Jeremy Tung v. The Dental Council of Hong Kong

HCAL 35/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 35 OF 2011

------------------------

BETWEEN

------------------------

Before: Hon Au J in Court

Date of Hearing: 12 March 2012

Dates of Supplemental Written Submissions: 29 May, 18 & 25 June 2012

Date of Judgment: 14 August 2012

-----------------------

J U D G M E N T

-----------------------

A. INTRODUCTION

1.The applicant was a registered dentist under the Dentists Registration Ordinance (Cap 156) (“DRO”).  He was removed from the General Register of Dentists (“the General Register”) on 17 July 2008 for his failure to renew his practising certificate. 

2.This is his judicial review against the decision (“the Decision”) of the Dental Council of Hong Kong (“the Council”) dated 21 March 2011, to reject his application for restoration of his name to the General Register.

3.In this judicial review, he asks for an order of certiorari to quash the Decision and an order of mandamus requiring the Council to reconsider his restoration application before a fresh panel appointed by the Council.

B.  THE FACTS

B1.  The DRO

4.The practice of dentistry in Hong Kong is governed by the DRO.  Under the DRO, the registration and licensing of dentists are administered by the Council set up thereunder.

5.A person who wishes to lawfully practise dentistry in Hong Kong has to be:

(1) A registered dentist registered under the General Register kept and maintained by the Council[1].

(2) A holder of a valid practicing certificate and a registered dentist has to apply for a practising certificate each year, as a certificate is only valid in the year it is issued[2].

6.In general, as a matter of practice, the Secretary of the Council (“the Secretary”) would:

(1) In October and November of a year send out payment reminders to registered dentists to remind them to renew their annual certificates for the coming year.

(2) Send out further reminders in March and April of the year to those registered dentists who have not yet renewed their certificates for that year.

7.Further:

(1) Under s 15(3)(ba) of the DRO, the Council may order the removal of a dentist’s name from the General Register if that person has practiced dentistry in Hong Kong for a period exceeding 6 months without having obtained a valid practicing certificate.

(2) Under s 3(1) of the DRO, a person who is not a registered dentist but practises dentistry commits an offence and is liable to a fine and to an imprisonment for 3 years.

B2.  The applicant

8.The applicant became a registered dentist on the General Register in 2005.  He had since then been employed by a medical and dental practice group as a dentist initially at its two clinics in Shatin.  I will call this the Chanway Clinic and the Grand Central Plaza Clinic.  He had provided to the Council the address of the Chanway Clinic as his primary contact address.  It is his case that in later years, he had also worked at the employer’s clinic in Tuen Mun some days in a week.

9.The applicant duly applied for practising certificates for the years 2005, 2006 and 2007.  The relevant annual renewal fee for a practising certificate was about HK$505.

10.However, he did not apply for the same for the years 2008, 2009 or 2010.

11.Notwithstanding his failure to apply for practising certificates since 2008, the applicant had continued to practise as a dentist until April 2010.

12.On 15 April 2010, while making enquiry with the Dental Association over the phone about the renewal of his membership with the Dental Protection Ltd (the professional indemnity provider), he was informed that his name was not on the General Register. 

13.He then immediately called the Council to make further enquiry.  The applicant was then told that his name had already been removed from the General Register since 17 July 2008.

14.Apparently, in July 2008, the Council noted that the applicant had not applied for a practising certificate for the year 2008. Thus, by a letter dated 28 July 2008 (“the Removal Letter”), the Secretary sought to inform the applicant that, by virtue of s 15(3)(ba) of the DRO, his name was removed from the General Register on 17 July 2008. 

15.However, the applicant did not receive the Removal Letter, as it was returned to the Council undelivered.  This was so as the Chanway Address was not stated in its complete form by the Secretary on the letter, which rendered it undeliverable. 

16.Be that as it may, after being told that his name had been removed from the General Register, the applicant immediately applied under s 22(3) of the DRO to restore his name to the General Register with the requisite fee.  He also promptly informed his employer that his name had been so removed from the General Register but he had already applied for restoration. 

17.Thus, since 17 April 2010 the applicant has ceased practising dentistry.  His employment with the medical group was in any event subsequently terminated on 6 May 2010 after a newspaper reported the incident (“the Incident”) that he had been practising at the employer’s clinic without a valid practising certificate.

