Dr. Kwok-hay Kwong v. The Medical Council of Hong Kong

CACV 373/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 373 OF 2006

(ON APPEAL FROM HCAL NO. 46 OF 2006)

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BETWEEN

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Before: Hon Tang VP in Chambers

Date of Hearing: 31 May 2007

Date of Decision : 6 June 2007

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D E C I S I O N

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1.This is the Medical Council’s application to adduce further evidence on appeal.  The appeal concerns the Professional Code and Conduct (“the Code”) issued by the Medical Council.  On 11 August 2006 Reyes J declared that the Code breached the freedom of speech and expression guaranteed by Articles 27 and 39 of the Basic Law and Article 16 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“the HKBORO”) insofar as :

“(i)   section 5 [of the Code] prevents a doctor from providing to the press basic information about his practice which he can otherwise provide through forms of media allowed by section 5;

(ii)   section 5 and Appendix E limit a doctor to mentioning only a maximum of 5 items of information about available medical services, procedures or operations in Service Information Notices;

(iii)   paragraph 5 [of the Code] prohibits a doctor from informing the public about medical and health developments if in so doing the doctor’s practice is incidentally promoted; and

(iv)  paragraph 14.1.1 [of the Code] imposes strict liability on a doctor for breaches by an associated medical organisation of the Code’s provisions on practice promotion.”

2.Thus, the proceedings are about fundamental freedoms.  The freedom of expression is not merely for the personal benefit of Dr Kwong.  It also benefits the community.  As the judge held, such freedom may be restricted where it is “necessary” to do so in the interests of national security, or public order or public health or moral.  However, the test of necessity requires the court to assess whether the restriction is proportionate to a legitimate purpose sought to be achieved.  This means that the restriction must be rationally connected with the purpose.  The restriction should be no more than is necessary to accomplish such purpose.  The burden is on the Medical Council to justify restrictions on a doctor’s right of free expression.

3.This application is supported by three affidavits of Dr David Fang.  Dr Fang is the chairman of the Ethics Committee of the Medical Council.  As he explained it:

“… The Ethics Committee was established pursuant to s.20P of the Medical Registration Ordinance (Cap.161) (‘the Ordinance’). The principal function of the Ethics Committee is to study and review any case relating to medical ethics or professional conduct (see s.20Q of the Ordinance). S.20R of the Ordinance further provides to the effect that the Ethics Committee shall report its views and recommendations to the Appellant and the Appellant may, after considering a report of the Ethics Committee, pronounce the recommendations of the Ethics Committee, with or without modifications.” (para. 2 of the 1^st affidavit)

4.The further evidence is contained in a document headed “Reasons for restrictions on practice promotion” (“the Reasons”) which was prepared as a result of the judgment and which purported “to reiterate the justifications for the restrictions”.

5.Dr Fang, who is familiar with the formulation and the application of the Code, has stated in para. 6 of his 1^st affidavit that he could from his knowledge confirm that the justifications “were reflected substantially in discussions” at both Council and Ethics Committees meetings.  He also said that the reasons set out in the Reasons were “set out in greater detail” in his first affidavit.  On the whole, I believe it is necessary only to consider the “Reasons”.  Mr Cooney, who appeared for the Medical Council, did not suggest that Dr Fang’s 1^st affidavit contained anything important which is not in the Reasons (with one possible exception which I will deal with in due course).

6.In support of this application, Dr Fang said in para. 4.4 of his 2^nd affidavit:

“4.4   The issue in this judicial review is one of great importance to both the medical profession and the Hong Kong community. An issue of this importance should not depend upon an accident of litigation strategy (the presentation of only broad justificatory principles) which (with the benefit of hindsight) might sensibly have taken a different course;”  [Emphasis added]

7.He then went on to explain that “only broad justificatory principles for the Restrictions” were put before the judge because the minutes of the Medical Council and Ethics Committee produced “did not themselves record the detailed justifications discussed by the consultations and working groups because, at that time, it was considered that the purpose of such minutes was to record the decisions taken and they were accordingly brief”.

