DR. CHAN HEI LING HELEN v. THE MEDICAL COUNCIL OF HONG KONG

CACV 403/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 403 OF 2006

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL

OF HONG KONG MADE ON 31ST OCTOBER 2006)

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J U D G M E N T

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Hon Le Pichon JA:

1.  This is an appeal by the appellant (“the defendant”) in a disciplinary inquiry from an order of the Medical Council (“the Council”) of 1 November 2006 that her name be removed from the General Register for a period of two months and that the removal order be suspended for a period of two years, the Council having found the defendant guilty as charged of professional misconduct.  At the conclusion of the hearing judgment was reserved, which we now give.

The charge

2.  The charge was

“That [the defendant], being a registered medical practitioner, sanctioned, acquiesced in or failed to take adequate steps to prevent the appearance of her name, title, photographs and statements in an advertisement in Oriental Daily on the 4 August 2004 issue, in which she endorsed the line of health products of “Doctor’s Choice” offered by Vita Green Health Products Company Limited (維特健靈健康產品有限公司) with which she had a financial relationship.

In relation to the facts alleged, she has been guilty of misconduct in a professional respect.”

Background facts

3.  The article in question, which appeared in the “Health” section of the newspaper, began by stating that the client had provided the information for the article and a telephone number was given for enquiries. In other words, it was a commissioned advertisement.  The telephone number was that of Vita Green (“the company”).  The defendant was the managing director of the company.

4.  The article concerned a press conference held by the defendant, a professor in pharmacy, a pharmacist and the managing director of a chain drugstore and included a photograph of the participants against a backdrop in which the brand name “Doctor’s Choice” was prominently featured.  The press conference was plainly a stage-managed event to promote the products of that brand: there were copious references to “Doctor’s Choice” in the advertisement, with close-up photographs of some of its products.  The defendant’s name, title, photographs repeatedly appeared in the advertisement.

5.  The advertisement contained a section headed “Effective Formulation for Mitigating Stress” which read:

“Dr. Helen CHAN, Managing Director of Vita Green Health Products Co. Ltd. said, “Sustained stress will lead to increased heartbeat, mood swing, increased blood pressure and sleeplessness.  In serious cases, functions of the immunity system will be undermined, making people more vulnerable to illnesses.  The consequence is worrying.”

She pointed out that physical and mental health is very important, (and) to maintain the balance of the body and the mind, apart from maintaining a positive attitude in facing stress, cleverly choosing to take appropriate vitamins and supplements is also a good method to resolve depression and relieve stress.  Studies have shown that anxiety and irritability emerge when the body is deficient in Vitamin B-Complex.  When stress attacks, one has to “prepare for a rainy day” by taking additional multiple vitamins and minerals conducive to stress mitigation to enhance the body’s ability to withstand mental stress.  The best-selling “Doctor’s Choice” Vitamins in Hong Kong target various health requirements and are professionally formulated by doctors.  Among them, “Doctor’s Choice” Vita Stress Vita Stress is developed especially for people under great pressure from life and mental tension.  [It] contains folic acid, niacinamide, Vitamin H and Vitamin B-Complex [which] can mitigate stress and tension.  [Vitamins] B6 and B12 can alleviate hot temper as well as mitigating anxiety and tension.  Apart from making up the deficiency of stress-alleviating vitamins in food, Vita Stress can enhance mental health and promote sleep.  Formulated by doctors, [it] is safe, beneficial and free from side effects.”

6.  Reading the advertisement as a whole, and in the context, the Council attributed the statements in that section to the defendant.  It considered that the publication of the defendant’s name, title and photographs coupled with the statements made was a public endorsement by the defendant of the products of company and that it was a breach of the long established rule of the medical profession that doctors are prohibited from public endorsement or promotion of the commercial brand of health-related products.  The Council concluded that the defendant’s conduct had fallen below the standard expected amongst registered medical practitioners and that it constituted professional misconduct.

7.  The hearing took place on 14 June, 27 September and 31 October 2006.  There was no oral evidence.

The new evidence

8.  On the last day of the hearing on 31 October 2006, the legal adviser disclosed the existence of a policy decision of the Council regarding the presence of the legal adviser during the deliberation stage of the case and that the legal adviser might be involved in the writing of the decision of the Council.  Thereafter, the defendant’s solicitors pressed for discovery of the official document(s) evidencing that policy decision.  Shortly prior to the appeal hearing, the Council applied by summons for the admission of an affidavit of Lau Wan Yee, Joseph (“Professor Lau”) sworn on 20 March 2009 to which were exhibited Council Paper MC/18/06 (“the paper”) and the relevant extract of the minutes of the 260^th Policy Meeting of the Council held on 8 February 2006 concerning the issue of “Disciplinary Inquiries - Drafting of Judgments”.  The application was unopposed.

9.  The paper from the Secretary of the Council invited members to consider the procedure to be followed in the drafting of the judgments in disciplinary inquiries in view of the comments of this court (differently constituted) in Law Society of Hong Kong v Solicitor, CACV 62/2005, reiterating the importance of the tribunal itself writing its own decisions.

10.  The paper described the then prevailing practice of the Council (“the practice”) in these terms:

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

11.  The Council was invited to consider whether the practice should be changed.  After discussion, the Council decided that the practice be continued.

