DR. CHAN WAI SHUN v. THE MEDICAL COUNCIL OF HONG KONG

CACV 381/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 381 OF 2005

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL OF
HONG KONG MADE ON 24 OCTOBER 2005)

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BETWEEN

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JUDGMENT

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Hon Tang Ag CJHC:

1.  I have had the advantage of reading Yuen JA’s judgment in draft. I agree fully and have nothing to add.

Hon Cheung JA:

2.  I agree with the judgment of Yuen JA.

Hon Yuen JA:

3.  This is an appeal from a decision of the Medical Council that the Appellant Dr Chan Wai Shun (陳偉舜) was guilty of professional misconduct in that

“he, being a registered medical practitioner:

(1) sanctioned, acquiesced in or failed to take adequate steps to prevent the use of the title of “皮膚科醫生” in three advertisements in Ming Pao Weekly on the 24 August 2002 issue, the 31 August 2002 issue, and the 7 September 2002 issue, which was not acceptable to the Medical Council for use and was misleading to the public that he was a specialist in dermatology, when in fact he had not been approved by the Medical Council to have his name included in the Specialist Register in dermatology;

(2) sanctioned, acquiesced in or failed to take adequate steps to prevent the content of an interview conducted with him in relation to the technology of pulse light from appearing in the advertisements placed by a Modern Beauty Salon in the 24 August 2002 issue, the 31 August 2002 issue, and the 7 September 2002 issue of Ming Pao Weekly, which promoted the services provided by the said Modern Beauty Salon;

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

Background

4.  The Appellant started private practice in 2000, and was in 2002 a general practitioner with a clinic in Ma On Shan, New Territories.  He had a Diploma in Dermatological Science and had some training in Intense Pulsed Light (“IPL”) procedure from a hospital in London.  This procedure can be used to remove hair or facial blemishes such as freckles or discolouration.  However the Appellant was not a registered dermatologist.

5.  The following facts emerged from the Appellant’s evidence at the hearing before the Medical Council. 

6.  From time to time during the Appellant’s 1-2 years of private practice, he had performed IPL procedure on patients at a centre operated by a company called Born Green [Transcript T294].  Born Green owned the machines at the centre which were rented out to doctors who wished to use them.

Appellant’s involvement with MBS and CSSTC

7.  In March 2002 the Appellant got to know Joyce Tsang, whom he was aware was the President of Modern Beauty Salon (“MBS”) [T336], an organization which he knew provided services such as facials and spa treatment.  The Appellant agreed to provide his knowledge and services for payment [T335-338], to help Miss Tsang set up a centre called Cold Shine Skin Treatment Centre (“CSSTC”) which would have its own machine and offer IPL procedure.  He accepted at the hearing that he knew the “people” behind MBS and CSSTC were the same [T334], although CSSTC was operated by a company called Stepwell Investment Ltd whose shareholders he believed were members of Miss Tsang’s family (see letter dated 2 September 2004 from the Appellant’s solicitors).

8.  In June 2002 the Appellant became a consultant of CSSTC [T326].  The Appellant also visited the site earmarked for CSSTC which was adjacent to the MBS beauty salon at Admiralty Centre. CSSTC opened for business there on 7 September 2002.                    

Arrangements for Interview

9.1   In August 2002, a month before CSSTC commenced business, the Appellant met Cheng Wai Kit, the copywriter of the Advertising Section of MBS, via the introduction of the Deputy Chief Executive of MBS (see Cheng’s declaration, 11 September 2003). This was followed by MBS “recommending” Ming Pao Weekly (“the Magazine”) to interview the Appellant about IPL technology.  The interview appeared as part of three advertisements in the Magazine which were paid for by MBS.

9.2   This was confirmed by Terence Tung Siu Ho, the editor of the Magazine, who said that the interview which his reporter had with the Appellant had been “arranged” by MBS, although the editor himself was unable to say exactly who had made the arrangement [T197].  The reporter had left the Magazine’s employ and did not give evidence. 

9.3   Mr Tung confirmed that the Appellant’s particulars had been given to the Magazine by MBS (see letter dated 29 April 2003).  He also confirmed that as the advertisements were paid features, the contents were decided by the advertiser (in this case MBS) who previewed the draft of the interview and who had the final word on its contents before publication [T196-197].

9.4   In this connection I note that in a “Clarification Announcement” dated 28 September 2002, MBS itself announced that “we have invited [the Appellant] for an interview in a commissioned article (for publication) in the Ming Pao Weekly on 24 August, 31 August and 7 September 2002” (Emphasis added). 

The Interview

10.1    According to the Appellant, in early August 2002, he received a telephone call from a reporter of the Magazine saying that she knew he had knowledge of 彩光 (a trademark for IPL [T266]) and asked to interview him so that the public could know more about it [T262].  The Appellant agreed and a date was arranged in early-mid August 2002.

10.2   When cross-examined at the hearing, the Appellant accepted that he was a general practitioner, he was not a well-known doctor [T290], he had never written any articles for the Magazine before [T290], and he had never been interviewed by this Magazine or indeed media of any kind [T318]. 

