MEDICAL COUNCIL OF HONG KONG v. HELEN CHAN

FACV No. 13 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 13 OF 2009 (CIVIL)

(ON APPEAL FROM CACV NO. 403 OF 2006)

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J U D G M E N T

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Mr Justice Bokhary PJ :

Presence at deliberations and decision drafting

1.  Two important questions of law have given rise to this appeal.  Both of these questions concern the way in which disciplinary inquiries by the Medical Council of Hong Kong (“the Medical Council”) should be conducted.  In particular, they concern the proper role of the Medical Council’s legal adviser (“the Legal Adviser”) in such inquires. 

2.  Until the judgment handed down by the Court of Appeal (Le Pichon and Cheung JJA and Stone J) on 30 April 2009 in the present case, the Medical Council’s usual practice at disciplinary inquiries included the following features relevant to this appeal.  The Legal Adviser would retire with the Medical Council and be present while it deliberated.  He would listen to its deliberations and give additional legal advice if necessary.  Whenever any additional legal advice had been given, the parties would be informed of its content.  Eventually, the Legal Adviser would draft a decision containing the Medical Council’s findings and reasoning.  He would do so in the Medical Council’s presence.  The Medical Council would scrutinise the draft thoroughly and, whenever necessary, modify it to ensure that it was the product not of the Legal Adviser but of the Medical Council, properly reflecting the Medical Council’s meaning. 

3.  The questions of law to be answered are these.  First, is such presence at deliberations lawful?  Secondly, is such decision drafting lawful?  The Medical Council, which is the appellant here, contends that both are lawful.  Dr Helen Chan, who is the respondent here, contends that both are unlawful.

4.  In an inquiry at which there is no reason to think that the practice described above had not been followed, the Medical Council found Dr Chan guilty of misconduct in a professional respect.  It was found that she was guilty of such misconduct in the following way.  She, being a registered medical practitioner, had sanctioned, acquiesced in or failed to take reasonable steps to prevent the appearance of her name, title, photographs and statements in an advertisement which appeared in the 4 August 2004 issue of a daily newspaper.  In that advertisement she endorsed the “Doctor’s Choice” line of health products offered by Vita Green Health Products Co. Ltd with which she had a financial relationship.  Having found Dr Chan guilty of such professional misconduct, the Medical Council ordered that her name be removed from the General Register, such removal to be suspended for two years. 

Held unlawful by the Court of Appeal

5.  The Court of Appeal held that both the Legal Adviser’s presence at the Medical Council’s deliberations and the decision drafting which he did for it were unlawful.  On that basis, they allowed Dr Chan’s appeal against the Medical Council’s finding that she had been guilty of professional misconduct.  They set aside the suspended order for removal which the Medical Council made against her.  And they awarded her costs with a certificate for two counsel.

Penalty

6.  Dr Chan’s appeal to the Court of Appeal may be described as having been against both conviction and sentence.  She complained against the finding of professional misconduct made against her.  And she also complained that removal from the General Register, even though suspended, was too severe a penalty in the circumstances.  Since they quashed the finding of professional misconduct, the Court of Appeal did not have to pronounce on whether the penalty imposed was too severe.  Nevertheless Le Pichon JA noted certain concessions made by Mr Gerard McCoy SC who appeared for the Medical Council before the Court of Appeal.  These concessions, as noted by Le Pichon JA, were as follows.  There is merit in the criticism that the Medical Council was wrong in treating the complaint made against Dr Chan as “not a one-off incident”.  So the appropriate sentence (were it to arise) would be at large for the Court of Appeal to decide upon.  And it would not be inappropriate for the Court of Appeal to adopt the next less severe level of punishment in the descending hierarchy listed in s.21(1) of the Medical Registration Ordinance, Cap.161.

7.  By that Mr McCoy meant a reprimand.  The “hierarchy” to which he  referred reads :

“(i)       order the name of the registered medical practitioner to be removed from the General Register; or

(ii)   order the name of the registered medical practitioner to be removed from the General Register for such period as it may think fit; or

(iii)  order the registered medical practitioner to be reprimanded; or

(iiia)      order that the name of the registered medical practitioner be removed from the Specialist Register; or

(iiib)     order that the name of the registered medical practitioner be removed from the Specialist Register for such period as it may think fit; or

(iv) make any such order as aforesaid but suspend the application thereof, subject to such conditions as the Council may think fit, for a period, or periods in the aggregate, not exceeding 3 years; or

(iva)     make any such order as aforesaid (except an order under paragraph (iv)) and further order that such order take effect upon its publication in the Gazette if the Council is satisfied that it is necessary to do so for the protection of the public or in the best interest of the registered medical practitioner; or

(ivb)     refer the case to the Health Committee; or

(v)        order that a warning letter be served on the registered medical practitioner,”

8.  Lord Pannick QC who leads for the Medical Council in this Court asks us to restore the finding of professional misconduct.  He does not resile from Mr McCoy’s stance that it would be appropriate to substitute a reprimand for the suspended removal ordered by the Medical Council.  Mr Michael Thomas SC for Dr Chan asks us not to restore the finding of professional misconduct.  What if we were to restore it?  Then, Mr Thomas submits, the appropriate penalty would be the least serious one provided for by s.21(1), namely an order that a warning letter be served on Dr Chan.  That is the only penalty for which publication in the Gazette is discretionary.  Such publication is mandatory for all the other penalties concerned.

Court of Appeal’s reasons

9.  Rightly recognising the great general or public importance of the questions of law involved, the Court of Appeal granted the Medical Council leave to appeal to this Court.  In the reasons which they handed down on 21 July 2009 for granting such leave, the Court of Appeal made a helpfully succinct statement as to why they had allowed Dr Chan’s appeal.  They said that her appeal had been allowed “not because of its intrinsic merits but because [the Legal Adviser] had been present throughout [the Medical Council’s] deliberations and had also prepared the first draft of the decision albeit in the presence of [the Medical Council]”.

10.  Why the Court of Appeal considered such presence at deliberations and decision drafting unlawful appears from their judgment of 30 April 2009.  After examining the relevant regulations made under the Medical Registration Ordinance, Le Pichon JA expressed herself of the opinion that

“the legislation does not authorise [the Legal Adviser] (1) to be present during [the Medical Council’s] deliberations which must take place in private, save and except when advice is required from [the Legal Adviser] (in which event he could be summoned to attend but only for the purpose of giving the requisite advice); or (2) to prepare a first draft of the decision for [the Medical Council’s] review or be involved in the writing of the decision in any way”.

Referring to art.10 of the Bill of Rights – which provides a right to a competent, independent and impartial tribunal – Cheung JA said that as part of the protection of art.10

“one would expect a competent, independent and impartial tribunal to, first, deliberate the decision by its own members without the presence of a non-party and, second, to write its own reasoned decision.”

It would be, he said,

“contrary to the high standard or the perception of the high standard expected of a competent, independent and impartial tribunal if it were otherwise.”

After saying that he agreed that the appeal should be allowed for the reasons given by Le Pichon and Cheung JJA, Stone J added this :

“It is simply not possible to act as a ‘scribe’ or mere emanuensis without imparting to the draft thereby produced at the least some gloss or complexion emanating from the mental processes of the writer, and however practically convenient it may have been for the other members of the disciplinary tribunal to have had a draft decision thus produced for their consideration, this practice simply is impermissible in terms of the statutory function of [the Legal Adviser]”.

