DR. LEE CHIU TONG v. THE MEDICAL COUNCIL OF HONG KONG

IN THE COURT OF APPEAL

1995, No. 220
(Civil)

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J U D G M E N T

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Ching, J.A. (giving the judgment of the Court) :

1. The Appellant, Dr. Lee Chiu Tong, is a registered medical practitioner. On 4th October, 1995, the Medical Council of Hong Kong found that he had committed two disciplinary offences. It ordered that his name should be removed from the medical register for a period of 12 months suspended for two years. He now appeals to this Court against the findings of guilt.

2. The charges he faced were as follows:-

"That you, being a registered practitioner did on or about 9 March 1994:-

(a) Canvass for the purpose of obtaining patients by:

(i) associating with the "Europe Beauty and Electropathy Center" at Flat B, 14/F., Golden Swan Commercial Building, 438 - 444 Hennessy Road, Causeway Bay, Hong Kong,

(ii) the Center advertising beauty therapy services to the general public,

(iii) the Center directing or arranging for the patient Madam Chan Lai-nar to see you for a cosmetic operation at your surgery at Flat A, 6/F., Cameron Plaza, Cameron Road, Tsim Sha Tsui, Kowloon, and

(iv) the Center collected fees in part payment for the said treatment on your behalf,

AND

(b) engage in improper financial transactions by sharing fees with the "Europe and Beauty Electropathy Centre" which had not taken a commensurate part in your treatment to and operation upon the patient Madam Chan Lai-nar, for which fees were charged and that in relation to the facts alleged, you have been guilty of misconduct of professional respect."

The name of the beauty centre appears in a receipt, Exhibit E, as "Europe Beauty and Electropathy Club" but nothing turns on this. The language has gone wrong at the end of charge (b) for it should have read "misconduct in a professional respect" but again nothing turns on this. The words "..... and that in relation to the facts alleged, you have been guilty (in a) professional respect" must apply to both charges.

3. The beauty centre advertised its services in the mass media. One such advertisement, Exhibit C1, was in a magazine. It included a photograph of a lady by the name of Pinky Leung. Some of the services were advertised under the heading "Physiotherapy" after which were the words,

"Make use of drugs in conjunction with equipment, no need to do operation, perfect effect."

Among these services were "Breast augmentation/reduction" at $450 and "Nose reshaping" at $2,300. Just how breasts can be augmented or reduced or how a nose can be reshaped without an operation is not apparent.

4. Madam Chan Lai-nar is a married woman who had undergone Rhinoplasty in the People's Republic of China. She was dissatisfied with it and she also wanted her breasts enlarged. She saw the advertisement, Exhibit C1, and visited the beauty centre on 8th March, 1994. There she saw Ms. Leung whose photograph was in the advertisement. Ms. Leung advised her that it would be best if she were to have operations for the implantation of saline bags into her breasts and for a further Rhinoplasty. The price for the Mammoplasty would be $20,000. If laser treatment were used there would be no pain but this would cost another $10,000. To take out the existing nasal prosthesis would cost $8,000 and the Rhinoplasty would cost $17,000. Madam Chan said it was too expensive and Ms. Leung told her that if both operations were done together there would be a reduction of $8,000 and the total price would be $47,000. Madam Chan decided to have the operations and she was told that they would be done at the Appellant's clinic. Ms. Leung gave her a piece of paper, Exhibit D, on which was written, inter alia, the address of the clinic, some directions as to how to get there and two telephone numbers. She was then asked to pay and she did pay $7,000 for which she was given a receipt, Exhibit E. It was addressed to "Miss Amn" or it may be "Miss Amy" for "Treatment". It had a line for "Total" against which was written "$47,000". Below that was a line for "Deposit" against which was written "$7,000". Finally there was a line for "Balance" against which was written "$40,000". Madam Chan was anxious to have the operations and Ms. Leung then made a telephone call after which she told Madam Chan that the operation had been arranged for the next day. She told Madam Chan to pay the remaining $40,000 to the Appellant at his clinic the next day where she would be met by another member of the staff of the beauty centre to whom she was then introduced.

