HCAL 42/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 42 OF 2012
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BETWEEN |
| | DR. CHAN SZE LAI, JACQUELINE | Applicant |
and |
| | THE DENTAL COUNCIL OF HONG KONG | Respondent |
| | THE UNIVERSITY OF HONG KONG | Interested Party |
____________
| Before: Hon Ng J in Court |
| Dates of Hearing: 19 – 20 March 2013 |
| Date of Judgment: 7 November 2013 |
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J U D G M E N T
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Introduction
1. On 30 November 2010, Dr Chan Sze Lai, Jacqueline (“Dr Chan”), a registered dentist in Hong Kong, was awarded the degree of MSc (Implant Dent) ie Master of Science in Implant Dentistry (“the Degree”) by the University of Hong Kong (“HKU”). On 1 December 2010, Dr Chan submitted an application to the Dental Council of Hong Kong (“Council”) requesting it to enter her new qualification on the General Register of Dentists maintained under section 7(1) of the Dentists Registration Ordinance, Cap. 156 (“DRO”).
2. The Council decided to reject Dr Chan’s application (“the Decision”) and made it known to her in a letter dated 6 January 2012 (“6 January letter”). The reasons given by the Council were that:
“(a) The qualification failed to meet the requirement set out in point (3)(ii) of the [Guideline for the Registration of Additional Qualifications implemented in May 2001] (“2001 Guidelines”)… Although the qualification was stated to be a master degree, the 2-year part-time programme was actually pitched at the standard of diploma level.
(b) It would be highly misleading to the public and improper for registered dentists to quote a qualification at the diploma level as a master degree.”
3. Paragraph (3) of the 2001 Guidelines issued by the Council provided that post-basic dental qualifications which reflected acquisition of additional knowledge and skills were eligible for registration. The criteria for vetting included inter alia at (3)(ii) “the course content is clearly defined and of the standard deemed appropriate.”
4. By a further letter dated 16 February 2012 to Dr Chan’s solicitors (“16 February letter”), the Council reiterated that the reasons for the rejection were as stated in the 6 January letter. The Council further explained as follows:
“The Council noted that the University of Hong Kong offered two master programmes in implant dentistry: the 2-year part-time ‘Master of Science in Implant Dentistry’; and the 3-year full-time ‘Master of Dental Surgery in Implant Dentistry’. The former was aimed at basic implant training, whereas the latter was aimed at advanced implant training. Having carefully evaluated the contents of the part-time training, the Council considered the dental training provided by the former programme to be at diploma but not master degree level.
The title ‘Master of Science in Implant Dentistry’ will mislead the public to believe wrongly that a dentist holding the qualification has clinical competence in implant dentistry at the master degree level, when in fact he/she has received only basic training in implant dentistry.
The Council has a duty to protect the public and to ensure that only qualifications properly reflecting the dental competence of registered dentists are entered in the General Register. Qualifications which may confuse or mislead the public cannot be entered.”
5. The effect of the Decision was that Dr Chan could not publicize the Degree to her patients or potential patients without being at risk of breaching the Code of Professional Discipline for the Guidance of Dental Practitioners in Hong Kong (“the Code”) and being liable to disciplinary proceedings.
6. This was Dr Chan’s application for judicial review of the Decision. By way of relief, Dr Chan sought:
(a) An order of certiorari to quash the Decision.
(b) An order of mandamus directing the Council to determine forthwith her application to enter the Degree on the General Register and on the List of Quotable Qualifications in accordance with the decision of this court.
7. Dr Chan put forward two grounds for challenging the Decision:
(a) There was no evidential basis for the Decision (“First Ground”).
(b) In making the Decision, the Council failed to take into account relevant considerations, the most prominent of which was Dr Chan’s constitutionally guaranteed right to freedom of expression, and took into account irrelevant considerations (“Second Ground”).
8. Dr Chan’s application was supported by HKU.
The Statutory and Regulatory Framework
9. The Council is a statutory body established under section 4 of DRO. The statutory functions of the Council are varied. They include regulating the registration of dentists, conducting licensing examinations and maintaining ethics, professional standards and discipline in the dental profession: sections 4A, 9 and 18 DRO.
10. Under section 7 of DRO, the Registrar of Dentists (“the Registrar”) is responsible for the maintenance and custody of a General Register and a Specialist Register of dentists.
11. Section 13 of DRO provides that the Registrar shall prepare and publish in the Gazette a list of the names, registered addresses, qualifications and dates of the qualifications of all persons whose names appear on the General Register.
12. Section 15 of the DRO provides that the Registrar shall from time to time insert in the General Register any alteration or addition which may come to his knowledge in the name, registered addresses or qualifications of any person registered.
13. Reg. 10 of the Dentists (Registration and Disciplinary Procedure) Regulations, Cap.156A (“the Regulations”),provides that a registered dentist may apply to the Registrar to have inserted in the General Register or Specialist Register any degree or qualification recognized by the Council, in addition to any degree or qualification already entered on the Register. On receipt of such application, the Registrar shall refer it to the Council which, after such inquiry as it may consider desirable, shall direct the Registrar either to enter or to refuse to enter such degree or qualification on the Register.
14. In order to avoid confusion to the public and to assist the public to make an informed choice of dentists, the Council had decided to regulate the quoting of qualifications by dentists in their communication of service information to the public e.g. on signboards, stationery, telephone directories and so on. For that purpose, the Council had established a List of Registrable/Quotable Additional Qualifications (“the List”) to include only those qualifications which, in their view, were of an acceptable standard and reflected significant improvement to the dentist’s professional competence over and beyond his basic training (“Quotation Qualification”).
