DR TSE KIT MING v. THE DENTAL COUNCIL OF HONG KONG

CACV 86/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 86 OF 2013

(ON APPEAL FROM THE ORDER OF THE DENTAL
COUNCIL OF HONG KONG OF 27 MARCH 2013)

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JUDGMENT

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Hon Chu JA:

Introduction

1.  The appellant brings this appeal pursuant to section 23 of the Dentists Registration Ordinance, Cap. 156 against the disciplinary decision of the Dental Council (“the Council”) made after an inquiry that took place on three days between 29 January and 7 March 2013. 

2.  By its decision made on 19 March 2013, the Council found two charges of unprofessional conduct proved against the appellant, namely,

“He, being a registered dentist, in or about November 2009 –

(i) Canvassed for the purpose of obtaining patients by sanctioning, or conniving at, or failing to take adequate steps to prevent the publication of an article in the “South China Morning Post” on 16 November 2009 (“the Article”) which promoted various Oral & Maxillofacial Surgery treatments provided by the Hong Kong Adventist Hospital, a hospital with which he had a financial and/or professional relationship; and/or

(ii) Sanctioned, connived at, or failed to take adequate steps to prevent the use of a clinical case of another dentist in his article published in Pulse (Oct/Nov 2009 issue) and/or the Article without his consent;

and that in relation to the facts alleged he has been guilty of unprofessional conduct.”

(respectively referred to as “the canvassing charge” and “the plagiarism charge”)

3.  In sentencing, the Council made the following orders:

(1) In respect of the canvassing charge, a warning letter be served on the appellant. The order shall be published in the Gazette; and

(2) In respect of the plagiarism charge, the appellant’s name be removed from the General Register for a period of two months suspended for a period of two years, subject to conditions that, within the suspension period,

(a) He shall undergo continuing professional development in professional ethics to the equivalent of 10 CPD points, and

(b) He shall not commit further disciplinary offence within the suspension period.  

4.  The appeal, as appeared by the Notice of Appeal and Supplemental Notice of Appeal, is directed at the conviction of both charges and the sentence of the plagiarism charge.  Mr Tang who appeared, together with Miss Kei, for the appellant indicated in his written submissions that the appellant abandons the appeal against conviction of the plagiarism charge in respect of the publication of the article in PULSE.

Facts of the case

5.  The appellant is a specialist in Oral and Maxillofacial Surgery.  He became a registered dentist in Hong Kong in 1988 and joined the government sector.  In 2008, he became a dentist in the private practice and worked with Tsuen Wan Adventist Hospital (“TWAH”) as a part-time dentist.  In September 2009, he joined Hong Kong Adventist Hospital (“HKAH”) also as a part-time dentist. 

6.  Shortly after he joined HKAH, the appellant was invited by a Ms Chow, communication officer with the hospital’s marketing department, to write a short article for “PULSE”, which was a newsletter for internal circulation among the staff of HKAH and TWAH.  At the time, around 2,000 copies were printed for each issue and the newsletter was not accessible online[1]. The purpose of the article was to introduce the appellant to the staff of HKAH and he was asked to write on his area of practice and the recent development thereof.

7.  It is the appellant’s evidence that, after confirming that PULSE was solely for internal circulation, he accepted the invitation and in due course provided an article to Ms Chow together with six sets of photographs for publication in PULSE.

8.  The appellant’s article was published in the Oct/Nov issue of Pulse (“the PULSE Article”).  The article talked about a range of treatments in Oral & Maxillofacial Surgery and was illustrated by the photographs provided by the appellant. 

9.  Under the heading “FIGURE 2 Revised Cleft Lip” was a set of two photographs of a clinical case showing the pre-operative and post-operative condition of a patient with cleft lip.  It is not in dispute that the appellant did not perform the operation in question.  There was no acknowledgement of the source of the photographs.  Neither was there indication that it was not the appellant’s clinical case.  In fact, the appellant had no experience in revised cleft lip operation.

10.  On 16 November 2009, the appellant’s article was published as a “sponsored feature” in the “South China Morning Post” (“the SCMP Article”), which the Council found was an advertisement placed in the newspaper by HKAH.[2]  It occupied more than a quarter of a page.  Other than the addition of a photograph of the appellant and the contact information of HKAH, the content of the SCMP Article is the same as that of the PULSE Article.

