DR MU LIE LIAN v. THE MEDICAL COUNCIL OF HONG KONG

1994, No. 18
(Civil)

-Headnote-

Medical Registration Ordinance - Disciplinary proceedings - Finding of professional misconduct not sustainable by the evidence adduced at the hearing - Ingredients of the charge of canvassing not addressed. Appeal against finding of professional misconduct allowed. Order of Medical Council discharged. Observations by Court of Appeal on formulation of the charge : Warning Notice to doctors is "not to be construed as though it were a statute", following dictum in Judith May Longstaff v. Medical Council [1980] HKLR 858 at 862.

Observations on the role of the Legal Adviser under Regulation 33(1) Disciplinary Procedure Regulations.

IN THE COURT OF APPEAL

1994, No. 18
(Civil)

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J U D G M E N T

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Litton, J.A.:

1. Dr Mu Lie-lian is a registered medical practitioner. On 16 July 1993 the Secretary to the Medical Council served on her a notice to this effect:

NOTICE OF INQUIRY

Madam,

On behalf of the Medical Council of Hong Kong, notice is hereby given to you that in consequence of a complaint made against you to the Council, an inquiry is to be held into the following charge against you:-

" That on or about 1 October 1992 you, being a registered medical practitioner, did canvass for the purpose of obtaining patients by associating with Glory Beauty Centre at 57 Sun Fung Avenue, 2/F, Flat B, Sheung Shui, N.T., which advertises clinical or diagnostic services to the general public and directs patients to particular medical practitioners, in that the said Glory Beauty Centre arranged for a patient, Mr. Lam Tak-shing, to see you for treatment and collected fees on your behalf, contrary to section 10 of the Warning Notice of the Medical Council of Hong Kong; and that in relation to the facts alleged, you have been guilty of misconduct in a professional respect."

2. The inquiry was held on 6 January 1994. Upon its conclusion the Council ordered that, subject to any appeal which might be duly lodged, Dr Mu's name be removed from the register for one year and the decision be published in the Gazette. Pursuant to the provisions of s26(1) of the Medical Registration Ordinance Cap. 161 Dr Mu now appeals to this court seeking a reversal of the Medical Council's order.

The facts

3. There were only two witnesses called at the hearing: a Mr Lam Tak- shing (Mr Lam), called by counsel representing the Secretary and a Madam Kam Lai, called by the defence. Their versions of events were, in essence, not challenged in cross-examination by counsel representing the respective parties.

4. The primary facts emerging from their testimony were as follows -

(1) Mr Lam saw an advertisement in a magazine, advertising the services of Glory Beauty Centre at Sheung Shui N.T. near his residence; the services included facial treatment and slimming.

(2) On 1 October 1992, in the morning, he went to the beauty centre and obtained an appointment for 2.30 that afternoon.

(3) He returned to the beauty centre in the afternoon and was told to wait because a Miss Chan would be returning soon. When he eventually saw Miss Chan he told her he wanted a double eye-lid operation and paid $800.

(4) He then went into a room at Miss Chan's request and, lying on a bed, had "medicine" applied to his eyes which he thought was the double eye-lid operation costing $800.

(5) What took place there in that room did not have the desired effect. There was dialogue between Mr Lam and Miss Chan - of a somewhat obscure nature as emerging from his testimony - the outcome of which was that he paid a further $5,600 by Visa card for a double eye-lid operation to be performed, as he thought, by a Japanese doctor who, Miss Chan said, had done many such operations for artists. He paid another $500 cash for more ointment.

(6) Miss Chan then made a phone call to someone. Mr Lam could not say to whom.

(7) Mr Lam then went with Miss Chan from Sheung Shui by taxi to Mongkok. In the course of the journey Mr Lam asked Miss Chan the name of the doctor, but she did not give it. There was no evidence before the Medical Council that Miss Chan knew the name of the doctor. They alighted from the taxi at the Prince Edward MTR station. Miss Chan met someone outside the Hang Seng Bank Building: this person was, at the hearing, identified as Madam Kam Lai (the witness called for the defence). Miss Chan said that this woman (Madam Kam) would lead Mr Lam to the clinic and she then left.