15. Principle 1.3 of the Code restricts the dissemination of service information to the public. In particular, the Code restricts the publication of a dentist’s qualifications to only those included in the List.
16. The Council’s Education and Accreditation Committee (“EAC”) is a statutory committee established under section 5B of DRO. It was at the material time in charge of considering applications by practising dentists to register additional qualifications and making recommendations to the Council on the acceptability of the additional qualifications.
Inception of the Degree Program
17. At the risk of stating the obvious, HKU is a qualified self‑accrediting operator under the Accreditation of Academic and Vocational Qualifications Ordinance, Cap. 592 (“Accreditation Ordinance”). That means HKU is empowered to determine whether a learning program it offers fulfills the necessary requirements of a particular academic qualification, be it an undergraduate or postgraduate degree, diploma or certificate. Also at the risk of stating the obvious, the Council is not such a qualified self-accrediting operator under the same Ordinance, at least as far as academic qualifications are concerned.
18. HKU’s Faculty of Dentistry (“Faculty”) first introduced the Degree program in the academic year commencing September 2006. It was a taught two-year part-time program and was one of several taught post‑graduate programs offered by the Faculty. Professor Chow Tak Wah (“Professor Chow”), an Associate Dean and a Clinical Professor at the Faculty, was its inaugural program director.
19. As far as taught post-graduate programs were concerned, the Faculty offered programs in various disciplines of dentistry leading to degrees in (1) Master of Science (“MSc”) and (2) Master in Dental Surgery (“MDS”). Generally speaking, the duration of MDS programs was longer than MSc programs and in terms of the training offered the MDS programs were likely to be perceived to have been set at a higher standard.
20. Prior to obtaining approval for its introduction, the Degree program had to comply with all the requirements set by the Faculty and the University itself, including inter alia the Broad Guidelines for the formulation of proposals for new academic programs and services (“Broad Guidelines”) issued by HKU’s Academic Development Committee (“ADC”). As an illustration of how elaborate and stringent the process was, the draft program proposal for the Degree course had to be and was circulated to the following bodies for deliberation and approval:
(a) At the Faculty level:
(i) the Executive Committee;
(ii) the Board of Taught Postgraduates Studies;
(iii) the Board.
(b) At the University level:
(i) the ADC;
(ii) the Senate;
(iii) the Council;
(iv) the Court.
21. The ADC of the University considered the draft programme proposal in two meetings in March and May 2006. At the second ADC meeting, the Vice-Chancellor and Chairman of the ADC, Professor Lap‑Chee Tsui, together with other members who were leading academics of HKU, resolved to recommend the proposed program for submission to the Senate, the Council and the Court for approval. Approval was eventually granted and the Degree program was duly introduced in September 2006.
The First Ground
Legal principles
22. Before I examined the facts, it would be appropriate to remind myself briefly of the relevant principles on which a court should act in judicial review proceedings when a challenge is made to a decision based on findings of fact.
23. The court in judicial review proceedings is not a court of appeal: an application for judicial review is not a procedure for advocating some form of disguised appeal. It is not for the court to evaluate the evidence or make disputed findings of fact:So Chung v Commissioner of Correctional Services, unrep. HCAL 2438 of 2000, 31 January 2001, at pp. 18 - 19 (per Hartmann J as he then was).
24. The court may and often do judicially review a public body’s decisions predicated upon factual errors. In so doing, the court is exercising its supervisory, rather than appellate, jurisdiction over the body entrusted by statute with the decision-making power: De Smith’s Judicial Review 6th Ed. paras. 11-047, 11-048 & 11-052; Incorporated Owners of Wah Kai Industrial Centre v Secretary for Justice [2000] 2 HKLRD 458 at 469 (per Peter Cheung J as he then was).
25. As Lord Wilberforce said in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 at 1047:
“If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been upon a proper self‑direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If those requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge.”
26. For the present purpose, errors of fact mean there is no evidence for a particular finding upon which a decision depends or where the evidence taken as a whole is not reasonably capable of supporting the finding of fact. As the editors of Wade and Forsyth Administrative Law 10th Ed. p 229 put it:
“No evidence does not mean only a total dearth of evidence. It extends to any case where the evidence, taken as whole, is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence.”
27. The court should exercise proper judicial restraint when the decision of a public body is criticised for its conclusion of fact or fact and degree. The court cannot and should not substitute its own findings of fact for those of the decision-maker if there is evidence to support the findings - questions as to the weight to be given to a particular piece of evidence are for the decision-making body and not the court: R v Director General of Telecommunications ex parteCellcom Ltd. [1999] ECC 314 at para. 26 (per Lightman J);Runa Begum v Tower Hamlets LBC [2003] 2 AC 430 at para. 99 (per Lord Millet).
28. The court should give appropriate weight and measure of respect to the fact that a specialist tribunal is entitled to apply its own knowledge and expertise when considering the evidence and making factual findings: R v Director General of Telecommunications ex parteCellcom Ltd. [1999] ECC 314 at para. 26 (per Lightman J);Dr To Chun Fung Albert v The Medical Council of Hong Kong, unrep, CACV 23 of 2011, 22 December 2011 at para. 26 (per Tang VP, as he then was).
29. Findings of facts involving a broad spectrum ranging from the obvious to the debatable to the just conceivable are best left to the public body to whom statute has entrusted the decision-making power, save in a case where it is obvious that the public body, consciously or unconsciously, is acting perversely: R v Hillingdon London Borough Council, ex parte Pulhoffer [1986] 1 AC 484, 518 (per Lord Brightman).
The facts
30. As noted above, it took the Council more than a year after Dr Chan’s application to come to the Decision. During that period, a number of meetings of the EAC and the Council itself were held in which the issue of whether to recognise the Degree as a Quotable Qualification was discussed.
