MEN’S HEALTH SOLUTION LTD v. DEPARTMENT OF HEALTH OF THE GOVERNMENT OF HKSAR

HCAL 94/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 94 OF 2006

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J U D G M E N T

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1. The applicant in this application for judicial review carries on business as a clinic which treats men who complain of sexual dysfunction, specifically various degrees of erectile dysfunction and premature ejaculation.  I understand that it promotes and applies a therapy known as ‘Tri-Mix Therapy’.

2. The applicant has at all material times advertised its products and services on a website.  It is the applicant’s case that men who seek treatment at its clinic, understandably, seek confidentiality.  Matters going to male sexual dysfunction remain sensitive and are not easily discussed.  In the circumstances, according to the applicant, unless it is able to advertise the treatment it provides there is really no way in which it can hope that knowledge of its services will be spread by word of mouth.  Suitable advertising is therefore essential, not only for the survival of its business but so that men, whose lives are perhaps profoundly affected by sexual dysfunction, may receive treatment.

3. In early October 2006, the applicant received a letter from the respondent, the Department of Health.  It was a warning letter.  It warned the applicant that the advertising on its website may be in breach of the Undesirable Medical Advertisements Ordinance, Cap.231, specifically s.3 as read with para.2 of the Second Schedule to the Ordinance.

4. According to the applicant, it did its best to change its advertisements in order to comply with the provisions of the Ordinance.  Despite this, in May 2006, without any further warning or notice of any kind, it was served a summons charging it with the criminal offence of causing an advertisement to be published contrary to the provisions of s.3 of the Ordinance.

5. It is the applicant’s assertion that s.3 of the Ordinance, as read with the Second Schedule, is not sufficiently precise to enable a reasonable citizen to foresee, to a degree that is reasonable in the circumstances, the consequences that a given action by it may entail.  It is therefore ultra vires.  It is further the applicant’s assertion that, in addition to being vitiated by vagueness, the statutory provision offends the constitutionally protected right of freedom of expression.  The applicant therefore seeks a declaration declaring s.3 invalid.

6. Consequent upon this, the applicant seeks an order of certiorari to strike down the decision of the Department of Health to recommend prosecution.  It does so on the basis that the decision was wrong in law and, in addition, was, in the factual circumstances, Wednesbury unreasonable.

7. I shall look first to the contention made by the applicant that s.3 of the Ordinance, as read with the Second Schedule, is invalid.

8. S.3(1) of the Ordinance reads as follows :

“      (1)   No person shall publish, or cause to be published, any advertisement likely to lead to the use of any medicine, surgical appliance or treatment for—

(a)    …

(b)   treating human beings for any purpose specified in Schedule 2.”

9. The Second Schedule bears the heading : ‘Purposes for which it is prohibited to advertise any medicine, surgical appliance or treatment’.  The body of the Schedule reads :

“1.   The induction of menstruation or relief of amenorrhea or delayed menstruation or any other gynaecological or obstetrical disease.

2.    The promotion of sexual virility, desire or fertility, or the restoration of lost youth.

3.    The correction of deformity or the surgical alteration of a person’s appearance.”  [my emphasis]

10. It is paragraph 2 of the Second Schedule which applies in the present case.  I agree that the wording of that paragraph is broad.  However, it seems to me that it is not for this court – at this time – to determine whether the wording is so broad and imprecise that it is ultra vires.  Nor is it, in my opinion, for this court – at this time – to determine whether s.3 as a whole is inconsistent with the constitutionally protected right of freedom of expression, that right, it must be remembered, being a qualified right. 

11. As a matter of principle, this court, as a supervisory court, is a court of last resort.  In the present case, however, its jurisdiction is being sought in order to determine certain issues which will be fundamental to a future criminal trial.  As such, far from being a court of last resort, in this instance it is being asked to act as some kind of ‘preliminary’ tribunal.

12. It seems to me that the challenges to the validity of s.3 which the applicant seeks to make before this court should properly, in the first instance, be made before the magistrate who will hear the criminal trial.  The fact is that the issues go directly to whether the applicant should be convicted in that trial.  The issues are not purely issues of law.  There are issues of fact; for example, the nature of the website advertisement.  I can foresee the need for expert evidence at the trial.  Indeed, it appears that the applicant has already obtained the opinion of an expert.

13. The lower courts of Hong Kong deal on a daily basis with matters of statutory interpretation and have the power to declare that statutory provisions are inconsistent with the Basic Law or the Bill of Rights.  Constitutional issues are not reserved exclusively to a constitutional court.  If the applicant has a defence in law then it should put that defence at trial.

