DR CHUNG HO YIN ANDREWS v. THE MEDICAL COUNCIL OF HONG KONG

CACV 270/2021, [2024] HKCA 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2021

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL OF HONG KONG MADE ON 20 APRIL 2021)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is Dr Chung’s appeal against the decision of the Medical Council (“the Council”)  dated 20 April 2021 finding him guilty of two disciplinary charges: (1)  making unjustifiable comment(s)  in a video interview published in Apple Daily’s website on 18 July 2018, and (2)  sanctioning, acquiescing in or failing to take adequate steps to prevent the publication of unjustifiable comment(s)  in an article published in Apple Daily’s website on 17 July 2018, which comments the Council considered undermined public trust in the professional competence or integrity of other doctor(s).

BASIC FACTS

2.  Dr Chung has been registered as a Specialist in Emergency Medicine since 2010.  At the material times between July 2016 and July 2018, Dr Chung was an Associate Consultant of the Accident and Emergency Department at Queen Mary Hospital.

3.  Dr Chung was the author of a book titled “急症室的福爾摩斯II守護生命的故事” [Translation: “Dr Sherlock Holmes of the Emergency Ward II The Story of Safeguarding Life”] published in July 2016.  An update edition of the book, titled “急症室的福爾摩斯II守護生命的故事《增訂版》” [Translation: “Dr Sherlock Holmes of the Emergency Ward II The Story of Safeguarding Life (Expanded Edition)”] (“the Book”), was published in July 2018.

4.  The Book is a fiction, and the protagonist in the Book is a fictitious character called Dr Sherlock Holmes (“Dr Holmes”)  of Emergency Medicine.  In the Forward to the Book, it is stated that the contents of the Book are entirely fictional, and the aim of the Book is to use the fictional stories to reflect the reality (小說的目的皆是透過虛構的內容反映現實).  Dr Chung hopes that his stories would not only raise public awareness about some poor clinical practices, but also encourage improvement in the medical profession.  His primary goal is “to remind colleagues to put their patients’ interest first and [to] promote trust in doctor-patient relationships”[1]. According to Dr Chung, although the stories are fictional, they are inspired by real events.

5.  At around the time of Hong Kong Book Fair held in July 2018, Dr Chung was interviewed by a few media outlets, including Apple Daily, Hong Kong Economic Times and Hong Kong Economic Journal, about his book.  Subsequently, articles of the interviews appeared in the newspapers and their websites, including an article (“Article”)  published in Apple Daily’s website on 17 July 2018.  A video of a part of an interview (“Video Interview”)  was also published in Apple Daily’s website on 18 July 2018.

6.  In the Video Interview, which had been edited by Apple Daily with two narrators providing voiceovers, Dr Chung together with the narrators described a story about a young lady with stomach pain who, accompanied by her mother, consulted Dr Holmes.  The lady had earlier consulted a private doctor, who had failed to properly enquire about her medical history or carry out a proper physical examination, and made a diagnosis of severe peritonitis.  As a result, the young lady ended up spending some $20,000 on various unnecessary scans and tests.  When Dr Holmes told her that she merely had gastroenteritis, her mother remarked that the previous doctor had treated them as “搖錢樹” (cash cow)  rather than as human beings.  In the Video Interview, Dr Holmes commented that some doctors in Hong Kong engaged in “protective medicine”.

7.  The Article referred to the same story about the young lady.  It also mentioned a second story, about a male patient who received a phone call from hospital staff informing him, to his great distress, that his blood test revealed a high creatine kinase level and this signalled a severe heart problem.  The patient then consulted Dr Chung who, on closer examination, concluded that the high creatine kinase level was simply due to insufficient rest.  In the Article, Dr Chung criticised those doctors who engaged in “protective medicine”.  The 2 stories mentioned in the Video Interview and Article will hereinafter collectively be referred to as “the Stories”.

