Keeson Shum v. The Medical Council of Hong Kong

CACV000073/1980

Registered Medical Practitioner - alleged misconduct in professional respect - advertising - political election bulletins containing details of hospital appointments and of unrecognised professional qualifications - appellant not directly responsible for publication but information supplied in circumstances implicitly authorising publication - appellant responsible for acts of delegate - finding of misconduct upheld.

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Coram: Sir Alan Huggins, V.-P., Cons, J.A. and Garcia, J.

Date of Judgment: 19 December 1980

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The Appellant appeals against a decision of the Medical Council of Hong Kong in disciplinary proceedings in which he was convicted on the following charges:

"That you being a registered medical practitioner, -

and that in relation to the facts alleged you have been guilty of misconduct in a professional respect."

It is not disputed that the bulletin contained the statements alleged, nor that, if the Appellant connived at the publication, he was guilty of misconduct in a professional respect.

2. The relevant history begins when the Appellant joined the Civic Association in 1976. Late in 1977 or early in 1978 he was appointed to the General and Executive Committees of the Association. It was at that time that he admittedly supplied the information reproduction of which is the subject matter of the complaint. In March 1978 the Appellant was invited to stand for election to the Urban Council as a Civic Association candidate. In the autumn of 1978, when the election was still some months off, the Appellant sought the permission of the Association to withdraw his candidacy, but he was persuaded to allow his name to go forward. The Election Bulletin published in January 1979 was for circulation to the thirty thousand odd persons whose name appeared upon the Electoral Roll. It was suggested by the Medical Council that those persons represented the class most likely to be affected by any improper advertising by the Appellant.

3. We think the contentions on behalf of the Appellant may be summed up in this way:

4. As the charge alleged "connivance", the Legal Adviser to the Council directed its members that

"Connivance in the context of the charges before the Council involves a knowledge and a taking of some active steps in the publication."

The Council have not stated that they did not accept this advice and they must therefore be assumed to have acted upon it: s.33(2) of the Medical Registration Ordinance. With respect, the advice given was obscure and not very helpful. What would the Council understand by "a knowledge"? We think they would probably take those words to mean a knowledge that the offending material might be published and the following words to mean that an active step in the publication of the offending material had to be shown.

5. The Council must have been satisfied that the Appellant knew from the outset that the information he was asked to supply was intended for publication as and when occasion arose. The Appellant's evidence was that he did not know that the Association was going to publish his personal attainments and that he believed the details supplied "were to be kept in the Civic Association as a file on me". It is apparent from the cross-examination that it was being suggested to him that the reason for keeping such a file was publication of its contents and that he should have given instructions to ensure that the offending material was not published. Mr. Peter Chan acknowledged that the information collected into the file was "intended for my information and whatever can be published" (sic) and it was implicit in his evidence that the information was kept up to date. We are, of course, in the difficulty that we do not have any statement from the Council of the facts which they found, but it is by no means impossible, or even unlikely, that they disbelieved the Appellant as to the purpose of the information. He did not give entirely convincing evidence and it is probable that the Council at least disbelieved him when he said in evidence that one of the reasons for his tendering his resignation from the candidacy was that he feared a breach of medical ethics: no hint of that appeared in his letter of resignation. If the information was supplied for possible publication, whether or not there were other objects, we do not think it matters that the particular publication was not then in contemplation.

6. It is, perhaps, unfortunate that the Council were not assisted in deciding how proximate any "active steps in the publication" had to be to justify a finding of guilt. The Council must, however, have been satisfied that the Appellant did take active steps. What were they? They cannot have been anything other than the supplying of the details for inclusion in the file: the acquiescence in the publication of the bulletin was passive, as was the failure to ensure that no offending material was included. That conclusion is fatal to the appeal. Again, it is not relevant that the Appellant did not take any direct part in the publication of this bulletin: it was within the scope of the intended and authorised publication. It might have been different had the Appellant taken reasonable steps to ensure that the bulletin did not contain any offending material in spite of his having made such material available, but he admits that he did not do so: "if I had thought of that, I would certainly have checked [what was going to be put in]". The fact seems to be that it never occurred to him to check the draft bulletin, although he well knew that it would contain personal details about himself, and he was content to leave it in the hands of Mr. Peter Chan. The Council may well have taken the view that he could not, by delegating to Mr. Chan the duty of ensuring that nothing objectionable was published, escape responsibility if his delegate failed him. This would have been consistent with the view expressed by the Full Court in Wong Kai-fou v Medical. Council of Hong Kong 1967 H.K.L.R. 620, 643. Much was made of the fact that no complaint was lodged in respect of bulletins issued during a previous election, although those bulletins contained details of three candidates' hospital and other medical appointments. At best that could be relevant to sentence, and there is no appeal against sentence before us. Even then it would be right to bear in mind that the absence of any complaint could not indicate absence of disapproval by the Council as such, for the Council cannot act save upon a complaint brought to its notice.

7. It is common ground that in disciplinary proceedings of this kind a high standard of proof is required. Nevertheless "the only circumstances in which an appellate court can reverse a view of the facts taken by the [Medical Council] would be a case where, on examination, it would appear that the [Council] had misread the evidence to such an extent that they were not entitled to make a finding in the state of the evidence presented before them": (Libman v General Medical Council 1972 A.C. 217 at 221) or, as it was less formally put later in the same case, "unless it can be shown that the findings of the [Council] were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread."

8. We are not persuaded that the Council did misread the evidence. The appeal must be dismissed.

19th December 1980.