Sin Chung Yin Ronald and Others v. The Dental Council of Hong Kong

CACV 149/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 149 OF 2013

(ON APPEAL FROM THE DENTAL COUNCIL OF HONG KONG

DISCIPLINARY INQUIRY PROCEEDINGS NO. DC 1190/9/H)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the Court):

Introduction

1.The appellants are all registered dentists and were charged with two charges of unprofessional conduct.  All of the appellants were convicted of the first charge which alleged that, being a director of Health & Care Dental Clinic Limited (“Health & Care”), they employed a Mr Jeremy Tung to perform dental services when he was no longer a registered dentist after his name has been removed from the General Register on 17 July 2008.  The second charge alleged that the appellants failed to take adequate steps to ensure that there was no unregistered person practising dentistry in the premises in which he practised dentistry.  In respect of this charge the 1^st, 3^rd and 4^th appellants were acquitted on a no case to answer and the 2^nd appellant was found guilty of unprofessional conduct in respect of this charge.

2.The hearing of the disciplinary inquiry under section 21 of the Dentists Registration Ordinance, Cap 156 (“DRO”) took place on 16 May, 22 May and 6 June 2013.  Having been found guilty by the Dental Council of Hong Kong the following punishments were imposed upon the appellants:

(i) in respect of Charge (i) the name of the 1^st appellant be removed from the General Registry for a period of 3 months and the names of the other three appellants be removed from the General Register for a period of 2 months;

(ii) in respect of Charge (ii) the name of the 2^nd appellant be removed from the General Register for a period of 1 month.

This removal order was ordered to run concurrently with the order made in respect of Charge (i).

3.By Notice of Appeal dated 12 July 2013 the appellants appeal against the orders of the Dental Council.

4.At the hearing of the appeal we dismissed the appeal and ordered that the appellants pay the costs of the appeal.  We said we would give our reasons for so doing at a later date and this we now do.

The Background to the Charges

5.The proceedings before the Dental Council did not involve the calling of any live evidence.  A Statement of Agreed Facts was tendered and by this document the appellants admitted the following:

(i) During the period from 17 July 2008 to 16 April 2010 the appellants were directors of Health & Care.

(ii) Mr Jeremy Tung was first included in the General Register on 5 August 2005 and started working for Health & Care on or about 8 August 2005.

(iii) Under his employment agreement with Health & Care Mr Tung was required to pay for his annual practising certificate and to provide a copy of the annual practising certificate to Health & Care upon request.

(iv) He duly applied for practising certificates for the years 2005, 2006 and 2007.  However, unknown to the appellants, and unknown to Health & Care, Mr Tung failed to apply for a practising certificate in 2008.  He was removed from the General Register on 17 July 2008.

(v) During the period of the charge Mr Tung continued to be employed by Health & Care and practised dentistry in its premises at Shop No. 3B & C, 2/F, Chanway Shopping Centre, 11‑17 Shatin Centre Street, Shatin and Shop G72, G/F, Phase 1, Tuen Mun Town Plaza, Tuen Mun.

(vi) Mr Tung was repeatedly asked by Health & Care staff to provide his practising certificate in 2008, 2009 and 2010.

(vii) The Human Resources Supervisor of Health & Care repeatedly requested Mr Tung to submit the renewed practising certificate to the company since 2008 but he failed to do so.

(viii) The receptionist of Health & Care asked Mr Tung many times in 2008 to submit his renewed registration certificate but each time Mr Tung said that he would submit it later.  The Senior Customer Relations Officer of Health & Care had on many occasions reminded Mr Tung to renew his practising certificate.

(ix) The Manager of Health & Care also asked for Mr Tung’s valid practising certificate.

(x) As soon as it was brought to the attention of the appellants on 16 April 2010 that Mr Tung had failed to maintain his annual practising certificate, they immediately suspended him from his duties and subsequently terminated his employment on 6 May 2010.

6.After the Council had ruled that there was no case to answer in relation to the second charge, other than for the 2^nd appellant, the defence solicitor then informed the Council:

“Thank you, Chairman. My instructions from the defendant dentists are, as I have previously advised, that they accept the facts of charge (i) as against all of them, and the facts of charge (ii) are accepted as against Dr. Chu.

Accordingly, the defence has no evidence to adduce and I have also been instructed not to make any submissions in regard to unprofessional conduct and to allow the Council to determine the matter. That is the defendants’ case, Chairman. Thank you.” [1]

In response to a query from the Chairman, the defence solicitor then confirmed that she was closing her case.

The Decision of the Dental Council

7.The Council noted that under section 12 of the DRO a body corporate carrying on the business dentistry must have a majority of its directors being registered dentists.  It said that this requirement “guarantees that the business of a dental company is under the control of registered dentists who are subject to the disciplinary control of the Dental Council, so as to protect the public from substandard dental services”.[2] It further noted that the four appellants constituted the majority of the dental company and were in direct control of its business.  As directors of the company they were directly responsible for the affairs of the company.  It referred to section 12 of the DRO which required a dental company to ensure that it employs only registered dentist to perform dental operations and must not permit any unregistered person to perform dental operations under its employment.