11.  The learned judges of the Court of Appeal appear to have decided unanimously that the Legal Adviser’s presence at the Medical Council’s deliberations and the drafting which he did for it were both prohibited by the relevant legislation.  And they appear to have decided by a majority (Cheung JA and Stone J) that such presence at deliberations and decision drafting were also unconstitutional for incompatibility with the right to a competent, independent and impartial tribunal.  Article 10 of the Bill of Rights, which is entrenched by art.39 of the Basic Law, reads :

“All persons shall be equal before the courts and tribunals.  In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.  The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

Other grounds apart from presence and drafting

12.  In addition to her grounds of appeal based on the Legal Adviser’s presence at the Medical Council’s deliberations and the decision drafting which he did for it, Dr Chan had relied on other grounds.  These other grounds were rejected by the Court of Appeal.  But Dr Chan renews them in this Court as further or other reasons for supporting the result in her favour reached by the Court of Appeal.  As set out in the printed case lodged on Dr Chan’s behalf, these other grounds are :-

“(1)      It was unfair, and contrary to natural justice, for [the Medical Council] to find that Dr Chan had breached a ‘long- established rule that doctors are prohibited from public endorsement or promotion of a commercial brand of medical or health-related products’ when no such rule had ever been identified or articulated, or its existence proved, at any stage of the Inquiry.  Dr Chan should have been warned of the existence of this rule before the hearing commenced so that its existence, history, provenance and purpose could have been explored (by evidence, if necessary) and submissions made thereon.  This is of particular importance because it was accepted that Dr Chan was at liberty to serve as Managing Director of Vita Green whose business it was to promote its own brand of products.

(2)        Such a rule (if it existed) would be a restriction on the freedom of expression enjoyed by [Dr Chan], but since it was not clearly made manifest in manner accessible to a medical practitioner, it is not a restriction ‘prescribed by law’ and hence not a lawful restriction on her freedom of expression under Article 16 of [the Bill of Rights].

(3)        In any event, the rule is neither a necessary nor a proportionate restriction on the constitutional right of freedom of expression; see Article 16.”

I will address these other grounds after dealing with the questions of presence at deliberations and decision drafting.

Far-reaching implications

13.  How the questions of law as to presence at deliberations and decision drafting now before the Court are answered is potentially of extremely far-reaching implications.  Apart from the Medical Council, there are many other disciplinary bodies in Hong Kong for which a legal adviser may be appointed.  They are (or include) : a Disciplinary Committee under the Pharmacy and Poisons Ordinance, Cap.138; the Dental Council of Hong Kong under the Dentists Registration Ordinance, Cap.156; The Midwives Council of Hong Kong under the Midwives Registration Ordinance, Cap.162; the Nursing Council of Hong Kong under the Nurses Registration Ordinance, Cap.164; the Supplementary Medical Professions Council under the Supplementary Medical Professions Ordinance, Cap.359; the Architects Registration Board under the Architects Registration Ordinance, Cap.408; the Engineers Registration Board under the Engineers Registration Ordinance, Cap.409; the Surveyors Registration Board under the Surveyors Registration Ordinance, Cap.417; the Planners Registration Board under the Planners Registration Ordinance, Cap.418; the Chiropractors Council under the Chiropractors Registration Ordinance, Cap.428; the Social Workers Registration Board under the Social Workers Registration Ordinance, Cap.505; the Landscape Architects Registration Board under the Landscape Architects Registration Ordinance, Cap.516; the Veterinary Surgeons Board under the Veterinary Surgeons Registration Ordinance, Cap.529; the Chinese Medicine Practitioners Board under the Chinese Medicine Ordinance, Cap.549 and the Housing Managers Registration Board under the Housing Managers Registration Ordinance, Cap.550.

14.  In addition to the foregoing, there are many statutory appeal boards and tribunals in Hong Kong for which a legal adviser may be appointed.  They are (or include) : a Disciplinary Board with respect to registered safety auditors and registered scheme operators under the Factories and Industrial Undertakings (Safety Management) Regulation made under the Factories and Industrial Undertakings Ordinance, Cap.59; a Disciplinary Board under the Fire Service (Installation Contractors) Regulations made under the Fire Services Ordinance, Cap.95; the Liquor Licensing Board under the Dutiable Commodities (Liquor) Regulations made under the Dutiable Commodities Ordinance, Cap.109; the Immigration Tribunal under the Immigration Ordinance, Cap.115; a Disciplinary Board with respect to authorized persons, registered structural engineers and registered geotechnical engineers under the Buildings Ordinance, Cap.123; a Disciplinary Board with respect to registered general building contractors under that Ordinance; the Licensing Appeals Board under the Public Health and Municipal Services Ordinance, Cap.132; the Asbestos Administration Committee under the Air Pollution Control Ordinance, Cap.311; a Disciplinary Board with respect to registered lift engineers and registered escalator engineers under the Lifts and Escalators (Safety) Ordinance, Cap.327; a Disciplinary Board with respect to registered lift contractors and registered escalator contractors under that Ordinance; an Appeal Board under that Ordinance; a Transport Tribunal under the Road Traffic Ordinance, Cap.374; a Board of Review under the Film Censorship Ordinance, Cap.392; a Disciplinary Tribunal and an Appeal Board under the Electricity Ordinance, Cap.406; an Drainage Appeal Board under the Land Drainage Ordinance, Cap.446; an Appeal Board under the Amusement Rides (Safety) Ordinance, Cap.449; a Disciplinary Tribunal under the Builders’ Lifts and Tower Working Platforms (Safety) Ordinance, Cap.470; an Appeal Board under the Builders’ Lifts and Tower Working Platforms (Safety) Ordinance, Cap.470; the Chinese Medicines Board under the Chinese Medicines Traders (Regulatory) Regulation made under the Chinese Medicine Ordinance, Cap.549; an Appeal Board under the Construction Workers Registration Ordinance, Cap.583; and an Appeal Board under the Energy Efficiency (Labelling of Products) Ordinance, Cap.598.

15.  Of course how these other disciplinary bodies and these appeal boards and tribunals are affected by our judgment in this case will depend on their practices and the circumstances relevant thereto.  How our judgment in this case affects the Barristers Disciplinary Tribunal under the Legal Practitioners Ordinance, Cap.159, and the Solicitors Disciplinary Tribunal under the same Ordinance will also depend on their practices and the circumstances relevant thereto.

Medical Council’s composition and functions

16.  The Medical Council was established pursuant to s.3(1) of the Medical Registration Ordinance.  Its composition and functions are provided for by other provisions of that Ordinance.  Subsection 3(2) provides that the Medical Council shall consist of :

· two registered medical practitioners nominated by the Director of Health and appointed by the Chief Executive;

· two registered medical practitioners nominated by the University of Hong Kong and appointed by the Chief Executive;

· two registered medical practitioners nominated by the Chinese University of Hong Kong and appointed by the Chief Executive;

· tworegistered medical practitioners nominated by the Hospital Authority and appointed by the Chief Executive;

· four lay members appointed by the Chief Executive;

· two registered medical practitioners nominated by the Academy of Medicine and appointed by the Chief Executive;

· seven registered medical practitioners who are members of the Hong Kong Medical Association, are nominated in accordance with the relevant regulations or procedures of the Association and are elected by the Council members of the Association in accordance with those regulations or procedures; and

· seven registered medical practitioners registered in Part I of the General Register and ordinarily resident in Hong Kong elected by all registered medical practitioners registered in Parts I and III of the General Register.

