NUME LTD v. YUEN HOI MAN

HCA 192/2021

[2026] HKCFI 1302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 192 OF 2021

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This is an action for defamation and malicious falsehood brought by the plaintiff (“P”) against the defendant (“D”).

BACKGROUND

2.  The following background facts are not in dispute.

3.  On 28 March 2020, the Prevention and Control of Disease (Requirements and Directions) (Business and Premises Regulation), Cap. 599F (“599F”) came into operation regulating activities at certain specific premises set out in Part 1 of Schedule 2 therein (“Scheduled Premises”), including inter alia the operation of “beauty parlours”.

4.  The Hong Kong Special Administrative Region Government (“the Government”) had in or around April 2020 set up the Subsidy Scheme for beauty parlours, massage establishments and party rooms under the Anti-epidemic Fund in aid of beauty parlours, massage establishments and party rooms that were required to suspend operations pursuant to the restrictions imposed from time to time by the Government to combat the spread of COVID-19 (“the Scheme”).

5.  By an order dated 8 December 2020, the Secretary for Food and Health directed that for a period of 14 days beginning on 10 December 2020 till 23 December 2020 (“the Specified Period”) any premises, set out in Part 1 of Schedule 2 of 599F, including inter alia “beauty parlours”, must be closed (“the Restriction”).

6.  On 18 December 2020, D hosted a press conference (“the Press Conference”) with the following words defamatory of and concerning P (“the First Offending Words”):-

“睇左十幾間既美容院/ 醫療中心，或者總止係提供美容服務既處所，即係599F下面列出黎既一些（啲）處所咁去睇啦，咁我地就見到有一些（啲）公然違反禁令，有些（啲）是陽奉陰違，咁個情況我覺得係好惡劣，你諗下我地做十幾間，起碼有四間係有問題啦……

但我地見到有啲呢，依啲醫學美容嘅醫生、處所、公司呢，為左牟利呢，其實呢就完全唔配合個防疫政策，咁我就會覺得其實等同食緊公營醫護既人血饅頭，如果食衛局唔係認真處理，其實坦白講對業界好乖、好辛苦一齊配合的業界好唔公平，同埋對於我地前線打緊杖既公營醫護係極度不公平……

即都警告呢個違反599F 個管理人或者負責人，我覺得醫生都會有份，其實係刑事，係可以罰第五級，即係罰$50000或者可以監禁６個月，同埋佢都話啦，可能有Ｄ同事，即係指個Ｄ醫生，may argue that the procedure is for medical purpose，其實做打針呀、高能量其實係醫學目的，however，if the dominant purpose of the procedure is for beautifying and procedure being non-urgent ，it would be difficult to argue under a legislative approach. 講得好清楚啦，就係話如果個目標、目的係為做去做美容，無論你點拗，個療程唔係緊急架、非必須，係個立法前提下好難拗，所以叫佢地strongly consider refrain in carrying out such procedure & while the Regulation is in effect，due to public safety and not to incur criminal liability.即係提佢係唔好攪啦、唔好做啦，如果唔係呢你隨時刑事都有份。刑事有份係咩意思，即係醫生個牌隨時都即刻冇，咁所以都講得好清楚，所以佢地的法律顧問都講得好清楚，所以我覺得係無從抵賴，即係坦白講係咁樣，咁我講完個法例同埋我知道一D 多位核實既醫生、業界同我講既呢D 訊息，咁我就講講個調查結果。

先講講個調查方法先，咁我就做三輪既，第一輪就好簡單，咁我同事就用佢有限時間，就搵終共搵左１３間睇下呢D 咁既美容公司或者醫務所，佢地可能係 google SEO 就咁打醫學美容呀、醫學美容中心，就睇下彈Ｄ咩出黎，咁亦都睇唔同情況，咁呢就睇佢地網頁，睇下佢地既facebook或者其他社交平媒體點樣講佢地停業期間，咁有D 就係完全冇講既，有D 呢，有一間NuMe 呢就係話我地係診所黎架，醫療程序可以繼續做架…

見到 NuMe 佢就話我地本身係診所嚟嘅，所以可以繼續營業…

我自己好明白其實美容業宜家有個好困難嗰個情況，因為要停業，特別係個啲中小型的美容院，基本上，坦白講係手停口停，佢哋又賣唔到廣告，其實好多時都係靠熟客，佢哋的人手，都係難啲，但如果你問我自己，考慮到嗰個人流上啊，其實我覺得大型嗰啲美容院嗰個風險高啲，因為個人流多丫嘛，係咪先，同埋四方八面，所以我一講加風險嘅情況係好，但我地都見到其實好多啲小店，美容業界其實都好齊心抗疫，全部停曬架好多。有好多美容業界都同我講，佢地都覺得好委屈…點解自己好乖咁停的時候，但會有好多，好似打住醫生排頭或有醫生做，就完全可以免疫呢，咁佢地就覺得非常之唔公平…

咁你問我原則上琴日政府都公佈左第四輪防疫抗疫資助，咁我既方向覺得要幫返D被迫停業既一D處所、食肆、美容院，我覺得係好正常，係好合理，因為真係要停，同埋真係為一個公共衛生既角度黎講，咁我地真係要有需要控制疫情，咁但係同時間，政府唔好忽略唔好當個D業界呢其實就唔會出蠱惑既，唔會出貓既，你諗下wo就咁10幾間都已經起碼有4間都咁樣樣，咁所以我地覺得呢D絕對係需要嚴懲

不斷話自己係診所唔係美容處所，其實係會好誤導市民，市民會以為:「喂，你係咪真係醫療診所，我真係可以嚟...」，以致係個防疫係咪真係可以唔遵守，我覺得係一個好差的情況，政府係須要嚴懲囉…

考慮到…私營醫療機構嗰個條例草案已經過左架啦…日間醫療中心都要攞牌…我覺得政府應該好好諗一諗，今次出現問題嘅一啲醫療機構，又或者美容院，諗住做醫學美容嗰啲呢。如果佢地申請日間醫療中心又…牌照的時候，有呢啲咁不良嘅紀錄，當全城諗住抗疫咁嚴重的時候，佢都違反，政府係咪真係有信心佢地可以好乖乖地遵守嚟緊嗰個牌照入面嗰啲要求呢?我係一個好大的問號，我呼籲政府係要積極考慮唔好發牌比呢啲公然違規，公然為左賺自己錢，而去食公營醫護人血饅頭的醫生或者機構，我覺得要絕對打擊呢啲害群之馬。

總之，你係會提供呢啲，姐係以美容目的嘅服務，其實呢個處所就係要一定要關，唔理你係醫生，你係咪打針或者係做啲高能量療程，總知嗰個處所就一定要關。咁如果唔係呢，其實根據番法例嘅講法呢，其實係要第五級罰款，姐係罰5 萬蚊，同埋可以監禁六個月，咁我都係呼籲政府，因為一定會有個管理人架嘛，可以係公司董事，可以係經理，我唔知啦。但我覺得食衛局係應該係要嚴正跟呢啲公然或明知故犯違規嘅…醫療機構或美容中心。…

有幾點啦，我覺得要做，即係頭先個阻嚇，第一啦就係頭先講個D 第4輪個D 防疫抗疫既資助呢，我覺得要make sure 一定要確保呢D 機構係冇一間可以申請到，或者申請到既時候要確認保任何…係真係乖啦，係有真係配合啦，就唔係就係有錢就黎攞，但原來中間就係偷偷地咁樣開。

食衛局係應該係好認真嚴正咁跟進可能違規的情況，咁亦都要將依啲違規的人員定罪，甚至係要，嚴重啲，係用監禁形式做懲罰…而管理人啊、董事啊、同埋醫生，我覺得都係要負責嘅…有啲機構都話自己係攞緊一啲嘅醫療機構相關的牌照。因為日間醫療中心一定要有一個醫務行政總監，一定已經有個醫生孭飛嘅，咁我覺得可以將個醫生孭飛送埋比醫委會，係做一個紀律研訊，我覺得呢個亦都係非常之緊要。最緊要就係，…，發牌嗰度呢，呢啲機構呢係呢啲咁關鍵的、全城咁艱難的情況，佢都公然違規，咁真係要發嗰個私營醫療機構相關的牌照，包括日間醫療中心…係咪真係要比佢哋，我覺得政府係要諗得好清楚。

有少少補充嘅，啱啱開記者會之前，就收到NuMe 嗰個回應，我可以比大家，大家可以傳一傳，我好簡短講佢就話自己呢唔係美容院，跟住又話有唔同巡查都話冇問題…第二就係話，有攞緊暫准的醫療機構牌照，話自己唔係美容院…話有啲姐係混淆嘅情況。咁我好簡單回應，其實都係看番599F，就係呢類服務係咪美容目的丫嘛。如果你係提供美容目的，係去打針，唔係urgent，其實就已經中架啦…都係要關閉架。”

7.  The English translation of the First Offending Words is contained in Annexure 1 to this judgment.

8.  D published a press release dated 18 December 2020 (“the Press Release”) on the same issue, where hard copies of which had been distributed by D to reporters at the Press Conference (“the Second Offending Words”, together with the First Offending Words, “the Offending Words”):-

“醫生沒有特權提供美容服務

必須嚴懲違規醫學美容處所

（2020年12月18日14：30即時發放）第四波新冠肺炎疫情，政府再收緊人流措施，上星期宣佈美容院、按摩院及健身中心等停業兩星期至12月23日。但香港美容監察召集人、民主黨深水埗區議員袁海文收到美容業界及醫生等投訴，指有不少打著「醫學美容」的處所，違反停業令照常營業。袁海文團隊由2020年12月11日至17日，搜集公開資料，並以神秘顧客方式對13間提供美容服務的處所作三輪調查，發現4間涉違規，有陽奉陰違，也有公然違規。袁海文認為有關處所及公司為求謀取私利，無視法規及抗疫措施極不負責任及自私，增加新冠病毒的傳播風險。而涉事的醫生及公司董事亦是責無旁貸，他們不顧疫情公然謀利，但有感染個案卻要公營醫護處理，其實等同吃公營醫護的人血饅頭。食衞局與不認真及嚴正調查，對其他守規的美容院及努力拚鬥疫情香港的公營醫護是極不公平。

現行法例規訂

根據「第599F章《預防及控制疾病(規定及指示)(業務及處所)規例》附表2表列處所」(https://www.hklii.org/chi/hk/legis/reg/599F/sch2.html)，美容院是表列住所。而根據2020年第33號法律公告(https://www.elegislation.gov.hk/hk/2020/ln33!zh-hant-hk)，美容院的訂義為:

美容院 (beauty parlour) 指提供一項或多於一項以下類型服務所在的處所 ——

(a)為美容目的而對身體任何部位(頭部毛髪除外)進行的化學、機械或發放能量的程序，包括為非醫學目的而進行的、涉及穿刺皮膚的美容程序；

(b)美甲服務(包括修手甲或修腳甲服務、駁甲、塗甲油及藝術美甲)；

(c)為非醫學目的而進行的改善脫髪服務(包括植髪及織髪)；

調查結果

袁海文團隊以三輪方式進行調查。第一輪於美容院／提供美容服務的處所的網站或社交平台公佈的資料。第二輪，則是以神秘顧客以Whatsapp / Wechat / Facebook / 電話查詢，作停業／營業安排的核實，查看有否出現陽奉陰違的情況，並預約23/12前的服務時間作美容服務。第三輪，就已預的美容處所時段，再以同一神秘顧客身份致電核實停業令可否營業。

第一輪發現NuMe在Facebook及其網頁宣稱自己是醫療中心業務，照常營運。其他的表示停業或未有公佈。

第二輪則發現，除NuMe外，神秘顧客成功向Dr Reborn、健麗國際醫學美容集團及Virtus Medical尚至醫療成功預約美容服務。

第三輪，神秘顧客再致電查詢停業令是否可營業，NuMe、Dr Reborn職員表示是診所／醫生處理，是醫生項目，所以可繼續營運。健麗國際醫學美容集團則表示當天只做檢測評估，24/12才由醫生處理。Virtus Medical尚至醫療職員則表示整形外科診所，提供有限度服務，某些療程現時是暫停，但可接受預約，詳細調查結果見附表。

民主黨／袁海文意見

昨天，衛生防護中心指Glow Spa & Salon群組的資料時，不排除顧客曾接受其他美容服務，可能曾取下口罩。袁海文知道美容業面對非常困難的處境，特別是中小型美容院需要停業，對很多從業員來說是手停口停。相比大型美容院，小型美容院人手、人流相對少得多，爆發風險亦是較低。很多業界仍同心抗疫，這段困難時候關閉。袁海文認同需為停業的中小型美容提供支援。但現時仍有不少大型美容院公然賣廣告，稱自己是診所，不但誤導市民，無視抗疫措施。不少醫美中心需準備申請私營醫療機構有關牌照，沒有理由不知道「診所」的定義。政府絕對需要打擊美容業害群之馬。

袁海文指，599F有關美容院的訂義／界定，是非常清晰，關鍵在乎提供的服務是否以美容目的（beautifying purpose），同時列明穿刺皮膚的美容程序亦包括在內。而衛生署亦於2013列明穿刺皮膚的美容程序、涉及體外能量源的程序、涉及以機械或化學方法進行皮膚剝脫的程序有何項目 (https://www.dh.gov.hk/tc_chi/useful/useful_medical_beauty/files/WG_report_chi.pdf (p.24/29))。換言之，如果是美容目的而提供服務，有關處所必須關閉。即使是由醫生打美容針（如透明質酸、肉毒桿菌），或進行高能量療程，有關處所絕對也是違法。袁海文警告，醫生或美容院聲稱醫療程序絕非擋箭牌，即使只做美容服務的檢查或諮詢也是違法，而處所的管理人違反食衞局局長指示，即屬犯罪，一經定罪，可處第5級罰款及監禁6個月。

袁海文認為多間美容院是無視法規，明知故犯，絕對需要嚴懲，才有阻嚇作用，袁海文已將有關違規情況通知食衞局。袁海文同時有三點建議。第一，政府推出第四期抗控基金資助必須停業的處所，這些違規的美容院或處所絕不應受任何資助。第二，食衞局應嚴正調查違規情況，將違規的有關處所管理人定罪，是明知違規仍開業，應將有關管理員／公司董事判以監禁，以增加阻嚇力；如發現有任何醫生參與提供服務或縱容美容院職員開業進行銷售，應立即交由醫委會進行紀律研訊。第三，食衞局及衛生署私營醫療機構規管辦公室正就日間醫療中心及診所等進行發牌及豁免領取牌照等私營醫療機構程序，違反599F的處所及有關公局公司，應積極考慮不發放有關牌照或作出豁免。

袁海文呼籲消費者及美容院職員舉報違規及不配合政府防疫措施的美容院及醫生，袁海文知道很多美容院職員這段防疫時間受屈，例如被逼放無薪假但又需要上班，袁海文非常歡迎受屈的美容院職員舉報美容院違規情況。袁海文同時認為醫委會及醫學會亦應主動提醒和警告提供醫學美容服務的醫生，於這段關鍵防疫時期應如何行醫。

傳媒聯絡：

深水埗區議員、香港美容監察召集人、民主黨消費者權益／醫療政策副發言人

袁海文 944XXXXX[1]

美容院／提供美容服務處所的名稱	第一輪調查 社交平台／網站公佈營業時間	第二輪調查 神秘顧客預約 (Whatsapp/Wechat/Facebook/電話查詢）	第三輪調查 詢問有停業令是否可營業
1. Nume	(Facebook+官網)本醫療中心業務＃照常營業	成功電話預約 17/12/2020 14:00 瘦面療程+見醫生 (電話) + (Whatsapp) 已預約 17/12 14:00	員工指出，「我哋本身係診所，所以正常營業。」

[…]”

9.  The English translation of the Second Offending Words is contained in Annexure 2 to this judgment.

10.  The Press Conference was attended and recorded by five media broadcast institutions. It was broadcast to the public by the attendant media broadcast institutions. A record of the same conference was further made accessible to the public on the internet by the aforesaid media broadcast institutions and various other newspaper and media outlets.

11.  The reporting of the Offending Words by media broadcast institutions and various other newspaper and media outlets reduced the Offending Words into permanent forms, including videos.

P’s NEW DOCUMENTS SUMMONS

12.  P filed a summons to lodge new documents on 24 June 2025 (“the New Documents Summons”), alongside with Dr Wang I Sing Sandy’s (“Dr Wang”) affirmation (“the New Documents Affirmation”) and exhibits.

