Young Yau Yau Cecilia v. Dental Council of Hong Kong

CACV342/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 342 OF 2008

(ON APPEAL FROM THE ORDER OF THE DENTAL COUNCIL OF HONG KONG
MADE ON 4 SEPTEMBER 2008)

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Before: Hon Rogers VP, Le Pichon JA and Poon J in Court

Date of Hearing: 3 June 2009

Date of Judgment: 3 June 2009

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J U D G M E N T

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Hon Rogers VP:

1.This is an application to strike out a Notice of Appeal.  The appeal is in respect of a decision of the Dental Council.

2.On 4 September the Dental Council concluded an inquiry in respect of the Appellant and made the following order.

“Having regard to the situation, the mitigating factors, the gravity of the present case and the fact that the present case was not an isolated case of the same nature, we consider that an order for removal from the General Register is called for.  We order that her name be removed from the General Register for a period of one month.  We further order that the operation of the order be suspended for a period of 12 months.”

Then the Dental Council made other observations, which it is unnecessary to repeat here.

3.That was served under cover of a letter sent by registered mail on 11 September 2008.  On 24 October 2008 the order of the Dental Council was gazetted in the Government Gazette.  The Appellant had approached the Legal Aid Department on 5 September 2008 and the Legal Aid Department immediately asked for copies of the transcript; but there was no other step taken by the Legal Aid Department.

4.We are told that sometime after one month had expired, at least after 11 October, the Appellant had attempted to file her own Notice of Appeal in the Court of Appeal - and had indeed probably filed it - but was informed by the court staff that she had longer time to file that.  We are told that it was on 21 October that she had had a conversation with officials at the High Court Registry.

5.The Notice of Appeal in this case was ultimately filed on 14 November 2008.  Relying on the provisions of section 23 of the Dentists Registration Ordinance, Cap. 156, an application is made to this court on the basis that this court has no jurisdiction to hear this appeal.  One starts with section 13 of the High Court Ordinance, Cap. 4, which specifies the jurisdiction of this court.  Section 13(2) provides that the civil jurisdiction of the Court of Appeal should consist of:

(a)   appeals from any judgment or order of the Court of First Instance in any civil cause or matter;

(b)   appeals under section 63 of the District Court Ordinance, (Cap. 336); and

(c)   any other jurisdiction conferred on it by any law.

6.What is said is that although there is a right of appeal given under section 23 of the Dentists Registration Ordinance, subsection (3A) provides that:

“Despite subsection (3), the Court of Appeal has no power to-

(a)    hear that any appeal against an order made under section 9, 15A(2) or 18, unless notice of the appeal was given within one month of the order being served in accordance with section 22(1);

(b)    hear any appeal against a decision made by the Council to reject an application under the section 12B(1) unless notice of appeal was given within one month of the notice of the rejection being given under section 12B(11).”

7.So there one has it.  The simple point that has been taken is that this court has no jurisdiction.  The question which this court raised, and which would at once be considered by any court, is whether despite the time limitation, this court has a power to extend the time.  The answer would seem to be that this court, in these circumstances, does not appear to have power to extend time.  It appears to be a unique situation where this court does not have such power to extend time simply because this court has no jurisdiction in the case, the Notice of Appeal not having been in time.

8.The Rules of the High Court would, of course, not apply, because they are subsidiary legislation and not primary legislation.  Consideration, however, has been given to whether there is any other source of power of this court.  In doing so, this court alluded to - and the case was ultimately provided for us - the Solicitor v Law Society of Hong Kong & Secretary for Justice [2003] 6 HKCFAR 570.  It would seem that it may well be that the provisions of Article 82 of the Basic Law may be applicable.  That Article provides that the power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the region, which may, as required, invite judges from other common law jurisdictions to sit on the Court of Final Appeal.

9.I say no more about that at this stage.  Even though this court has no jurisdiction to hear an appeal which has not been launched within one month, it may well be that the Court of Final Appeal does have that jurisdiction because it has the power of final adjudication.

10.The other matter which was raised briefly in the course of argument is that it would be open to an applicant, who does not have a right of appeal for one reason or another, to apply for judicial review.  That clearly seems to me to be a course which is open.  Whether or not it would be open in this case, having regard to the time which has expired, is quite another matter.  But it does seem to me that a provision of this type in section 23(3A)(a) of the Dentists Registration Ordinance, which has the effect of restricting the power of the court to extend time in appropriate circumstances, cries out for application for judicial review of a decision which is considered wrong.  It may well be that those responsible for the legislation may reconsider whether or not the power of this court to extend time in appropriate cases - and I make no mention as to whether this would be an appropriate case - but whether the power of this court to extend time in appropriate cases should not be given under the ordinance despite what has been said to be the public policy of proceeding with decisions under this ordinance and the Medical Registration Ordinance as quickly as possible.

11.Therefore, with I might say is some degree of reluctance, I would allow this application to strike out the Notice of Appeal.

Hon Le Pichon JA:

12.I agree.

Hon Poon J:

13.I also agree.

Mr Y L Cheung, instructed by Messrs Leung, Tam & Wong, for the Appellant/Respondent

Mr Mark Chan, of Department of Justice, for the Respondent/Applicant