DR WANG I SING SANDY v. THE MEDICAL COUNCIL OF HONG KONG

CACV 554/2020

[2022] HKCA 1772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 554 OF 2020

(ON APPEAL FROM THE DECISION OF THE MEDICAL COUNCIL OF HONG KONG DATED 15 SEPTEMBER 2020)

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J U D G M E N T

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Hon Yuen JA:

1.  This is the appeal of Dr Wang I Sing Sandy (“the Appellant”)  from a decision given on 15 September 2020 (“the Decision”)  by the Medical Council of Hong Kong (“the Council”)  after a hearing by the Inquiry Panel, in which the Appellant was found guilty of the following charge:

“That in or about October 2014, she, being a registered medical practitioner, sanctioned, acquiesced in or failed to take adequate steps to prevent the use or appearance of her name, title and/or photograph in an article and/or advertisement [“the Article”] published on 9 October 2014 on a blog at http://jobeauty8.blogspot.hk/2014/10/nume-is-new-me-nume.html?m=1, promoting or endorsing the injection of ‘Restylane’ and/or ‘Botox’ [“the Product(s)”].

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

2.  The Council ordered the Appellant’s name to be removed from the General Register for 6 months, the operation of the removal order to be suspended for 36 months.  The Appellant has also appealed against this penalty.

Background

3.  NuMe Ltd (“NuMe”)  was the Appellant’s “partnership company”¹. It carried on business as an “aesthetic medical and surgical centre” in Hong Kong.

4.1.  On 20 September 2014, NuMe held an event at its Causeway Bay branch to promote two items, one of which was “Restylane”, a dermal filler.  Persons invited to the promotion event included one “Jo Wong”.

4.2.  It is common ground that the Appellant was present at the time and was aware of the promotion event, and was photographed injecting a patient with the Products.

The Blog Article  

5.1.  On 9 October 2014, the Article was posted by Jo Wong (“the blogger”). The Article comprised of text and photographs which the Council summarised as follows:

“5. The blogger mentioned at the beginning of the Article that she² was invited³ by NuMe Aesthetic and Surgical Centre to pay a visit to its Causeway Bay branch. The blogger then talked about the event⁴ held by NuMe on the day of her visit. This was followed by reference to presentation by a representative from ‘Restylane’ on the efficacy and special feature(s)  of ‘Restylane’ medical products.

6. The Article then continued with photographs and descriptions step by step on how the [Appellant] administered injections of [the Products] to the face of a female patient. The [Appellant], who was referred to as ‘Dr Sandy Wang 王醫生’ in the Article, was seen to be wearing a white gown and a surgical mask.

7. The blogger praised the [Appellant] for using a finer needle for better comfort for her patient during treatment. The blogger further praised at the end of the Article that the effect of the injection of [the Products] was so natural and there was no visible injection wound”.

5.2.  The Article introduced NuMe and Restylane in highly complimentary terms.  It set out the effect of Restylane and claimed that it was used by 20 million people worldwide, including the blogger, who has been using it for the past 2 years to improve her facial contour, and her friends.  It ended with the address and contact details of NuMe. 

5.3.  There were 22 photographs including 5 photographs of persons (not the Appellant)  speaking through a microphone, and 6 photographs of the Appellant performing a procedure on a patient (not the blogger)  with captions (translated)  including:

-  “Dr Sandy Wang demonstrated the procedure of micro cosmetic surgery on the spot...” (emphasis added);

-  “Before the procedure, Dr Sandy Wang marked the place for injection”;

-   “The first step was to inject Restylane filler...”;

-  “After the injection, the facial contour was much more 3-dimensional! The nose was clearly raised, but the effect was very natural”;

-  “This was followed by the procedure to slim down the face with botox botulinum toxin; Dr Sandy Wang would use a needle which is finer than usual, so that the customer would feel more comfortable during the procedure”;

-  “Botox is injected in the position of the masticatory muscles, and the effect of slimming down the face will be seen in about a month”;

-  “Finished! The facial contour is more 3-dimensional, and the effect is very natural! After the procedure, there are no obvious wounds, and also no need for a recovery period, so there is no problem returning to work right away, it’s very convenient”. 

5.4.  As the Council found, one photograph showed the Appellant looking directly at the camera whilst holding a syringe⁵.

