Tan Sek Ho v Singapore Dental Board

• Jurisdiction: Singapore
• Judge: Amarjeet Singh JC
• Judgment Date: 23 April 1999
• Neutral Citation: [1999] SGHC 105
• Date: 23 April 1999
• Subject Matter: Professions,s 17(1) Dentists Act (Cap 76),s 17(1)(d) Dentists Act (Cap 76),Appellant allowing name and address of clinic to appear in magazine article,Allowing inclusion of laudatory statements about clinic's services and technology in article,Dentistry and dental practice,Words and Phrases,Whether appellant's conduct amounts to infamous conduct in a professional respect- Whether punishment of removal from Dental Register is permissive or mandatory,'Infamous conduct'
• Docket Number: Originating Motion No 36 of 1998
• Published date: 19 September 2003
• Defendant Counsel: Lim Tse Haw (Harry Elias Partnership)
• Court: High Court (Singapore)
• Plaintiff Counsel: Kenneth Tan SC and Kevin Kwek (Kenneth Tan, Kong & Tan)

Introduction

The appellant, registered under the provisions of the Dentists Act (Cap 76), practises dentistry under the name and style of Smile Inc Dental Surgeons Pte Ltd (`the Clinic`).

He is a licensee of the Clinic under the Private Hospitals and Medical Clinics Act (Cap 248). He is also a director and shareholder of the Clinic.

The appellant`s wife, Grace Chong-Tan (`Grace Tan`), is also a Director of the Clinic and works in an administrative capacity in the practice running and managing it.

The Singapore Dental Board is established and constituted under s 3 of the Dentists Act (Cap 76) and exercises disciplinary powers over dentists, inter alia, under s 17(1)(d) of the said Act as follows:

17(1) The Board may cancel a certificate of registration and direct the removal from the register of the name of any person registered if it comes to the knowledge of the Board that that person -

...

(d) has been guilty of infamous or disgraceful conduct in a professional sense; or

...

The Director of Medical Services issued Advertising Guidelines which were enacted under the Private Hospital and Medical Clinics Regulations (Cap 76, GN S35/77) and which took effect from 9 May 1997. The said Guidelines are applicable to healthcare establishments and such expression includes medical clinics covering doctors and dentists.

Under para 1.19 of the Advertising Guidelines concerning `Interviews with Media`, the interview must be unsolicited and must not publicise the healthcare establishment to the general public though the name, specialty and photograph of the interviewee is allowed to be published.

Under para 1.20 of the Regulations any statement in an advertisement as to efficacy of services provided must be factual and capable of being substantiated.

Under para 1.21 it is provided that advertisements shall not contain any laudatory statements (including statements of prominence or uniqueness) or superlatives to describe the services or premises of the healthcare establishment.

Paragraph 1.22 goes on to prohibit claims of superiority over other healthcare establishments directly or indirectly. In-house brochures and leaflets meant for patients are subject to the restrictions in para 3 of the Advertising Guidelines and no doubt are subject to all the above restrictions.

Under para 1.27 breach of the Regulations constitutes an offence punishable with a fine of $2,000 or 12 months` imprisonment or to both. No charge was preferred against the appellant punishable under the said paragraph. Instead disciplinary proceedings were instituted against him.

The appellant was charged, tried and found guilty by the respondents of infamous conduct in a professional respect touching the following first charge:

1 That on or about January 1998, whilst being a director and shareholder and the licensee of Smile Inc Dental Surgeons Pte Ltd (`the Clinic`) and whilst having an association with the Clinic, you did improperly attempt to profit at the expense of professional colleagues by, to wit, canvassing and/or touting and/or advertising by allowing:

a the Clinic to be identified by name, location and opening hours; and/or

b the following laudatory statements about the services of and technology in the Clinic to be made;

Particulars

(1) `we`re the first practice in Asia to offer laser tooth whitening`

(2) `it whitens one`s teeth permanently in one visit, eliminating even the deepest stains that nothing else seems to be able to remove`

(3) `we use the latest equipment and technology to virtually eliminate pain from dentistry`

and/or

c a photograph of the Clinic`s signboard to be published,

in an article entitled `Doctor Soothe` which appeared in the January 1998 issue of FEMALE magazine, for the purpose of obtaining patients or promoting your professional advantage, and that in relation to the facts alleged, you have been guilty of infamous conduct in a professional respect under reg 41(2)(b) of the Dentists Regulations (Cap 76, Rg 1).

The respondents thereafter directed the removal of the appellant`s name from the Dental Register.

