Yan Wing Yiu v. The Dental Council of Hong Kong

CACV000213/1993

IN THE COURT OF APPEAL

1993, No. 213
(Civil)

HEADNOTE

Allegation against a dentist of professional misconduct by advertising. Submitted that Dental Board, given that there was no cross-examination about intention, had convicted without considering intent i.e. had misdirected itself by failing to apply a subjective test. Held: The complaint of deliberate self promotion was clearly stated in the Notice of Inquiry and in the evidence and the Board must have been fully aware that the prosecution case was that there had been a deliberate instigation of publication to promote professional advantage.

IN THE COURT OF APPEAL

1993, No. 213
(Civil)

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Coram: Hon. Power, V.-P., Nazareth & Litton, JJ.A.

Date of hearing: 11 May 1994

Date of judgment: 2 June 1994

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J U D G M E N T

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Power, V.-P.:

1. This is the judgment of the Court.

2. By a letter dated 21st May 1993 the Dental Council of Hong Kong informed the appellant that complaints of misconduct in a professional respect had been made against him. These complaints were initially made in a letter of 4th September 1992 by the Hong Kong Association of Oral and Maxillofacial Surgeons to the Dental Council. They were repeated by the Dental Council in the letter of 21st May 1993 which alleged three acts of misconduct.

3. However, the notice of inquiry issued on 28th July 1993 charged only two of the complaints. It sets them out as follows:

"That you being a registered dentist did

(i) disseminate incorrect and misleading information in an article in issue 1236 of the Ming Pao Weekly Magazine of 19th July 1992; and

(ii) advertise by instigating, sanctioning, conniving at, organizing, or failing to take adequate steps to prevent the publication of an article in issue 1236 of the Ming Pao Weekly Magazine of 19th July 1992 which identifies you by name and commends or draws attention to your professional skill, knowledge, services or qualifications, contrary to Section 7 of the Warning Notice of the Dental Council of Hong Kong;and that in relation to the facts alleged, you have been guilty of unprofessional conduct."

4. Unprofessional conduct is defined in s.18(2) of the Dentists Registration Ordinance Cap.156 as

"an act or omission of a registered dentist which would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency".

5. Hearings under the Dentists Registration Ordinance are not infrequently equated with hearings under the Medical Registration Ordinance Cap.161. It is important, however, to note that the equivalent offence under the latter Ordinance is "misconduct in any professional respect" and that there is no definition of that phrase in the Ordinance.

6. The Dental Council must, when considering a charge of unprofessional conduct, satisfy itself that what was done or omitted to be done was such that dentists of good repute and competency would reasonably regard it as disgraceful or dishonourable. We are assisted in understanding the nature of the second charge by referring to Sections 6 and 7 of the Warning Notice which is referred to therein. The Warning Notice, issued by the Dental Council of Hong Kong for the guidance of dentists, is headed "Professional Discipline for the Guidance of Registered Dentists". The preamble states:

"All registered dentists are earnestly advised to read through this pamphlet and to acquaint themselves thoroughly with its contents, thereby avoiding the danger of inadvertently transgressing accepted codes of professional ethical behaviour which may lead to disciplinary action by the Dental Council."

7. Part I defines "Unprofessional conduct" saying that the term

"has been defined by the Dental Council of Hong Kong as 'If a dental practitioner in the pursuit of his profession, has done something which may be reasonably be regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, judged according to the rules, written or unwritten, governing the profession, then it is open to the Dental Council of Hong Kong, if such be proved, to say that he has been guilty of unprofessional conduct.' "

The notice goes on in Part II to deal with "convictions and forms of unprofessional conduct which may lead to disciplinary proceedings".