13.  On the first day of trial (ie 24 July 2025), I accepted and allowed P’s New Documents Summons to be included in the trial bundle on a de bene esse basis with the decision on the New Documents Summons reserved. This aligns with the approach set out in Technic Star Universal Limited v Tiny Love Limited [2021] HKCFI 2284 §§22-23 (DHCJ Richard Khaw SC) to avoid consuming trial time on interlocutory arguments.

14.  It has been well established that if a plaintiff is to file for an application for introducing new documents prior to trial, it is for him to provide “full information regarding the reasons for late disclosure, the sources and makers of the documents, the relevance of the documents and whether the makers of the documents are available to attend trial for cross-examination if an opponent applies under s.48 of the Evidence Ordinance (Cap.8)”: Hong Kong Civil Procedure (2025) §24/2/17 at p.702.

15.  Kinetics Medical Health Group Company v Dr Tse Kin Sang (HCA 1115/2010, 8.5.2013) §49, DHCJ Marlene Ng (as she then was) stated that the balancing exercise and considerations of the court on whether the court should allow a late application for further discovery is largely in three-folds:-

“(1) The merits of the application (ie whether the application if granted will assist the court in securing “the just resolution of disputes in accordance with the substantive rights of the parties” as per the RHC O.1A r.2(2);

(2) Any prejudice to the other party; and

(3) Any conscious flouting of the rules of court, practice directions and/or case management directions/timetables, or any over-reaching or deliberate manoeuvring on the part of the applicant.”

16.  I shall now consider the relevance of the New Documents and whether such late application was prejudicial to the other party.

17.  P produced a total of 14 documents under the New Documents Summons which may be categorized into four categories: (i) publicly available official governmental press release, guidelines or communications; (ii) newspaper articles; (iii) specific evidence concerning P; and (iv) documents in support of P’s position on the issue of malice.

18.  Most of the documents were dated prior to the pre-trial review on 29 April 2025 (“the PTR”) and only 3 documents were dated 3 May, 23 May and 30 May 2025, which were available only after the PTR.

19.  In considering the relevance of these documents, I note that they are in supporting of P’s assertion and stance, hence relevant to the issues of this case. In terms of timing, I note that these documents were provided to the court one month prior to trial.

20.  I also note that only Items 208 and 209 were used during the cross-examination of D. These two items were only supporting documents of what was similarly mentioned in Dr Wang’s witness statements. Further, the new documents produced were not of voluminous nature. Although it remains questionable to me on why most of the documents cannot be produced to the court before the PTR, I find that they were in no way prejudicial to D.

21.  Based on the reasons above, I shall allow and accept that the new documents as sought to be produced under the New Documents Summons were necessary and appropriate to be produced. The costs of the summons should be in the cause.

WITNESSES AND THEIR EVIDENCE

22.  6 witnesses gave evidence at the trial. Of these, P called 4 witnesses: Dr Wang, a registered medical doctor of P as PW1; Ms Chu Ying Hung, a doctor’s assistant of P (“Ms Chu”) as PW2; Ms Fung Hiu Wai, an administrative manager of P (“Ms Fung”) as PW3; and Mr Leung Chung Him, a former senior marketing manager of P (“Mr Leung”) as PW4. D gave evidence to support of his own case as DW1, and further called Ms Leung Wing Ki, the former district councillor assistant of D (“Ms Leung”) as DW2.

23.  All witnesses have adopted the contents of their respective witness statements as their evidence-in-chief in the present case.

24.  The legal principles on assessing credibility of witnesses are set out in Hui Cheung Fai v Daiwa Development (HCA 1734/2009, 8.4.2014), §§77-83 (DHCJ Eugene Fung SC, as he then was):-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). It is right to point out, however, that some of the documents in this case are alleged by the Son to be shams and those documents obviously cannot be used to assess the credibility of the parties.

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

‘Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants.

83. In approaching the evidence in this case, I have also borne in mind that the allegations made by the Son are very serious, and that the more serious the allegation sought to be proved is, the more cogent the evidence relied upon to support it must be: see Re H (Minors) [1996] AC 563at 586D-587F (Lord Nicholls) and ADS v Brothers (2000) 3 HKCFAR 70 at 77J-78G (Lord Hoffmann NPJ).”

25.  See also Luen Ming Supreme Fabricator Company Limited & Anor v Ng Chi Wah & Anor [2021] HKCFI 1501 at §82-86.

26.  These principles will be applied in the analysis as follows.

27.  In considering the voluminous amount of evidence submitted to the court, it will be impossible to refer to each and every piece of evidence canvassed at trial, nor do I find it necessary. I will only set out the relevant evidence in this judgment.

Credibility of Dr Wang (PW1)

28.  Dr Wang was cross-examined over the course of three days by D’s counsel.

29.  Regrettably, I do not find Dr Wang as an honest and credible witness at all. I find her evidence not forthcoming and evasive. In my view, she clearly was not telling the truth, at least not the complete truth, about P’s operation during the Specified Period when giving her evidence. I further find her evidence selective, unreliable and inconsistent throughout the cross-examination. The following incidents are the ones in particular which I would like to highlight in order to demonstrate why I consider her evidence cannot be trusted or relied on.

(a) Appointment at BEAUSKIN

30.  In accordance with Dr Wang’s witness statement, on 10 December 2020, she instructed Ms Wong Yuk Ying (“Ms Wong”), a former marketing manager of P (who is not a witness in the case), to make an appointment with BEAUSKIN Medical Group Limited, at its outlet in Langham Place, Mong Kok (“BEAUSKIN”), a competitor / rival company of P, to receive a “revive skin whitening and hydration injection” treatment. The purpose clearly was to find out if their competitor was providing “beautifying services” during the Specified Period, and if so, to report them to the authorities.

31.  On 11 December 2020, Ms Wong attended the appointment as scheduled for the treatment. In accordance with the WhatsApp communication records between Dr Wang and Ms Wong, Dr Wang instructed Ms Wong to film the doctor’s consultation and treatment procedure. Dr Wang also asked Ms Wong to “stay longer at the consultation”.

32.  BEAUSKIN’s staff then applied numbing cream on Ms Wong in preparation for the procedure. After applying the numbing cream, Ms Wong was suddenly asked by the staff to leave and cancelled her appointment as police officers arrived thereat for an impromptu inspection.

33.  During cross-examination, Dr Wang gave vague and inconsistent answers. When D’s counsel asked why she did not lodge any complaints of BEAUSKIN’s potential violation of 599F with the Department of Health (“DH”) or any other government authority, she mentioned that they were merely trying to collect information and it was not their intention to make a report. However, when D’s counsel put to her that this contradicts with her WhatsApp message stating that ‘“Lala” will then report to the authority, including the police (「之後Lala 就會篤灰及警察」) (“Lala” being Ms Fung who is PW3 in the present case), Dr Wang responded by saying that it was their intention to see if the clinic can still operate if police officers were involved (「因為我們就是想看看可不可以，如果真的警察到了，可不可以做這樣子的操作」). Further seeking for clarification on the same issue on Day 3 of the trial, Dr Wang claimed that she cannot recall mentioning such intention.

34.  I find Dr Wang clearly was not telling the truth about the incident. I find the main purpose of sending Ms Wong to BEAUSKIN was to try to “spy on” one of P’s main rival companies / competitors in the trade, with a view to report the possible violation of 599F to the authorities. In my view, another reason why P did that must be it wanted to find out what their competitors were doing during the Specified Period and then for them to decide in turn what they could or could not do or get away with.

(b) Mendy Skin Beauty

35.  On 18 January 2022, Ms Fung called “Mendy Skin Beauty” (悅姬美容護膚中心) (“Mendy Skin Beauty”) to check whether it did in fact cease operations in compliance with 599F. Ms Fung found out that Mendy Skin Beauty was still open for business.

36.  When D’s counsel asked whether Dr Wang instructed Ms Fung on making a call to Mendy Skin Beauty, Dr Wang stated that she in fact instructed Ms Fung. However, such reply contradicts with that of Ms Fung. Dr Wang further accepted that she did not lodge any complaints to D, nor the DH or any authorities in relation to Mendy Skin Beauty.

37.  When asked why she decided, after more than a year after the Press Conference, to instruct Ms Fung to call Mendy Skin Beauty, she mentioned that P was at the stage of preparing for the present trial (“Q: […] And it should not be too far away from the Press Conference in terms of dates; A: …但是應該那時候是準備要lawsuit，就是我們要準備打官司，應該是打官司之前跟記者會之後[…]”). However, she later denied that the reason she did not file any report to D was such that she could use such findings as part of the trial.

38.  Again, I find Dr Wang’s answers not credible. She clearly was not telling the court the truth about this matter.

(c) Definition of “beauty parlour” and treatments for beautifying purposes

39.  During Dr Wang’s cross-examination, she accepted that (i) most customers came to P’s Clinics for Belkyra or Botox treatments, and such treatments are mostly for aesthetic purposes; (ii) Botox injections are commonly used in aesthetic treatments, though she said there can be some medical indications; and (iii) the primary use of Belkyra is cosmetic fat reduction and, as P’s own advertisement showed, had no effect in relieving pain or discomfort. However, only in cross-examination did Dr Wang state that Belkyra treatments might have a medical purpose of treating breathing obstruction, particularly obstructive sleep apnoea. I note that stated purpose was not mentioned in any of her three witness statements. I do not accept her explanation given under cross-examination. It clearly was an afterthought when Dr Wang tried to justify P’s continuous operation of P’s clinics (“the Clinics”) during the Specified Period.

40.  D’s counsel referred to a letter titled “Provision of Cosmetic Procedures in Medical Practice”, issued by DH dated 18 November 2013 and the Report of the Working Group on Differentiation between Medical Procedures and Beauty Services for submission to the Steering Committee on Review of Regulation of Private Healthcare Facilities 2013 (“the Report”) when questioning about Dr Wang’s interpretation of 599F. When Dr Wang was asked simple questions regarding the Report, she avoided obvious conclusions and deferred responsibility by stated that P was merely following the legal advice from Howse Williams (“HW Legal Advice”) received through the Association of Doctors in Aesthetic Medicine (HK) (“ADAM”) WhatsApp group on or around 9 or 10 April 2020.

41.  I do not accept her explanation. In my view, she was trying to hide behind the HW Legal Advice in order to justify the continuous operation of the Clinics during the Specified Period.

42.  Dr Wang was further shown the article and video clip from “HK01” published on 17 December 2020 in relation to the high-energy radiofrequency treatments offered by P during the Specified Period.

43.  Similarly, when asked whether such treatments were “energetic” procedures for beautifying purposes, she avoided answering the questions and gave evasive discourse about potential medical purposes, client situations and that such treatments should be doctor-administered etc.

44.  The above clearly shows that Dr Wang is not an honest witness whose evidence the court can safely rely on.

(d) Involvement of the operation of P

45.  When asked whether she was involved in the operation of P, Dr Wang denied her own involvement and mentioned that the operation of P is mainly decided by the director of P, Mr Lan Chun Chih (“Mr Lan”). However, as seen from the incidents mentioned above, Dr Wang was seen to be the one who initiated the decoy operations. Yet, during cross-examination, she constantly attempted to distant herself from the management of P and stated that she was merely the “key doctor” of P, where she was responsible for the medical operation of P only. Significantly, at no time did Dr Wang disclose to the court of the close relationship between her and Mr Lan. It was only revealed after close of evidence and during closing submissions that they were in fact husband and wife at one time who had lived in the same residential address together.

46.  I do not accept Dr Wang’s claim that she was not involved in the daily operation and management decisions of P. Judging from the above incidents, she clearly was closely involved in the daily operation of P and was responsible for most, if not all, the important management decisions.

47.  All in all, I find Dr Wang’s answers were frequently evasive, internally inconsistent, incredible and unsupported by contemporaneous records. Dr Wang’s constant attempt to deflect responsibility in my view raises strong suspicions of the real role played by her in this litigation. I find Dr Wang’s evidence lacks credibility. Where appropriate, I would reject her evidence.

Credibility of Ms Chu (PW2)

48.  Ms Chu was cross-examined on the third day of the trial. I find Ms Chu unpersuasive and incoherent as a witness. A recurring feature of Ms Chu’s evidence was her deflection of responsibility on P’s doctors.

49.  In Ms Chu’s witness statement, she stated that between 10 April 2020 and 7 May 2020 and between 15 July 2020 and 27 August 2020, P has suspended all non-medical services in accordance with 599F. Ms Chu further stated that P has also suspended all non-medical services and only provided medical services to its clients in December 2020.

50.  Moreover, she mentioned that it is a standard procedure in the Clinics ie Tsim Sha Tsui Clinic (“TST Clinic”) and Causeway Bay Clinic (“CWB Clinic”) that a new patient must first undergo a medical assessment and consultation with its doctors before any medical treatment could be arranged.

51.  However, during cross-examination by D’s counsel, it was revealed that P’s clients would in fact first undergo a preliminary assessment with a doctor’s assistant / Ms Chu before undergoing a medical assessment and consultation with P’s doctors. It was also revealed that Ms Chu earns commission on sales of treatment packages. These were not mentioned in her witness statement.

52.  I do not find Ms Chu’s evidence on the above requests for a customer to be medically assessed by a doctor first credible at all. I do not think it makes commercial sense or in line with “procedures” adopted by P during Ms Leung’s (DW2) decoy operation.

53.  As demonstrated below, Ms Chu further provided incoherent replies during her cross-examination in relation to Ms Leung’s decoy operation.

54.  According to Ms Chu’s witness statement, on or around 11 December 2020, she received a phone call from Ms Leung (DW2), who was pretending to be a client under the name “Mimi”. Ms Leung was trying to make an enquiry and appointment for “face-slimming” and “fat-dissolving injections” treatments with P (“the Mimi Decoy Operation”).

55.  In the dialogue between Ms Chu and Ms Leung, Ms Chu recommended Ms Leung to receive Botox and Belkyra treatments. The appointment for doctor’s consultation was made on 17 December 2020, ie within the Specified Period. It is clear that Ms Chu did not ask Ms Leung whether the purpose of the appointment for treatment was for medical or beautifying purposes.

56.  Further enquiries about the treatments / appointments were made by Ms Leung on 15 and 16 December 2020 respectively on (i) the name of the doctor on duty on the day of appointment; and (ii) whether P would be in operation during the Specified Period.

57.  Ms Chu informed Ms Leung that she cannot promote the name of the doctor on duty through the phone. Further, she informs Ms Leung that if she only meets with a doctor’s assistant, no consultation fee would be required. However, if Ms Leung is to see the doctor on duty, she would be required to pay HK$1,000 consultation fee. She further advertised to Ms Leung that P has a trial price where if a client purchases any treatments, the client will have a free consultation with the doctor and no consultation fee would be charged.

58.  Ms Chu also reassured Ms Leung that as P is a clinic and they will operate normally during the Specified Period. However, full preventive measures are still required during Ms Leung’s visit, such as wearing a mask, checking body temperature and medical history. The appointment was further pushed back to 18 December 2020.

59.  When D’s counsel asked why she did not warn Ms Leung that treatments for beautifying purposes would not be performed, Ms Chu stated that she does not know how to categorize whether treatments are for beautifying or medical purposes. She reinstated that it was not her duty. Her duty was simply to book the appointments with clients. She accepted that she would not alert clients that treatments for beautifying purposes would not be performed, as doing so would turn those who sought beautifying treatments away.

60.  However, during the cross-examination, Ms Chu demonstrated knowledge on how to differentiate between treatments of beautifying or medical purposes. Further, it was seen from the dialogues between P’s employees and other clients, such employees would inform clients that their beauty services were closed, and they no longer offer beautifying purpose treatments during the Specified Period. This contradicts with her response.

61.  I am not impressed with Ms Chu’s constant emphasis on the minimal responsibility she has as a doctor’s assistant, especially when she earns a commission on sales of treatment packages. Her explanations on how P’s employees do not have a standardized procedure when approaching clients are absurd. It would be reckless that, in consideration of the seriousness of the COVID-19 pandemic, a company with supervision of medical doctors would fail to standardize its procedures to ensure that clients are notified of the newest COVID-19 arrangements of P. I do not find Ms Chu as a credible witness. I do not accept her evidence about the strict compliance of having a client to be examined by a doctor before treatment believable at all. I am sure P was still trying to provide beautifying service to its clients during the Specified Period but dressed that up as medical treatments to be provided by one of their doctors. In my view, it was walking on a very tightrope and operating in a very grey area of the law at the time.