12.  Professor Lau is a member of the Council and was the temporary chairman presiding at the inquiry in question.  By way of background to the Council’s policy, he drew attention to the fact that the Council members are not legal practitioners, that the number and intrinsic complexity of matters for inquiries have substantially increased in recent years and legal issues presented are often based on complicated human rights jurisprudence.  He went on to explain the policy as stated in the paper, elaborating that the legal adviser’s presence was considered necessary because

“an objective independent legal professional person not involved in the discussion is in a better position to monitor the discussion and detect any irregularity or impropriety”

and

“being a legally trained person the Legal Adviser is in a proper position to grasp the essential points in our often lengthy discussions which need to be stated in the judgment order to prevent misunderstanding or misinterpretation, some of which we as laymen may otherwise have omitted as stating the obvious.”

13.  The last part of Professor Lau’s affidavit gave an account of what actually happened at the deliberation stage of the inquiry, essentially confirming that it was in conformity with the policy.

This appeal

14.  Mr Thomas SC, who appeared for the defendant, raised a number of issues of varying importance.  To my mind, the most significant issue in the present case centres on the part played by the legal adviser in the inquiry.  I propose to deal with that issue first.

The part played by the legal adviser

15.  Mr Thomas submitted that, first, it was wrong in principle for the legal adviser to have been present during the deliberations of the Council and, second, that it was wrong for him to have been involved in the drafting of the findings.  He relied on the decisions of this court in, inter alia, Au Wing Lun v Solicitors Disciplinary Tribunal [2002] HKEC 1141, §§ 12-17 Solicitor v Law Society of Hong Kong [2005] 3 HKLRD 622, § 22 and Law Society of Hong Kong v Solicitor (supra), §§ 24-29.

16.  The authorities cited made clear, in no uncertain terms, that communication in any form by a non-member with a tribunal in the absence of the parties would give rise to a perception of unfairness, that justice would not be seen to be done inasmuch as the tribunal might have been influenced by what might have been communicated.  A non-member who is present during the tribunal’s deliberations plainly is in a position to communicate with the Council.  Whether he actually does so is irrelevant because his mere presence would give rise to a perception of unfairness.  Equally, the involvement of a non-member in the drafting of the decision, even a first draft which is subject to review by the members of the tribunal, inevitably, would open up the possibility of the tribunal having been influenced as to the contents of the decision, for example, through using or adopting thoughts and expressions in the decision emanating from the non-member that might not otherwise have featured in the decision.  It is, thus, objectionable.

17.  While those cases concerned the Solicitors Disciplinary Tribunal, absent any special reason why they should not apply (such as express statutory authorisation), the principles stated are of general application.  In that context, it should be mentioned that at the end of the hearing, Mr McCoy SC very properly referred this court to a recently published textbook which had come to his attention.  There would appear to be at least one example, in England, where the involvement of a non-member was specifically authorised by legislation.  Art. 34(3) of the Nursing and Midwifery Order 2001 (SI 2002/253) provides, specifically, that legal assessors may, at the request of the Committee, assist in the drafting of any decision.  See Fitness to Practice: Healthcare Regulatory Law, Principle and Process, Glynn and Gomez, Chapter 19, footnote 25.  Cf. Re Emerson and Law Society of Upper Canada (1983) 5 DLR (4^th) 294, which held (at 326) that the enactment of subordinate legislation which set aside a fundamental rule of natural justice (by permitting the secretary of the tribunal to draft the report for the approval of the discipline committee) was invalid as conflicting with the enabling statute although, had it been enacted by the legislature itself, it would be valid.  Be that as it may, it is important to note that the present case is not about express statutory authorisation.

18.  Mr McCoy does not challenge the correctness of the decisions referred to in § 15 above.  Rather, he submits that they are distinguishable because of the specific statutory context and setting for the Council.  While the functions of the clerk to the Solicitors Disciplinary Tribunal are purely clerical and administrative, the legal adviser’s role is wholly different.  He is appointed by the Chief Executive.  That, it was said, points to the standing of the individual and reflects the significance and importance of his role as an independent legal adviser whose duty it is to ensure that the Council comports with the law throughout any inquiry conducted by the Council. Often, disciplinary cases are precursors for litigation (for personal injuries, professional negligence, probate etc.) to be conducted in other forums.  That could explain why, in 80% of disciplinary cases, the defendant is represented by experienced counsel and, very often, senior counsel, when the Council is only represented by a solicitor from the Department of Justice.  Further, the thrust of cases that come before the Council has changed dramatically in recent years, from medical cases to legal cases relating to medicine, often involving issues of great complexity.

19.  As to the relevant statutory framework, Mr McCoy drew specific attention to the following provisions:

(1) Section 32 of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation, (Cap. 161, sub. leg. E):

“32.  Voting

…

(4) No person other than the members and assessors of the Council and the Legal Adviser to the Council may be present when the Council votes on any matter.”

(2) Sections 6 and 8 of the Medical Registration (Miscellaneous Provisions) Regulation (Cap. 161, sub. leg. D):

“6.    Duties of Legal Adviser in inquiry by Council

(1)  The Legal Adviser to the Council shall be present at every inquiry held by the Council in accordance with section 21 of the Ordinance… and the Council shall not commence such an inquiry or a meeting if the Legal Adviser is not present.”