5. The next day, 9th March, 1994, Madam Chan went to the Appellant's clinic. There she saw a nurse and upon enquiry she said that she had been "introduced" by "Miss Leung". Later the Appellant asked her the same question and received the same answer. There is no evidence that on either occasion the answer occasioned any surprise or provoked any further enquiry. The staff member of the beauty centre arrived. Madam Chan and the staff member were shown into the Appellant's consultation room and there they saw the Appellant and a nurse. The staff member took out a Xerox copy of Exhibit E and placed it on the table. She said that Madam Chan owed $40,000 and asked her to pay that sum to the Appellant. Madam Chan paid that sum to the Appellant in cash and asked for a receipt. The Appellant said that he could not give her one as his accountant was absent.

6. The operations were then performed. Madam Chan was dissatisfied and was asked to return the next day for further attention. She went home but she was in such pain that she could not do so. She did return on 12th March, 1994, with her husband. Ms. Leung was also there but left after telling the Appellant to do a better job. Before the Medical Council the Appellant alleged that Madam Chan and her husband tried to blackmail him. However that may be, Madam Chan waited at the clinic until 3.00 a.m. the next morning but received no further attention. Sometime during that visit she pressed the Appellant for a receipt and he gave her one, Exhibit F, in the sum of $40,000. It is a printed form with headings for different services but no description of any form of service has been inserted. Eventually Madam Chan made a complaint to the Medical Council.

7. The Appellant represented himself before the Medical Council and persisted in doing so notwithstanding the advice of the Legal Adviser. His cross-examination of Madam Chan elicited nothing and he did not put his case to Madam Chan notwithstanding further advice from the Legal Adviser. He gave his evidence in chief by way of reading from a statement which he had previously submitted to the Medical Council. This consisted of argumentative denials and, so far as is material, the following matters:-

(1) He had no connection with the beauty centre. He had no need to advertise and relied upon the availability of his services being spread by word of mouth. If the beauty centre wished to recommend him to its customers it had nothing to do with him. In answer to questions he said that his name did not appear on the door of the clinic, which he shared with others, in the common parts of the clinic or anywhere else in the building.

(2) He did not know if anyone was with Madam Chan on her first visit to the clinic. Save that he denied it in cross-examination, he did not deal with the evidence that the staff member of the beauty centre was with Madam Chan in the consultation room, the production of Exhibit E or the request that Madam Chan should pay to the Appellant the sum of $40,000 which she owed him. He denied that he asked Madam Chan who had "introduced" her. He denied the presence of Ms. Leung on Madam Chan's second visit on 12th March, 1994.

(3) He charged an inclusive fee of $47,000 for the Rhinoplasty and the Mammoplasty which was in line with fees charged by other practitioners for this type of surgery at the time. $7,000 was for what he described as "instruments" such as the breast and nasal prostheses, sutures and disposable accessories while $40,000 was the actual operation fee. He explained to Madam Chan that she had atrophy and ptosis so that her breasts were sagging and she could well need a further operation, a Mastopexy including transplantation of the nipples, removal of excessive skin and breast reconstruction. Since the fee included an "immediate follow-up appointment" there would be no further charge for such an operation.

(4) Madam Chan had in fact paid him $47,000 in cash. He referred to her complaint in which she had stated that she had taken $47,000 to his clinic and that she had paid $40,000. He produced copies of a translation of this to the Medical Council upon which he had altered the $40,000 to read $47,000. Madam Chan, recalled, said that she had taken $40,000 to the clinic and not $47,000.

(5) It was not his practice to give receipts to his patients unless they asked and this they seldom did. He denied that Madam Chan asked for a receipt on 9th March, 1994. He did not explain how he could keep his accounts. If he kept any records of payments such as a cash book or day book he did not produce any.

(6) On 12th March, 1994, Madam Chan insisted on two receipts, one for $7,000 and the other for $40,000. He gave them to her but kept no copies.

(7) He pointed out that Exhibit E was made out to "Miss Amn" or "Miss Amy" while Madam Chan had said she had no English name. Madam Chan did in fact give that evidence but went on to say that she thought the question to her was whether she originally had an English name, which she had not, although she was known as "Amy".

The Appellant called no further evidence.

8. The Medical Council was the judge of fact, having seen and heard the witnesses and having decided upon their credibility. It expressly stated that it found Madam Chan a credible witness and believed her evidence that,

"..... she agreed a fee of HK$47,000 for the cosmetic operation and that she paid a HK$7,000 deposit to the beauty centre and the balance of HK$40,000 to Dr. Lee at his surgery."