Credibility of Ms Fung (PW3)

62.  Ms Fung was cross-examined by D’s counsel on the third day of the trial. I also have great reservation on Ms Fung’s credibility.

63.  In Ms Fung’s witness statement, she mentioned that she assisted with P’s applications for the subsidy under the Scheme. P applied for the Scheme twice.

64.  When cross-examined, Ms Fung revealed that Mr Lan was the one who instructed her to prepare and submit the applications for the Scheme. She also mentioned that it was Mr Lan who instructed her to draft the notices on P’s website. She has no involvement on the details of the notices.

65.  Further, there were contradictions between Dr Wang’s and Ms Fung’s replies in various incidents.

66.  In relation to the BEAUSKIN incident, Ms Fung stated that she did not report to DH or the police officers on the BEAUSKIN’s violation of 599F when Ms Wong was undergoing her appointment. This, however, contradicts with Dr Wang’s responses.

67.  In respect of the call made to Mendy Skin Beauty, Ms Fung stated that she was the one who initiated the call, which contradicts to Dr Wang’s answer where she said she was the one who instructed Ms Fung to do so.

68.  In accordance with Ms Fung’s witness statement, on 14 January 2021, Dr Wang instructed her to make an appointment for a “face-slimming” treatment with Worldmate Medical Clinic Limited (“Worldmate”). On 21 January 2021, Ms Fung, with Dr Wang tagging along, went for the consultation at K-centric (脫疣醫療中心) of Premier Asia Medical Centre Limited (“PAMCL”) at 16 Hart Avenue, Tsim Sha Tsui, Kowloon. Ms Fung underwent three treatments, ie wart treatment, Profhilo injection and Ulthera treatment on 22 and 30 January 2021 respectively. After the treatments and reviewing the receipts, Ms Fung suspects that K-centric was making false documents and potentially committing insurance fraud.

69.  During cross-examination, Ms Fung confirmed that she reported the potential insurance fraud to the police in 2021 and then lodged a complaint to D on 17 March 2021, which was two months after the incident. She reiterated that she was the one who decided to lodge the complaint to D. However, Dr Wang said that she was the one who instructed Ms Fung to lodge a complaint to D, which was in contrary of what Ms Fung mentioned.

70.  Ms Fung distanced herself from key decisions and deferred responsibilities to Mr Lan was also suspicious. Further, the contradictions between Ms Fung and Dr Wang’s replies were significant and unreconcilable. As such, I have serious doubts on Ms Fung’s credibility.

Credibility of Mr Leung (PW4)

71.  Mr Leung was the last witness called by P. He gave evidence on the fourth day of trial. I find Mr Leung unpersuasive and not credible.

72.  In his witness statement, Mr Leung stated that prior to joining P, he was employed as a senior marketing manager between May 2021 and August 2022 with PAMCL, where he worked for Mr Matthew Fan (“Mr Fan”). He stated that Mr Fan would instruct PAMCL employees to pose as customers and visit competing business to investigate whether they have any unethical sales tactics and illegal activities.

73.  However, Mr Leung conceded during cross-examination that his role was merely to draft complaint letters for Mr Fan and Mr Fan was the one who passed those letters to D.

74.  In Mr Leung’s witness statement, he alleged that Mr Fan had told him that he was close with D and whenever Mr Fan had “dirt” on PAMCL’s competitors, D would help him to expose and publicize it.

75.  However, under cross-examination, Mr Leung admitted that he had only provided details of a single covert operation against HK Medical Group in relation to insurance fraud. He further agreed that this was the only incident in which Mr Fan provided “dirt” to D. Mr Leung failed to provide any further examples on how Mr Fan “plant moles” in various competitors’ business.

76.  I find that Mr Leung’s replies were materially inconsistent with his witness statement and has grossly exaggerated his job duty. I find it difficult to believe his statement on the alleged relationship between D and Mr Fan.

77.  I would reject his evidence insofar as it tries to establish the alleged close relationship between D and Mr Fan.

Credibility of D (DW1)

78.  D gave evidence on the fourth and fifth day of trial. I find D’s account of events was genuine, for most part of his evidence, including the answers he gave under cross-examination. Although he showed inconsistencies in some of his replies, I remain to be convinced that D overall is a reliable and credible witness, at least when compared with P’s 4 witnesses.

79.  During cross-examination, D’s replies aligned with his witness statement and reiterated that “the countdown of [his] political career has begun” due to the change in Hong Kong’s political environment around the Specified Period. He frankly admitted that the “Hong Kong Beauty Industry Monitor” (“the Monitor”) and “Hong Kong Beauty Conscience Charter” (“the Charter”) were political vehicles for elections, but noted that he could no longer be a politician soon and stated that the “exclusive” concern of the Press Conference was for the benefit of the public health. The intention of the Press Conference was to urge the Government to investigate and take enforcement actions against businesses that breached 599F. Further, he confirmed that he instructed Ms Leung to research various clinics that might be in breach of 599F, not merely directing such investigation at P.

80.  In considering the spiking number of cases of COVID-19 infection and seriousness of the COVID-19 pandemic prior and around the Specified Period, I am convinced that D’s primary intention of holding the Press Conference (and the release of the Press Release) was out of a genuine public-interest concern rather than to promote himself or to benefit his own political career.

81.  D’s credibility was put in question when P’s counsel cross-examined him on the legal opinion which was circulated by Dr Chan Ching Pong to the ADAM WhatsApp group in April 2020 (“Purported Legal Opinion”). D referred to this Purported Legal Opinion during the Press Conference and admitted that he only showed the “Disclaimer” section of the Purported Legal Opinion during the Press Conference but failed to refer to it. The “Disclaimer” states that such Purported Legal Opinion does not act as a legal advice. He confirmed that he was going to proceed with the Press Conference no matter whether there was a legal opinion on the issue, as such opinion only “strengthen his views” on the matter. He reiterated that Ms Leung and himself have already received complaints and did sufficient research on “beauty clinics” that were in operation during the Specified Period. When questioned how many complaints he received in relation to “clinics” in breach of 599F during the Specified Period, he showed inconsistency in his replies.

82.  During the Press Conference, D admitted he omitted the fact that, after receiving P’s clarification statement prior to the Press Conference, P applied for the Scheme twice and got denied, and acknowledged that the Press Conference was a way to suspend P’s operation of business if the treatments provided were for beautifying purposes.

83.  In weighing the evidence given by D, I find that D’s intention for holding the Press Conference was genuine. Hong Kong was at its fourth wave of COVID-19 pandemic during the Specified Period and public health was one of the crucial concerns in our society at that time. Although D omitted two material facts during the Press Conference and may show inconsistencies in his replies to the number of complaints received from the public on clinics potentially breaching 599F, I find that, D being the usual spokesperson for his political party on the beauty industry, it was reasonable for D to step up and urge the Government to follow up on issues that might consider to be unfair to the businesses in the beauty industry.

84.  As such, overall, I remain to find D to be an honest and reliable witness.

Credibility of Ms Leung (DW2)

85.  Ms Leung was called to give evidence on the sixth day of trial. I find Ms Leung to be a straightforward, direct and no-nonsense witness. Out of all the witnesses called by the parties, I am most impressed by her. She clearly was telling the truth. Unlike other witnesses in the case, she did not have a personal agenda and had no reason to lie. Ms Leung’s evidence is also consistent with the contemporaneous records.

86.  In relation to the Mimi Decoy Operation mentioned above, Ms Leung confirmed that she was instructed by D to pretend to be “Mimi” and researched on the possible clinics that failed to comply with 599F. She also mentioned that D explicitly asked her to include P in her research. She reiterated that P was not the only clinic that she researched on, which aligns with D’s evidence. She further stated that she picked out a few clinics to see if, in the position of a new client, appointments for any treatments that requires the injection of drugs can be made. Additionally, she confirmed that she made the appointment for “face-slimming” treatment with P, through Ms Chu, and did not attend the appointment scheduled on 18 December 2020.

87.  Ms Leung gave direct and straightforward answers during cross-examination. In my judgment, Ms Leung’s credibility was not in question.

CONCLUSION ON CREDIBILITY

88.  To sum up, I find that P’s witnesses lack in credibility. As such, in my view, their evidence must be treated with extreme caution and little or less weight should be given to their witness statements and answers given under cross-examination.

89.  On the other hand, I find D overall is an honest and credible witness despite some defects and inconsistencies in his evidence. I further find Ms Leung as a credible witness whose evidence the court can safely rely on.

ADVERSE INFERENCE

90.  The legal principles for adverse inference are set out in China Forestry Holdings Co Ltd v Top Wisdom Overseas Holdings Ltd [2025] HKCFI 2893 §§34:-

“There are authorities in support of drawing adverse inferences from the absence or silence of a witness. Relevantly, such inferences may be drawn from the absence of a witness who might be expected to have material evidence to give on an issue in an action, provided there has been some evidence adduced by the opposing party on the matter or a case to answer on that issue, and there is no satisfactory reason for the absence of the witness: see Wisniewski v Central Manchester Health Authority [1998] PIQR 324 at 340; Pacific Electric Wire & Cable Company Limited v Texan Management Limited (unreported, HCCL 16/2009, 17 September 2013) at [106]; see also Jones v Dunkel (1959) 101 CLR 298 at 312 (approved in Polaroid Far East v Bel Trade Co Ltd [1990] 2 HKLR 447 at 454). P has also fairly drawn this Court’s attention to the recent dicta by Lord Leggatt JSC in Royal Mail Group Ltd v Efobi [2021] UKSC 33 at [41]:

‘[T]here is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so... Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole.’”

91.  Another helpful summary of Wisniewski v Central Manchester Health Authority [1998] PIQR 324 at 340 appeared in Tjang Siu Thu v Profield Construction Engineering Ltd [2015] 5 HKC 22 at §33:-

“The following propositions can be derived from the case law:

(i) the Wisniewski principles do not constitute a presumption; consequently, the mere failure of a party to call a witness does not automatically confer an evidential benefit on the opposing party;

(ii) the Wisniewski principles concern the drawing of inferences and whether any inference is drawn will depend upon the quality of the primary facts on which the inference is based; this is necessarily a fact sensitive matter and will vary from case to case;

(iii) the primary facts must allow of the inference to be drawn in the sense that the inference logically flows from those facts;

(iv) in the circumstances of the case the judge must be persuaded that it is appropriate to draw the inference; and

(v) one circumstance where it will not be appropriate to draw the inference is where there is an explanation for the party’s failure to call the witness.”

92.  I am also aware that, in reference to Phipson on Evidence (20th ed) (at §45-35 (pp. 1747-1748)), courts rarely draw adverse inferences from a party’s failure to call a witness, especially where the opposing party could have summoned them. One cannot confidently infer what the witness would have said.

93.  Whether adverse inference can be drawn against the absence of Mr Fan and Mr Lan at trial will be considered below.

Mr Fan

94.  P invited the court to draw adverse inference against D for not calling Mr Fan to refute P’s allegations of a close relationship between D and Mr Fan. However, I find that such inference should not be drawn.

95.  Dr Wang suggested that Mr Fan and D have a close relationship where Mr Fan would provide “dirt” of competitors of PAMCL to D and D would publicise it. Mr Leung further stated that, as Mr Fan’s previous employee, his role was to “plant moles” in competitor companies and businesses. However, as established above, both witnesses’ credibility was in question, as such, little weight should be given to the evidence they provided. Such alleged relationship between Mr Fan and D was also denied by D during his cross-examination. I find it ironic that Dr Wang would make such accusation against Mr Fan when Dr Wang and her staff were doing exactly the same thing against P’s competitors during the COVID-19 pandemic.

96.  The evidence showing the relationship between Mr Fan and D may be seen in the following incidents.

(a) Professional misconduct of Dr Wang

97.  The following facts were agreed by both parties in the Joint Statement of Undisputed Facts (“JSUF”).

98.  On or about 24 April 2018, D as the convenor of the Monitor held a press conference concerning an investigation into advertisement in the medical beauty industry (“2018 Press Conference”), where he displayed the Medical Council of Hong Kong’s (“the Medical Council”) “Code of Professional Conduct” and a poster alleging that there were breaches by doctors of the Code of Professional Conduct by: (a) using discounted pricing to solicit business; (b) assisting doctors to solicit business; and (c) providing free services.

99.  Shortly thereafter, D published an article (or caused the same to be published) (“the 2018 Article”) which, inter alia, reported on the 2018 Press Conference and identified P (among others) by name and accused P of having, by adopting the then advertisement campaign and mode of operation, caused P’s doctors to violate the Medical Registration Ordinance and/or Code of Professional Conduct.

100.  On or about 27 May 2018, D issued a public press release and held a press conference, stating his intention to file his “first round” of complaints about five doctors (including Dr Wang) to the Medical Council on the basis of his investigation mentioned in the 2018 Article.

101.  D confirmed and admitted during cross-examination that on 29 May 2018, he filed a complaint to the Medical Council against Dr Wang, amongst others.

102.  By the letter dated 24 May 2019, the Secretariat of the Medical Council sent a “Notice of Meeting of the Preliminary Investigation Committee of Medical Council” to Dr Wang, notifying her that the Medical Council had received a complaint made by D against her, and that the matter complained of may raise a question of whether she had been guilty of misconduct in a professional aspect, and stating that a meeting of the Preliminary Investigation Committee of Medical Council was scheduled for 12 July 2019.

103.  On 7 February 2020, the Medical Council sent a letter to D (“Medical Council Letter”) informing D of the status of his complaint against Dr Wang, and stated that the Preliminary Investigation Committee had on 10 January 2020 decided to refer the complaint to the Medical Council for further inquiry.

104.  As admitted and confirmed by D during cross-examination, due to Mr Fan’s constant enquiry, D provided Mr Fan the Medical Council Letter in March 2020, where Mr Fan later posted the letter on “Discuss HK”.

105.  Dr Wang admitted in her evidence that as a result of the complaint made by D in 2018, she was convicted by the Medical Council for the offence of “practice promotion”. A six-month removal order which was suspended for 3 years was imposed against Dr Wang. It showed the seriousness of the offence complained of. It was revealed in evidence that Dr Wang had a previous caution for “practice promotion” in 2008.

(b) Purported Legal Opinion

106.  In accordance with D and his witness statement, Mr Fan provided D with the Purported Legal Opinion on the interpretation of 599F in December 2020.

107.  Other than the two incidents mentioned above, D also mentioned that he had received information from Mr Fan about the beauty industry practices.

108.  It should be noted that Dr Wang provided voluminous evidence in attempting to show that D and Mr Fan have a close affiliation.

109.  For instance, Dr Wang provided that in the K-centric potential insurance fraud incident, D failed to target Health Innovation Technology Corporation Limited’s (“HITCL”) subsidiaries in his press conference, titled “HK beauty medical corporation’s improper sales of wart removal treatment”, on 1 November 2021. As agreed in JSUF, Mr Fan was, at material times, the director of HITCL. When cross-examined, D explained that he was overwhelmed with several matters in hand during that time and there were no concrete evidence or identifiable victim in relation to the complaint. As such, D failed to address Ms Fung’s complaint on the potential insurance fraud incident. I accept D’s explanation on this matter.

110.  Further, there were no direct and substantial evidence submitted by P showing that there was indeed close affiliation between Mr Fan and D. Nor were there any evidence showing that Mr Fan was directly involved in this present defamation case and thus be able to provide any material evidence.

111.  Most importantly, I do not see how any alleged close affiliation between Mr Fan and D, even if true, would have any direct bearing on the issues raised by P against D in the present proceedings.

112.  As such, I find that adverse inference against D for not calling Mr Fan should not be drawn.

Mr Lan

113.  Throughout the trial, Mr Lan was mentioned multiple times by P’s witnesses during cross-examination. The common feature of the evidence given by P’s witnesses was to distance themselves from key decisions of P and defer heavily on Mr Lan as the key decision-maker. This was particularly so in the case of Dr Wang. In answers to the questions posted by the court to her at the end of her oral evidence, Dr Wang tried very hard to distance herself from the sole director of P, ie Mr Lan. She said she was merely an employee, not a director of P. Nor was she a shareholder. Dr Wang confirmed that the decision to sue D was Mr Lan’s and not hers. As far as day-to-day operation and on the business/management side is concerned, she said she took instructions from Mr Lan. She was only responsible for the “front line work” of the Clinics, like how to deal with and face the customers. Specially, Dr Wang stated that for the “covert operations” against P’s competitors / rival companies, the directions were given by Mr Lan. She also confirmed besides Mr Lan, there was no other director in P.