8.Dr Fang went on to say:

“7.  In light of the criticisms of the paucity of the Council’s justifications set out by Reyes J in paragraph 123 of the Judgment, on 25 August 2006 an extraordinary meeting of the Ethics Committee was held. The Ethics Committee produced a progress report (‘the Progress Report’) which contained the Ethics Committee’s reasons for restrictions on practice promotion (‘the Reasons’).

8.  On 6 September 2006, the Council held a policy meeting at which the Progress Report was considered and endorsed the Reasons. The Reasons are contained in summary form in Exhibit 2 to this Affidavit in the form of the Appendix to the Progress Report of the Ethics Committee for the Council’s meeting on 6 September 2006. Now produced and shown to me marked ‘DF-2’ is a true copy of the Appendix. The Reasons are set out in greater detail in the Fresh Evidence Affidavit served with the Notice of Appeal.”

9.But, Dr Fang in his 3^rd affidavit which was filed in response to Dr Kwong’s affidavit opposing this application also said:

“12. … However those reasons were not put forward at the hearing due to circumstances beyond the control of the Appellant, not because of the Appellant’s deliberate decision not to do so.

13.  The Appellant was not advised to provide justifications for the restrictions on practice promotion and hence was not aware of the need to do so. Had this need been known to the Appellant before the hearing, the Appellant would certainly have put forward the Reasons at the hearing.”

10.As Mr Huggins, for Dr Kwong, pointed out there is an apparent inconsistency between the 2^nd and 3^rd affidavits.

11.Moreover, the 3^rd affidavit appears to be inconsistent with the stance taken by Mr Blanchflower SC, who appeared for the Medical Council below, that it was:

“… unnecessary for the Medical Council to provide any or any detailed justification of the restrictions challenged in these proceedings”.  (para. 123 of the judgment)

12.As the judge observed:

“121.   Mr. Blanchflower’s argument on the margin of appreciation or deference arises because, in its affidavit evidence for these proceedings, the Medical Council has largely confined itself to setting out how the Code has evolved into its present form.”

13.Earlier in his judgment the learned judge said:

“48.   The essential difference between the parties is whether the present practice promotion rules are ‘proportionate’ to the legitimate purpose sought to be achieved.  Where (in other words) should one draw the line?”

14.One might also say that the battle ground was of the Medical Council’s choosing since, as the judge has pointed out:

“101. … under Hong Kong law, it is well-settled that the burden of justifying an interference with a guaranteed right rests on the public body being challenged. …”  See para. 101 of the judgment, and HKSAR v Ng Kung Siu and Anor [1999] 2 HKCFAR 442 at para. 46.

15.It was against such background the learned judge observed at paragraph 137:

“137.   It is not enough for the Court to inquire whether the Council has followed a reasonable process in the drafting of its rules on practice promotion.  The burden is on the Council to justify restrictions on a doctor’s right of free expression.  To do so, the Council must articulate the reasons which it says justify the measures taken.  It will then be for the Court to evaluate whether those reasons meet the proportionality test.  In the absence of reasons, the Council may well be unable to discharge the burden of justification which rests on it.”

16.This prompted the Medical Council to apply to adduce evidence on the specific reasons of justification for each of the restrictions found to be unconstitutional by the learned judge.  Of these restrictions, I believe the first was probably the most important.

17.Restrictions on the production of evidence on appeal is essential for finality in litigation.  One aspect of finality is that litigants are required to bring forward his whole case at once and not to bring it forward piecemeal.  If a second chance is readily available, litigants might put forward what they conceived to be their best case first, then should that fail, they might try another tack on appeal.  Thus, Lord Woolf CJ in Taylor & Anor v Lawrence & Anor [2002] 2 All ER 358, citing Henderson v Henderson (1843) 3 Hare 100, said that litigants:

“… will not normally be permitted to have a second bite at the cherry”

18.That is for good policy reason.  If litigants put forward their whole case at once, the court, possessed of the full picture, is more likely to be able to arrive at the correct conclusion.  Moreover, our system of justice, with the possibility of two appeals, works best when the appellant tribunal has the benefit not only of the considered judgment of the court appealed from, but also a critical analysis of that judgment.  Admission of fresh evidence on appeal would at least reduce the importance of the judgment appealed from.

