WONG KIN KWOK MICHAEL v. THE DENTAL COUNCIL OF HONG KONG

CACV 183/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 183 OF 2014

(ON APPEAL FROM THE ORDER OF THE DENTAL

COUNCIL OF HONG KONG OF 23 JULY 2014)

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REASONS FOR JUDGMENT
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Hon Yuen JA:

1.  This is an appeal by Dr Michael Wong Kin Kwok (“the Dentist”) from a judgment of the Dental Council (“the Council”) given on 23 July 2014 finding him guilty of unprofessional conduct in respect of two charges arising from the treatment of a patient (“the Patient”) who had consulted him in November and December 2012. The Council ordered that the Dentist be removed from the General Register for a period of three months.

2.  The Dentist appealed from both the findings of unprofessional conduct as well as the sentence.

3.  At the conclusion of the hearing on 16 April 2015, the appeal was dismissed with an order that the Dentist pay the Council’s costs.  My reasons appear below.

Background

Consultation and operation on 23 November 2012

4.1.   On 23 November 2012, the Patient who was suffering from pain in tooth 46 (the first molar in the lower right jaw) consulted the Dentist at about 10 am.  He was a new patient and had not made an appointment. 

4.2.   After taking a panoramic radiograph, the Dentist advised the Patient to have the tooth extracted, and to have an implant done on a later date.  The Patient agreed. 

4.3.  The extraction started at 1 pm that day.  It ended at about 1:45 pm.  At the hearing before the Council, the Dentist said that the extraction was more complicated than he had anticipated, that he had another appointment at 2 pm and that he had not had his lunch yet. 

4.4.   It was common ground at the hearing that parts of the tooth remained in the extraction site (“the fragments”).

4.5.   At the hearing,

- the Dentist said he was aware of the fragments and had told the Patient that they would be removed when he returned for the implant, for which an appointment was made for 12 January 2013 (some 7 weeks later);

- the Patient said he was never told about the fragments and that if he had, he would have insisted that the operation be completed then.

4.6.  The Dentist’s written record for that visit recorded the extraction and the next appointment on 12 January 2013 for the implant.  It did not record that there were fragments, or that the 12 January 2013 appointment was also for extraction. 

4.7.   At the hearing, the Dentist said that he would normally have written down the fact that there were fragments and would have asked the patient to sign in acknowledgment, but that perhaps because he was intending to finish the extraction the following month, he had not written it down.  However he had kept the part of the tooth that was extracted with the file, and he regarded that as a record that there were fragments. 

4.8.   The Dentist did not prescribe any antibiotics or analgesics to the Patient.

5.  On 28 November 2012 the Patient left Hong Kong on business.  During this time he was in pain. 

Consultation on 7 December 2012

6.1.  The day after his return to Hong Kong (7 December 2012), the Patient went back to see the Dentist complaining of pain. 

6.2.   It was common ground at the hearing that the Dentist only examined the extraction site visually and did not cause an x-ray to be taken to check if there were fragments.  After the examination, the Patient was told to return on the previously appointed date.  No antibiotics or analgesics were prescribed.

6.3.   At the hearing,

- the Dentist said that he checked the extraction site and saw the wound had healed well with no signs of infection, so he told the Patient to return on the previously appointed date;

- the Patient said the Dentist examined him, sprayed something in his mouth and did something, after which the Dentist reassured him that it was “okay” and said he could leave.  The Patient said he had heard a metallic sound which had led him to believe that something had been dropped into a metal dish.  He did not however see what (if anything) had been dropped.  He asked the Dentist what it was and he was told that it was just a fragment, that it was alright and that he could leave.  He understood that he was to return for the implant on the previously appointed date. 

6.4.   The Dentist’s written record for that visit showed that

- the Patient was still complaining of pain

- the wound was checked and “is okay”

- the 12 January 2013 appointment was kept for the implant to be done.