8.The Council then referred to the efforts of the appellants’ staff in repeatedly urging Mr Tung to renew his practising certificate and said of these efforts:

“… it was not sufficient for ensuring that its employee continued to be a registered dentist. The fact that they kept chasing repeatedly means that they knew he was practising dentistry without a valid practising certificate. This situation continued for 28 months from January 2008 to April 2010. This is entirely unacceptable.” [3]

9.The Council also referred to the requirement in section 12 of the DRO for a dental company to make an annual return to the Registrar of Dentists setting out, inter alia, all persons who perform dental operations in connection with the business of the company, stating the status of each of such persons.  It said that a dental company must verify the registered status of each person who performs dental operations before making the annual return in the prescribed form and that such a verification could be readily accomplished by having recourse to the General Register which is published on the website of the Dental Council.  From the fact that the appellants did not detect Mr Tung’s unregistered status earlier, the Council drew the inference:

“Obviously, the company did not make such verification, or if it did, it turned a blind eye to the fact that Mr Tung was no longer registered. In either case, the 4 Defendants as directors failed to fulfil this statutory duty to ensure that all persons employed to perform dental operations are registered dentists.” [4]

10.The Council then went on to note that under section 17 of the Code of Professional Discipline, a dental practitioner who becomes a director of a body corporate carrying on the business of dentistry accepts responsibility for any act or omission in the conduct of that business.

11.It then concluded that it was satisfied that “each of the 4 defendants has failed in his duty to ensure that all persons performing dental operations in the dental company are registered dentists”.[5] It said that by employing Mr Tung to perform dental operations when he was not a registered dentist, the appellants permitted an unregistered person to practise dentistry illegally in premises under the control of their company.  It then concluded that it was satisfied that “such conduct would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency” [6] and thereupon found each of the four appellants guilty of unprofessional conduct in respect of Charge (i).

12.The Council then went on to consider the position of the 2^nd appellant in respect of Charge (ii).  It noted that in respect of the charge period Dr. Chu practised in the same premises as Mr Tung on Fridays whereas Mr Tung practised there only on Tuesdays and Thursdays.  The Council then referred to section 27 of the DRO which provides that any registered dentist who practises dentistry in premises in which an unregistered dentist practises dentistry commits a criminal offence punishable with imprisonment for 6 months.  It said of this provision that it “imposes a positive duty on every registered dentist to ensure that there is no unregistered person practising dentistry in the same premises with him”.[7]

13.The Council also referred to the definition in section 2(2) of the DRO of “practise of dentistry” and also to the requirement imposed by section 14 of the Ordinance that each dentist exhibit his certificate of registration in a conspicuous place in any premises in which he practises dentistry.  This would have required the certificate of registration of Dr Chu and Mr Tung to be exhibited in the same clinic.  From this the Council drew the irresistible inference that Dr Chu was aware of the fact that Mr Tung was practising in the same clinic as himself.

14.The Council then referred to section 15.1 of the Code of Professional Discipline which provides that the dental practitioner should, in no way, countenance, help, encourage or assist, either willfully or by neglect, the practice of dentistry by an unregistered person.  It said of this requirement that it “imposes a professional duty on every dentist to ensure that every person practising dentistry on the same premises with him is a registered dentist”.[8]

15.The Council then concluded that Dr Chu had “failed his professional duty to ensure that all persons practising dentistry in the same premises with him are registered dentists” and that this conduct “would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency”,[9] thus constituting unprofessional conduct.  The Council, thereupon, found Dr Chu guilty of Charge (ii).

16.Moving on to the sentencing stage, the Council noted that all four appellants had previous disciplinary convictions arising out of charges in May 2001 (for the 1^st-3^rd appellants), and July 2002 (for the 4^th appellant) all in respect of irregularities relating to the operation of the same dental company.  Of these previous disciplinary convictions the Council said:

“Although the previous convictions were dissimilar to the present case, we must have regard to the fact that they were aware that there were irregularities in the operation of the dental company, and that they should have exercised particular care to ensure the proper operation of the company after the previous convictions.” [10]

17.In its consideration of the appropriate punishment for the first charge, the Council said that it was a serious matter to employ an unregistered person to perform dental services and that the four appellants, being directors of the dental company, “were under statutory duties to ensure that the company carried on the business of dentistry in compliance with the statutory requirements governing dental companies”.[11]

18.It said that the seriousness of employing Mr Tung while he was not a registered dentist was further aggravated by the following factors:

“(a) by providing facilities, premises and staff for the unregistered person to perform dental services, the dental company was in effect assisting him in his illegal practice of dentistry;

(b) patients would be given a false sense of security that the dental company would ensure that all persons performing dental services under its employment were properly registered dentists;

(c) since 17 July 2008 after he had ceased to be a registered dentist, he could not have been a licensee under the Radiation Ordinance for operating dental irradiating apparatuses;

(d) despite the fact that he was not on the General Register, the company signed new contracts with him on 8 August 2008 and 6 July 2009.” [12]

19.The Council then referred to the fact that the appellants had made admissions as to the facts during the preliminary investigation and in its inquiry, but said that any credit that they might receive for this conduct “has to be tempered with their last minute decision to contest the charges on Day 1 of the inquiry leading to an adjournment”.[13] It also reminded itself that the purpose of a disciplinary order is not to punish the appellants but to protect the public and maintain public confidence in the dental profession.  It then said that having regard to the gravity of the case and the mitigating factors it would make the orders which it imposed in respect of each of the appellants in respect of each of the charges.