19.Thus, restrictions are essential for good administration of justice.  The principles upon which such evidence can be admitted are known as the Ladd v Marshall principles.  They are:

“… first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” (See: Ladd v Marshall [1954] 1 WLR 1491)

20.These principles were formulated in civil litigation between parties.  They are equally applicable in judicial review.

21.I would adopt the approach of the English Court of Appeal in E v Home Secretary [2004] QB 1044, namely, that the Ladd v Marshall principles “remain the starting point, but there is a discretion to depart from them in exceptional circumstances.”  Para. 82.  per Carnwath LJ.

22.R v Home Secretary, Ex Parte Momin Ali [1984] 1 WLR 663, another decision of the English Court of Appeal, was to similar effect.  Sir John Donaldson MR regarded the principles which underlied the decision in Ladd v Marshall applicable:

“… subject always to the discretion of the court to depart from them if the wider interests of justice so require”.  at 670B.

23.The learned Master of the Rolls went on to say:

“This fresh evidence was clearly available and should have been placed before Webster J. It is not the function of this court, as an appellate court, to retry an originating application on different and better evidence. We are concerned to decide whether the trial judge’s decision was right on the materials available to him, unless the new evidence could not have been made available to him by the exercise of reasonable diligence or there is some other exceptional circumstance which justifies its admission and consideration by this court. That is not this case.”  [Emphasis added]

24.The Medical Council accepts that the first condition is not satisfied.  The first condition is the critical condition.  It underlines the importance of finality in litigation.  If the second and third conditions are not satisfied there would be no reason for the admission of the further evidence at all.  If the first condition is not satisfied, the fulfilment of the second and third conditions would normally not be enough.

25.Mr Cooney submitted although the proceedings were in form between the respondent and the appellant, they in fact have implications for all medical practitioners in Hong Kong and in indeed the community in which they practice medicine.  Also, in the appellant’s perception, there will be damage to the public interest consequential upon the judgment, as well as (potentially) to the health and well-being of patients.  In Dr Fang’s first affidavit Dr Fang said the code’s purpose was “to ensure public trust in the profession and to achieve the common good of public health in society”.  And that the interests of the health of citizens of Hong Kong are of compelling importance.  And that the resolution of issues of such importance should not depend upon the accidents of litigation strategy.  Mr Cooney also downplayed the inconsistency referred to in para. 10 above.  He submitted that the Medical Counsel was really saying no more than that with hindsight they could see more clearly the need for more evidence. Certainly, it was not the Medical Council’s case that counsel were at fault.

26.I have no doubt both parties felt strongly about their respective positions.  Dr Kwong brought these proceedings because of his strongly held view that the restrictions in the Code were not in the best interest of the public.

27.A party’s perception of public interest is not of itself a sufficient reason to relax the Ladd v Marshall principles in judicial review.  Since there is no automatic discovery in judicial review, the court should be vigilant to ensure that litigants should understand that only truly exceptional circumstances would justify further evidence on appeal.

28.If a decision has a wide impact that would be an important consideration.  But it is not sufficient for a party to submit that it firmly believes that serious consequence would follow the decision appealed from.  The court must take all the circumstances into consideration including the strength of the new evidence, its likely impact on the result, and the reason why such evidence was not made available at trial.

29.Dr Kwong opposed this application and contended that the Reasons has all the hallmarks of “lost litigation afterthoughts”, and hence the third condition is also not satisfied.

30.A short chronology may be useful.  The judgment was handed down on 11 August 2006, and discussed at the extraordinary meeting of the Ehtics Committee held on 25 August 2006.  In the edited miniutes “DF-3”, it appeared that the members considered and endorsed certain “draft reasoning tabled at the meeting”, but they went on to endorse further justifications for Declaration (1).  There was also further discussion regarding Declaration (3).

31.A Progress Report of the Ethics Committee dated 5 September 2006 was prepared for the Medical Council.  In para. 6, it stated:

“The EC has drawn up a list of justifications for the Council’s consideration (Appendix I).”

32.At the Medical Council’s meeting on 6 September 2006, Dr Fang briefed members on the Progress Report at that meeting, the Medical Council adopted Appendix I of the Progress Report.

33.Dr Fang in his 3^rd affidavit explained that the initial draft was prepared by the legal adviser:

“… based on his observation and understanding of the reasoning applied by the Ethics Committee and the Appellant and their subcommittees and working groups in previous meetings all of which preceded the Judicial Review”.