The appellant, I may add, was acquitted by the respondents in respect of a second charge which had arisen from the same FEMALE magazine article in January 1998 and which averred that the appellant`s clinic was a `one stop specialist centre`. The Board in acquitting the appellant on this charge, recognised and acknowledged at the hearing that there was some confusion on the nomenclature of the term `specialist`. The Dental Act in fact is silent on the subject of accreditation and registration of dental specialists.

The appellant now appeals against the respondents` finding of guilt against him in respect of the first charge and their direction that his name be removed from the Dental Register.

The hearing

Case put for the respondents

The undisputed or indisputable facts are that one Susanah Cheok of FEMALE magazine was told by the appellant`s sister-in-law to contact Grace Tan and visit the appellant`s Clinic as it was worth looking at because it was different. Eventually Susanah Cheok went to the Clinic after Grace Tan had spoken to her on the telephone and given her an appointment. Grace Tan met Susanah Cheok on her arrival at the Clinic. Thereafter, Susannah Cheok was shown around the Clinic and was handed a printed `fact sheet` (`leaflet`) by Grace Tan. The leaflet is normally meant for the Clinic`s patients. The leaflet highlighted the services provided by the said Clinic and also contained the Clinic`s name, address and consultation hours at the bottom of the page. At or about the same time, Susanah Cheok interviewed both the appellant and Grace Tan.

Subsequently, Susanah Cheok wrote an article for FEMALE magazine on the appellant`s Clinic headed `Doctor Soothe`. It was her evidence that she wrote the article based on what she saw and found out and was `not coerced` into writing it or any aspect of it. It was also her evidence that the article was based on the interview and the contents of the leaflet or a combination of both. She faxed a draft copy of her article to Grace Tan as requested for vetting. The draft article was faxed back to her by Grace Tan with her amendments to the same. Susanah Cheok incorporated all the said requested amendments in the article thereafter. The address, telephone number and consultation hours which had appeared in the draft article was not amended or deleted by Grace Tan. Neither was there anything in writing from her or from the appellant by way of evidence suggesting that this information contained at the bottom of the article in italics as follows:

Smile Inc is located at [num ]02-124/126 Suntec City Mall, opposite Carrefour hypermart. Call 7331802 for appointments. Opening hours are 9am to 6pm from Mondays to Saturdays.

be deleted or removed.

The article was thereafter published in the January 1998 issue of FEMALE magazine at pp 89-92. The article contains the name of Grace Tan against quotations made by her but makes no mention of the appellant by name although one reference as appears below is attributed to him as the `ruddy faced dentist`.

The laudatory statements singled out by the respondents in para `b`, Particulars, of the charge are contained in the following paragraphs of the article, the relevant parts of which I now highlight and reproduce:

But what we are particularly proud of is the fact that we`re the first practice in Asia to offer laser tooth whitening. This technology has already brightened thousands of smiles around the world,` Grace tells me excitedly. If what she claims is true - that it whitens one`s teeth permanently in one visit, eliminating even the deepest stains that nothing else seems to be able to remove - girls like me should really give it a go. ...

Well, we use the latest equipment and technology to virtually eliminate pain from dentistry.` At worst we are working towards pain-free dentistry is my assurance from the ruddy faced dentist, who is beaming like a Cheshire cat as he shows me out.

A photograph of the clinic`s signboard published in the article which constituted element `c` of the Particulars in the charge lost its significance at the hearing as Susanah Cheok admitted that she had not sent the draft page containing the photograph alongside the draft article for vetting to Grace Tan. In the circumstances, the appellant was unaware that a photograph concerning the signage was also to be published - a fact the prosecution conceded before me.

I might add that before me, counsel for the respondents proceeded on the basis that the appellant did not canvass or tout but only advertised by featuring the Clinic in the article in FEMALE magazine.

Appellant`s case

The appellant`s case at the hearing was that a few days after Grace Tan had communicated her amendments to Susanah Cheok by fax, the draft article sent earlier by Susanah Cheok came to his attention. He had not seen the draft article earlier. He had then queried his wife saying to her `How about this box`. He said he had realised that his clinic was being identified by name, location and opening hours in what he referred to as a box under the article and became very concerned as it infringed the Advertising Guidelines. As such, he immediately telephoned and spoke personally to Susanah Cheok that she take out that portion of the Article. She had assured him she would. In the circumstances, he was not to be held responsible for the said offending portion subsequently published in the article relating to the name, location and opening hours of his clinic. The appellant further disputed:

(i) that the various statements stated in the charge touching the clinic`s services and the technology available there were not made at the interview. They were extracted from the leaflet and were not meant to be laudatory for the purpose of obtaining patients or promoting his professional...