8.  Dr Chung said that during his interviews by Apple Daily and other newspapers, he had emphasized that although the stories in the Book were not real cases, they were based on his personal experience as a medical practitioner and were supported by real facts (我對每位記者都曾強調，該書是一本根據本人過往行醫經歷改編而成的小說，書中故事並非真實案例，但都有事實作為依據)[2]. He also gave evidence at the disciplinary inquiry before the Council that during his interview by Apple Daily, he had told the interviewers that he was speaking qua Dr Holmes in the Book and not in his personal capacity when sharing the Stories with them[3]. Having read/watched the Article and Video Interview as a whole, we consider it reasonably clear that (i)  in the Video Interview, Dr Chung was recounting a story from the Book, and not speaking in his personal capacity; but (ii)  the Article as published was written in such a way that suggested Dr Chung was recounting his own experience.

9.  On 25 September 2020, as a result of complaints received by the Council, Dr Chung was charged with a number of disciplinary charges arising out of the publication of, inter alia, the Article and Video Interview.  Two of the charges are relevant for the purpose of the present appeal:

(1)  The first case, No MC 18/428, concerned the Video Interview.  The charge against Dr Chung was -

“That you, being a registered medical practitioner, made unjustifiable comment(s)  in an interview published in the website of ‘Apple Daily’ on 18 July 2018 which, directly or by implication, undermined trust in the professional competence or integrity of other doctor(s).

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

(2)  The second case, Nos MC 18/453 & MC 18/455, concerned, inter alia, the Article.  The relevant charge against Dr Chung was -

“That you, being a registered medical practitioner, sanctioned, acquiesced in or failed to take adequate steps to prevent:-

(i)  the publication of unjustifiable comment(s)  which, whether directly or by implication, undermined trust in the professional competence or integrity of other doctor(s)  in:

…

(b)  an article published in the website of Apple Daily (蘋果日報)  on 17 July 2018 …

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

10.  The disciplinary inquiry of Dr Chung was heard by the Council on 1 March 2021 and 20 April 2021.

THE COUNCIL’S DECISION

11.  On 20 April 2021, the Council found Dr Chung guilty of the aforesaid disciplinary charges.

12.  In the written decision of the Council (“Decision”):

(1)  In respect of the Video Interview, the Council gave the following summary –

“[6] There is no dispute that the interview with the Defendant relates to the launching of his book entitled 急症室的福爾摩斯II守護生命的故事《增訂版》. During the interview, the Defendant talked about a story in which a young lady, accompanied by her mother, consulted him.

[7] The Defendant told the reporter that the private doctor, whom this young lady consulted the night before, made a diagnosis of severe peritonitis without taking detailed medical history and carrying out proper physical examination. After learning that this young lady was merely suffering from gastroenteritis, her mother remarked to the Defendant that the previous doctor had treated them as ‘搖錢樹’ (‘cash cow’)  rather than as human beings.

[8]  The Defendant further commented during this interview that some doctors in Hong Kong engaged in ‘protective (defensive)  medicine’.  Many things these doctors did were to protect themselves rather than to protect their patients.  What they wished to achieve by doing everything for the patients was that even if no abnormality was found, they could not be subsequently blamed for not exercising due diligence.”

(2)  In respect of the Article, the Council gave the following summary –

“[14] The article published in the website of ‘Apple Daily’ on 17 July 2018 under the headline ‘急症妙手出書諷醫療陋習 冀勉同業毋忙初心’ [Translation: “Emergency Expert published book to satire the bad practices of the medical profession to extort medical practitioners not to forget their original aspiration”] mentioned that the Defendant wrote down bits and pieces of emergency medicine practice and assessed through actual experience of patients[’] bad habits in the medical profession.

[15] This article referred to a story in the Defendant’s book about a young lady who spent some $20,000 on investigations like CT scan of her abdomen blood tests & etc. after being told by a private doctor that she was suffering from severe peritonitis.