34.The legal adviser was appointed in June 2003.  The Medical Council has refused to produce this draft because of legal and litigation privilege.

35.Dr Fang in para. 17 of his affidavit confirmed:

“… that the reasons set out in Appendix I of the Progress Report reflect the principles underlying the restrictions. …”

36.Two other distinguished members of the medical profession who were members of the Ethics Committee and the Medical Council at relevant times, also confirmed that:

“… the justifications for the provisions of the Professional Code and Conduct on practice promotion set out in that document correctly reflect the underlying principles of the discussions of the working group / the Ethics Committee / the Council during the reviews and modifications of the provisions on practice promotion”.

37.I note the strong but restrained criticisms advanced on behalf of Dr Kwong by Mr Huggins.  I also note Dr Fang’s good faith is not impugned.

38.Dr Kwong is understandably suspicious of what Mr Huggins called “lost litigation afterthoughts” with its tendency for unconscious ex post facto rationalization.

39.After careful consideration of the Reasons, I am satisfied that they are reasons which one might have expected bodies such as the Ethics Committee or the Medical Council to have considered when they had occasion to consider the restrictions.  I will deal with those reasons in greater detail later.  I am willing to proceed on the basis that the evidence is apparently credible in the sense that at one time or another they were the reasons considered by the Ethics Committee and the Medical Council.

40.Mr Cooney, in a written submission which also bore the name of Mr Beloff QC, has referred me to authorities where evidence was admitted on appeal although the first condition was not met.

41.In R v Secretary of State for the Home Department Ex Parte Simms [1999] QB 349, the Home Office was allowed by the Court of Appeal to adduce additional evidence to justify a ban on free access by journalists to prisons.  The House of Lords itself granted leave to adduce fresh evidence on behalf of the prisoners bearing on the importance of communications between prisoners and journalists.  Counsel for the Home Secretary was given leave to challenge the fresh evidence if it was thought proper to do so.  There was no challenge.

42.It was submitted that the situation in Ex Parte Simms was analogous:

“	(i)	the issue was one of limitation by a public authority on freedom of expression;
	(ii)	the party which sought to adduce the fresh evidence was the imposer of the limitation;
	(iii)	the fresh evidence went to justifications for the ban; and
	(iv)	the evidence was itself in part expert opinion.”

43.Ex Parte Simms was concerned with a narrow point, namely, whether a refusal to permit a journalist to have an interview with a prisoner who wanted to obtain a reference back of his case to the Court of Appeal to challenge the safety of his conviction could be justified.  The Court of Appeal ruled that a prisoner had no right to an oral interview (as opposed to correspondence) with a journalist who was willing to investigate his case and, if appropriate, to take up his case through the media. The prisoners argued that only if they were allowed to have an oral interviews in prison with the journalists would they be able to have the safety of their conviction further investigated.  It was in that context that the House of Lords permitted fresh evidence.

44.The fresh evidence in the House of Lords related to the usefulness of an oral interview and the enormous time and resources required in any investigation.  The evidence was that:

“… No one would contemplate such a commitment unless they had the clearest possible view at the outset of the appropriateness of their efforts. Such a view can only be properly arrived at by meeting the individuals concerned and discussing their predicament with them. …”  at 128A.

45.The other evidence were details of some 60 cases over the previous 10 years where journalists played a substantial role in identifying miscarriages of justice which led to the quashing of the convictions.  From which Lord Steyn drew the inference that:

“… until the Home Secretary imposed a blanket ban on oral interviews between prisoners and journalists in or about 1995, such interviews had taken place from time to time and had served to identify and undo a substantial number of miscarriages of justice. …” at 128G.

46.As Mr Huggins submitted, it appeared the admission of fresh evidence was unopposed.  On the other hand, that does not mean that had it been opposed, the House of Lords would have refused leave.  The new evidence was decisive of the appeal, and in the circumstances of that particular case, one cannot rule out the possibility that the evidence would have been admitted even if it had been opposed.