20.Finally, it went on to consider whether the removal orders could be suspended but was of the view that this was not a suitable case for suspension “given the gravity of the case and the previous convictions involving the operation of the same dental company”.[14]

The Grounds of Appeal

21.The appellants appealed against both conviction and sentence.  In relation to conviction the appellants argue in respect of the first charge that the Dental Council erred in inferring that because the staff of the dental company kept chasing Mr Tung to provide his practising certificate, it meant that they knew he was practising dentistry without a valid certificate. It was also argued that it was procedurally unfair for the Dental Council to draw the inference that it did only on the basis of the Statement of Agreed Facts and that if the Dental Council thought that such an inference from the Statement of Agreed Facts was available to it then it should have canvassed with the parties the possibility of using its powers under section 19 of the DRO to require Health & Care’s staff members to attend and give evidence on the issue.

22.The second ground of appeal complains that the Dental Council erred in finding that the appellants as directors failed to fulfil their statutory duty to ensure that all persons employed to perform dental operations are registered dentists under section 12 of the DRO.  Under this ground of appeal it was argued that the Dental Council wrongly implied the existence of three duties under section 12 of the DRO, namely a duty on the directors of dental companies to ensure that only registered dentists are employed, a duty to verify the registered status of its dentists when compiling the annual return and a duty to guarantee the accuracy of the annual return.

23.The third ground of appeal complains that the Dental Council erred in finding that the appellants had permitted an unregistered person to practise dentistry illegally in premises under the control of the company and that such conduct constituted unprofessional conduct.  Under this ground the appellants argue that it is necessary to examine the actual conduct of each director in order to determine whether that director’s acts or omissions constitute unprofessional conduct.

24.The fourth ground of appeal argues that since the conviction is not based on actual knowledge by each director of the unregistered status of Mr Tung, it is necessary to examine the administrative systems that the appellants put in place and determine whether they fell below the standard that would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency. It is then argued that the Dental Council failed to sufficiently consider the gravity of the appellants’ personal conduct and to take into account the fact that the employment of Mr Tung, whilst unregistered, was due to human error only and not a culpable defect in the administrative systems that were in place.

25.The fifth ground of appeal is the only ground of appeal in respect of Charge (ii), which concerns the second appellant only.  This ground of appeal argues that the Dental Council erred in finding that the second appellant had failed his professional duty to ensure that all persons practising dentistry in the same premises with him are registered dentists and that his conduct underlying this charge is unprofessional conduct.  It is said that as the Dental Council’s finding was based on negligence it should have asked itself what more the second appellant could have done to assure himself that his colleague, Mr Tung, was qualified.

26.In relation to sentence the sixth ground of appeal complains that the Council should have imposed some other and lesser penalty on the appellants given their lack of personal knowledge of Mr Tung’s registered status.  It is pointed out that the reality of the removal orders is that because the appellants cannot apply for restoration to the General Register until the removal period has expired it will mean that they will be unable to return to practise for 4 to 6 months.

27.The seventh ground of appeal again emphasises a lack of personal knowledge by the appellants of Mr Tung’s unregistered status and complains that the Dental Council, by its reference to criminal provisions, may have not given appropriate weight to the fact that the appellants were unaware of Mr Tung’s unregistered status and were being disciplined only for administrative oversight by one of their employees.

28.The eight ground of appeal asserts that the Dental Council erred in having regard to the previous convictions of the appellants and using those previous convictions as a reason for not suspending the sentence of removal.

29.The ninth ground of appeal is simply that in the circumstances the sentences are manifestly excessive.

Discussion

30.Underlying the appellants’ case is a contention that dentists have no statutory or professional duty to ensure that an employed dentist maintains his registration by renewing his annual practising certificate.  If this is accepted then, it is said, a dentist, or a dentist director of a dental company, can only be guilty of unprofessional conduct if they knowingly employ an unregistered person or knowingly share premises with an unregistered person or are negligent about a dentist’s unregistered status.  The DRO, it is said, does not make directors of a dental company guarantors of registration.  Additionally, it is submitted, insofar as the Council drew inferences of knowledge, it erred in doing so as such inferences were not available from the Statement of Agreed Facts.

31.Specifically, in respect of Charge (i) the appellants say that it appears to be based on section 12 of the DRO but that this section provides a defence of lack of knowledge.

