DR TSE KIT MING v. THE COLLEGE OF DENTAL SURGEONS OF HONG KONG

HCA 2856/2016

[2019] HKCFI 1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2856 OF 2016

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D E C I S I O N

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1.  At the hearing of this pre-trial review, I gave leave to issue subpoenas to 2 witnesses to attend the trial. Here are my reasons.

Background

2.  I adopt the summary of facts set out in the skeleton submission of Mr Tang (and Ms Kei).

3.  The Plaintiff is a registered dentist and a registered specialist in oral and maxillofacial surgery.  To be such a specialist, he has to be and is a Fellow of the Defendant, i. e. College of Dental Surgeons of Hong Kong (“the College”).

4.  In about 2009, the Plaintiff provided an article together with sets of photographs for publication in the October/November 2009 issue of an internal newsletter called “Pulse” (“the Pulse Article”) of the Adventist Hospitals, where he worked as a part-time dentist. Without his knowledge and consent, the Pulse Article was republished in the South China Morning Post on 16 November 2009 (“the SCMP article”).

5.  As a result of complaints, the Dental Council held an inquiry against the Plaintiff and made its decision on 19 March 2013, finding 2 charges of unprofessional conduct proved, paraphrased in the pleadings as “the canvassing charge” arising out of the SCMP article, and the “plagiarism charge” arising out of both the Pulse Article and the SCMP article.

6.  The Court of Appeal overturned the conviction for the canvassing charge and part of the conviction for the plagiarism charge in respect of the SCMP article. The Court of Appeal also varied the sentence for the remainder of the plagiarism charge, such that the sentence became an order for the removal of the Plaintiff’s name from the General Register for a period of 2 months, but suspended for 2 years, subject to the condition that he shall not commit any further disciplinary offence within the suspension period.

7.  The Plaintiff had not committed any further disciplinary offence and the suspension period had ended.

8.  Notwithstanding that the Plaintiff had been duly punished for the plagiarism charge, the College invoked Article 14 of its Memorandum and Articles of Association with a view to the removal of the Plaintiff’s fellowship, the consequence of which is that the Plaintiff would lose his specialist qualification.

9.  Allegedly, there was an “agreed mechanism” between the College and the Dental Council, whereby the Dental Council would directly report their disciplinary decisions and orders imposed on individual registered dentists to the College, thereby leading the College to invoke Article 14 of its Memorandum and Articles of Association against the Plaintiff, and consequently these proceedings.

10.  From documents disclosed, it appears that the agreed mechanism was an informal oral arrangement which was (a) established orally in a discussion between Dr Lee Kin Man Raymond on behalf of the Dental Council and Dr Chan Sai Kwing on behalf of the College on about 20 April 2015; (b) the subject matter of the deliberation in a meeting of the Council of the College; and (c) the subject matter of the decision by the Dental Council.

11.  The Plaintiff challenges the agreed mechanism as having no statutory basis.  The court is to infer that the agreed mechanism amounted to a concerted effort to commence a thinly disguised and unlawful 2^nd round of disciplinary action against the Plaintiff, in respect of the same plagiarism charge regarding the Pulse Article.  It was aimed at removal of the Plaintiff’s name from the Specialist Register by the back door.

12.  For the trial, the parties shall each call one factual witness. Dr Lee and Dr Chan are not among the defendant’s witnesses.

13.  By letters dated 1 August 2019, the Plaintiff’s solicitors wrote separately to each of Dr Lee and Dr Chan asking whether he would be prepared to testify and produce the specified documents voluntarily without a subpoena.

14.  Dr Chan has replied on 5 August 2019, indicating that he was not prepared to testify without a subpoena.

15.  Dr Lee has not made any reply although the letter has been served on his clinic by hand.

16.  The Plaintiff applies for the issue of 2 writs of subpoena duces tecum to summon Dr Lee and Dr Chan to attend the trial and to produce specified classes of documents relating to the agreed mechanism.