Complaint

6.  In 2018, a complaint was made to the Council against the Appellant. 

Letters from the Appellant’s solicitors

7.1.  In reply to correspondence from the Council, the Appellant’s solicitors sent two letters which were referred to during the inquiry hearing.

7.2.  The 1^st letter dated 21 June 2019 said (among other things):

“Our Client isn’t acquainted with Ms Wong in any kind of aspect, not a friend nor any doctor-patient relationship. Dr Wang wasn’t aware of that was a to-be-public activity”.

“Our client did not know Ms Wong is a blogger. The alleged article promotes the business of NuMe was published by Ms Wong without knowledge or consent of our client”.

The photographs were “taken without knowledge and consent of our client. ... she was not even aware of the fact that she was being photographed”.  (Emphasis added).

After the existence of the Article was made known to the Appellant, she demanded that NuMe write to Ms Wong to request her to delete all identifiable information of the Appellant.  Two emails were sent, on 25 April 2018 and 5 June 2018 respectively⁶.

7.3.  The 2^nd letter dated 27 December 2019 said (among other things):

“1. Our client has a contract with NuMe that NuMe shall not advance any promotion, marketing campaign or likewise by drawing direct or indirect reference to our client, including but not limited to the use of our client’s name, title, position, expertise, photograph and interview, etc.

2. On 20 September 2014, NuMe organized a private member/patient activity. It was not a public activity. According to our client understanding, [the blogger] being a patient of NuMe ... was invited to that event. [The blogger] is a patient of our client and she consulted our client before.

3. Our client at the material time did not participate in the private member activity. The private member activity was held at a conference area ... Our client on the same day was providing service to her patient ... inside a treatment room ...

4. Our client at all material times ... was wearing a mask to prevent being photographed or recognized by others. All photos alleged are our client were wearing mask and not facing camera inside the treatment room. We maintain that if any photos were taken with our client, those photos were taken without knowledge or consent of our client.

……

10. As seen from the photographs of the article, our client was wearing her mask and she was not even aware of the fact that she was being photographed”.

(Emphases added).

Inquiry

8.  On 8 May 2020, a Notice of Inquiry was sent to the Appellant.

9.  The Appellant did not attend the hearing of the inquiry and no witnesses were called on her behalf.  She was represented by counsel Mr Charles Chan. 

The Undertaking

10.1.  The Appellant’s lawyers provided the Council with a document in Chinese dated 1 April 2013 entitled “Undertaking” purportedly signed by a manager of NuMe.  It stated (among other things)  that while the Appellant is providing services to NuMe, it must comply with the Code of Professional Conduct (“the Code”)  of the Council, including a term to the following effect⁷:

“(c)  the provision of accurate, established and objectively verified materials to the public or customers in a fair manner:

…

(ii)  unless permitted under the Code, it must not in any manner (including: magazines, newspapers, social media, SMS messages, videos, business websites, online platforms)  use the [Appellant]’s Chinese or English names and pictures for business promotion”.

10.2.  At the hearing,

-  the Legal Officer informed the Council that the exculpatory parts of the letters and Undertaking were not accepted⁸;

-  Mr Chan accepted the Legal Adviser’s statement that since the maker of the Undertaking had not been called, it was “a question of weight ... for the member[s] ... whether they are going to attach any weight on the document without calling the maker”⁹.

The Decision

11.1.  To summarize, the Council found:

(1)  the Appellant had a professional relationship with NuMe at the material time (§12);

(2)  the Article should be read as a whole, and the real question is what it would mean to an ordinary person (§13);

(3)  the appearance of the Appellant’s name, professional title and photographs in the Article would leave readers with the impression that she was promoting or endorsing the “Restylane” and “Botox” injections.  “It is particularly true when this part of the Article was preceded by reference to the event held by NuMe and presentation by a representative from ‘Restylane’ on the efficacy and special feature(s)  of ‘Restylane’ medical products” (§14);

(4)  there was no legitimate reason why in the ordinary course of treatment, photographs would be taken of the Appellant and her patient inside the treatment room. There was no evidence that they were taken for comparison before and after the procedure (§18);

(5)  the Appellant’s submission that she was not aware of being photographed was not accepted.  She was depicted in a photograph holding a syringe and facing the direction of the camera (§§19-20);