114.  Significantly, it was only brought to the attention of the court by D’s counsel at the closing submission stage of the trial that Mr Lan and Dr Wang had shared the same residential address as seen on the Annual Returns of “NuMe Limited” and “Wingy International Limited” (where Dr Wang was a director and shareholder of), dated 20 September 2017 and 22 May 2017 respectively. When questioned by the court, P’s counsel, after taking instructions from their client, provided an explanation from the Bar table and stated that Mr Lan and Dr Wang were previously married in 2008. They were later divorced in 2020/2022 and remained to be business partners as of the day of closing submissions. All these were not disclosed by Dr Wang and any of P’s witnesses during the trial. While what P’s counsel informed the court may be true, it is quite clear to me that Dr Wang was trying to hide the true relationship between her and Mr Lan throughout the case. This again demonstrates she has been far from being frank and honest with the court.

115.  P submitted that there are no law or regulation that a director is required to give evidence on behalf of a legal entity. This is true. However, the court should not disregard the important fact that Mr Lan was said to be the key person involved in crucial business/management decisions and the main operations of P, as stated by both Dr Wang and Ms Fung. He was also the person who decided to issue the present proceedings against D, according to Dr Wang. Furthermore, Dr Wang’s constant attempts to distant herself from the operation of P and from Mr Lan draw strong suspicions that these whole proceedings were issued out of an ulterior motive like retaliation against D or punishing him for what he did to Dr Wang back in 2018 when he made the complaint to the Medical Council. I cannot exclude such possibility without hearing any explanations from Mr Lan.

116.  In my judgment, there is little doubt that there had been “bad blood” between the parties prior to the events leading to the issue of the present proceedings, at least from P’s perspective. Dr Wang personally felt being “bullied” and “unfairly treated” by D for what he did to her when he made the complaint against her to the Medical Council in 2018 which subsequently led to her conviction. She stated so unequivocally in her evidence. She became rather emotionally distressed when asked about the matter by D’s counsel towards the end of the cross-examination.

117.  Moreover, P failed to provide any valid reasons to justify why Mr Lan was not in the position to give evidence. It seems to me that Mr Lan was hiding behind Dr Wang and the other P’s witnesses. In my view, he clearly would be a material witness in this case whose evidence will able to throw light on some of the key issues and events.

118.  In considering the above, I shall draw adverse inference against P for not calling Mr Lan to give evidence in this case.

ISSUES TO BE DECIDED

119.  The issues identified in this case are as follows:-

(1) What are the meanings of the Offending Words and whether they were defamatory.

(2) Whether D could rely on the defence of justification.

(3) Whether D could rely on the defence of fair comment.

(4) Whether D could rely on the defence of qualified privilege.

(5) Whether D is liable for malicious falsehood.

(6) What relief would be appropriate should P succeed in the causes of action.

ISSUE 1 – MEANING OF OFFENDING WORDS

The natural and ordinary meanings

120.  There was no dispute between the parties as to the precise words used at the Press Conference and in the Press Release.

121.  Both parties agreed in the JSUF that the Offending Words has the following meanings:-

“P:

(a) is a “beauty parlour” (as defined under Cap 599F or otherwise);

(b) knowingly and deliberately sought to pass off as a “clinic” so as to circumvent or breach the restrictions under Cap 599F;

(c) jeopardised the health and safety of the public;

(d) P was only concerned with its own financial interests; and

(e) committed a criminal offence under Cap 599F.”

122.  D further accepts the following pleaded meaning in its opening submission §33:-

“(3) P dishonestly and willingly sought to mislead the public into believing that it was a “clinic” as opposed to a “beauty parlour”.”

The relevant legal principles

123.  P’s counsel referred the court to Independent Commentators Association Limited v Joint Publishing (HK) Co. Ltd. & Or [2021] HKCFI 743 §§20-22 on the general principles on determining the meaning of allegedly defamatory words:-

“20. The principles for determining the meaning of allegedly defamatory words are summarised in Bawang International (Group) Holding Ltd and Another v Next Magazine Publishing Ltd (unrep, HCA 1109/2010, 23 May 2016) per Lok J at §§26-34.

21. Regarding the nature of the inquiry:-

(1) The single meaning rule applies. This means the words complained of are deemed to bear only one natural and ordinary meaning, which is the meaning that the words would convey to the reasonable reader;

(2) In determining meaning, words in a publication are normally construed according to their natural and ordinary meaning. This does not involve a technical process of construction or analysis. The relevant inquiry is what meaning the words would convey to the mind of an ordinary, reasonable, fair-minded reader;

(3) Regarding the question of how the meaning conveyed by the words to the mind of an ordinary, reasonable, fair-minded reader is determined, Jeynes v News Magazines Ltd [2008] EWCA Civ 130 provides the following guidance at §14:-

(a)The governing principle is reasonableness.

(b)The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as a man who is not avid for scandal, and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(c)Over-elaborate analysis is best avoided.

(d)The intention of the publisher is irrelevant.

(4) Further, in some circumstances, the defamation does not lie in the actual words used, but in an inferential or implied meaning that the words are capable of bearing without the need to have recourse to extrinsic facts.

22. Regarding the scope of the relevant inquiry:-

(1) The article must be read as a whole. A reasonable reader is assumed to have read the whole article complained of.

(2) The context and circumstances of the publication must be taken into account.

(3) In reading a publication in its entire context, the court will also bear in mind the general tenor of the entire publication. The fact that the publication gives a generally uncomplimentary rendering of the plaintiff will obviously affect a reasonable reader’s understanding of the specific portions or statements in the publication.”

124.  See also Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 (CFI) at §42.

125.  The burden of proof falls on P to prove that the Offending Words were defamatory in their natural and ordinary meaning. It is then D’s burden to prove that such statement does not mean as pleaded or has an alternative meaning (Lucas-Box meaning).

The Disputed Pleaded Meaning

126.  Certain pleaded meanings were disputed by D. The disputed pleaded statements will be discussed as follows.

“(5) By continuing to operate despite the applicability of the Restriction to P, P ignored the risk to and jeopardised the health and safety of the public as well as that of doctors and nurses in the public sector.

(6) P had no regard to the safety and health of its clients or the public at large as well as that of doctors and nurses in the public sector, and is only concerned with or interested in its own financial and economic interests even when it was making money at the expense of the doctors and nurses in the public sector.”

127.  For completeness, the pleaded meaning (5) and (6) will be discussed collectively.

128.  P referred to the following Offending Words:-

“坦白講我覺得係呢個疫情咁嚴峻嘅期間，同埋大家都係見到近日都會有一啲有提供美容服務嘅處所，尋日Salon嗰度，都有啲爆發嘅情況，咁公營醫護嗰個壓力其實係好沉重”

“…但如果你問我自己，考慮到嗰個人流上啊，其實我覺得大型嗰啲美容院嗰個風險高啲，因為個人流多丫嘛，係咪先，同埋四方八面，所以我一講加風險嘅情況係好多…”

“為左牟利... 唔配合個防疫政策...等同吃緊公營醫護人員嘅血饅頭…”

“…如果佢哋申請日間醫療中心…牌照的時候，有呢啲咁不良嘅紀錄，當全城諗住抗疫咁嚴重的時候，佢都違反，政府係咪真係有信心佢哋可以好乖乖地遵守嚟緊嗰個牌照入面嗰啲要求呢？我係一個好大的問號，我呼籲政府要積極考慮唔好發牌比呢啲公然違規，公然為左賺錢…的醫生或處所，要打擊呢啲害群之馬”

129.  P submits, in its closing submission, that D made references to 「公營醫護」 (English: “public healthcare personnel”) in the Press Conference, which is more commonly referred to as “doctors and nurses in the public sector”. P pointed out that D specifically isolated the “alleged law-violating premises”, which includes P, had placed burden on such 「公營醫護」. This suggests that the allegation that P has no regards to the risk of safety was not limited to the general public, but especially to doctors and nurses in the public sector.

130.  D submitted that D did not make any direct comment on P’s lack of regard to risk and safety of doctors and nurses in the public sector and that an ordinary hearer and reader would not draw an inference that P has ignored such risk to doctors and nurses of the public sector. D merely suggested that he believed bigger beauty parlours have a higher risk due to the flow of visitors, and given that there are more visitors coming from all areas. This would increase the risk (of infection).

131.  D agreed that the statement means P is only concerned with or interested in its own financial and economic interests. D accepts that the statement 「等同吃緊公營醫護人員嘅血饅頭…」 means P was making money at the expense of doctors and nurses in the public sector.

132.  In considering the full context of the Press Conference, I find the Offending Words do not indicate that P especially disregards the risk and safety of doctors. Although D’s intention of publication is irrelevant and should not be considered, in my judgment, an ordinary, reasonable and fair-minded reader would not interpret the Offending Words to mean that P especially ignored the risk to and jeopardised the health and safety of the doctors and nurses in the public sector. There are no words or context that could infer to such an interpretation. The Offending Words merely states that P, in operating during the Specified Period, increased the burden on doctors and nurses.

“(7) The Plaintiff is an irresponsible, law-violating and morally reprehensible entity.”

133.  Based on the following Offending Words, D agrees that an ordinary hearer or reader would infer the four premises mentioned in the Press Conference as irresponsible and law-violating entities, further jeopardizing the health and safety of the public, but submits that an ordinary person would not go so far as to determine the moral standards or conclude that those premises were morally reprehensible entities:-

“咁今日個記者會大家都知道啦，就住我係發現到而家係市面上有好多打住醫學美容既牌頭既一D 處所，可以係美容院，可以係一D 醫務中心，都係係呢段時間禁令期間照常營業，有一些係公開既營業，即係擺到明我係無事既，有些就係偷偷地明知故犯咁樣”

“睇左十幾間既美容院/ 醫療中心，或者總止係提供美容服務既處所，即係599F下面列出黎既一些（啲）處所咁去睇啦，咁我地就見到有一些（啲）公然違反禁令，有些（啲）是陽奉陰違，咁個情況我覺得係好惡劣，你諗下我地做十幾間，起碼有四間係有問題啦……”

“但我地見到有啲呢，依啲醫學美容嘅醫生、處所、公司呢，為左牟利呢，其實呢就完全唔配合個防疫政策，咁我就會覺得其實等同食緊公營醫護既人血饅頭，如果食衛局唔係認真處理，其實坦白講對業界好乖、好辛苦一齊配合的業界好唔公平，同埋對於我地前線打緊杖既公營醫護係極度不公平……”

“有好多美容業界都同我講，佢地都覺得好委屈...點解自己好乖咁停的時候，但會有好多，好似打住醫生排頭或有醫生做，就完全可以免疫呢，咁佢地就覺得非常之唔公平”

“我覺得政府應該好好諗一諗，今次出現問題嘅一啲醫療機構，又或者美容院，諗住做醫學美容嗰啲呢。如果佢地申請日間醫療中心又或者申請一D豁免診所牌照的時候，有呢啲咁不良嘅紀錄，當全城諗住抗疫咁嚴重的時候，佢都違反，政府係咪真係有信心佢地可以好乖乖地遵守嚟緊嗰個牌照入面嗰啲要求呢?我係一個好大的問號，我呼籲政府係要積極考慮唔好發牌比呢啲公然違規，公然為左賺自己錢，而去食公營醫護人血饅頭的醫生或者機構，我覺得要絕對打擊呢啲害群之馬。”

“有少少補充嘅，啱啱開記者會之前，就收到NuMe嗰個回應，我可以比大家，大家可以傳一傳，我好簡短講佢就話自己呢唔係美容院，跟住又話有唔同巡查都話冇問題......所以我唔認為佢個reply...佢好似重[仲]覺得自己冇問題咁，咁我覺得政府絕對係要...出嚟講清楚，好認真咁執法同調查。”

134.  It is P’s case that the meaning of the words conveys to the mind of an ordinary, reasonable and fair-minded reader, but not whether the readers themselves would determine the moral standard of P. Due to D’s repeated accusations of P’s law violating activity for commercial greed and allegation of P’s selfishness and irresponsibility towards public health and safety, P suggests that this is the interpretation D invited reasonable readers to draw.

135.  I find that it is simply far-fetched for a reasonable reader to perceive P as a “morally reprehensible entity” just from the Offending Words. The repeated accusations of P’s law violating activity for commercial greed and allegation of P’s selfishness and irresponsibility towards public health and safety would likely suggest that the potential violation of 599F is a serious matter and readers should pay close attention to such breach, rather than suggesting that P is a reprehensible entity that ignores all moral values.

“(8) P, as the manager of the CWB Clinic and TST Clinic (both of which purportedly fell within the definition of “beauty parlour” under the definition of Part 1 of Schedule 2 to 599F), including its doctors, had committed a criminal offence in contravention of section 9(2) of 599F.”

136.  This will be discussed in “Defence of Justification” section below.

“(9) P, as operator of private healthcare facilities and holder of a Day Procedure Licence providing, inter alia, medical injection treatments, violated 599F by providing beauty services.”

137.  P submitted the following relevant Offending Words:-

“咁今日個記者會大家都知道啦，就住我係發現到而家係市面上有好多打住醫學美容既牌頭既一 D 處所，可以係美容院，可以係一 D 醫務中心，都係係呢段時間禁令期間照常營業，有一些係公開既營業，即係擺到明我係無事既，有些就係偷偷地明知故犯咁樣，咁點解我會收到這些情況呢。”

“特別係呢個『非醫學目的而進行及涉及穿刺皮膚既美容程序』因為呢部份分其實都講得好清楚，凡刺穿皮膚就係要醫生做架啦，咁所以唔係話一個醫生、一個醫療機構，就可免責話我地這些係醫療程序，而下面個兩個係講美甲或者係一Ｄ咩呢，相對冇咁關事，A 個度好簡單清楚，總之就係凡親你既處所係會提供美容服務，例如打針，例如做咩HIFU 高能量或者其他，Ulthera，即個Ｄ都係，咁其實已經係中，其實已經係要關閉，唔應該係有任何既開，甚至你見到有Ｄ情況，可以上黎做左個測試先、檢測先，其實呢個都唔會容許，呢個係好清晰一個必須係要停，唔理你係唔係醫生，唔理你係唔係診所，咁呢個就係法例個度我想先同大家講。”

“有D 呢，有一間NuMe 呢就係話我地係診所黎架，醫療程序可以繼續做架。”

“見到 NuMe 佢就話我地本身係診所嚟嘅，所以可以繼續營業，Dr Reborn 都類似既，我地唔係美容院，我地係醫療機構，我地係醫療診所，醫生做係冇問題，即係講到個樣野係醫生做，完全唔駛理個599F，但呢個就唔係，點解我話醫生冇特權提供美容服務就係咁既意思。”

“但我地都見到其實好多啲小店，美容業界其實都好齊心抗疫，全部停曬架好多。有好多美容業界都同我講，佢地都覺得好委屈…點解自己好乖咁停的時候，但會有好多，好似打住醫生排頭或有醫生做，就完全可以免疫呢，咁佢地就覺得非常之唔公平。”

“咁但係不斷話自己係診所唔係美容處所，其實係會好誤導市民，市民會以為:「喂，你係咪真係醫療診所，我真係可以嚟…」，以致係個防疫係咪真係可以唔遵守，我覺得係一個好差的情況，政府係須要嚴懲囉…

…今次出現問題嘅一啲醫療機構，又或者美容院，諗住做醫學美容嗰啲呢。如果佢地申請日間醫療中心又或者申請一D 豁免診所牌照的時候，有呢啲咁不良嘅紀錄，當全城諗住抗疫咁嚴重的時候，佢都違反，政府係咪真係有信心佢地可以好乖乖地遵守嚟緊嗰個牌照入面嗰啲要求呢?”

“有啲機構都話緊自己係攞緊一啲嘅醫療機構相關的牌照。因為日間醫療中心一定要有一個醫務行政總監，一定已經有個醫生孭飛嘅，咁我覺得可以將個醫生孭飛送埋比醫委會，係做一個紀律研訊，我覺得呢個亦都係非常之緊要。最緊要就係，頭先我講啦，發牌嗰度呢，呢啲機構呢係呢啲咁關鍵的、全城咁艱難的情況，佢都公然違規，咁真係要發嗰個私營醫療機構相關的牌照，包括日間醫療中心或者一D 診所豁免係咪真係要比佢地，我覺得政府係要諗得好清楚。”

“有少少補充嘅，啱啱開記者會之前，就收到NuMe 嗰個回應，我可以比大家，大家可以傳一傳，我好簡短講佢就話自己呢唔係美容院，跟住又話有唔同巡查都話冇問題…第二就係話，有攞緊暫准的醫療機構牌照，話自己唔係美容院…話有啲姐係混淆嘅情況。咁我好簡單回應，其實都係看番599F，就係呢類服務係咪美容目的丫嘛。如果你係提供美容目的，係去打針，唔係urgent，其實就已經中架啦…都係要關閉架。”

138.  D submits that it will be difficult for an ordinary hearer or reader, after listening to the Press Conference or reading the Press Release, to arrive at such a conclusion. An ordinary hearer or reader would not have the knowledge that P was an operator of private healthcare facilities and/or holder of a Day Procedure Centre Licence. Accordingly, P’s claim on this front cannot succeed.

