Dr Lee Yau Wing v. The Medical Council of Hong Kong

CACV 450/2020

[2022] HKCA 801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 450 OF 2020

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL MADE ON 7 AUGUST 2020)

_______________

_______________

Before:  Hon Kwan VP, Cheung and Au JJA in Court

Date of Hearing: 28 July 2021

Date of Judgment:  8 June 2022

__________________

J U D G M E N T

__________________

Hon Au JA (giving the judgment of the court):

A.  INTRODUCTION

1.This is the appeal by Dr Lee Yau Wing (“Dr Lee”) against the decision (“the Decision”) of the Medical Council of Hong Kong (“the Council”) dated 7 August 2020 in which he was found guilty of misconduct in a professional respect.

2.The charge (“the Charge”) laid against Dr Lee was as follows:

“That in or about September 2018, you, being a registered medical practitioner, sanctioned, acquiesced in or failed to take adequate steps to prevent the use of the title ‘視網膜和黃斑點手術專家’, which was not a quotable qualification approved by the Medical Council of Hong Kong and/or was misleading to the public, in an advertisement or article published on Headline Daily dated 24 September 2018.

In relation to the facts alleged, you have been guilty of misconduct in a professional respect.” (emphasis added)

3.Following an inquiry held on 7 August 2020, by way of the Decision, the Council found Dr Lee guilty as charged and issued an order of reprimand.  By an Amended Notice of Appeal (“Amended NoA”) dated 10 June 2021, Dr Lee appealed the Decision to this Court.

4.At the end of the hearing of the appeal, we reserved our judgment to be handed down in due course.  This is what we now do.

B.  BACKGROUND

5.The following facts are relevant.  They are taken from the Statement of Agreed Facts signed by Dr Lee and the Council on 7 August 2020, as supplemented by contemporaneous documents where appropriate.

6.The InnoTech Expo 2018 was held from 23 September 2018 to 2 October 2018 by the Our Hong Kong Foundation.  As part of the InnoTech Expo 2018, a special event (“the Event”) for the Mid-Autumn Festival involving different health topics was organised on 25 September 2018.

7.In August 2018, Dr Lee was invited by the Our Hong Kong Foundation and agreed to give a talk at the Event on the topic “「低頭世代」護眼攻略”.

8.On 24 September 2018, that is a day before the Event, an advertisement (“the Advertisement”) was published in Headline Daily to promote the Event.  In the Advertisement, Dr Lee was described, among others, as “視網膜和黃斑點手術專家” (“the Offending Title”), which was and is not a quotable qualification approved by the Council.

9.It is not in dispute between the parties that prior to the publication of the Advertisement on 24 September 2018[1]:

(1)  Dr Lee had sent a set of PowerPoint slides (“PPT Slides”) to the contact person of the organizer of the Event, one Madam Lam King Foon (“Madam Lam”)[2].

(2)  The PPT Slides related to the talk that Dr Lee would give at the Event.  One of the PPT Slides described himself as follows:

“香港中文大學醫學院眼科及視覺科學學系名譽臨床副教授

香港眼科學會　前任會長

香港十大傑出青年 (2009年)

希瑪眼科醫療控股有限公司　執行董事

希瑪林順潮眼科中心　香港業務總監”

(3)  The PPT Slides did not contain the Offending Title.  Further, the evidence is that Dr Lee never supplied the Offending Title for use by the organizer of the Event.

10.On 26 September 2018, the Council received a letter of complaint from “a group of concerned doctors” against Dr Lee for using the Offending Title to describe his expertise in the Advertisement.

11.Dr Lee was subsequently informed by the Medical Council’s Secretary that the Preliminary Investigation Committee of the Medical Council had decided that the complaint shall proceed to be considered by the Disciplinary Committee.

12.On 13 September 2019, Dr Lee made a statutory declaration (“Statutory Declaration”) denying, inter alia, that he had any prior knowledge that the Offending Title may be used or that there would be any promotional activities of the Event.  The Statutory Declaration also enclosed a letter dated 30 August 2019 written by Madam Lam corroborating Dr Lee’s version of events.