The Medical Council was fully justified in making these findings. On charge (a) they concluded that there was an association between the Appellant and the beauty centre. They continued,

"The evidence for that comes from the mention of the name only of Dr. Lee at the beauty centre; the fixing of the fee of HK$47,000 before Dr. Lee had seen the patient; the arrangement to see Dr. Lee accompanied by a member of the staff of the beauty centre; the lack of discussion about the fee between Dr. Lee and the patient; and the unbelievable coincidence that Dr. Lee was charging the same fee of HK$47,000 according to his evidence."

The Medical Council was also satisfied that the beauty centre was advertising beauty services to the general public and that they arranged for Madam Chan to see the Appellant but they found that there was insufficient evidence that the beauty centre collected fees on his behalf in part payment for the treatment. They therefore found that particular (iv) had not been established but they nevertheless found that the Appellant had committed the offence in charge (a).

9. The first matter argued before us was that the disciplinary powers of the Medical Council under section 21(1) of the Medical Registration Ordinance, Cap.161, only arise where a medical practitioner has been found guilty of misconduct in a professional respect. It was contended that, even if all the particulars in charge (a) had been proved, misconduct in a professional respect would not have been proved. It was accepted that the words "misconduct in a professional respect" had the same inport as "infamous conduct in a profession respect" and that,

"Infamous conduct in a professional respect means no more than serious misconduct judged according to the rules, written or unwritten, governing the profession."

The argument was that once the Medical Council had produced written rules in any particular respect it was only to those rules that one should look and not to any which remain unwritten. No doubt there may be occasions when the written rules are so compendious that there is no longer any room for unwritten rules. This is not such a case. Indeed this is not a case where there are any written rules at all.

10. For the written rules the Appellant relied upon what was called section 10 of a Warning Notice issued by the Medical Council. As Mr. Simon Westbrook who appeared for the Medical Council before us pointed out it is not a section at all and reference to it as such may mislead into thinking that the Warning Notice is some form of statutory instrument and is to be construed accordingly. It is not. It is a pamphlet which proclaims itself to be "For the Guidance of Medical Practitioners" and begins by exhorting those practitioners, in their own interests, to familiarise themselves with, inter alia, the Medical Registration Ordinance, Cap.161, and in particular section 21 thereof. Part II, in which paragraph 10 is to be found, comes under the heading "Convictions and Forms of Professional Misconduct which may lead to Disciplinary Proceedings" and the first paragraph reads,

"This part of the pamphlet sets out certain kinds of offences and of professional misconduct which may lead to disciplinary proceedings by the Council. The Preliminary Investigation Committee and the Council must proceed as quasi-judicial bodies. The pamphlet is thus NOT a complete code of professional ethics, nor can it specify all offences which may lead to disciplinary action."

The pamphlet concludes with "Conclusion" and a "Note". The first reads,

"Conclusion.

It must be emphasised that the categories of misconduct described in this booklet cannot be regarded as exhaustive, since from time to time with changing circumstances, the Council's attention may be drawn to new forms of professional misconduct. Any abuse by a medical practitioner of any of the privileges and opportunities afforded to him, or any dereliction of professional duty or breach of medical ethics may give rise to a charge of professional misconduct."

The "Note" states the availability of advice from the Honorary Secretary of either the Hong Kong Branch of the British Medical Association or the Hong Kong Medical Association.

11. Quite rightly, the Warning Notice proceeds on the basis that registered medical practitioners should know the basics of the ethics of their profession. Without being exhaustive it draws the attention of those practitioners to some facts which may be considered to amount to professional misconduct. One of the basic prohibitions imposed upon a registered medical practitioner by the ethics of his profession is that against advertising. Some measure of the rigour of that prohibition may be seen in the fact that paragraph 8 of the Warning Notice devotes nearly eight pages to it. The paragraph deals in detail with such minutiae as the content, size and illumination of signboards, stationery, entries in street or telephone directories and circulars including visiting cards. It begins with sub-paragraph (a) which reads, in part,

"The tradition that medical practitioners should refrain from self-advertisement has long been accepted by the medical 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."

This is followed by sub-paragraph (c) which reads, in part,

"Advertising may also be considered to occur ..... if a medical practitioner is associated professionally with or employed by persons or organisations which advertise clinical or diagnostic services connected with the practice of medicine. In determining ..... whether professional misconduct has occurred, it is relevant to take into account:

(i) .....