Telephone discussion on 8 December 2012

7.1.   The next day the Patient was in great pain and he decided to consult another dentist.  An x-ray was taken, which showed that there were fragments in the extraction site. 

7.2.   It was common ground at the hearing that the Patient immediately telephoned the Dentist and told him about the x-ray findings.

7.3.   At the hearing,

- the Dentist said that he told the Patient that if he was worried, he could return in a week’s time;

- the Patient said that the Dentist had told him that if there were fragments, they could be extracted when he came for the implant.  He was not told to make an appointment earlier than the previous appointed date. 

7.4.   The Dentist’s written record (undated) stated:

“talk to patient, He saw another dentist who said there are 2 pieces still in socket, pt quite annoyed, coming back 1 week”.

It was not recorded that an appointment was made.

Subsequent events

8.  On 15 December 2012, the Patient arranged for the fragments to be extracted by another dentist as he had lost confidence in the Dentist.

9.  On 7 January 2013, the Patient made a written complaint to the Council.

10.  On 10 January 2013, the Dentist’s record indicated that the Patient was reminded of the appointment for 12 January 2013 but that he cancelled it as he had the fragments extracted at a hospital and did not wish to have the implant.

The Charges

11.  In due course, by a Notice of Inquiry dated 4 December 2013, the Council gave notice to the Dentist of an inquiry into the following two charges:

“That you, being a registered dentist, in the period from about November 2012 to December 2012, disregarded your professional responsibility to adequately treat and care for [the Patient], or otherwise to have neglected your professional duties to him in that –

(a) you failed to properly and adequately examine and provide treatment to the Patient on 7 December 2012 when he returned to you on complaint of prolonged pain following your extraction of his tooth on 23 November 2012 (“the extraction”); and/or

(b) you failed to give proper advice and/or offer proper follow-up treatment to the Patient when he called you after his consultation with another dentist who had confirmed there might be remaining root left after the extraction;

and that in relation to the facts alleged you have been guilty of unprofessional conduct”.

The Hearing

12.1.   The hearing started on 17 July 2014.  The Dentist was not legally represented.  He confirmed to the Legal Adviser that he was aware of his right to be legally represented, that it was his considered decision not to be represented by a lawyer and that he wished to defend the case on his own.

12.2.   The Patient gave evidence and was cross-examined by the Dentist.  The right to make a submission of no prima facie case was explained to the Dentist.  He made no submission.  He chose to give evidence but did not call any witnesses. 

12.3.   The Dentist then addressed submissions to the Council. 

12.4.   At that point the Chairman asked the Legal Officer if she wished to make an address in reply, expressly stating that she may do so, either if defence evidence other than the defendant’s own evidence had been adduced, or if special leave was given by the Council.

12.5.   The Legal Officer then proceeded to make submissions to the Council.  The Council then adjourned to 23 July 2014 for decision.

12.6.  On 23 July 2014 the Dentist appeared with a solicitor who asked for the Patient to be recalled for cross-examination and for the case to be re-opened to call further witnesses.  For reasons given in its written ruling, the Council rejected that application.  The ruling is not the subject of appeal.

The Judgment

13.  The Council delivered its judgment finding the Dentist guilty of both charges.  As far as disputed facts were concerned, the Council found that on 23 November 2012 after the extraction, the Dentist had not told the Patient there were fragments remaining.  The Council came to this conclusion after considering (a) the lack of a record of the fragments, (b) the long period between that date and the next appointment (12 January 2013) during which the fragments could become infected, and (c) the fact that the Patient was surprised to learn about the fragments after his visit to the second dentist, such that he immediately telephoned the Dentist (para. 15 Judgment).

14.  The Council found charge (a) proved because when a patient returned complaining of pain for 2 weeks after an extraction, a responsible dentist should conduct careful clinical and radiographic examinations to ascertain the reason for the prolonged pain.  However the Dentist did not do so when the Patient returned on 7 December 2012.  He did not cause an X-ray to be taken, nor did he prescribe any analgesics to the Patient (paras. 16-18 Judgment). 