17.  Under various provisions of the Medical Registration Ordinance, the Medical Council performs a range of important functions in regard to registration, licentiation, education, accreditation and professional discipline.  In the exercise of its disciplinary powers under s.21, the Medical Council conducts disciplinary inquiries and makes disciplinary orders against registered medical practitioners whose cases have been referred to it by the Preliminary Investigation Committee, the Health Committee or the Education and Accreditation Committee.  Relevantly to the circumstances of the present case, s.21(1) provides as follows.  If after due inquiry into any case referred to it by any of those committees in accordance with regulations made under s.33, the Medical Council is satisfied that any registered medical practitioner has been guilty of misconduct in any professional respect, it may make against him or her any of the orders in the hierarchy of punishments quoted earlier on in this judgment.

18.  Section 21(2) provides that for the purpose of s.21(1), “due inquiry” means an inquiry by the Medical Council conducted substantially in accordance with the procedure prescribed by regulations made under s.33.  The procedural regulations thus made are entitled “the Medical Practitioners (Registration and Disciplinary Procedure) Regulation”.  I will call them “the Procedure Regulations”.  Section 21B deals with the quorum for a meeting of the Medical Council held for the purpose of an inquiry under s.21.  Such quorum is either five members or not less than three members and two assessors, provided always that at least one member is a lay member and the majority are registered medical practitioners. 

Office of Legal Adviser

19.  The office of Legal Adviser is created by the Medical Registration Ordinance.  All of the Legal Adviser’s duties and matters connected therewith are governed by that Ordinance and regulations made thereunder.  By s.3B it is provided that the Medical Council shall have “a Legal Adviser who shall be appointed by the Chief Executive”.  And by s.33(3)(b) it is provided that the Secretary for Food and Health may by regulations provide for, among other things, the duties of the Legal Adviser.  The regulations by which that has been done are those entitled “the Medical Registration (Miscellaneous Provisions) Regulation”.  I will call them “the Miscellaneous Regulations”.

20.  Regulation 6(1) of the Miscellaneous Regulations provides that the Legal Adviser shall be present at every inquiry held by the Medical Council.  By regulation 8 of those Regulations, it is provided as follows.  When the Legal Adviser advises the Medical Council on any question of law as to evidence, procedure or any other matter in any inquiry, he shall do so in the presence of every party to the proceedings or the person representing each party.  If the advice is tendered after the Medical Council has commenced to deliberate as to its findings, every such party or person shall be informed of the advice that the Legal Adviser has tendered.  In any case where the Medical Council does not accept the Legal Adviser’s advice on any such question, every such party or person shall be informed of that fact.

21.  As to voting, regulation 32(4) of the Procedure Regulations provides that no person other than the members and assessors of the Medical Council and the Legal Adviser may be present when the Medical Council votes on any matter.

Medical Council’s practice at disciplinary inquiries

22.  On 11 January 2006 the Court of Appeal handed down their judgment in the case of Law Society of Hong Kong v. Solicitor [2006] 1 HKLRD 49.  That case concerned proceedings before the Solicitors Disciplinary Tribunal.  Mr Justice Rogers VP, with whose judgment Le Pichon JA and Lunn J agreed, referred in that case (at p.57B) to previous occasions on which the Court of Appeal had “emphasised the importance of the Tribunal itself writing its own decisions”.  The learned Vice President then continued by referring (at p.57B-D) to Solicitor & Another v. Law Society of Hong Kong [2005] 3 HKLRD 622 and saying this :

“As was pointed out in the judgment of Le Pichon JA in [that case] at paras.17-23, the wording used in the articulation of reasons is often vitally important.  If others are allowed to take over the role of writing the decision, even the first draft, there is a danger that there could be thoughts and expressions which come into a decision which would not otherwise have been there had the Tribunal itself written in its own decision.”

23.  At its 260th Policy Meeting held on 8 February 2006, the Medical Council considered whether (and if so how) its practice at disciplinary inquires had to be changed in the light of what the Court of Appeal said in their 11 January 2006 judgment.

24.  For the purpose of its consideration of that question, the Medical Council had the use of Council Paper MC/18/06 dated 3 February 2006.  This paper was prepared by the Medical Council’s Secretary, sent to its Chairman and copied to its Legal Adviser.  Paragraph 5 of the paper set out the Medical Council’s practice at disciplinary inquiries.  It reads :

“The present practice of [the Medical Council] is that after hearing all evidence and submissions the Legal Adviser will give his advice on the legal issues before [the Medical Council] retires to consider the judgment.  The Legal Adviser will retire together with [the Medical Council] and listen to the deliberation, so as to ensure that [the Medical Council] considers all the relevant factors and disregards irrelevant matters and to prevent any misunderstanding of the legal issues.  He will tender additional legal advice to [the Medical Council] when necessary, and inform all parties of such advice tendered after [the Medical Council] has retired to deliberate.  The Legal Adviser will reduce the findings, decisions and reasoning of [the Medical Council] into writing in the presence of [the Medical Council].  The draft judgment will be scrutinized thoroughly and, wherever necessary, modified by [the Medical Council] to ensure that it is not the product of the Legal Adviser but the collective product of [the Medical Council] reflecting properly the meaning of [the Medical Council].”

As the minutes of the Medical Council’s 8 February 2006 policy meeting shows, it gave the Court of Appeal’s 11 January 2006 judgment respectful consideration and, having done so, decided to continue its practice set out in paragraph 5 of the 3 February 2006 paper.

Court of Appeal sympathised but …

25.  Mrs Justice Le Pichon JA made this clear.  Although she considered the Medical Council’s practice in question to be prohibited by the relevant legislation, she had no doubt that the Medical Council is a conscientious body.  Nor did she have any doubt that its practice was well-intentioned and properly motivated.  She went on to say this :

“I would add that I am acutely aware that, increasingly, the legal issues confronting [the Medical Council] (whose members are not legally qualified) tend to be complex and, on occasion, difficult for non-lawyers to master.  I appreciate the predicament in which [the Medical Council] finds itself.  Undoubtedly, the content and complexion of medical disciplinary cases have undergone significant changes, particularly over the last 10-15 years.  Hearings have become longer, with corresponding demands in terms of time on members of [the Medical Council].  Also, the complexity of some of the legal issues that arise can add significantly to those demands.  But, ultimately, whether or not the statutory arrangements should be revised and, if so, how, are matters for the legislature and not the courts.”

26.  Mr Justice Cheung JA put it like this :

“I fully appreciate the increasing complexity of the medical disciplinary proceedings many of which are precursors to subsequent litigation.  It is also an evitable fact that decisions of the Medical Council are frequently subject to challenge in the Courts.  There is an understandable wish by the Medical Council that the written decision should be properly structured and addressesed the relevant issues.  However, this does not mean that the decision must be written by the Legal Adviser.  The Medical Council consists of highly qualified medical professionals many of whom are specialists in their own field.  Writing articles in medical journals, preparing expert reports for us in litigation and presenting paper in conference are not unfamiliar to them.  I do not accept that writing a decision will impose such an onerous task that it can only be undertaken by the Legal Adviser.”

