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

CACV 63/2023, [2025] HKCA 616

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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BETWEEN

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DECISION

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Hon Cheung JA (giving the Decision of the Court)  :

I.  Leave to appeal

1.This is the application by the appellant, Dr Leung Ka Lau (‘Dr Leung’), for leave to appeal to the Court of Final Appeal against our judgment of 13 February 2025 (‘Judgment’).  We will deal with the application on paper.

2.In his notice of motion of 13 March 2025, Dr Leung identifies four questions said to be of great general or public importance that ought to be submitted to the Court of Final Appeal for decision :

‘1)  Whether on a proper interpretation of [5.2.1.2(d)] of the Code of Professional Conduct (January 2016)  (‘Code’)  issued by the Medical Council of Hong Kong (‘Council’), doctors in Hong Kong are generally prohibited from advertising discounted fees for their medical services (‘Question 1’);

2)  Whether [5.2.1.2(d)] of the Code, and in particular the phrase ‘aim to’ incorporates a mens rea requirement requiring proof of a doctor’s intent to solicit or canvass for patients, or whether liability attaches based solely on the advertisement’s objective soliciting or canvassing effect (‘Question 2’);

3)  Whether the Council’s decision to sanction Dr Leung for breach of [5.2.1.2(d)] of the Code (‘Decision’), based on the advertisements in question, constitutes an unlawful and disproportionate restriction on Dr Leung’s right to freedom of expression, as protected under Article 27 of Basic Law and Article 16 of the Bill of Rights, and/or the public’s right to access information about affordable cancer screenings as constitutionally protected under Article 16 of the Bill of Rights (‘Question 3’); and

4)  Whether the Code, as interpreted by the Court of Appeal to impose a general prohibition on medical practitioners advertising discounts, is in itself unconstitutional as a disproportionate restriction of the freedom of expression of doctors and the public’s right to receive information on discounted medical fees, as protected under Article 27 of the Basic Law and Article 16 of the Bill of Rights (‘Question 4’).’

II.  Our view

1)  Question 1

3.We will not grant leave for Question 1. 

4.First, the threshold requirement is not engaged.  There is no evidence that advertising of discount fees by medical doctors is so prevalent or the views on discounted medical fees are so divergent that a determinative judgment by the Court of Final Appeal on this matter is required.  Second, this question is not reasonably arguable.  The case involves the construction of the Code and a finding of whether the advertisements by Dr Leung breached the Code.  It is not reasonably arguable that this Court or the Council have erred on both the construction and fact-finding issues.  Our judgment on Dr Leung’s breach is fact-specific. 

5.Dr Leung has further misread our judgment that our interpretation of the Code diverged from the stance of the Council.  We set out the Council’s view of the Secretary’s case in [14] of our judgment :

‘ 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’). ” ’

6.We then addressed this point at [15] to [22] of our judgment.  We have clearly stated that although the Code itself does not contain any express prohibition of discount fees, that must be its intention by reading the Code as a whole. We referred to the three arching principles and held that since under the Code doctors must not carry out commercial promotion of their services with the aim of soliciting or canvassing for patients, the offering of discount fees offends this restriction imposed by the Code.  We see no inconsistency and any argument that we have adopted an approach contrary to the one held by the Council is misconceived. In any event, it is for this Court to decide what the law is and not what the parties conceived to be the law : Mariner International Hotels Ltd v. Atlas Ltd (2007)  10 HKCFAR 1 at [23] citing Bahamas International Trust Co. Ltd & Another v. Threadgold [1974] 1 WLR 1514.

2)  Question 2

7.We will not grant leave for Question 2.

8.This question is not reasonably arguable.  We have addressed the issue of intention in [25]-[29] of our judgment.  In essence, Dr Leung is repeating the same arguments that had been rejected by us without showing how our finding was wrong.  R v Moloney [1985] AC 905 relied on by Dr Leung does not advance his case.  It is concerned with how the jury should be properly directed when a crime of specific intent (in that case, murder)  was under consideration.

3)  Question 3

9.We will not grant leave for Question 3.

10.First, the threshold requirement is not engaged.  The principles on constitutional challenge are well established, they do not require further elaboration, and our decision is fact-specific.  Second, the question is not reasonably arguable as Dr Leung is basically regurgitating the same arguments which we have rejected in [44]-[57] of our judgment.

4)  Question 4

11.We will not grant leave for Question 4.

12.The constitutionality of the Code is a new point not raised in the inquiry or before us.  No leave to appeal should be granted on new issues not properly canvassed in this Court.  We repeat [6] above and reject the argument that Dr Leung is entitled to rely on this argument because of our approach.

III.  Conclusion

13.Accordingly, the application is dismissed with costs to the respondent.  There will be an order nisi that the respondent’s costs are summarily assessed at $129,000 inclusive of fee for two counsel.

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