“8.    Advice by Legal Adviser

(1)  When the Legal Adviser to the Council advises the Council on any question of law as to evidence, procedure or any other matter, in any inquiry under section 21 of the Ordinance… he shall do so in the presence of every party to the proceedings or the person representing each party or, if the advice is tendered after the Council has commenced to deliberate as to its findings, every such party or person as aforesaid shall be informed of the advice that the Legal Adviser has tendered.

(2)  In any case where the Council does not accept the advice of the Legal Adviser to the Council on any such question mentioned in subsection (1), every such party or person shall be informed of this fact.”

(3) Section 21 of the Medical Registration Ordinance, Cap. 161:

“21.  Disciplinary powers of Council

(1)  If, after due inquiry into any case referred to it by the Preliminary Investigation Committee… in accordance with regulations made under section 33, the Council is satisfied that any registered medical practitioner-

…

(b)  has been guilty of misconduct in any professional respect;

…

the Council may, in its discretion [make certain orders].

Mr McCoy’s submission is that the interstitial effect of those provisions is to approbate the practice disclosed by the paper.

20.  Mr McCoy highlighted the fact that the arrangements laid down by the statutory framework left lay persons having to grapple with constitutional and public law issues.  Without hands-on guidance, there was a serious risk of error.  To redress the balance, the legal adviser has to have, in Mr McCoy’s phraseology, “significant and enduring influence as to the choreography of the concepts”, he being the “downstream recorder of findings and not their creator”.

21.  With that backdrop, Mr McCoy submitted that (1) “voting” in section 32(4) of sub. leg. E, when read with section 6 of sub. leg. D (which mandates the legal adviser’s presence), refers to the period when the decision-making process is carried out, namely, the deliberative phase of the inquiry; (2) “advice” in section 8 of sub. leg. Dis to be read expansively as meaning the provision of assistance; and (3) “or any other matter” in section 8(1) read in conjunction with the words “after the Council has commenced to deliberate as to its findings” at the end of that subsection as permitting the legal adviser not only to record the Council’s findings as it deliberates, but also to “scribe” that collection of findings and recordings for the Council to review, to see if they accord with what the Council had intended.  In short, it was said that the Council’s practice is approbated by the legislation itself.

22.  The difficulty with Mr McCoy’s submission is that the court is asked to infer from the statutory provisions specific authority to depart from well-established principles.  One might query whether it would ever be appropriate for the court to infer specific authorisation.  Assuming that it is open to a court to do so, at the very least, the inference must be necessary and the circumstances compelling.

23.  While I have no doubt that the Council is a conscientious body and that the policy decision taken in 2006 was well-intentioned and properly motivated, at the end of the day, the real and only question is whether the statutory provisions do authorise the presence of the legal adviser during the deliberation stage and his involvement in the drafting of the decision, albeit in the presence of all the members of the Council and subject to their review.

24.  Despite Mr McCoy’s valiant efforts, I do not consider the construction he seeks to give the provisions to be correct.  Specifically, there would not appear to be any necessity to give the term “vote” in section 32(4) of sub. leg. E a meaning other than its ordinary meaning of the act of voting itself as distinct from the highly artificial meaning of the carrying out of the decision-making process.  Had that been the legislature’s intention, one would have expected sections 6 and 8 of sub. leg. D to have been drafted differently and to have given specific authorisation for the legal adviser to be present during the deliberations.  The specific authorisation in section 6 and the implied authorisation in section 8 suggest that they are the exceptions to the normal rule (that a non-member should not be present) which applies.  Nor are there circumstances to warrant giving the phrase “or any other matter” in section 8 of sub. leg. D the meaning ascribed to it by Mr McCoy when, the more natural reading is that, like “evidence, procedure” which precedes it, such “other matter” has to be a question of law.  I do not consider that the context requires “or any other matter” to be read as entirely independent of what precedes it, as a stand-alone provision.

25.  Mr McCoy went on to argue that a breach of the regulations would not, per se, lead to the annulment of the proceedings.  Section 21(2) the Ordinance defines “due inquiry” as meaning

“an inquiry by the Council conducted substantially in accordance with the procedure prescribed by regulations made under section 33.”

So, it was submitted that, even if the legal adviser had inadvertently exceeded his role, the court still has to consider whether the irregularity was so fundamental as to require the order to be set aside.  Mr McCoy suggested that the court could evaluate the overall merits of the case.

26.  The involvement of the legal adviser in the manner envisaged by the policy raises issues of breaches of natural justice, bias or the perception of bias, improper delegation and ultra vires. The irregularity involved here cannot be brushed aside as a mere technicality and, hence, inconsequential.  In my view, it is fundamental and goes to the validity of the decision.

