Dr Leung Ka Lau v. The Medical Council of Hong Kong

CACV 63/2023

[2025] HKCA 140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 63 OF 2023

(ON APPEAL FROM THE DECISION OF THE MEDICAL
COUNCIL OF HONG KONG DATED 31 JANUARY 2023)

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J U D G M E N T

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Hon Kwan VP :

1.I agree with the judgment of Cheung JA.

Hon Cheung JA :

I.  The appeal

2.This appeal raises an interesting and important point on whether doctors are entitled to advertise discounted fees for their medical services.

3.Dr Leung Ka Lau (‘Dr Leung’) was found guilty by the Medical Council of Hong Kong (‘the Council’) of a charge of misconduct in a professional respect and was reprimanded (‘the Order’). The charge is as follows :

‘ That in or about June 2016, he, being a registered medical practitioner, sanctioned, acquiesced in or failed to take adequate steps to prevent the soliciting and/or canvassing for patients by the provision of discount to patients on the website <www.bestview.hk> and Facebook page of his clinic, namely Best View Endoscopy and Medical Centre.

In relation to the facts alleged, either individually or cumulatively, he has been guilty of misconduct in a professional respect.’

‘ 4. The advertisement of the Website referred to a “promotion scheme for early stomach cancer and colorectal cancer screening” (早期胃癌及腸癌篩選優惠計劃). It stated that the Clinic was offering services for

(i) 大腸鏡檢查at a discounted price (優惠價) of $6,800 from the original price (原價) of $8,500 (with the original price figure crossed out by a line);

(ii) 放大高清胃鏡at a discounted price (優惠價) of $5,440 from the original price (原價) of $6,800 (with the original price figure crossed out by a line); and

(iii) 普通高清胃鏡 at a discounted price (優惠價) of $4,080 from the original price (原價) of $4,800 (with the original price figure crossed out by a line)

at a monthly quota of 10 persons (每月名額10 個, 額滿即止).

5. The advertisement of the Facebook Page offered gastroscopy and colonoscopy at the respective price of $4,000 and $4,500. It described the promotion as an “early bird discount” (早鳥優惠) and was subject to a quota of 30 persons (名額各30 個，額滿即止).’

4.Dr Leung now appeals against the order.

II.  The Code

5.The restriction on ‘aim to solicit or canvass for patients’ appeared in [5.2.1.2(d)] of the Code of Professional Conduct (January 2016) issued by the Council (‘the Code’). Section 5 of the Code deals with professional communication and information dissemination between the doctor and patient. In brief the doctor is entitled to advertise his practice subject to the provisions in section 5. The relevant part states :

‘ 5.2 Principles and rules of good communication and information dissemination

5.2.1 A doctor providing information to the public or his patients must comply with the principles set out below.

5.2.1.1 Any information provided by a doctor to the public or his patients must be:

(a) accurate;

(b) factual;

(c) objectively verifiable;

(d) presented in a balanced manner (when referring to the efficacy of particular treatment, both the advantages and disadvantages should be set out).

5.2.1.2 Such information must not:

(a) be exaggerated or misleading;

(b) be comparative with or claim superiority over other doctors;

(c) claim uniqueness without proper justifications for such claim;

(d) aim to solicit or canvass for patients;

(e) be used for commercial promotion of medical and health related products and services (for the avoidance of doubt, recommendations in clinical consultations are not regarded as commercial promotion of products and services);

(f) be sensational or unduly persuasive;

(g) arouse unjustified public concern or distress;

(h) generate unrealistic expectations;

(i) disparage other doctors (fair comments excepted).

5.2.1.3 Where a doctor has a conflict of interest of any nature in a product or service, he must declare such interest before making comments on the product or service.

5.2.2 Practice promotion

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.

5.2.2.2 Practice promotion by individual doctors, or by anybody acting on their behalf or with their forbearance, to people who are not their patients is not permitted except to the extent allowed under section 5.2.3.’ (emphasis added)

III.  Reasoning of the Council

6.In respect of the finding of guilt, the Council held that :

1)  [5.2.1.2(d)] makes it clear that any information provided by a doctor to the public must not ‘aim to solicit or canvass for patients’ [10].

2)  The offering of discounts in the manner in the Website and the Facebook Page (‘the Advertisements’) are promotional tactics. Offering discounts in such a way clearly had the effect of soliciting or canvassing for patients, which is impermissible under [5.2.1.2(d)] [11]. Dr Leung did not deny that the Advertisements have a canvassing effect. He said that a group of economically sensitive patients who had no interest in colonoscopy or gastroscopy would be attracted after seeing the Advertisements.

3)  Dr Leung was the major shareholder and director of the Best View Endoscopy and Medical Centre (‘the Clinic’). He was also practising at the Clinic, though he claimed he was not practising there frequently. Dr Leung sanctioned, acquiesced in or failed to take adequate steps to prevent the soliciting and/or canvassing for patients by the provision of discount on the Website and Facebook Page of the Clinic [12], [13] and [14].

4)  Dr Leung’s conduct fell below the standards expected of registered medical practitioners in Hong Kong. Accordingly, he was found guilty of misconduct in a professional respect as charged.

5)  In considering Dr Leung guilty of the charge, the Council had taken into account his argument that in the context of his case, the prohibition of the offering of discount fails to properly balance against the public interest both in terms of public healthcare and the right of patients or potential patients to make an informed choice of medical services [16].

6)  The justifications for restriction under [5.1.3] of the Code are (1) the protection of the vulnerable from persuasive influence and misleading advertisements (‘Protection of the Vulnerable Aim’); (2) the preservation of the integrity and standing of the profession and public confidence against practice promotion of medical services as if the provision of medical services were no more than a commercial activity (‘Public Confidence Aim’); and (3) maintaining the quality of medical services (‘Quality Service Aim’). These are legitimate justifications for the restriction. The Council balanced all these legitimate aims for restrictions against what Dr Leung submits as overwhelming public interest grounds in his case. It did not consider that the prohibition of the offering of discount, in the context of Dr Leung’s case, is a disproportionate and unconstitutional restriction on his right to the freedom of expression [17] and [18].