(ii) the question whether the arrangements appear to have been intended to serve to promote the medical practitioner's own professional advantage or financial benefit."

It is to be noted that sub-paragraph (c) is not definitive. It sets out some acts which may be regarded as advertising.

12. It may be taken that no one advertises his wares or his services except with the intention of attracting customers. It may be carried out by the advertiser himself or by some one on his behalf. It can be done in the usual way by buying space or time in the mass media or by placards, by word of mouth or in any other way which human ingenuity may devise. Canvassing is but one form of advertising. It has the same purpose as and may be carried out in the same manner as advertising. There can be no logical reason why canvassing should be subject to rules different from those applying to advertising at the root of both of which there is a basic prohibition. Somewhat unnecessarily, paragraph 10 of the Warning Notice dealt separately with canvassing and it has been deleted from the pamphlet which has taken its place. In essence, it was argued that paragraph 10 does provide different rules for canvassing. That paragraph begins with the words,

"Canvassing for the purpose of obtaining patients, either by himself, his servants or others whether directly or indirectly, and association with or employment by persons or organisations which canvass may lead to disciplinary proceedings."

Practitioners are then told that except in an emergency they should not call upon or communicate with any person not already a patient with a view to providing advice or treatment unless expressly requested to do so. It goes on to say that the Medical Council does not consider it permissible for a registered medical practitioner to canvass by distributing visiting cards other than as a result of a request by an individual. Nothing could be clearer than that canvassing is prohibited just as much as advertising is prohibited. Paragraph 10 should be read together with paragraph 8.

13. The Appellant relied upon the second part of paragraph 10 which states in part that,

"..... medical practitioners are warned that association with any such institution, company etc. which advertises clinical or diagnostic services to the general public and directs patients to particular medical practitioners may be regarded as canvassing."

The companies and institutions referred to are set out just before the passage cited as being,

"..... nursing homes, medical benefit societies, insurance companies etc. which advertise clinical and diagnostic services but which allow a free choice of practitioner ....."

The beauty centre in the present case is not a nursing home, medical benefit society or insurance company and it is highly improbable that it can be included in the word "etcetera". However that may be, the passage cited does not assist the Appellant in his argument that the facts as found could not constitute an offence because the beauty centre had not advertised clinical or diagnostic services. In simple terms, canvassing and advertising are forbidden. It may be taken that a medical practitioner, knowing this, will not directly advertise his services. It may be taken that neither will a party with an improper association with that medical practitioner do so. What the Medical Council must do is to try to ascertain whether there has in fact been advertising or canvassing. The passage cited simply warns medical practitioners that factually, in the circumstances described, the Medical Council will find it easier to conclude that canvassing or advertising has taken place.

14. The appellant relied heavily on the judgment of this Court in Dr. Mu Lie Lian v. Medical Council (1994) 3 HKC 8 for the proposition that it had to be proved that the beauty centre had advertised clinical and diagnostic services. That is a misreading of the decision. The charge in that case appears at page 10 of the report from which it may be seen that it included an allegation that the beauty centre in that case advertised clinical and diagnostic services. It also alleged that the offence of Dr. Mu was "contrary to s.10 of the warning notice of the Medical Council of Hong Kong". The Court was dealing with that charge on the evidence presented.

15. There is no merit in the first argument advanced. It was then put forward that having regard to the discrepancies in the evidence of Madam Chan the Medical Council should not have accepted her evidence. It is not necessary to delay over this. It is sufficient to say that the acceptance or rejection of her evidence was a matter for the Medical Council and nothing has been put forward to show that it erred in this respect. The final argument under charge (a) was that in any event there was no evidence of indirect canvassing and that there was no evidence of association between the beauty centre and the Appellant. Generally, it was argued, again on the authority of Dr. Mu Lie Lian (supra), that it was necessary in a charge of indirect canvassing to show a course of conduct. That again is a misreading of the decision. At page 16 of the report, it was said that,

"What note 10 deals with in general terms is a course of conduct : an association between an institution and the medical practitioner which could lead to the inference that the advertising effected by the institution constituted indirect canvassing by the practitioner."

It is necessary to point out once more that the Court was dealing with the particular facts of that case. There is no requirement to show a course of conduct in every case if by that it is meant that proof of a single incident will not suffice.