47.In the Court of Appeal, evidence on behalf of the Home Secretary was admitted after the judge had said there was no evidence before him to justify the conclusions that visits would be incapable of appropriate control.  Unfortunately, the reasons why the evidence was admitted are unknown.  Presumably, it was not opposed.  I am unable to obtain any guidance from the decision of the Court of Appeal on the circumstances which would justify a departure from Ladd v Marshall.

48.I was also referred to R (Hirst) v Secretary of State for the Home Department [2006] 4 All ER 639, a judicial review of a statutory scheme for recall of life prisoners while on licence, the Court of Appeal:

“… in the light of this challenge to the statutory scheme we sought  further information about the arrangements which lead to the recommendation for licence revocation and recall.”  Para. 10 page 643.

49.It was submitted that the Court of Appeal was right to obtain the best and fullest evidence.

50.I agree.  In judicial review, if the court is satisfied that with the further evidence, it would have the best and fullest evidence from the party seeking to adduce the further evidence and that without such evidence there was a real risk of a miscarriage of justice, I believe the court might admit such further evidence even if opposed.  But, each case will turn on its own circumstances.

51.However, these authorities do not support the Medical Council’s submission that the Court of Appeal should admit all material that is potentially relevant to the determination of a case which engages public interest considerations and whose outcome affects both the medical profession and the whole community.

52.The circumstances have to be exceptional for further evidence to be admitted. As I have explained finality is in the public interest.  The fact that, as Mr Cooney emphasised, the Medical Council felt strongly that the judge’s order is contrary to public interest is not, by itself, a sufficient exceptional circumstance.

53.Nor do I accept the Medical Council’s submission that with the benefit of the further evidence, the court would have had the best and fullest evidence from the Medical Council.

54.A little more background might help.

55.On the 5 October 2005, the Medical Council conducted a opinion survey on the proposal by the Ethics Committee:

“… to relax the current restriction on dissemination of service information allowing doctors to publish notices containing their service information in four types of printed media, i.e. journals, magazines, newspapers and periodicals.”

56.The same information permitted for the doctors directories would be permitted in the printed media, but without any restriction imposed on the frequency of the notices.  In other words, the proposed relaxation was at least as extensive as the first Declaration made by the learned judge.

57.Medical practitioners were asked to express their view on:

“Whether you agree with the principle of allowing medical practitioners to publish notices containing their service information in the four types of printed media.”

And they were asked to complete the enclosed questionnaire and return it on or before 31 October 2005.

58.Neither the questionnaire nor the responses have been produced.

59.Dr Kwong, in para. 27 of his affidavit opposing this application, made the point that the Ethics Committee in making the proposal “must have considered the reasons and benefits of allowing such relaxation”.  He said he was “surprised by the fact that the “fresh evidence” has not touched upon anything about the benefits of relaxation of the Code that the Ethics Committee and the appellant must have considered”.

60.Dr Kwong said:

“	27.	From the information disclosed in the above letter, I verily believe that:
		(a)	Both the Ethics Committee and the Appellant must have met to discuss the relaxation of the Code by allowing doctors to publish their basic information in the 4 types of printed media;
		(b)	Both the Ethics Committee and the Appellant must have considered the reasons and benefits of allowing such relaxation;
		(c)	The Ethics Committee had decided to propose to doctors in Hong Kong to relax the Code by allowing doctors to publish the basic information in 4 types of printed media (as mentioned in the above letter);
		(d)	The Ethics Committee had decided to propose to doctors in Hong Kong that there is no need for restriction on the frequency of the notices (as mentioned in the above letter);
		(e)	There must be minutes and/or records of the relevant meetings of the Ethics Committee and the Appellant; and
		(f)	The minutes and/or records must have set out the reasons why these meetings were held and the decisions made.
	28.	I am surprised by the fact that the ‘fresh evidence’ has not touched upon anything about the benefits of relaxation of the Code that the Ethics Committee and the Appellant must have considered. If there had been no reasons to do so, the Ethics Committee would not have proposed the relaxation of the Code. The Ethics Committee must have considered the value of relaxation before deciding to propose the relaxation of the Code to doctors in Hong Kong.”