7)  The Council emphasised that the Code never prohibits Dr Leung to quote his service fee or range of service fees. The offer of discount and limitation by quota are promotional tactics, as if the provision of medical services were no more than a commercial activity. The crossing out of the original price is also an advertising tactic [19].

8)  The Council acknowledged that there is a substantial public interest in terms of the prevention and early detection of colorectal and gastric cancer. This public health interest concerns a very large population base, which cannot be dealt with by commercialism alone [20].

7.In respect of the sentence, the Council considered that Dr Leung has a clear disciplinary record, his contributions to the profession and the community, his transgression of the ethical rules was not intentional, but was out of his public health concern of colon cancer which is genuine and the risk of the respondent re‑offending is low.

IV.  Grounds of appeal

8.Dr Leung advanced four grounds of appeal :

1)  The Council erred in finding that the offering of discount in the Advertisements amounted to ‘promotional tactics’ and/or an ‘advertising tactic’ and hence impermissible.

2)  The Council failed to carry out any balancing exercise properly or at all when deciding whether the offering of discount was permissible.

3)  The finding together with the Order constituted an unjustifiable restriction of the appellant’s right to freedom of expression under Article 16 of the Hong Kong Bill of Rights (Cap. 383) (‘BOR 16’) and Article 27 of the Basic Law (‘BL 27’).

4)  Reading [5.2.1.2(d)] of the Code in light of BOR 16 and BL 27, the Council ought to have concluded that he was entitled to issue the Advertisements in question given that they fall within the legitimate exercise of his freedom of expression.

V.  Grounds of appeal

9.I will deal with the four grounds of appeal in turn.

Ground 1 Promotional/Advertising tactics

1)  Dr Leung’s argument

(1)  Misreading the Code

10.Mr Chan SC (together with Mr Cheung) argued, first, that the Council had misread the [5.2.1.2(d)] of the Code. He argued that medical advertising is not per se prohibited under the Code. On the contrary, the entirety of section 5 governs communications between doctors and patients and explicitly contemplates that doctors can advertise their services. The Code underlines the importance of providing patients with access to accurate information [5.1]. Information on the cost of treatment is part of this equation. Patients cannot make informed decisions on medical options without knowing whether they can afford them. The Code explicitly permits doctors to share price information in certain contexts, provided it is accurate and objective [5.2.3]. Appendix D of the Code allows a doctor to publish on his practice website and in doctors directories published by professional medical organisations approved by the Council a ‘range of consultation fees, or composite fees including consultation and basic medicine for a certain number of days’ provided that such fees ‘truly reflect his normal charges’ and Appendix C allows a doctor to display outside his office a service information notice ‘bearing the fee schedules and the medical services provided by him’; and again the notice may outline a ‘range of consultation fees, or composite fees including consultation and basic medicine for a certain number of days’ provided that such fees ‘truly reflect his normal charges’, but the notice must contain ‘[p]lain text only without graphic illustrations’. At the same time [5.1.3] warns against ‘misleading advertisements’ or promoting medical services ‘as if the provision of medical care were no more than a commercial activity’. Accordingly, the Advertisements did not cross into improper solicitation. They presented the relevant price information in a fair, accurate and balanced manner, with clear quotas reflecting the availability of discounted services. They also highlighted the statistical risks of colorectal cancer and gastric cancer and the objective benefits of early screening without attempting to market or promote the relevant procedures in a sensationalised or improper fashion. Indeed, the Council has not suggested otherwise.

(2)  Nature of the Advertisements

11.The Council’s claim that the discounts in the Advertisements amounted to ‘promotional tactics’ is based solely on its hypothesis that ‘a group of economically sensitive patients who had no interest in colonoscopy or gastroscopy before would be attracted after seeing the advertisements’. However by their very nature, discounts aim to attract patients, including those who may otherwise be unable to afford medical services. By allowing doctors to publish a ‘range of consultation fees’ for medical services, provided that such fees are accurate and not misleading, the Code clearly recognises that different patients may be drawn by different price points. The suggestion that offering affordability to financially constrained patients is improper has no support in the text or purpose of the Code. [5.2.1.2(d)] is concerned with the intention behind an advertisement – whether it aims to improperly solicit patients or promote the doctor’s practice as a business. There is no evidence and no finding by the Council, that Dr Leung had any improper knowledge or intention of improperly soliciting patients. On the contrary, the Council indeed found that Dr Leung acted ‘out of his public health concern of colon cancer’. That the Advertisements may have the effect of informing uninitiated members of the public of medical services and procedures which they might not previously have been aware is of no moment. The provision of information about a doctor’s professional services, his practice or his group (i.e. practice promotion) – permitted under the Code provided that it conforms with the specified parameters – necessarily has such an effect.

(3)  Public education

12.The Advertisements did not subject vulnerable patients to an unwarranted degree of ‘persuasive influence’, but were part of a broader, balanced effort to educate the public on screening procedures while ensuring that patients received individualised, medically appropriate care because any patient seeking the discounted services would first undergo an examination by a doctor, who would only recommend the procedure if it was in the patient’s best interests; and the website contained detailed information about colonoscopy, gastroscopy, and the risks associated with colorectal and gastric cancers, allowing prospective patients to make informed decisions.

(4)  Principle of legality

13.Dr Leung relying on the principle of legality argued that the Code must be construed as far as possible to give full recognition to fundamental rights, which can only be overridden by express words or necessary implication. The Council’s reading of [5.2.1.2(d)] is inconsistent with freedom of expression – a fundamental right that protects the dissemination of vital, life-saving information to the public. The Code should be construed in a way that facilitates rather than stifles open communication on medical matters.

2)  My view

(1)  Matter of construction. Misunderstanding the Code?

14.In the proceedings below, both parties proceeded on the premise that the Secretary’s case was that the legal basis of the charge lay in the ‘longstanding ethics of the medical profession’ against advertising discount fees. In [8] of the Council’s Decision it was recorded that :

‘ 8. The Secretary’s case is that the offering of discounts in the manner as appeared in the Website and the Facebook Page amounted to blatant advertising, and it was the long‑standing professional ethics that such practice is not accepted by peers. The Secretary invites this Panel to take on board the peer’s expectation as evidenced in the Code of Professional Conduct (January 2016)(‘the Code’).’