8. Section 7 deals with advertising in Part (A). It states:

"The tradition that dental practitioners should refrain from self-advertisement has long been accepted by the dental profession. Advertising is incompatible with principles which should govern relations between members of the profession, and could be a source of danger to the public. 'Advertising' in this context will be regarded by the Council in its broadest possible sense to include any means by which a dental practitioner is publicized, either by himself, his servants, agents or others, in a manner which can reasonably be regarded as promoting his own professional advantage. Whether a dental practitioner actually benefits from publicity is no defence to a charge of advertising."

9. The section goes on in Part (B) to state:

"The unprofessional conduct of advertising may arise from the publication either directly or indirectly (in any form in Hong Kong or elsewhere) of matter commending or drawing attention to the professional skill, knowledge, services, or qualifications of a dental practitioner when the dental practitioner concerned has instigated, sanctioned or connived at or organized such publication or failed to take adequate steps to prevent publication."

10. After a hearing held on 18th November 1993 it was the decision of the Council:

"that the facts alleged against Dr. Yan Wing Yiu in the first charge in the Notice of Inquiry has not been proved to the satisfaction of the Council, and the complaint is accordingly dismissed. And the facts alleged against Dr. Yan Wing Yiu in the second charge of the Notice of Inquiry has been proved to the satisfaction of the Council and he is guilty of the offence charged."

The Council ordered that, subject to any appeal, the appellant be reprimanded and that such decision be published in the Hong Kong Government Gazette. It is against that decision that Dr. Yan brings this appeal.

11. The article out of which the complaints arose was entitled "A Minor Oral Surgery can change the Contour of your Face No Outward Scars. Looks Like Stars". The writer of the article first posed a question - Could anything be done for people with irregularly shaped jaws? He then made reference to Dr. Yan Wing Yiu "Senior Dental Consultant of the Prince Philip Dental Hospital in the University of Hong Kong" saying that he had been told by Dr. Yan "Very few people know that the contour of their faces can be improved by just a small oral surgery". The writer went on to say that what could be done was called "Cosmetic Jaw Surgery" and that it was "a new special stream in dentistry". He continued quoting the appellant as saying that there were roughly two kinds of "Cosmetic Jaw Surgery" and the first kind "is just done for the improvement of face shapes. This includes rectification of prominent jaw lines, prominent cheek bones and short chins". After discussing the type of surgery involved the writer went on to again quote directly from the appellant stating "of course the most common reason for the surgery is that the patients want to be more good looking. This is natural everywhere". He went on, but not by way of direct quote:

"For example it would not be very difficult if one wants to look more or less like Lai Ming or Cheung Man Yuk. If one's appearance is all right doing the surgery just for the sake of looking like somebody is not encouraged from a medical point of view".

The article concluded:

"At present, oral surgery services provided in all the dental units in the Government's regional hospitals. However, cosmetic oral surgery is not included in the service. The Prince Philip Dental Hospital would sometimes conduct necessary cosmetic surgeries for the patients. However, the hospital is not a government run hospital and so the number of cases handled is limited. Most of the other surgeries are done in private hospitals or clinics".

12. It was the prosecution case that the appellant had incorrectly described the surgery suggesting that it was a much simpler procedure than it actually is and incorrectly indicating that "Cosmetic Jaw Surgery" was a recognized new stream in dentistry. The appellant, it must be noted, denied using the phrase "a new special stream in dentistry". He said that he had described "Cosmetic Jaw Surgery" as "a kind of surgery probably new to Hong Kong". However that may be there can be no doubt that this charge involved an allegation of a deliberate intention to mislead. The thrust of the second charge was that the applicant had advertised by instigating the publication of an article which drew attention to his professional skill contrary to section 7 of the Warning Notice. It was clearly implicit in this charge also that the applicant had acted with an intention to promote himself.

13. The first prosecution witness was Dr. Lee Kwing-hon, the Treasurer of the Association of Oral and Maxillofacial Surgeons. He gave evidence stating that the article was misleading in that it was suggested that such operations are much less serious than they actually are. He made particular complaint with regard to the concluding words of the article and stated:

"We also question the motive behind adding these statements in the article and the fact that Dr. Yan went into private practice shortly after publication of the article which means that there is an element of advertising and canvassing."