(6)  the Appellant “ought to take proactive steps in the circumstances to ensure that photographs taken of her whilst administering injections to a female patient would not be used for the purpose of promoting or endorsing the injections of ‘Restylane’ or ‘Botox’.  This is particularly true when the [Appellant] knew NuMe was organizing a promotional event at the Causeway Bay branch where she worked on the same day” (§21);

(7)  it was inadequate for the Appellant to “rely solely on what she claimed to be a written undertaking from NuMe that her name would not be used in promoting treatment or aesthetic medical products.  Nor could she safely assume that photographs taken of her whilst administering injections to a female patient would not be disclosed to third parties and let alone not to be used for promotional purposes” (§22);

(8)  “in failing to take any or any adequate steps to prevent the promotion or endorsement of the injections of ‘Restylane’ and ‘Botox’, the [Appellant] had in our view fallen below the standards expected of registered medical practitioners in Hong Kong.  Accordingly, we find her guilty of misconduct in a professional respect as charged” (§23).

11.2.  In its decision on penalty, when considering the Appellant’s disciplinary record, the Council discussed in more detail a decision dated 13 January 2010 (“the 2010 Decision”), given by a differently-constituted panel, relating to impermissible practice promotion by the Appellant in 2008, which concerned the publication of her name, title, photographs and statements in an advertisement in a magazine, in which she endorsed a similar aesthetic medical product offered by a company by which she was then employed (§26).  The Council in the present case found:

“27. Bearing in mind her previous breach of the Code on practice promotion, the [Appellant] ought to have in our view a higher index of suspicion on how the photographs taken of her whilst administering ‘Restylane’ and ‘Botox’ injections to the female patient might be used. This reflects in our view on the lack of vigilance on the part of the [Appellant].

28. We disagree with Defence Counsel that the [Council] had by its Decision in the previous case ‘advised’ the [Appellant] that a written undertaking by her employer not to use her name, professional title and photographs for promotion of cosmetic procedures would suffice. In our view, the [Council], in exercising its quasi-judicial functions, would never give legal advice to a defendant doctor. In any event, each case must turn on its own facts and suggestion made by the [Council] on one occasion may not be applicable to another”.

Appeal

12.  On 14 October 2020, the Appellant lodged a notice of appeal.  This was subsequently amended and re-amended. 

13.1.  On 19 September 2022, the Appellant issued a summons to further re-amend the notice of appeal (“the summons”).  The court directed that the summons be heard on the day fixed for the appeal. 

13.2.  At the hearing, we indicated that we would consider the proposed further re-amendments de bene esse.

Legal principles

14.  Before discussing the grounds, it would be helpful to restate the applicable legal principles.

15.  First, the Appellant accepted that the Council had correctly directed itself on the law on the burden and standard of proof, on the test for misconduct in a professional respect, on the Appellant’s right not to give evidence, and that no adverse inference should be drawn against her in exercising that right.

16.  It is also not disputed that on appeal from a professional disciplinary tribunal, the court would correct a decision if there has been an error of law, but if the appeal is against a finding of fact, the approach¹⁰ should be the following¹¹:

(1)  the appellant must demonstrate that the challenged finding of fact is one (a)  for which there was no evidence in support, (b)  which was based on a misunderstanding of the evidence, or (c)  which no reasonable tribunal could have reached on the evidence before it; and

(2)  the court will give appropriate weight to the fact that the tribunal is a specialist tribunal, whose understanding of what that profession expects of its members in matters of such practice deserves respect.  

Discussion

Proposed Ground A1

17.1.  Mr Anthony Ismail, counsel for the Appellant, first submitted that there was an error of law because at §23 of the Decision, the Council found that the Appellant had fallen below expected standards 

“in failing to take any or any adequate steps to prevent the promotion or endorsement of the injections of ‘Restylane’ and ‘Botox’”

when the charge was

“in failing to take adequate steps to prevent the use or appearance of her name, title and/or photograph in [the Article] on 9 October 2014 promoting or endorsing the injection of ‘Restylane’ and/or ‘Botox’ ” (emphasis added).