61.In response, Dr Fang said in his 3^rd affidavit:

“22. In paragraphs 25 to 27 of the Respondent’s Affidavit, the Respondent referred to the covering letter of an opinion survey conducted by the Appellant in October 2005 on a proposal to relax the restriction on dissemination of service information by allowing doctors to publish notices containing their service information in four types of printed media. Among other reasons, the proposal was initiated in order to encourage doctors to utilize the Mainland and Hong Kong Closer Economic Partnership Arrangement (CEPA). The Ethics Committee could not reach consensus on the proposal even after protracted deliberation and consultation. In view of the controversial nature of the proposal, the Ethics Committee decided to put it to the Appellant for direction and suggested that the Appellant might consider conducting a general opinion survey among the whole profession. There is now produced and shown to me marked ‘DF-7’ a copy of the extracts of the Progress Report (i.e. paragraphs 2 to 7 of the Progress Report) of the Ethics Committee for the Policy Meeting of the Appellant on 1 June 2005. Given the divided views of the Ethics Committee and the organizations consulted by the Ethics Committee, the Council decided to consult all registered medical practitioners through an opinion survey in order to determine whether to adopt the proposal. It turned out that the majority of the medical practitioners were opposed to the proposal. The Ethics Committee would continue to find more acceptable ways to relax the relevant restrictions in the Code, but deliberations have since been put on hold pending the outcome of the judicial review.

23.  I refer to paragraphs 28 to 31 of the Respondent’s Affidavit. Given that the Ethics Committee could not reach a consensus on relaxation, that proposed relaxation of the Code was opposed by the majority of registered medical practitioners, and that the proposal was not endorsed by the Appellant, the Chairman’s letter dated 5 October 2005 does not impugn the credibility of the ‘fresh evidence’.”  [Emphasis added]

62.“DF-7” was a copy of the extracts of the Progress Report prepared for the Policy Meeting of the appellant on 1 June 2005.  But “DF-7”did not deal with Dr Kwong’s point, namely, that the Ethics Committee in making the proposal that the first restriction be relaxed must have “considered the reasons and benefits of allowing such relaxation”.

63.It appeared from “DF-7” that the Ethics Committee had conducted an earlier consultation regarding the proposed relaxation.  Of the 9 professional medical organizations consulted, 7 responded, of whom, 2, the Department of Health and the Hospital Authority had no objection, 4 opposed and Hong Kong Academy of Medicine was neutral.  The 4 opposing were Practising Estate Doctors’ Association Ltd, Hong Kong Doctors Union, Hong Kong Medical Association and The Association of Licentiates of Medical Council of Hong Kong.  It appeared that these 4 bodies opposed after consulting their own members.

64.“DF-7” did not show a lack of consensus within the Ethics Committee on the proposal, it showed a lack of consensus on the proper response to the objections raised by some of the professional bodies.  Thus it was recorded in “DF-7” that:

“	5.	The EC had thoroughly discussed the comments received from the professional medical organizations. Members’ views are as follows:-
		(i)	Having regard to the fact that most professional medical organizations were against the proposed changes to the Code and that the results of the surveys conducted by PEDA, HKDU and HKMA amongst their members showed opposition to the proposal despite the fact that the response rates were low, some Members considered that the results of this consultation exercise should be respected and that the proposal should be shelved.
		(ii)	Some Members pointed out that the proposal was not to permit advertising but the results of the surveys conducted by PEDA, HKDU and HKMA all indicated that their members were against ‘advertising’, not the actual proposal. This raised the concern as to whether the proposal had been misunderstood or not fully conveyed to the survey subjects. In view of the reliability problem and the low response rates/figures, some Members opined that it would not be appropriate to rely too heavily on the results of the surveys.
		(iii)	Noting that to every proposal there were always voices of opposition, some Members considered that the proposal should still be taken forward since it would provide a level playing field to all medical practitioners, irrespective of whether they were in solo or group practice, and address the public’s demand for more information to facilitate an informed choice of doctors as well as the doctors’ need to release more information to potential patients in order to meaningfully utilize the potentials of the CEPA.”

65.The Ethics Committee decided to report the outcome of the consultation exercise and the Ethics Committee members’ views to the Medical Council for its consideration.

66.Thereafter, the Medical Council decided to conduct a survey of its members, which led to the letter of 5 October 2005.