13.On 13 March 2020, a Notice of Inquiry was sent to Dr Lee stating that an inquiry was to be held into the Charge on 7 August 2020.  After the inquiry, Dr Lee was found guilty as charged on 7 August 2020.

C.  THE DECISION

14.Paragraphs 5.2.2.1, 6.1, 6.2 and 6.3 of the Code of Professional Conduct (2016 edition) (“the Code”) provide as follows:

“5.2.2.1 Practice promotion means publicity for promoting the professional services of a doctor, his practice or his group, excluding communication with registered medical and dental practitioners, Chinese medicine practitioners, chiropractors, nurses, midwives, pharmacists, medical laboratory technologists, radiographers, physiotherapists, occupational therapists and optometrists. Practice promotion in this context will be interpreted by the Council in its broadest sense, and includes any means by which a doctor or his practice is publicized, in Hong Kong or elsewhere, by himself or anybody acting on his behalf or with his forbearance (including the failure to take adequate steps to prevent such publicity in circumstances which would call for caution), which objectively speaking constitutes promotion of his professional services, irrespective of whether he actually benefits from such publicity.” (emphasis added)

“6.1 It is appropriate for a doctor to take part in bona fide health education activities, such as lectures and publications. However, he must not exploit such activities for promotion of his practice or to canvass for patients. Any information provided should be objectively verifiable and presented in a balanced manner, without exaggeration of the positive aspects or omission of the significant negative aspects.

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

6.3 Information given to the public should be authoritative, appropriate and in accordance with general experience. It should be factual, lucid and expressed in simple terms. It should not arouse unnecessary public concern or personal distress, or generate unrealistic expectations. Doctors must not give the impression that they, or the institutions with which they are associated, have unique or special skills or solutions to health problems. Information should not be presented in such a way that it furthers the professional interests of the doctors concerned, or attracts patients to their care.”

15.In the Decision, the Council found that Dr Lee had contravened the above provisions of the Code.  The Council’s reasoning was as follows:

(1)  It was agreed by Dr Lee that the Offending Title was not a quotable qualification approved by the Council.  The Council also found that the Advertisement would mislead readers into thinking that Dr Lee’s medical skill and expertise were more superior than other ophthalmologists[3].

(2)  On such bases, the Council characterized the issue for its determination as: “whether the circumstances under which Dr. Lee accepted the invitation to speak at the Event called for him to take reasonable steps to ensure that his professional title would not be misquoted in an otherwise bona fide health education activity”[4].

(3)  The Council held that the circumstances surrounding the said invitation called for caution on Dr Lee’s part as to how he might be introduced by the organizers of the Event.  In particular, the Council noted that “[g]iven the large scale of the Event, [Dr Lee] ought in our view to have anticipated some forms of promotion in the mass media about the activities of the Event including the Health Forum”, and therefore, Dr Lee was under a duty to take “reasonable steps” to ensure that his professional title would not be misquoted[5].

(4)  Having found that Dr Lee was under such duty, the Council also found that the duty had been breached because Dr Lee “did nothing in this respect”[6].

16.It is on the above bases that the Council found Dr Lee guilty as charged and issued an order of reprimand against him.

D.  THE APPEAL

D1.  Grounds of appeal and relevant principles

17.Mr Anthony Ismail for the appellant accepted that the Council correctly directed itself as to the burden and standard of proof in convicting Dr Lee and that the correct test for “misconduct in a professional respect” is whether the conduct has fallen short of the standard expected of the profession.

18.Mr Ismail also accepted that that the Council had properly characterized the issues before it, which were firstly, whether the circumstances were such as to call for the exercise of caution on Dr Lee’s part to prevent the misuse of his professional title, and secondly, whether such caution had indeed been exercised by Dr Lee.

19.Against the above background, Mr Ismail advanced five grounds of appeal against the Decision.  For the sake of convenience, they can be summarised as follows:

(1)  The Council had erred in finding that there existed any circumstance which would call for the exercise of caution on Dr Lee’s part to prevent the misuse of his professional title, there being no evidence at all that (a) Dr Lee knew that the Advertisement containing the Offending Title would be published or (b) Dr Lee knew of the scale of the Event or that promotional activities would be arranged for the Event (Grounds 1 and 2A).