15.  The Council found charge (b) proved because when a patient informed the dentist about another dentist’s finding which caused the patient to be concerned, it was the first dentist’s professional duty to ask the patient to return as soon as practicable so as to assess the patient’s condition and to determine what (if any) follow-up action was necessary, especially if the patient was in pain. However the Council found the Dentist did not do so when the Patient telephoned him on 8 December 2012.  He only told the Patient to return on the previously appointed date, which was more than a month later.  The Council found that even if the Dentist had offered the Patient an appointment a week later (as the Dentist claimed but which the Council rejected), there would still have been an unacceptable delay (paras. 20-22, Judgment). 

Grounds of appeal on finding of unprofessional conduct

Ground 1

16.  Mr Manuel Chong, counsel for the Dentist, sought to advance a large number of wide-ranging arguments under the rubric of Ground 1.  This is not to be encouraged but I will nevertheless deal with each in turn. 

17.1.  It was first argued by Mr Chong that the Council misdirected itself on the effect of the fact that there was no record that the Dentist had informed the Patient after the extraction on 23 November 2012 that there were fragments remaining in the extraction site (as the Dentist said at the hearing). 

17.2.  Mr Chong seized on a remark by the Chairman, as follows:

“And we have a very simple and clear requirement on practitioners that the record must be kept contemporaneous, accurate, so it is not for any panel or anyone to judge what is in your mind or what you think. ... and if something is not written down, it just did not occur, it did not happen. See, the gravity is there. We can only look at what’s been written down”.

17.3.   Mr Chong argued that it showed the Council’s view was that the absence of a written record was conclusive evidence that an event did not occur.

18.1.   In my view, first it should be noted that the Chairman’s remark was only made during the hearing at the end of the Dentist’s testimony, and there was no reference in the Judgment to any evidence being conclusive or words to that effect.

18.2.   Secondly, the Judgment clearly shows that the Council found there were three grounds for finding that the Dentist did not inform the Patient there were fragments: (a) the record did not mention fragments; (b) the long period before the next appointment, and (c) the Patient’s reaction when he was told by the other dentist about the fragments.  If the Council had laboured under the misconception suggested by Mr Chong, there would not have been the need to refer to the second and third grounds at all.  All these factors suggested that the Dentist was probably not aware of the presence of the fragments, because if he had, on his own evidence he would normally have put that on his record and asked the Patient to sign in acknowledgment. 

18.3.   In any event it is difficult to see how this argument assists the Dentist’s case. Charge (a) is concerned with the Dentist’s action on 7 December 2012 and is premised on the Dentist not being aware that there were fragments in the extraction site, which is to the Dentist’s benefit.  If the Dentist had been aware of it,

- his failure to finish the extraction on 23 November 2012 (so that he could have lunch before his next appointment) might have been made the subject of another charge, in light of the Council’s findings at para. 15(b); and 

- his failure to undertake more thorough examinations and to provide palliative treatment when the Patient returned on 7 December 2012 complaining of pain for the past 2 weeks  would have made the Dentist even more culpable.

19.  Mr Chong also argued that the Code of Professional Discipline did not require that records must be in written form and that the Council erred in finding that the Dentist made no record whatsoever.  It was argued that the incomplete tooth had been kept in the Patient’s file as a record.

20.1.   That argument is untenable.  Paragraph 4 of the Code states:

“Dental practitioners should keep accurate and contemporaneous records of dental treatment and should keep them for a minimum of three years since the patient’s last treatment. It is the responsibility of the dental practitioner to safely maintain these records against loss and to safeguard their confidentiality”.

20.2.   It is clear from that paragraph that a part of a tooth, by itself, could not possibly be regarded as a “record of dental treatment” which must be kept for a minimum of three years, to be maintained and its confidentiality safeguarded.