B3.  The inquiry

18.S 22(3) of the DRO provides as follows:

“ (3) Any person whose name has been removed from the General Register under the provisions of this Ordinance… may apply to the Council for the restoration of his name to the General Register, and the Council, in its absolute discretion and after such inquiry and subject to such conditions as it may consider desirable, may either allow or refuse the application, and, if it allows the same, shall order the Registrar to restore the name of the applicant to the General Register, and thereupon the Registrar shall restore the name accordingly.” (emphasis added)

19.Thus, in determining whether to accept or refuse an application for restoration of a person’s name to the General Register, the Council in the exercise of its discretion may:

(1) hold an inquiry for that purpose as it considers desirable.

(2) attach any conditions to the said acceptance or refusal of the application as it considers desirable.

20.In light of the report in the newspaper, and after obtaining further information from the applicant relating to the Incident, the Council decided to hold an inquiry pursuant to s 22(3) of the DRO to consider (a) the said information about the Incident, and (b) the applicant’s application for restoration. 

21.The inquiry was held on 21 March 2011 with a panel of four members appointed by the Council.  The applicant was legally represented.  He also personally attended the inquiry and the panel had asked him questions.

22.The inquiry was divided into two parts, the first part related to the complaint concerning the Incident made against the applicant (Part 1), and the second part related to his application for restoration (Part 2).

23.For the purpose of the inquiry, there was a statement of agreed facts made between the legal officer for the Secretary of the Council and the applicant.  The relevant parts of the statement are as follows:

“2. In 2005, 2006 and 2007, Mr TUNG [the applicant] duly applied for and renewed his practising certificate.

3. On 17 July 2008, Mr TUNG’s name was removed from the Register of Dentists in accordance with section 15(3)(ba) of the Dentists Registration Ordinance (Cap 156).

4. On 28 July 2008, the Dental Council’s Secretary sent a letter by registered post to Mr Tung at Shop No 3B, Chanway Shopping Centre, 11-17 Shatin Centre Street, New Territories to inform Mr TUNG of his removal from the Register of Dentists. However, the letter was returned undelivered to the Central Registration Office due to an inadvertent entry of incomplete address.

5. Mr TUNG continued to practise dentistry at [Chanway Clinic] from 17 July 2008 to 16 April 2010.

6. On 16 April 2010, Mr TUNG attended the Central Registration Office of the Dental Council to apply for restoration of his name to the Register of Dentists. He complete the application form, made a Statutory Declaration in the form prescribed by the Dental Council and paid an application fee of HK$2,325 by way of a cheque dated 16 April 2010.

7. Mr TUNG has not been found guilty of unprofessional conduct by the Dental Council of Hong Kong.”

24.After the inquiry, the panel gave a written reasoned decision (“the Reasons”) on 22 March 2011.

25.In relation to Part 1, based on the agreed facts, the panel for the inquiry found the complaint against the applicant in relation to the Incident established[3].

26.In relation to Part 2, the panel rejected the applicant’s application for restoration (ie, the Decision).  It explained the Decision at paragraph 10 of the Reasons as follows:

“10. Having considered all the matters advanced by the Applicant’s solicitor and the Applicant’s answer to our questions, we are not satisfied that he is a fit and proper person to be restored to the General Register, for the following reasons:

(i) He has ignored the repeated reminders to apply for the practising certificate, and the possibility of losing his registration if he did not do so. This reflects his casual attitude towards the legal provisions governing the practice of dentistry.

(ii) At the inquiry, we are not satisfied that he clearly recognizes his problem. In the submission to the Preliminary Investigation Committee date 18 November 2010, it was emphasized that it was an administrative mistake and an oversight for which he has paid a high price of losing his employment. It was also emphasized that he did not receive the letter dated 28 July 2008 notifying him that his name had been removed from the General Register. The same approach is taken in his written statement made for the purpose of the inquiry, although it was stated that ‘I fully understand that, as a dentist, it is my personal and professional responsibility to make sure that I have a valid and effective practising certificate and registration at all times’. This shows that he does not appreciate the importance of compliance with the law, nor does he properly appreciate that it is his own responsibility to ensure compliance with the law instead of relying on others to keep him on the track.