27.  And what Stone J said in words of his own as to why he considered the practice in question unlawful is prefaced by his concurrence in the reasons given by Le Pichon and Cheung JJA. 

28.  So it might be said that the Court of Appeal had some sympathy for the Medical Council in its predicament but were nevertheless of the view that the practice in question was not a lawful exit from that predicament.  We now have to decide whether they were correct in that view – in support of which Mr Thomas has advanced skilful and detailed arguments.  The way in which the threads of those arguments are drawn together may be taken from the printed case lodged on Dr Chan’s behalf where it is said that :

“(1) the conduct of the Legal Adviser in retiring with  [the Medical Council] and in drafting [the Medical Council’s] decision for its consideration was not authorized by the statutory scheme; (2) that his conduct was such as to give rise to apparent bias and an apparent injustice; (3) that Dr Chan did not have a fair hearing before an independent and impartial tribunal within the meaning of Article 10 of [the Bill of Rights].”

Is it lawful?

29.  It is common for the enforcement of professional discipline to be entrusted to disciplinary tribunals composed mainly of members of the profession concerned.  Such self-regulation is widely considered appropriate.  Where the members of the disciplinary tribunal are not lawyers, they would often be in need of legal advice.  With a rise in the standard of procedural fairness demanded, this need may be considerably greater nowadays than in the past.  True it is that legal advice can be tendered without the adviser retiring with the tribunal.  But his doing so has certain advantages which I will discuss later.

30.  As for the help of a legal adviser in the expression of the tribunal’s reasons, it is by no means unnatural for non-lawyers serving on a tribunal to desire such help.  Having said that, I would not rule it out that even lawyers serving on a disciplinary tribunal may well desire such help, especially if neither civil nor criminal litigation is their field.

31.  So the practice now in question is at least understandable.  But is it lawful? 

Within limits, master of its own procedure

32.  Within limits, a body like the Medical Council is, in the words of Viscount Simon LC in General Medical Council v. Spackman [1943] AC 627 at p.634, “master of its own procedure”.  And that is, as pointed out by Ribeiro PJ in Lam Siu Po v. Commissioner of Police [2009] 4 HKLRD 575 at p.623, para.138, generally true of all administrative and domestic tribunals.  At least in general, they are all, within limits, masters of their own procedure.  Another way of putting it is that, generally speaking and within limits, they are entrusted with “not only the making of the decision but also the choice as to how the decision is made”.  That is how the point was expressed by Lord Mustill in R v. Home Secretary, ex parte Doody [1994] 1 AC 531 at p.561A.  The relevant limits are set by law.  And the relevant law may be found in : (i) legislation whether primary or subsidiary; (ii) the common law particularly as to the rules of natural justice; and (iii) the constitution.

33.  I see no express or implied statutory provision that prohibits the Legal Adviser’s presence at the Medical Council’s deliberations.  On the contrary, there are two express provisions of the relevant legislation which contemplate his presence.  Of these the first is regulation 8 of the Miscellaneous Regulations, which I have already noted.  It provides that the legal Adviser may tender advice to the Medical Council after it has commenced its deliberations, but that if he does so he must inform every party to the proceedings or the person representing each party of the advice that he has given.  This plainly contemplates the Legal Adviser having given his advice in their absence.  His presence during the Medical Council’s deliberations is desirable in order to ensure, for example, that its members do not inadvertently take account of irrelevant matters.  If he were required to remain outside the retiring room but only be available to give advice if called upon to do so, inadvertent errors of law would go uncorrected, for the members of the Medical Council would be unaware of the need for legal advice.  The other statutory provision which contemplates the Legal Adviser’s presence at the Medical Council’s deliberations is regulation 32(4) of the Procedure Regulations.  It provides that the Legal Adviser may be present when the Medical Council votes on any matter.  The purpose of this provision is evidently to enable the Legal Adviser to advise the Medical Council if adoption of the proposed decision would be open to legal challenge, for example because it is inconsistent with or does not follow from the Medical Councils’ own reasons.  He will need to have been present during the Medical Council’s deliberations in order to appreciate this.  As for decision drafting for the Medical Council by the Legal Adviser, I see no express or implied statutory provision that either permits or prohibits any such drafting.

34.  That leaves intact the common law rules of natural justice which mandate procedural fairness.  Even if there had been an express statutory provision purporting to exclude the rules of natural justice in a context like the present, it could not prevail against the constitutional right to “a competent, independent and impartial tribunal”.  This is the right contained in art.10 of the Bill of Rights and entrenched by art.39 of the Basic Law.  Whether the presence at deliberations and decision drafting of which Dr Chan complains deprived her of procedural fairness depends on whether they rendered the Medical Council less than a competent, independent and impartial tribunal.

Practices of some supreme or constitutional courts

35.  Lord Pannick says that some supreme or constitutional courts adopt the practice of permitting, or occasionally permitting, staff to be present while the judges deliberate.  And some supreme or constitutional courts, he says, adopt the practice whereby draft judgments are sometimes prepared by staff for consideration by the judges who are of course always responsible for ensuring that the contents of the judgments eventually given accord with their views.  He points to examples of each such practice.  Mr Thomas objects to the admissibility of these examples.

36.  Whether or not such examples are admissible, I do not think that the existence of such practices in some supreme or constitutional courts helps us to resolve any of the issues in the present case.  Just because such practices do not compromise actual or apparent competence, independence or impartiality where supreme or constitutional courts are concerned, it does not necessarily follow that they would not do so where administrative or domestic tribunals are concerned.  Do they?

Disciplinary tribunals : the Hong Kong cases

37.  The Hong Kong cases mentioned above are not the only local cases relevant to the presence of non-members at the deliberations of disciplinary tribunals and the drafting of their decisions.  There are others.  They include the following cases decided by the Court of Appeal : Longstaff v. Medical Council of Hong Kong [1980] HKLR 858; Au Wing Lun v. Solicitors Disciplinary Tribunal, CACV No.4154 of 2001, 9 September 2002 (unreported); Lam Kwok Pun v. Dental Council of Hong Kong [2000] 4 HKC 181; and Wu Hin Ting v. Medical Council of Hong Kong [2004] 2 HKC 367.

38.  In Longstaff’s case, Huggins VP said this at this at p.865 :

“Primarily the legal adviser’s duty is to tender advice when asked.  In addition he must not allow the Council to be misled and, if a party advances a submission which is bad in law or if he becomes aware that the Council in the course of their deliberations are misdirecting themselves, it is his duty of his own motion to put matters right.”

As to that, it can be said that the surest way for a disciplinary tribunal’s legal adviser to know whether the tribunal’s members are misdirecting themselves in the course of their deliberations is for him to be present while they deliberate.

39.  Au’s case was an appeal against the order as to costs made by the Solicitors Disciplinary Tribunal.  The appeal was allowed by a majority (Rogers VP and Le Pichon JA with Yuen JA dissenting).  Mr Justice Rogers VP noted (in para.8) that the costs in respect of the tribunal’s clerk were calculated on the basis that the clerk had drafted the tribunal’s findings.  Obiter the learned Vice President said this in para.16:

“For my part I consider it wrong for the findings of the Solicitors Disciplinary Tribunal to have been drafted by the Clerk to the Tribunal.”