11.  On 21 December 2009, the Council received a letter from the dentist who performed the cleft lip case depicted in the photographs mentioned in paragraph 9 above, complaining that the appellant had used the photographs without his knowledge and permission.  Prior to this, the Council had already received letters of complaint from a number of dentists about the SCMP Article breaching the Code of Professional Discipline.

12.  On 6 June 2012, the Council gave notice to the appellant that an inquiry would be held to investigate the canvassing and plagiarism charges laid against him.

The appellant’s defence

13.  The appellant case is that the SCMP Article was published without his prior knowledge and consent, and that he could not possibly have prevented its publication.

14.  The evidence at the Inquiry shows that beginning from about June 2009, HKAH was running a marketing campaign with sponsored feature articles identical in size and format and similar in nature to the SCMP Article being published in the SCMP on every Monday.  These articles were provided by HKAH to SCMP.  Some of them, but not all of them, were articles that had been published in PULSE.  The established procedure between HKAH and SCMP involved: (i) HKAH providing to SCMP the intended feature article; (ii) SCMP preparing a draft layout for HKAH’s approval; and (iii) publishing the article in SCMP as featured article after obtaining HKAH’s approval. 

15.  On this occasion, Ms Chow, who was responsible for coordinating the publication of the articles in the SCMP, forwarded to SCMP a soft copy of the appellant’s article together with the appellant’s photo.  It is the evidence of both the appellant and Ms Chow that the appellant had not been informed of this.  Ms Chow explained that, it was after receipt of the draft from SCMP that she would send the whole lot to the appellant for approval.  However, SCMP neither sent a draft nor sought the approval of HKAH, but proceeded to publish the article on 16 November 2009.      

16.  Additionally, in respect of the plagiarism charge, the appellant said that he found and downloaded the two photographs on revised cleft lip from the Internet, using the Foxy software.  There was no indication as to the ownership or authorship of the photographs and it was impossible to locate the author or owner to obtain permission to publish the photographs.  He also believed that since the owner voluntarily shared the photographs on the Internet, the owner implicitly agreed to his use of the photographs in the PULSE Article.  The appellant further said that there was the possibility that the photographs were not taken from a real clinical case, but were generated or modified by software such as Photoshop.    

The Council’s findings

17.  After a hearing that lasted three days, the Council found the appellant guilty of both charges and passed the sentences detailed above.

18.  In respect of the canvassing charge, the Council found that the SCMP Article was a promotional advertisement to promote HKAH’s services.[3]  It also rejected the appellant’s evidence that he never read newspapers and was unaware of the promotion campaign ran by HKAH at the material time.[4] On the question whether the appellant was aware that his article would be published in the SCMP, the Council took into account the contents of PULSE, which in its view, were directed towards commercial marketing of various services offered by the hospital, and that given the large number of the hospital staff, the newsletter was for circulation to a section of the public who were potential patients using the service.[5] 

19.  The Council concluded that[6]:

“37. Therefore, the [appellant] ought to be aware that he was providing the article to be published in a publication for commercial promotion of the services. In order to ensure compliance with provisions of the Code governing the dissemination of information by registered dentists, it is the duty of a registered dentist to exercise reasonable diligence to find out the nature of the publication before he provides anything to be published in it. It is insufficient to simply rely on the words of others. If the [appellant] had looked at a copy of the Pulse, it will be readily obvious that it is a publication for promoting the hospital’s services. In any case, the request for the article came from the Marketing Department, not the Administration Department. That should have put him on alert.

38. While we do not know whether the [appellant] was aware that the article would also be published in SCMP, we have no doubt that the circumstances of the on-going promotion campaign and the request coming from the Marketing Department for the article to be published in a promotional publication would have, and should have, put him on alert that there is the possibility of the article being published in other promotional publications as well. As we have mentioned earlier, it is the duty of a registered dentist to exercise[sic] due diligence to ensure compliance with the provisions of the Code. The circumstances made it reasonably foreseeable to the [appellant] of the possibility of the Marketing Department using his article in other promotional publications such as newspapers. He should have taken steps to prevent publication of the article in the advertisements of the hospital. However, he had taken no steps at all.