21.  Mr Chong also argued that the Patient was aware that the tooth was broken during the extraction, by reference to his evidence at the hearing (Transcript p.20). However I do not see how that assists his case.  The fact that a patient was aware that a tooth was broken during extraction does not mean that he was aware that the dentist had failed to clear up all the fragments.  

22.  Mr Chong also argued that the Patient’s evidence was not without flaws.  The Patient said at the hearing that on 7 December 2012 he had heard a sound which led him to believe that a fragment had been taken out and dropped onto a metal dish, and that the Dentist told him a fragment had been removed.  However no anaesthesia had been applied.  

23.1.   In my view it is obvious from the questions that the Council asked the Patient that they paid special attention to this part of his evidence.  It is also clear from its findings that they did not find that the Dentist had removed any fragments on 7 December 2012, contrary to what the Patient believed.

23.2.   That said, a fact-finding tribunal is entitled to accept parts of a witness’ evidence and to reject other parts.  An honest witness’ evidence may be flawed due to misapprehension or a faulty recollection. 

23.3.   More importantly it was not part of the Dentist’s case that he had already provided proper treatment to the Patient on 7 December 2012 by way of extracting the fragments, so the Patient’s misapprehension that some, but not all, fragments had been extracted is not to the point.  It was therefore not necessary for the Council to examine this inaccuracy in the Patient’s evidence.

24.  The same analysis applies to the Patient’s evidence that he felt a piece of sharp object protruding from the gum at the extraction site, which was relieved after his visit to the second dentist.

25. Mr Chong also argued that the significance of taking another x-ray on 7 December 2012 was “left unsaid” in the Judgment and that the need to do so pre-supposed that the Dentist was unaware of the fragments. 

26. One only needs to read paras.16-17 of the Judgment to see the Council’s explanation of the need for proper investigation. 

27. Mr Chong’s argument that it was a matter of clinical judgment and that expert evidence was not called is also untenable.  This was a relatively simple case and the Council was well-equipped as a professional body, and entitled on the evidence, to make the decision it did.  The following approach is well-established (see Tong Pon Wah v Hong Kong Society of Accountants [1998] 2 HKLRD 427 at 440C to E:

“Every professional body is entitled to apply its own professional judgment to a case in which one of its members is called on to justify his conduct in (allegedly) failing to observe a standard or guideline laid down by that professional body for the protection of those dealing with members of that professional body. It is not, in my judgment, for this court to second-guess the professional judgment of a disciplinary committee such as this except where it can be seen that it has plainly misread the evidence and come to a conclusion which is contrary to the evidence or is otherwise plainly wrong”.

Grounds 2 and 3

28.  Mr Chong argued first that, in respect of charge (b), the Council should not have accepted the Patient’s evidence that the Dentist did not offer an appointment in one week’s time. 

29.  This is an academic argument which can be disposed of summarily, because the Council found that it was unacceptable for a patient who was in pain and who was deeply concerned to have to wait one more week. 

30.  Mr Chong then argued that it was a matter of clinical judgment because “on the evidence, [the Dentist] was aware of a root left in the socket, and he found that the wound was healing well on 7 Dec.  It was [the Dentist’s] clinical judgment that it was a ‘minor pain’.  As a result, on 8 Dec, he offered an earlier appointment 1 week later”.

31.  That argument is proffered on the basis that the Dentist was aware of the fragments, which was not the finding of the Council.  Moreover, the analysis at para 18.3 above would also apply.  The approach to issues of clinical judgment set out in para 27 above also applies.

32.  Finally, Mr Chong argued that the Council had adopted the wrong test in para. 21 of the Judgment.  However it can be seen that the Council was well aware of the definition of unprofessional conduct as shown by the paragraph (para. 22) immediately following that quoted by Mr Chong.

Grounds 4 and 5

33.  Mr Chong argued that the Council had allowed itself to be influenced by irrelevant and prejudicial facts pertaining to the acts or omissions committed on 23 November 2012, as those were not the subject of any charge.