27.  As to Mr McCoy’s invitation to this court to evaluate the overall merits of the case, in my view, it is not an exercise that this court should undertake.  In this connection, the following passage from the judgment of Brooke JA in Re Sawyer and Ontario Racing Commission (1980) 99 DLR (3d) 561 at 566 is pertinent:

“… I think Mr. Laskin is right in his submission that justice cannot appear to have been done when the determination of how a case was decided depends, not upon the reasons over the signature of the real author, but rather upon the affidavit of a person who actually wrote the reasons and who now must explain how his thoughts were accepted after the decision of the tribunal.  This is not good enough, for the appellant still has not been told by the tribunal why it found him guilty.  Similarly I do not agree that this Court should attempt to test the decision by considering the record.  We should not retry the case or simply examine it to find if there is evidence which might support the judgment.  That is not what is in issue here.  What is in issue is that this man has not been dealt with according to the law.”

While, in the present case, the affidavit is from the chairman of the tribunal rather than the legal adviser, the difference is immaterial.  It is highly undesirable for this court to be asked to consider an untested affidavit which, in any event, suggests that the legal adviser’s role may have been pro-active rather than reactive.

28.  In conclusion, I am of opinion that the legislation does not authorise the legal adviser (1) to be present during the 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 Council’s review or be involved in the writing of the decision in any way.

29.  It follows that on this first ground, the order must be set aside and the appeal allowed.

30.  I would add that I am acutely aware that, increasingly, the legal issues confronting the 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 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 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.

Other issues

31.  Since the first issue effectively disposes of this appeal, it is strictly unnecessary to consider the other grounds on which Mr Thomas relies and their relative merits.  Nevertheless, if I were to be wrong on the first ground, two of the other issues (considered below) do raise important matters of principle and it would be appropriate to address them.  As will become apparent, I do not consider that these other issues have any merit and would have dismissed the appeal but for the first ground.

“Long established rule”: whether “prescribed by law”

32.  § 9 of the Decision reads:

“It is a long established rule of the medical profession that doctors are prohibited from public endorsement or promotion of a commercial brand of …health related products.”

33.  The defendant’s complaint is that it is unfair to be prosecuted for breach of a norm that has never been articulated.  Reference was made to letters dated 30 November 2004 and 16 March 2005 from the defendant’s solicitors to the Council seeking further and better particulars of the complaint.  The Council’s replies did not mention the existence of the rule.  The rule was not cited in the charge.  It was said that the defendant should have been told about the rule before the hearing and if it had been cited, its existence, history, provenance and purpose could have been explored and submissions could have been directed to it.

34.  A related aspect of this complaint is that the prohibition against the public endorsement or promotion by doctors of commercial brands of medical or health related products is unconstitutional in that it is in breach of Article 27 of the Basic Law and Article 16(2) of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“the Bill”) which guarantee the freedom of speech and freedom of expression.  Article 39 of the Basic Law requires that any restriction must be “prescribed by law”.  The Bill provides for the incorporation into the laws of Hong Kong of the provisions of the International Covenant on Civil and Political Rights (“ICCPR”) as applied to Hong Kong.  Article 16 of the Bill reads:

“…

(2)    Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3)    The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities.  It may therefore be subject to certain restrictions, but these 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 … public health …”

Mr Thomas argued that the prohibition was not “provided by law” (which expression is synonymous with the expression “prescribed by law” in Article 39 of the Basic Law).

35.  For his part, Mr McCoy submitted that the issue of the unwritten rule was a diversion from the real issue.  The disciplinary powers of the Council are only engaged if the Council is satisfied, after due inquiry, that one of the seven matters specified in section 21(1) of the Ordinance has been made out.  In the present case, the charge (see § 2 above) makes it clear that the relevant offence is contravention of paragraph (b) of section 21(1), namely, that the defendant “has been guilty of misconduct in any professional respect”.  The charge also specifies the particulars of the offence.  The charge is, thus, in orthodox form.

36.  The November 2000 version of the Professional Code and Conduct (“the code”) issued by the Council, being the relevant version in relation to the matter in question, states in the introduction that the code “is only a guide and is by no means exhaustive” and that

“the task of the Medical Counsel in the exercise of its powers is not only to discipline its members but to protect the public where necessary; to seek to maintain public confidence in the profession; and in its widest sense to maintain the integrity of the profession.”

37.  Part III deals with the issue of professional misconduct. In pertinent part, it reads:

“ “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 that 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 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.”

38.  It is clear from the code itself that it is not exhaustive but merely provides, by way of illustration, common examples of transgression.  Further, the conduct or norm may be unwritten.  As Lord Morris of Borth-y-Gest recognized in Gardiner v General Medical Council (1961) 105 SJ 525, an unwritten rule can form the basis of professional misconduct:

“Within 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.”

39.  Professional misconduct, by its nature, can take many different forms and include a wide spectrum of circumstances.  The profession, being conditioned by written and unwritten rules, is given fair warning that the fact that there has been no breach of the code does not preclude a finding of professional misconduct.  Where, as in the present case, the unwritten rule is prescribed through content, its parameters may be imprecise and may vary over time because of the need to keep pace with, and to adapt to, changing circumstances.  But the fact that the parameters are imprecise does not render the unwritten norm unconstitutional.  That was recognized in Gardiner and, more recently, inthe decision of the Privy Council in Roylance v General Medical Council (No. 2) [2000] 1 AC 311. 

40.  In that case, Lord Clyde who delivered the judgment of the Privy Council (at 330F-331A) explained, in succinct terms, why that was so:

“   The expression “serious professional misconduct” is not defined in the legislation and it is inappropriate to attempt any exhaustive definition….  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” (December 1993), indeed recognises the impossibility in changing circumstances and new 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.”

