitor, as he was entitled to do under reg. 27(b) of the Regulations, submitted that there was "no case to answer".  The Legal Officer replied to these submissions and the Council, after deliberation, held that sufficient evidence had been adduced upon which it could find that the facts alleged in the charge had been proved and that the facts alleged in the charge were such as to constitute the offence charged [this follows the wording of sub-paragraphs (i) and (ii) of reg. 27(b)].

21. The Solicitor representing Dr. Bishop opened his case and called Dr. Bishop who gave his account of what had taken place, explaining his attitude to the position Dr. Allan had taken; why he had written to her in the term he had used and what had been his motives throughout. He strongly denied any intention to exert improper pressure upon Dr. Allan. Dr. Bishop was then cross-examined and no further witnesses were called. We will return to Dr. Bishop's evidence presently.

22. After a short adjournment the Chairman announced the Council's decision. He said: "the Council finds that the facts alleged against Dr. Roger Gordon Bishop in the Notice of Inquiry have been proved to the satisfaction of the Council and that he is guilty of the offence charged." After hearing a plea in mitigation, the Council ordered that Dr. Bishop be reprimanded, an order the Council is given the power to make, in the exercise of its discretion, under s.18(1)(e) of the Ordinance.

23. Grounds 1 and 2 of the amended Notice of Appeal concern a procedural matter. Complaint is made that on three specific occasions, in breach of the requirement in reg. 37(1) of the Regulations, the Legal Adviser had advised the Council in the absence of Dr. Bishop and his Solicitor. It is said that this had unfairly prejudiced the defence.  The three occasions were these; when the Council was considering -

24. We have before us a frank and helpful affidavit sworn by the legal Adviser which throws more light on the matter. She explains that it had been her experience as legal Adviser to the Council that whenever the Council was required to rule on a submission after hearing argument, the Chairman always requested the parties to leave the room so that he might discuss the matter freely with the other Council members. This practice had been followed at this hearing. As regards the objection about the formulation of the charge, she gives her account of what transpired and states that the only legal advice she had given in private to the Council was to express her view that the charge was in order and that it was sufficiently specific for Dr. Bishop to answer, and the nature of this advice had been communicated to him.

25. On the question of the admissibility of the documents objected to on behalf of Dr. Bishop, the affiant tells us that the advice she had given in the  absence of Dr. Bishop and his legal representative was that this was a disciplinary  inquiry before a tribunal by the members of a professional body into the conduct of one of its members and that Since they were relevant, all the documents tendered were admissible. This advice had been repeated to Dr. Bishop by the Chairman.

26. About what happened after the submission of "no case to answer", the Legal Adviser says that the Council always followed a practice in this type of case of examining the documents relating to a charge and analysing them in the light of the evidence presented and the submissions made. In the instant case the only issue was whether the letter of the 10th August written by Dr. Bishop appeared to have been intended to intimidate the person to whom it was sent. The answer to that question was the answer to the "no case" submission so that no legal advice was required. She said she would have taken part in any general discussion, or returned the Council to the subject if members had strayed too far from it, but could not recall rendering any legal advice to the Council. Her memory had been re-inforced by the Chairman's comments when the hearing resumed as shown in the verbatim record. She added that at no stage in the proceedings did Dr. Bishop's Solicitor object to the Council receiving legal advice in private "or require us to state what legal advice had been rendered to the Council".

27. We are bound to say that it seems to us.

28. Gravely disturbing that the Legal Adviser should have been ignorant of the requirement, so plainly expressed in reg. 37(1) of the Regulations, that all legal advice tendered to the Council before it has commenced to deliberate as to its findings must be given in the presence of the parties to the proceedings or their representatives.It is also a matter of serious concern to note that reg. 37(1) has apparently been overlooked in previous inquiries before the Council. It was unfortunate, too, that Dr. Bishop's Solicitor was not aware of these provisions.

29. It was urged upon us by Mr. Eddis on behalf of Dr. Bishop that this fundamental departure from the mandatory provisions of the Regulations was such as to vitiate the whole inquiry and render the Council's decision a nullity. We must confess that we were initially attracted to this argument, but in the light of the authorities cited by Mr. Barlow for the Council, we are now persuaded to the contrary view.

30. The facts in Fox v. General Medical Council [1960] 1 W.L.R. 1017 need not detain us, but we should mention that there is no material difference between the legislative provisions considered by the Privy Council in that case, and those which govern the case before us. At page 1021, lord Radcliffe discussed the difference between statutory appeals and proceedings by way of certiorari, and said -

"The validity of any determination by the committee is, certainly, dependent upon the performance of its statutory duty to hold a "due inquiry" into the matter, and the Board will need to be satisfied as to this if it is challenged on an appeal. But to say that there must be due inquiry does not greatly elucidate the question unless there is some exhaustive definition of the conditions which such an inquiry postulates. It has been said in an earlier case (see General Medical Council v. Spackman) that there can have been .no due inquiry if the rules of natural justice have not been observed, and this is true. At the same time it must be remembered that before there was a statutory right of appeal to the Board under the Medical Act the only way of attacking a decision of the council was by way of certiorari proceedings or, at any rate, one of the other prerogative writs. Such proceedings are not truly by way of appeal. The court in granting or refusing the writ does not investigate the merits of the decision: its only concern is to  satisfy itself that certain essential rules of procedure, which are treated by it as constituting the requirements of natural justice, have been duly observed. Their Lordships think, therefore, that it would be an undue limitation of their duty and powers in dealing with the statutory appeal to require no more for the upholding of a determination than observance of what are known as the rules of natural justice."