(iii)    He does not appreciate the seriousness of the criminal conduct of illegal practice of dentistry without registration, which is an offence punishable with imprisonment for 5 years, and if there is personal injury, to imprisonment for 7 years.”

27.The panel then further observed at paragraphs 12 and 13 of the Reasons as follows:

“12. In view of the clear evidence of criminal conduct under section 3(1) of the DRO, we direct the Secretary to report the matter to police for further investigation and enforcement action.

13. While we do not rule out the possibility that the Applicant may later become a fit and proper person to be restored, we would expect that any future application for restoration should be supported by concrete and cogent evidence of remorse and rehabilitation.  Such evidence should include (but not limited to) full cooperation with police in the investigation and enforcement action, and measures which have been taken by the Applicant to ensure compliance with the legal requirements governing the practice of dentistry.”

28.On 23 May 2011, the applicant applied for leave to apply for judicial review against the Decision.

29.On 30 May 2011, this court granted leave.  On 14 July 2011, the applicant amended its Form 86.

C.  THIS JUDICIAL REVIEW

30.Mr Huggins SC for the applicant raises a number of grounds in support of the judicial review.  I would deal with them as follows.

C1.  Procedural irregularity, unfairness and/or irrationality in the    reasoning of the Decision

C1.1  Paragraph 10(i) of the Reasons

31.As I mentioned above, the panel came to the conclusion that the applicant was not a “fit and proper person” to be restored to the General Register.  It explained this conclusion on three bases, which were set out at paragraph 10 of the Reasons.

32.First, under paragraph 10(i), it was the panel’s view that the applicant had a “causal attitude towards the legal provisions governing the practice of dentistry”.  This was because the applicant had “ignored” (a) “the repeated reminders to apply for the practising certificate”, and (b) “the possibility of losing his registration if he did not do so”.

33.Mr Huggins submits the panel’s conclusion that the applicant had ignored the repeated reminders in this reasoning was reached under a procedural unfairness.  This is because (Mr Huggins further says):

(1) These reminders must mean or at least include those payment reminders and reminder letters supposedly sent by the Secretary to the applicant in the relevant years to remind him to apply for a practising certificate.

(2) In this respect, the applicant’s evidence (as set out in his statement[4]) at the inquiry was that he could no longer recall the reasons why he did not renew his practising certificates for the year 2008 and onwards.  He thought this might be due to his oversight as he had either misplaced the reminder letters from the Council or he had never received or read those letters.

(3) There was no cross-examination of the applicant on this part of his evidence.  Specifically, he was not asked (a) whether he had received a payment reminder in 2007, and whether had received a reminder to renew his practising certificate in 2007, 2008 or 2009.  It was also not put to him that his evidence that he might not have received the reminder letters was say unbelievable or untrue.

(4) In the circumstances, there was no basis and also procedurally unfair for the panel to conclude that the applicant had “ignored the repeated reminders to apply for the practising certificate” in light of his evidence that he might not have received the reminders sent to him by the Council.  Mr Huggins further argues that this is particularly so, as there was no finding that the Council’s reminders had in fact been sent properly to the Chanway address.

34.On the same basis, Mr Huggins further submits that the conclusion at paragraph 10(i) of the Reasons is also or alternatively irrational, as it was reached without the necessary evidential basis.

35.For the following reasons, I think Mr Huggins is right in his submissions.

36.The conclusion at paragraph 10(i) of the Reasons that the applicant had “ignored” the “repeated reminders” to apply for the practising certificate had to be premised on the fundamental basis that the applicant had in fact received these repeated reminders. 

37.At the same time, paragraph 5 of the Reasons says as follows:

“5. The Applicant must be aware of the requirement to apply for the practising certificate each year, for the following reasons:-

(i) When he was first registered as a registered dentist, the letter dated 23 August 2005 from the Secretary of the Dental Council specifically stated that under section 11A of the Dentists Registration Ordinance (“DRO”) he was ‘required to apply to the Secretary for a practising certificate at the beginning of each year’.

(ii) He duly applied for the practising certificate in 2005, 2006 and 2007.

(iii) Each year payment reminders to apply for the practising certificate are issued to all registered dentists.

(iv) There have been reminders in the ‘Letters to Dental Practitioners Registered in Hong Kong’ to renew the practising certificate.