[16] The Defendant was quoted in this article for telling the reporter that this was the first time he came across this kind of abhorrent extortion from patients and he also criticized this private doctor for disregarding the bottom line of ‘honour among thieves’.

[17] This article also referred to another story in the Defendant’s book in which a male patient suddenly received a phone call from a hospital staff informing him that his blood test revealed high creatine kinase level, which was indicative of severe heart problem, and had to go to hospital immediately. The male patient was then taking wedding photographs with his fiancée.

[18] The Defendant was quoted in this article as saying that myocardial infarction was not the only cause for increased creatine kinase level. The Defendant explained that diagnosis could not be made on results of investigations alone. The patient’s medical history and physical complaints also had to be taken into consideration. In the end, the Defendant found out from the male patient that the increased creatine kinase level was merely the result of not having sufficient rest.

[19] At the end of this article, the Defendant was quoted for his criticism of some doctors in Hong Kong who practised defensive medicine in order to avoid complaints or lawsuits in the future. Their intention was not to protect patients but themselves. Such a practice resulted in wastage of social resources and increase in medical costs.”

(3)  The Council set out Dr Chung’s response to the complaints contained in a letter written by his solicitors (Mayer Brown)  to the Preliminary Investigation Committee dated 22 April 2020, as follows –

“(a)  Dr. Chung’s answers in the interviews concern the contents of his book which, as mentioned above, is entirely a work of fiction. Although this is a work of fiction, it is based on real events and as such the stories are not fictionally created with the intention of undermining the professional competence or integrity of any doctor.

(b)  In the published interview, just like his book, there is absolutely no mention of any specific person, organisation or group. Accordingly, it would be impossible for Dr. Chung to make any unjustifiable comments which could serve to undermine the trust in the professional competence or integrity of any other doctor.

(c)  Some of the stories in Dr. Chung’s book, which are mentioned in the published interview, were based on the events as described by Professor Chan Ka Leung Francis in the Dean’s Column of The Chinese University of Hong Kong. Although the stories may mention examples of poor clinical practice, these examples unfortunately do exist in the medical profession and are not unjustifiably invented.

(d)  By commenting on examples of poor clinical practice, Dr. Chung hopes his stories can not only raise awareness for the public but also encourage improvement in the medical profession.”

(4)  The Council, whilst disagreeing with the Legal Officer (Government Counsel representing the Secretary)  that the freedom of expression was not engaged, pointed out that it was not absolute (§§30 and 35 of the Decision).

(5)  The Council agreed with the Legal Officer that Dr Chung had made unjustifiable comments in the Video Interview that “some doctors in Hong Kong had treated their patients as ‘搖錢樹’ (cash cow); and engaged in ‘protective (defensive)  medicine’ by putting their self-interests in front of the best interests of their patients” (collectively, “the Comments”)  (§37 of the Decision), and these comments would undermine the public trust in the professional competence or integrity of other doctor(s)  (§40 of the Decision).

(6)  The Council found that Dr Chung’s comments were “unjustifiable” because there was “no sufficient factual basis” (§45 of the Decision).  The Council’s reasoning for this finding, which goes to the heart of the present appeal, was set out at §§38-39 of the Decision –

“[38] The Defendant sought to explain in his oral testimony that these comments were made on the basis of what Professor CHAN Ka Leung, the Dean of the Faculty of Medicine of the Chinese University of Hong Kong, had written in several articles published in the Dean’s Column and Ming Pao Daily. We are not concerned in the present case with the propriety of Professor CHAN’s articles. But then again, we appreciate that there is often difference in medical opinion as to whether certain investigation(s)  would be beneficial to a particular patient. In our view, the real point is whether investigation is clinically indicated; and referral for investigation was made with the best interest of the patient in the forefront.