31. At page 1022 Lord Radcliffe refers to certain rules regulating the conduct of proceedings before the Disciplinary Committee of the General Medical Council of England and Wales and goes on to say -

"The Board is bound to consider complaints made on any appeal to it against the background of these special regulatory provisions. It may be that in some cases an appellant will be able to show in positive terms that there has been a departure from what the rules required. In any such case the departure will be a matter for comment and, in the absence of any actual indication of the significance or bearing that it had upon the ultimate decision, their Lordships cannot well escape the responsibility of assessing for themselves what that significance or bearing should be taken to be. It is sufficient at this stage to guard themselves from the assumption that merely because something inconsistent with the rules can be shown to have taken place, there can have been no "due inquiry," and the decision appealed from must necessarily be reversed."

32. Later, at p.1023, Lord Radcliffe summarised the proper approach of an appellate court by saying -

"It follows that the appeal must fail unless there was some defect in the conduct of the inquiry, by way of admission or rejection of evidence or otherwise, that may fairly bethought to have been of sufficient significance to the result to invalidate the committee's decision."

33. Fox's case has been applied by the Privy Council in Sivarajah v.General Medical Council [1964] 1 W.L.R. 112 and Libman v. General Medical Council [1972] A.C. 217.

34. With the principles laid down in the authorities in mind, we now approach Grounds 1 and 2 of the Notice of Appeal. As has been seen, the Legal Adviser acknowledged that she had given legal advice about the formulation of the charge and the admissibility of certain documents. As to the wording of charge, we would merely observe in passing that although it is plain (as demonstrated by the evidence he gave and the submissions addressed to the Council on his behalf) that Dr. Bishop knew precisely what unprofessional conduct was being alleged against him, it cannot be said that the charge was happily phrased.  It is difficult to understand why his letter of the 10th August 1982 was not specifically referred to and why the formula "guilty of misconduct in a professional respect" was preferred to the words "guilty of unprofessional conduct" which appear in s.18(1)(b) of the Ordinance. We can only assume that the chosen formula came from another statute, perhaps s.25(1) of the Dentists Act 1957 of the United Kingdom. It need hardly be said that it is always wise to follow the relevant wording of an enactment as closely as possible.

35. We recognise that the procedural errors made in this case were very different in character from the grounds upon which the decisions of the disciplinary committees were attacked in the cases cited to us. In Fox the issue was the admissibility of certain evidence; in Sivarajah it was alleged that the legal assessor had given erroneous advice upon one matter, and had failed to give advice upon another; in Libman the complaints were that the evidence was weak and that the legal assessor had misdirected the committee. Nevertheless we think that where the conduct of the inquiry is called into question the test must always be whether in all the circumstances, in Lord Radcliffe's words, "[the defect] may fairly be thought to have been of sufficient significance to the result to invalidate the committee's decision." No complaint is before us about the correctness of the rulings made by the Council upon any of the issues upon which the legal adviser tendered advice. The result of the inquiry could have been no different. We reach the conclusion that the procedural errors brought to our attention, although serious and highly unsatisfactory, do not require that the Council's decision be reversed.

36. Before we take leave of Grounds 1 and 2 of the Notice of Appeal which we feel, in the light of the authorities, must fail, we express the hope that those responsible will ensure that in future inquiries the provisions of reg. 37(1) will be strictly adhered to. Mr. Barlow gave us that assurance. We hope he will also make it clearly understood that the Legal Adviser's role is limited to giving legal advice. We say this in view of what the Legal Adviser says in her affidavit about what took place, so far as her memory served her almost four months later, during the Council's consideration of the submission of "no case to answer." The Legal Adviser is not a member of the Council and must not, at any stage of the proceedings, take part in any "general discussion" that does not concern legal matters.

37. We now turn to consider Ground 4 of the Notice of Appeal. It is said that the conduct of the inquiry was contrary to the principles of natural justice in that the complainant ought to have been called upon to give an oral statement on oath and be subject to cross-examination -

38. With due respect to the forceful arguments addressed to us by Mr. Eddis on this point we can see no merit in this ground of appeal. The person charged with the responsibility of presenting the case at the inquiry may call what evidence he choses. There was no dispute about the essential facts of the case, particularly that Dr. Bishop had written what we might call the offending letter of the 10th August 1982. There was no need to call Dr. Allan to produce it. Whether in all the circumstances this amounted to unprofessional conduct was a matter for the Council and did not depend upon the effect the letter had on Dr. Allan, and her views on the matter were irrelevant; nor was it relevant to determine how she interpreted Dr. Allan's words.