(v) He had been asked by his employer to provide the practising certificate.  This must have taken place each year in 2008, 2009 and 2010 during which he remained in the employment.”

38.Reading these two paragraphs together, the “repeated reminders to apply for the practising certificate” referred to by the panel at paragraph 10(i) must at least include those payment reminders and reminder letters sent out by the Council as described under paragraph 5(iii) and (iv).

39.However, given the applicant’s evidence that either (a) he had not received these reminders, or (b) he had received them but had never read them or had misplaced and forgotten about them, if the panel was to make a finding that he had in fact received them, I accept Mr Huggins’ submissions that it was procedurally unfair that this was not put to applicant, and that he was not cross-examined on this part of his evidence.  The applicant had not been given an opportunity to respond to it. 

40.The unfairness is in my view further underlined by three matters in the present case.  First, there was in fact the incident (which is common ground) that the applicant did not receive the Removal Letter, as it was returned to the Council undelivered due to the fact that the Council did not put a complete address (of the Chanway Address) on that letter.  Thus, it is not wholly improbable that the applicant might not have received other documents sent to him.  Second, it must also be noted that it is the panel’s own statement at paragraph 5(iii) and (iv) of the Reasons that the payment reminders and reminder letters are only sent to registered dentists. Given that the applicant was no longer a registered dentist after July 2008, in the Council’s own position, no such reminders would have been sent to him in 2009 and 2010.  The “repeated” reminders must thus also be understood in the context that these were only sent to the applicant in relation to the renewal application for 2008.  Third, the panel in any event has not set out its reasons to explain why it rejected the applicant’s alternative case that he had not received the reminders.

41.For the same reasons, I also accept Mr Huggins’ alternative submissions that the panel’s conclusion that the applicant had ignored the repeated reminders is without proper evidential basis. 

42.On this basis, I will allow the judicial review on this ground.  This is particularly so, as in concluding that the applicant was not a fit and proper person to be restored to the General Register, the panel apparently relied on all three reasons set out under paragraph 10 of the Reasons, as they were not expressed as alternatives.  As such, I cannot for the present purpose come to the view that the panel would have come to the same conclusion (that the applicant was not a fit and proper person) even if without the “finding” that the applicant had ignored the repeated reminders.

43.I will therefore quash the Decision and remit it back to the Council for a fresh reconsideration under a new panel. 

C1.2  Paragraph 10(ii) and (iii) of the Reasons

44.Mr Huggins also contends that at paragraph 10(ii) of the Reasons, the panel had wrongly treated the applicant’s evidence and submissions made in mitigation as matters adverse to his application.  This is (counsel says) irrational.

45.I am unable to accept these submissions.  Although the applicant did in mitigation seek to rely on his emphasis that it was his oversight and administrative mistake in his failure to renew the practising certificates and that he had paid a high price of losing his employment, I do not think there is any practice or principle of law that mandated the panel to consider this only as a question of mitigation.  In my view, it was open to the panel to treat this part of the applicant’s submissions and evidence in the way it did and to reach the conclusion reached at paragraph 10(ii) of the Reasons, which cannot be said to be irrational (in the public law sense) and which has not infringed any principles of law.

46.Mr Huggins also contends that it was neither procedurally fair nor rational for the Council to say at paragraph 10(iii) of the Reasons that the applicant “does not appreciate the seriousness of the criminal conduct of illegal practice of dentistry without registration”, as there was no basis for that criticism.  The applicant emphasised that he did not practise knowing that he was no longer registered.  That (says Mr Huggins) did not mean that the applicant did not appreciate the seriousness of committing a criminal offence under s 3(1) of the DRO.  This conclusion is thus irrational and unfair.

47.I similarly reject this contention for the following reasons.

48.At paragraph 3 and 4 of the Reasons, the panel said the following:

“3. It is a fundamental and important professional responsibility of every registered dentist to comply with the law governing the practice of dentistry. This responsibility requires him to find out and know all relevant legal provisions, in particular the [DRO]. It is well known that ignorance of the law is no defence. In the case of registered dentists, ignorance of the law governing the practice of dentistry is by itself a breach of his professional responsibility.