39. We are satisfied that the [appellant] has failed his professional duty to prevent the publication of his article in commercial advertisements. We are satisfied that the [appellant’s] conduct would be reasonably regarded as disgraceful and dishonourable by registered dentist of good repute and competency. We find him guilty of Charge (i), on the limb of failing to take adequate steps to prevent the publication of the article.”    

20.  On the plagiarism charge, the Council made the general observation that registered dentists should observe the rules against plagiarism and should not appropriate other people’s clinical achievement and publish it as his own, and to do so is a matter of dishonesty.[7] It was further pointed out that under sections 1.2.1 and 1.2.2 of the Code, information disseminated to the public must be accurate, factual and objectively verifiable.  Hence, materials from an unknown source, the truth and accuracy of which could not be verified, should not be published by a dentist as if they were true and accurate.[8]

21.  The Council noted that the appellant’s article described several treatments in the specialty of Oral and Maxillofacial Surgery and was accompanied by six sets of clinical photographs showing the pre-operative and post-operative conditions without acknowledgement as to the source.  It took the view that the general understanding both within the profession and among the public was that the photographs were the appellant’s own clinical cases representing his achievements in respect of the relevant procedures.[9]

22.  The Council saw no basis for the appellant to infer or believe that the owner gave permission for the photographs to be used by anyone who could access them merely because the photographs were available on the Internet or through the Foxy sharing software.[10] It also did not accept the appellant’s explanation that because the origin of the photographs was unknown, it was possible that they were generated or modified by Photoshop, pointing out that if this were the case, the appellant would be using untrue, inaccurate and unverifiable clinical photographs to falsely represent they were results actually achieved by lip revision surgery.[11]  

23.  In summary, the Council said[12]:

“23. If the [appellant] wishes to illustrate the results which can be achieved, he must use verifiable materials. If the materials are unverifiable, he must not use them. If the materials do not belong to him, he must obtain permission from the rightful owner. If he cannot obtain such permission, he must not use them. If permission is granted, he must acknowledge the source and make clear to the reader that the materials are not his own clinical case.

24. The [appellant] has violated each and every of these rules.

25. Given the [appellant’s] experience and seniority in the profession, and the context in which the article was published, we are of the view that he deliberately published the photographs with no acknowledgement, pretending that they were his own clinical achievement so as to attract patients to use his services.

26. We take a very serious view of such dishonest and despicable conduct. We are satisfied that the [appellant’s] conduct would be reasonably regarded as disgraceful and dishonourable by registered dentist of good repute and competency. We find him guilty of Charge (ii).”

Appeal against conviction

24.  In relation to the appeal against conviction, both with regard to the canvassing charge and the plagiarism charge with respect to the SCMP Article, the only ground argued by Mr Tang is that there is no evidence that the appellant knew that HKAH would re-publish the Pulse Article in the SCMP by way of an advertisement, or that he knew of any fact or circumstance which made it reasonably foreseeable that HKAH would do so without his approval and consent. 

25.  At the inquiry, both the appellant and Ms Chow testified that the appellant had not been informed his article would be or had been sent to SCMP for publishing in the newspaper.  Mr Billy Chen, account manager of the Advertising and Market Solution Department of SCMP, also confirmed that SCMP had not followed the usual procedure and had gone ahead to publish the article without first obtaining HKAH’s confirmation or approval of the draft. 

26.  The Council had not rejected the above evidence.  Neither had the Council found that the appellant was aware that his article would be or had been sent to SCMP for publication. In its findings, the Council said it did not know whether the appellant was aware the article would also be published in the SCMP.[13]

27.  In finding the appellant had failed to exercise reasonable diligence to prevent the publication of the article in the SCMP, the Council was of the view that the circumstances would have, and should have, put the appellant on alert that there was the possibility of the article being published in the SCMP and that this was reasonably foreseeable to the appellant such that he should have taken steps to prevent the publication in the SCMP.  The circumstances relied on by the Council are: (i) the on-going promotion campaign of HKAH at the material time; and (ii) the request for an article came from the Marketing Department and the article was to be published in a promotional publication.