(2)  The Council had also erred in relying on the “large scale” of the Event to conclude that Dr Lee ought to have anticipated some form of promotional activities would be carried out (Ground 2B).

(3)  The Council further erred in finding that Dr Lee failed to exercise reasonable care and “did nothing” in respect of how he might be introduced by the organizer of the Event to members of the public.  The suggestion appears to be that Dr Lee had exercised due care in ensuring that the Offending Title would not be used because such title was not contained in the PPT Slides sent to Madam Lam.  It is also irrelevant that Dr Lee had acknowledged on reflection that it would be cautious for him to remind the organizer of the Event as to the proper use of his professional title (Grounds 3 and 4).

20.From the above, it is readily apparent that the appellant is appealing against findings of fact made by the Council.  It is trite that for an appeal against the factual finding made by a disciplinary tribunal to succeed:

(1)  The appellant must demonstrate the finding of fact under challenge is one (a) for which there was no evidence in support, (b) which was based on a misunderstanding of the evidence, or (c) which no reasonable judge could have reached on the basis of the evidence before him: China Gold Finance Ltd v CIL Holdings Ltd (CACV 11/2015, 27 November 2015) at [19] per Lam VP (as Lam PJ then was).

(2)  When reviewing the findings of fact made by a disciplinary tribunal, the appeal court acknowledges the advantage enjoyed by the first instance body in judging the credibility of witnesses it does not have and adopts a restrained approach: Dr Chan Po Sum v Medical Council of Hong Kong [2015] 1 HKLRD 330 at [57] per Kwan JA (as Kwan VP then was).

(3)  The appeal court will further give appropriate weight to the fact that (a) the Council is a specialist tribunal, whose understanding of what the medical profession expects of members in matters of medical practice deserves respect, and (b) the Council has had the advantage of hearing the evidence from live witnesses.  Accordingly, the court should be slow to interfere with the decisions on matters of fact taken by the first instance body: Dr Chan Po Sum v Medical Council of Hong Kong [2015] 1 HKLRD 330 at [58] per Kwan JA (as Kwan VP then was).

21.We shall address the grounds of the appeal with these principles in mind.

D2.  Grounds 1, 2A and 2B

22.Underlying Mr Ismail’s submission in support of these grounds of appeal is the suggestion that actual knowledge of promotional activities or of the publication of the Advertisement is necessary for Dr Lee to be imposed with a duty to ensure that his professional title would not be misquoted in the circumstances of this case.  When asked by Kwan VP at the hearing, Mr Ismail emphasized that under this contention, even a “turning a blind eye” knowledge is not sufficient to find a duty to be imposed under the relevant provisions of the Code.

23.We are unable to accept these submissions.

24.The relevant and material part of code 5.2.2.1 provides that “Practice promotion in this context … includes any means by which a doctor … is publicized… by himself or anybody acting on his behalf or with his forbearance (including the failure to take adequate steps to prevent such publicity in circumstances which would call for caution), which objectively speaking constitutes promotion of his professional services…”. (emphasis added)

25.Upon a proper construction, given that this code adopts an objective standard to determine what amounts to promotion of the doctor’s professional services (which is the very subject matter to be regulated under this code), it is plain to us that whether “the circumstances which would call for caution”, upon which a duty will be imposed on the doctor to take adequate steps to prevent promotion, must also be intended to be assessed on an objective basis.

26.Indeed, when asked at the hearing, Mr Ismail rightly accepted that all that he was saying in his contentions was that the doctor should have actual knowledge of all the circumstances which objectively would call for caution.

27.In the present case, the Council identified at paragraph 15 of the Decision the following circumstances which would give rise to Dr Lee about the possibility that there would be promotion of his talk:

“In this connection, we note from reading the Advertisement that the Event was held at the Hong Kong Convention and Exhibition Centre during the period from 23 September 2018 to 2 October 2018. Given the large scale of the Event, the Defendant ought in our view to have anticipated some forms of promotion in the mass media about the activities of the Event including the Health Forum. It is therefore idle for the Defendant to say that Madam LAM did not mention to him about publication of any advertisement.”