(8) Madam Kam led Mr Lam to the 2/F of No. 660 Nathan Road Mongkok. These were domestic premises with a small sign outside the flat. The appellant Dr Mu was inside. Mr Lam was introduced to Dr Mu. There was some dialogue between Mr Lam and Madam Kam as to why the doctor was not Japanese and he was told that Dr Mu could do the operation even if she was not Japanese.

(9) Mr Lam went into a room and the operation was done, with local anaesthetic. Madam Kam was in the room during the operation but left when it was finished. The operation was, apparently, satisfactory.

(10) Dr Mu gave Mr Lam a follow-up card. Mr Lam asked Dr Mu what might happen if he produced patients for her and she said that she would take $4,000, the rest of the money he collected would be his.

(11) Mr Lam paid no fees directly to Dr Mu.

(12) Mr Lam showed Dr Mu the ointment he had bought from the beauty centre and was told that it was useless. Mr Lam later on felt so aggrieved by what he thought was a deception practised on him by the sale of the ointment at the beauty centre that he made a complaint against the centre to the Consumer Council.

(13) Madam Kam worked at an x-ray and medical laboratory as a public relations officer. Dr Mu patronised that laboratory for x- ray and ultra-sound services.

(14) Madam Kam and Miss Chan were friends and some time prior to 1 October 1992 Madam Kam had told Miss Chan that a doctor would do double eye-lid operations for $1,500. Then in October 1992 Miss Chan phoned and asked Madam Kam to bring a customer of hers to the doctor for a double eye-lid operation. Accordingly Madam Kam did that. On that occasion Miss Chan gave Madam Kam $1,500 in an envelope and asked Madam Kam to give that to the doctor. Madam Kam did that. She received no payment for effecting the introduction. This was the only patient introduced by her to Dr Mu. The only other patient she had ever taken to see Dr Mu was her own daughter.

This was in summary the totality of the primary facts established by the evidence called at the hearing.

Canvassing

5. As Mr Rodway QC, counsel for the appellant, points out, there was no evidence before the Medical Council of any association between the appellant and the beauty centre beyond what could legitimately be inferred from the facts recited above. There was no evidence before the Medical Council that the appellant had ever heard of the beauty centre. Nor was there any suggestion in the evidence that the appellant knew or had heard of Miss Chan. The question for the Medical Council quite simply was whether the charge as averred in the notice of inquiry was made out, to the high degree necessary to constitute misconduct in a professional respect, in terms of s21(1)(b) of the Medical Registration Ordinance.

6. The charge refers to s10 of the Warning Notice which is headed "Canvassing". Plainly the appellant did no canvassing herself. If she is to be guilty as charged it must be because, through her alleged association with the beauty centre, she "canvassed" indirectly.

7. Mr Wingrad who appeared for the Secretary at the hearing and is counsel for the respondent on this appeal accepts that the charge could have been better framed. I agree. A Warning Notice to doctors is what it says: a warning notice. As mentioned in the case of Judith Mary Longstaff v. The Medical Council [1980] HKLR 858 at 862, the Warning Notice is not to be construed as though it were a statute; one should look at the spirit of the guidance it gives. To have referred to "Note 10 of the Warning Notice" in the Notice of Inquiry in this case in general terms, in the way it did, was merely to have obscured the ingredients of the charge. Note 10 in the Warning Notice is long and discursive, and does not concisely lay down the elements constituting the offence of canvassing by medical practitioners.

8. What is averred in the charge is that it was the beauty centre which advertised clinical and diagnostic services to the general public. The evidence in this regard was tenuous, coming solely from the oral testimony of Mr Lam, to the effect that he saw an advertisement in a magazine advertising facial treatment and slimming by the beauty centre and this led him to go there on 1 October 1992. That magazine was never produced in evidence, nor was any other written material.

9. I find it difficult to see how the advertising of facial treatments and slimming could amount to advertising for clinical or diagnostic purposes. However Mr Lam did go on to say in his testimony that the advertisement in the magazine also stated that double eye-lid operations were available. This might, tenuously, be construed as offering clinical services. However there was no evidence that the beauty centre advertised such treatment by medical practitioners. In fact, Mr Lam thought that the "treatment" he was to receive comprised of the application of an ointment costing $800. Mr Rodway in my judgment was therefore correct when he said that the evidence pointing to the centre having advertised in the way averred in the charge was nebulous. But assuming that it was established that the beauty centre did canvass in the way alleged, how was this canvassing by the appellant?

