Tsang Chun-keung and Another v. The Queen

CACC000552/1980

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 552 OF 1980

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Coram: O' Connor, J.

Date of Judgment: 21st August, 1980.

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JUDGMENT

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1. The appellants appealed against convictions and sentences in respect of offences against the Dentists Registration Ordinance Cap. 156. The first appellant's offence was under S.3(1) and that of the second appellant under S.27.

2. The second appellant is a registered dentist. A police sergeant went to his premises seeking dental attention. She was attended to by the first appellant. A party of police together with a government dental officer raided the premises by prior arrangement and caught the first appellant in the act. I dismissed the appeals against conviction as none of the grounds put forward had any substance. No criticism can properly be made as to the manner in which the learned magistrate approached the evidence and the law, nor as to his findings of guilt.

3. In his statement of findings he says the following:-

"Both appellants had clear records. I felt that this was a serious case in that as the 2nd appellant was a registered dentist, members of the public would naturally be led to believe that anyone treating them in his premises was also a qualified dentist. I took the view that to have an unqualified person carrying out a full range of dental treatment could have potentially catastrophic results. It was urged upon me that a small financial penalty was the usual penalty in these cases. I took the view that the maximum fine of $1,000 was unlikely to deter unqualified people from practising dentistry bearing in mind the possible financial rewards open to them and that I owed a duty to the public to protect them from the activities of people such as the appellants."

4. The emphasis is mine. I agree with the learned magistrate and stress that his remarks are primarily in relation to unqualified dentists. That is to persons who do not have any qualifications as a dentist as distinct from those who have such qualifications but are not eligible for registration in Hong Kong. A person who has qualified as a dentist in a reputable dental school, even if his qualifications are not recognised in Hong Kong, would be in a different position in respect of sentence to a person with no qualifications. When I pointed this out, I was informed that the first appellant had learnt his trade, if one may call it that, by observing his father, and had practised it over a period of eighteen years. That, while intended to mitigate, has the effect of demonstrating that the incident charged was an incident in a continuing course of conduct. Indeed that was already obvious from other evidence in the case. It is clear that a sentence is required which will keep the first appellant away from the practice of dentistry.

5. Neither counsel has been able to refer me to other sentences under this Ordinance. However, there is the decision in R. v. Tsui Sin Kwok Cr. App. 756-771/1977 (Addison 1974 - 1977 at paragraph 680) relating to unregistered doctors. Sentences of fines were considered appropriate in those cases. It is not clear whether or not the appellants in those cases were unregistered persons with medical qualifications or without qualifications. I think they must have been qualified. I cannot conceive of fines being considered appropriate if they were unqualified.

6. The learned magistrate imposed sentences of 3 months imprisonment on each appellant and fined them each $1,000. He suspended the sentence on the second appellant. In my view they ought to have both been suspended. I therefore allowed the appeal to the extent that I suspended the sentence on the first appellant.

Representation:

Peter Nguyen (Shum & Yeung) for both appellants.

J.S. Conyngham, Crown Counsel, for the Crown/respondent