[39]  We agree that genuine and objective criticisms between doctors should not be restricted. However, the Defendant had in our view crossed the boundaries by making unjustifiable comments in the interview published in the website of ‘Apple Daily’ on 18 July 2018.  There was no sufficient factual basis for him to accuse other doctor(s)  of treating their patients as ‘搖錢樹’ (cash cow); and engaging in ‘protective (defensive)  medicine’ by putting their self interests in front of the best interests of their patients.”

(7)  The Council concluded that Dr Chung had, by his conduct, fallen below the standards expected of registered medical practitioners in Hong Kong, and accordingly found him guilty of misconduct in a professional respect in the first case (§50 of the Decision).

(8)  In respect of the Article, the Council held likewise that unjustifiable comments were published by Dr Chung accusing other doctors of treating their patients as “搖錢樹” (cash cow)  and engaging in “protective (defensive)  medicine” without putting the patient’s best interest in the forefront (§58 of the Decision).  The Council considered that the same reasons for finding Dr Chung guilty of the disciplinary charge in the first case applied to the second case, and further took the view that Dr Chung had failed to take any step, let alone any adequate step, to prevent the publication of the unjustifiable comments in the Article (§§58 and 59 of the Decision).  Accordingly, the Council found him guilty of the disciplinary charge in the second case (§61 of the Decision).

(9)  As for sentence, the Council made a global order that Dr Chung be reprimanded.

THE APPEAL

13.  Dr Chung’s Amended Notice of Appeal dated 28 January 2022 contains 8 paragraphs.  As elaborated in the Skeleton Submissions of Mr Abraham Chan, SC (together with him, Mr John Cheung)  dated 17 November 2023, two main grounds are raised in support of the appeal:

(1)  the Council was wrong to find that Dr Chung did not have sufficient factual basis to make the Comments; and

(2)  the Decision, which restricts Dr Chung’s freedom of expression, cannot pass the proportionality test.

THE ISSUE OF SUFFICIENT FACTUAL BASIS

14.  On this issue, Mr Abraham Chan makes 2 points:

(1)  The Council’s approach is fundamentally unsound in failing to properly understand the Comments in the light and context of the Stories which, although inspired by real events and concerns, were fictional in nature.  In such circumstances, it is misplaced to impugn the Comments for lack of “sufficient factual basis” when, seen in their proper context, (i)  the Comments are essentially thematic and cautionary in nature, made with reference to the actions of the unscrupulous, fictional doctors described in the Stories, which are ex hypothesi made-up and not grounded in reality, and (ii)  where the actions depicted by the Stories and highlighted in the Comments are indisputably both wrong and potentially damaging to health.

(2)  In any event, there was a sufficient factual basis for the Comments –

(a)  What suffices factually for any particular material or commentary must depend on the context.  The uncontradicted evidence here is that the Stories and thus the Comments were based on several articles by Professor Chan in Ming Pao, which had obvious parallels with the Stories. Professor Chan’s articles were factual accounts drawn from his own experience. The Decision wholly fails to grapple with this factual dimension, brushing the articles aside on the fallacious footing that “[w]e are not concerned in the present case with the propriety of Professor CHAN’s articles”.  Professor Chan’s articles provide a sufficient factual basis (if any is needed)  for the purposes of Dr Chung’s form of commentary.

(b)  Further, Dr Chung’s evidence is that he also relied on (i)  an article published by Professor Fok on defensive medicine, (ii)  his own experience over his last 20 years of clinical practice, and (iii)  his own online research, in writing the Stories.  Dr Chung further said that it was common knowledge that some doctors practise defensive medicine.  The aforesaid evidence was not addressed at all in the Decision.

15.  On behalf of the Council, Mr Anthony Chan, SC (together with him, Ms Sanyi Shum)  argues that the Council was correct in its approach in asking whether there was any sufficient factual basis for the Comments.  This is because:

(1)  The Comments were uttered by Dr Chung during an interview with Apple Daily to promote his book, which was not purely fictional but, according to him, “inspired by actual events … and to reflect on reality”.  Dr Chung also said that the Comments were based on facts and a phenomenon objectively existing and widely known within the present Hong Kong medical sector.