31. Three meetings were of particular relevance to the present discussion: an EAC meeting held on 30 June 2011 (“June EAC meeting”), another EAC meeting held on 30 September 2011 (“September EAC meeting”) and lastly, a meeting of the Council held on 13 October 2011 (“October Council meeting”).
32. At the October Council meeting, two sets of important documents were placed before the Council members.
33. First, Council Paper DC/65/11 (“Council Paper”).
34. Paragraph 3 of the Council Paper referred to the discussions at the June EAC meeting. Professor Cheung Lim-kwong of HKU (“Professor Cheung”) was present at this meeting. Professor Cheung was at that time a member of the EAC nominated by HKU.
35. It was the Council’s case that Professor Cheung had informed the EAC members at that meeting that the Degree program used to be a diploma course and suggested that, if the EAC had concern about the title of the program and took the view that it should be a diploma course instead of a master course, the EAC should consider referring its concern to the HKU.
36. Paragraphs 5 and 6 of the Council Paper referred to the findings and recommendation of the EAC at the September EAC meeting.
37. It was found by the EAC that the Degree program did not meet point (3)(ii) of the 2001 Guidelines in that, while implant dentistry implied a clinical specialty, the course content of the Degree program was research‑oriented. Further, the Degree was within the realm of a diploma level, rather than a master level in a clinical domain. Lastly, the additional clinical knowledge gained from the Degree program was far inferior to the 3‑year full–time program of MDS in Implant Dentistry organized by HKU. The EAC therefore decided to recommend to the Council to reject all applications for registration of the Degree as a Quotation Qualification. At that time, there were a total of 30 such applications, no doubt including that of Dr Chan.
38. Second, a letter dated 12 October 2011 (“Dean’s Letter”) from the Dean of the Faculty Professor Samanarayake (“the Dean”) and its three enclosures: the Board guidelines which showed the system that was in place when the Degree program was launched, the syllabuses of the program (“Syllabuses”) which showed the components of the program, the description of the components and time allocation, and the regulations for the Degree (“DegreeRegulations”) setting out the structure of the curriculum and the assessment approaches.
39. After deliberation, the members at the October Council meeting endorsed the recommendation of the EAC and decided not to approve the Degree as a Quotation Qualification. The minutes recorded the reasons as follows:
“19. Dr George Lau said that the EAC found that the 2-year part‑time MSc(Implant Dent)(HK) was pitched at diploma level instead of master degree level, therefore the title of “master” did not match the level of training. The additional clinical knowledge gained from the training was far inferior to master degree level, in particular when it was compared with the 3-year full-time “Master of Dental Surgery in Implant Dentistry” also offered by the Faculty. The syllabus of the programme enclosed with the letter dated 12 October 2011 from the Dean of the Faculty (tabled at the meeting) also reflected that the surgical aspects of the clinical training were not up to the standard of a master degree. For example, “Emphasis is placed on practical training in diagnosis and treatment planning...” under “Course Modules” and “Hands-on surgical techniques will be taught in the Simulation Laboratory … Live surgery will be … demonstrated … with the aid of modern audio-visual equipment” under “Surgical Aspects of Implantology” showed that the surgical skills were taught by using dental models. It was inappropriate for the programme to be quoted as a master degree. The EAC thus decided to recommend to the Council to reject the applications.
20. The Chairman said that the major concern was that quoting or registering the qualification would give a misleading message to the public that the dentists concerned had acquired skills in implantology at master degree level. However, the amount of clinical training of MSc(Implant Dent)(HK) was insufficient for master degree level. Dr Franklin Chan concurred that clinical and surgical trainings were essential for a master degree in a clinical field.”
40. As stated in the 6 January letter, the Decision was solely and squarely premised on (1) a finding of fact ie the Degree was pitched at the diploma level and (2) the opinion of the Council that it would be highly misleading to the public and improper for registered dentists to quote a qualification pitched at the diploma level as a master degree.
41. As far as the opinion part was concerned, there was nothing untoward about it. In the view of this court, it would be highly misleading to the public to quote an academic qualification pitched at the diploma level as a master degree. Equally, it would be improper for registered dentists to mislead the public in that way, or in any other way. But regardless of the view of this court, the opinion was one which the Council was entitled to hold and it would be wrong for this court, exercising its supervisory jurisdiction, to intervene.
42. The real question was whether the finding of fact ie the Degree was pitched at the diploma level was supported by evidence.
43. If there was simply no evidence to support the finding or if the evidence relied upon by the Council, taken as a whole, was not reasonably capable of supporting the finding, this court would be entitled to intervene and quash the Decision. It would not be open to the Council to argue that there was another basis for suggesting that the public might be misled by the title of the Degree and the Decision should be affirmed on such a basis: R(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 365 [70]:
“…in principle a decision-maker who gives one set of reasons cannot, when challenged, come up with another set.”
44. In his skeleton submissions, Mr Ismail, for the Council, referred this court to the Council Paper, the minutes of the three meetings in question in particular what Professor Cheung said in the June EAC meeting, and the enclosures to the Dean’s Letter. It was submitted that the Council had considered these materials and there was ample evidential basis for the decision not to approve the Degree as a Quotation Qualification, and hence the Decision.
45. At the hearing, upon the invitation of this court to identify the evidential basis of the Council’s finding of fact that the Degree was pitched at the diploma level, Mr Ismail took this court to the minutes of various meetings of the ADC and the Council including those of the three meetings. The exercise took up a considerable amount of time but did not take the matter any further. This was because while the minutes had recorded, accurately or otherwise, the views expressed by the members attending the EAC or Council meetings, they revealed very little of the evidential basis in support of such views or the decision to disapprove the Degree.