15.In Medical Council of Hong Kong v Helen Chan (2010) 13 HKCFAR 248, Bokhary PJ held :

‘ 72. What must the Medical Council have meant when (without citing any specific written rule) it spoke of a “long-established rule that doctors are prohibited from public endorsement or promotion of a commercial brand of medical or health related products”? Plainly the Medical Council was referring to a consensus within the medical profession that such endorsement or promotion by a doctor is unethical.’

16.Adopting the same reasoning, when in the present case the Council referred to the ‘longstanding professional ethics’ against offering of discount fees, all that it means is that there is a consensus within the medical profession that the offering of discount fees by doctors is unethical and unacceptable. Further, since the restriction on offering discount fees is said to be evidenced in the Code, the starting point is to construe the Code to see if it contains any restriction on doctors offering discounts of their medical service to the public. The Council held :

‘ 9. The Code was promulgated by the Council upon the recommendation of the Ethics Committee and taking into consideration the opinions of the profession. The provisions are kept under constant review so as to ensure that they are proportionate to the objectives. Whenever necessary, changes are made to the provisions to suit the changing social context.’

17.The heading of section 5.1 of the Code is ‘The need for good communication and accessible information’. It identifies three principles. First, communication is fundamental to provision of good patient care [5.1.1]. Second, the purpose of good communication is to provide, inter alia, information to the patients who could make an informed choice of doctors and the medical service they offered [5.1.2]. Third, patients may be vulnerable to persuasive influences and are entitled to be protected from misleading advertisements. Treating promotion of doctors’ service as if it is a commercial activity is likely to undermine public trust in the medical profession and, over time, to diminish the standard of medical care [5.1.3]. These being the three overarching principles, [5.2] provides for the principles and rules on good communication and information by a doctor to his patients and the public, in matters such as the information provided by the doctor must not aim to solicit or canvass for patients [5.2.1.2(d)] and be used for commercial promotion of the medical service [5.2.1.2(e)]. Although a doctor is prohibited from publishing information relating to his professional services with the aim of soliciting or canvassing for patients, he is permitted to provide information relating to his fees in defined circumstances by reference to [5.2.3.5], [5.2.3.7] and Appendix D and [5.2.3.6] and Appendix C. [5.2.3] deals with the dissemination of service information to the public by way of signboards [5.2.3.1], stationery [5.2.3.2], announcements in mass media [5.2.3.3], telephone directories published by telephone companies [5.2.3.4], practice websites [5.2.3.5], service information notices [5.2.3.6], doctors directories [5.2.3.7] and newspapers, magazines, journals and periodicals [5.2.3.8].

18.The Code, of course, does not expressly mention that the offering of discounts to the public is prohibited, but reading the Code as a whole, this must be the clear intention of the Code. First, the fact that [5.2.3] and Appendix C and Appendix D allow doctors to display consultation fee is subject to the requirement that the fees should reflect the doctor’s normal charge. This is fundamentally different from the idea of offering discount fees to the public. Second, the offering of discount price is inconsistent with the three overarching principles identified earlier. One may ask what is the benefit of offering a discounted price instead of simply stating the price of the treatment which by itself is a permissible mode of practice promotion? In my view, when viewed with these three overarching principles, there is no significant benefit for the public to know that the fee they pay is discounted rather than the normal fee. Can a member of the public really evaluate whether a discount is more apparent than real? On the contrary, one can see the downside of it. Medical care will be regarded as a mere commercial activity by the proliferation of advertisements soliciting or canvassing for patients. There is the temptation to offer discounts purely to attract patients which may erode the provision of quality services and the temptation to ‘cut corners’ and provide less than the quality required to meet the pressure of discounted fees. There is also the possibility that the offer of discounts may persuade the public to undergo medical services which may not be appropriate for them : see Law Society of Upper Canada v Barnett [1977] LSDD No 94. The inevitable conclusion is that offering discounts is contrary to the three overarching principles and this form of advertisement is aimed to solicit and canvass for patients and is used for commercial promotion of medical service. Hence it is a prohibited form of advertising. In my view, the Council has not misread [5.2.1.2(d)] of the Code at all.

19.The Council in its Decision had clearly stated that Dr Leung’s arguments are that the restriction on the offering of discount failed to properly balance the public interest in terms of good health care and the right of patients to make an informed choice of medical services. In so doing the Council must have in mind the principles stated in [5.1]. Further, the Council had considered the judgment of Chow JA sitting as an additional judge of the Court of First Instance in an application brought by Dr Leung prior to the disciplinary hearing below, for leave to apply for judicial review out of time (‘the JR proceedings’) in respect of [5.2.1.2(d)] where he sought the following relief :

‘1)  a declaration that it is unconstitutional and unlawful; and

2)  insofar as it purports to prohibit a doctor from providing information on discount rates for indicated medical services, for being inconsistent with Article 27 of the Hong Kong Basic Law and/or Article 16 of the Hong Kong Bill of Rights, a declaration that it upon proper interpretation in light of section 5 and Appendices C and D of the Code, does not prohibit a doctor from providing accurate price information, including an offering of a discount price for indicated medical services, whether through Service Information Notice or Doctors Directories as allowed by section 5 and Appendices C and D or by other medium(s).’

20.Chow JA refused the application on the basis that there is an alternative remedy available to Dr Leung in the form of the disciplinary proceedings. He addressed the history of [5.2.1.2(d)] which showed that through revisions and amendments of the relevant parts of the Code from time to time, there has been a gradual relaxation of the restriction against advertising which is described as practice promotion in the Code. He gave a provisional view on the merits of the application. He accepted the Council’s submission that [5.1.3] which is the third of the overarching principles encompasses three legitimate aims, namely, i) The ‘Public Confidence Aim’; ii) The ‘Quality Service Aim’; and iii) The ‘Protection of the Vulnerable Aim’. He held that :

‘ 60. In my view, it is clear that the Public Confidence Aim, Quality Service Aim and Protection of the Vulnerable Aim are all legitimate aims, and that the Impugned Restriction is rationally connected with advancing those aims. The real question is whether the Impugned Restriction is no more than reasonably necessary to achieve them. If it is, I consider that a reasonable balance has been struck between the societal benefits of the encroachment and the inroad made into the constitutionally protected freedom of expression of doctors. In particular, the pursuit of the societal interest does not result in an unacceptably harsh burden on them.’