41.  The ‘certainty’ alluded to is one of the conditions or requirements for a norm or rule to be “provided by law” for the purposes of Article 16(3) of the Bill.  Under established international human rights jurisprudence, “provided by law” requires that the relevant law must be certain and be adequately accessible.  The European Court has considered those requirements and, in The Sunday Times v The United Kingdom (No. 1) (A/30) (1979-80) 2 EHRR 245, the majority, in rejecting an argument that the English principles of contempt of court were too vague and uncertain, elaborated (at § 49) on the meaning of those requirements:

“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 rules are only to be couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.” (emphasis added)

The Court of Final Appeal has adopted that statement of the law.  See the judgment of Sir Anthony Mason NPJ Shum Kwok Sher v HKSAR [2002] 2 HKLRD 793 at §§ 63 and 89.

42.  Having regard to the passages from the judgments in The Sunday Times case and in Roylance set outabove (which appear to be equally applicable to the present case), the prohibition is not objectionable as being uncertain.  The Sunday Times case shows that the degree of precision required will vary, depending on the context of the law and the subject matter.

43.  In the present case, the statement of particulars makes it plain that the nub of the complaint is the public endorsement, by a registered medical practitioner, of a particular brand of health-related products in circumstances where the practitioner has a financial relationship with the manufacturer.  The principle engaged is none other than that of a conflict of interest.

44.  As regards the requirement of accessibility, the decision of the Medical Council in the case of Dr Chow Heung Wing, Stephen (24 October 2002), which has been widely publicised and gazetted, would have alerted doctors that a conflict of interest could constitute professional misconduct.  A registered medical practitioner who has any question concerning any proposed conduct has several options.  The code states (at p. 11):

“… The Ethics Committee of the Medical Council … advises and makes recommendations to the Council on matters about medical ethics and professional conduct generally and will study and review any case relating to medical ethics or professional conduct, either on its own motion or at the request in writing of not less than 20 registered medical practitioners.  Medical practitioners desiring detailed advice on questions of professional conduct arising in particular circumstances may consult a professional association or their own legal advisers for advice on such matters.”

45.  Mr Thomas was at pains to emphasise that (1) the defendant, as a doctor, is permitted to engage in business activities (in this particular instance, as the managing director of the manufacturer of a particular brand); (2) she is free to refer to her qualification as a doctor when she does so; (3) it is not alleged that she was promoting her own practice; and (4) it is not alleged that any statements she made was misleading.  He submitted that, in those circumstances it should only be right that she be allowed to promote the interests of the company of which she is the managing director without constraint.

46.  But when a person who belongs to the medical profession is permitted to engage in other activities, it does not follow that he would be free to carry on that other activity free from all ethical or professional constraints.  Rather, it is to be expected that if the doctor’s status, qua doctor, is engaged or involved when carrying out that other activity, ethical or professional constraints could arise.  While the two roles can coexist, the Council has drawn the line at the coupling of the defendant’s profession with her wider commercial interests: the public endorsement, qua doctor, of the brand of which her company is the manufacturer.  Such an endorsement plainly could give rise to a conflict of interest.  Inherent in the dual capacities is a risk of the views being proffered not being wholly impartial, balanced and objective.  There is also the risk that permitting such an endorsement would have the effect of denigrating the profession into a business.

47.  In my view, the court should refrain from second-guessing the Council as to where precisely the line falls be drawn when, as a matter of law, the constraint is “prescribed by law”.  In Koo Kwok Ho v The Medical Council of Hong Kong, (unreported), CACV 23 of 1988, Cons J considered that the best judges of whether there has been a ‘falling short of standards’ are the doctors themselves since what was expected of a doctor in the given circumstances was something which the doctors of the Council would know from their own professional experience.  Ma CJHC recently echoed those sentiments in Kwok Hay Kwong v Medical Council of Hong Kong [2008] 3 HKLRD 524 at § 22,

“… the courts have consistently recognized that medical regulatory bodies (such as [the Council]) are the best placed to determine the boundaries of medical professional conduct.”

48.  For those reasons, I consider that the prohibition satisfies the requirements of certainty and accessibility and thus, is “prescribed by law” or “provided by law” for the purposes of Article 39 of the Basic Law and Article 16(3) of the Bill.

Necessity and proportionality

49.  A restriction on the freedom of expression contained in Article 16(2), even if “provided by law”, is not a valid restriction within Article 16(3) unless it is shown to be necessary to achieve one or more of the stated purposes in Article 16(3)(a) or (b), the burden being on the decision-maker.  The legitimate purposes are

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

  (b)  for the protection of … public health …”

50.  The reasons for the prohibition are articulated in §§ 9-11 of the decision:

“   … The rule is designed to prevent the exploitation of a doctor’s status to promote those products, as such public endorsement will lead the public into believing that those products are medically more efficacious than other medicines or health products.  It is not in the patient’s interest to do so.  In this respect, a distinction must be made between a commercial brand on the one hand, and a medicine on the other hand.  While in public health education a doctor may speak about the advantages and disadvantages of a particular medicine, it is an entirely different matter to speak about a particular brand of medical or health products.  It should also be noted that in public health education both the advantages and disadvantages of a particular medicine are put in the balance, while in the present case praise was heaped upon the products without any mention of the disadvantages.  To the contrary, the Defendant said that there was absolutely no side effect.