46. I would start with the minutes of the June EAC meeting paragraphs 8 to 13 of which recorded as follows:
“8. Prof. CHEUNG Lim-kwong explained that HKU offered the master degree programme in response to the need of the profession to enhance professional knowledge. He referred members to the tabled printouts of the website of the Faculty of Dentistry which contained elaborations of the “Master of Science (Implant Dentistry)” and “Master of Dental Surgery (Implant Dentistry)” in layman terms in both Chinese and English. The public could refer to website for details of the two qualifications. He further pointed out that if the master degree was not quotable or registrable with the Dental Council, HKU might consider not continuing to organize the course.
9. Dr David HO was of the view that the similarity of the titles of the two master courses would surely cause confusion to the public. He also opined that CDSHK’s reply did not mention the standard of training required for performing simple and advanced implant surgery.
10. Prof. CHEUNG said that the Master of Science was used to be a diploma course. It changed into a master degree course because HKU had to upgrade all diploma courses to master degree courses in response to the University Grants Committee’s policy requirement. He suggested that should the EAC had concern about the title and was of the view that it should be a diploma course instead of a master of science, members could consider referring the concern to HKU for their consideration to change the title in subsequent courses. (emphasis added)
11. Dr YUNG and Dr LEUNG were of the view that it was more appropriate for DA to write to HKU to ask them to rename the qualification.
12. The Chairman opined that according to the guidelines and the reply from CDSHK, the master degree should be recommended to the Council for approval. As members concerned that the field of study “Implant Dentistry” might mislead the public that holders of such qualification were specialists in the field, members might consider recommending it to the Council for approval but the field “Implant Dentistry” should not be quoted.
13. After long discussion, members decided to recommend the qualification to the Council for approval, without quoting the field ‘Implant Dentistry’.”
47. The web page referred to in paragraph 8 of the minutes set out in layman terms the description of the two degree programmes as follows:
“The Master of Science degree in Implant Dentistry is a 2-year part-time postgraduate programme that provides structured clinical training in the fundamentals of implant dentistry. It allows local dentists who have worked in general dentistry for several years to be able to introduce dental implants into their daily practice. The programme focuses on straight-forward cases of implant therapy, such as the replacement of single back-teeth, and deals with all treatment aspects (diagnosis, treatment planning, surgical techniques, and prosthesis construction and maintenance). The dentist will be able not only to perform comprehensive treatment planning and recognise difficult cases, but also to provide maintenance therapy and cope with complications that may arise. This course provides a good grounding for further training to manage advanced and complex cases.
The Master of Dental Surgery degree in Implant Dentistry is a 3‑year full-time postgraduate programme that is designed for international and local dentists who already have some practical experience in implant dentistry. Dentists will achieve the level of competence needed to tackle advanced and complex cases, as well as to install and reconstruct implants as an integral part of implant therapy irrespective of the level of difficulty. The programme includes training in performing advanced procedures such as building more jaw-bone before installing implants to replace front-teeth and upper-teeth. Also provided is training in treatment evaluation and treatment planning for complex cases, and in coping with technical and biological complications that can arise during implant maintenance of complex cases.”
48. After the June EAC meeting, there was in fact an extraordinary meeting of the Council held on 4 August 2011. The minutes of that meeting recorded that:
“ 4. The Chairman pointed out that although the Education and Accreditation Committee (“EAC”) recommended approval of the applications, the draft minutes of the EAC showed that EAC members who had expressed their views were generally not supportive of the applications. He was of the view that the profession’s concern must be addressed and suggested to refer the matter back to the EAC for further consideration….
6. Dr George Lau, Chairman of the EAC, said that when the qualification “Master of Science in Implant Dentistry, University of Hong Kong” was considered by the EAC at its meeting on 30 June 2011, most EAC members who spoke were not in favour of the qualification. The EAC decided to recommend approval of the applications, on condition that the qualification be quoted as “Master of Science” without reference to “Implant Dentistry”. The recommended condition was not accepted by the Council at the 138th Policy Meeting, for the reason that in law the Council had no authority to change or abridge the title of the qualification. The EAC was not aware of such legal restriction at the time it made the recommendation, and would further consider the applications if they were referred back to the EAC….
9. Prof. L P Samaranayake explained that HKU’s Faculty of Dentistry (“Dental Faculty”) offered two master degrees in implant dentistry: (i) Master of Science in Implant Dentistry (2‑year part-time); and (ii) Master of Dental Surgery in Implant Dentistry (3‑year full-time). As the main concern was that the public might not be able to differentiate between the two degrees, the Dental Faculty had accepted the EAC’s suggestion to publish the course descriptions on its website for the public’s reference. According to CDSHK’s guidelines on implant dentistry, Master of Science graduates could handle simple implant cases, and Master of Dental Surgery graduates could handle advanced and complex implant cases.”
49. Next, the relevant extracts from the minutes of the September EAC meeting are these:
“9. After going through all information available including the information gathered and material submitted by the applicants and taking reference from the discussions of previous EAC meetings, Members found that …the standard of the course content of [the Degree] failed to fulfill point 3(ii) of the 2001 Guidelines….
10. Members were of the view that the qualification was within the realm of a Diploma degree rather than a Master degree in a clinical domain. Besides, while the implant dentistry implied a clinical specialty, the course content of MSc(Implant Dent) devoted a research oriented programme. It was also found that the additional clinical knowledge gained from the course was far inferior in comparison to the three-year full time Master of Dental Surgery in Implant Dentistry [MDS(ImplantDent)] offered by the same institute in the same clinical field.
11. In view of the above, the meeting decided to recommend the Council to reject the applications.”
50. Lastly, the minutes of the October Council meeting the relevant parts of which had already been recited at paragraph 39 above.