(2)  Thus, the Comments were not political or artistic speech.  Instead, they were speech to promote Dr Chung’s book for his commercial or personal gain.  They described matters concerning medical practice or conduct of Hong Kong doctors said by Dr Chung to be based on widely known facts.

(3)  It follows that the Council did not err in law in assessing whether the Comments were supported by sufficient factual basis.

16.  As for the question of whether there was a sufficient factual basis for the Comments, Mr Anthony Chan argues that:

(1)  Professor Chan’s articles were irrelevant.  At best, he alluded to anecdotes he heard about patients undergoing procedures considered by some doctors to be unnecessary.  However, isolated and unparticularised anecdotes are not facts, let alone sufficient factual basis of the existence of a fact or phenomenon described in the Comments that is said by Dr Chung to objectively and widely exist within the Hong Kong medical sector.

(2)  In finding the Comments were not supported by sufficient facts, the Council, being a specialist tribunal, exercised its expertise, experience and judgment to find (correctly)  that as a matter of fact doctors often disagree (for valid reasons)  on whether certain procedures are necessary.  Accordingly, it cannot be assumed that just because there are incidents where doctors hold different views on whether a particular procedure should have been administered on a patient that the doctors who recommend the procedure (i)  did not have a valid basis to recommend the procedure, and (ii)  must be engaging in protective (defensive)  medicine for their own interest or treating their patients as cash cows.

(3)  The Court should be slow to interfere with the Council’s finding of fact bearing in mind that it was a finding that (i)  was within the purview of its expertise and experience as it pertained to matters of medical practice and conduct, and (ii)  the Council was perfectly entitled and was reasonable to make in the circumstances.

17.  In respect of the question of whether the Council erred in its approach in asking whether there was any sufficient factual basis for the Comments, we do not accept Mr Abraham Chan’s submission:

(1)  Insofar as the Article is concerned, although the Stories were fictional in nature, as earlier noted, the Article was written in such a way that suggested Dr Chung was recounting his own experience. We bear in mind Dr Chung’s evidence that he had told the reporters during the interview that the stories in the Book were not real cases, and he was speaking qua Dr Holmes in the Book and not in his personal capacity when sharing the Stories with them.  However, the Council took the view that, having regard to the serious nature of the adverse comments made by Dr Chung, he ought to have been alert to the use and publication of the information he gave in the interview, but he had failed to take any step (let alone any adequate step)  to prevent the publication of unjustifiable comments (§§59 and 60 of the Decision).  The Council also took the view that Dr Chung’s Book juxtaposed reality and fiction, and readers of the Article could hardly distinguish between the two.  We consider that it was open to the Council to come to such views.

(2)  Insofar as the Video Interview is concerned, although it would appear that Dr Chung was speaking qua Dr Holmes in the Book, we consider that members of the public who watched and listened to the Video Interview could or would reasonably come to the view that the unprofessional or undesirable medical practices mentioned by Dr Chung were not purely fictional, but were based on some real cases or incidents.

(3)  In all, we consider that the Council did not err in its approach in asking whether Dr Chung had any sufficient factual basis to make the Comments.

18.  Turning to the question of whether there was a sufficient factual basis for the Comments, Dr Chung said that the Stories were based on or “inspired” by a number of articles published by Professor Chan in (i)  Ming Pao, and (ii)  the Dean’s Column in the official website of The Chinese University of Hong Kong (and also in a book published by Professor Chan in July 2018).  Details of the relevant articles were set out by Dr Chung at §29 of his witness statement dated 18 February 2021.  It is not necessary to summarise the contents of those articles in this judgment, save to mention that they refer to cases where some doctors in Hong Kong carried out excessive and/or unnecessary medical procedures or investigations for their patients costing them a lot of money, and practised “protective (defensive)  medicine”. According to Dr Chung, what Professor Chan wrote were not fictions, but reflected the existing reality of the medical industry in Hong Kong (由於陳家亮教授所寫的不是小說，這幾篇文章反映的是當前醫療界真實的狀況)[4].