17.2.  Mr Ismail argued that since the words italicized above had been omitted in §23, and s.26(3)  of the Medical Practitioners (Registration and Disciplinary Procedure)  Regulation Cap.161E states that “the panel must consider and determine whether the facts alleged in any charge before it have been proved to its satisfaction”, the Council had “convicted and sentenced the Appellant for an offence for which she had not been charged”¹², and thus the Council had acted beyond its jurisdiction in finding the Appellant liable.

18.1.  With respect, that argument must be rejected.  The passages preceding §23 demonstrate that the Council was well aware of the components of the charge (which was set out in §2), as those passages repeatedly referred to the use or appearance of the Appellant’s name, title and/or photographs in the Article promoting the products.

18.2.  Thus, in the section on Findings of the Inquiry Panel, §14 starts off with the following focal point:

“14. In our view, the use or appearance of her name, professional title and photographs in the Article would leave the readers with the impression that the [Appellant] was promoting or endorsing the ‘Restylane’ and ‘Botox’ injections”.

18.3.  Then, in §15, the Council referred to the Appellant’s acceptance of the publication of the Article on the internet on the date in question, and that her name, professional title and photographs appeared, with her being depicted in a white gown and a surgical mask, and providing treatment to a patient.

18.4.  In §§18-20, the Council made the finding that the Appellant must have been aware of the photographs being taken of her when she was administering treatment inside the treatment room.  In §§21-22, the Council also found the Appellant knew of the promotion event that day, and failed to take adequate steps to ensure that the photographs would not be used for promotion of the products.

18.5.  If, as Mr Ismail submitted, the Council had not taken into account the components of the charge relating to the use or appearance of her name, title and/or photographs before convicting her, all those discussions and findings by the Council in the preceding paragraphs would have been irrelevant and superfluous.  On the contrary, it is clear from the passages referred to above that the Council was well aware what were the facts alleged in the charge which it had to determine before conviction. The proposed Ground A1 is therefore unmeritorious, and no purpose would be served by allowing its inclusion in a further re-amendment of the Notice of Appeal. 

Proposed Ground A2

19.1.  Second, it was submitted in the proposed Ground A2 that there was no evidence that the Appellant knew or ought to have known:

“(1)  of the Article and

(2)  that the Article would promote or endorse the injection of ‘Restylane’ and/or ‘Botox’ and

(3)  of the blog and

(4)  that the Article would be published in the blog on 9 October 2014”.

19.2.  Mr Ismail submitted that it was necessary to prove that the Appellant ought to have known that the Product(s)  would be promoted through the article published on that particular blog, even if not on that particular day, and that the Council’s findings in §21 that the Appellant knew that NuMe was holding a promotion event that day and that photographs were being taken of her treating a patient would at most entitle the Council to find that she knew of the promotion of the Products “generally”, but that would not be sufficient for conviction.

20.1.  This submission that it must be proved that the Appellant ought to have known each of the 4 (or 5)  factual allegations (depending on whether the date of publication was an independent factual allegation to be proved)  was not advanced before the Panel¹³, but in any event, this proposed ground is also unmeritorious. 

20.2.  The relevant part of the Code (which the Council cited in the Decision)  states:

“6.2 A doctor should take reasonable steps to ensure that the published or broadcasted materials, either by their contents or the manner they are referred to, do not give the impression that the audience is encouraged to seek consultation or treatment from him or organizations with which he is associated. He should also take reasonable steps to ensure that the materials are not used directly or indirectly for the commercial promotion of any medical and health related products or services”.

20.3.  In Dr Lee Yau Wing, where the charge was drafted in a similar way¹⁴ to the one in the present case, the Court of Appeal rejected the submission that actual knowledge of the publication of an advertisement was necessary for the doctor to be imposed with the duty to ensure that his professional title was not misquoted in the advertisement of a health education activity.  It was open to the Council to form the objective view that the doctor ought to have anticipated some form of promotion¹⁵. Mr Ismail did not dispute the correctness of this authority.  

20.4.  Similarly, in the present case, the issue is whether there were circumstances from which the Appellant ought to have anticipated the possibility of some form of promotion using her name, title and/or photographs.  The gravamen of the charge is that the Appellant had failed to take adequate steps to ensure that it/they would not be used in materials for the promotion of the Products.  The specific article and the specific blog are just the medium of promotion and, with the actual date on which the article was posted, are simply particulars identifying the promotional materials in the present case.  As long as it is found the Appellant ought to have anticipated the possibility of some form of promotion, there is no reason why it would be necessary to prove that she should have known the exact details of the promotional materials.