32.In order to address these arguments it is necessary to understand the statutory regime created by the DRO for the registration of dentists and how this regime is implemented by the establishment of a Dental Council of Hong Kong and the role given to it.

33.Under this regime the Council is given the duty of setting a Licensing Examination; appointing members to the Education and Accreditation Committee; maintaining, through the office of the Registrar, a General Register of dentists; issuing certificates of registration to persons registered as dentists, issuing, through the office of the secretary, annual practising certificates to registered dentists and holding disciplinary inquiries into any case referred to it by the Preliminary Investigation Committee of the Council.  In the preamble to the Dental Council’s “Code of Professional Discipline for the Guidance of Dental Practitioners in Hong Kong” the Council describes its role as:

“The Council is responsible for the registration of dentists, the conduct of the Licensing Examination, the maintenance of ethics, professional standards and discipline of the profession.”

34.The registration regime requires a dentist to be registered in the General Register and to hold an annual practising certificate before he can practise dentistry.  A number of offences are created to provide support for the registration regime and one such is section 25 which provides that if a person is unregistered and willfully or falsely pretends to be a dentist, takes or uses the name of dentist or implies he is a dentist, that person commits an offence.  Another is section 27 which states:

“Any registered dentist who practises dentistry in premises in which an unregistered person practises dentistry commits an offence and is liable on summary conviction to a fine at level 3 and to imprisonment for 6 months.”

35.It is also an offence under section 14(1) for a registered dentist not to exhibit in a conspicuous place in any premises in which he practises dentistry his certificate of registration.[15] Under subsection (2) it is an offence for a person to display a certificate of registration of himself when his name is not on the General Register.

36.Specific provision is made in section 12 of the DRO for a body corporate to carry on the business of dentistry.  The way section 12 is drafted it creates, in section 12(2), a general prohibition on any body corporate carrying on the business of dentistry in contravention of the section and any body corporate and every director or manager thereof so doing commits a criminal offence.[16]  However, in respect of directors and managers of the body corporate, subsection (2A) creates a defence of lack of knowledge of the offence committed by the body corporate.

37.Before leaving section 12, one other provision in subsection (3) should be mentioned.  This subsection imposes an obligation on every body corporate carrying on the business of dentistry to transmit to the Registrar in the first week of January each year “a statement in the prescribed form containing the names and addresses of all persons who are directors or managers of the company, or who perform dental operations in connection with the business of the company, and if any such body corporate fails so to do, it shall be deemed to be carrying on the business of dentistry in contravention of the provisions of this section”.  This obligation is clearly a very important one as criminal consequences flow from non-compliance with it.

38.The disciplinary provisions of the DRO empower the Council to make orders against registered dentists upon being satisfied of one of a number of different matters, one of which is that the registered dentist has been guilty of unprofessional conduct.  “Unprofessional conduct” is defined to mean “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”.

39.As previously mentioned, the Dental Council has prepared and promulgated a “Code of Professional Discipline for the Guidance of Dental Practitioners in Hong Kong” (“the Code”) in which it “sets out certain guidelines for the proper behaviour of dental practitioners. … It also sets out certain kinds of offences and of unprofessional conduct which may lead to disciplinary proceedings by the Council”.  This document does not purport to be a complete code of professional ethics or contain an exhaustive list of the acts or omissions which will constitute unprofessional conduct but it does refer to two broad kinds of conduct which its says are likely to be viewed as unprofessional.  Relevant to this appeal is the second kind which it describes as:

“The second is conduct, connected with the profession, in which the dental practitioner has fallen short, by omission or commission, of the standards of conduct expected among dental practitioners.”

40.Because “the question of whether any particular course of conduct amounts to unprofessional conduct, and the gravity of such unprofessional conduct and of any conviction, are matters which the Council will determine after considering the evidence in each individual case”,[17] the Code, necessarily cannot condescend to any detail in its discussion of what constitutes unprofessional conduct.[18] Nevertheless, certain of its provision assist in providing some flavour of what the Council expects of registered dentists.  For example, paragraph 1.8 is a section headed “Misleading and Unapproved Descriptions and Announcements” and in paragraph 1.8.1 it is said:

“In general the Council considers that any act or omission by a dental practitioner in connection with his practice which may mislead the public may be held to constitute unprofessional conduct.”

41.In the same section,  paragraph 1.8.4 provides:

“Where a dental practitioner no longer practises at the premises and his name forms part or the whole of the name of the practice, every dental practitioner who continues to practise in those premises is responsible to ensure that there is displayed in the waiting area of the dental surgery a notice that the former dental practitioner is no longer practising in the premises.”

This is an example of the Council imposing a responsibility on every dentist practising in a particular premises.

42.In section 15, which is concerned with the conduct of “covering” which is criminalised in section 27 of the DRO, the Code says in paragraph 15.1:

“The Council considers that a dental practitioner should in no way countenance, help, encourage or assist, either wilfully or by neglect, the practice of dentistry by an unregistered person.”

By use of the word “neglect” the Council is clearly extending the professional responsibilities of dentists beyond simply not knowingly engaging in the conduct proscribed by paragraph 15.1.