(Why he was of that view appears from what he said in paras 9-17 of his judgment).

40.  Giving the judgment of the court (consisting of himself, Woo JA and Burrell J) in Lam’s case, Mayo VP put it more guardedly, saying this at pp 184I-185A :

“We would observe in passing that it would not appear to be a satisfactory procedure for a legal adviser to adjourn with the Board when it is deliberating upon the material which has been placed before it.  The legal adviser should have made her submissions in public and thus have afforded the dentist’s counsel an opportunity of commenting upon it.”

The Court of Appeal’s concern in that case was not mainly with the fact that the legal adviser had been present at the tribunal’s deliberations.  It was mainly with the fact that she had advised the tribunal in private so that the dentist’s counsel had no opportunity to address the tribunal on the accuracy or otherwise of such advice.  As it turned out, the advice was in error.  And it was for such error that the dentist’s appeal was allowed.

41.  In Wu’s case, Ma CJHC put it even more guardedly than Mayo VP had put it in Lam’s case.  Giving the judgment of the court (consisting of himself, Woo VP and Suffiad J) in Wu’s case, the learned Chief Judge of the High Court said this at pp 385H-I :

“It is perhaps a matter for the Medical Council itself in the future whether or nor to permit its legal adviser to be present in the same room when it deliberates, but perhaps the better course would be to deliberate on its own and only call upon the legal adviser to attend if his advice is required.  In any event, any advice given to [the Medical Council] must be disclosed to the parties as required by reg 8(1) [of the Miscellaneous Regulations].”

Legal adviser’s position different from that of counsel for a tribunal

42.  In Dato Tan Leong Min v. Insider Dealing Tribunal [1999] 2 HKC 83 the Chairman of the Insider Dealing Tribunal had asked counsel for the tribunal to help in the writing of the tribunal’s report.  Not surprisingly, the Court of Appeal (Mortimer VP and Godfrey and Rogers JJA) said that counsel for a tribunal should never be asked to do that.  Of course the position of a legal adviser who merely advises a tribunal is materially different from that of counsel for a tribunal.  Typically, the duties of counsel for a tribunal include presenting documents, examining and cross-examining witnesses and making submissions.  The duties of counsel for the Insider Dealing Tribunal included those duties (which in the case of the Medical Council are undertaken not by its Legal Adviser but by its Secretary or by the complainant’s counsel or solicitor).

Delegation, participation and mere presence

43.  Reference is made in Dr Chan’s printed case to the following passage in Wade and Forsyth on Administrative Law 10th ed. (2009) at p.259 :

“An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else.  The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable.  Normally the courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees or delegates, however expressly authorised by the authority endowed with the power.”

That is certainly so.  But I do not think that the Medical Council’s practice in question was intended to delegate – or had the effect of delegating – any of the Medical Council’s powers or duties to the Legal Adviser.

44.  The passage in Wade and Forsyth on delegation quoted above is immediately followed by this one on participation :

“One aspect of this principle is the rule that the participation of non-members in the deliberations or decisions of a collective body may invalidate its acts.  The decision of a disciplinary committee, for example, is likely to be invalid if any non-member of the committee has taken part in its proceedings.”

Three cases (Lane v. Norman (1891) 66 LT 83, Leary v. National Union of Vehicle Builders [1971] Ch 34 and Ward v. Bradford Corporation (1971) 70 LGR 27) are cited for that proposition.  One case (Wislang v. Medical Practitioners Disciplinary Committee [1974] 1 NZLR 29) is cited as a case which might be seen as going the other way.

45.  It is difficult to see how a tribunal could satisfy the requirements of competence, independence and impartiality if a non-member participated in the deliberative process by which it formed its views on the issues that it had to resolve.  But does that mean that a tribunal necessarily falls foul of that requirement if its legal adviser prepares a draft decision embodying the views which it has reached and submits the draft to it for scrutiny and modification?

46.  The passage in Wade and Forsyth on participation quoted above is immediately followed by this one on mere presence :

“It is not clear that the mere presence of a non-member will be fatal”.

That, it is said, is not clear “although” Lord Wright MR said in Middlesex County Valuation Committee v. West Middlesex Assessment Area Committee [1937] Ch 361 at p.376 that :

“It would be most improper on general principles of law that extraneous persons, who may or may not have independent interests of their own, should be present at the formulation of that judicial decision.”

Of course persons like the Legal Adviser are not “extraneous persons”.  Nor is there any question of them having “independent interests of their own”.  Their only interest lies in the proper performance of their duties.

47.  In Ward’s case at p.33, Lord Denning MR said that it was the general rule – to which there were exceptions – that non-members ought not to participate in the deliberations of a judicial or quasi-judicial body or retire with its members for their discussions lest it gives the impression that he is taking part in their deliberations.  Lord Denning did not list all the exceptions to this general rule.  Nor did he identify the characteristics of these exceptions.  What he did say (also at p.33) is that the best known exception is when magistrates – meaning lay justices – request their clerk to join them for the purposes of advising them on the law, on the sentences imposed by other courts or on a mixed question of law and fact.

48.  Like art.10 of our Bill of Rights, art.6 of the European Convention on Human Rights provides a right to an independent and impartial tribunal.  Both the European Court of Human Rights and the Privy Council have held that this right is not infringed by the practice whereby the clerk to lay justices retire with them.  The European Court of Human Rights so held in Mort v. United Kingdom, Application No.44564 of 1998, 6 September 2001 (unreported) and the Privy Council so held in the devolution case of Clark v. Kelly [2004] 1 AC 681.

Canadian decisions

49.  We have been shown a number of Canadian decisions.  In Weerasinge v. Minister of Employment and Immigration [1994] 1 FC 330, the Federal Court of Appeal of Canada appears to have considered it permissible for independent and impartial members of the staff of a lay tribunal to check its decisions as to legal matters before publication.  And in Canada (Attorney General) v. Royal Commission of Inquiry on the Blood System in Canada (1997) 207 NR 1, that court appears to have considered it permissible for counsel for a commission of inquiry to assist in the drafting of the commission’s report.  In Re Sawyer and Ontario Racing Commission (1989) 99 DLR (3rd) 561 the Ontario Court of Appeal held that it was improper for prosecuting counsel to write the tribunal’s decision.  A distinction was drawn between the role of, on the one hand, prosecuting counsel and, on the other hand, the role of a legal assessor (as discussed in Re Glassman and Council of College of Physicians & Surgeons (1966) 55 D.L.R. (2d) 674).  As to the role of prosecuting counsel, the court said in Sawyers’s case (at p.564) that there was “no doubt that his role was to prosecute the case against the appellant and he was not present in a role comparable to that of a legal assessor to the Commission as discussed [in Glassman’s case at p.692]”.

50.  What about counsel for a disciplinary tribunal?  In Bernstein v. College of Physicians and Surgeons of Ontario (1977) 76 DLR (3d) 88, the Divisional Court of the High Court of Ontario appears to have considered it impermissible for counsel for a disciplinary tribunal to have a hand in the drafting of the tribunal’s decision.  But in Khan v. College of Physicians and Surgeons of Ontario (1992) 94 DLR (4th) 193, the Court of Appeal of Ontario appears to have taken the opposite view.

