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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
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DR. CHAN SZE LAI, JACQUELINE |
Applicant |
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and
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THE DENTAL COUNCIL OF HONG KONG |
Respondent |
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THE UNIVERSITY OF HONG KONG |
Interested Party |
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| 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...
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