43.In respect of the responsibilities of a director of a body corporate practising dentistry the Council said in the Code that it wished it to be understood that such a dentist “accepts responsibility for the maintenance of a high standard of professional conduct in that … business and may be required to answer to the Council for any act or omission in the conduct of that … business which appears to the Council to be such as would, if attributed to an individual dental practitioner, constitute unprofessional conduct”.[19]

44.Against this backdrop of the statutory scheme of the DRO, we can see no legal reason why the Dental Council cannot quite properly regard as unprofessional conduct acts or omissions by a dentist which significantly undermine the effectiveness of the registration regime.  For the purpose of the disciplinary process it is for the Council to determine what professional responsibilities will be required of dentists and what standards will be set for them in the performance of those responsibilities.  No doubt the criminalisation of particular conduct will guide the Council in its deliberations on what professional duties it should impose on dentists and whether particular acts or omissions, in breach of those responsibilities, constitute unprofessional conduct.

45.If, within the context of the DRO and the registration regime it creates, the Council can reasonably adjudge that imposition on dentists of certain responsibilities will assist in ensuring the effectiveness of the registration regime and contribute to protecting the public from having dental services provided to them by unregistered dentists, then it is entitled to determine that a failure to comply with those responsibilities may, depending on the circumstances of the individual case, constitute unprofessional conduct.

46.Nor can we see any legal reason why, in determining whether such conduct is unprofessional conduct, the Council is confined to those activities criminalised by the DRO.  Thus, irrespective of how the criminal offences might be drafted, the Council is not to be limited to the mens rea requirements of those offences when determining what professional responsibilities it should impose on dentists for the purpose of setting the ethical standards of the profession.

47.Consequently, a clear distinction must be drawn between statutory duties that are an integral part of the registration regime, whether criminalized or not, and professional duties which are imposed by the Council in order to lend support, through the disciplinary process, to the registration regime.  By supporting the registration regime through the disciplinary process the Dental Council contributes to the goal of that regime of protecting the public and ensuring that only registered dentists subject to the control of the Council provide dental services to the public.

48.Such an approach explains much of the Council’s attitude to section 12 of the DRO.  Clearly, the Council is concerned that the exceptional way in which section 12 allows dental services to be provided, namely through an incorporated body, should not in any way undermine the registration regime or dilute its effectiveness.  Hence, its emphasis on the statutory requirement that a majority of the directors of the company be registered dentists, which it quite properly views as guaranteeing that “the business of a dental company is under the control of registered dentists who are subject to the disciplinary control of the Dental Council”.[20] Regarding these directors as “directly responsible for the affairs of the company” is quite uncontroversial and consistent with both the law and common sense.

49.In its decision the Dental Council said that under section 12 a dental company is required to ensure that it employs only registered dentists and must not permit an unregistered person in its employ to perform dental operations.  Whether this is a legally correct construction of section 12 is, in our view, beside the point.  The Council was not expressing a legal opinion on the meaning of section 12; rather it was expressing its understanding of the spirit and effect of section 12 for the purpose of determining what professional responsibilities should be imposed on dentists and whether a breach of those responsibilities could, depending on the circumstances, constitute unprofessional conduct.  In this respect it drew much support for its view from the duty contained in section 12(3) which requires a dental company to make an annual return to the Registrar of Dentists stating the names and addresses of all persons who perform dental operations in connection with the business of the company.  The Council has seen the provision of this return as not just some annual formality but rather as an important and integral part of the registration regime.

50.In our view it was entitled to do so for it is implicit that by the act of inserting a person’s name in the return the body corporate is warranting that such a person is a registered dentist.  Such a representation is crucial to the registration regime and should not be made without verification of the registered status of each person whose name is being included in the return. As the Council pointed out, making this verification is a very simple step as it is just a matter of accessing the General Register on the Dental Council’s website.

51.In the way the Council approached the statutory provisions of the DRO, and specifically section 12 of that Ordinance, we can find no fault in the Council’s conclusion that the appellants, as directors failed to fulfill their statutory duty to ensure that all persons they employed were registered dentists.  We can see nothing wrong in the Council concluding that directors of dental companies have a professional duty to ensure that only registered dentists are employed by the company, have a duty to verify the registered status of employed dentists in compiling the annual return and have a duty to confirm the accuracy of the annual return.  We see no merit in the second ground of appeal.

52.Mr Dykes drew our attention to a decision of the Privy Council in Faridian v General Medical Council [1971] 1 All ER 144 which concerned the liability of a medical practitioner for infamous conduct solely on the basis of his shareholding in a company which managed a clinic in respect of which acts of infamous conduct were alleged to have taken place.  The medical practitioners’ shareholding was such that he was able to exercise control over the company.  The Privy Council held that his failure to exercise the power to control the company when it was not shown that he had prior knowledge of what was done at the clinic or reason to suspect that it would be done, was not capable of being infamous conduct on his part.  In the course of delivering the opinion of the Board, Viscount Dilhorne said at pages 149g-150c:

“ On the other hand no one would contend that association with a company by the holding of some shares in it would make a doctor responsible for the acts of servants of the company and guilty of infamous conduct. Does it make any difference that his shareholding is sufficiently large to give him power to control the company?