10. Where the doctor has a financial interest in the products, there is all the more reason to apply strictly the rule against public endorsement of a particular brand of medical or health products.  There is a conflict of interest for a doctor in such a position in speaking on the advantages of the products in the capacity of a doctor, as she lacks independence and will tend to over-emphasize the advantages and play down the disadvantages.

11. We have considered the rule in the light of the freedom of expression guaranteed under the Basic Law and the Hong Kong Bill of Rights Ordinance.  While the rule is restriction on the freedom of expression, it is a justified and proportionate restriction for the purpose of protection of public health.  Without the rule, patients and the public will be at serious risk of being misled into taking, without medical consultation, medicines or health products which may not be suitable for their health conditions.  This is the minimum which is necessary to prevent such risks.”

51.  In deciding necessity or justification, the court applies the proportionality test.  The Court of Final Appeal in Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229 (a case concerning the right of peaceful assembly) decided that the proportionality test should be formulated in these terms:

“36 … (1) the restriction must be rationally connected with one or more of the legitimate purposes; and (2) the means used to impair the right of peaceful assembly must be no more than is necessary to accomplish the legitimate purpose in question. ”

52.  In this connection, it is to be noted that in Attorney General of Hong Kong v Lee Kwong-kut [1993] AC 951 (at 972D), the Privy Council held that the proportionality test does not require that the least possible intrusive means of attaining the objective be searched out and adopted as long as it is “from the range of means which impairs [the right] as little as is reasonably possible”.

53.  Homing in on § 11 of the decision, Mr Thomas submitted that the only justification advanced for the restriction was for the protection of public health and, consequently, only paragraph (b) of Article 16(3) is relevant.  Mr Thomas submitted that this case is not about medicine but vitamin pills that are freely available over-the-counter: the protection of public health is simply not an issue.  It was said that if they posed a risk to public health, they would be regulated or restricted.  To illustrate the point, reference was made to the Undesirable Medical Advertisements Ordinance, Cap. 231 which restricts certain advertisements relating to medical matters.  The nub of his submissions was that it was disproportionate for the Council to make it unethical to advertise health products that can be sold over-the-counter when these do not pose any health risk.  Such products should fall outside any ethical constraints.

54.  Turning to the submission that the Council had confined its justification for the restriction to paragraph (b) of Article 16(3) and may not place any reliance on paragraph (a) of Article 16(3), it is to be noted that the first reason or justification advanced by the Council for the restriction appears in § 9 of the decision, namely, “to prevent the exploitation of a doctor’s status to promote those products”.  That is but another way of saying that the purpose is to uphold the reputation of doctors as a whole and, thus, to maintain the integrity of the profession generally.  That would be within paragraph (a) as affecting the ‘reputation of others’.  But even adopting Mr Thomas’ approach, it is nonetheless a legitimate consideration because it would fall within the purview of paragraph (b).  The medical profession is an indispensable part of public health and it would follow that the maintenance of the integrity of the medical profession would be for its protection.

55.  As explained in § 46above, the ethical constraint in the present case arises in the context of a doctor, qua doctor, publicly endorsing a particular brand of health product of a company with which she has a financial relationship.  There would be no constraint but for the involvement or engagement of the defendant’s professional status in that endeavour, in circumstances where she does have a financial relationship with the manufacturer.  Therefore it would be wrong to portray this case as only about the promotion of a particular brand of health product that is freely available to the public.  That would be a mischaracterization.

56.  In the context of proportionality, the competing interests involved are the right to impart information to members of the public (with the corresponding right of the public to receive such information) on the one hand and the reputation of the medical profession on the other.

57.  As regards the former, in so far as the right to free expression is concerned, in Kwok Hay Kwong, Ma CJHC accepted (at §§ 30-31) as correct that, as a general proposition, where commercial gain is involved, less justification was required for restrictions than would otherwise be the case where more serious aspects of the freedom of expression were at stake.  As regards the corresponding right of the public to receive information, there would not appear to be any discernible advantage to the public (and none has been identified by Mr Thomas) in receiving advertising material about a brand from a doctor when each brand may encompass a wide range of products of different nature and when the advantages and disadvantages of a brand may differ from product to product.  It was argued that public endorsement should be allowed provided the information is accurate, honest and not misleading.  But accuracy may be difficult to verify and the manner in which the information is presented may lack balance, objectivity and impartiality when the person conveying the information has a conflict of interest.  It is to be noted that the restriction does not impinge on the ability of a patient to obtain specific advice from a doctor as to the suitability of a particular brand for him, having regard to his condition.

58.  It is the ethos of the medical profession, its standards and the status of doctors that lie at the heart of the restriction which the Council considers necessary for maintaining the reputation of the profession, its integrity and public trust and confidence in doctors.  As McLachlin J observed in Rocket v The Royal College of Dental Surgeons [1990] 2 SCR 232 at 249c-d:

“It is difficult to overstate the importance in our society of the proper regulation of our learned professions …The maintenance of professionalism and the protection of the public are at the heart of such regulations.”