51. From this survey, it could be seen that apart from (1) what Professor Cheung had said in the June EAC meeting (2) the Dean’s Letter and its enclosures and (3) the views expressed by members at the various EAC and Council meetings, the Council had pointed to no other evidence which supported its finding of fact that the Degree was pitched at the diploma and not master level.
52. Concerning what he had said in the June EAC meeting about the Degree program having previously been a diploma course, Professor Cheung did not dispute the accuracy of the minutes as such – just that he might have confused the Degree program with some of the then existing diploma courses offered by the Faculty e.g. Postgraduate Diploma in General Dentistry which was indeed elevated to become a master degree. However, Professor Cheung was adamant that he had never been asked, at the June EAC meeting or any other meeting, whether the Degree was pitched at the standard of diploma level and he had never expressly or impliedly accepted that as a fact.
53. Whether or not Professor Cheung had been confused or had conveyed a confused message to members of the EAC, the undisputed evidence from the Dean, Professor Chow and Professor Cheung himself was that the Faculty had never run a diploma course in Implant Dentistry, the Degree program was never formerly a diploma course and there was no question of it having been upgraded. Right from the beginning, it was the intention of the Faculty to introduce a master degree level course in Implant Dentistry. HKU did not and would not simply rename a diploma qualification as a master qualification.
54. Even if Professor Cheung had said to the other members of the EAC what was recorded in the minutes, what he said could not, in my view, support the finding that the Degree was pitched at the standard of diploma level. Looking at it in the worst possible light, Professor Cheung’s statement simply meant that the Degree program was formerly a diploma program, not that it was at the time of the meeting a diploma program dressed up as a master program.
55. As for the enclosures to the Dean’s Letter, having reviewed them in detail, this court could find no clues in them that the Degree program was pitched at the diploma level.
56. That should come as no surprise. The Degree program was set up in 2006 by eminent dentists and academics, including the Dean and Professor Chow, and was specifically designed to lead to the qualification of a Master of Science degree. The approval guidelines were well-defined and elaborate and there was no suggestion that they had been departed from. A string of distinguished members of the HKU, including the Dean and the Vice‑Chancellor, were involved in the creation or the subsequent approval of the Degree as a Master of Science qualification.
57. Mr Ismail submitted that the Council members were entitled to apply their own knowledge and expertise in considering any information placed before them. That much this court would not disagree. Mr Ismail further urged upon this court that, at the October Council meeting, the Council had endorsed the view that the amount of clinical and surgical training of the Degree was insufficient for a master degree in a clinical field, and should instead be relegated to the level of a diploma qualification. The same view was expressed in the 16 February letter from the Council to Dr Chan’s solicitors.
58. Again, this court would not disagree that the Council was entitled to come to its own view based on the specialist knowledge and expertise of its members. But when it came to making a finding of fact, the finding had to be based on evidence. The position before this court was that there was no evidence as to what distinguished a master qualification from a diploma qualification in terms of clinical and surgical training and in what respects the training provided by the Degree program was inadequate by reference to the distinction between the two. There was no attempt by the Council to identify which part of the content of the Degree Program, be it the Syllabuses, Degree Regulations or otherwise, which justified the view it took in the October Council meeting or expressed in the 16 February letter. At the end of the day, this court was still left with the views expressed by members of the EAC and the Council, however respectable they might be, but not the evidential basis of such views.
Conclusion
59. Ultimately, what appeared to this court to be the fundamental problem with the Council’s decision to disapprove the Degree, and the Decision itself, was that it had taken upon itself to do something which it was not entrusted by statute viz Accreditation Ordinance to do and had reached a decision in respect of which there was no evidence in support ie despite its title, the Degree was merely a diploma qualification and would mislead the public.
60. For these reasons, the first ground of challenge succeeded.
The Second Ground
61. It is trite law that if the exercise of a discretionary power has been influenced by considerations that cannot lawfully be taken into account or by the disregard of relevant considerations required to be taken into account, a court can and will hold that the power has not been validly exercised: De Smith’s Judicial Review 6th Ed para. 5-110; Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 at 1047; Tesco Stores Ltd v Secretary of State for the Environment and Others [1995] 1 WLR 759, 764; R v Director General of Telecommunications ex parteCellcom Ltd. [1999] ECC 314 at para. 27.
62. On the question of what is and what is not a relevant consideration, the following observation of Simon Brown LJ in R v Somerset CC Ex p Fewings [1995] 3 All ER 20 at 32 is most pertinent:
“It is important to bear in mind, however, as Mr Supperstone contended and Mr Beloff accepted, that there are in fact three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so. There is, in short, a margin of appreciation within which the decision‑maker may decide just what considerations should play a part in his reasoning process.”
63. In Re Findlay [1985] AC 318 at 333 – 334, Lord Scarman recited the following passage of Cooke J's judgment in CREEDNZ Inc v Governor General [1981] 1 NZLR 172 at 183 with approval:
“What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision.”
64. In the present case, Mr Huggins SC contended that the Council had failed to take into account the following relevant considerations:
(1) Dr Chan’s constitutionally protected rights to freedom of speech under Articles 27 and 39 of the Basic Law and freedom of expression under Article 16 of the Hong Kong Bill of Rights (“Bill of Rights”). These rights included her freedom to impart information about herself and her qualifications which was true, verifiable and not misleading, subject only to any necessary and proportionate restrictions, for instance, for the protection of public health or for the protection of vulnerable patients from misleading advertising or misleading practice promotion.
(2) The need, legitimate interest, and entitlement of the public to have ready access to information about a dental practitioner’s qualifications which would be relevant to them in making an informed choice as to which dental practitioner to consult and receive treatment from.