51.  In the absence of fuller information as to Canadian conditions, the assistance which we are able to derive from the Canadian decisions is, as it seems to me, rather limited.

New Zealand decisions

52.  Among the New Zealand decisions which we were shown is the one in Wislang’s case (mentioned, as noted above, in Wade and Forsyth).  It is a first instance decision.  The participation in that case consisted of: consultations between a disciplinary tribunal’s chairman and its secretary; the tendering of some advice by the secretary; and his obtaining counsel’s advice for the tribunal.  It was the judge’s view that such participation, or at least some of it, was unfortunate.  But he did not think that any of it affected the tribunal’s proceedings in such a way as to require the court’s intervention.

53.  In Rich v. Christchurch Girl’s High School Board of Governors (No. 1) [1974] 1 NZLR 1, the proceedings concerned were those at a meeting at which a school board decided to expel two pupils.  The school’s principal was regarded as the “accuser” on the charges brought against the pupils.  Nevertheless she attended the board’s meeting.  But her presence thereat was permitted by statute.  Since she did not do anything more than attend the board’s meeting, the New Zealand Court of Appeal held that there had been no violation of the rules of natural justice of which complaint could be made.

54.  Murdoch v. New Zealand Milk Board [1982] 2 NZLR 108 concerned proceedings at which the Milk Board’s Vendor Review Committee revoked a milk vendor’s approval to carry on the business of a milk vendor.  The New Zealand High Court set aside the revocation on the grounds that the rules of natural justice had been violated to the milk vendor’s detriment in two ways.  First, the vendor had not been given adequate particulars of the allegations against him.  Secondly, the board’s solicitor, who had adopted the role of a prosecutor, had been present while the committee deliberated. And although it was not proved that he had deliberated with the committee, such presence was sufficient to raise in the mind of a reasonable man a suspicion that he might have influenced the committee’s decision.  In dealing with the reliance placed by the board on Rich’s case and Wislang’s case, Davison CJ said (at p.120) that those cases “have no application where the person concerned is acting in the role of accuser or prosecutor”.  As I understand the circumstances in Rich’s case, the principal had “filled the role of an accuser” (as McCarthy J put it at p.8).  But she certainly had not acted as a prosecutor.  Nor had the disciplinary tribunal’s secretary in Wislang’s case.

High Court of Australia’s decision in Stollery’s case

55.  In Stollery v. Greybound Racing Control Board (1972) 128 CLR 509 the person whose presence at the tribunal’s deliberations was considered by the High Court of Australia to have compromised the tribunal’s appearance of impartiality was an accuser.  And there was no reason whatsoever for his presence at those deliberations.

Examples from the United Kingdom

56.  Lord Pannick has pointed to legislation under which various disciplinary and other tribunals in the United Kingdom are expressly permitted to seek the assistance of their legal advisers or legal assessors in the drafting of their decisions.  These examples, he submits, show that such assistance is widely regarded as acceptable.

57.  In Virdi v. Law Society [2010] EWCA Civ 100,the Solicitors Disciplinary Tribunal’s clerk had retired with its members when they considered their decision.  Following the announcement of their decision finding the solicitor guilty of serious professional misconduct, the clerk had assisted in the drafting of their written findings.  On appeal, the solicitor contended that the part played by the clerk was unlawful.  The Court of Appeal in England rejected that contention.  In a judgment with which the other members of the court agreed, Stanley Burnton LJ said (in the second column of the penultimate page of the report) that he had no doubt that the tribunal “was impartial and independent and appeared to be so.”

Competence, independence and impartiality

58.  Ultimately it comes, I think, to this.  Under our constitution, it is the right of anyone and everyone who is dealt with by a tribunal that the tribunal be – and be seen to be – competent, independent and impartial.  There is a very good reason for these matching requirements.  Competence, independence and impartiality are qualities which the process of courts and tribunals must have in order for justice to be done.  And it is in the very nature of justice as administered in courts and tribunals that justice must be not only existent but also, as far as circumstances permit, visible to reasonable and informed observers.  Otherwise the administration of justice would not enjoy the public confidence that it needs in order to be fully effective.  All of this is fundamental.  And it necessarily follows that none of it can ever be subordinated to considerations of mere convenience whether it be the convenience of the tribunal or of anyone else.

59.  There is no reason to regard the Medical Council as incompetent.  The competence of a tribunal lies essentially in the tribunal’s own qualities.  A competent tribunal would not be rendered incompetent or made to appear so by erroneous legal advice or assistance.  If the advice or assistance is erroneous, any injustice caused by such error can be remedied by the courts in the exercise of appellate or judicial review jurisdiction.

60.  So much for competence.  Leaving the question of independence to be considered last, what about impartiality?  Legal advisers like the Medical Council’s Legal Adviser function impartially.  They do not espouse one side or the other’s cause.  Nor do they present or urge one side or the other’s case.  Their allegiance is only to professional propriety under the law.  There is no reason to think that the sort of presence at deliberations or decision drafting which this case concerns would render a tribunal impartial or make it appear so.

61.  Would such presence at deliberations or decision drafting compromise, or appear to compromise, a tribunal’s independence?  As far as presence at deliberations is concerned, I consider it sufficient to say that what holds good for impartiality obviously holds good for independence as well.  This leaves decision drafting.

62.  It may be difficult to draft for another without letting in at least some of your own ideas.  But I do not consider it impossible.  What must be insisted upon when a legal adviser drafts for a tribunal is as follows.  The tribunal must deliberate without any participation by the legal adviser apart from giving it legal advice.  No drafting by the legal adviser may commence until after the tribunal – having so deliberated – has arrived at its decision and has made its decision, findings and reasoning known to the legal adviser.  What the legal adviser drafts must embody the tribunal’s findings and reasoning.  The tribunal must scrutinise the draft.  If necessary, the tribunal must modify the draft to ensure that it is the tribunal’s product, not the legal adviser’s, and that it says what the tribunal means.  The practice under which the Legal Adviser produces draft decisions for the Medical Council includes all of those safeguards.  Indeed it includes a further safeguard, namely that the drafting is done in the Medical Council’s presence.  This further safeguard is at least desirable.  I leave open whether it is always essential for other tribunals.  In my view, the decision drafting in question does not compromise, or appear to compromise, the Medical Council’s independence.

63.  I would stress that there is no question here of justifying an adverse impact upon a constitutional right.  It is a matter of holding that the constitutional right involved is not adversely impacted upon by the practice concerned and, indeed, benefits by it.  This is because the practice, properly understood and pursued, makes a valuable contribution to the safeguarding of the right to a competent, independent and impartial tribunal.  It does so, first, by seeing to it that the tribunal is able, where the law is concerned, to seek the competent and impartial advice of a lawyer who acts under its instructions and subject to its approval so as to preserve its independence.  Secondly, it makes it easier to see on what understanding of the law the tribunal had proceeded.