20.5.  That is not to say that the method and time of publication are always irrelevant to the issue whether a doctor is guilty of misconduct by failing to prevent the use of say, photographs.  For example, if the promotion of a product was live streamed before a doctor was reasonably aware that he was being filmed, there would be nothing he could reasonably have done to prevent such a publication. In contrast with a live stream, the longer the period before publication, the more time in which a doctor could make relevant inquiries and consequently take adequate steps to prevent his name, title and/or photographs from being used in connection with promotion of the products.

20.6.  In any event, as to the Appellant’s submission that there was no evidence from which it could be inferred that she ought to have known that her name, title and/or photographs may be used in materials promoting the Products, it was open to the Council to rely on the following evidence of the circumstances which gave rise to the duty in §6.2 of the Code:

-  the Appellant was aware that NuMe was holding a promotion event at that branch that day;

-  the Appellant’s treatment of the patient with the Products was described in the Article as a “demonstration” of Restylane which was being promoted;

-  in the ordinary course of treatment, there was no legitimate reason for someone unconnected with the patient to enter the treatment room to take photographs of the doctor and patient during the treatment;

-  as the Council found, the Appellant was photographed holding a syringe and looking directly at the camera, so clearly she knew she was being photographed.  It would be noted that in her solicitors’ 1^st letter to the Council, it was said that she was “not acquainted” with the blogger “in any kind of aspect, not a friend nor any doctor-patient relationship”.  In her solicitors’ 2^nd letter, it was said that the blogger was a patient.  Be that as it may, it is clear that up to the time of the 1^st letter, even on her own case, the Appellant did not recognize the blogger.  In other words, on the day in question, she was permitting a stranger to take a photograph of herself holding a syringe whilst NuMe was promoting the Product(s)  at the branch.  

20.7.  As the proposed Ground A2 is premised upon there being no evidence, it is not necessary to comment on the weight of the evidence listed above, which in any event is a matter for the fact-finding tribunal.  

21.  As the proposed Ground A2 is also unmeritorious, no purpose would be served by allowing its inclusion in a further re-amendment of the Notice of Appeal. 

Ground 1

22.  This ground deals with the adequacy of the Undertaking as a means to prevent the use or appearance of the Appellant’s name, title and/or photographs in the Article.  Apart from discussing the submission on the adequacy of the Undertaking¹⁶, the Council was also aware of Mr Chan’s submission on its connection with the 2010 Decision¹⁷.

23.1.  The relevant part of the Undertaking has been set out in §10.1 above.  It would be noted immediately that it was given only by NuMe, whereas the Article was published by the blogger.

23.2.  There was no evidence that the Appellant had mistakenly thought that the blogger was a member of NuMe’s staff.

23.3.  And yet, even though the Appellant

-  was aware of the promotion event being held,

-  was aware that an unconnected person (whom the Appellant did not recognize at the time¹⁸)  had entered the treatment room to take photographs of her providing treatment to a patient, and 

-  was aware that that person had taken a photograph of her directly holding a syringe,

she took no steps to ascertain the identity of the person and the purpose behind that person’s

-  presence in the treatment room,

-  conduct in taking photographs during her treatment of a patient, and

-  conduct in directly taking a photograph of herself (the Appellant)  holding the syringe,

and to inform that person that her professional body did not permit photographs taken of her to be used in any materials promoting commercial products.  

23.4.  Had the Appellant done so, the blogger may have agreed to e.g. pixelate the photographs sufficiently to anonymize her image.  But it is hypothetical now to surmise what would have happened, because the Appellant failed to take any such steps.  

23.5.  Nor was there evidence from the Appellant that she had delegated those steps to NuMe staff.  In any event, appellate authorities have long established that even if a doctor had delegated such a task and it was the delegate who had failed to perform it, the responsibility for the failure, so far as the medical authorities are concerned, must lie with the doctor¹⁹.  Mr Ismail did not dispute the correctness of those authorities.  