21.He further held that a generous margin of appreciation or discretion should be accorded to the Council which, in view of its composition including many experienced medical practitioners representing a wide spectrum of the medical profession, is particularly well placed to determine the line to be drawn between permissible and impermissible professional conduct, which does not admit of a simple right or wrong view [61(3)]. He held that while there has undoubtedly been a gradual relaxation of the prohibition on advertising, the consistent view of the Council has, by and large, been that doctors should not be permitted to disseminate information for the purpose of soliciting or canvassing for patients save in closely defined circumstances [62].

22.Whilst Chow JA was dealing with the constitutional challenge to the Code, what he said carries as much force to the rationale and principles underlying section 5 of the Code. The Council specifically referred to [63] of the judgment of Chow JA that the three legitimate aims are the justification for the prohibition. This further shows that the Council was cognizant of the relevant principles and had not misread the Code. It was aware of the distinction between providing the patients and public with information on the price of treatments and the effect of offering discounts for the treatment.

(2)  Nature of the Advertisements

23.The gravament of the charge is that Dr Leung offered discounted price for the treatment which has the effect of a promotional tactic in soliciting or canvassing patients. Mr Pao SC (together with Mr Tang) for the Council submitted that whether this is so is a question of fact to be decided by the Council. He referred to the judgment of Ching JA (as he then was) in Dr. Lee Chiu Tong v. The Medical Council of Hong Kong (CACV 220/1995) at page 13 that ‘What the Medical Council must do is to try to ascertain whether there has in fact been advertising or canvassing’. Mr Pao submitted that the Court of Appeal will be slow to interfere with the finding by the fact that the Council is a specialist tribunal, whose understanding of what the medical profession expects of members in matters of medical practice deserves respect : Lee Yau Wing (Dr) v Medical Council of Hong Kong [2022] 3 HKLRD 155 [20(3)] and Dr Leung has to overcome a high threshold in challenging finding of facts by the Council which by its specialist nature is accorded respect.

24.In my view, the task of the Council encompassed both the construction of the Code and also to make findings of fact. In respect of the former, the Council had to decide whether doctors offering discounted price for their medical service exceeds the permissible form of medical promotion laid down in the Code. I have already dealt with the construction of the Code and come to the view that the Council had not misread the Code and the Code does prohibit doctors from offering discounts for their medical service. As to the findings by the Council, the Advertisements visually showed the original price, the crossing out of the original price and the discounted price placed on top of the crossed out original price. Given a wide margin of appreciation, the Council is clearly entitled to come to the view that this is not a proper practice of advertising but rather it is a promotional tactic with the aim to solicit or canvass patients. This is a matter of common sense and one may say that the Advertisements are no different from a shop advertising its seasonal sale with slashed prices which plainly is a commercial promotion and the aim is to solicit and canvass customers. I do not regard the finding to be plainly wrong.

25.Mr Chan seemed to accept that the Advertisements did have the effect of aiming to solicit or canvassing patients but argued that so long as Dr Leung did not have such an intention, then there is no breach of [5.2.1.2(d)]. In my view, the intention of Dr Leung is irrelevant because [5.2.2.1] refers to an objective standard in regard to advertising : the Council is to interpret practice promotion in its broadest sense which objectively speaking constitutes promotion of a doctor’s professional services, irrespective of whether he actually benefits from such publicity. As Au JA held in Lee Yau Wing (Dr) :

‘ 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.Fok JA (as he then was) in Ng Kin Wai v Dental Council of Hong Kong [2011] 6 HKC 378, dealing with an appeal from the decision of the Dental Council of Hong Kong, held that finding of mental state is not required if the relevant offence or prohibition does not include a particular mental element and honest belief is not a valid defence.

‘ 39. In my view, there was no such obligation on the part of the Dental Council in this case.

40. The charge against the appellant was one of unprofessional conduct. It was not a charge that included, as an element of the offence, a particular mental element. Although mere negligence does not equate to unprofessional conduct, depending on the circumstances, unprofessional conduct may occur, as Mr McCoy candidly accepted in the course of his submissions, even when a dentist has acted with an honest belief that he was entitled to act as he did. Whether the conduct is unprofessional is left to the Dental Council to determine, it being the relevant professional body given the task of determining whether that conduct falls within the definition of “unprofessional conduct” in s. 18(2) of the Ordinance, namely:

“… an act or omission of a registered dentist which would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency.” ’

27.Whilst the Dental Registration Ordinance defines the term ‘unprofessional conduct’, there is no similar definition under the Medical Registration Ordinance (Cap. 161). But Part II of the Code deals with the term ‘misconduct in a professional respect’ as follows :

‘ The term ‘misconduct in a professional respect’ is not defined in the Medical Registration Ordinance but has been interpreted by the Court of Appeal as conduct falling short of the standards expected among registered medical practitioners. It includes not only conduct involving dishonesty or moral turpitude, but also any act, whether by commission or omission, which has fallen below the standards of conduct which is expected of members of the profession. It also includes any act which is reasonably regarded as disgraceful, dishonourable or unethical by medical practitioners of good repute and competency.

It is for the Medical Council to judge whether a doctor’s conduct has fallen short of the expected standard after considering the evidence in each individual case. The Council will do so having regard to both written and unwritten rules of the profession.’

28.In my view, the reasoning of Fok JA applies with equal force to the term ‘misconduct in a professional degree’.

29.Further, as Mr Pao submitted, the argument now advanced by Mr Chan, which depends on knowledge and is fact sensitive, was not argued below. It cannot be run on appeal. The absence of any finding as to Dr Leung’s knowledge is thus unsurprising. The Council found, objectively speaking, the Advertisements were with the aim of soliciting or canvassing patients.

(3)  Public education?