10.3   According to the Appellant, at the interview the reporter spent 30 minutes with him asking him about IPL, but she did not say who had recommended him for the interview or that the interview was part of a commissioned advertisement [T320]. The Appellant said he never asked her why, of all the doctors in Hong Kong, she had chosen to interview him [T264].  Although he said he had some experience in IPL [T264], he treated the reporter’s inquiries as being part of the normal business of a doctor answering inquiries from patients or members of the public [T290].  He did not think that there was any difference between inquiries from patients or members of the public, and inquiries about IPL coming from a reporter of a publication such as the Magazine, and did not think that there was a need for more care in dealing with inquiries from the latter [T291].

10.4   According to the Appellant, at the end of the interview the reporter asked to take a photograph of him and he obliged [T322].  He also said there was a pile of his business cards on his desk and the reporter asked to take one.  His cards referred to his diploma in dermatological science. 

10.5   The Appellant also said in evidence at the hearing that he had asked the reporter to show him the article for him to vet it, and she agreed [T268, 288].  However this evidence is to be contrasted with statements in some documents from the Appellant and his solicitors prior to the hearing (see paras. 20.3-20.4 below).                                         

The Advertisements

11.1   CSSTC opened for business on 7 September 2002.  For 2 weeks prior to this and on the very day of its opening, advertisements for MBS promoting Pulse Light procedure appeared in the Magazine (24 August 2002, 31 August 2002 and 7 September 2002).  Indeed the Appellant took part in the opening ceremony of CSSTC and also demonstrated the use of IPL to the Press on the same day. 

11.2   The advertisements were similar but not identical – each had different comments from purported users of the procedure, but this is not material.  

11.3   Each advertisement consisted of a 2-page spread.  One page contained the words “Modern Beauty Salon” and an article on a celebrity’s thoughts after having Pulse Light treatment. 

The Article

12.1   About a quarter of the other page consisted of an article under the headline “解說Pulse Light脫毛” (“Explaining Pulse Light Removal of Hair”).  The article contained the Appellant’s photograph (obviously posed), under the caption “皮膚科醫生陳偉舜” (“Dermatology doctor Chan Wai Shun”).  He was also referred to in the same way in the article. 

12.2   In the article the Appellant was reported to have explained in an interview how Pulse Light is superior to another method in terms of efficacy, durability, safety and speed.   

12.3   An objective reader of the article would have reasonably understood that the Appellant, a “皮膚科醫生” (“dermatology doctor”) was promoting the use of Pulse Light which was the subject of the advertisements. This was not (or not seriously) disputed at the hearing or on appeal.   

12.4   After complaints were lodged by a number of registered specialists in dermatology, the Medical Council began investigations which culminated in the two charges being brought against the Appellant.   

The Charges

13.  In brief, the 1^st Charge related to the Appellant permitting himself to be described as “皮膚科醫生” (“dermatology doctor”) when he was not a registered specialist in dermatology; the 2^nd Charge related to his permitting the contents of his interview to appear as part of advertisements promoting MBS’ services.

Proceedings before the Medical Council

14.  Put briefly, the Appellant’s defence to the 1^st Charge was that he did not know that the description “皮膚科醫生” (“dermatology doctor”) would be used by the reporter.  He had asked to vet the draft article but the reporter had failed to provide him with it, despite having promised him that she would do so.  His defence to the 2^nd Charge was that when he gave the interview, he was not aware that it would be used as part of an advertisement as neither MBS nor the reporter had told him so.  He thought he was only providing public health education.

Medical Council’s findings

15.  The Medical Council found the Appellant guilty of both Charges and gave its reasons on 24 October 2005.  A warning letter was served.

Appeal

16.  There were two broad grounds of appeal –

(1)   objections to the formulation and content of the Charges; and

(2)   there was no evidence that the Appellant had knowledge that

(a)   the description “皮膚科醫生” (“dermatology doctor”) and

(b)   the contents of the interview

would be used in the advertisements.

Discussion

1^st ground of appeal – objections to formulation and content of Charges

17.1   Regarding the 1^st ground of appeal, in my view the Charges were clearly formulated.  The title “皮膚科專科醫生” (literally “dermatology speciality doctor”) refers to registered specialists.  The title referred to in the advertisements “皮膚科醫生” (“dermatology doctor”) is close enough to be misleading to the general public. 

17.2   The Appellant’s counsel Mr Alfred Fung submitted that the phrase in the Charge that the latter title was “not acceptable to the Medical Council” was incapable of rational interpretation, as it was meaningless, ambiguous or subjective.  With respect, I do not agree. The Medical Council cannot reasonably be expected to provide a comprehensive list of unacceptable titles, as it cannot possibly speculate or anticipate what titles or descriptions people may come up with. 

17.3   In any event it was not the Appellant’s case that he considered the title “皮膚科醫生” (“dermatology doctor”) was acceptable to the Medical Council.  The fact that he procured the “Clarification Announcement” to be published before the Medical Council’s letter to him shows that he was well aware of the impropriety of that title.