Referring to the suggestion that a person could be given the facial contour of another he said:

"We believe that it is impossible to achieve that kind of result. Orthognathic surgery can be done to correct facial deformities, so that the patient will look more normal, but one cannot perform this type of surgery to change a person's facial contours to look like someone else, let alone a famous singer or a famous movie star".

He said finally:

"Then we would also like to add some more information to the fourth area that I mentioned (the suggestion in the letter that most of the surgery described is done in private practice) is that there are five fully trained oral surgeons in the Government service at the present and another five qualified oral surgeons in the Prince Philip Dental Hospital, whereas there are only three to four qualified oral surgeons in private practice. This type of surgery is a very complicated type of surgeries belonging to major list of oral surgeries. They would not be performed by an ordinary dental surgeon or an ordinary dentist, so the bulk of this type of surgery is actually being performed in the public sector and not a private sector."

14. The cross-examination seemed to be principally aimed at showing that some purely cosmetic surgery involved relatively simple surgical procedures. Dr. Lee was far from prepared to agree that this was so. He was shown a classification of jaw surgery and asked to comment upon it. This was a classification drawn up by the appellant which, it is common ground, is not a recognized text book classification. It consists of three classifications - "A", "B" and "C". Classification A is "Cosmetic Jaw Surgery". It sets out three sub-classes and concludes with the words "Purpose: To look better". Dr. Lee refused to recognize any classification of "Cosmetic Jaw Surgery". His evidence in short was that there was jaw surgery to improve deformities and correct function and that any cosmetic improvement was an added benefit. He classed any surgery on the jaw for purely cosmetic reasons as plastic surgery. It was clear, indeed there was not any dispute in this regard, that while the techniques involved in "Cosmetic Jaw Surgery" were not unique to the appellant, the use of that descriptive phrase was.

15. The next prosecution witness was Tse Chi Wing of the Ming Pao Weekly Magazine. He had interviewed the appellant and written the article. He stated that the appellant was given a copy of the article before publication and that he had made some amendments thereto. Under cross-examination, however, he said that, while he believed that he had provided a script to the appellant before publication, he was "not 100% sure......". He agreed under cross-examination that the article was not for the purpose of advertising individuals and that the appellant had refused to be photographed. He said that he had come to interview the appellant because he, the appellant, had sent him a 2-page letter which he agreed was "an introduction of the topic in question".

16. The submission of no case to answer having been rejected, the appellant gave evidence. He adopted, as his evidence-in-chief, a written statement in which he describes his qualifications, and says that he has performed over 100 jaw operations, most of which were cosmetic surgery. He agrees that he approached the newspaper but says that he did so because he thought that the subject would be of general interest to the public and that his "sole motive" was to inform the public of the availability of this type of surgery. He says that he had no intention to advertise himself. He denies having had the opportunity to read the article prior to publication and says that he requested that his full name be not published and that on 18th August 1992, before there was any complaint, his solicitors, B.C. Chow & Co., wrote to the newspaper complaining, inter alia, that the article was published without his consent, (meaning, as he explains it, without his having been shown it), and that "parts of the article did not come out as I had expected". The letter is an unusual one as, although it complains that the article was published without consent, that facts were misrepresented and that it caused "unnecessary embarrassment", it does not go on to seek a retraction but concludes by stating that the appellant "has no intention of making any legal actions against the Ming Pao Weekly regarding this complaint".

17. The written statement sets out that "Cosmetic Surgery" is a recognized category of surgery. It later continues:

"I have prepared my own classification of the different types of jaw surgeries with brief descriptions on a separate sheet of paper which I now produce."

It is in this classification that the term "Comestic Jaw Surgery" appears. The statement asserts that certain of the operations described carry no risk of damage to tissue and are less complicated than corrective surgery and that such surgery is largely done in private hospitals or clinics.