34.  In my view, reading the Judgment as a whole, it is clear that the Council had set out the events of 23 November 2012 as material background so that lay readers (such as this court) would be able to understand in context the significance of subsequent acts or omissions which were the subject of the two charges.

Ground 5A

35.  ;Mr Chong complained of procedural irregularity/unfairness as a need to prescribe analgesics on 7 December 2012 was not the Patient’s complaint nor the Secretary’s case against the Dentist.

36.  The facts of the present case are simple.  It would not require much thought to understand that when a patient is complaining of pain, palliative care, as a first recourse, should be foremost in the dentist’s mind.  The argument, dressed up as a procedural irregularity/unfairness point, is entirely unmeritorious.

Ground 6

37.  Mr Chong also submitted that it was not clear whether the Council had granted special leave under s.27(e) Dentists (Registration and Disciplinary Procedure) Regulations, Cap. 156A when it permitted the counsel for the Secretary to make a closing submission when the Dentist had not adduced evidence other than his own.

38.  In my view, although leave was not expressly granted, it must have been impliedly granted, because the Chairman expressly referred to the above procedure immediately before permitting the counsel for the Secretary to address them. Having said that, it is to be hoped that in the future special leave should be expressly sought and granted, to avoid any misunderstanding.

Grounds of appeal on sentence

Grounds 7 and 8

39. Mr Chong argued that the Council had taken an unduly unfavourable view against the Dentist because it had considered the following matters which were not the subject of charges, but which were prejudicial:

(1) lack of competency in the extraction;

(2) the unusual practice in allowing clinical assistants to make clinical records;

(3) inadequate and inaccurate recoding of clinical matters; and

(4) quoting of unquotable qualifications on the Dentist’s business card.

40. 1.  As for the first matter, the Council expressly stated that “as the [Dentist] was not charged with impropriety in executing the extraction, the manner of extraction is not a factor affecting our decision on sentencing” (para. 27, Judgment).

40.2.   As for the other matters, they were set out in a section entitled “other remarks” after the sentence had been imposed.  It is clear therefore that these matters had not been considered for the purpose of sentence and are irrelevant to this appeal. 

Ground 9

41.  Mr Chong argued that the Dentist “refused to disregard” the Dentist’s previous record. 

42.  On the contrary, the Council had expressly stated that the previous conviction, which it noted was dissimilar in nature and occurred 31 years before the acts for which he was charged, was not an aggravating factor.  However the usual mitigation of a clear record was not available to him (para. 24).

Ground 10

43.  Mr Chong argued that no credit was given to the Dentist despite his having given assistance to the PIC during the preliminary investigation process. 

44.  However it would appear that the only assistance was that the Dentist supplied the Patient with the extract of the Patient’s record and a copy of the digital x-ray taken on 23 November 2012.  This can hardly qualify as providing assistance to an extent which would justify the giving of credit in sentence.

Ground 11

45.1.   Finally Mr Chong argued that the sentence was unduly harsh by reference to some previous decisions where orders for removal were suspended. 

45.2.   However Miss Chow, counsel for the Council on appeal, also referred us to some previous decisions where orders for removal were of greater severity.

46.1.   None of the facts in the cases referred to us were on all fours with the present case.

46.2.  In my view, especially where the case involved disputed facts and the Council had the benefit of seeing and hearing the evidence unfolding before it, an appellate court should be very reluctant to interfere with the Council’s sentence.  In the present case, the Council was entitled to take a dim view of the Dentist’s allegation that he had informed the Patient about the fragments after the extraction on 23 November 2012, when

- it was not recorded,

- it was inconsistent with an appointment made expressly for an implant,

- it was inconsistent with an appointment for some 7 weeks later (the risk of infection being  prolonged) and

- it was inconsistent with the Patient’s reaction when he was eventually made aware of the real situation.  

47.  For all the reasons given above, I dismissed the appeal with costs.

Hon Kwan JA:

48.  I agree with the Reasons for Judgment of Yuen JA.

Hon Chu JA:

49.  I agree.