65. Irrelevant considerations which had wrongly been taken into account by the Council were, according to Mr Huggins SC, the following:
(1) The fact that there had been an increasing number of complaints arising from implant treatments.
(2) The fact that the degree of MSc in Implant Dentistry (Lond), a degree recognised by the Council and said to be similar in many respects to the Degree, was no longer being offered by University College, London.
(3) The concern that the Degree might be confused with the qualification of MDS (Implant Dent) also offered by HKU.
(4) What Professor Cheung said at the June EAC meeting about the “genesis” of the Degree.
66. Articles 27 and 39 of the Basic Law provide:
“Article 27
Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike. (emphasis added)
Article 39
The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
The rights and freedom enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”
67. Article 16 of the Bill of Rights further provides:
“Article 16
Freedom of opinion and expression
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. (emphasis added)
(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary-
(a) for respect of the rights or reputations of others; or
(b) or the protection of national security or of public order (ordre public), or of public health or morals.”
68. As stated clearly in Article 16 of the Bill of Rights, freedom of expression connotes the right to impart as well as to seek and receive information. The relevant considerations propounded by Mr Huggins SC were really two facets of the same right to freedom of expression and could for the present purposes be considered together.
69. The ambit of the right to freedom of speech and freedom of expression was examined by the Court of Appeal in Dr Kwok Hay Kwong v The Medical Council of Hong Kong [2008] 3 HKLRD 524. In that case, the applicant succeeded in challenging a number of restrictions in the Professional Code of Conduct issued by the Medical Council concerning practice promotion on the ground that the applicant’s freedom of expression had been unjustifiably infringed.
70. In Dr Kwok Hay Kwong v The Medical Council of Hong Kong, Ma CJHC (as he then was) explained the court’s approach in determining a constitutional challenge to a public body’s decision as follows:
“20……Constitutionally guaranteed rights such as the freedom of expression are usually couched (deliberately) in wide terms. Even given the approach that such rights must be generously construed (and the freedom of expression is no exception: see HKSAR v Ng Kung Siu (1999) 2 HKCFAR 442, at 455H‑I), the court still has nevertheless to construe the relevant right to see whether it is relevant to the decision or matter under review. However, where the right is construed to be applicable, this does not necessarily dispose of the question whether or not the decision-maker has acted properly or in accordance with constitutionally accepted norms. In many instances where a constitutionally protected right is involved, a two‑stage inquiry is therefore required, namely:
‘(1) First, has a right protected by the Basic Law or the Bill of Rights (the ICCPR) been infringed?
(2) Second, if so, can such infringement be justified?’
See : Secretary for Justice v Yau Yuk Lung & Another [2006] 4 HKLRD 196, at 208 B‑C (para. 45); Leung v Secretary for Justice [2006] 4 HKLRD 211, at 234 G‑H (para. 43).
In other words, although there may be an infringement of a constitutionally protected right, sufficient justification may be provided by the decision maker for the infringement….
In the determination of the issue of justification, the court will of course have to look at the evidence adduced by the decision-maker. Where a constitutionally guaranteed right has been shown to be relevant, the burden is on the decision-maker to justify any restriction on that right. Here, the courts apply the proportionality test which was formulated in the following terms in the judgment of the Court of Final Appeal in Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229, at 253I (para. 36) (a case dealing with the right of peaceful assembly) : ‑
‘36. As the legitimate purposes that may be pursued by any restriction on the right of peaceful assembly have been constitutionally specified in Hong Kong, the proportionality test should be formulated in these terms: (1) the restriction must be rationally connected with one or more of the legitimate purposes; and (2) the means used to impair the right of peaceful assembly must be no more than is necessary to accomplish the legitimate purpose in question.’
22. In the determination of the issue of justification, the court will, in practical terms, also have to accept the fact that proper respect must be accorded to the expertise of the decision-maker. This is a manifestation of the limited role of the court in judicial review proceedings and acknowledges the pertinent fact that courts do not possess the necessary expertise or knowledge that the decision-maker has. This approach is sometimes referred to as the margin of appreciation or deference that a court must allow to a decision-maker when judicially reviewing decisions. It is an aspect that Mr Beloff very much relies on in the present case. He points out, rightly, that the courts have consistently recognized that medical regulatory bodies (such as the Respondent) are the best placed to determine the boundaries of medical professional conduct…..
26. In the present case, the court’s approach will require an examination of the ambit of the freedom of expression and also whether there has been a justifiable and proportionate infringement of that right. In the consideration of whether there has been an infringement, it will be necessary to evaluate the justification said to exist for the four restrictions referred to above.”
71. The Council’s principal response was that Dr Chan’s right to freedom of speech and freedom of expression was not engaged at all in the present case since it was only restricted by the Code and there was no challenge to the Code itself. Further, the two alleged relevant considerations were not identified in the DRO or the Regulations as considerations which must be taken into account, and therefore it was up to the Council whether to take them into consideration or not.
72. The second point could be dealt with first. The fact that the two considerations were not identified in the DRO or the Regulations as “mandatory” considerations did not mean that they were ipso facto irrelevant considerations. As acknowledged by Cooke J in CREEDNZ Inc v Governor General [1981] 1 NZLR 172 at 183 line 33 and approved by Lord Scarman in Re Findlay [1985] AC 318 at 334A-B, there could be matters so obviously material to a decision that anything short of direct consideration of them would not be in accordance with the intention of the statute. A person’s constitutional rights would prima facie fall within this category.
