Read the full judgment text of CACV 000373/2006 on BabelCite. This Court of Appeal judgment was delivered on 6 June 2007 before Tang VP.
Civil procedure – fresh evidence on appeal – Ladd v Marshall principles – applicability in judicial review – discretion to depart in exceptional circumstances – freedom of expression – practice promotion by medical practitioners – Professional Code and Conduct – Medical Council – burden of justifying restrictions on guaranteed rights – proportionality test. The Medical Council of Hong Kong applied to adduce further evidence on appeal from a judgment of Reyes J dated 11 August 2006 declaring that certain provisions of the Medical Council's Professional Code and Conduct breached Articles 27 and 39 of the Basic Law and Article 16 of the Hong Kong Bill of Rights Ordinance, Cap. 383. The four impugned provisions related to: (i) section 5 preventing doctors from providing basic practice information to the press that they could provide through permitted media; (ii) section 5 and Appendix E limiting doctors to a maximum of five items of information in Service Information Notices; (iii) paragraph 5 prohibiting doctors from informing the public about medical and health developments if their practice was incidentally promoted; and (iv) paragraph 14.1.1 imposing strict liability for breaches by associated medical organisations. The further evidence took the form of a document called 'Reasons for restrictions on practice promotion' prepared by the Ethics Committee after the judgment. The court held that the Ladd v Marshall principles apply in judicial review and remain the starting point, with a discretion to depart from them in exceptional circumstances. The first Ladd v Marshall condition (that the evidence could not have been obtained with reasonable diligence for use at the trial) is the critical condition, and the Medical Council conceded it was not satisfied. The court held that the public interest nature of the proceedings and the Medical Council's perception of damage to public interest did not constitute exceptional circumstances justifying departure from the Ladd v Marshall principles. The court was not satisfied that the further evidence would have an important influence on the result, as much of it amounted to argument or submissions rather than substantive evidence. The court also found the Medical Council had not produced the best and fullest evidence, as it had not explained why the Ethics Committee in 2005 had proposed to relax the first restriction (which was opposed only by some professional medical bodies but not objected to by the Department of Health or Hospital Authority). The application was dismissed with costs.
Legal issues: Applicability of Ladd v Marshall principles in judicial review and possibility of departure · Whether the first Ladd v Marshall condition (reasonable diligence) is satisfied · Whether exceptional circumstances justify departure from Ladd v Marshall · Whether the further evidence would have an important influence on the result
Outcome: Application by the Medical Council to adduce further evidence on appeal is dismissed.
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