McLachlin J cited with approval what Chief Justice Hughes had said earlier in Semler v Oregon State Board of Dental Examiners, 294 US 608 (1935)

“What is generally called the “ethics” of the profession is but the consensus of expert opinion as to the necessity of such standards.”

Here, the Council should be accorded a margin of appreciation or deference in doing what is best for the members of its profession and the public they serve.

59.  The discernible parameters of the restriction are clear: commercialism that engages the doctor’s status qua doctor and a conflict of interest.  In terms of proportionality, it is difficult to see where else the parameters could fall if it be legitimate to maintain the divide between professionalism and commercialism and to uphold the principle that a doctor should not find himself in a situation where his interests may conflict.

60.  In my view, the Council has discharged the burden of showing that the restriction is within a range of means which intrudes as little as is reasonably possible.

Sentence

61.  It would be appropriate to record that Mr McCoy accepted that there is merit in the criticism that Council was wrong in treating the complaint made against the defendant as “not a one-off incident”, such that the appropriate sentence (were it to arise) would be at large for this court.  Mr McCoy further accepted that it would not be inappropriate for this court to adopt the next less severe level of punishment in the descending hierarchy listed in section 21(1).

Order

62.  I would order that the appeal be allowed and the order of the Council set aside.  I would also propose that there be an order nisi of costs of the appeal in favour of the defendant.

Hon Cheung JA:

Article 10 of Bill of Rights

63.  Article 10 of the Bill of Rights provides that in the determination of, among other things, a person’s rights and obligations in a suit of law, he is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.  Although the point was not fully canvassed at the appeal, it had not been seriously challenged that Dr. Helen Chan, who faced a disciplinary inquiry by the Medical Council, was entitled to the benefit of the protection of Article 10.  This is in line with the recent decision of the Court of Final Appeal in Lam Siu Po v. Commissioner of Police (FACV No. 9 of 2008) where it was held that the police disciplinary hearing engaged Article 10.

The requirement

64.  As part of the protection given by Article 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.  This again has not been seriously challenged.  Indeed it would be contrary to the high standard or the perception of the high standard expected of a competent, independent and impartial tribunal if it were otherwise.

Presence of the Legal Adviser in deliberation

65.  The starting point is that there is no statutory provision for the Legal Adviser to be present during the deliberation of the Medical Council.  I do not accept that the Legal Adviser may be present during deliberation by the Medical Council.  Section 26(3) of the Medical Practitioners (Registration and Disciplinary Procedure) Regulation (Cap. 161 sub. leg. E) which requires the Council to consider and determine its judgment does not provide for the presence of Legal Adviser. 

66.  Mr. McCoy relied on Section 32(4) of the same Regulation which expressly provided for the Legal Adviser’s presence during voting.  In my view the presence of the Legal Adviser during voting is perfectly understandable.  For example, there may be legal problems concerning the number of votes that are necessary to constitute a lawful decision or the case may involve multiple charges which will require voting to be done on each of the charge.  The presence of Legal Adviser will ensure that there is no mishap on the voting.  But his presence during voting is entirely different from his presence during deliberation.  In the former situation the deliberation has already been completed and hence there can be no legitimate complaint about the Legal Adviser’s presence.  The specific provision for the Legal Adviser’s presence in voting only highlights the absence of provision for his presence during deliberation.  This cannot be a mere omission.

67.  It should be noted that where it is intended that the legal adviser should be present during deliberation, other jurisdictions have made express legislative provisions for this to be done.  For example, in the United Kingdom, the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988, r. 48(3) provides that “the committee may deliberate in camera (with or without the legal assessor) at any time and for any purpose during or after the hearing of any proceedings”, see John Roylance v. General Medical Council [2000] 1 AC 311.  The legal assessor assumes the same duty as the Legal Advisor.

68.  I am firmly of the view that the only duty of the Legal Adviser during an inquiry is to advise the Medical Council on points of law.  This principle must be emphasised.  Such an advice may, of course, be tendered during the hearing either at the request of the Medical Council or at the Legal Adviser’s initiative when he noticed that his advice is required.  As this is done in the presence of all the parties there cannot be any legitimate ground of complaint.  However, when the hearing has concluded and the Medical Council has retired to deliberate its judgment, I am of the firm view that the Legal Adviser may only tender his advice when called upon to do so.  When such advice is tendered in the absence of all the parties, the relevant statute requires the Legal Adviser to inform the parties of the advice he had tendered.

69.  Ma CJHC had stated in Dr. Wu Hing Ting, Peter Brenden v. Medical Council [2004] 2 HKC 367 that the better practice is for the Legal Adviser not to retire together with the Medical Council.  Although he had also stated that it is for the Medical Council to decide whether to allow the Legal Adviser to be retired with them, I am of the firm view that the Legal Adviser should not retire with the Medical Council.  This is in line with the ‘better practice’ requirement.  In my view no amount of explanation can dispel the legitimate concern that the decision may be influenced by the views of the Legal Adviser who is not a member of the Medical Council if he is allowed to be present and to express his views on ‘points of law’ on his initiative during the deliberation.  The distinction between law on the one hand and mixed law and fact on the other hand is often a very fine one and is difficult to draw.  Just as a lay jury in a criminal trial must deliberate on its own, the Medical Council must likewise deliberate on its own.  The Article 10 requirement of a tribunal being competent, independent and impartial outweighs any counter argument that it may be more convenient for the Legal Adviser to tender his advice if he is allowed to follow the deliberation.