4. The primary reason for every dentist to be registered before he can lawfully practise dentistry is to ensure protection of the public by subjecting his practice to the disciplinary jurisdiction of [the Council]. A person who practises dentistry while not being registered is not regulated by the Council. It is a continuing duty on every person to ensure that he is registered as long as he continues to practise dentistry, in order to ensure that he does not commit the criminal offence of unlawful practice under section 3 of the DRO.” (emphasis added)

49.These statements are not (and in my view cannot be) challenged.  In the present case, even if the applicant’s failure to apply for practising certificate for 2008, 2009 and 2010 was due to (as he said) his own and administrative oversight, he had still failed in his responsibility to ensure that he was registered to practise given the criminal liability for practising without registration.  In failing to so ensuring himself of registration, it is reasonably open to the panel to form the view that the applicant did not appreciate the seriousness of criminal conduct of illegal practice of dentistry without registration.

50.Finally, Mr Huggins says the panel at paragraph 10(iii) and some other parts of the Reasons[5] described or referred the applicant’s conducts in practising dentistry without registration as “criminal” or “unlawful” conducts.  This (Mr Huggins further submits) amounted to the panel effectively finding against the applicant a criminal conviction, when at that time he was not even subject to any criminal prosecution.  This is also procedurally unfair for the applicant.    

51.I also do not accept these submissions.  In my view, properly reading the Reasons as a whole, the panel’s references to the applicant’s “criminal conducts” in those relevant paragraphs in the Reasons were only a reference to the fact that it was a criminal offence under s 3(1) of the DRO for the applicant to practise after his name had been removed from the General Register.  I do not read these as the panel itself holding that the applicant was criminally convicted.  In fact, the panel at paragraph 9 of the Reasons expressly referred to the fact that the police had not taken prosecution action against the applicant.  There was no procedural unfairness for the panel to so referring the fact that the applicant’s practice of dentistry without registration was a criminal offence under the DRO, even though there was yet to be a conviction.

52.I therefore reject all these grounds of judicial review.

C1.3  Other parts of the Reasons

53.Mr Huggins also submits that there are other parts of the Reasons which are also tainted with procedural unfairness and/or irrationality.  In gist, Mr Huggins says it is common ground that Part 1 of the hearing was not a disciplinary hearing of professional misconduct of the applicant, and there was never any finding of professional misconduct against the applicant by the Council.  However, at paragraph 9(iii) of the Reasons, the panel said it must consider in the restoration application whether the applicant had rehabilitated from the “misconduct”.  This amounted to the panel treating the applicant as if he had committed a professional misconduct (when there was none) in considering his restoration application.  This is procedurally unfair.

54.I disagree.

55.Properly and objectively read, the panel’s reference to the applicant’s “misconduct” at paragraph 9(ii) of the Reasons was a general reference to the conduct that the applicant had not applied for his practising certificates and that he continued to practise thereafter.  As far as I can see, this was not used to denote a “professional misconduct” as specifically understood in the context of a disciplinary hearing.  I therefore also see no merits in this part of the applicant’s complaint about procedural unfairness.

C1.4  Procedural unfairness in preventing the applicant's legal representative from developing a relevant point

56.At the inquiry, the applicant’s legal representative, Ms Lam, sought to bring to the attention of the panel a case relating to the ruling by the Medical Council in May 2010.  In that case, a medical doctor was successful in his application to have his name restored to the relevant register of medical practitioners after his name had been removed from the register without his knowledge.

57.Mr Huggins submits that Ms Lam was however prevented by the Council’s legal adviser from developing and elaborating in her submissions on the relevance of this case.  This is procedurally unfair as the applicant had thus been prevented from properly developing relevant submissions to the panel at the inquiry.

58.I have gone through the relevant part of transcripts of the inquiry relating to this complaint.  It involved a very short exchange between Ms Lam and the legal adviser.  For convenience, I would quote it in full as follows:

“[Ms Lam]: …Last but not least, I wish to mention that in May last year, I together with a counsel represented a medical practitioner in an inquiry before the Medical Council. The facts of that case are similar to the present one. In that case, the doctor’s name was removed from the register without his knowledge…

Legal Adviser: Sorry, Ms Lam. This is a Dental Council matter, which is entirely independent from the Medical Council.

[Ms Lam]: I understand that.