30.I do not dispute that if the Advertisements merely informed the public of the risk of colorectal cancer and gastric cancer and the necessity for early detection together with the specification of charges for treatment, they will serve the purpose of public interest on health education. But the Advertisements went beyond this ambit by telling the public that they would receive discount prices. As Mr Pao submitted any contribution to the prevention or early detection of colorectal and gastric cancer is limited, given the limited daily and monthly quotas. There is also no evidence that patients with limited financial reasons will benefit as the offer of discounted price is not based on the financial situation of the patient. In my view, the Council is entitled to come to the view that the Advertisements were in the nature of commercial promotion with the aim to solicit and canvass patients.

(4)  Principle of legality

31.In A v. Commissioner of Independent Commission Against Corruption (2012) 15 HKCFAR 362 at [24], the Court of Final Appeal per Bokhary and Chan PJJ held that :

‘ 24. ... By virtue of the principle of legality, human rights and fundamental principles of law, even where derogable, cannot be overriden except by express words or necessary implication.’

32.As Dame Victoria Sharp P in Regina (Miller) v College of Policing [2022] 1 WLR 4987 at [57] explained that this is a principle of statutory construction and it is not a freestanding ground for control of all types of action by public bodies, particularly the exercise of non‑statutory power.

33.For the purpose of this appeal, it is not necessary for me to canvass this topic further and I will address the issue of freedom of expression under the remaining ground of appeal in respect of constitutional challenge.

Grounds 2, 3 and 4 Constitutional challenge

1)  Dr Leung’s argument - Freedom of expression

34.Mr Chan submitted that Dr Leung was exercising his constitutionally protected freedom of expression in publishing the Advertisements. The protection extends to matters of public concern and commercial speech : Helen Chan (CFA) [75], [80]. Free expression benefits both communicators and recipients. The public interest as regards advertising lies in the provision of relevant material to enable informed choices, which includes information about medical services. Where the relevant information is not inherently harmful, the Court will presume that ‘people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them’ : Kwok Hay Kwong v Medical Council of Hong Kong [CA] [2008] 3 HKLRD 524 [32], [66], [71]. Similarly, in Bratt v British Columbia Veterinary Medical Association, 1999 CanLII 2522 (BC SC) [57], the Court recognised ‘the interest of consumers in being informed about the costs of services they may need to use… [and to] allow consumers to acquire some knowledge of likely costs before committing themselves to a relationship with the professional’. The Council’s decision restricted Dr Leung’s freedom of expression in the following manner :

(1)  Rational connection

35.The Decision is not rationally connected to the three legitimate aims underpinning [5.1.3], namely the ‘Protection of the Vulnerable Aim’, the ‘Public Confidence Aim’, and the ‘Quality Service Aim’. The publication of discounted prices and associated quotas does not conflict with these aims when the Code itself provides for the possibility of doctors publishing a ‘range of consultation fees’. As observed in Kwok Hay Kwong [44], ‘If it is accepted that such information benefits the public by enabling informed choices to be made, then surely making the same information more accessible to more members of the public must be acceptable?’ Since the Code recognises that price transparency benefits the public, restricting its availability in reality undermines the Code’s stated aims. The Council’s contrary position is purely speculative, unsupported by evidence, and logically flawed. In respect of the three legitimate aims,

i)  Protection of the Vulnerable Aim : The Advertisements neither misled the public nor lured vulnerable patients into undergoing unnecessary procedures. Modern courts have moved away from outdated, paternalistic views of patients; see e.g. Montgomery v Lanarkshire Health Board [2015] AC 1430 [76] : ‘it would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent on a flow of information from doctors. The idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalisation…’. Absent harm, the better approach is to empower people with further information rather than to restrict it : Kwok Hay Kwong [32], [66], [71]. The Advertisements provided accurate and relevant information, enabling informed choices. The Council’s claim that patients might undergo screenings solely because of the ‘inducement’ and not because the tests are necessary rests “on the offensive assumption that the public will respond ‘irrationally’ to the truth....The [guarantee of freedom of expression] directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good” : Thompson v Western States Medical Center 535 US 357 [375].

ii)  Quality of Service Aim : The Advertisements in no way compromised the quality of medical services offered by Dr Leung or his clinic. The Council’s claim to the contrary – that the Advertisements ‘may detract from their focus on the quality of medical services’ – is wholly baseless. As for the Council’s ‘floodgates’ concern, the idea that having ‘too many’ doctors provide affordable, life-saving screenings could somehow harm the public interest upends sense and reason.

iii)  Public Confidence Aim : The notion that offering discounts undermines public confidence in the medical profession is baseless and anachronistic. Discounts are commonplace across industries and professions in Hong Kong. To suggest that reasonable, transparent price reductions diminish the medical profession’s trustworthiness or dignity rests on assumptions that are out of kilter with modern commercial and societal realities.

(2)  Standard of reasonable necessity

36.The proper standard of review here is one of reasonable necessity, since the Advertisements served an undeniable public interest by promoting early detection of colorectal cancer and gastric cancer. Public interest speech addressing critical issues like cancer prevention demands ‘a high level of protection of freedom of expression, with a particularly narrow margin of appreciation accordingly being afforded to the authorities’ : Morice v France (2016) 62 EHRR 1 [153]. The margin is narrower still where the speech concerns matters that transcend purely commercial interests and engage broader matters of public health : Law of the European Convention of Human Rights (4^th ed) p 617; Hertel v Switzerland (1999) 28 EHRR 534 p 571 [47]. So there is no warrant for the Council to assert that this Court should defer to its ‘expertise’ on the need to penalise Dr Leung for the Advertisements. Whether the Decision is necessary to achieve the legitimate aims, and whether it takes sufficient account of countervailing rights, including the public’s right to receive critical health information, are matters of law – not medicine : Kwok Hay Kwong [CA] [23(1)]; Dr. Kwok Hay Kwong v Medical Council of Hong Kong [2006] 4 HKC 157 (CFI) [133]. There is at any rate no indication that the Council ever applied its ‘expertise’ on these issues : Infinger [2024] HKCFA 29 [78].