10. On the evidence before the Council such association as might have existed between the beauty centre and the appellant, capable of leading to an inference of canvassing by the appellant, was simply absent. The inference, perhaps the most natural inference flowing from the evidence, in my judgment, is that Miss Chan, learning through Madam Kam that a doctor performed double eye-lid operations for $1,500, introduced the customer to that doctor through Madam Kam, pocketing over $4,000 in the process, and receiving on top of that $500 in cash for the additional ointment she supplied. How does this amount to evidence that the appellant, through the alleged association with the beauty centre, was canvassing? That is to say, advertising the provision of clinical or diagnostic services herself? In my judgment the evidence was incapable of establishing that ingredient in the charge.

Note 10 of the Warning Notice

11. Counsel for the Secretary in his final speech to the Medical Council focussed their attention on Note 10 of the Warning Notice, but never referred to the charge as such. This was unfortunate. He quoted the opening sentence of Note 10 of the Warning Notice which says: "Canvassing for the purpose of obtaining patients ..... whether directly or indirectly and association with or employment by persons or organizations which canvass may lead to disciplinary proceedings". It is difficult to see the relevance of this quotation. Disciplinary proceedings do not necessarily lead to a finding of guilt. This passage in Note 10 does not formulate the charge of professional misconduct by canvassing as such. It does not say that any association with an organization which advertises clinical or diagnostic services would constitute professional misconduct.

12. What Note 10 does go on to say is that association by medical practitioners with institutions etc which advertise clinical or diagnostic services to the general public and "direct patients to particular medical practitioners may be regarded as canvassing": this is, in effect, what is averred in the charge and is, as it seems to me, the only relevant portion of Note 10. This portion of Note 10 was not referred to by counsel for the Secretary in the course of the hearing. The real questions for the Medical Council should have been as follows:

(i) Was it proved to their satisfaction that there was any association between Dr Mu and the beauty centre in any real sense of that word?

(ii) Did the beauty centre advertise clinical or diagnostic services to the general public?

(iii) Did the beauty centre direct patients to medical practitioners in general and Dr Mu in particular?

(iv) Can it be inferred from the facts established above that the charge of canvassing by the appellant was proved?

13. Unless the first question was positively answered, the remaining questions were quite irrelevant.

14. Counsel for the Secretary, addressing the Medical Council, went on to say:

"I would ask you to find that even if you accept every word that the defence witness has said to be true, even if you accept every word to be true, I would ask you to find that what you have heard still amounts to indirect association with a beauty parlour."

15. Here, counsel was in effect saying that indirect association with the beauty centre was tantamount to indirect canvassing by the appellant: but that, with respect, is manifestly incorrect.

16. On Madam Kam's testimony she, a public relations officer for a medical laboratory, was in effect doing her friend Miss Chan a favour, by directing the customer to Dr Mu, whose charges for double eye-lid operations she knew to be modest. This was not proof in any way that the beauty centre was directing patients to Dr Mu.

17. Of course, if one assumed that there was a close association of some kind between the beauty centre and Dr Mu, and that the interposition of Madam Kam as an intermediary was merely a device to distance Dr Mu from the beauty centre, then a finding of indirect canvassing by the appellant might follow: but such an approach is plainly incorrect. Unfortunately, this was in effect the approach advocated by counsel for the Secretary, for he said to the Medical Council:

"I would submit that you can still find this case to be proved because simply to put a third party in-between the doctor and the beauty parlour would amount to indirect canvassing and the case would therefore be found proved on that basis. In a sense that is a point of law ...."

Quite apart from the manifest error in this submission, to have categorised the proposition as a "point of law" was doubly unfortunate: errors which were not corrected by the legal adviser to the Council.

