Ding Lik-kiu v. The Medical Council of Hong Kong
Read the full judgment text of CACV 50/1973 on BabelCite. This Court of Appeal judgment was delivered on 22 February 1974.
1. This is an appeal against a decision of the Medical Council that the appellant had been guilty of misconduct in a professional respect, as a result of which the appellant was reprimanded.
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CACV000050/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 50 OF 1973
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----------------- Coram: Full Court (Leonard, Li & Cons, JJ.) Date of Judgment: 22 February 1974 ----------------- JUDGMENT ----------------- Leonard J.: 1. This is an appeal against a decision of the Medical Council that the appellant had been guilty of misconduct in a professional respect, as a result of which the appellant was reprimanded. 2. The misconduct complained of was improper advertising by permitting the publication of the appellant's name and photograph in connection with an article in the February 1973 edition of a magazine "Kaleidoscope" contrary to Section 7 of the Warning Notice for the Guidance of Registered Practitioners issued by the Medical Council of Hong Kong. 3. Section or Paragraph 7 of the Warning Notice which, I gather, is issued to medical practitioners on registration does not expressly forbid publication of a doctor's name and photograph. Such publication in so far as it is forbidden, is forbidden by implication where it can be said to amount to improper advertising. 4. The hearing before the Council proceeded on the broad basis the publication of the name and photograph coupled with the article and its contents amounted to improper advertising. No objection to this course was taken before us. Indeed it is noteworthy that both the original and supplementary notices of appeal are silent as to name and photograph and in so far as the grounds of appeal are particularised they concern themselves with the article alone. Thus the original notice complains that the Council was wrong in law in holding that the appellant had knowledge of the contents of the article "forming the subject matter of the proceedings" and the supplementary notice that "the article complained of does not in fact and in law amount to advertising". 5. The article in question is headed "In The Spotlight Dr. Ding Lik-kiu". Immediately below this heading and preceding a brief biography of the appellant is his photograph. In the biography the following passages occur:
Following the biography there appears an interview in the form of question and answer and we are satisfied from the record that it was the result of a taped interview. In it Dr. Ding is credited with having made the following statements:
[It should be mentioned that at the time the article was published Dr. Ding no longer carried on this particular clinic.]
It is clear from the record and the Council must have been satisfied that a very substantial part of the article is in the appellant's very words recorded in the course of the interview on tape. Again it was not disputed that the information contained in that which is not the verbatim report of the actual words used by Dr. Ding came from information supplied by him. At first sight this would appear to dispose of the ground of appeal which suggests that the Council were wrong in deciding that the appellant had knowledge of the contents of the article proof for such knowledge being in the contention of the counsel for the appellant essential to the offence of permitting its publication. Again it appears to me to be clear that the article is a piece of blatent self-advertisment which would be highly embarrassing to the members of the medical profession in Hong Kong. The question is rather whether it amounts to improper advertising. 6. At the hearing the minutes of the prescribed meeting of the Preliminary Investigation Committee of the Medical Council were produced. At that meeting by way of explanation of the matter Dr. Ding had said that he had been a member of the Preliminary Investigation Committee and he had a clear idea of what was and was not advertising, whereas he felt that persons who complained about publications such as those currently before the Committee had little idea of the advertising aspect. He had again very carefully read Section 7 of the Warning Notice and he did not consider that he had contravened professional ethics as he was not drawing attention to himself as a doctor in order to attract more patients, what had been published had nothing to do with his practice and he had given the interview to the reporter as he had been given the impression that the magazine "Kaleidoscope" was not distributed in Hong Kong and in fact since receiving notice of the Preliminary Investigation Committee meeting he had endeavoured to purchase a copy but could not find one on sale locally; that he did not find out who the reporter was and had never even heard of "Kaleidoscope" until the reporter telephoned him; he assumed that the publication was an obscure magazine. The magazine was also exhibited on behalf of the complainant as was the Warning Notice for the Guidance of Registered Medical Practitioners together with a book called "General Medical Council Professional Discipline 1971" a publication of the Medical Council in Britain together with a similar document published in 1963. 7. We would say straightway that we regarded the publication of the General Medical Council Professional Discipline 1971 as a much clearer and better drafted indication of the nature of professional misconduct by advertising than is the Warning Notice published by the Medical Council of Hong Kong. 8. In the course of his able, if somewhat legalistic, argument counsel for the appellant relied heavily on the wording of the Warning Notice. The relevant portions of this notice are as follows:
The notice then deals with the signs which may be used by a doctor in connection with his practice. It goes on:
[It is not disputed before us that the word "or" where used in this portion of the warning was disjunctive and not conjunctive.] The notice goes on:
The wording of that passage which sets out the matters which the Council takes into consideration "in determining whether or not any particular course of conduct constitutes advertising or canvassing" caused counsel for the appellant to argue that advertising should not be regarded as having taken place unless and until the doctor's professional advantage or financial benefit had been served. Admittedly when this portion of the Warning Notice is read in isolation it gives the impression that the Council should regard the behaviour in retrospect. This, however, would result in an absurd situation for the Council would have to await the effect of advertising before adjudication. The criterion envisaged must be whether the conduct is calculated to have such an effect and not whether it has had such an effect. The matter is dealt with more happily in the booklet published by the General Medical Council of Great Britain in 1971, the relevant portion of which reads as follows:
The warning Notice for the Guidance of Registered Medical Practitioners issued by the Medical Council of Hong Kong is not a statute or an instrument having the force of a statute. It is what its title indicates, a publication for the Guidance of Registered Medical Practitioners. Notwithstanding the fact that it is referred to expressly in the complaint the subject of investigation and therefore notwithstanding that it was for the complainant to show that Dr. Ding had acted contrary to it, we consider that one should not subject it to the strict interpretation which one would reserve for a statutory instrument, as the counsel for the appellant would have us do. Section 21 of the Medical Registration Ordinance empowers the Council if satisfied after due enquiry that any registered medical practitioner has been guilty of misconduct in any professional respect to order inter alia that he be reprimanded. That is the only statutory requirement and we are satisfied that when considering the Warning Notice one should look to the spirit of the guidance it gives rather than construe the words stringently. We have no doubt that any reasonably minded medical practitioner reading the Warning Notice would realise that when giving an interview to a member of the press or a reporter for any publication he must take steps fully to inform himself of the nature of that publication and fully to inform himself of the purpose for which the interview he gives is to be used. His duty is to ensure against improper usage or in the words of the Warning Notice itself to "take steps to ensure that the ethical codes are respected". A registered medical practitioner by reason of his training and qualification must be presumed to know these ethical codes. The essential function of any Warning Notice such as that under discussion is to remind him of these codes and certainly it cannot be used to provide a loophole or a justification for doing the very things which those codes would have him avoid. 9. In this case, it may well be that the extent and object of the publicity achieved were small but its probable result was to affect the future prospects of the appellant in his professional capacity. The "arrangements" to use the somewhat unfortunate word used in the Warning Notice, may not have, in fact, served to promote the appellant's professional advantage or financial benefit. It was, however, possible that they would do so. They were "calculated" to do so in the sense in which that word is used for example in the law relating to trade-marks. For these reasons we are convinced that the article complained of does amount to improper advertising. 10. It is also argued on behalf of the appellant that as he had never seen the article in the form which it finally took he could not be said to have permitted its publication; that one cannot permit that of which one does not know. He himself said that he had not expected it to take the form which it was published. He expected the reporter to write an article on his views on two topics: abortion and dangerous drugs. In the course of his evidence he said "I certainly was not prepared for the interview to be reported that way that appeared in the final article. And certainly not my background material, my education and very personal information about my father being an opium addict and so on and so on. Because I felt all this background information was not relevant to my views on these two topics in Hong Kong." He said he did not exactly remember whether the interviewer had promised him a transcript of the interview but he thought that it would be courtesy for them to send it to him before it was published. Again he said that he was certain that he had asked for it. There is however no doubt what soever that he sat for his photograph, that he willingly gave an interview which was tape-recorded and that his very words were reproduced in the article together with the very personal information which he and he alone could have supplied. It was then clearly his duty to ensure against improper use of that material which the Medical Council by their finding that he had been guilty of professional misconduct impliedly found that he had not done. 11. We are in no doubt but that the conclusion of the Council that the advertisement was improper is correct and dismissed this appeal. Representation: Mr. Martin Lee (Johnson Stokes & Master) for the appellant. Mr. Philip Shum, C.C. for the Crown/Respondent. |