The Queen v. Law Hau Che

HCMA000894/1989

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 894 of 1989

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BETWEEN

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Coram: de Basto, J.

Date of Delivery of Judgment: 10 January 1990

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JUDGMENT

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1. The Appellant, the 2nd accused, appeals against a conviction that, on 21st day of March 1989 at Flat B, 6th Floor B No. 241 Kwun Tong Road, Kowloon, being a registered dentist he practised dentistry in premises in which an unregistered person, namely Cheng Shui Ning the 1st accused practised dentistry contrary to Section 27 of the Dentists Registration Ordinance, Cap. 155.

2. The 1st accused was charged with practising dentistry when he was not a registered dentist.

3. Both the Appellant and the 1st accused were convicted.

4. It was conceded by the Appellant that at the relevant time he operated as a registered dentist at the premises.

5. A woman police constable posing as a patient and accompanied by another officer went to the premises and there, in a dentist's chair, the Appellant checked her teeth. The woman constable asked the Appellant what his fees would be and the Appellant gave his fees both for cleaning and for fixing teeth. On a pretext both officers left and returned a short while later.

6. The woman constable asked the Appellant if there was a dentist called Cheng Shui Ning in the premises. The Appellant answered in the affirmative and he called out to the 1st accused who came in and introduced himself as Dr. Cheng.

7. The Appellant said to the woman constable, "Dr. Cheng can also clean your teeth - its OK by me for you to have your teeth cleaned by Dr. Cheng."

8. The 1st accused asked the woman constable to sit in the dentist's chair. He put a forcep and a mirror into her mouth and checked her teeth - he cleaned her teeth using an instrument like a needle.

9. The 1st accused was assisted by a woman who used a suction device. In the premises were, inter alia, an ultrasonic scaling machine, disposable hypodermic needles, anaesthetic, syringes, forceps.

10. A dental officer of the Medical and Health Department who had been in the police party, testified the premises were a dental surgery and that what the 1st accused had performed on the woman constable was a dental procedure. He produced an extract from the Dental Register ('the Register') but it was not marked as an exhibit but I am told it was used to establish that the Appellant was a registered dentist.

11. The magistrate dismissed a submission of no case to answer made on the basis that there was no evidence the 1st accused was an unregistered dentist.

12. Neither the Appellant nor the 1st accused gave evidence.

13. The magistrate found that the 1st accused was practising dentistry and that the Appellant knew what was going on. There was no evidence of the lst accused not being a registered dentitst.

14. Section 13 of the Dentists Registration ordinance provides that the list of registered dentists published in the Government Gazette shall be prima facie evidence, that a person named on the list is registered and also that a certificate under the hand of the Registrar that the name of a person entered on or removed from the Register shall be conclusive evidence that a person is or is not registered as the case may be.

15. The Appellant contends that the words 'unregistered person' were not a negative averment covered by Section 94A of the Criminal Procedure Ordinance. The Appellant also contends the prosecution had to prove not only that the Appellant was a registered dentist who practised dentistry at the premises, but also that the 1st accused practised dentistry and was an unregistered dentist. No extract from the Register was produced to prove the 1st accused was not a registered person.

16. The Appellant relies on R v. Oliver (1944) 1 K.B. 68. In that case the Appellant was charged with, being a wholesaler, he supplied sugar (this was during the War) otherwise than under the terms of a licence. He was convicted and appealed on the ground that the prosecution had failed to discharge the onus of proving that he had not had a licence. The appeal was dismissed, the Court of Appeal holding that the onus was on the Appellant to prove that he had a licence, this being a fact peculiarly within his own knowledge - the prosecution was under no necessity of giving prima facie evidence. of the non-existence of a licence. Miss Toh for the Appellant argued that the fact that the 1st accused was unregistered was not a fact peculiarly within the Appellant's knowledge.

17. Both the Appellant and the Crown relied on Reg v. Edwards (1975) 1 Q.B. 27. In that case the Appellant was convicted of selling intoxicating liquor without a licence. He contended the prosecution should have, called evidence to prove he did not have a valid licence. The Court of Appeal held that that there was an exception to the fundamental rule that the prosecution had to prove every element of the offence charged which was limited to offences arising under enactment which prohibited the doing of an act but subject to provisos or exemptions and that its application was not dependent upon either the fact or the presumption that the Defendant had peculiar knowledge enabling him to prove the positive of a negative averment and that if on a true construction of an enactment it prohibited the doing of a certain act, save in specified circumstances, it was not for the prosecution to prove a prima facie case of lack of excuse or qualifications for the onus shifted and it was for the Defendant to prove he was entitled to do the prohibited act and accordingly the defence had had to prove he held the relevant licence.

18. In my view, those cases are not to be interpreted in the wide sense attributed to them by the Appellant.

19. I agree with the magistrate that the words 'unregistered person' is a negative averment and, as such, need not be proved by the Crown.

20. The second ground of appeal is That the word 'practise' in the relevant section connotes a habitual or continuous course of conduct. I was referred to the definition of 'practise' in Strode's Judicial Dictionary and to the case of Apothecaries Co v. Jones (1893) 1 Q.B. 89. In that case the Defendant gave medical advice and supplied medicine to three different persons at different times on the same day. He was charged for three offences and the single judge held that the words 'act or practice as an apothecary' were directed against a habitual or continuous course of conduct and the Defendant was not guilty of a separate offence in attending each of the three persons. I do not think that case is authority for the proposition put forward by the Appellant but even if it were I would not have followed it.

21. The appeal is dismissed.

Representation:

Miss Evena Chan, Sr. Crown Counsel for Crown.

Miss Esther Toh instructed by Messrs. Wong, Shum & Co. for Appellant.