67.There is force in Dr Kwong’s suggestion that the Ethics Committee would not have made the proposal had it not thought that it was in the public interest to do so.

68.Mr Cooney submitted that I have misread Dr Fang’s evidence.  He submitted that Dr Fang’s evidence should be read as saying that the Ethics Committee had never reached any consensus on the proposed relaxation before it consulted the 9 professional bodies.

69.I indicated to Mr Cooney that I was willing to permit Dr Fang to make the matter clear by stating, if it be the case, that the Ethics Committee had not reached any consensus over the proposed relaxation before it decided to consult the professional bodies.  Or that when formulating the proposal and in its subsequent consultation, the Ethics Committee had not considered whether the relaxation might be contrary to public interest.  I told Mr Cooney the natural inference to draw was that the Ethics Committee had regarded the proposed relaxation as not being against the public interest.  It seemed to me to be inconceivable that the Ethics Committee would have made any such proposal otherwise.

70.In the letter of 5 October 2005, the Medical Council stated in terms that the Ethics Committee “proposes to relax the current restriction on dissemination”.  The natural inference was also that the Medical Council was of the view that the relaxation was not contrary to the public interest.  It seemed highly unlikely that if the Medical Council thought the relaxation was clearly contrary to public interest they would have conducted the survey.  So I told Mr Cooney that if the Medical Council wished to adduce evidence to show that such an inference would be wrong, I was prepared to give them an opportunity to do so.

71.I was told after the luncheon adjournment that no further evidence would be provided.

72.The court is left without any help on why the Ethics Committee proposed the relaxation of this restriction in 2005.  Thus, I cannot accept the submission that with the further evidence, the court would have had the best and fullest evidence.

73.Moreover, as Dr Kwong’s reaction to this application showed, had the further evidence been relied on before the learned judge, it was likely that more attention would have been given to the consultation in 2005.  Such is the dynamics of litigation, I would not be surprised that had the Medical Council chosen to justify the restriction principally on the merits of the historic reasons for the restrictions, the fact that in 2005 the Ethics Committee felt able to propose relaxation similar to the first Declaration would have assumed much greater importance.

74.Furthermore, I am not satisfied that the further evidence would have an important influence on the result of the case.

75.I turn to consider the Reasons.  I will only mention some of the more important ones.

76.I agree with Mr Huggins that:

“… the form of the so-called ‘fresh evidence’ is largely that of argument or submissions”.

77.The “overall justification” covered matters which I believe are submissions which the Medical Council can make on the existing evidence.  It mentioned the medical profession’s moral duty to save life and to relieve suffering, to limit commercialism, and the need to hold an appropriate balance between professional integrity and identify on the open hand, and basic human rights and the public interest on the other hand, and how its wary of any drastic change which might transform the character of medicine into a commercial trade.

78.Such general observations have to be considered in the context of each of the declarations;  I am not satisfied that such evidence would have any important impact on the outcome of the case.

79.As for the specific justification for the first restriction, the principal reason is that the Medical Council is in no position to police all mass media to ensure that no misleading advertisement is placed by doctors and that one misleading advertisement would be one too many.  That information is already available in doctors’ directories, which are published by professional medical organisation which can be trusted to publish only truthful information.  (I do not know whether the information on web sites are policed by the Medical Council.)  It is also said that the purpose of dissemination is to provide a reference database for patients to make an informed choice of doctors when they require a doctor’s service, not to attract patients to a doctor when they do not need such service.

80.These reasons are offered to support a complete ban so far as the printed media are concerned.

81.It is necessary to turn to the Declaration (1) under which a doctor can provide to the press basic information about his practice which he can otherwise provide through e.g. a medical directory.

82.The basic information are:

“	▪	All information presently permitted on signboards and stationery under sections 5.2.3.1 and 5.2.3.2 of the Code
	▪	District where the office of the doctor is located
	▪	Passport-type photograph of the doctor
	▪	Gender of the doctor
	▪	Language(s) / dialect(s) spoken
	▪	Medical services available in the doctor’s office (maximum 5 items) and range of fees
	▪	Medical services provided other than in the doctor’s office (maximum 5 items) and range of fees
	▪	Medical procedures and operations (maximum 5 items) and range of fees
	▪	Only those procedures in which the doctor has received adequate training and which are within his area of competency may be quoted
	▪	The nomenclatures of procedures and operations should follow as far as possible those promulgated by Colleges of the Hong Kong Academy of Medicine
	▪	Range of consultation fees, or composite fees including consultation and basic medicine for a certain number of days
	▪	Affiliated hospitals
	▪	Availability of emergency service and emergency contact telephone number”

83.I must say I find it difficult to relate the aIl ”ine in Hong Kong.