23.6.  In light of the undisputed facts in §§23.1-3 above, it was open to the Council to hold that the Appellant should have taken proactive steps to ensure that the photographs would not be used for promotional purposes²⁰, and to find that it was inadequate²¹ to “rely solely on what she claimed to be the [Undertaking].  Nor could the [Appellant] safely assume that photographs taken of her whilst administering injections to a female patient would not be disclosed to third parties and let alone not to be used for promotional purposes”²². (Emphasis added). 

24.1.  As for Mr Ismail’s submission regarding the 2010 Decision, he first said from the Bar table that the Undertaking came into being as a result of the 2010 Decision.  That statement is not acceptable, as there was no evidence as to how the Undertaking came about.  Before the Council, the Appellant’s counsel Mr Chan had accepted that as he would not be calling the maker of the Undertaking, it would be up to the Council to place what, if any, weight on it²³.

24.2.  Mr Ismail then submitted that the Council should have found that the Undertaking was adequate as it was reasonable for the Appellant to follow the “advice” or “suggestion” of the Council in the 2010 case to procure a written undertaking from her employer.  

25.1.  As the Council noted, each case turns on its own facts.  The crucial point is that in the 2010 case, the Appellant said it was her employer who had asked her to write an article, which the employer then used in an advertisement. Thus, at all times, it was a purely bilateral transaction, with no third party involvement. 

25.2.  Accordingly, the Council’s view²⁴ in the 2010 Decision as to how the Appellant should have regulated her relationship with her employer cannot be pertinent to the issue in the present case whether she had taken adequate steps to prevent the use of her name, title and/or photographs in an article published by a third party (the blogger).  As noted above, the blogger was not a staff member of NuMe, so the Undertaking would not apply.

26.  This ground should therefore be rejected.

Ground 2

27.  Although Mr Ismail did not abandon this ground, he rightly did not attempt to develop it in written or oral submissions.

28.1.  The ground comprises a number of matters, some of which did not advance the Appellant’s case, and some of which were not supported by evidence or was evidence which the Council was entitled to give little to no weight. 

28.2.  For example, the ground referred to the Appellant’s solicitors’ 1^st letter alleging that for every activity involving a third party engaged by NuMe to promote its business, it would sign a contract with the third party containing a confidentiality clause.  No such letter was produced before the Council. 

28.3.  Another example is the allegation in the Appellant’s solicitors’ 2^nd letter that the Article was published by the blogger without NuMe’s knowledge or consent.  No one from NuMe was called to verify that allegation.  

28.4.  Yet another example is the allegation that the Appellant took immediate steps to ensure the removal of the Article upon discovering it.  The Appellant did not give evidence as to when and how she discovered the Article.

29.  Accordingly, there is nothing in this ground, and it should be rejected.

Ground 2A

30.  It was submitted in this ground that an ordinary and reasonable person reading the Article would understand it to be merely an account of the blogger’s own experience and opinion, and not as a promotion or endorsement of the Products, or at most, only a promotion of NuMe.

31.  This ground can be disposed of briefly.  Having read the Article, it is clear that there was evidence on which it was open to the Council, as the fact-finding tribunal, to find that the Article did not merely recount the blogger’s personal experiences and private observations as an independent party.  On the contrary, the Article was couched in language that would suggest to an ordinary reader that it was promoting Restylane (the efficacy and popularity of which were expressed in highly complimentary terms), informing him/her that treatment with this product was available at NuMe, which was recommended for the spaciousness of its premises and other features. 

Ground 3

32.  This deals with the penalty.  It is well-established case law that the court would only interfere if the penalty was outside the reasonable ambit of sanctions that the Council could impose, or in other words, plainly wrong²⁵.

33.  Mr Ismail relied on (1)  the penalty in this case being heavier than that in the 2010 Decision and (2)  the Appellant having obtained the Undertaking from NuMe.

34.  The Council was clearly aware of both points and dealt with them in §§26 and 28 respectively.  In my view, the high threshold required to merit this court’s interference with a penalty ordered by a professional tribunal has not been met.  This ground should therefore also be rejected.

Order

35.  For the above reasons, the summons and this appeal should be dismissed and, as the parties have agreed that costs should follow the event, the Appellant should pay the Respondent’s costs of the summons and the appeal, to be taxed if not agreed. 

Hon G Lam JA:

36.  I agree with the judgment of Yuen JA.

Hon Chow JA:

37.  I agree with the judgment of Yuen JA.