139.  With respect, I do not agree. Instead, I agree with P’s interpretation of the Offending Words.

140.  During the Press Conference, D mentioned that some Day Procedure Licence clinics were operating during the Specified Period while referencing P as one of the four “law-violating” premises in his speech. In the full context of the Press Conference and from the point of view of an ordinary and reasonable reader, it is likely that a reader would interpret P, as an operator of private healthcare facilities and a holder of a Day Procedure Centre License, has violated 599F through providing medical injection treatments for beauty services during the Specified Period. D failed to present a justifiable alternative meaning to P’s pleaded meaning.

“(10) P, dishonestly remained open for business during the Restriction while at the same time receiving subsidies under the Scheme.”

141.  The relevant Offending Words are as follows:-

“‘咁你問我原則上琴日政府都公佈左第四輪防疫抗疫資助，咁我既方向覺得要幫返D被迫停業既一D處所、食肆、美容院，我覺得係好正常，係好合理，因為真係要停，同埋真係為一個公共衛生既角度黎講，咁我地真係要有需要控制疫情，咁但係同時間，政府唔好忽略唔好當D個D業界呢其實就唔會出蠱惑既，唔會出貓既，你諗下wo就咁10幾間都已經起碼有4間都咁樣樣，咁所以我地覺得呢D絕對係需要嚴懲’

‘覺得停業你要比返D資助，可能租金掛勾或者有D必要開支，我覺得好合理，好多外國地方會咁樣做，並唔係你一邊收資助..可能收資助啦，另一邊就可以偷偷地做生意，咁樣絕對要嚴懲。’”

142.  D submitted that an ordinary hearer or reader cannot reasonably interpret the Offending Words to mean that P dishonestly remained open for business during the Restriction while at the same time receiving subsidies under the Scheme. It suggests that D was merely making recommendations on how the Government should manage distribution of the subsidy under the Scheme and made no specific reference to P. He further submits that an ordinary hearer or reader would not be aware of whether P was eligible for or had in fact received the subsidy under the Scheme.

143.  P submits that D’s submission does not stand. P is of the view that (i) P was expressly included in as the four “law-violating” premises during the Press Conference; and (ii) it is a misrepresentation to suggest D was only making recommendation on how the Government should manage distribution of the Subsidy.

144.  Again, D’s intention of publishing the Offending Words is irrelevant. In the full context of the Press Conference and from the point of view of an ordinary and reasonable reader, I agree with P’s pleaded meaning that P would be considered a dishonest entity which remains to operate during the Specified Period while receiving subsidies under the Scheme at the same time.

“(11) P, including its doctors, by providing, inter alia, medical injection treatments and high-energy based machine treatments is liable to a fine of HK$50,000.00 and six months’ imprisonment.”

145.  D submitted that D was reciting the Purported Legal Opinion provided to fellow beauty industry members and explaining 599F, further stating that an ordinary hearer or reader would not draw the meaning that it was referring to P and bore the meanings as pleaded.

146.  P submits the Purported Legal Opinion did not state that doctors of the law-violating premises would incur criminal liability. It only stated that “[i]f found guilty, the manager of the Scheduled premises may be liable…” (emphasis added). Secondly, the Purported Legal Opinion only stated that “colleagues who are actively practicing aesthetic medicine (particularly those who are manager or supervisor of the clinic) should strongly consider refrain in carrying out such procedures…” (emphasis original), which again, did not state that doctors would be punished for 599F violations. Lastly, D expressly stated that 「我覺得醫生都會有份」 (emphasis added), which was evidently D’s own conjecture.

147.  I agree with P. I find that D has included his own conjecture when quoting the Purported Legal Opinion. The Purported Legal Opinion only advise managers or supervisors of the clinics to refrain from carrying out the procedures. It did not state explicitly that doctors would be liable to a fine of HK$50,000.00 and six months’ imprisonment. D failed to submit an adequate alternative meaning to this pleaded statement. From the full context of the Press Conference, a reasonable reader would interpret that P and its doctors are liable to a fine of HK$50,000.00 and six months’ imprisonment.

DEFENCE OF JUSTIFICATION

148.  Defamatory imputation is presumed to be false until it is proven. The burden is on D to show that the imputation is substantially true should D wishes to rely upon the defence of justification.

149.  The principles of the justification defence are set out in Hong Kong Far Infrared Rays Association Ltd v Lam Hong Nam & Or [2021] HKCFI 3884 §§130-132 (B Chu J):-

“‘In considering the defence of justification, the court has to determine: (i) whether the defamatory bear the Lucas-Box meanings as contended for by the defendant; (ii) if so, whether as a matter of fact that any of all of the Lucas-Box meanings is true; and (iii) whether the proved meanings are sufficient to meet the libellous stings conveyed by the offending words. It is only when each of the stings is properly met with true facts that the defence of justification succeeds’: §130.

‘In establishing the defence of justification, the substantial truth of the imputation needs to be proven by the defendants. In other words, the defendants have to prove that ‘the main charge, or gist of the libel’ is true’: §§131-132.”

150.  Defamation Ordinance (“DO”) s.26 provides:

“In an action for libel or slander in respect of words containing 2 or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”

151.  As correctly identified by the parties, the underlying sting of the Offending Words is that (i) P is within the definition of “beauty parlour” under 599F; and (ii) had violated 599F by continuing operation during the Specified Period.

152.  Should a statement impute the claimant some involvement in criminal behaviour, as suggested from Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 (CFI), there are three Chase level meanings. Level One is where the claimant was guilty of the criminal acts; Level Two, where there are reasonable grounds to suspect that the claimant was guilty; and Level Three where there are grounds to investigate that the claimant was guilty:-

“(1) In respect of Chase Level 1:-

(a) It is the imputation of guilt that must be substantiated: Gatley on Libel and Slander, 12ed, §12-013 (p.405).

(b) Where a plea of justification asserts that P has committed a criminal offence, it is necessary to set out the nature of the facts relied upon “with the same precision as an indictment”: David Hunt v Times Newspapers Limited [2012] EWHC 110 (QB) §20; Foley v Ashcroft [2012] EWCA Civ 423 §§56-59 (English Court of Appeal).

(c) Chase Level 1 meaning does not mean P must have already been convicted. It is the allegation of the commission of the criminal act that suffices: see Gatley, supra, §12-013 (p.405) and footnote 121.

(d) A Chase Level 1 meaning, by nature, involves a serious allegation. The more serious the charge and its consequence, the more cogent the evidence must be to prove it. The logic behind this rule is that the more serious the allegation, the less likely it is that the event occurred: HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336 §72; Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 §§181-187.

(2) If the Offending Words carry a Chase Level 2 meaning, the following principles apply:-

(a) D cannot rely on events that occurred after the date of publication of in order to support a defence of truth.

(b) D must prove the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged. It is not sufficient merely to prove reasonable grounds to suspect their existence.

(c) It is impermissible to plead as a primary fact the proposition that some person or persons (e.g. law enforcement authorities) announced, suspected or believed P to be guilty.

(d) D may adduce hearsay evidence to establish a primary fact, but statements or beliefs of any individual cannot themselves serve as primary facts.

(e) It is necessary for D to plead allegations of fact tending to show that it was some conduct on P’s part that gave rise to the grounds of suspicion, unless there are ‘strong circumstantial evidence’.

See Gatley, supra, §§12-010 (p.402), 12-013 (p.405-407).”

153.  P argues that this underlying sting is of Chase level one meaning (ie where the claimant was guilty of the criminal acts), where D argues that it is a Chase level two meaning (ie where there are reasonable grounds to suspect that the claimant was guilty). D’s counsel submitted that D was merely suggesting P was guilty of the violation of 599F.

154.  In the JSUF, both parties agreed to the pleaded statements that “P was a ‘beauty parlour’ (as defined under Cap 599F or otherwise)” and that “P committed a criminal offence under Cap 599F”. This should not be ignored.

155.  D further reinstated these two statements as his belief during cross-examination. P asserts that the underlying sting would only have a Chase level one meaning and D’s submission that the underlying sting has a Chase level two meaning is bound to fail.

156.  As such, the burden lies on D to prove it is substantially true that (i) P falls under the definition of “beauty parlour” under 599F; and (ii) had violated 599F by continuing operation during the Specified Period.

Whether P falls under the definition of “beauty parlour” under 599F

157.  599F Sch. 2 Part 2 defines “beauty parlour” as follows:-

“beauty parlour (美容院) means any premises on which one or more of the following types of services are provided—

(a) chemical, mechanical or energetic procedure for beautifying purpose, including cosmetic procedures that involve skin puncture for non-medical purpose, on any part of the body (excluding hair on the head);

(b) nail treatment services (including manicure or pedicure service, nail extension, nail polish and nail art);

(c) hair loss improvement service (including hair transplant and hair weaving) for non-medical purpose;”

158.  In considering the definition of “beauty parlour” under 599F, it is noted that the legislation did not provide much guidance on the interpretation of “beauty parlour” under 599F. In essence, whether P falls under such definition, in particular subsection (a) of the definition, would be a question of law.

159.  The legislative intent of 599F should first be considered. As seen from the Explanatory Note of L.N. 31 of 2020, 599F was enacted such that the Secretary for Food and Health, in regards to the disease outbreak and overall situation, may issue directions through notice in the Gazette to (i) require catering business premises to cease selling or supplying food or drinks for onsite consumption, and to close whole or part of the premises where food or drink is sold or supplied for on-site consumption; (ii) restrict the operation of catering business; and (iii) restrict the operation of Scheduled Premises. The Prevention and Control of Disease Ordinance (Cap. 599) was later amended to include “COVID-19” as one of the infectious diseases (L.N. 46 of 2020).

160.  In considering D’s submission, I will take judicial notice that, due to the urgency and seriousness of COVID-19 pandemic in Hong Kong, the enactment of 599F was to cope with the COVID-19 pandemic.

161.  The second question would then be to consider the treatments or services P offers. As seen from advertisements on P’s website, P offers a range of aesthetic treatments, including but not limited to Belkyra, Botox and high-energy radiofrequency treatments. This was also mentioned in the “HK01” video clip posted on 18 December 2020. The video clip showed that a news reporter was going undercover to make an appointment at the TST Clinic. Dr Wang also confirmed that the “HK01” video clip was taken at the TST Clinic. In the clip, P’s employee mentioned that they do not offer facial treatments, but offers Ulthera, Thermage and laser machine – which are types of high energy radiofrequency treatments.

162.  Pausing here, P’s counsel raises the question that the “HK01” video clip and article are merely multi-layered hearsay evidence. I agree that weight on such evidence should be taken with caution. But there is no reason why the court cannot take them into consideration.

163.  Lastly, the third question would be what the purpose of Belkyra, Botox and high-energy radiofrequency treatments are. Based on the Report, Belkyra, Botox and high energy radiofrequency treatments are considered to be cosmetic procedures as such procedures are often performed for beautifying purposes. Procedures that are not for the treatment of diseases should not be regarded as medical treatments.

164.  §5.8(b) of the Report further stated that:-

“Procedures involving injections were of high risk of causing infections and complications. As such, all these procedures should be performed by medical practitioners, regardless of the purpose of the procedure. Examples of such procedures include items 1 to 8 and item 33 of Annex III.”

165.  Annex III of the Report was titled “List of 35 cosmetic procedures with potential safety concerns” while items 1 to 8 under Annex III has a subheading of “Procedures involving skin puncture”.

166.  Under cross-examination, Dr Wang agreed that “Botulinum toxin A injection” (item 2 of Annex III) referred to Botox treatment, and Belkyra treatment was one of the “Injection lipolysis” (item 7 of Annex III). This suggests that Botox and Belkyra treatments involves the injection of drugs, and are thus “cosmetic procedures” and “procedures involving skin puncture”.

167.  P submitted a range of arguments.

168.  Firstly, P submitted that they are by fact not a “beauty parlour” as (i) the Clinics are described as a “clinic” on their business registrations; (ii) the Clinics were not eligible for the Scheme because they were “clinics” managed or operated by medical practitioners providing consultation and/or medical services; (iii) the CWB Clinic was granted a Provisional Day Procedure Centre Licence (No. DP000135) and subsequently a Day Procedure Centre Licence (No. DP000135) by DH pursuant to the Private Healthcare Facilities Ordinance (Cap. 633) (“PHFO”); and (iv) that the TST Clinic was a clinic pursuant to section 6 of PHFO, notwithstanding the absence of a clinic licence. They also argued that they were in no way violating 599F as law enforcement officers (including from DH, Food and Health Bureau and the Police) visited the Clinics and inspected their business registrations and Dr Wang’s practicing certificate and found no violation.

169.  Secondly, Dr Wang argued that Belkyra and Botox treatments are medical treatments as they are to be administered by registered medical professionals. The medicine used for the Belkyra and Botox treatments are botulinum toxin and deoxycholic acid respectively, which are registered medicine under Pharmacy and Poison Regulations (Cap. 138A). Dr Wang further stated that Belkyra and Botox treatments can be used for both beautifying and medical purposes eg Bruxism (ie teeth grinding), sleep apnoea etc.

170.  Thirdly, Dr Wang argued that the definition of “beauty parlour” under 599F, in particular, “chemical, mechanical or energetic procedure for beautifying purpose, including cosmetic procedures that involve skin puncture for non-medical purpose” does not include “medical procedures (especially the injection of drugs) but merely refers to the common ‘facial treatment’ (eg removing acne with needles).”

171.  I should point out whilst the Government’s law enforcement actions may shed light on her own administrative practice or interpretation of law, they are by no means the definitive or best interpretation of the law. I will tackle each argument one by one.

172.  Firstly, P, as a matter of indisputable fact, owns and manages the two licensed Clinics. Further, P, as a matter of indisputable fact, also provides and offers Belkyra, Botox and high-energy radiofrequency treatments. It is well-established that Belkyra and Botox treatments are “cosmetic procedures” and “procedures involving skin puncture”. These procedures are considered “cosmetic procedures” on the basis that they are mainly used for beautifying purposes. As such, P is a “beauty parlour” under 599F. In my judgment, there is no contradiction between the Clinics being “licensed clinics” as well as considered to be “beauty parlours” under 599F at the same time. In my view, what is more important to look at is what actual services they offered or provided to their customers during the Specified Period rather than what licence(s) they were holding or what they called themselves. It is the substance not the form that matters.

173.  Considering the poor quality of the evidence given by P’s witnesses, especially Dr Wang, I do not believe that P had strictly complied with the rules. It is clear that P was trying hard to find a way to continue with its operation by providing beautifying service during the Specified Period, including offering the above treatments to its customers.

174.  Secondly, in regards to P failing its two applications in applying for subsidy under the Scheme, the eligibility of the subsidy under the Scheme should first be considered:-

“Eligibility criteria for beauty parlours and massage establishments

1. An eligible premises should provide at least one of the following services as its main business:

(a) Skin and facial care services;

(b) Weight control and slimming services;

(c) Nail treatment;

(d) Tattooing and/or piercing;

(e) Hair loss improvement and/or hairdressing;

(f) Body massage and/or spa treatment;

(g) Foot reflexology; and/or

(h) Other beauty, care, prettifying and/or massage service on any part of the body.

The above services are provided for non-medical purpose. Medical procedures performed by clinics operated by doctors or Chinese medicine practitioners are not eligible for the subsidy under the Scheme.

2. The applicant operates its business independently at a fixed location in Hong Kong.

3. The relevant premises and services of the applicant should be in operation before 10 April 2020.

4. The relevant premises is not eligible for other premises-based subsidy schemes under second round AEF, e.g. bathhouses, clubhouses or fitness centres.”

