Dr Lam Kwok Pun v. Dental Council of Hong Kong

CACV000137/2000

CACV 137/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 137 OF 2000

(ON APPEAL FROM THE ORDER OF THE
DENTAL COUNCIL OF HONG KONG
dated 22 March 2000)

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Coram: Hon Mayo VP, Woo JA and Burrell J in Court

Date of Hearing: 3 November 2000

Date of Judgment: 3 November 2000

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. This is an appeal by a dentist from a decision of the Dental Council dated 22 March 2000 when it held that the dentist was guilty of unprofessional conduct.

2. He was charged in these terms:

"That you, being a registered dentist, on 12th September 1997 disregarded your professional responsibility adequately to treat and care for your patient, namely, Ms Chan Man-yan, or otherwise to have neglected your professional duties, in that :-

(a) you failed to verify the presence of a permanent third molar in the lower right jaw of Ms Chan before proceeding to remove the same by a surgical procedure under local anaesthetic whilst in fact there was no such molar; and

(b) the said surgical procedure caused numbness to Ms Chan's tongue and discomfort and distress to her;

and that in relation to the facts alleged you have been guilty of unprofessional conduct."

3. A disciplinary inquiry was held by the Dental Council on 16 March 2000.

4. At the hearing the dentist admitted that he had failed to verify the presence of the tooth referred to. It was however his contention that at most this amounted to carelessness, not "unprofessional conduct". He was found guilty of charge (a) but was found not guilty of charge (b). An order was made for him to be suspended from practice for two months but this was suspended for two years. He seeks to appeal against the finding of guilt on charge (a).

5. The ground of appeal is that:

"(1) The Respondent Dental Council was misdirected in law by its legal adviser in being directed that

(A) 'unprofessional misconduct', must now be understood and interpreted by the Respondent in the light of the decisions of Doughty v General Dental Council [1988] 1 AC 164 (PC) and Koo Kwok Ho v Medical Council of Hong Kong, unreported CA 23/88.

(B) that the principles in the decision in Felix v General Dental Council [1960] AC 704 (PC) were irrelevant or inapplicable to the Respondent's decision.

However, neither Doughty or Koo Kwok Ho are applicable to appeals before the Dental Council, as s 18(2) Dentists Registration Ord Cap. 156, provides its own definition of 'professional misconduct'. Both the cases of Doughty or Koo Kwok Ho turn on materially different legislation.

The legal advice given was a material misdirection in law. Further Felix continues to be directly applicable under s 18(2) Dentists Registration Ord Cap 156 and the legal direction to the contrary was erroneous in law."

6. "Unprofessional conduct" is defined in s 18(2) of the Dentists Registration Ordinance, Cap. 156 as being:

"(2) For the purposes of subsection (1), 'unprofessional conduct' （不專業行為） means an act or omission of a registered dentist which would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency."

7. At the conclusion of the dentist's counsel's submission to the inquiry the legal adviser to the respondent adjourned with the Board. When they returned the legal adviser said:

"I advised the Council that since the decision in Felix has changed, the public has a higher expectation of dentists and the statutory provisions have also changed. In the UK, in 1988 in Doughty v the General Dental Council the Court there considered what was then the appropriate allegation of serious professional misconduct and the court said that this was not to be construed as infamous or disgraceful conduct in a professional respect which had applied in Felix. The Court there said that serious professional misconduct was a wide expression, not restricted to dishonesty or moral turpitude but included all professional conduct, whether by acts of omission or commission by which a dentist had seriously failed to attain the standards of conduct which members of the dental profession expected. As I said, this was the situation in the UK. In Hong Kong the Dentist Registration Ordinance makes unprofessional conduct a disciplinary offence and also by section 18(2) says this means an act or omission of a registered dentist which would be reasonably regarded as disgraceful or dishonourable by a registered dentist of good repute and competency. In Hong Kong the Court of Appeal has said, albeit in relation to a Medical Council case, where the term used in their Ordinance is professional misconduct, 'save to observe that the Hong Kong Ordinance does not require the element of seriousness, we would respectfully adopt what was said in Doughty.'

And I advised the Council that the test now is simply whether the dentist's conduct has fallen short of the standard expected amongst dentists."

8. Mr McCoy SC for the dentist submitted that the advice which the legal adviser had given during the adjournment was in error. She had misstated the true legal position.

9. In Doughty v General Dental Council [1988] 1 AC 164 the court had based its deliberations upon s 27(1) of the Dentists Act 1984. This provides "(1) where the Professional Conduct Committee are satisfied that a registered dentist ... (b) has been guilty of serious professional misconduct, they may, if they think fit, determine that his name shall be erased from the register or that his registration in it shall be suspended for such period not exceeding 12 months as may be specified in their determination."

10. This section is in stark contrast to s 18(2). It does not include words indicative of moral turpitude such as "disgraceful" or "dishonourable".

11. It would appear from the transcript of the advice given by the legal adviser that she had been referring to Koo Kwok-ho v Medical Council of Hong Kong unreported, being CACV 23/88. We do not think this takes matters any further. That case concerned the inadequacy of the supervision of a nurse by a doctor. There was no question of there being moral turpitude of the type indicated in s 18(2).

12. In our view the advice given by the legal adviser was erroneous and as it related to the relevant standard of proof the finding of the Council cannot be permitted to stand. In his submission before us Mr Marshall SC for the respondent argued that it was necessary for us to consider the background to the Dentists Registration Ordinance and in particular the case law germane to the topic. We disagree. The words of s 18(2) are entirely clear. It is not necessary to go beyond them.

13. We would observe in passing that it would not appear to be a satisfactory procedure for a legal adviser to adjourn with the Board when it is deliberating upon the material which has been placed before it. The legal adviser should have made her submissions in public and thus have afforded the dentist's counsel an opportunity of commenting upon it.

14. This appeal is allowed. The dentist will have his costs of the appeal.

Representation:

Mr Gerald McCoy, SC (Messrs Johnson, Stokes & Master) for the appellant

Mr William R Marshall, SC and Miss Phyllis Wong, SGC (Secretary for Justice), for the respondent