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27 August 2019
In the third case in as many months, the High Court has been asked to review its jurisdiction to grant permission to issue subpoenas directed at witnesses. In Dr Tse v The College of Dental Surgeons of Hong Kong,(1) the court granted permission to issue two subpoenas directed at two senior doctors, requiring them to give evidence (supported by specified documents) in aid of a registered dentist's court challenge arising out of disciplinary proceedings against him. The court's decision reiterates the relatively low threshold for the issue of subpoenas, while also illustrating their possible tactical use. It is also important that regulators generally try to focus on ensuring that they act proportionately when seeking to protect the public interest in order to prevent some disciplinary matters from dragging on.
At the material time, the plaintiff was a registered dentist and specialist in (among other things) oral surgery and a fellow of the College of Dental Surgeons. As far back as March 2013, as a result of a disciplinary investigation commenced by the Dental Council, the plaintiff was stated to have committed certain disciplinary transgressions arising out of some practice promotion in connection with an article published on his behalf. The events in question apparently went as far back as 2009.
The plaintiff appealed the disciplinary proceedings, pursuant to Section 23 of the Dentists Registration Ordinance (Cap 156), and was substantially successful before the Court of Appeal.(2) Of the two charges and findings of alleged fault, one was set aside (together with the punishment) and the other was partially set aside with the punishment reduced. It appears that the Dental Council was ordered to pay the greater part of the plaintiff's (the appellant's) costs of the appeal.
Somewhat unfortunately for the College of Dental Surgeons, perhaps, things do not seem to have ended there. It appears that the college may have tried to invoke a power under its memorandum and articles of association to remove the plaintiff's fellowship.
The plaintiff alleged that there was some sort of agreed mechanism between the council and the college, whereby the former would report disciplinary decisions to the latter. In the court proceedings, the plaintiff challenged the alleged agreed mechanism – in effect, suggesting that any attempt to remove his fellowship was an attempt to remove his specialist qualification and tantamount to a thinly disguised attempt to discipline him for a second time.(3)
Given that the agreed mechanism was alleged to have been verbally agreed between two representatives of the council and the college, the plaintiff's lawyers sought their cooperation with respect to their testimony and relevant documents. The two representatives were senior doctors. One appears to have indicated that he was not willing to testify unless subpoenaed; the other, apparently, did not reply to the plaintiff's lawyers. Therefore, the plaintiff's lawyers applied to issue subpoenas against the two of them with respect to their testimony and certain specified documents relating to the alleged agreed mechanism.
The college resisted the plaintiff's application on the basis that:
At the time of writing, the trial is set down for some five days, beginning in early December 2019.
The court appears to have had little difficulty in granting permission to issue the two subpoenas.
As for the relevance of the witnesses' testimony, the court noted that its role is to filter out applications that are obviously an abuse of process but not to determine the evidential value of the likely testimony. The court noted that the existence of the alleged agreed mechanism between the council and the college was directly relevant to the issues in dispute and appeared to be a matter within the knowledge of the two witnesses. The two witnesses had not volunteered to give evidence. If their evidence turned out to be a waste of the court's time, that could be reflected in a costs order against the plaintiff.
As for the issue of delay, the court noted that it was not that serious in the whole scheme of things. There were still three months until trial and it had been reasonable for the plaintiff to expect that the two witnesses might be called as witnesses for the college (as the defendant). The plaintiff's lawyers' revised certificate for the estimate of the length of trial had anticipated the cross-examination of the two witnesses. The five day trial could accommodate their evidence.
The court's decision is another recent example of its increased case management role with respect to the preparatory steps for trial (for further details please see "Court reviews issue of subpoenas").
In this case, in particular, the subpoenas (once served) are likely to concentrate the two witnesses' minds on their evidence, with respect to what is likely to be an interesting trial – assuming that the case proceeds that far. A trial ought to help shine some light on the alleged agreed mechanism (at the time) for the referral of disciplinary matters between the council and the college. Generally speaking, it is more desirable for written protocols to be in place for this sort of situation. Even allowing for the confidentiality and integrity of disciplinary proceedings, a wider public interest is usually better served by a more transparent regulatory process.
It is also, perhaps, interesting to consider whether some regulators give enough thought to whether they might become embroiled in ancillary court proceedings so many years after the disciplinary investigations and events in question.
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