175.  To sum up, the eligibility criteria of the Scheme for “beauty parlours” would be: (i) the applicant is required to fall under the definition of “beauty parlour” under 599F; (ii) applicant should offer one of the listed services to its clients, where such services are provided for non-medical purpose and should be its main business; and (iii) any medical services performed by the clinics operated by doctors are not eligible for the subsidy under the Scheme.

176.  As stated in Dr Wang’s witness statement, P mainly provides aesthetic medical and surgical services and procedures to its patients. Further, P is the manager of the two registered Clinics. The two Clinics are identified by authorities as “clinics” pursuant to the PHFO. This suggests that P’s main business is providing medical procedures to its clients, while providing cosmetic procedures as well on the side. Thus, this suggests that P would not be eligible under the Scheme even if (i) P falls under the definition of “beauty parlour” under 599F; and (ii) P offers Belkyra and Botox treatments.

177.  Thirdly, there is no doubt that Belkyra and Botox treatments may be used for medical purposes and should be administered by registered medical practitioners. However, as stated by the Report, these treatments are mostly used for beautifying purposes and are cosmetic procedures. The fact that they are to be administered by medical practitioners do not disregard their main purpose of beautifying. In this regard, I do not find Dr Wang and Ms Chu’s evidence that they would only offer those treatments to their clients / customers for medical and not for beautifying purposes believable at all.

178.  Lastly, I find Dr Wang’s own interpretation of the legislation is without any basis.

179.  As such, I find that P falls under the definition of “beauty parlour” under 599F.

Whether P had violated 599F by continuing operation during the Specified Period

180.  D referred to the regulatory frameworks under 599F, and stated that if P falls under 599F, P should be closed during the Specified Period.

181.  Section 8(1) of 599F provides:-

“(1) For preventing, protecting against, delaying or otherwise controlling the incidence or transmission of the specified disease, the Secretary may issue a direction imposing requirements or restrictions, for a period specified in the direction, in relation to any or all of the following—

(a) the mode of operation of any business or activity carried on at any scheduled premises;

(b) the closing of any scheduled premises, or part of the scheduled premises;

(c) the opening hours of any scheduled premises on a day.”

182.  Section 9 of 599F states:-

“(1) The manager of any scheduled premises must comply with any direction issued under section 8(1) that is applicable in relation to the premises.

(2) A manager who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 6 months.”

183.  Section 2 defines “scheduled premises” as “any premises set out in Part 1 of Schedule 2”.

184.  Schedule 2 Part 1 includes “beauty parlour” as one of the “scheduled premises”.

185.  D relied on the fact that Ms Leung was able to make an appointment through Ms Chu for a face-slimming treatment with P during the Specified Period (ie the Mimi Decoy Operation) which indicates that P is still offering its beauty services to its clients during the Specified Period, thus had violated 599F. It is noted that Ms Leung never attended the appointment.

186.  It is D’s case that in the process of making the appointment with P in the Mimi Decoy Operation, as Ms Chu did not question its clients on whether they are making the appointment for medical or beautifying purposes, this suggests that P in fact did not differentiate the purpose of the appointment. Rather, P still offer all treatments, including Belkyra, Botox and high-energy radiofrequency treatments, regardless of the purpose, during the Specified Period.

187.  On the other hand, P submitted that P only remains to accept appointments for consultation with the doctor on duty during the Specified Period. When the client attends the appointment, the doctor on duty will then ask if the client is seeking treatments for medical or beautifying purposes. The doctor will then turn away the client in making appointments should they seek treatments for beautifying purposes. P further submitted that P stopped providing its beauty services after receiving the HW Legal Advice on or around 9 or 10 April 2020.

188.  The HW Legal Advice, inter alia, stated the following:-

“(6) The Government has expressly exempted, inter alia, hospitals and medical clinics from the definition of “massage establishments”. However, no such exemption has been given by the Government in respect of beauty parlours.”

(9) According to [599F], the services being regulated include “chemical, mechanical or energetic procedures” if they are (primarily) performed for the purpose of ‘beautifying’. Such procedures include, but are not limited to, “cosmetic procedures that involve skin puncture for non-medical purpose”. The scope of service of the services and procedures is potentially very wide.

(10) On the other hand, if the primary purpose of performing these procedures is to treat a medical condition (e.g. acne), such treatment being properly indicated, then even if the treatment incidentally has a beautifying effect, these procedures should not be subject to [599F].

(15) Out of caution, doctors should consider suspending performance of the services referred to in the Regulation between 10 to 23 April 2020, except that they may continue to perform treatments for medical purposes (see paragraph 7 to 12 above) […]”

189.  As I find P’s witnesses were unreliable and incredible, I will give little weight to the context and evidence given by them. I do not believe that they were telling the truth, at least not the whole truth, when it comes to whether they were still offering / providing treatments for beautifying purposes during the Specified Period.

190.  Further, as seen from the two notices regarding COVID-19 measures posted on P’s website, the first notice stated that as P’s Clinics are considered “clinics” under Hong Kong legislations, P will continue their business as usual. By 17 December 2020, P have uploaded their second notice on P’s website, stating that their beauty services have been suspended in accordance with the Restriction imposed by the Government.

191.  There were no valid reasons given by P’s witnesses on why the second notice was not immediately posted on or around the day they received the HW Legal Advice, given that they said P have immediately suspended their beauty services accordingly. Dr Wang and Ms Fung further deferred responsibility to Mr Lan on the decision of lodging the notices on P’s websites, which did not assist P’s case in any way. In my judgment, it is clear that P was trying to continue to operate the Clinics for beautifying purposes by walking a very tightrope during this period.

192.  In considering all evidence and adverse inference is drawn against P due to the Mr Lan’s absence in the present case, on the balance of probabilities, I find that P has violated and in breach of 599F during the Specified Period.

193.  As both sub-issues are ruled in favour of D, the underlying sting has been proven to be substantially true. I therefore find D has succeeded in establishing the defence of justification.

DEFENCE OF FAIR COMMENT

194.  The alternative defence that can be sought by D is fair comment. Defence of fair comment is not required to be considered should defence of justification succeed. However, for completeness, the defence of fair comment will be discussed here.

195.  Counsel on both sides referred to legal principles set out in Cheng & Anor v Tse Wai Chun (2000) 3 HKCFAR 339 (CFA):-

“(1) A defendant who wished to rely on the defence of fair comment must prove that: (a) the comment was on a matter of public interest; (b) the comment was recognisable as a comment, as distinct from an imputation of fact; (c) the comment was based on facts which were true or protected by privilege; (d) the comment explicitly or implicitly indicated, at least in general terms, what were the facts on which the comment was made; and (e) the comment was one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: 347B-J.

(2) If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege: 347D.

(3) The burden of establishing the fair comment defence is on the defendant: 348A.

(4) The plaintiff may still defeat/rebut the defence by proving that the comments were actuated by malice: 348C.

(5) A comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed: 360I.

(6) Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it might be, even if it was the dominant or sole motive, did not of itself defeat the defence. However, proof of such motivation might be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed might be inferred: 360J-361A.”

196.  DO s.27 provides:-

“In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”

197.  P’s counsel submitted that D failed to plead and identify the comment that D is to be found in the words complained of and which D is seeking to defend as fair comment.

198.  P referred the court to Yung Chi Kin Larry v Leung Tin Wai [1993] 1 HKC 143 at 153C-F:-

“It is not in dispute that the law is set out in Control Risks v New English Library 1990 1 WLR 183, 189A–D, Nicholls LJ, with whom Sir George Waller and Dillon LJ agreed, put it this way:

In my view, the starting point is to identify the comment the defendants say is to be found in the words complained of and which they are seeking to defend as fair comment. At once, one runs into difficulty with the pleading as drafted. Nowhere … does the pleader identify this comment. This is manifestly unsatisfactory. A plaintiff is entitled to know what case he has to meet under a defence of fair comment, just as much as he is entitled to know what case he has to meet when faced with a defence of justification. Where justification is pleaded, a defendant is now required to spell out in his pleading the meaning of the words, which if it is their true meaning, he will seek to justify. These are the so-called ‘Lucas-Box’ particulars: see Lucas-Box v News Group Newspapers Ltd default … and the observations of Mustill LJ in Viscount De L’Isle v Times Newspapers Ltd default … In my view, by parity of reasoning, when fair comment is pleaded, the defendant must spell out, with sufficient precision to enable the plaintiff to know what case he has to meet, what is the comment which the defendant will seek to say attracts the fair comment defence.” (emphasis added)

199.  In Lam Yi Lai v Ip Kwok Chung (CACV 194/2009, 12.3.2010), Kwan JA (as the VP then was) made the following observations as to the defective defence of fair comment pleaded:-

“[25] Thirdly, if a defence of fair comment is raised (as so regarded by the Judge in paragraph 17 of the decision), the requirements of Order 82 rule 3(2) of the Rules of the High Court must be complied with, namely, that where the defendant alleges that in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, he must give particulars stating "which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true. […]

[46] [The judge below’s] approach is problematic, owing to the fact that the defence of fair comment was not properly pleaded.

[47] Firstly, the 1st defendant has not stated in the Defence which of the words in the relevant extract are statements of fact, and which comment. To rely on the defence of fair comment, the comment must be recognisable as comment, as distinct from an imputation of fact. In many situations, it may not be entirely straightforward to differentiate between the two.” (emphasis added)

200.  However, D’s counsel submitted that in straightforward cases – like the present case, where the position is clear, P, when confronted with a plea of fair comment, requires no further guidance as to which comment the plea is directed (per Nicholls LJ in Control Risks Ltd v New English Library Ltd [1990] 1 WLR 183 at 189D).

201.  D’s counsel explained that D has already pleaded at §§16-17 of the Re-Amended Defence that, to the extent the Offending Words were understood to bear the pleaded meanings in §§13(2)-(11) of the Re-Amended Statement of Claim, they are intended to be the subject of the fair comment defence. D has also pleaded the material facts in §16(1)-(6) of the Re-Amended Defence upon which he relied to establish the fair comments defence.

202.  I disagree with D’s counsel submission on this issue. As illustrated clearly in the legal authorities submitted, P has the right to know “what case he has to meet under a defence of fair comment”, and in order for P to do, D must specifically plea (i) what are the comments they wish to rely the defence on and (ii) what are the facts (Lam Yi Lai v Ip Kwok Chung (CACV 194/2009, 12.3.2010) §25, §§46-47).

203.  The present case is not a simple nor a straightforward case. The Offending Words in question involve an approximately 40 minutes Press Conference and a subsequent Press Release. The Offending Words include a mixture of facts and comments. It would be unfair to P should the defence of fair comment be relied upon without explicitly identifying the comments D is to plea.

204.  I am of the view that D has failed to identify the specific words complained of. As such, the defence of fair comments must fail.

205.  There is no need for the court to go through the scope of malice in the context of fair comment if the defence fails.

DEFENCE OF QUALIFIED PRIVILEGE

206.  The law on qualified privilege is discussed in the decision of the Court of Appeal in Lu, Lu & Lu v Chan & Hui [2017] 3 HKC 11 at §§84-87:-

“84. Qualified privilege stems from the public interest to protect free speech. As Lord Nicholls explained in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, at p 195A – B thus: ‘The essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication or particular information from a particular source. This is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the court has to assess whether, in the public interest, the publication should be protected in the absence of malice.’

85. For an occasion to attract qualified privilege, there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson put it in Adam v Ward [1971] AC 309, at p 334 in these terms: ‘A privileged occasion is … an occasion where the person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.’

86. In Reynolds v Times Newspapers Ltd, Lord Nicholls also stressed: ‘The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged.’

87. The existence of the common interest to found an occasion of qualified privilege is to be determined objectively: Adam v Ward, ibid. The interest must be real on an objective assessment. It is not sufficient that the maker of the defamatory statement honestly believes that he has a legitimate duty or interest to make it or the recipient to receive it, although such belief may have a bearing on malice: Hebditch v MacIlwaine [1894] 2 QB 54, per Lord Esher, MR at p 59.”

207.  D’s counsel further submitted the scope of qualified privilege was based on reciprocity of interest or duty addressed by the Court of Appeal in Blakeney-Williams v Cathay Pacific Airways Ltd [2011] 1 HKLRD 901 at §128:-

“The categories of relationship covered by this reciprocity of duty and interest tended to be limited (as Lord Nicholls pointed in Reynolds) to publication “to one person only or to a limited group of people”, primarily to communications of a private nature “commonly arising out of the necessities of some existing relationship between the maker of the statement and the recipient”: Gatley on Libel and Slander. But: “… the public as a whole was not generally regarded as having a relevant interest or duty. The media defendant (or other defendant who caused his statement to be published in that way) was in no different position from anyone else and had to show the relevant reciprocity of duty and interest. Such a duty only arose: ‘where it is in the interests of the public that the publication should be made and will not arise simply because the information appears to be of legitimate public interest.’ [London Artists Ltd v Littler [1968] 1 WLR 607, 619] A privilege for publication to the world at large was, in English law, the exception rather than the rule, even if the subject-matter was politics or public affairs.”

208.  D referred the court to Sections 61 (now repealed) and 86 of the District Council Ordinance (Cap. 547) (“DCO”).

209.  Section 61 DCO states that:-

“The functions of a District Council are—

(a) to advise the Government—

(i) on matters affecting the well-being of the people in the District; and

(ii) on the provision and use of public facilities and services within the District; and

(iii) on the adequacy and priorities of Government programmes for the District; and

(iv) on the use of public funds allocated to the District for local public works and community activities; and

(b) where funds are made available for the purpose, to undertake—

(i) environmental improvements within the District;

(ii) the promotion of recreational and cultural activities within the District; and

(iii) community activities within the District.”

210.  Section 86 of the DCO (version date: 1 January 2020) provides that:-

“A member of a District Council or a committee shall not be subjected to any liability, action, claim or demand by reason of anything done bona fide for the purpose of carrying into effect the provisions of this Ordinance or any other enactment conferring functions on a District Council.”

211.  In my view, the question of qualified privilege boils down to two sub-issues:-

(i) Sub-Issue 1: Whether the Offending Words were made on a privileged occasion, specifically whether the Offending Words were uttered “in due execution of [D’s] duty and function as a District Councillor (ie a member of District Council)”?

(ii) Sub-Issue 2: Whether the Offending Words were made with malice?

212.  D pleaded that he was a district councillor of Sham Shui Po District and through the Press Conference, he was merely carrying out his duty and function as a district councillor by advising the Government on matters affecting the well-being of the people of Sham Shui Po District, namely, the prevention of COVID-19 outbreaks.

213.  D attempted to argue that the law did not specify the forum where a member could advise the government and/or relevant procedures. D further invites the court to broaden the interpretation of Section 61 DCO as a restrictive construction of such legislation will compel district councillors to second-guess whether their remarks or conducts related solely to matters affecting their individual constituents or broader concerns involving the Hong Kong public, for fear of forfeiting the privilege conferred under Section 86 DCO.

214.  I disagree with D’s interpretation of Sections 61 and 86 DCO.

215.  As submitted by P, the Offending Words were not made on a privileged occasion. P’s counsel puts forward that only statements given by elected public representatives who hold positions in electoral/public bodies would be considered to have made the statement at a privileged occasion, in which such representative is acting in his or her duty in that capacity.

216.  Further citing Horrocks v Lowe [1975] AC 135, Lord Diplock held that:-

“… [W]hat is said by members of a local council at meetings of the council or any of its committees is spoken on a privileged occasion. The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and as long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism.” (emphasis added)

217.  Any statements made by district councillors for its district are enumerated under Section 61 DCO. In my view, the Offending Words published by D in the present case was made on an occasion not covered by the defence of qualified privilege.

218.  D was, at material time, an elected district councillor of Sham Shui Po District, the Press Conference and Press Release was distributed in premises associated with the Democratic Party, with its logo in the background of the Press Conference. Yet, the Press Conference was held at 4/F, Hanley House, 778 Nathan Road (太子彌敦道778號恆利商業大廈4樓), which is in Jordan and not in Sham Shui Po. Both branches of P’s Clinics only operate in Causeway Bay and Tsim Sha Tsui and P do not have any business in Sham Shui Po District.

219.  In considering the facts above, I find that D was not holding the Press Conference on a privilege occasion. Further, D did not make such comments in “District Council” or during a “town-council”.

220.  Section 61 DCO should be interpreted as is and District Council’s function should be to advise the Government in relevance to its accounted district only.

221.  As such, I dismiss the defence on qualified privilege. I also note that there is no need for the court to consider malice in relation to the defence on qualified privilege should this defence fail.