73. The Council’s first point was therefore the crux of the matter ie whether Dr Chan’s right to freedom of expression was engaged and whether public interest considerations should come into play when the Council decided to restrict Dr Chan’s right to freedom of expression by disapproving the Degree as a Quotable Qualification. On these issues, Mr Ismail heavily relied on Dr Yuk-Kong Lau v The Medical Council of Hong Kong [2011] 5 HKC 218 at paras. 47 to 56.
74. In that case, the applicant sought to judicially review the decision of the Medical Council in refusing to include the qualification of Fellow of American College of Cardiology (“FACC”) in the List of Quotable Qualifications maintained by it. The application did not involve any challenge to the restrictions placed on practice promotion by the Professional Code of Conduct issued by the Medical Council or the Quotable Qualifications scheme as such. The applicant contended that the decision had infringed his freedom of expression guaranteed under the Basic Law and the Bill of Rights.
75. The learned Judge, after referring to Dr Kwok Hay Kwong v The Medical Council of Hong Kong, held that the right to freedom of expression was not engaged because what prohibited the applicant from publicly disseminating his qualification of FACC was the restriction imposed by the Professional Code of Conduct, not the decision itself. What the Medical Council had decided was that the restrictions imposed by the Professional Code of Conduct should not be relaxed to allow FACC to be quoted. As the applicant had not challenged the legality of the Professional Code of Conduct, the decision made thereunder could not be said to be unconstitutional.
76. In the present case, Mr Huggins SC submitted to this court that the approach in Dr Kwok Hay Kwong v The Medical Council of Hong Kong should not be followed. This was because the approach meant if there was no challenge to the lawfulness of the Code, the Council did not have to consider an individual applicant’s constitutional right to freedom of speech at all. It also did not have to consider whether any decision to reject an application was really justifiable on the grounds of, for instance, public health or the protection of the vulnerable.
77. Mr Huggins SC submitted that an applicant’s right to freedom of speech and expression must be a relevant consideration in deciding whether or not to allow registration of a qualification, subject only to any necessary and proportionate restrictions in the public interest. The Code provided a lawful mechanism whereby the Council could decide, as a matter of discretion, which qualifications were quotable in the course of a dentist’s practice promotion. The mechanism restricted the right of freedom of expression but was not in itself unlawful in that it only permitted such restrictions if there were cogent justifications for them. If there was a challenge to the Council’s decision, then it should identify to the court what the justifications were so that the court could properly adjudicate on whether the decision was lawful.
78. There was considerable force in Mr Huggins SC’s submissions - it could not be right for a decision-maker to say that because the mechanism was not challenged as being an unlawful restriction of a person’s constitutional rights, therefore any decision made under that mechanism however unjustified and perverse was not open to challenge.
79. True it was that the decision challenged in Kwok Hay Kongv The Medical Council of Hong Kongwas the general decision of the Medical Council to frame and adopt the medical profession’s Code of Conduct in the way it did. But, as far as this court could see, it was no part of the Court of Appeal’s judgment that the Medical Council need not pay due regard to freedom of expression when dealing with individual applications to register medical qualifications. Nor was it part of the judgment that the Medical Council need identify cogent justifications for restricting an individual doctor’s right to promote his practice by quoting his qualifications.
80. In the view of this court, a challenge to the general decision of the Council to adopt the 2001 Guidelines (or any other subsequent versions of them) and the Code and to put in place a scheme of Quotation Qualification should not be a sine qua non to a challenge to an ad hoc decision to disapprove a particular qualification. It is entirely conceivable that the Guidelines, the Code and the scheme of Quotation Qualification, albeit constituting restrictions on dentists’ freedom of expression in general, are justifiable on public interests grounds and therefore lawful. Equally, it is entirely conceivable that an individual decision to disapprove a particular qualification as a Quotation Qualification, similarly constituting a restriction on a particular dentist’s freedom of expression, is not so justified.
81. Suppose, for the sake of argument, that the Council decided not to approve the Degree as a Quotation Qualification because, in their view, there were sufficient number of dentists in Hong Kong who possessed approved qualifications in implant dentistry which were of a higher standard than the Degree and it was not necessary to approve more qualifications in implant dentistry. Such a decision would arguably not have the effect of promoting a legitimate public interest or societal objective – rather it would be protecting the vested interest of those dentists who already possessed approved qualifications in implant dentistry. In these circumstances, while the Code and the scheme of Quotation Qualification themselves were not objectionable, it was arguable that the decision itself was. If the Basic Law and the Bill of Rights were not engaged at all, there would be no room for examining whether the Council’s decision was in the public interest or made pursuant to a legitimate societal objective.
82. Take the hypothetical example one step further. Suppose the Council decided not to approve the Degree as a Quotation Qualification because, in their view, it would be detrimental to public health to allow Degree holders to promote themselves as having a master degree in implant dentistry. On the evidence presently available, it would be very difficult to uphold the decision as a justifiable infringement of the Degree holders’ freedom of expression.
83. Unless one is an absolute cynic, the fact that a Degree holder has undergone the studies and training of the Degree program should be viewed as having a positive, rather than a negative, effect on his knowledge and skill in implant dentistry. The Degree may not be as much of an enhancement to the holder’s knowledge and skill as, for instance, MDS in Implant Dentistry. If the Council were right about it (which it was not, as held by this court in relation to the First Ground), the Degree is only pitched at the diploma level. Still, some additional studies and training in implant dentistry will be better than none.
84. If so, the fact that the holder has succeeded in obtaining the Degree, whatever its standard, will enhance the dental health of his patients or potential patients, and not otherwise. At the very least, it will have a neutral effect on the patient’s dental health. In these circumstances, there will be no public health justification at all for a decision which precluded the Degree holder from publicising his Degree. In these circumstances, the infringement of the Degree holder’s right to freedom of expression is unjustifiable and therefore challengeable, even though the Guidelines, the Code and the scheme of Quotation Qualification as a whole are not.