(3)  Disproportional restriction

37.The Decision disproportionately restricts Dr Leung’s fundamental rights and fails stage 3 proportionality review. The Council fails to provide cogent reasons justifying its interference (Kwok Hay Kwong [CA] [23]‑[25]) :

i)  The Decision effectively imposes a blanket ban on advertising discounts, regardless of whether the services advertised are critical (here, cancer screening) or non‑essential (e.g. cosmetic procedures). This indiscriminate approach fails to distinguish between advertisements that serve genuine and substantial public health interests and those that may promote unnecessary procedures.

ii)  Regulatory bodies in other jurisdictions demonstrate how medical advertising can be regulated in a more targeted and proportionate manner. For instance, the ‘Good Medical Practice’ issued by the United Kingdom’s General Medical Council does not ban advertisements which solicit or canvass for patients, but instead imposes more stringent restrictions on advertisements for cosmetic interventions, where patients are prone to undergo unnecessary procedures. Likewise in Australia, the ‘Guidelines for Advertising a Regulated Health Service’ issued by the Australian Health Practitioner Regulation Agency and 15 national health practitioner boards permit discounts as long as the advertisement states the ‘terms and conditions’ in plain, non-misleading language. The Guidelines also distinguish advertisements which encourage ‘indiscriminate or unnecessary’ use of regulated health services from those that do not : section 4.5. The position in the United States is similar.

iii)  The Council failed to substantiate the alleged necessity of the restriction with evidence. Justification cannot rest on ‘bare assertions’, including as to social policy based aims : Infinger Nick v The Hong Kong Housing Authority [2024] HKCFA 29 [72]‑[81]. In Dr. Michael Bratt v British Columbia Veterinary Medical Association and Dr. Gabe Muller (1999 Can LII 2522 (BC SC)), it was held that a prohibition on advertising fixed fees violated a veterinarian’s freedom of expression. The Association contended that fixed‑fee advertising would lead to a decline of professional standards and esteem, citing a study of dentists who believed advertising demeaned the profession, along with votes from its members supporting the prohibition. The Court rejected these ‘statements of belief’ as insufficient to justify the restriction : [51]. This applies a fortiori to the Council’s purported reliance on Lau Affirmation [39]‑[45], consisting of Dr Lau’s own speculative assertions and opinions. See also Assie v Institute of Chartered Accountants of Saskatchewan 2001 SKQB 396 [37], holding that byelaws prohibiting accountants from unsolicited fee quotations for service and solicitation of other accountants’ clients violates freedom of expression, with the Institute having ‘no evidence’ that either practices could ‘undermine professionalism in the delivery of those services’, nor any ‘evidence at all that the fee quotation impugned by the PCC in the instant case raises this problem or is in any way misleading’.

iv)  The Council disregarded the measures Dr Leung implemented to protect patients, which substantially reduced any risks linked with the Protection of Vulnerable Aim.

(4)  Restriction on public’s right to receive health information

38.The Decision does not just restrict Dr Leung’s freedom of expression – it also limits the public’s right to receive important health information. As recognised in Kwok Hay Kwong [CA] [32], [66], [71] and Bratt [57], the general public has a right under BOR 16 to receive relevant information on medical treatments. Proportionality encompasses the rights of all affected stakeholders, not just the individual whose rights are directly restricted. This entails the need to accord substantial weight to salient countervailing rights, including the public’s right to receive the disputed information. Here, the public’s right to receive information about affordable cancer screenings is particularly compelling : the dissemination of such information is critical for economically sensitive patients who might otherwise forgo essential preventative care. The public interest in receiving this information is underscored by the Government itself, which implemented a heavily subsidised Colorectal Cancer Screening Programme just months after the Advertisements were published. For those struggling financially, knowing that discounted options are available for essential procedures like cancer screenings can make all the difference. For some, the stark difference may be between getting screened and healed rather than going undetected and untreated. On this, the Council’s claim that the public interest is ‘limited, in light of the limited monthly quotas offered’ [1.3] misses the mark. No one expects Dr Leung to offer unlimited screening services to the public. What the Advertisements accomplish instead is something far more significant : they raise public awareness about early cancer detection and ‘nudge’ those deterred by cost to seek potentially life‑saving care – indeed partly due to the limited quantities of discounts, which would encourage prompter action.

(5)  Dr Leung’s financial benefit

39.That Dr Leung might benefit financially from providing information does not negate the public value of the communication. What matters is that the Advertisements gave accurate, useful information to the public – information the public has both a need and a right to receive. As held in Kwok Hay Kwong [CA] [34], ‘[w]here the public interest is in favour of allowing advertising, the fact that the person who places the advertisement will incidentally benefit is no reason to justify restrictions’. Thus in Stambuk v Germany (2003) 37 EHRR 42 [47]‑[49], an ophthalmologist was fined for violating an advertising ban by giving an interview about his laser technique, which highlighted his 100% success rate and featured a prominent photograph. Even so, the Strasbourg court found a violation of his freedom of expression, observing that ‘[t]he article may well have had the effect of giving publicity to the applicant and his practice, but, having regard to the principal content of the article, this effect proved to be of a secondary nature’. See also Barthold v Germany (1985) 7 EHRR 383 404, ruling that a surgeon’s interview in a local paper criticising the lack of emergency services contributed to public discussions of general interest; whilst the article included his name, clinic, and photo, the publicity effect was ‘altogether secondary’. The injunction against the surgeon thus violated his rights : ‘Its application risks discouraging members of the liberal professions from contributing to public debate on topics affecting the life of the community if ever there is the slightest likelihood of their utterances being treated as entailing, to some degree, an advertising effect’.

4)  My view

(1)  Principles : The five-stage inquiry

40.There is no dispute on the five stage approach in respect of constitutional challenge to legislative provision, executive or administrative or administrative policy or act or decision, namely 1) identifying the constitutional right relied on and the impugned measure; 2) ascertaining whether and on what grounds the impugned measure engaged that right; 3) undertaking the four-step proportionality analysis; 4) if the impugned measure did not pass the test, the Court proceeded to consider whether any remedial order should be made to preserve the validity of the impugned measure in whole or in part; 5) if no such remedial measure existed, the Court declared the impugned measure unconstitutional and invalid (Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 and recently restated in HKSAR v Ng Ngoi Yee Margaret (2024) 27 HKCFAR 434 at [14]‑[19].