28.  In my view, in order to convict the appellant on the basis of his failing to take adequate steps to prevent the publication of the SCMP Article, it must be proved that the appellant was aware that his article would be published in the SCMP, or alternatively, he was aware of circumstances which reasonably put him on notice that his article might be published in the SCMP or any newspaper.   

29.  The evidence at the inquiry clearly fell short of proving the appellant had actual knowledge that the article he provided for publication in PULSE would be published in the SCMP.

30.  As to whether he would reasonably be put on notice of the possibility of his article being published in any newspaper, with respect, I am unable to agree that the two circumstances identified by the Council justified the conclusion that the appellant would or should have been put on the alert. 

31.  The Council found that PULSE was a publication directed towards commercial marketing of services offered by the hospital, and that given the large number of the hospital staff, the newsletter was for circulation to a section of the public who were potential patients of the hospital.  It further rejected the appellant’s claim that he was unaware that HKAH was running a promotion campaign in the SCMP.  The appellant has not challenged these findings in this appeal.  However, the fact that the appellant was aware of these matters and that he was approached by someone from the marketing department are per se insufficient to put him on the alert of a risk of his article in PULSE being re-published in the SCMP.  It may have been different had it been a case that all of HKAH’s sponsored feature articles in the SCMP were taken from articles published in PULSE.  The evidence at the inquiry, however, is that only some of the articles published in the SCMP came from articles published in PULSE.  In the premises, although the appellant was aware or should have been aware of the promotional nature of PULSE, the size of its circulation, and the hospital’s promotion campaign in the SCMP, and that he was approached by the marketing department to write an article for PULSE, it is not a reasonable conclusion that he should appreciate there was a risk of his article being re-published in the SCMP.

32.  In my view, the Council’s conclusion that the appellant would or should have been put on the alert such that he should have taken steps to prevent the publication of the SCMP Article is not supported by the evidence presented at the inquiry. The conviction on the canvassing charge has to be set aside.  For the same reason, the conviction on the plagiarism charge insofar as it relates to the SCMP Article will also have to be set aside.  

Appeal against sentence

33.  It follows from the decision on the appeal against conviction that the sentence on the canvassing charge should also be set aside.

34.  In respect of the sentence on the plagiarism charge, the appellant’s appeal is twofold. First, it is argued that with the setting aside of the part of the conviction relating to the SCMP Article, the order of removal from the General Register is too severe.  Second, it is argued that, in any event, one of the conditions for suspending the removal order should be set aside because it is improbable, if not impossible, for the appellant to obtain 10 CPD points in professional ethnics within the suspension period.  I will deal with these grounds in turn.

35.  The Council’s sentencing option is set out in section 18(1) of the Dentists Registration Ordinance.  The options include: (i) removal from the General Register indefinitely or for a specified period; (ii) reprimand; and (iii) other order as the Council thinks fit, but which shall not be of greater severity than an order of removal from the General Register or reprimand. 

36.  The appellant had a clear record.  He did not put forward any mitigation at the inquiry hearing. 

37.  When passing sentence, the Council expressed concern over the appellant’s evidence that since 1988, he had not read the Code of Professional Discipline and was therefore ignorant of the changes made to the Code over the years, at least two of which were major changes.[14] The Council took into account the gravity of the case and further noted that the purpose of a disciplinary order is not to punish, but to protect the public from persons who are unfit to practice for reason of integrity, competence or otherwise, and to maintain public trust in the dental profession by upholding the reputation of the profession.[15]

38.  Mr Tang in his submission rightly accepted that the plagiarism charge, even confined to the PULSE Article, is serious in nature.  He, however, argued that it was not the most culpable of the cases in that the PULSE Article was not a scholarly article, but was only to introduce the appellant and his experience, and it had a limited circulation.  In my view, whether the article is a piece of academic or scholarly writing does not detract from the Council’s observation that it is dishonest to appropriate other people’s clinical achievement and to publish it as if it is one’s own work. 

39.  It is also the Council’s finding that PULSE is a marketing publication of the hospital for circulation to a section of the public.  The fact that the PULSE Article was intended as an introduction of the appellant and his area of specialty adds to the gravity of the plagiarism.  To say the least, the inclusion in the article of the set of clinical photographs without any acknowledgement has the effect of presenting the appellant as a more able dentist.  It is to be noted that the appellant had no experience in revised cleft lip operation.  