14. In summary, it would, I think, be wrong for this court – at this time – to make the determinations concerning s.3 that are sought.

15. That still leaves a second issue, one going to the reasonableness of the decision made by the Department of Health to recommend prosecution.  In this regard, it is necessary to set out certain background facts.

16. On 6 October 2005, the Department of Health sent the warning letter that I have earlier spoken of to the applicant.  The letter warned that in its website advertising the applicant “may have violated section 3 of the Ordinance”.  The letter says : “This warning is issued.”  It then goes on to say : “If it is discovered that the same kind of, or similar advertisement as above, occurs in the future, we may issue prosecution against you without notice or warning.”

17. It appears that the applicant sought help from the Department of Health as to how it could change its advertising to comply with the Ordinance.  But the Department had no advisory service for that purpose.  In short, it was for the applicant itself to determine how to comply with the law.  The applicant attempted to do so.  It apparently made some changes.  But they were not considered adequate.

18. Indeed, as I understand it, the Department may be of the view that any form of advertising going to matters of sexual virility is unlawful, the purpose being to ensure that people do not go direct to the advertiser but only on the recommendation of a doctor.  There may be a good reason for this.  Sexual dysfunction may be an indicator of cardiovascular problems, hypertension, diabetes and the like.

19. On 28 November 2005, follow-up action was taken by the Department.  The website was studied and the view was formed that the contents were still in contravention of the Ordinance.  In the result, on 16 January 2006, without any further correspondence with the applicant, the Director of Health wrote to the Commissioner of Police requesting that there be a prosecution under the Ordinance.  In that letter, the Director said that, despite a warning, the applicant had continued to violate the Ordinance.

20. In the result, a summons was issued in May 2006, alleging that on 28 November 2005 – that being the date when the Department of Health conducted its follow-up action - the applicant had caused to be published an advertisement contrary to the provisions of s.3.

21. It is said that the Department acted unfairly towards the applicant in a number of ways.  First, it is said that the applicant, when it received the warning letter, was not told that it was in fact in breach but was only warned that it may be in breach.  In short, that the warning was equivocal in its terms.  This, it is said, was to be contrasted with the unequivocal assertion made by the Director of Health in his letter of 16 January 2006 to the Commissioner of Police seeking a prosecution. 

22. In addition, it is said that the applicant was unable to obtain any satisfactory assistance as to what it should do in respect of its advertisement from the Department.  There were, at that time, no guidelines given in respect of advertisements related to erectile dysfunction or premature ejaculation.  However, guidelines were subsequently issued. 

23. Further, it is said that the applicant did its best, as it saw matters at the time, to heed the warning and did make changes.

24. All of these matters, it is said, when taken together, indicate that at the very least the Department of Health should have issued a further warning letter saying that it was not satisfied with the minor changes. 

25. In my judgment, there has been no exercise of unfairness on the part of the Department.  The simple fact is that in October 2005, the Department considered that the applicant's advertisements were, in all probability, in breach of the law.  A letter to that effect was sent.  That letter made it clear that it was a warning of possible prosecution and that, if it was discovered that the same or similar advertisements continued to appear, the Department reserved the right to institute prosecution and to do so without further warning.

26. If that letter had in it a statement which reasonably may have been taken to mean that there would be further correspondence between the parties, then some sort of legitimate expectation may perhaps have arisen.  But the letter makes no such promise.  To the contrary, it says that, if the same or similar advertisement continues to appear on the website, the Department reserves the right to institute proceedings in the criminal courts without further notice. 

27. It is true that there were no departmental guidelines issued in respect of this matter at the time, but I do not see that a public authority, if it has certain powers to exercise which may lead to prosecution, is by that fact obliged to issue relevant guidelines.

28. The fact of the matter is that if an individual is advised by a public authority that it may be breaching the law, then it is for that individual to consider his position in accordance with the warning given.  Legal advice can be sought. 

29. I accept, of course, that guidelines on this issue were later published.  But that merely indicates that at some later stage, perhaps because of the prevalence of this problem, Government, even though it was not obliged in law to do so, decided to try and assist the public by issuing guidelines.  What matters, however, is that there were no guidelines at the time when the warning was issued nor was there any obligation on the part of Government, in law, to issue such guidelines. 

30. In all the circumstances, I reject the submission that there was an actionable unfairness on the part of the Department. 

31. The application for judicial review must be dismissed.

32. In respect of costs, the respondent, the Department of Health, is prepared to have its costs assessed on a lump sum basis and suggests $10,000.  The applicant accepts that figure.  There will therefore be an order for costs in that sum.