17.  The defendant opposes the application on the ground of delay and queries the usefulness of the evidence of the 2 doctors.

Legal principles

18.  A recent statement of the principles for granting leave to issue a writ of subpoena can be found in the case of Chan Cheung Ming Jack v Siu Sin Man [2014] HKLRD 89.

(1)   The judge is simply to provide a preliminary filter to ensure that the application is not an abuse of process and that they relate to a cause or matter in which oral evidence is appropriate.  The judge should not and cannot take it upon himself to decide issues relating to the relevance of any evidence that may be given and its usefulness (§§14-17).

(2)   At least in respect of late applications, the court must also bear in mind this case management duty (§22). However, the court should not follow a mechanical rule invariably refusing an application simply because of serious delay without good explanation, but conduct a balancing exercise.  In a late application, the court would examine all relevant circumstances and the significance of the intended evidence was one consideration (§§27).

19.  The general approach is that parties should prepare for trial with due diligence, by approaching potential witnesses at an early stage, well before trial. Where a witness is cooperative, a witness statement should be prepared and exchanged in accordance with the court’s directions.  But where a witness is unwilling to testify, and a subpoena is to be issued, the court (and the other parties) should be informed at the case management conference, so as to enable any challenges to the subpoena to be dealt with in good time for the trial. The risk of disruption to the parties’ preparations for trial, and to the trial itself, cannot be overlooked.  See Waddington Ltd v Chan Chun Hoo Thomas [2013] HKEC 1185, §13 of the postscript and §19 of the judgment.

The filter process

20.  Why the agreed mechanism (which was not within any statutory framework) came into being was within the exclusive knowledge of the 2 doctors. Their evidence (including the circumstances giving rise to the agreed mechanism) is directly related to the pleaded issues in eg §27 of the amended statement of claim, §27 of the amended defence and §§6-8 of the amended reply.

21.  Mr Maurice Chan, counsel for the College, points out that the agreed mechanism can be summarised in one or 2 sentences. The relevant correspondence has been disclosed.  The relevant correspondence was clear and the Plaintiff has never sought clarification.  Mr Tang could not identify other matters on which the 2 doctors can testify.  The value of the subpoena is extremely low.

22.  With respect, it is not for the court to assess the value of what is potentially relevant evidence from the 2 doctors.  If it turns out at the end of the day that the Plaintiff really wastes the court’s time on examining these 2 doctors, that can be reflected in an order for costs.

23.  Only Dr Chan had responded to the Plaintiff’s letter and he would not appear without a subpoena. Dr Lee has not responded at all. Mr Maurice Chan does not act on behalf of any of these 2 doctors.  Nor has he suggested that it is plain and obvious that the issue of the subpoena would be an abuse of process.

Delay in application

24.  Mr Maurice Chan submits that this application is late.  The Plaintiff has filled in listing questionnaires for the case management conferences without applying for issue of the subpoenas.

25.  It was, in my view, reasonable for the Plaintiff to think that the 2 doctors might be called as witnesses by the defendant.

26.  However, as early as January 2018, the Plaintiff has already foreshadowed the making of an application for leave to issue writs of subpoena against the 2 doctors. In fact, the Plaintiffs’ revised certificate of estimate of length of trial attached to the listing questionnaire expressly set out the time for cross examination of these 2 doctors. Those estimates were taken into account in estimating the total length of trial.  Mr Tang does not anticipate using the full 3 hours for each of the 2 doctors.

27.  There is no suggestion that the delay will cause disruption to the preparation of the trial or the trial itself. There are still 3 months for the witnesses and the defendant to prepare themselves for trial.

Conclusion

28.  For the above reasons, I have therefore given leave to issue a writ of subpoena against Dr Lee and Dr Chan and for them to produce specified classes of documents in §§33 and 27 (both on page 8) of Mr Tang’s written submission.

29.  I thank counsel for their assistance.