18. The appellant was cross-examined at some length about his experience and the nature of the surgery he was describing but he was never challenged during cross-examination as to his statement that he had no intention to advertise himself.

19. The Board was satisfied that the first charge had not been proved, i.e. that it had not been proved that he had intended to mislead the public as to the nature of the surgery.

20. Mr. Thong, who appears for the applicant, submits that upon the evidence before it, the Council could not have been satisfied that the article was either intended to or likely to lead to some advantage to the appellant. He submits further that its nature and content was not such as would justify the conclusion that its publication amounted to "unprofessional conduct".

21. Mr. Thong, relying upon the fact that no direct challenge was made to the statement by the appellant that he had no intention to advertise, submits that it must be accepted as an "undisputed fact" that his "sole motive in giving the interview was to inform the public of the availability of a relatively new type of surgery called cosmetic jaw surgery." Mr. Thong, in effect, argues that the Board came to the conclusion that the appellant had advertised in the face of undisputed evidence that he had no intention so to do.

22. He referred us to Judith Mary Longstaff v. Medical Council of Hong Kong (1980) HKLR 858. In that matter, dealing, of course, with the Medical Registration Ordinance to which we have already made reference, Huggins, V.-P. was satisfied that the dominant intention of the article was not self promotion and that the Medical Council was wrong to find that the practitioner had been guilty of advertising. He was clearly satisfied that the test was a subjective one involving intention. Cons, J.A. was not satisfied that the sole test was subjective. He said:

"The guidance given by the Council in advertising is lengthy and couched partially in general terms and partially by reference to particular and common circumstances. As I read the whole of it two basic principles emerge.

The first is that for any publicity to amount to advertising it must contain some element 'which can reasonably be regarded as promoting (the practitioner's) own professional advantage'. A lawyer would say that it must be 'calculated' to do so, a phrase approved in this connection in Ding Lik Kiu v. The Medical Council of Hong Kong Civil Appeal No. 50 of 1972 (unreported). For present purposes it may be put in more general terms, that the publicity must either be intended or be likely to lead to some advantage to the doctor. It is not simply a question of subjective intent. It would be, for example, no excuse for a doctor to say that he really did not mean to benefit himself or that he personally did not realize that his conduct might do so. Nor is it simply a question of objective effect. Unsuccessful advertising will still remain advertising."

What I understand Cons J.A. to be saying here is that while the intention is a predominant factor, a doctor could not escape liability by saying that he didn't mean to promote himself if on any reasonable assessment of the facts he should have recognized that he was doing so.

23. However that may be the test to be applied, objective or subjective, does not cause any difficulty in the present case as we are prepared to approach the matter upon the basis of the more stringent subjective test, i.e. that deliberate misleading was an element of the first charge and that deliberate self promotion was an element of the second.

24. It is suggested that having found the first charge not proved the Board must, given that there was no cross-examination about intention, have gone on to convict upon the sole basis that the article contained an element of self publicity and without considering intent. This approach relies in effect upon the contention that the Board misdirected itself by failing to apply a subjective test. It does not rely upon a submission that there was no evidence before the Board upon which it could have arrived at its findings.

25. The complaint of deliberate self promotion was not only clearly stated in the details set out in the Notice of Inquiry but was also made plain in the evidence of Dr. Lee. The Board must have been fully aware that the main thrust of the prosecution case was that the appellant instigated the publication of the article to promote his own professional advantage. Nothing has been put before us which might lead us to think that the Board somehow lost sight of the nature of the complaint. Although the first charge failed, there was enough left in the evidence which justified the finding of the Board on the second charge. There is nothing to support the suggestion that they in some way misdirected themselves when considering that evidence.

26. The appeal must be dismissed.

27. We make an order nisi that the Dental Council have its costs of the appeal to be taxed.

Representation:

Mr. Nicholas Bradley (Crown Solicitor) for the Respondent.

Mr. K.Y. Thong (Messrs. Johnson, Stokes & Master) for the Appellant.