…

In their Lordships’ view it cannot be said that the appellant acted disgracefully or dishonourably in failing to exercise his power by virtue of his shareholding to control Langham Street Clinic Ltd. If there had been any evidence that he knew that the four acts complained of would be perpetrated by those engaged in running the clinic or had any reason to suspect that they might be, the position would be different.

It may be said that a person so closely associated as the appellant was with the clinic at its inception, must do all in his power to prevent misconduct such as occurred in this case, and that, if he does not do so, he must have connived at or acquiesced in what was done and so is guilty of infamous conduct.  But in this inquiry the appellant was not charged with acquiescing or conniving at what was done and there was no investigation as to what steps, if any, were taken by him to prevent malpractices. His failure to exercise the power he had when it was not shown that he had any prior knowledge of what was done or reason to suspect that it would be done is not in their Lordships’ opinion, capable of being held to be infamous conduct on his part.”

These comments were said against the context of a code which placed emphasis on the association of a doctor with the company that advertised. (see page 149a-g)

53.Mr Dykes prays this decision in aid in support of his arguments that merely because the appellants are directors of the dental company they do not become, by virtue of that fact, and should not be made, guarantors of the registered status of the dentists they employ.  Nor should they be guilty of unprofessional conduct for employing such a person unless it can be shown that they had knowledge of the employed person’s unregistered status.

54.But, the question of what can be expected of directors of dental companies as a matter of law and what expectations can be made the subject of unprofessional conduct will always depend upon the statutory framework within which the regulatory body operates.  We have sought to demonstrate that the statutory scheme created by the DRO places a premium on the regulation of dentists through a licensing and registration scheme implemented by the Dental Council. Within this scheme the upholding of the standards of the profession and the protection of the public is achieved by ensuring that this scheme is effective in its operation and that no dentist escapes the regulatory scrutiny of the Dental Council.  Within this framework the provision of dental services through a body corporate is seen as an exception to the norm and the exception is deliberately crafted to ensure that it does not operate in a way which undermines the regulatory regime.

55.This is quite a different situation from that contained in the Faridian case and so we derive little assistance from the opinion of the Board in that case.  For the reasons we have adumbrated earlier in this judgment we are of the view that the statutory framework within which the Dental Council performs its regulatory functions entitles it to impose on directors of dental companies the duty to ensure that the dentists they employ are registered and to further entitle it to find that, in the circumstances of a particular case, a negligent failure to properly discharge this duty may constitute unprofessional conduct.

56.It is suggested by the first ground of appeal that the Council’s finding of unprofessional conduct may have been based on an inference that the appellants had knowledge of Mr Tung’s unregistered status.  This suggestion derives from that part of its decision where the Council said:

“The fact that they kept chasing repeatedly means that they knew that he was practising dentistry without a valid practising certificate.” [21]

57.This inference is immediately preceded by a reference to the efforts of the staff of the dental company to urge Mr Tung to renew his practising certificate. This inference is problematic as it would appear to be based on a misunderstanding of what was admitted in the Statement of Agreed Facts.  This document refers to the efforts of four of the staff and for three of them their efforts relate to obtaining from Mr Tung his renewed practising certificate.  It is only in respect of Ms Choy Mui, Senior Customer Relations Officer of Health & Care, that the Statement of Agreed Facts says that this person “had on many occasions reminded Mr Tung to renew his practising certificate”.[22]

58.However, even if this inference of knowledge was one which was not available on the evidence we are of the view that it is of no consequence.  We say this because the “they” in the quoted passage must be a reference to the staff and not the appellants and because it is clear to us that the finding of unprofessional conduct was not based upon proof of knowledge by the appellants of Mr Tung’s unregistered status.  For these reasons we find no merit in the first ground of appeal.

59.The Statement of Agreed Facts revealed that for a period of 28 months from January 2008 to April 2010, spanning two annual returns, the appellants employed a person, Mr Tung¸who did not have a practising certificate.  In terms of the administrative systems in place at Health & Care at the material time, this document merely described the efforts of various administrative staff of the dental company and did not reveal any specific actions by the appellants.

60.The appellants made a deliberate decision not to adduce any evidence to supplement the Statement of Agreed Facts.  That left the Council with no evidence from them in respect of what actions, if any, each of them may have taken in the administration of the company and particularly with regard to completing the annual return and ensuring the accuracy of its contents.  If the appellants wished to maintain that they had adequate administrative systems in place notwithstanding the obvious failure of those systems in the present case, then it was for them to place such evidence before the Council.

61.When it came to addressing the Council on the penalty the lawyer for the appellants referred the Council to the statement of Ms Fung Siu‑ling which we discuss later in this judgment.  For the reasons there set out we do not think that this statement provided any evidential basis for the Council to conclude that the appellants had put in place adequate administrative systems to ensure that unregistered persons would not be employed as dentists.