64.  Having regard to the safeguards built into the practice concerned, I am of the view that the Legal Adviser’s presence at the Medical Council’s deliberations is lawful and so is the decision drafting which he does for it.  Neither such presence nor such decision drafting compromises the real or apparent competence, independence or impartiality of the Medical Council or the real or apparent fairness of its proceedings.  As to appearances, it must be remembered that it is a question of how things would appear to the hypothetical fair-minded and informed observer.  Being taken to be informed, the hypothetical observer must be taken to be aware of the Medical Council’s practice stated in paragraph 5 of the 3 February 2006 paper.  Fair-minded persons would, in the absence of evidence to the contrary, credit responsible bodies with adherence to the safeguards of their practices.  Being taken to be fair-minded, the hypothetical observer must be taken to be someone who would credit the Medical Council with adherence to the safeguards of its stated practice unless there was evidence to the contrary.

State the practice

65.  One of the lessons which this case teaches is this.  In future it is desirable that the Legal Adviser should immediately before retiring and in the presence of the Medical Council and the parties in the hearing room make a full and accurate statement of the practice that will be followed, explaining clearly what will and what will not be done.  While failure to make such a statement will not of itself invalidate the Medical Council’s decision, the advantages of such a course are twofold.  First, it should help to allay any suspicions of the parties.  Secondly, it would serve to remind the Legal Adviser of his own limited functions in the retiring room and the Medical Council of its responsibility to reach its own decision and give its own reasons unprompted by the Legal Adviser.

Make impartiality manifest

66.  Reading the transcript of the disciplinary hearing in the present case, I think that there is another point to be made for future guidance.  It is this.  The atmosphere at disciplinary hearings is not infrequently quite tense.  In such an atmosphere misunderstandings easily occur.  So those who serve as legal advisers to disciplinary tribunals must always take very great care to make their impartiality manifest at all times.  I make this point without any criticism of anyone involved in the disciplinary hearing in the present case.

Other grounds

67.  I will now deal with Dr Chan’s other grounds, which I have already set out.  The target at which these other grounds are aimed is the Medical Council’s statement that Dr Chan had breached a “long-established rule that doctors are prohibited from public endorsement or promotion of a commercial brand of medical or health related products”.  And the gist of these other grounds is as follows.  It was unfair and contrary to natural justice for the Medical Council to invoke such a rule against Dr Chan without having warned her of it before the hearing commenced.  Such a rule, if it existed, would be a restraint on free speech which restraint is not prescribed by law and is therefore unlawful.  In any event, the rule is neither a necessary nor a proportionate restriction on that constitutional freedom.

68.  The medical profession is – as the public interest requires that it should be – regulated by law, essentially in the form of the Medical Registration Ordinance.  This Ordinance establishes the Medical Council, prescribes its composition and lays down its functions including those in regard to professional discipline.  The Medical Council has published a pamphlet entitled “Professional Code and Conduct”.  It serves as a code for the guidance of registered medical practitioners on how they should and should not conduct themselves.  The relevant version of this document is the one revised in November 2000.  I will refer to it as “the Code”.

69.  Part III of the Code is headed “Professional Misconduct”.  The first three paragraphs of this part of the Code say :

“           ‘Misconduct in a professional respect’ can be broadly defined as ‘If a medical practitioner in the pursuit of his profession has done something which will be reasonably regarded as disgraceful, unethical or dishonourable by his professional colleagues of good repute and competency, then it is open to the Medical Council of Hong Kong, if that be shown, to say that he has been guilty of professional misconduct’.

            The seriousness of misconduct will be judged by the rules, both written or unwritten, of the profession itself.

            This part of the pamphlet sets out certain kinds of professional misconduct which may lead to disciplinary proceedings by [the Medical Council].  The pamphlet is thus NOT a complete code of professional ethics, nor can it specify all the forms of misconduct which may lead to disciplinary action.”

70.  The correctness in law of those statements is attested by many judicial pronouncements by courts of last resort.  A few examples will suffice.  Delivering the opinion of the United States Supreme Court in Semler v. Oregon State Board of Dental Examiners 294 US 608 (1935), Hughes CJ said (at p.612) that “[w]hat is generally called the ‘ethics’ of the profession is but the consensus of expert opinion as to the necessity of such standards”.  Lord Morris of Borth-y-Gest spoke in a similar vein when, delivering the advice of the Privy Council in Gardiner v. General Medical Council (1961) 105 SJ 525, he said (at p.525) that “[w]ithin the profession the line between the unobjectionable and objectionable publication should present no difficulties of recognition for any reasonable practitioner, even though the accepted ethical standards might not be formulated precisely or in any written code”.

71.  Delivering the advice of the Privy Council in Roylance v. General Medical Council (No.2) [2000] 1 AC 311, Lord Clyde said as follows at pp 330E-331A:

“The expression ‘serious professional misconduct’ is not defined in the legislation and it is inappropriate to attempt any exhaustive definition. It is the successor of the earlier phrase used in the Medical Act 1858 (21 & 22 Viet. c. 90) ‘infamous conduct in a professional respect,’ but it was not suggested that any real difference of meaning is intended by the change of words. This is not an area in which an absolute precision can be looked for. The booklet which the General Medical Council have prepared, ‘Professional Conduct and Discipline: Fitness to Practice’ (December1993), indeed recognises the impossibility in changing circumstances andnew eventualities of prescribing a complete catalogue of the forms of professional misconduct which may lead to disciplinary action. Counsel for the doctor argued that there must be some certainty in the definition so that it can be known in advance what conduct will and what will not qualify as serious professional misconduct. But while many examples can be given the list cannot be regarded as exhaustive. Moreover the Professional Conduct Committee are well placed in the light of their own experience, whether lay or professional, to decide where precisely the line falls to be drawn in the circumstances of particular cases and their skill and knowledge requires to be respected. However the essential elements of the concept can be identified.”

72.  What must the Medical Council have meant when (without citing any specific written rule) it spoke of a “long-established rule that doctors are prohibited from public endorsement or promotion of a commercial brand of medical or health related products”?  Plainly the Medical Council was referring to a consensus within the medical profession that such endorsement or promotion by a doctor is unethical.

73.  I see no basis on which the courts can properly reject the Medical Council’s view that such a consensus existed.  Nor do I see anything unfair or contrary to natural justice in the Medical Council holding this doctor to the ethical standards the subject-matter of this consensus within her profession.

74.  Article 27 of the Basic Law entrenches and guarantees “freedom of speech”.  And art.39 of the Basic Law entrenches the Bill of Rights.  Paragraph (2) of art.16 of the Bill of Rights provides that everyone shall have “freedom of expression”.  And paragraph (3) of this article provides that restrictions on this freedom

“shall only be such as are provided by law and are necessary –

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals”.

75.  Free speech is a constitutional freedom even when it is only commercial speech.  And I say “only” not to diminish the importance of free commercial speech but to acknowledge the even greater importance of free political speech.

76.  The ethical standards to which the Medical Council held Dr Chan place a restriction on what she may say albeit only in a commercial context.

77.  I turn now to this Court’s decision in Shum Kwok Sher v. HKSAR (2002) 5 HKCFAR 381.  At pp 402G-403B Sir Anthony Mason NPJ (with whose judgment Li CJ and Chan and Ribeiro PJJ said they agreed) cited with approval  what the majority in the European Court of Human Rights said in Sunday Times v. United Kingdom (No.1) (A/30) (1979-80) 2 EHRR 245 in para.49 to p.271.  This is that :

“First, the law must be adequately accessible : the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.  Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct : he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.  Those consequences need not be foreseeable with absolute certainty : experience shows this to be unattainable.  Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.  Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.”

