Ng Kin Wai v. The Dental Council of Hong Kong

CACV 194/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 194 OF 2010

(ON APPEAL FROM THE ORDER OF THE DENTAL COUNCIL OF

HONG KONG MADE ON 5^TH AUGUST 2010)

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BETWEEN

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Before: Hon Yuen, Fok JJA and Chung J in Court

Date of Hearing: 28 March 2012

Date of Judgment: 28 March 2012

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.On 14 October 2011, we handed down our Judgment dismissing the applicant’s appeal against the finding of the respondent that he had been guilty of professional misconduct.

2.By notice of motion dated 11 November 2011, the applicant seeks leave to appeal from our Judgment to the Court of Final Appeal, pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484), on the basis that the appeal involves the following two questions of great general or public importance:

“(a) Does s.18(1)(b) of the Dentists Registration Ordinance (Cap.156) (the “Ordinance”) when read together with s.2 of the Ordinance (interpretation of “due inquiry”) plus Regulations 27 and 28 of the Dentists (Registration and Disciplinary Procedure) Regulations (Cap.156A), permit the Dental Council to find a registered dentist guilty of unprofessional conduct without expressly considering and determining whether the facts alleged have been proved to the Dental Council’s satisfaction?

(b) In a charge of unprofessional conduct, contrary to s.18(1)(b) of the Ordinance, when the Dental Council is satisfied that the Defendant’s conduct has fallen below the standard expected of registered dentists, is the state of mind of the Defendant at the material time relevant to the determination of whether this unprofessional conduct would be reasonably regarded as disgraceful and dishonourable by registered dentists of good repute and competency?”

3.Although framed as two separate questions, it is clear that the crux of the applicant’s complaint remains whether the Dental Council was entitled to find the applicant guilty of the charge of unprofessional conduct without having made specific findings as to his mental state at the time of the disciplinary offence.[1]

4.We are satisfied that question (b) does not give rise to a question of great general or public importance since, as recorded in paragraph 40 of our Judgment, it was (in our view, rightly) accepted by the applicant’s leading counsel during the hearing of the appeal that, depending on the circumstances, unprofessional conduct may occur, even when a dentist has acted with an honest belief that he was entitled to act as he did.

5.In skeleton submissions for this application, it was submitted, on behalf of the applicant, that our Judgment (at §41) was in error in contrasting unprofessional conduct with the offence, under s. 25A of the Ordinance, of falsely pretending to be or taking or using the name or title of a specialist.  We do not agree.  The comparison in paragraph 41 of our Judgment did not determine our decision that a charge of unprofessional conduct did not include any particular mental state as an element of the offence but it does serve to illustrate the distinction between, on the one hand, an offence requiring a particular mental element and, on the other, unprofessional conduct which may not do so.

6.In respect of question (a), it was submitted that the Dental Council did not find the applicant guilty of unprofessional conduct after “due inquiry” (as required by s. 18(1) of the Ordinance) and that our Judgment (at §40) was in error in directing attention to the “charge” rather than the route by which the Dental Council came to its finding that the applicant was guilty.  It was the applicant’s contention that the Dental Council had not conducted a due inquiry in determining the applicant to be guilty of unprofessional conduct.

7.The charge against the applicant is set out in paragraph 4 of our Judgment.  The relevant facts alleged in the charge were: (i) that in October 2009 the applicant used cards bearing the title specialist, and (ii) that his name was not included in the Specialist Register at the material time.  Those facts were admitted by the applicant, both at the hearing of the inquiry before the Dental Council and in the appeal to this Court.[2]  The only matter remaining for the Dental Council to determine, after due inquiry, was whether in relation to the facts alleged the applicant had been guilty of unprofessional conduct regardless of his mental state at the time.  It is plain from the analysis of the Dental Council, at paragraphs 9 to 11 of its Decision[3], that the Dental Council duly did determine this question after due inquiry, concluding that he had been so guilty.  It is also plain that the conclusion of the Dental Council that the applicant was guilty of unprofessional conduct was fact sensitive, depending as it did on the facts alleged in the charge and the requirement for dentists to comply with the relevant statutory requirements.

8.For these reasons, in our judgment, question (a) also does not give rise to a question of great general or public importance.  Further, and in any event, question (a) does not arise from our Judgment; nor is it reasonably arguable that the Dental Council did not consider and determine whether the facts alleged had been proved to its satisfaction.

9.We accordingly dismiss the application for leave to appeal with costs.

Mr Gerard McCoy SC and Mr Daniel Hui, instructed by Cheung, Chan & Chung, for the Appellant/Applicant

Ms Juliana Chow, instructed by the Department of Justice, for the Respondent/Respondent