39. The final question that falls for determination in this appeal is set out in Ground 3 of the Notice of Appeal: "the facts alleged were not sufficient to constitute the offence alleged and/or no sufficient evidence was advanced to support the charge". It was contended by Mr. Eddis, in effect, that no reasonable disciplinary tribunal could have found on the evidence that was before the Council that unprofessional conduct had been established. He submitted that the Council should have appreciated that the gravamen of Dr. Bishop's complaint against Dr. Allan contained in his letter of the 8th August was that she was refusing to pay for the goodwill and residual assets of his practice; and that all he was doing in the letter of the 10th August which brought about the disciplinary proceedings was to say that if she did meet her obligation to pay, his cause for complaint would be removed and he would withdraw it. Dr. Bishop had no intention, it was argued, to intimidate Dr. Allan in any way.

40. Dr. Bishop had told the Council that he had formed the opinion that Dr. Allan was not going to negotiate for the goodwill of his practice (to buy it as a going concern) and this was the prime reason for his complaint. He was worried about the timing, since he had to vacate the clinic on the 1st September. When he read Dr. Allan's letter of the 6th August (saying she would consider buying the assets of his practice if she were to be appointed Company Dental Officer)he felt that if Dr. Allan wished to negotiate matters should proceed quickly so he would know where he stood. The figure he had mentioned ($350,000) in his letter of the 22nd July was not a final figure and was subject to negotiation. Before he had written to the Council he had tried to contact her on the telephone on two occasions without success. His calls were not returned. There was no question of any threat to Dr. Allan in his letter of the 10th August. If Dr. Allan had chosen to negotiate the basis of his complaint would have fallen away. He had no intention of exerting any improper pressure on her. He was merely trying to point out the urgency of the matter.

41. Dr Bishop's cross-examination began by a series of questions directed, it seems, to the point whether or not Dr. Allan had indeed a moral obligation to buy the goodwill of the practice, and what was the goodwill that it was said should have been purchased.  The Chairman of the Council pertinently asked the Legal Officer what he was trying to establish by this line of questioning, and soon afterwards Dr. Bishop was asked about his letter of complaint about Dr. Allan to the Council. While Dr. Bishop accepted that the letter should be read as a whole, he said that what he was really referring to was his opinion that Dr. Allan was not going to purchase the practice as a going concern. The correct interpretation of his letter of the 10th August should be that if Dr. Allan wished to negotiate for the practice the basis of his complaint would have fallen away. He explained that he had not had the benefit of legal advice before writing that letter. He did not interpret his letter as meaning that he was prepared to drop the allegation that Dr. Allan had improperly used her influence to obtain a position with Cathay if Dr. Allan would purchase the practices.  He accepted that the letter was unfortunately worded but insisted that the whole point was that if she had made him an offer he would no longer have any basis for complaint.

42. The Council had the benefit of seeing Dr. Bishop give his evidence and by their finding accepted that the charge had been proved. Taking into account all the evidence, which included another letter from him to Dr. Allan of the 12th September, and in which one might have expected to find some suggestion of surprise that his letter of the 10th August had been misunderstood, we can only say that in our judgment the finding was amply justified. We would go so far as to add that it would have come as a surprise to us had any disciplinary committee inquiring into the conduct of professional men and women had reached a different conclusion on the evidence revealed by this case.  We are prepared to accept that Dr. Bishop was desperately worried about his position and genuinely felt that his successor should pay for what he called "the assets" of his practice, and that he acted in haste without legal advice. We prefer not to use the emotive word "intimidation" to categorise the words Dr. Bishop used in his letter of the 10th August, but however one looks at that letter one cannot escape the conclusion that it is calculated to put pressure upon Dr. Allan to buy his assets, by offering to consider withdrawing a complaint already made to the Council. This must surely be unprofessional conduct whether one is thinking of a dentist, doctor or lawyer or, indeed, any member of what might be called a disciplined professions.

43. Before taking leave of this case, we would mention that it is to be noticed that under s.23(1) of the Ordinance the only powers given to the Court of Appeal are to "affirm, reverse or vary the order appealed against". Counsel appearing before us agreed that there was no jurisdiction to order a re-hearing. The same formula occurs in s.26(1) of the Medical Registration Ordinance (Cap. 161); s.15(1) of the Midwives Registration Ordinance (Cap. 162) and s.22(1) of the Nurses Registration Ordinance (Cap. 164). We venture to suggest that the legislature should give consideration to enacting provisions to permit the Court of Appeal, in appropriate cases, to remit the case to the relevant disciplinary committee to dispose of in accordance with the directions of the Court (see e.g. s.11(7)(d) of the United Kingdom Medical Act 1978).

This appeal is dismissed.

Representation:

Mr. F. Eddis and Mr. M. Delgado (T.Y. Lee & Co.) for the Appellant.

Mr. B. Barlow (Legal Department) for the Respondent.