62.Not surprisingly, the Council concluded that the company must not have verified Mr Tung’s registered status when it completed these returns or, if it did, turned a blind eye to the fact that Mr Tung was not registered.  It then said that in either case, the appellants, as directors, “failed to fulfil their statutory duty to ensure that all persons employed to perform dental operations are registered dentists”.[23] The Council went on to say that the conduct of permitting “an unregistered person to practise dentistry illegally, in premises under the control of the company” [24] satisfied the test of unprofessional conduct.

63.It is apparent that this finding was not based on a factual finding that each of the appellants knew the unregistered status of Mr Tung.  The finding was only that they permitted him to practise dentistry whilst being unregistered and this finding is preceded by a finding that not verifying his status for the purpose of the annual return was a failure by them of their duty to ensure that persons they employed were registered dentists.  Furthermore, the finding of unprofessional conduct is preceded by a reference to section 17 of the Code of Professional Discipline which says that a director of a body corporate carrying on the business of dentistry accepts responsibility for any act or omission in the conduct of that business.

64.In our view, on the particular facts of this case, the finding that the appellants permitted Mr Tung to practise dentistry whilst unregistered was a finding that was open to the Council.  We find no merit in the third ground of appeal.

65.Given the approach the Council took to the scheme of the DRO and particularly section 12, we are of the view that it was open to the Council to find that this conduct, involving acts of omission by the appellants, in the circumstances presented to the Council, constituted unprofessional conduct.  It has long been recognised that bodies, such as the Dental Council, set up to regulate different professions are best placed to decide what standards are required of the professionals subject to their authority and what conduct should constitute professional misconduct.[25]

66.It is clear that the Council’s finding was a finding based on negligence.  Such a basis for a finding of unprofessional conduct is permitted by the law, but the negligence must be more than ordinary negligence and must rise to the level of “an elemental and grievous failure”. [26] Furthermore, “it is the nature of the conduct rather than the consequences that will dictate whether there has been a serious breach of professional standards”.[27]

67.Applying this test to the facts of this case as contained in the Statement of Agreed Facts, we are of the view that it was open to the Council to find unprofessional conduct merely on the basis of permitting Mr Tung to practise dentistry through a failure by the appellants to properly discharge their statutory duties.  This was a failure, as we have mentioned, that continued over 28 months and encompassed two annual returns.  It totally undermined the registration regime and was at the most serious level of non-wilful conduct.  The appellants took all the benefits that went with operating a dentistry business through a body corporate but failed to properly discharge their responsibilities that accompanied such a form of practice.  In convicting the appellants of non-wilful conduct the Dental Council, in our view, had a correct appreciation of the gravity of the appellants’ conduct.  We can see no reason for concluding that it applied the wrong test.  There is no merit in the fourth ground of appeal.

68.The fifth ground of appeal concerns the second appellant only and relates to charge (ii) which deals with his conduct in practising dentistry in the same premises as Mr Tung.  We have already explained why, in our view, it is open to the Council to conclude that professional responsibilities, enforced through the disciplinary process, should be imposed on dentists in order to provide support for the statutory based registration regime.  Its own Code specifically informs dentists that the Council considers that a dental practitioner should in no way, inter alia, countenance by neglect the practice of dentistry by an unregistered person.

69.It is hardly surprising in the light of this warning that the Council would view this appellant’s conduct, as a director of the dental company, as constituting unprofessional conduct.  Whether the Council would have found the second appellant guilty of unprofessional conduct had he not been a director is another matter.  But, that he was a director was clearly a key reason for the Council’s finding for it recognized that there was an overlap in the second appellant’s culpability for the second charge with his culpability for the first charge. Hence, its order that the removal of the second appellant from the General Register for the second charge run concurrently with its removal order in respect of the first charge.

70.Mr Dykes asked rhetorically what more the second appellant could have done?  The answer to this question is the same in respect of the first charge. He could have properly discharged his duties as a director of the dental company in respect of the professional staff of the dental company and ensured that no unregistered person was employed by the dental company to practise dentistry.  Had he done this he would not have ended up practising dentistry in the same premises as an unregistered person.  We see no reason why the Council cannot properly reach such a view.  We find no merit in the fifth ground of appeal.

71.The remaining grounds of appeal concern the penalties imposed on the appellants.  The grounds argue that the penalties are excessive because:

(i) the appellants lacked knowledge of Mr Tung’s unregistered status;

(ii) the Council equated the appellants’ conduct to assisting Mr Tung practise dentistry illegally; and

(iii) the Council placed undue weight on the previous convictions of the appellants.

72.We do not agree that the Council in determining an appropriate penalty for the appellants’ conduct failed to take into account, or give proper weight to, the fact that the appellants did not know of Mr Tung’s unregistered status.  Their conviction was, after all, predicated on a lack of knowledge. But, this lack of knowledge was, in the circumstances of this case, hardly a mitigating feature.  The only reason the appellants did not know of Mr Tung’s unregistered status was because of their egregious failure to take seriously their obligation to ensure they did not employ an unregistered dentist.  It was this total failure, over such a lengthy period of time, to take seriously their professional obligations that led to the finding by the Council that their neglect constituted unprofessional conduct.