Writing the decision

70.  I also do not accept that the role played by the Legal Adviser extends to noting down the deliberation of the Medical Council and then reducing their views into a written decision in legal language for the Medical Council to approve.  Although Mr. McCoy described such an act as the Legal Adviser being in a ‘downstream’ position ‘scribing’ the views expressed in deliberation by the Medical Council, the stark fact is that it was the Legal Adviser who prepared the draft decision for the Medical Council’s approval.  No amount of alternative phraseology in describing his action can hide this fact. 

71.  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 use 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.

72.  As repeatedly said by the Courts in the common law jurisdiction which have been reviewed by this Court in a series of cases involving solicitors and referred to by Le Pichon JA in her judgment that the person who has stood trial before a disciplinary body is entitled to have that body’s reasons for its decision and not the reasons that someone else had composed for the decision.  In my view this requirement is of such fundamental importance and constitutes the necessary and practical application of the constitutional protection.  Any other interpretation will render the protection to be merely high sounding aspirations without substance.

Principle of fairness

73.  Ultimately the two issues addressed in this topic are just another facet of the principle of fairness : justice must not only be done but also seen to be done.

Conclusion

74.  I agree with the judgment of Le Pichon JA and will allow the appeal.

Hon Stone J:

75.  I agree that this appeal should be allowed for the reasons adumbrated by Le Pichon JA and Cheung JA, whose careful and detailed judgments I have had the signal advantage of reading in draft.

76.  I wish to add but a few words of my own.

77.  Mr Thomas QC, who did not appear at the disciplinary hearing, made three broad points in his persuasive submission, only one of which struck me as being worth powder and shot, namely that of the participation of the legal adviser in the writing of the decision of the Council consequent upon the disciplinary inquiry.

78.  Notwithstanding the ingenious effort of Mr McCoy SC to deflect the force of that argument, he was unable to do so, and thus the appeal must succeed on this point alone.

79.  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 to the Medical Council.

80.  For my own part I was underwhelmed by the other arguments mounted on behalf of the appellant, in particular that which focused upon a purported lack of understanding as to the proscribed conduct underpinning the charge as brought against her.

81.  It must have been as plain as a pikestaff to this lady that the gravamen of the complaint was that she had impermissibly lent the medical credentials of a practicing doctor to the health product marketed by her company in what, in my view, was an entirely unsubtle (if not brazen) press ‘Advertorial’, wherein the written and pictorial content of the article is dictated by those commercially commissioning the article in question; nor is this a prescriptive norm of which she possibly could have been unaware, in light of her seniority within a profession which has always endeavoured to restrict approbation of commercial products by practitioners, and frequently has advertised this fact; the further suggestion that this appellant, the managing director of this company, had had no control over what was written in this ‘Advertorial’ in my view was risible.

82.  No doubt it was considerations such as these which led this lady to decide not to give viva voce evidence in her defence at the hearing before the Council, but simply to adopt the forensic tactic of sniping from the procedural sidelines, aided by the weighty argument of leading counsel. 

83.  However, had it not been for the clear and regrettable mistake which occurred in this instance in terms of the unwarranted expansion of the role actually played by the legal adviser, for my part at least this appeal would have received very short shrift.

84.  If and in so far as the subject of a disciplinary charge before a professional disciplinary body does not see fit to go into the witness box and to give evidence, as indeed occurred in this instance, I fail to understand the suggestion that such person should anticipate the drawing of inference or inferences favourable to their interest in terms of the evaluation of the available evidence by that Tribunal, which of course applies the civil and not the criminal standard of proof in the course of its deliberations.

85.  To the contrary.  It seems to me that a person facing a disciplinary charge who elects not to give evidence upon his or her behalf can have no complaint if and in so far as the Tribunal in question draws inferences from the available evidence adverse to that party’s interest, and in this regard I refer to like observations recently made in the Court of Appeal in HSBC Private Trust (Hong Kong) Ltd v Au Yeung Chung, CACV 69 of 2008, unrep., Judgment dated 26 February 2009, at paras 21-24.

86.  Mr Thomas submitted that this principle, if principle it be, should be confined to civil cases, and does not (and should not) extend to hearings before disciplinary tribunals. 

87.  With respect, I am unable to agree; in light of the commonality of the standard of proof to be applied, this seems to me to be a distinction without a difference, and in fact this principle, which in practical terms in my view has much to commend it, has been applied in the context of an application for review in the Securities and Futures Tribunal: see SFAT No 10 of 2007, Tse Shiu Hoi v Securities and Futures Commission, unrep., Determination dated 20 March 2009, at paragraphs 82-85.

88.  In my judgment in the factual circumstances of this case this appellant has been fortunate to succeed on this appeal, which, save for the successful procedural point invoked in her favour by her eminent leading counsel, otherwise had little intrinsic merit.

Hon Le Pichon JA:

89.  There will accordingly be an order in terms of paragraph 62.