28.Based on these circumstances, we agree that it was reasonably open to the Council to form the objective view that Dr Lee “ought… to have anticipated some forms of promotion… about the activities of the Event”, and therefore had a duty as required under the code to take adequate steps to prevent the misuse of his professional title in such promotional activities by the organizer of the Event.

29.As a related point, Mr Ismail submitted that the Council was not justified in relying on the “large scale” of the Event to conclude that Dr Lee ought to have anticipated some form of promotional activities would be carried out.  Mr Ismail says that the Council was wrong in its reasoning for two reasons:

(1)  Firstly, there is no logical connection between the scale of an activity and the likelihood of promotional activities being held in respect of such activities.  Thus, even if the Event was of a large scale, it did not mean that promotional activities would be held.

(2)  Secondly, if a “large scale” event calls for the exercise of caution (or the exercise of further caution) on the part of a doctor to prevent the misuse of his professional title, this would have the absurd effect of discouraging doctors from participating in large scale bona fide health education activities, which, by definition, would educate more members of the public and therefore better promote the public interest.

30.In view of our conclusion that the Council was entitled to conclude from the nature of the Event that promotional activities would foreseeably be arranged, it is strictly speaking not necessary to deal with this submission by Mr Ismail. For completeness, we will briefly explain why we are not persuaded by Mr Ismail’s submissions:

(1)  First, it is only common sense that the larger an event is, the likelier it is that the organizer would promote such event.  There is nothing illogical or against common sense about such an inference.

(2)  Secondly, whether a registered medical practitioner would be discouraged to participate in bona fide health education activities would depend on how onerous or extensive the duty to exercise due care is in any given circumstances.  Provided that the duty to exercise due care is kept within reasonable bounds, we cannot see why a registered medical practitioner would be discouraged to participate in bona fide health education activities just because he was under a duty to prevent the misuse of his professional title.

31.For the above reasons, we dismiss Grounds 1, 2A and 2B of the appeal.

D3.  Grounds 3 and 4

32.Grounds 3 and 4 of Dr Lee’s appeal relate to the issue of whether the Council was entitled to conclude that Dr Lee had failed to discharge his duty to take “reasonable steps” to prevent the misuse of his professional title because Dr Lee did “nothing” in this regard and thus was held to be in breach of the code.  As we indicated at the hearing, this is indeed the most pertinent issue raised in this appeal.

33.The Council’s finding is at paragraph 18 of the Decision:

“This is however beside the point. In our view, the circumstances under which the Defendant was invited to speak at the Health Forum called for him to exercise caution on how he might be introduced by the organizer of the Event to members of the public. And yet, the Defendant did nothing in this respect. Indeed, when being asked by us, the Defendant acknowledged on reflection that it would be cautious for him to provide Madam LAM with information on his professional title lest this might be misquoted.” (emphasis added)

34.In our view, the Council had no basis to find that Dr Lee “did nothing” to ensure that he would be introduced correctly by the organizer of the Event to members of the public.

35.As set out above, the undisputed evidence before the Council was that Dr Lee had sent Madam Lam the PPT Slides prior to the Event and prior to the publication of the Advertisement containing the Offending Title.  It is also undisputed that the PPT Slides did not contain the Offending Title in setting out how he would introduce himself[7].  In these circumstances, it is plain that Dr Lee had taken some steps to prevent the promotion of his practice by using the Offending Title as charged.

36.Indeed, at the hearing of the appeal, Mr Mark Chan for the respondent accepted that it could be said that Dr Lee had taken some such steps.  Faced with this, the focus of his oral submission was on whether such steps, in the particular circumstances of the case, could be said to be adequate in preventing the misuse of his professional title.