41.The four step proportionality inquiry is as follows :

1)  whether the infringing measure pursues a legitimate aim;

2)  if so, whether that measure is rationally connected with advancing that aim;

3)  if so, whether that measure is no more than reasonably necessary for that purpose; and

4)  whether a reasonable balance has been struck between the societal benefits of the encroachment on the one hand, and the inroads made into the constitutionally protected rights of the individual on the other, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual.

(2)  Freedom of expression

42.There is also no dispute that the constitutional right in this case is the freedom of expression which covers both commercial and political speech and must be anxiously protected. Bokhary PJ held in the case of Helen Chan :

‘ 75. Free speech is a constitutional freedom even when it is only commercial speech. And I say “only” not to diminish the importance of free commercial speech but to acknowledge the even greater importance of free political speech.

76. The ethical standards to which the Medical Council held Dr Chan place a restriction on what she may say albeit only in a commercial context.

...

80. A constitutional right or freedom must always be protected with anxious care. This is so even when it is one like freedom of commercial speech rather than freedom of political speech. The position of a person facing a charge must also always be protected with anxious care. This is so even when the charge is disciplinary rather than criminal. All of this is so even when the aim of the restriction on the right or freedom and of the bringing of the charge is to protect something as vital as public health.....’

43.The impugned measure is the decision on the restriction on advertising discount charge. As Cheung CJ and Ribeiro PJ held in Ng Ngoi Yee Margaret :

‘ 29..... A decision challenge may relate to an act or decision founded on a rule or policy, such as a legislative enabling power, which is not itself susceptible to a constitutional challenge.’

(3)  Rational connection

44.The first argument of Mr Chan is that the decision is not rationally connected to the three legitimate aims. I disagree. I adopt the views of Chow JA on this issue. Dr Leung is not prohibited from advertising the charges for the medical services that he could render. The vice is on his offering of discounts. As to Mr Chan’s argument that, by reference to Kwok Hay Kwong, if it is accepted that information benefits the public by enabling informed choices to be made, then making the same information more accessible to more members of the public must be accepted, the answer must be that it is for the Council to decide where to draw the line having regard to the vice of allowing discount fees to be advertised by reference to the three legitimate aims. It is of note that the challenge in Kwok Hay Kwong is against the blanket prohibition on advertising in newspaper, magazine and other printed media. The Code has since been amended to allow practice promotion to be placed in such media [5.2.3.8].

45.Mr Chan disagreed that the purpose of offering a discount is for commercial benefit and any benefit to the public (even if there is any) is only incidental to that primary purpose because the Council had also found that Dr Leung acted ‘out of his public concern of colon cancer’. I do not regard that these two views are mutually exclusive because whether the Advertisements are within the restriction of ‘aim to solicit and canvass’ is an objective consideration and the Council has correctly come to the view that the discount advertisement is primarily concerned with commercial benefits to Dr Leung and his clinic.

46.Mr Chan complained that the Council did not expressly find that the Advertisements contravened the legitimate aims. But as pointed out by Mr Pao this is a new point not run below. Dr Leung actually accepted the rational connection and his challenge was on the issue of proportionality. As to Mr Chan’s argument that the rational connection is not supported by evidence, Cheung CJ had addressed the issue of supporting evidence in Infinger, Nick :

‘ 61. The question of rational connection is context‑dependent. Whilst there has to be a causal relation between the legitimate aim and the impugned measure in the sense that the implementation of the measure “can reasonably be expected to contribute towards the achievement of the [aim]”, the threshold for establishing a rational connection, as compared to the standard of review often employed under Stage 3, is relatively low. Depending on the facts, it may be satisfied merely based on “reason or logic”, or “common sense”, without further proof.’

‘ 71. ..... I have no difficulty in accepting that the proportionality test does not always require positive justificatory evidence in every case, and the court must bear in mind the “realities” of the case in question. Whether, and the extent to which, evidence is required in a given case to support a justification must depend on the facts and the context, and especially, on the nature of the justification itself.

72. In particular cases, reliance on common sense, logic or intuition may be appropriate, and indeed cases exist where these are the only matters that may properly be relied on by the court for the evaluation of a justification. For there are “predictive and other judgmental assessments” of a kind “whose rationality can be assessed but whose correctness cannot in the nature of things be tested empirically”. Justifications grounded in moral or political considerations may not easily lend themselves to evidentiary support. Where firm factual conclusions are “elusive”, where evidence is “inconclusive or slight”, or where the truth is “inherently unknowable”, the court may be more prepared to accept an instinctive judgment by the executive or legislature about what the relevant facts are likely to be, without insisting on definite, concrete proof when examining a justification. By contrast, justifications of an economic or social nature would typically require evidential substantiation. ....’

47.The principles elaborated by Cheung CJ that evidence is not always required are applicable to the Public Confidence Aim which by its nature is based on moral or political consideration and also to the Quality Service Aim and Protection of Vulnerable Aim which are in the nature of predictive assessments. They also apply to the proportionality assessment. When Cheung CJ referred to the need for evidence to justify matters of an economic or social nature, I do not regard the present case to be under the economic or social ambit. Each case has its own context, particularly on the issue of discount fees for medical service.

48.As to Mr Chan’s argument that the Council’s contrary argument is speculatively unsupported by evidence and logically flawed, the Council in fact had before it the evidence of the JR proceedings, namely, the affirmation of Dr Lau Wan Yee Joseph, Chairman of the Council which referred to 1) publications by the Department of Health [43], 2) articles which substantiate the potential risks of medical procedures and methodology used to evaluate the ‘risk‑benefit ratio’ of procedures, and 3) Lau’s own personal expertise. Bearing in mind the Council’s express statement that it does not have the resource to scrutinize all medical advertisements and its zero tolerance approach to risk concerning public health provides justification for the restriction. In my view, there is clearly sufficient evidence before the Council for it to come to the view that Dr Leung failed in his constitutional challenge to the decision.