85. Having said that, it seemed to this court that the soundness of the approach in Dr Yuk-Kong Lau v The Medical Council of Hong Kong should best be left to a higher court for a more in-depth examination. For the present purpose, it was really not necessary to adjudicate upon the issue whether Dr Chan’s right to freedom of speech and freedom of expression was engaged. This was because (1) on the evidence, the Council did appear to have considered whether the disapproval of the Degree as a Quotation Qualification would be justified on public interest ground ie the protection of the public from misleading or confusing practice promotion information; (2) in the 6 January letter, the Council did put forward the said public interest ground as a reason for the Decision; and (3) in the present proceedings, the Council, as an alternative to its principal response to the Second Ground, also relied on the said public interest ground to justify the Decision.
86. In principle, those public interests or legitimate societal objectives which justify a proportionate restriction on dentists’ freedom of expression should not be confined to the protection of public health. In the view of this court, protecting consumers against misleading or confusing information, so that they can make an informed decision in choosing dental treatment, is a significant aspect of public interest. So is protection of the dental profession’s reputation and maintaining public confidence in the profession. Support for the proposition that these are legitimate public interests which can justify a proportionate restriction on a professional’s freedom of expression can be found in Dr Kwok Hay Kongv The Medical Council of Hong Kong at paras. 68 & 74.
87. On the evidence, the minutes of the October Council meeting, the 6 January letter and the 16 February letter clearly recorded that the Council was concerned about the public being misled or confused by the title of the Degree. This, in my view, is a legitimate societal objective which would justify a proportionate restriction on dentists’ freedom of expression. Put it in another way, it is in the public interest to forbid a dentist from publicising his possession of a qualification which would confuse or mislead the public and impair a consumer’s informed choice of dental treatment. Dentists, or anyone for that matter, cannot, in the name of exercising their freedom of expression, be allowed to mislead the public – untruthful speech is not protected: Dr Kwok Hay Kongv The Medical Council of Hong Kong at para. 74.
88. In these circumstances, this court was prepared to assume in Dr Chan’s favour that the Basic Law and the Bill of Rights were engaged. Nevertheless, on that assumption, it could not be said that the Council had failed to take into account considerations relevant to her freedom of expression. The members attending the October Council meeting might not have analysed those considerations in the same way as a court of law would, but it was reasonably clear that they were concerned about and had considered the possibility of the public being misled by the title of the Degree before they rejected it as a Quotable Qualification.
89. However, as this court has held in relation to the First Ground, there was no evidential basis for the finding that the Degree was pitched at the diploma level and thus there was no question of the public being misled. In other words, while the Council had taken into account considerations relevant to Dr Chan’s freedom of expression, in the view of this court, its decision was premised on an error of fact and must be quashed for that reason.
90. With regard to the four “irrelevant” considerations identified by Mr Huggins SC, they could be dealt with briefly.
91. First, it did not appear from the minutes that they had been taken into account by the Council in reaching the decision to disapprove the Degree at the October Council meeting. The fact that some of those considerations had been raised or mentioned in passing in earlier EAC meetings was not proof that the Council itself had taken them into account – there was no suggestion that the Council members had “blindly” adopted each and every point raised by members of the EAC in coming to the decision. In particular, there was no evidence that the Council considered it irrelevant that the degree of MSc in Implant Dentistry from University College London was on the List because it was no longer being offered by the University. Rather, the Council took the view that it was not a comparable qualification to the Degree at all.
92. Second, given that the DRO and the Regulations were silent on the matter, the so-called “irrelevant” considerations, in so far as they had been taken into account by the Council, were “those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so”: R v Somerset CC Ex p Fewings [1995] 3 All ER 20 at 32. In the view of this court, there was a margin of appreciation within which the Council “might decide just what considerations should play a part in its reasoning process”. The reasons were as follows:
(a) The fact that there had been an increasing number of complaints arising from implant treatments highlighted the importance of avoiding public confusion about qualifications in implant dentistry so that patients could make a more informed choice about dental implant treatment. This was consistent with the Council’s statutory function under the DRO.
(b) The close similarity of the two titles, both offered by HKU, was a proper basis for the concern that “MSc (Implant Dent)” might be confused with “MDS (Implant Dent)” in the eyes of the public. Avoiding public confusion about these two qualifications in the same discipline was again consistent with the Council’s statutory function under the DRO.
(c) Professor Cheung was a Chair Professor of Oral & Maxillofacial Surgery in the Faculty and was nominated by HKU to the EAC. What he said at the June EAC meeting about the “genesis” of the Degree could not be considered irrelevant. Whether he had given a confused impression to the other EAC members or whether he had been misunderstood was another matter which pertained only to the First Ground.
93. To conclude, for all the above reasons, this court did not accept the second ground of challenge.
Disposition and costs
94. This court would grant the following relief sought by Dr Chan:
(a) An order of certiorari to bring up and quash the Decision.
(b) An order of mandamus directed to the Council requiring it to determine as soon as practicable Dr Chan’s application to enter the Degree on the General Register and the List of Quotable Qualifications in accordance with this judgment.
95. On the question of costs, there be an order nisi that the Council shall bear the costs of Dr Chan and HKU, to be taxed if not agreed, with certificate for counsel.
96. Lastly, I thank all counsel for their helpful assistance.
| (Peter Ng)
Judge of the Court of First Instance
High Court |
Mr Adrian Huggins SC, instructed by Leung, Tam & Wong, for the applicant
Mr Anthony Ismail, instructed by Department of Justice, for the respondent
Mr Edward Fan, instructed by Clifford Chance, for the interested party