78.  Mr Thomas drew attention to my concurring judgment in Shum’s case where I said this at p.390A-D :

“As Sir Anthony Mason NPJ points out, the degree of certainty required will depend on the context of the law in question.  In agreeing that the offence of misconduct in public office is sufficiently certain, I am crucially influenced by the fact that it is not the type of offence which criminalises conduct in such a way as to limit the exercise of a fundamental freedom eg free speech.  Where any offence of that type is concerned, I think that an exceptionally high degree of certainty of definition would be required if, quite apart from any other objection, it is not to be open to objection as unconstitutional for uncertainty.  For in the absence of such a degree of definitional certainty, the whole question of what is left of the fundamental freedom concerned would be thrown into doubt.  It is not by countenancing such a state of affairs that the courts discharge their duty of protecting fundamental freedoms.”

Lord Pannick did not quarrel with any of that.  What he said was that even where the criminal law is concerned, an exceptionally high degree of certainty of definition did not mean absolute precision.  I agree.  Lord Pannick cited the decision of the European Court of Human Rights in Muller v. Switzerland (1988) 13 EHRR 212, a case on obscenity and freedom of artistic expression where this was said at p.226 :

“           In the applicants’ view, the terms of Article 204(1) of the Swiss Criminal Code, in particular the word ‘obscene’, were too vague to enable the individual to regulate his conduct and consequently neither the artist nor the organisers of the exhibition could foresee that they would be committing an offence.  This view was not shared by the Government and the Commission. 

            According to the Court’s case law, ‘foreseeability’ is one of the requirements inherent in the phrase ‘prescribed by law’ in Article 10(2) of the Convention.  A norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.  The Court has, however, already emphasised the impossibility of attaining absolute precision in the framing of laws, particularly in fields in which the situation changes according to the prevailing views of society.  The need to avoid excessive rigidity and to keep peace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague.  Criminal law provisions on obscenity fall within this category.”

79.  Another case to which Lord Pannick pointed is the decision of the Court of Appeal in Re a Solicitor (Paul Tse No.1) (2005-06) 11 HKPLR 140.  The disciplinary offence charged in that case was conduct likely to bring the profession into disrepute.  Freedom of expression was engaged, being freedom of expression by way of demonstration and by way of circulating other solicitors.  The disciplinary convictions were held constitutional even though the conduct on which those convictions were based involved exercising free expression.  There the reputation of the solicitors profession was involved.  In the present case, public health is involved.  At least in general, public health would naturally be involved when a doctor publicly endorses a health product.

80.  A constitutional right or freedom must always be protected with anxious care.  This is so even when it is one like freedom of commercial speech rather than freedom of political speech.  The position of a person facing a charge must also always be protected with anxious care.  This is so even when the charge is disciplinary rather than criminal.  All of this is so even when the aim of the restriction on the right or freedom and of the bringing of the charge is to protect something as vital as public health.  To a greater or lesser extent, the definition of an offence, whether criminal or disciplinary, necessarily entails a degree of flexibility.  Nevertheless the elements of the offence must be sufficiently precise.  What would amount to a commission of the offence must be reasonably foreseeable – with appropriate advice, if need be.  So the present case calls for very careful consideration of all the factors involved and the whole of the relevant circumstances. 

81.  Upon such consideration, I find myself in respectful agreement with the conclusion reached by the learned judges of the Court of Appeal on this part of the case.  The speech involved was commercial rather than political speech, and the restriction thereon was necessary for the protection of public health.  It was proportionate to that need. 

82.  Having regard to the realities of the circumstances, the finding that what Dr Chan did constituted misconduct in a professional respect is not unfair, contrary to natural justice, incompatible with free speech or with legal certainty.  After all, the sort of professional misconduct alleged against Dr Chan can only be established if the governing body of her profession is satisfied, after a full and fair hearing, that what she did was contrary to a consensus within her profession on what the ethics of that profession demand.  And there is a right of appeal to the judiciary.  It is not unconstitutional that, under the safeguards of a fair system of adjudication and appeal, persons are held to the customary ethics of their profession unless the particular rule of ethics involved is irrational.  This one is by no means irrational.

Finding of professional misconduct reinstated

83.  For the foregoing reasons, I am of the view that the finding of professional misconduct made by the Medical Council in the present case was justifiably made.  Accordingly, I would reinstate that finding. 

84.  So it is now necessary to address the question of penalty.

Penalty

85.  By virtue of s.17 of this Court’s statute, we may, for the purposes of disposing of an appeal, exercise any powers of the court from which the appeal lies.  The powers of the Court of Appeal in an appeal by a registered medical practitioner against an order made in respect of him or her by the Medical Council under sections 19, 19B, 21 or 21A of the Medical Registration Ordinance are laid down by s.26(1) of that Ordinance.  They are to “affirm, reverse or vary the order appealed against, or remit the case to [the Medical Council] for an, or another, inquiry”.  That includes so remitting the case to the Medical Council for another inquiry as to penalty.

86.  It is in effect common ground that the Medical Council should be regarded as having taken an erroneously serious view of Dr Chan’s misconduct by treating it as “not a one-off incident”.  But there is no common ground as to the penalty to be substituted for the suspended removal ordered by the Medical Council.  Mr Thomas asks us to substitute an order that a warning letter be served.  Lord Pannick asks us to substitute a reprimand.  It is an important feature of self-regulation by the professions that courts attach considerable weight to the views of disciplinary tribunals on questions of penalty.  We do not know – and should not guess – what penalty the Medical Council would have imposed in the present case if it had not treated this as “not a one-off incident”.  All things considered, the best course is a remitter to the Medical Council for it to choose between a reprimand and a warning letter.   

87.  I should mention that when the question of a remitter was put to them, neither Lord Pannick nor Mr Thomas argued against such a course.

Result

88.  In the result and with an expression of my thanks to counsel on both sides for their valuable assistance, I would allow the appeal to restore the finding of professional misconduct and remit the case to the Medical Council for it either to order that Dr Chan be reprimanded or to order that a warning letter be served on her.  

89.  The Medical Council should impose either one or the other of those penalties after considering everything urged in mitigation on Dr Chan’s behalf including but not limited to this being a “one-off incident”.  Mr Thomas was anxious that it be made clear that what may be urged in mitigation on Dr Chan’s behalf is not limited to this being a “one-off incident” and is at large.  He is right.  The mitigation is not thus limited.  It is at large.

90.  As to costs, I would order that they be dealt with on written submissions as to which the parties should seek procedural directions from the Registrar.

Mr Justice Chan PJ :

91.  I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ribeiro PJ :

92.  I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Mortimer NPJ :

93.  I agree with the judgment of Mr Justice Bokhary PJ.

Lord Millett NPJ :

94.  I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ :

95.  The Court unanimously : (i) allows the appeal; (ii) restores the finding of professional misconduct; (iii) remits the case to the Medical Council for it to hear full mitigation and then order either a reprimand or the serving of a warning letter; and (iv) orders that costs be dealt with on written submissions as to which the parties should seek procedural directions from the Registrar.