Legal Adviser: I wonder whether it is appropriate to ask the Dental Council to I mean either follow the practice of the Medical Council. I think it is entirely a Dental Council matter. You must bear that in mind.

[Ms Lam]: Thank you, Legal Adviser. I fully appreciate, of course, the medical Council’s decision not the case, of it is not binding to the Dental Council.  The purpose of me referring to that case is simply to let the Dental Council know that there was a similar case in Medical Council last year.  And in that case the application was allowed by the Medical Council.  So I will simply move to finish my submission…”

59.As far as I can see, when Ms Lam started to address the inquiry on that case, what the legal adviser did was to raise the point that (a) the case related to proceedings before the Medical Council, which the Council was independent from, and (b) it might not be appropriate to ask the Council to follow the practice of the Medical Council.  He then asked Ms Lam to bear these in her mind.  Ms Lam in response appreciated that the ruling of the Medical Council was not binding on the Council and remarked that all she wanted to do was to draw to the attention of the Council that the Medical Council in a similar case had allowed the restoration application.  She then on her own moved on to other parts of her submissions. 

60.Fairly reading this, I do not see any substance in the complaint that the Council’s legal adviser prevented Ms Lam from developing her submissions.  The legal adviser was entitled to advise the panel and make known his view on the relevance of the case that Ms Lam wished to rely on.  However, there was no insistence on the part of the legal adviser to stop Ms Lam from continuing to submit on that case.  I also did not see anything in the transcript to show that, after acknowledging the legal adviser’s view, Ms Lam attempted to continue her submissions by going into the details of the case, but was not allowed to do so by the panel or the legal adviser.  As I said above, it was Ms Lam who decided to move on to other parts of her submissions.

61.I therefore also reject this ground of the judicial review.

C2.  Proportionality

62.On the court’s own motion, the parties were directed on 21 May 2012[6] to provide supplemental written submissions on the question of whether the Decision could be justified on the basis of proportionality as understood in public law.  It is noted that this ground was not relied on in the Amended Form 86.

63.The parties have since submitted written supplemental submissions prepared by counsel for that purpose.

64.However, given my above conclusion to remit the restoration application to the Council for a fresh consideration by a new panel, I do not think it is appropriate now for me to decide on the question of proportionality, save that I would make a few observations as follows.

65.First, I appreciate that the test of proportionality is not necessarily recognised available as a free standing ground in judicial review in cases outside human rights and constitutional challenges.   There may thus be a question as to whether this ground should apply independently in the present judicial review application.

66.Given that (a) this question has not been fully argued by the parties, and (b) it is now not necessary for me to decide on this proportionality ground on merits, I believe it is only right for this court to reserve this question to be determined in another more appropriate occasion.

67.Second, in its submissions, the Council raises the preliminary objection that the applicant was not entitled to rely on the ground of proportionality in this judicial review as it had not been raised in its Amended Form 86.  Further, it would be prejudiced if the applicant is allowed to now rely on this ground, as it has been deprived of the chance of provide relevant evidence.

68.However, as pointed out by the applicant in his reply submissions, the Council has not identified in its skeleton what evidence (or what is the nature of the evidence) that it would want to and could provide if this ground had been raised in the Amended Form 86. 

69.As such, I agree with the applicant that no real prejudice has been demonstrated by the Council if this ground is allowed to be raised now.  This is particularly so as, for the present purposes, this ground should and would only be examined in light of all the evidence that was made available at the inquiry.

70.Therefore, I would have allowed this ground to be fully argued.

71.Finally, if I had to decide on merits whether the Decision meets the proportionality test, I believe it would have been relevant for me to take into account the factor that under s 22(3) of the DRO, the Council was entitled to consider whether to attach any conditions in allowing or refusing the restoration application. 

D.  CONCLUSION

72.For the above reasons, I allow this judicial review application.  I would quash the Decision and further make an order of mandamus to require the Council to reconsider the applicant’s application for restoration before a fresh panel appointed by the Council.

73.I would also make an order nisi that costs of this application be to the applicant, to be taxed if not agreed.  This order shall become absolute 14 days from today unless any of the parties applies to vary it by summons.

Mr Adrian Huggins SC, instructed by Mayer brown JSM, for the applicant

Mr Gerard McCoy SC, instructed by the Department of Justice, for the respondent