73.Nor was there a basis for the Council to find that the appellants had put in place adequate administrative systems to prevent the dental company employing an unregistered dentist and that the incident involving Mr Tung was simply a failure, through human error, in the implementation by non-professional staff of these otherwise adequate administrative systems.  On this issue the only evidence to which the Council was referred was the statement of Fung Siu-ling.  She took responsibility for not informing the 1^st appellant of problems in obtaining from Mr Tung a copy of his annual practising certificate.  But, an occasional query from the 1^st appellant of Ms Fung as to whether there were any problems was hardly an adequate administrative system for ensuring that the dental company did not employ any unregistered persons as dentists.  The lie was given to the adequacy of the administrative system by the fact that immediately after this incident a proper administrative system was implemented.  Ms Fung explained:

“After the incident had taken place, the management immediately convened a meeting for a review and formulation of new regulatory measures. For instance: it was decided that in late December of each year, a demand to all doctors for renewal of licences would he made by way of a notice and it has been clearly stated in the code of conduct for the doctors [and] staff that all doctors must provide copies of their licences to the company on or before 31 March every year, failure of which, the doctor must be suspended from all his duties with immediate effect until his submission of the relevant documents, after which his duties could be resumed.” [28]

There is nothing in this ground of appeal.

74.Nor is there anything in the complaint contained in the eighth ground of appeal that the comment by the Council that the appellants were “in effect assisting him in his illegal practice of dentistry” wrongly elevated the culpability of the appellants to the criminal level.  The Council was not saying that the appellants knowingly intended to assist Mr Tung practise dentistry illegally; rather it was saying that, by providing Mr Tung with facilities, premises and staff, the effect of the appellants’ actions was to assist Mr Tung to practise dentistry illegally.  That is a perfectly accurate description of the consequence of their failure to discharge their professional responsibilities.

75.We cannot detect, therefore, any error by the Council in its assessment of the seriousness of the unprofessional conduct and the culpability of the appellants in respect of it.  In deciding whether the Council’s determination that the appellants should be punished by a removal order was excessive and disproportionate or was appropriate and necessary in the public interest, we are conscious that there is now a less restrictive and less deferential approach to the review of a disciplinary tribunal’s findings.[29] Nevertheless, there are still good reasons to accord an appropriate measure of respect to the judgment of the Dental Council for, to adopt the words of the Privy Council in Evans v General Medical Council (unreported) 19 November 1984, this Court does not have the advantage of being familiar with the whole gradation of seriousness of the cases of various types of unprofessional conduct which come before the Dental Council which is particularly well qualified to say at what point in that gradation removal from the General Register becomes the appropriate sentence.  This Court “does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purposes of maintaining professional standards.” [30]

76.The ninth ground of appeal complains that the Council erred in having regard to the previous convictions of the appellants or placed undue weight on them and particularly in regard to the question of whether the operation of the removal orders should be suspended.  It is true, as the appellants submit, that these prior disciplinary convictions were both dated and wholly unrelated in nature to the unprofessional conduct for which they are now being punished.  At the very highest they may be said to evidence past involvement in operational irregularities of a comparatively minor nature.  The Council seemed more concerned that the appellants had not learned from the earlier experience to take their professional responsibilities more seriously.

77.We feel there is some substance to the appellants’ complaint.  Whilst we cannot say that the Council should have completely ignored these previous convictions, we do not feel that it should have accorded them much weight. However, it does not seem to us that the Council allowed them to have a meaningful influence on its determination of the appropriate penalty and on whether the operation of that penalty, the removal orders should be suspended. When the reasons of the Council are read as a whole it is clear to us that what is influencing the Council is its assessment of the seriousness of the appellants’ conduct.  It refers to the employment of an unregistered person to perform dental services as a “serious matter” [31] and then sets out four matters which it says further aggravates the seriousness of the appellants’ unprofessional conduct.[32]  Then, when determining the penalties it says it does so “Having regard to the gravity of the case”.[33]

78.When deciding whether to suspend the operation of the removal orders, the Council said:

“We are of the view that this is not a suitable case for suspension, given the gravity of the case and the previous convictions involving the operation of the dental company.” [34]

79.We do not think that, in view of the marginal relevance of the previous convictions, the Council should have had regard to them on the issue of suspension.  But, ultimately we do not think that its inappropriate reference to them is of any consequence.  The reason we say this is because this was never a case where the previous convictions could or would have tipped the balance in favour of not suspending the operation of the removal orders.  Because of the gravity of the appellants’ conduct this was never going to be a suitable case for suspension.

Conclusion

80.For these reasons we dismissed the appeals against both conviction and sentence.

Mr Philip J. Dykes SC, instructed by Howse Williams Bowers, for the appellants

Ms Juliana Chow, instructed by Secretary for Justice, for the respondent