87.He also said that doctors’ adby juxtaposition:

“… used to indirectly promote other products / services.”

88.This is an additional reason found in his affidavit.  Unfortunately he did not go on to explain how the publication of the permitted information could have that effect.

89.I believe the admission of such evidence is of doubtful help.

90.Also, I am not satisfied that the Medical Council has produced the best and fullest evidence in its possession.  Nor do I think the further evidence should be admitted and leave it to Dr Kwong to apply for further discovery.  The high threshold burden is on the Medical Council and unless it is overcome, I should refuse leave.

91.This is not a case where I feel refusal to admit the further evidence might lead to a miscarriage of justice or any harm to the public good.  I am fortified in my view by the natural inference to be drawn from the 2005 proposed relaxation.  This view is also supported by the fact that the Department of Health and the Hospital Authority did not object to the proposal.  The Academy of Medicine was neutral.  The natural inference is that they did not object because they did not consider the relaxation harmful to public interest.  As for the objection by the other 4 bodies, which were apparently based on a survey of their members, and the subsequent survey by the Medical Council, I do not know the reason for their objection.  An individual doctor may legitimately oppose a measure according to his personal interest.  I cannot so readily infer that they had opposed for public interest reasons.

92.At paragraph 134 of the judgment, when commenting on the decision of the Canadian Supreme Court in RJR – MacDonald Inc v Attorney General of Canada [1999] 127 DLR (4^th) 1, in particular, the observation of McLachlan J that it would not be enough to justify a restriction for body to point to an opinion poll of constituents, the learned judge said:

“Thus, for example, the Medical Council cannot rely on the rejection by majority of practitioners of the ethics committees’ January 2005 proposal for liberalising the Codes Rules on practice promotion”.

93.I am not satisfied that I should exercise my discretion in favour of admission of such further evidence in relation to the Declaration (1).

94.The second restriction goes to the number of items of medical services, procedures and operations which could be stated, namely, a total of 15 items.  It was said more is likely to confuse, and might mislead a patient to believe that the number is a reflection of his capability, or would seriously strain the profession’s ability to obtain conformity and equity.  Much of this is submission.  They will have little bearing on the outcome.  I see no reason to relax Ladd v Marshall.

95.Also, although the 2005 survey concerned only the first of the restrictions said to be contrary to the public interest, however, the reasons which led to the Ethics Committee’s proposal might have impact on this restriction too.  So here too, I do not have the best and fullest evidence.

96.So far as the Declaration (3) is concerned, it is clear from para. 160 of the judgment that the decision did not turn on the lack of justification.

97.Mr Cooney submitted that since the judge held incidental promotion of a doctor’s practice would “normally be enough to justify interference”, the Medical Council should be permitted to show this was not a normal case.  I do not agree. In any event, I do not regard the Reasons relating to the Declaration (3) are likely to be important to the outcome of the case.

98.As for the Declaration (4), it was said the Medical Council never intended liability to be strict.  If so, the Declaration (4) which was to the contrary, should not be objectionable.

99.It was said that the last sentence in para. 14.1.1 provides that “it is not sufficient …” not “it is not a defence” or “it is not acceptable”.  This is mere submission.  It was also said that the last sentence was necessary otherwise 14.1.1 would be rendered completely ineffective.  This is also argument.  Moreover, I do not understand what is said to be the effect of the last sentence.  It seemed not to be the Medical Council’s case that it imposed strict liability.  I see no reason to admit any further evidence.

100.For the above reasons, the application is dismissed with costs.

Mr Nicholas Cooney, instructed by Messrs Wilkinson and Grist, for the Respondent.

Mr Adrian  Huggins, SC, and Mr Alfred Fung, instructed by Messrs Johnson, Stokes and Master, for the Applicant.