40.  Further, as highlighted by Ms Chow for the respondent, public interest requires that information disseminated to the public is accurate, factual and objectively verifiable,       

41.  Thus viewed, even though the conviction on the plagiarism charge is confined to the PULSE Article, a suspended removal order is within the proper range of sentence that may be imposed by the Council in the circumstances of the case.  There is no ground for this court to intervene.

42.  I next turn next to the condition imposed by the Council for suspending the removal order which requires the appellant to undergo continuing professional development in professional ethics to the equivalent of 10 CPD points within the two years’ suspension period.  In his affirmation filed in this appeal, the appellant stated that since the commencement of the Continuing Professional Development (CPD) Programme in 1998 up to the CPD cycle ending on 31 December 2013, none of the 11 programme providers had provided or organized any CPD programme on professional ethics.  The appellant further stated that upon his solicitors’ enquiries with all the programme providers, only five had responded, but only to say that they did not intend or could not be sure whether they would organize a programme on professional ethics in future.  The appellant therefore asks that this condition be quashed as it is improbable, if not impossible, to comply with it.

43.  The Council does not accept it is improbable or difficult for the appellant to comply with the condition.  In the reply affirmation filed on its behalf, it is stated that the Council would regard CPD courses / workshops on “risk management” provided by the Hong Kong Dental Association as subjects under professional ethics.  It is further stated that in a previous case, a dentist who was required to undergo CPD courses in professional ethics to the equivalent of 10 CPS points within six months had approached and was given approval by the Council to take online CPD courses in ethics offered by overseas CPD providers.

44.  In my view, this condition is problematic and should be removed.  First, the evidence produced by the appellant suggests that no CPD courses on professional ethics have been conducted in the past few years and there is no prospect of such courses being run in the imminent future.  Prima facie, there is difficulty in complying with the condition imposed by the Council.

45.  Second, non-compliance with the condition carries serious consequences for the appellant in that his name is liable to be removed from the General Register. Thus as a matter of fairness, the condition should be sufficiently clear for it to be complied with or implemented.  If it were intended that for the purpose of complying with the sentence, CPD courses in professional ethics cover also CPD courses / workshops on “risk management” provided by the Hong Kong Dental Association and/or online CPD courses in professional ethics offered by overseas providers, this should be made clear either in the sentence itself or the reasons for sentence or through the promulgation by the Council of a list of accredited or approved courses.  It is unsatisfactory to leave it to the appellant to source the suitable courses and then to seek the views of the Council.       

46.  Third, in imposing the condition, the Council was evidently concerned that the appellant had not been keeping up with the changes to the Code of Professional Discipline.  The purpose of the condition was to ensure that the appellant familiarize himself with the rules and standard of professional ethics in Hong Kong.  As Mr Tang submitted, it must be doubtful whether overseas online CPD ethics course will serve the purpose.

47.  For these reasons, I would allow the appeal against the sentence imposed on the plagiarism charge limited to removing the condition of undergoing continuing professional development in professional ethics to the equivalent of 10 CPD points.

Disposition

48.  Accordingly, I propose to make the following orders:

(1) The decision of and the sentence passed by the Dental Council on Charge (i) are set aside.

(2) The decision of the Council on Charge (ii) in respect of the publication in SCMP is set aside.

(3) The sentence passed by the Dental Council in respect of Charge (ii) is varied to the extent that the condition requiring the appellant to undergo continuing professional development in professional ethics to the equivalent of 10 CPD point within the two years’ suspension period be set aside.

(4) There is order nisi that the respondent pays ¾ of the costs of the appellant of the appeal.

 

Hon Barma JA:

49.  I agree.

Hon McWalters JA:

50.  I agree with the judgment of Chu JA.

[1] It has since the March/April 2010 issue become accessible online.

[2] Findings at §5.

[3] Findings at §34.

[4] Findings at §33.

[5] Findings at §36.

[6] Findings at §§37-39.

[7] Findings at §11.

[8] Findings at §§12 and 13.

[9] Findings at §15.

[10] Findings at §§19 and 20.

[11] Findings at §22.

[12] Findings at §§23 to 26.

[13] At §38.

[14] Findings at §43.

[15] Findings at §§46 & 47.