37.In relation to this, we note that the Council had never set out in the Charge or at the disciplinary proceedings what it said to be the “adequate steps” that should have been taken by Dr Lee in the circumstances of this case. Indeed, when the Legal Officer opened his case at the inquiry hearing, he was also stating that, from the evidence, they did not see what steps had been taken by Dr Lee to prevent the use of the Offending Title[8]. The case was thus run on the basis that Dr Lee had taken no step at all to prevent the use of the Offending Title, and he was convicted on that basis.

38.In this respect, we asked Mr Chan at the hearing what he would say to be the inadequacy of the step taken by Dr Lee in providing the PPT Slides to the organizers which contained a description of himself but not the Offending Title.  Mr Chan submitted that Dr Lee at the minimum should have also told the organizer to the effect that “In the doctors’ world, there is regulation of quotable titles.  Please let me know in advance how you are going to quote me”.  Mr Chan submitted that this constituted the minimum step that Dr Lee should have taken to be in compliance with the code.

39.In further support of this, Mr Chan reiterated that a requirement for advance confirmation was reasonable because the organizer of the Event would unlikely to be familiar with the relevant regulatory requirements.

40.To emphasize the importance of the correct use of quotable professional title, Mr Chan also referred us in the course of his oral submissions to the case of Tam Chi Ming v The Medical Council of Hong Kong [2008] 1 HKLRD 24, in which A Cheung J (as the Chief Justice then was) observed at [30] that:

“In order to avoid confusion to the public and to assist patients to make an informed choice of doctors, the [Medical Council] has decided that it is necessary to regulate the quoting of qualifications by doctors in their communication of information to the public. Such regulation is thought necessary to maintain public confidence in the medical profession and to protect the public from misleading information.”

41.Mr Chan’s submissions are not without force and there is no doubt that the quotable qualification scheme is important to protect public interest.  However, if taken to the highest, Mr Chan’s submissions would amount to requiring a doctor in all circumstances to require any potential advertising materials to be supplied to him first for vetting.  This in our view cannot be right as this would be imposing too onerous a duty on the doctor, which cannot be the intention of the Code (otherwise, this could have been expressly spelt out in the relevant codes). We do not think Mr Chan is in fact advocating such a proposition.  He indeed fairly accepted that whether this step is required is dependent on the particular circumstances of each case.

42.In the premises, whether a doctor is required to do so in order to satisfy the duty to take reasonable steps under the code 5.2.2.1 must be dependent on the particular facts and circumstances of each case.  This leads to the difficulty in the present appeal that Mr Chan is faced with in advancing the submissions summarized at [38] above.

43.As Kwan VP pointed out at the hearing, it was only reasonable and natural for Dr Lee to expect that the organizer, who was in receipt of the PPT Slides beforehand, would follow his personal descriptions set out in the slides and would not embellish and depart from them.  There was also nothing in the circumstances of the present case that might cause Dr Lee to doubt the organizer might not do so for whatever reasons, but instead would (as in the present case) somehow “embellish” the stated descriptions.

44.In this respect, it is also important to note that, as mentioned above, the Charge did not set out the specific reasonable or adequate steps (as what Mr Chan has now advanced) that the appellant ought to have taken under this code.  In the circumstances, the appellant was in any event deprived of the chance to adduce any additional relevant evidence to answer this allegation of breach to say or explain why it would not be reasonable to require him to take the step or steps urged by Mr Chan in the circumstances of this case.  For example, there may be evidence that the appellant might wish to adduce to say or explain why it would be impractical for him to do so.

45.As such, it would be wholly unsatisfactory and inappropriate for this court on appeal to uphold the conviction on an entirely new alternative basis not considered by the panel and in the absence of possible defence evidence.

46.For all these reasons, we are not satisfied that on the bases of the evidence before it, it was open to the Council to find that Dr Lee had taken no step to prevent the use of the Offending Title:

(1)  The subject matter of the Charge was whether Dr Lee had taken reasonable steps to prevent the use of the Offending Title.

(2)  In this regard, Dr Lee did not provide the Offending Title to Madam Lam.  On the contrary, he provided the PPT Slides to Madam Lam which did not contain the Offending Title but included the descriptions he had used to introduce himself.