(4)  Standard of reasonable necessity

49.In respect of Mr Chan’s second submission that the proper standard of review is one of ‘reasonable necessity’, Mr Pao accepted that the margin of appreciation should be reduced when the speech is not only directed at achieving an economic advantage (i.e. a purely commercial statement), but also contributes to a debate on a matter of public interest : Rocket v Royal College of Dental Surgeons [1990] 2 SCR 232, 247 C and the cases cited by Mr Chan. However, he submitted that the Advertisements belong to the category of commercial statement rather than matters relating to public interest. I agreed. Although the Advertisements mentioned, inter alia, that in recent years in Hong Kong colon cancer is the number one killer of cancer illness and that early receipt of gastroscopy and colonoscopy will reduce incidence of colorectal cancer and gastric cancer and their mortality rate, as I have addressed earlier, the Council is entitled to its view that the focus of the Advertisements was on the commercial promotional scheme of the screening with discounted prices. This is apparent from the content of the Advertisements.

50.Mr Chan argued that whether the Decision is necessary to achieve the legitimate aims is a matter of law and not medicine, and there is no basis for the Court to defer to the view of the Council. In my view, subject to the caution that there should not be any blind deference to the view of the Council and each case must be decided on its facts, the authorities showed that the Council is particularly well placed to determine the line between permissible and impermissible professional conduct. This is a view repeated by Chow JA in the JR proceedings and supported by authorities. In this case, it is proper to accept the view of the Council.

(5)  Disproportional restriction

51.Mr Chan’s third argument is that the Decision disproportionately restricts Dr Leung’s fundamental rights and fails the stage 3 proportionality review and that the Council fails to provide cogent reasons justifying its interference. I disagree. Many of the arguments under this heading are couched in a different form that I have already addressed in the earlier part of this judgment. In my view, the restriction is proportional and a proper balance has been struck.

52.Mr Chan drew a distinction between medical services that are critical (like the present case and those that are non‑essential (like cosmetic surgery) and argued that the prohibition is an indiscriminate approach. I agree with Mr Pao’s submission that there are clear and cogent reasons against a less restrictive measure, namely the Council adopts a zero tolerance policy against a threat towards public health, and does not have the resources to regulate all forms of communications. This is within the margin of appreciation by the Council. I do not find the scope of medical advertising in other jurisdictions like the United Kingdom, Australia or the United States of America helpful. Each jurisdiction has its own distinct cultural background and social value and the medical profession in each jurisdiction has its own perception on the limits of medical advertising. Bratt is a case of advertising fixed fees (which was not allowed in British Columbia) and not about discount fees as in the present case. In Assie, the facts as stated by Smith J are as follows :

‘ [3] The facts leading to the complaint at issue are not in dispute. Prior to March 1999, the applicant’s [chartered accounting] firm developed a “business advisory model” for determining and setting “benchmarks” to track the performance of dental practices in Saskatchewan. In order to do this it was necessary to assemble data from a number of dental practices. If sufficient data was assembled, the firm intended to develop benchmarks to analyze a dental practice relative to others and to identify opportunities for growth and improvements in profitability for those dentists that wished to participate in the study. In June 1999, the firm sent a number of letters to dentists in the Saskatoon area describing this proposal, to determine if they were interested in participating in the project. The letter quoted a fixed fee of $3,000 per study plus applicable taxes and travel expenses outside Saskatoon if the dentist chose to participate and to use the firm’s business advisory services.’

53.One such letter was sent by the applicant was sent to a dentist who was the client of another chartered accountant who complained to the Institute that the letter violated certain regulations of the Institute which regulate and restrict advertising and solicitation of client. Smith J held :

‘ [37] Fee quotation that is false or misleading or solicitation of another’s client that contravenes professional good taste or makes unfavourable reflections on the competence or integrity of another member is already prohibited by the more general bylaw. However, the respondents have offered no argument and called no evidence that either of these practices is inherently unprofessional, misleading or confusing. While one might conceive of arguments that fierce competition in pricing of services that may vary widely in complexity could lead to unduly low prices that would in turn undermine professionalism in the delivery of those services, there is no evidence before me that this issue arises in all cases. In particular, there is no evidence at all that the fee quotation impugned by the PCC in the instant case raises this problem or is in any way misleading. It is difficult to see how the targeted group of potential clients, dentists who practice in or near Saskatchewan, could be mislead (sic) or harmed by the promotional letter sent out by the applicant in this case, and the respondents have called no evidence or argument to show otherwise.’ (emphasis added)

54.The facts of the case are miles away from the present case. Apart from having no evidence to justify the prohibition, Smith J relied on the fact that the Institute had offered no argument that the practices are inherently unprofessional, misleading or confusing which is to be contrasted with the arguments advanced by the Council in this case. The Council had considered the argument of public interest on health care and education advanced by Dr Leung but nonetheless came to the view that the restriction is not disproportionate and unconstitutional. In so doing the Council must have rejected Dr Leung’s argument that the Advertisements were concerned with such interests.

(6)  Public right to receive information

55.Mr Chan’s fourth point is that the Decision does not merely restrict Dr Leung’s freedom of expression but it also limits the public right to receive important health information. He complained that the Council had failed to address the issue of patient’s fundamental rights to access critical health information which is part of the right to recognition as person before the law under Article 16 of the Hong Kong Bill of Right. I disagree. I have already addressed this point earlier that there is no value by way of discount fee advertising regarding the public’s right to receive medical information for them to make a considered choice.

(7)  Dr Leung’s financial benefits

56.Mr Chan’s fifth point is that while Dr Leung might benefit financially from providing information, it does not negate the public value of the communication. What matters is that the Advertisements gave accurate, useful information to the public – information the public has both a need and a right to receive. This is a repetition of the arguments advanced under Mr Chan’s fourth point which I have already addressed.

57.Mr Chan’s submissions referred to numerous authorities that I do not find it necessary to address. Many of them are repetition of the principles in constitutional challenge or examples of how the principles are applied on the facts of the case and general statements which should be considered in the proper context of the case.

VI.  Conclusion

58.I would dismiss the appeal with costs to the Council together with certificate for two counsel.

Hon Au JA :

59.I agree with the judgment of Cheung JA.

Mr Abraham Chan SC and Mr John Cheung, instructed by Howse Williams, for the Appellant

Mr Jin Pao SC and Mr Danny Tang, instructed by the Department of Justice, for the Respondent