MALICIOUS FALSEHOOD

222.  This is P’s second independent cause of action against D in the present case.

223.  For a claim in malicious falsehood to succeed, P has to show:-

“(1) The defendant has published about the plaintiff words which are false.

(2) The defendant did so maliciously in that either:

(a) he knew when he published the words that they were false or he was reckless as to whether they were true or not; or

(b) he did so for the purpose not of advancing his own interest but of injuring the plaintiff.

(3) Special damage has followed as the direct and natural result of the publication. But special damage need not be alleged or proved where the words were published in writing and were calculated to cause pecuniary damage to the plaintiff: s.24 Defamation Ordinance (Cap.21): Kaye v Robertson [1991] FSR 62 at p.67 per Glidewell LJ.”

See Hong Kong Wing On Travel Service Ltd v Hong Thai Citizens Travel Services Ltd [2001] 2 HKLRD 481, 491G-492A.

224.  DO s.24(1) provides:-

“(1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage-

(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or

(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”

225.  As to element (3) above,

(1) Special damage refers to pecuniary damage/damage capable of being estimated in money, such as loss of trade: Gatley, supra, §22-021 (p.778);

(2) The purpose of DO s.24 is to relieve a claimant of having to shoulder the evidential difficulties of proving actual damage: Ferguson v Associated Newspapers Limited (unrep. 3 December 2001), p.15(14); and

(3) The meaning of “calculated” in the phrase “calculated to cause pecuniary damage” means likely or probable in an objective sense. The question whether the words complained of are calculated to cause pecuniary damage, or financial loss, depends on whether, on the facts which the defendant knew or should have known at the time of publication, their publication was objectively likely to cause the claimant financial loss: Gatley, supra, §22-025.

226.  I will now consider the application of the malicious falsehood test.

Element (1): Falsity

227.  The underlying sting (i) P falls under the definition of “beauty parlour” under 599F; and (ii) P violated 599F were proven to be substantially true. Most of the pleaded statements stem from such underlying sting, as such these pleaded statements are dismissed. However, I turn to the following pleaded statements:-

“(10) P, dishonestly remained open for business during the Restriction while at the same time receiving subsidies under the Scheme.” (emphasis added)

“(11) P, including its doctors, by providing, inter alia, medical injection treatments and high-energy based machine treatments is liable to a fine of HK$50,000.00 and six months’ imprisonment.” (emphasis added)

228.  Although the underlying sting has been proven to be true, the above two statements are false.

229.  In reference to pleaded meaning (10), P did not receive subsidies under the Scheme. This is a fact.

230.  For the pleaded meaning (11), I refer to Sections 2 and 9 of 599F:-

“2. In this Regulation—

manager (管理人), in relation to any premises, means the person who is responsible for the management or is in charge or control of the premises;

9. (1) The manager of any scheduled premises must comply with any direction issued under section 8(1) that is applicable in relation to the premises.

(2) A manager who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 6 months.”

231.  Generally speaking, medical doctors, as registered medical practitioners, are required to be present at the premises of a clinic in order for the clinic to operate. However, medical doctors are not required to be engaged in the operation and control of the premises, nor are they expected to manage the premises. Yet, in the present case, I find Dr Wang, as a registered doctor at P’s Clinics, was very involved in the day-to-day operations and management of P. I find that she can be considered to be a manager of P.

232.  However, the pleaded statement (11) states “including its doctors”. It is a fact that there are two registered medical doctors at the Clinics, Dr Wang was only one of them. There is no indication as to whether the other medical doctor is involved in any management of P. As such, the pleaded statement (11) is false, at least technically in this very limited sense.

233.  As such, in my judgment, the pleaded statements (10) and (11) are false (“False Statements”).

Element (2): Malice

234.  It would be considered malicious if either (i) D knows that he published the words were false or that he was reckless; or (ii) he did so for the purpose not of advancing his own interest but of injuring P.

235.  For pleaded statement (10), D admitted and accepted that he indeed received and read the clarification statement from P prior to the Press Conference that P did not receive subsidies under the Scheme. However, such information was published during the Press Conference. This at least shows that D was reckless in making the above statement. This suggests that malice element is satisfied for this statement.

236.  For pleaded statement (11), the Purported Legal Opinion did not suggest that doctors were managers of a clinic. It may be D’s honest belief that doctors are considered managers of a clinic. He stated that 「我覺得醫生都會有份」. There were little basis or evidence suggesting this, at least not at the time when he made that statement. I find that he was reckless in stating such statement. As such, the malice element is also satisfied here.

Element (3): Special damage

237.  Special damage are to be awarded to P for the False Statements.

238.  It is noted that P is not required to plead or prove special damage if the False Statements is calculated to cause pecuniary damage to P. Special damage would be the consequences of the direct and natural result of the publication.

239.  Other than claiming that there was substantial loss of profit and decrease of number of clients, P did not submit any other evidence at all in suggesting that such loss were direct and natural results of the publication of the False Statements.

240.  However, I note that as the False Statements were recorded and broadcasted by five media broadcast institutions. The same conference was further made accessible to the public on the internet and are now in permanent forms, including videos.

241.  As agreed and accepted by D during cross-examination, it is acknowledged that D has foreseen that the False Statements would be republished by broadcasting institutions and made into permanent forms, including videos.

242.  In George v Cannell [2024] UKSC 19, [2025] AC 871, it has been held that even if a plaintiff is exempted to prove special damage under Section 3 of the Defamation Act 1952 (which is equivalent to DO s.24(1)), there is only an irrebuttable presumption that financial loss was caused. There is, however, no presumption as to the amount of such loss. In such cases, a plaintiff can only recover damages which are more than merely nominal for financial loss, which he has actually suffered as a result of the publication. It is only when a plaintiff can further demonstrate its financial loss, can he be granted with special damage. In other words, if the court concludes that no financial loss has actually been caused, the claimant will only be entitled to nominal damages: §51 at 897.

243.  Further, in accordance with George v Cannell, supra, the words “calculated” shall mean “objectively likely to” and the test of likelihood is whether this was “more likely than not” based on the facts known or which should reasonably have been known to the defendant at the time of publication.

244.  In the present action, it is noted that D knew that his False Statements (or ought to have known) would likely cause financial loss to P. I therefore find that the publication of such False Statements would fall under the exemption of DO s.24(1).

245.  Even though P is exempted from proving special damage due to the publication as per DO s.24(1), in my view, P fails to demonstrate to the court the actual financial loss caused by the publication. As such, although liability is established, P would only be entitled to recover nominal damages.

246.  I am not satisfied that P has discharged its burden of proof that the loss of profit and decrease in number of clients were caused by the False Statements, whether directly or indirectly. Again, the Press Conference happened during COVID-19 pandemic. Most businesses in Hong Kong, especially those in the medical health and beauty industries, suffered greatly due to the necessary safety measures imposed by the Government. In this case, there is no credible evidence produced by P indicating that the False Statements have caused any direct pecuniary damage to P.

247.  In considering (i) D’s knowledge of how the statement would cause damage to D’s reputation; (ii) the very limited content of the False Statements; (iii) the likely minimal effect to P; and (iv) the dire situation of COVID-19 pandemic, I am of the view that a nominal sum of HK$10,000 is reasonable to represent special damage in this case. I consider the main factor that caused the loss of P’s profits and customers, if any, was due to the COVID-19 pandemic and the orders by the Government to close the beauty parlours during the Specified Periods. I find that the effects of the False Statements, if any, would be minimal to P’s business.

RELIEF

248.  For the sake of completeness, I shall briefly deal with the relief that the court may grant had P been successful in establishing its claims under the defamation cause of action against D.

249.  P claims for the following relief: (1) damages (general and exemplary), (2) mandatory injunction order and (3) apology.

General damages

250.  The principles on assessing “general (compensatory) damages” are summarised in Oriental Daily Publisher v Ming Pao Holdings (2012) 15 HKCFAR 299 §§35-41 (Ribeiro PJ):-

“(1) The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused.

(2) The damages are said to be ‘at large’ since the exercise of assessment necessarily involves a substantial degree of subjectivity.

(3) It is not possible to list exhaustively all the circumstances that may bear on the assessment. However, certain factors have been identified as important. Thus, in John v MGN Ltd [1997] QB 586 at 607 Sir Thomas Bingham MR stated:-

‘In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way.’ (emphasis added)

(4) The list of relevant factors includes the following (citing Jones v Pollard [1997] EMLR 233 at 243):-

‘(a)The objective features of the libel itself, such as its gravity, its prominence, the circulation of the medium in which it was published, and any repetition.

(b)The subjective effect on the plaintiff's feelings (usually categorised as aggravating features) not only from the publication itself, but also from the defendant's conduct thereafter both up to and including the trial itself.

(c)Matters tending to mitigate damages, such as the publication of an apology.

(d)Matters tending to reduce damages, e.g. evidence of the plaintiff's bad reputation, or evidence given at the trial which the jury are entitled to take into account.

(e)Special damages.

(f)Vindication of the plaintiff's reputation past and future.’”

251.  In respect of a corporate plaintiff, notwithstanding the lack of evidence of any financial loss, substantial damages may be justified on the basis of the need to vindicate the plaintiff’s reputation: Applause Store Productions Ltd & Or v Raphael [2008] EWHC 1781 (QB) §76.

252.  As to the issue of republication, the plaintiff may claim damages against the original publisher for loss and damage arising from “re-publication” of the offending words, provided that the damage flowing from the republication was foreseeable and not too remote: Bawang International (Group) Holding v Next Magazine Publishing Ltd (HCA 1109/2010, 23.5.2016) §618 (Lok J); Gatley, supra, §7-052 (p.254, 256).

253.  D’s counsel submitted that in Well Born Real Estate Management Ltd v Lee Tak Lun Andrew [2023] HKDC 430 where the corporate plaintiff brought a defamation action against the defendant, an owner of the estate, for publishing 4 sets of defamatory statements in a WhatsApp Group. In assessing the quantum of general damages, HH Judge Harold Leong at §123 considered the following factors: (i) the reputation and standing of the corporate plaintiff; (ii) the size of the WhatsApp Group; (iii) the corporate plaintiff did not claim actual loss and damages caused by the defamatory statements; and (iv) the nature of the corporate plaintiff.

254.  P originally seeks for the loss of profits of P to be compensated. It was pitched at 25-30% of HK$84,361,402.99, where HK$84,361,402.99 was P’s 2020/21 fiscal year revenue (ie HK$21,090,350.75 to HK$25,308,420.90).

255.  I do not find P’s request in seeking such alleged loss of profits has any sound basis at all.

256.  Unlike Bawang International (Group) Holding Ltd and Another v Next Magazine Publishing Ltd (unrep, HCA 1109/2010, 23 May 2016) (“Bawang Case”), no parties in the present case brought in experts in assessing the potential losses suffered by P due to the “defamation”, nor did P file any substantive evidence in supporting the amount of loss they suffered.

257.  While bearing COVID-19 pandemic in mind, P failed to provide any evidence on the direct causation between the alleged defamation and the loss of profits. It is well known fact that most businesses, especially those in the beautifying and medical health industry, was struggling during COVID-19 pandemic. In my view, it is absurd for P to seek for such large amount of damages when there are no contemporaneous documents in supporting this request.

258.  P’s counsel, at the closing submissions, very wisely abandoned such ludicrous and unrealistic claim and seeks HK$3 million instead by providing the court with comparative cases. The court was invited to take into account P’s alleged loss of profits as one of the factors instead.

259.  I will now turn and consider the amended general damages request at HK$3 million.

260.  P’s counsel referred the court to Bawang Case at §723, where Lok J ruled in favour of the plaintiffs. In considering the 1^st and 2^nd claimant’s background and establishments, 1^st and 2^nd claimant were awarded HK$2 million and HK$1 million respectively. At the time of publication, the plaintiffs could be regarded as successfully companies (§717).

261.  P’s counsel argued that P’s reputation and background is similar to that of the plaintiff in the Bawang Case, as such, sought a similar amount of general damages from the court.

262.  P also provided that in the defamation case of Chu Siu Kuk Yuen v Apple Daily Ltd [2002] 1 HKLRD 1, HK$3 million was awarded to the plaintiff. However, in this case the defendant was an individual, not a corporate entity. Further, the defendant issued an apology the day after publication.

263.  Another case where the plaintiff was a corporate entity would be Hong Kong Television Network Ltd v Asia Television Ltd & anor. (HCA 2217/2012, 20.11.2015) where Chung J found that the libel was serious, imputing on plaintiff’s conduct which can both be dishonorable and criminal. Such libel was made worse because of the defendant’s failure to retract it or to apologise. The plaintiff was awarded HK$1.3 million general damages.

264.  In considering the comparative cases, I find the request of HK$3 million on general damages preposterous.

265.  P submitted no evidence regarding on P’s operation, current or forecast financial records or any other documents at all in suggesting that they were in fact by size, by assets or by revenue similar to that of the plaintiff in the Bawang Case. The plaintiff in the Bawang Case has well-established businesses across both Hong Kong SAR and the Mainland. P only has two Clinics, ie the TST Clinic and the CWB Clinic.

266.  Having taken into account of the highly questionable conduct of P during the Specified Period and the dire situation caused by the COVID-19 pandemic, on balance, I find a sum of HK$100,000 to be reasonable as general damages in this case, had P been able to succeed in its defamation claim against D.

Exemplary Damages

267.  P is further seeking exemplary damages under its defamation claim against D.

268.  It is provided at §724 in Bawang Case that:-

“To make a defendant liable for exemplary damages, the claimant has to show that the defendant would have had to know that or be reckless whether he was committing a tort, and have had decided to publish, because the material advantages from publication outweighed the prospects of material loss. However, the fact that a defendant is engaged in an activity aimed at profit, for example publishing a magazine, does not of itself justify an award of exemplary damages. There must be something more specific than that.”

269.  Exemplary damages would be awarded if, and only if, the sum awarded for compensatory damages is inadequate to punish the defendant for his outrageous conduct, to mark the court’s disapproval of such conduct and to deter him from repeating it: see Gatley, supra, §10-028 (p.362).

270.  P submitted the following: firstly, the publication of the Offending Words was for D’s political and personal gains; secondly, D had no genuine belief in the truth of the Offending Words and had “deliberately refrained from taking obvious steps which, if taken, would have turned suspicion into certainty” and thirdly, the general damages would be inadequate to punish D for his outrageous conduct and exemplary damages should be awarded such to deter him from abusing his previous position as a district councillor, a “dominant person” or a “champion” in the beauty industry.

271.  I disagree with P’s submission. As I have found above, the publication was not done for D’s political and personal gains. The Press Conference was held for the benefit of the public health. Although D did fail to obtain formal legal advice prior the Press Conference to support his belief, such conduct would merely be an act of negligence, rather than recklessness. There was no evidence showing that he deliberately refrained from obtaining formal legal advice. Finally, I do not find that the publication of such Offending Words as an “outrageous conduct” that would call for the award of exemplary damages had P been able to succeed in its defamation claim against D.

Mandatory injunction orders

272.  P is seeking the publication of the Press Conference and the Press Release to be removed from the internet.

273.  The court has the power to grant a mandatory injunction ordering the removal of libellous statements: Cheng Chi v Chan Hok Man [1984] HKC 35, 40D-F, 42B-C.

274.  As submitted by D’s counsel, there is no real risk of repetition of the defamatory words as COVID-19 is no longer prevalent. Further, I am of the view that the chances are low for D to repeat the Offending Words in the future. As such, mandatory injunction order will not be granted.

Apology

275.  In Hong Kong, the court has the general equitable jurisdiction to compel a defendant to apologise to the plaintiff. HH Judge Kent Yee in Chow Wing Kai v Liang Jing [2021] 2 HKLRD 1189 at §§142-155 refused to exercise the discretion to grant an order of apology unless the defendant is willing to do so.

276.  CJ Li in Ma Bik Yung v Ko Chuen (2006) 9 HKCFAR 888 at §53 observed that “although the court has the power to make such an order (for apology) against an unwilling defendant, the court, even in the rare cases where the circumstances are exceptional, has to proceed with great circumspection.”

277.  I do not find it necessary, nor will I make an exception to this case in justifying that D is required to make an apology. I do not find the effect of the Offending Words on P to be that great to demand for an apology.

CONCLUSION

278.  As D has succeeded in defending the defamation claim through the defence of justification, I shall dismiss P’s claim insofar as it relies on that cause of action. There is no need for me to grant any relief under the defamation claim.

279.  As for malicious falsehood, I find D liable for the two False Statements made only and will enter judgment in favour of P in the nominal sum of HK$10,000 as special damage.