16. An attack was made on each of the findings of the Medical Council which were enumerated as being:-

(a) Mention of the Appellant's name alone at the beauty centre on 8th March, 1994.

(b) The fixing of the fee of HK$47,000 before the Appellant had seen the patient.

(c) The arrangements to see the Appellant accompanied by the staff of the beauty centre.

(d) The lack of discussion about the fees between the Appellant and the Complainant.

(e) "The unbelievable coincidence" that the Appellant was charging the same fee of HK$47,000 according to his own evidence.

It is to be borne in mind that the Medical Council does not consist of lawyers. It gave its findings in very brief form but that is not to say that it ignored the rest of the evidence on any one of these points.

17. The suggestion that the beauty centre may have known of the Appellant's practice and the fees he charged by word of mouth cannot be countenanced. The advertisement, Exhibit C1, was addressed to the gullible. When Madam Chan visited the beauty centre she was told she needed operations by a doctor and the only name mentioned was that of the Appellant. The fees were stated with great particularity including the discount of $8,000 if the two operations were performed at the same time. A telephone call was made and it is an irresistible inference that it was made to the Appellant's clinic resulting in an appointment the next day. The evidence of Madam Chan was that she agreed the fee at the beauty centre. It was submitted that the Appellant in fact gave evidence that there was a discussion as to his fees on 9th March, 1994, at his clinic. That is a misuse of the word "discussion". His evidence was that he told Madam Chan what his fees were. They were precisely the $47,000 which Madam Chan had agreed at the beauty centre on 8th March, 1994, before the Appellant had seen her and indeed even before an appointment had been made. The fees were agreed to the extent that the Appellant was willing to throw in a further operation, the Mastopexy, without further charge. His explanation that he would make no further charge because the inclusive fee included a follow-up consultation ignores the difference between a consultation and a further operation. Madam Chan gave evidence that she told both the nurse and the Appellant that she had been "introduced" by Ms. Leung. Madam Chan gave evidence that the staff member of the beauty centre was not only present at the Appellant's clinic on 9th March, 1994, but that in the presence of the Appellant she produced the Xerox copy of the receipt for $7,000, Exhibit E, and asked Madam Chan to pay the remainder of what she owed, $40,000, to the Appellant. Madam Chan's evidence was that she paid the total of $47,000 being $7,000 to the beauty centre and $40,000 to the Appellant. Once the evidence of Madam Chan was accepted, as it was, the Medical Council was abundantly entitled to find as they did and to convict the Appellant on charge (a).

18. The appeal against that conviction is therefore dismissed. The appeal against the conviction on charge (b) is based on two arguments. First, it is said that the beauty centre could merely have been charging for the advice they gave Madam Chan or for referring her to a good surgeon. Quite apart from the fact that that would be, in colloquial terms, very easy money the argument ignores the evidence that the fees were agreed at the beauty centre and were agreed at $47,000 of which the beauty centre received $7,000 and the doctor $40,000. Secondly, it is argued that it was expressly found that there was insufficient evidence to show that the beauty centre was accepting fees on behalf of the Appellant in part payment for the treatment but that the Medical Council then went on to say,

"Although there was no evidence of precisely how much the beauty centre retained, and we accept it would be wrong to assume it was the HK$7,000 paid by Madam Chan as a deposit, we are satisfied that some part of that sum would have been retained by the beauty centre as their share of the HK$47,000."

There is an ostensible contradiction between a finding that there was insufficient evidence to show that the beauty centre was collecting fees for the treatment on behalf of the Appellant on the one hand and holding that the beauty centre retained only some part of the $7,000. Clearly, the Medical Council did not know how much of the $7,000 was kept by the beauty centre. Equally clearly, if the beauty centre kept only a part of it, the Medical Council did not know what had happened to the rest. The important factors were that the fees were $47,000 and that the beauty centre shared in a part of it without having taken any part in the services for which the fees were charged. It would be facile to think that the beauty centre acted as they did for nothing. It would be equally facile to suppose that whatever it was that the beauty parlour retained was not a part of the fees for the operation. The appeal on charge (b) must also be dismissed.

19. This appeal is therefore dismissed and there will be an order nisi that the Appellant do pay the Medical Council its costs of this appeal to be taxed if not agreed.