(3)  It would thus be at least prima facie reasonable for Dr Lee to assume that the organizer of the Event would introduce him to members of the public as he would like to be introduced, ie, in accordance with the PPT Slides.

(4)  On the other hand, there is nothing in the evidence (and Mr Chan was unable to point to any such circumstance in his submissions) which suggests that it may be reasonably anticipated by Dr Lee that the organizer of the Event would not use the information about Dr Lee as provided in the PPT Slides but would instead use the Offending Tile or any other objectionable descriptions to introduce him.

(5)  In particular, the evidence is clear that Dr Lee had no other communication with Madam Lam or the organizer of the Event right up to the publication of the Advertisement, and therefore, Dr Lee could not have acquired any knowledge from his interaction with Madam Lam or the organizer of the Event that the Offending Title might be used in the Advertisement.

47.As for Mr Chan’s contention that Dr Lee should have asked the organizer to inform him in advance as to how it was going to quote him, we take the view that such steps would be unduly onerous in the particular circumstances of this case:

(1)  In effect, what Mr Chan was submitting was that a registered medical practitioner is under a duty to monitor how he would be introduced by a third party to members of the public, even where (a) the practitioner himself has provided detailed descriptions of himself and taken care not to supply an unquotable title, and (b) there are no other circumstances that would indicate an unquotable title might be used by the third party to introduce him to members of the public.

(2)  Such submission is tantamount to saying that a reasonable registered medical practitioner should, as a rule, anticipate that his professional title may be misquoted even after a correct resume has been supplied by himself, and therefore, he should invariably require a third party to provide advance confirmation on how he would be quoted (despite the supply of correct information by him).

(3)  In our view, this cannot be the intent of the Code which only imposes a duty to take reasonable steps on a doctor to prevent the misuse of his professional title.  Had there been any intent to impose an invariable requirement for advance confirmation, it would have been simple for the Council to state in the Code or issue a circular to the effect that doctors should invariably seek advance confirmation on how he would be introduced whenever he participates in bona fide heath education activities.  Yet, this is precisely what the Council did not do.

(4)  Indeed, as we have observed at [30(2)] above, imposing an onerous duty on a registered medical practitioner may unduly impede him from participating in bona fide health education activities in the public, where it can normally be anticipated that promotional activities may be arranged.  As Mr Ismail had stressed, doctors are encouraged to take part in these activities under code 6.1.

48.In the premises, even bearing in mind that the Council is uniquely placed to assess how best to protect and promote the interests of the public and therefore should be accorded a margin of appreciation in the conclusion reached by it[9], for all the above reasons, we are still not satisfied that the Council had sufficient evidential basis to convict Dr Lee for his breach of code 5.2.2.1 in taking no step to prevent the use of the Offending Title in the Advertisement

49.Accordingly, we allow the appeal under Ground 3.

50.We would however wish to emphasize that our above conclusion is based on and is restricted to the particular circumstances of this case and the way in which the Charge was formulated and prosecuted against Dr Lee.  This should not be understood as laying down a general proposition as to what may or may not amount to adequate steps taken by a medical doctor as required under code 5.2.2.1.  That would always be dependent on the particular circumstances of each case.  We are also not rejecting what Mr Chan has submitted in relation to the importance of the quotable qualification scheme adopted by the professional body in protecting public interest as summarized above.

51.In view of this conclusion, it is unnecessary for us to address the further issue under Ground 4 of the appeal as to whether the Council had erred by taking into account Dr Lee’s acknowledgement that on reflection he could have done more to prevent the misuse of his professional title.

E.  CONCLUSION

52.For the reasons given above, the appeal is allowed and the order of reprimand is set aside.

53.At the hearing, Mr Chan for the respondent accepts that costs should follow the event.  Accordingly, there will be an order that the Council do pay Dr Lee the costs of his appeal to be taxed if not agreed.

Mr Anthony Ismail, instructed by Mayer Brown, for the appellant

Mr Mark Chan, Deputy Principal Government Counsel of the Department of Justice, for the respondent