280.  Costs will follow the event.

281.  As P is successful in establishing the two False Statements under the malicious falsehood claim against D only, in my view, the real winner of this case is D. He has successfully defended the main defamation claim through the defence of justification and succeeded in defending most of the allegations made against him under the malicious falsehood claim.

282.  As most of the time of the trial had been spent on the different issues and defences fall under the defamation claim and the other unsuccessful malicious falsehood claim (as contrast to the part of the malicious falsehood claim which I find P had succeeded against D), I consider it is only fair that D should be entitled to the majority of his costs in defending the matter.

283.  I would roughly estimate that the parties had spent about 90% of the time in dealing with the defamation claim and the rest of the malicious falsehood claim and only about 10% on the part of the malicious falsehood claim which P eventually succeeded against D in this case, I therefore consider that a fair way of awarding the costs in this action is to order P to pay 90% of D’s costs and for D to pay P 10% of its costs, such costs to be taxed if not agreed, with certificate for 2 counsel.

284.  The above costs order will be made on a nisi basis. Any party who wish to vary the same should apply by way of summons within 14 days from the date of handing down of the judgment to do so. Further directions for lodging submissions will be provided by the court. The matter will then be dealt with by way of paper disposal.

285.  Lastly, I would like to thank counsel on both sides for their very helpful assistance in this case.

Annexure 1

“[We] checked out more than a dozen beauty parlours or medical centers, or premises that provide beauty services, that is, the premises listed under 599F. We saw some [premises] blatantly violating the restriction, some [premises] purported to comply with it. I think the situation is very bad. If you think about it, we did more than a dozen [checks], and at least four of them had problems…

We saw that, in order to keep making profits, medical beauty doctors, premises and companies did not comply with the restriction, and so I feel that this is equivalent to eating mantous made of blood from doctors and nurses in the public sector…quite frankly this is actually very unfair to those in the industry who are being good and are trying hard to be compliant, and it is also extremely unfair to the doctors and nurses in the public sector who are fighting the battle at the front lines, so I demand that the Food and Health Bureau investigate, follow up and punish, this is very important…

…So I warn the managers or persons in charge of those who violating 599F, I feel that doctors would also have involved, it’s actually a criminal matter, it can be subject to a level 5 fine, which is a fine of $50000 or imprisonment of 6 months. And like they say, there could be colleagues, which means those doctors, who may argue that the procedure is for medical purpose, it's actually giving injections, or high energy treatment, which is actually for a medical purpose, however, if the dominant purpose of the procedure is for beautifying and procedure being non-urgent, it would be difficult to argue under a legislative approach. It is stated very clearly, which is that if the purpose, the purpose is a beautifying one, then however you argue it, the procedure is not urgent and is not necessary, and it is very difficult to argue it under the legislative intention, so I ask them to strongly consider refrain in [refraining from] carrying out such procedure & while the Regulation is in effect, due to the public safety and [so as] not to incur criminal liability. That is, I remind them not to get involved, not to do it, otherwise you would be caught up in criminal liability any time. What does it mean to be caught up in criminal liability, that is a doctor’s licence could be immediately gone, so it is stated very clearly, so their legal advisors have also stated it very clearly, and thus I feel that they cannot shirk responsibility at all, that is to speak very frankly like this, after I finish talking about the legislation and information which I know and which has been verified by numerous doctors and people in the industry, then I will talk about the investigation results.

Let’s first talk about the investigation method. So I carried out three rounds. The first round is very simple, so I told my colleagues to use their limited time to look, and they found a total of 13 of these beauty companies or clinics that you see, they may have simply typed ‘medical beauty’ or ‘medical beauty centre’ in google SEO, and then looked at what their Facebook or other social media says about the period of suspension of business. So some didn’t say anything at all; some, like a place called NuMe, said that they are a clinic, and medical procedure can continue to be carried out…

We heard from NuMe that it claims that it is a clinic and thus they can still operate…

I personally understand the beauty parlour industry is going through a very difficult situation. Because of the temporary closure of business, especially those middle-small scale beauty parlours, frankly speaking, they couldn’t earn any money. They couldn’t advertise. Their business often depends on the existing customer. They have limited human resources. But if you ask me, considering the flow of visitors, I think that large-scale beauty parlour carries a higher risk (of infection). It has more visitors coming from all areas. We can see a lot of small-scale beauty parlour are fighting the disease together full-heartedly. They have suspended all their business. A lot of members of the beauty parlour industry told me they felt wronged. They questioned why, when they were being obedient, beauty services performed by doctors could be exempted (from temporary closure). They felt very unfair…

So you ask me, in principle, the Government announced yesterday the fourth round of anti-epidemic subsidy, so I feel that I want to help premises, restaurants, beauty parlours which were forced to suspend their operations. I think that it’s very normal and reasonable because [they] did close. And from a public health perspective, we really have the need to control the epidemic, but at the same time, the government should not ignore and should not think that the industry would not do tricks or cheat. If you think about it, out of a dozen premises, at least 4 of them are all like this, so I think [premises] absolutely need to be severely punished…

Keep saying that you are not a beauty parlour is actually very misleading to citizens. They will think that “hey, you really are a clinic and so I can pay a visit” and that they can disobey the restriction. I think this is an awful situation. The Government shall condemn such behaviours.

Considering the bill on Private Healthcare Facilities Ordinance (Cap. 633) has been passed, day procedure centre must obtain a license. I think the Government should consider, whether it can be confident that those non-compliant medical institution or beauty parlour which offers medical beauty services, when the entire city is fighting against the disease vigorously, yet they had a poor record of violating the restriction, will obediently comply with the licensing terms. I doubt it very much. I encourage the Government seriously consider not to grant license to those doctors or premises which for the sake of profit-earning clearly violate the restriction. The “rotten egg” of the industry shall be punished.

In summary, if the service was for beautifying purpose, such premise shall be closed whether or not it is provided by a doctor, if it involves skin puncture or high energy treatment. Otherwise, according to the law (Cap. 599F), one is liable for a level 5 fine and 6-months imprisonment. I encourage the Government, as there must be someone managing it, be it the director or the manager, I don’t know, but I think the Food and Health Bureau shall follow-up on those medical institutions or beauty parlours who clearly and knowingly violate the restriction.

There are a few points, I think we need to do, that is to deter. First, regarding the 4^th round of anti-epidemic subsidy we just talked about. I think we must make sure none of these institutions can successfully apply for the subsidy, or alternatively, when they do succeed in their application, we must make sure they are really good, and be truly cooperative. It could not be case where they take the subsidy money yet operate secretly in the meantime.

The Food and Health Bureau shall seriously follow-upon the alleged violation and convicted those rule-breakers, even imprisoned them. I think the managers, directors, doctors should be responsible. Some institution claims that they are obtaining medical institution related license. As a day procedure centre must appoint a Chief Medical Executive, there must be a doctor responsible for it. I think that doctor could be sent to the Medical Council for Disciplinary Inquiry. I think this is very important. Most importantly, even at this difficult time, those institutions still clearly violate the restriction. I think, the Government shall carefully consider whether relevant license of private health facilities shall be granted.

I have some additional information. Before the Press Conference, I have received a response from NuMe, they said they are not a beauty parlour. They have not been queried after investigation by authorities…Second, they are applying for a provisional license (for private healthcare facilities) and they are not a beauty parlour, there was some confusion. My simple response was that, looking at Cap 599F, these services are for beautifying purposes. If you offer skin puncture services for beautifying purpose, which is non-urgent, it falls under the prohibition. It must be closed…In addition, citing the legal advice obtained from the beauty parlour industry, some may argue that the procedure is a medical procedure, which was exactly what NuMe claimed, but that legal advice clearly said that under the legislation, it is very difficult to argue the purpose of the procedure as it is non-urgent. I think that NuMe still thinks that they are fine. I think the Government shall clarify, properly investigate and enforce the law.”

Annexure 2

Doctors do not have special privileges in providing beauty services

Must harshly punish premises which breach regulations by offering medical beauty services

(18 December 2020 released immediately at 14:30) With the fourth wave of COVID-19 pandemic, the government again tightened restrictions on the flow of people, and last week it announced that beauty parlours, massage parlours and fitness centres etc had to suspend business for two weeks until 23 December. But the convenor of the Hong Kong Beauty Industry Monitor and the District Councilor of Sham Shui Po District, Yuen Hoi Man, received complaints from the beauty industry and doctors and others, who claimed that there were a few premises which called themselves “medical beauty premises” who breached the order to suspend business and had continued to operate their business as usual. From 11 to 17 December 2020, Yuen Hoi Man’s team gathered publicly available information, and also applied the method of using a mystery customer to carry out three rounds of investigations at 13 premises which provided medical beauty services, and found 4 of those to be breaking the regulations, with some pretending to comply with the regulations when secretly not doing so, whilst others openly broke the regulations. Yuen Hoi Man takes the view that the relevant premises and companies are seeking to make personal gain, and were responsible for selfish in disregarding laws, regulations and anti-epidemic measures, increasing the risk of spreading COVID-19. The doctors and company directors involved cannot avoid responsibility, they did not care about the pandemic and openly sought personal gain, yet there are cases of infection which doctors and nurses in the public sector needed to handle, and this was equivalent to eating mantous made of blood from doctors and nurses in the public sector. If the Food and Health Bureau does not solemnly and seriously investigate this, that would cause great unfairness to other beauty parlours who abide by the rules and the doctors and nurses in the public sector who work hard to fight the pandemic in Hong Kong.

The present laws as stipulated

According to the premises listed in Schedule 2 of the Prevention and Control Disease (Requirements and Directions) (Business and Premises) Regulation (Cap. 599F) (https://www.hklii.org/chi/hk/legis/reg/599F/sch2.html), beauty parlours are a listed premises. And according to Legal Notice 33 of 2020 (https://www.elegislation.gov.hk/hk/2020/ln33!zh-hant-hk), the definition of a beauty parlour is:

Beauty parlour (美容院) means any premises on which one or more of the following types of services are provided ——

(a) chemical, mechanical or energetic procedure for beautifying purpose, including cosmetic procedures that involve skin puncture for non-medical purpose, on any part of the body (excluding hair on the head);

(b) nail treatment services (including manicure or pedicure service, nail extension, nail polish and nail art);

(c) hair loss improvement service (including hair transplant and hair weaving) for non-medical purpose;

Investigation results

The Yuen Hoi Man team conducted investigations in a three-pronged manner. The first way was the information announced by beauty parlours or premises providing beauty services on their websites or on social media. Secondly, a mystery customer would use Whatsapp / Wechat / Facebook / the telephone to make an enquiry to verify whether there were arrangements concerning suspension of business / carrying on of business, to see if there was any pretence of complying with the law when secretly not, and to book beauty services for a time that was before 23 December. Thirdly, with respect to the period that a booking had been made at the beauty parlour, the same mystery customer would call again to verify whether business could continue in spite of the order to suspend business.

In the first round, we discovered that NuMe claimed on Facebook and other webpages that its business was that of a medical centre, so it operated business as usual, whereas others indicated that they had suspended business or had not yet made any announcement. In the second round, we discovered that in addition to NuMe, the mystery customer succeeded in booking beauty services with Dr Reborn, Kinly Beauty and Virtus Medical. In the third round, the mystery customer called again to enquire as to whether business could continue in spite of the order to suspend business, and NuMe and Dr Reborn staff indicated that they were clinics / doctors handled matters, so they were medical matters and they could carry on operating. On the other hand, Kinly Beauty indicated that it could only carry out evaluation tests that day, and only after 24 December would a doctor handle the matter. Virtus Medical indicated that it was a plastic surgery clinic, offering limited services and certain treatment had been suspended at that time, but bookings could be made, and details of the investigation results can be found in the Schedule.

Opinion of the Democratic Party / Yuen Hoi Man

Yesterday, when the Centre for Health Protection referred to Glow Spa & Salon chat group information, it said it could not be precluded that customers had received other beauty services and might have taken off their masks. Yuen Hoi Man knows that the beauty services industry is facing a very difficult time, especially when medium to small size beauty parlours have to suspend business, and that for many people in the industry it is a question of “no work, no income”. Compared to large scale beauty parlours, small beauty parlours have relatively speaking fewer staff and people flow, and the risk of there being an explosion of infections is also lower. Many of those in the industry still unite to fight against the pandemic, and have closed during this difficult time. Yuen Hoi Man considers that assistance should be given to the medium to small size beauty parlours who have suspended business. But at the moment, there still remain quite a few large scale beauty parlours which openly advertise, claiming that they are clinics, not only misleading citizens, but also ignoring anti-epidemic measures. Quite a few medical beauty centres need to prepare to apply for the relevance licence for day procedure centres, and cannot possibly not know the definition of “clinic”. The government absolutely must attack the rotten eggs of the beauty industry.

Yuen Hoi Man said, 599F is extremely clear about the definition and boundary of what constitutes as beauty parlour, with the key being whether the services provided has a beautifying purposes, and at the same time it is stated that cosmetic procedures which involve skin puncture for non-medical purposes are included. And in 2013, the Department of Health stipulated what procedures are procedures that involve skin puncture, procedures that involve external application of energy, procedures that involve mechanical or chemical exfoliation of skin (https://www.dh.gov.hk/tc_chi/useful/useful_medical_beauty/files/WG_report_chi.pdf (p.24/29)). In other words, if services are provided for a beautifying purpose, the relevant premises also need to shut. Even if it is a doctor who administer an injection (for example Hyaluronic Acid, Botox or carrying out high intensity focused energy treatment), such premises are definitely breaking the law. Yuen Hoi Man warns, doctors and beauty parlours making claims of medical procedures definitely is not a shield, even if they were doing only beauty service check-ups or consultations that was still against the law, and if a manager of a premises breaches the directions of the Secretary of the Food and Health Bureau, that is a crime, and once convicted, that could lead to a level 5 penalty and imprisonment of 6 months.

Yuen Hoi Man considers that many beauty parlours have ignored laws and regulations, and have knowingly breached the laws and regulations, and it is absolutely necessary to severely punished them in order to have a deterrent effect. Yuen Hoi Man has already reported the situation of these breaches to the Food and Health Bureau. At the same time, Yuen Hoi Man has three suggestions. First, the government should roll out the fourth round of the anti-epidemic fund to premises which must suspend business, but the beauty parlours or premises which contravene the regulations absolutely should not receive any assistance. Secondly, the Food and Health Bureau should be strict in investigating situations where regulations are breached, and should declare guilty the managers of the relevant premises which have contravened regulations, that is the places which knowingly breach the regulations by continuing business, the relevant managers / company directors should be sent to prison to increase the deterrent effect. If any doctor participates in the provision of services or allows beauty parlour staff to carry on with business and conduct sales, he or she should be immediately handed over to the Medical Council for disciplinary proceedings. Thirdly, the Food and Health Bureau and the Department of Health’s Office for Regulation of Private Healthcare Facilities is presently dealing with the issuance of licences and waiver of licences for day procedure centres and clinics etc for private healthcare organisations, and should seriously consider not issuing licenses or waivers to premises and relevant companies who breach 599F.

Yuen Hoi Man calls on consumers and beauty parlour staff to report contraventions of regulations and beauty parlours and doctors who refuse to cooperate with the government’s anti-epidemic measures. Yuen Hoi Man knows that many beauty parlours staff have suffered a lot during the pandemic period, for example being forced to take no pay holidays yet having to go to work, Yuen Hoi Man very much welcomes reports from these suffering beauty parlour staff about the situations of breaches by beauty parlours. At the same time, Yuen Hoi Man considers that the Medical Council and the Medical Association should take the initiative to remind and warn doctors who provide medical beauty services about how they should practice medicine during this crucial anti-epidemic period.

Media contact:

Sham Shui Po District Councillor, convenor of the Hong Kong Beauty Industry Monitor, the Democratic Party’s consumer interests / healthcare policy or deputy spokesperson

Yuen Hoi Man 944XXXX

Beauty parlour / premises providing beauty services	First round of investigation Business operation hours announced on social media platform / website	Second round of investigation Mystery customer’s booking (Whatsapp / Wechat / Facbook / telephone enquiry)	Third round of investigation Query as to whether business could continue in spite of the order to suspend business
1. Nume	(Facebook+website) This is a medical centre business #business as usual	Sucessfully made booking by telephone 17/12/2020 14:00 Face slimming + see a doctor (telephone) + (Whatsapp) Already booked 17/12 14:00	A member of staff pointed out, “We are a clinic, so it’s business as usual.”