18.  As for Mr Fung’s submissions on the Professional Code, the Charge did not assert contravention of any specific provision in the Code, and it was made clear by the Legal Officer at the hearing that he did not rely on any parts of it.  The Medical Council’s Decision did not refer to any part of the Code either.  Having read the correspondence in the bundle and the transcript of proceedings, I do not see any detriment to the Appellant that could have arisen from any previous reference to the Code, even if the reference to para.5.1 was inappropriate.

2^nd ground of appeal – evidence of knowledge

19.1   As for the 2^nd ground of appeal, I take the view that in light of the evidence which emerged at the hearing, the Medical Council was fully entitled to find that the Appellant knew that the interview was connected with promotion of MBS’ latest business venture CSSTC of which he was a paid consultant.  As such he should have been alive to the possibility of efforts that would be made to bolster his credibility.  The Council was entitled to find on the evidence that he had not in fact asked to vet the draft article, contrary to his evidence.

19.2   On the Appellant’s own admission, he was paid to be a consultant for CSSTC.  He knew MBS and CSSTC were run by “the same people” (in the Appellant’s own words) [T334].  He met advertising staff of MBS (see Cheng’s declaration, 11 September 2003) in August 2002, a month before the opening of CSSTC.  The “Clarification Announcement” by MBS stated that it had invited the Appellant to be interviewed (para. 9.4 above).  The Appellant did not take steps to deny this at the time.

19.3   Even if we consider the evidence in the most favourable light to the Appellant, he was then called up by a reporter of a large popular magazine and asked for an interview -- on the very subject that CSSTC would wish the public to be interested in for its imminent opening.  On his own admission, the Appellant was a general practitioner, who was not well-known, who had no connection with the Magazine and who had never been interviewed by media of any kind. Anyone would have put two and two together and realized that the interview was part of MBS’ promotion of CSSTC. 

19.4   Even if that did not occur to the Appellant when the reporter first telephoned him to arrange a date for the interview, it defies common sense to suggest that in the interval between that telephone call and the interview, and in the course of the 30 minutes he spent with the reporter, it never crossed his mind to wonder and ask the reporter why he was chosen out of the blue to be interviewed on the very subject of his consultancy in an enterprise which would shortly be attracting business from members of the public.  His comparison of the interview with the dissemination of general health education by answering inquiries from patients or members of the public was disingenuous. 

19.5   Accordingly, given the crucial timing and the Appellant’s close connection with the business organizations concerned, the Medical Council was fully entitled to find on the evidence that he knew that the interview was in connection with MBS’ promotion of CSSTC and consequently that he was guilty of the 2^nd Charge.

20.1   That knowledge informs consideration of the 1^st Charge.  Since the Appellant knew about the commercial purpose of the interview, he should have been put on notice that unwarranted claims may be made about his expertise in order to bolster his credibility.  He should have asked to vet the draft article to avoid misleading matters being published, such as the misleading title referred to in the 1^st Charge. 

20.2   As for the Appellant’s evidence that he did ask the reporter to provide the draft article for him to vet before publication, the Medical Council was entitled to find on the evidence that he had not in fact done so. 

20.3   First, in the Appellant’s written reply to the Medical Council (26 February 2003), he merely said “I was not given the opportunity to proofread the article”.  If he had been denied that opportunity despite an explicit promise by the reporter to show him the draft before publication, one would have expected that point to be asserted forcefully and immediately.  Nor does it sit well with his acceptance that “with the benefit of hindsight … I should have … to forewarn the reporter to exercise diligence and care in description of myself professionally”.

20.4   Secondly in his previous solicitors’ reply to the Medical Council written expressly on his instructions some 6 months later, it was said that “at all material times, it was his understanding that [the Magazine] would seek his approval of the content of his interview before it was published”, and that “it was not unreasonable to expect Dr Chan to rely on his understanding that [the Magazine] would seek his approval of the content of his interview before the same was published although with hindsight it would be wiser for Dr Chan to do something more, say to remind the interviewing reporter not to publish any content of his interview without first seeking his approval of the content”.  In a considered reply from legal advisers to the Medical Council such as this, one would expect a direct assertion that the Appellant had obtained the reporter’s agreement that he could vet the article, if such an agreement was in fact made.  The language used in the letter shows that the Appellant was then relying purely on a unilateral “understanding” and that he regretted not having made an express request.

20.5   Thus it was not until 2 September 2004 (some 2 years after the interview) that the Appellant alleged that he had made an express request.  In light of the history set out in the preceding two paragraphs, the Medical Council was entitled to reject the Appellant’s claim that he had made such a request, and in light of the Appellant’s knowledge of the commercial purpose of the interview and the risk it posed for misleading statements to be made, the Medical Council was entitled to find that he had failed to prevent the use of the misleading title.

Order

21.  For the reasons set out above, the appeal should be dismissed with an order nisi that the costs of the appeal be paid by the Appellant to the Respondent.