The duties of the legal adviser to the Council

18. It is not for this court to suggest how the legal adviser to the Council should discharge his or her duties under Part V of the Disciplinary Procedure Regulations. But where counsel acting for the Secretary has, in his submissions to the Medical Council, gone wide of the mark and has failed to direct the Council's mind to the essential ingredients of the charge which had to be proved, then the failure of the legal adviser to redress the balance by appropriate advice tendered under Regulation 33(1) becomes serious. I appreciate that the function of the legal adviser is a difficult one and he or she may be called upon to give advice at short notice. But in the circumstances of a case like this the legal adviser should not have been caught by surprise. He should have realised that the charge as such was formulated in an obtuse fashion, and that the essential ingredients which had to be established in order to constitute professional misconduct might not readily have emerged by simply reading the charge. He should accordingly have been fore-armed.

19. Much was made by counsel for the Secretary of the fact that the appellant did not appear at the hearing: in fact she had lost her husband two weeks before the hearing and this might have accounted for her absence. He told the Council that "all sorts of implications" could be drawn from the fact of the appellant's absence. This remark in my judgment was wholly uncalled for. The fact was that the evidence before the Council did not establish the essential ingredients of the charge and there were no factual matters which the appellant might have countered by her own testimony. This should have been apparent from the way the cross-examination of the only witness called by the Secretary was conducted.

Conclusion

20. Mr Wingrad, counsel for the Secretary, submits to us that the charge against the appellant can be broken down in the following way:

"That on or about 1 October 1992, the appellant being a registered medical practitioner, did canvass for the purpose of obtaining patients by

(1) associating with Glory Beauty Centre

(2) the centre advertising clinical or diagnostic services to the general public

(3) the centre directing patients to particular medical practitioners

(4) the centre arranging for a patient Mr Lam to see the appellant for treatment and

(5) the centre collecting fees on behalf of the appellant"

21. I agree. That would seem to me to be a reasonably accurate way of analysing the case against the appellant, as charged in the notice of inquiry. It is unfortunate that the case was not presented to the Medical Council in that way. Instead, an atmosphere of prejudice was generated, and suggestions were made by Mr Wingrad that doctors did not or should not receive payment for treatment in the way the appellant did in this case. That may well be so. But Dr Mu's general conduct as a medical practitioner was not in issue. At the end of the day, the only relevant question for the Medical Council was: had the Secretary proved the case as averred? In my judgment, he had not. The evidence before the Council wholly failed to establish any association between the beauty centre clinical services (assuming it did) this constituted indirect canvassing by the appellant. Nor did the evidence establish that the centre had directed patients to the appellant: the fact that Mr Lam was, indirectly, through Madam Kam, referred to the appellant falls far short of establishing that element in the charge. 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. The evidence before the Medical Council did not go any way near establishing that matter.

22. Mr Rodway QC has referred to us Lord Hailsham's judgment in Libman v. General Medical Council [1972] AC 217 at p221 and in particular the proposition that a finding of professional misconduct can be set aside on appeal where "the findings were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread".

23. This was, in my judgment, just such a case.

24. In my judgment, this appeal must be allowed and the order of the Medical Council made against the appellant must be discharged and I would so order.

Mayo, J:

25. I agree entirely with the judgment which is delivered and I have nothing to add.

Sears, J:

26. I agree this appeal should be allowed. The evidence before the Council taken at its highest disclosed certain unusual conduct by Dr Mu. She treated a patient who was referred to her through a friend and received a sum cash in an envelope. The charge however was particularised as one of canvassing. In my judgment there was no prima facie case which she had to answer. It seems to me that the charge was found proved because the Council disapproved of Dr Mu's conduct in the way she accepted the patient and received the cash and perhaps because the beauty centre had obtained a substantial sum of money from Mr Lam and only part was paid to Dr Mu. The whole inquiry was conducted in a highly prejudicial and unfair manner.

27. A finding of professional misconduct is a serious matter and must be based on clear evidence which discloses the commission of the particular matter charged. It is wrong for the Council to find a doctor guilty merely because they disapproved of his or her conduct which does not amount to professional misconduct.

28. I would only add that extensive comments were made by the legal officer under the guise of being a point of law on the failure of the appellant to give evidence. In criminal trials the prosecutor is precluded from making such comments. In my judgment in hearings before a disciplinary tribunal where the standard of proof is similar or closely similar to the criminal standard the prosecutor should not comment on the failure of the person charged not to give evidence.

Litton, J.A.:

29. The appeal is allowed with costs to the appellant