19.  The Council dismissed the relevance of Professor Chan’s articles, not because it did not accept Dr Chung’s evidence that that his articles were not fictional but reflective of the real-life situation in Hong Kong, or that the phenomenon of “protective (defensive)  medicine” did not exist in Hong Kong, but on the basis that (i)  they were “not concerned … with the propriety of Professor CHAN’s articles”, and (ii)  there was “often difference in medical opinion as to whether certain investigation(s)  would be beneficial to a particular patient”.  In our view, neither reason could justify the Council’s dismissal of Professor Chan’s articles as being irrelevant to the question of whether Dr Chung had any sufficient factual basis to make the Comments.  In respect of the former reason, there was no basis given for, or suggestion of, any impropriety on the part of Professor Chan in relation to his articles or their contents.  In respect of the latter reason, the fact that in some cases there were, or might be, differences in medical opinion on whether certain medical investigation or procedure should be carried out or would be beneficial to a patient is nothing to the point.  Professor Chan’s articles plainly disclosed a phenomenon of unprofessional practice of protective (defensive)  medicine by some medical practitioners in Hong Kong. In our view, the stories recounted by Professor Chan in his articles could not be dismissed on the simple basis of genuine differences in medical opinion. 

20.  The fact that Dr Chung relied on what was said by Professor Chan in his articles instead of his own personal experience in making the Comments does not mean that they lacked factual support.  In any event, Dr Chung’s evidence, which the Council did not address in the Decision, was that the Comments were also based on own experience over many years of clinical practice[5], and that the practice of protective (defensive)  medicine by some doctors was a matter of common knowledge in the medical industry[6].

21.  Mr Anthony Chan argues that isolated and unparticularised anecdotes described by Professor Chan are not facts, let alone sufficient factual basis of the existence of the phenomenon described in the Comments that Dr Chung said “objectively and widely exist[ed] within the Hong Kong medical sector”.  However, nowhere in the Article or Video Interview did Dr Chung say that the practice of protective (defensive)  medicine was a widespread phenomenon within the medical industry in Hong Kong.  It is also not the Council’s finding that the Comments were unjustified because the materials relied upon by Dr Chung could not support an allegation of widespread unprofessional practice of protective (defensive)  medicine.  The Council found that the Comments were unjustified on the simple basis there was no sufficient factual basis for Dr Chung to accuse “other doctor(s)  of treating their patients as ‘搖錢樹’ (cash cow); and engaging in ‘protective (defensive)  medicine’ by putting their self interests in front of the best interests of their patients”.

22.  In our view, Professor Chan’s articles, reinforced by Dr Chung’s personal experience and knowledge[7], clearly provided some factual basis for the Comments.  Bearing in mind that (i)  the Comments concerned matters of general public interest, and (ii)  Dr Chung’s freedom of expression was engaged (as accepted by the Council), we have no hesitation in coming to the conclusion that the aforesaid materials constituted sufficient factual basis for the Comments.  The Council’s reasoning for the finding that there was no sufficient factual basis for the Comments is unsound, and cannot stand in the light of the materials and evidence before it.

23.  Having reached the above conclusion, it becomes unnecessary for us to consider the further question of whether the Decision, which restricts Dr Chung’s freedom of expression, could pass the proportionality test, or other alleged errors with the Decision referred to in Grounds 7 and 8 in the Amended Notice of Appeal.

DISPOSITION

24.  Dr Chung’s appeal is allowed.  The Council’s decision finding him guilty of the 2 disciplinary charges and the disciplinary award of reprimand dated 20 April 2021 are quashed.  Dr Chung shall have the costs of the appeal, to be taxed if not agreed, with certificate for 2 counsel.  The above order as to costs is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.