Read the full judgment text of CACV 373/2006 on BabelCite. This Court of Appeal judgment was delivered on 24 January 2008 before Ma CJHC, Tang VP, Stock JA.
Administrative law – judicial review – medical profession – practice promotion / advertising – freedom of expression – Basic Law Article 27 – Hong Kong Bill of Rights Article 16 – International Covenant on Civil and Political Rights Article 19 – proportionality test – margin of appreciation – Professional Code and Conduct – Medical Council of Hong Kong – Medical Registration Ordinance Cap 161 – challenge to four restrictions in the Code. The Applicant, a doctor whose interests mirror those of the Hong Kong Sanatorium and Hospital, challenged the constitutionality of four restrictions on practice promotion contained in the Professional Code and Conduct for the Guidance of Registered Medical Practitioners. The first restriction was a total ban on doctors providing basic, accurate and objectively verifiable information about their practices in newspapers, magazines and other print media, while the same information was permitted on signboards, service information notices, stationery, telephone directories, doctors' directories and medical practice websites. The second was a five-item cap on the number of medical services, services provided outside surgeries, and medical procedures or operations a doctor could list, giving a maximum of fifteen items. The third involved provisions in paragraphs 5.1 and 5.2 of the Code, which, together with the broad definition of 'practice promotion' in section 5.2.2.1, deterred doctors from public health education activities by exposing them to disciplinary risk whenever reference was made to their experience, skills, qualifications or reputation. The fourth imposed strict liability on doctors for non-conforming advertising by organizations with which they had a financial or professional relationship, even where due diligence had been exercised. The court applied the two-stage constitutional inquiry — whether a constitutionally protected right was infringed, and if so whether the infringement was justified — and the proportionality test from Leung Kwok Hung v HKSAR. While the court accepted that the Respondent's aim of protecting public health and the reputation of the medical profession was legitimate and that each restriction was rationally connected to that aim, the Respondent failed to demonstrate that the restrictions went no further than reasonably necessary. The first restriction was a 'sledgehammer to crack a nut' — the same information already permitted in other media could not reasonably be banned from print media, and concerns about policing, comprehension, and juxtaposition with other products could be addressed by less intrusive means. The second restriction's five-item cap was arbitrary and contrary to the Code's own principle of good communication and informed choice. The third restriction's wording was disproportionate, deterring legitimate public health education, as illustrated by Stambuck v Germany. The fourth restriction imposed strict liability in a manner that was unjustified where due diligence had been exercised. The Respondent's medical expertise and the margin of appreciation owed to it were acknowledged, but the court retained the ultimate constitutional responsibility and emphasized that the Respondent must put 'all the cards face upwards on the table' to discharge its burden of justification. Appeal by the Medical Council dismissed; the Applicant's judicial review succeeded; the four restrictions were not constitutionally justifiable; the Respondent (as appellant in the appeal) ordered to pay the costs of the Applicant in the appeal, to be taxed if not agreed.
Legal issues: Constitutionality of total ban on print media advertising by doctors · Constitutionality of five-item cap on listed services, procedures and operations · Constitutionality of Code restrictions on doctors' public health education activities · Constitutionality of strict liability for organization advertising under paragraph 14.1.1
Outcome: Appeal by the Medical Council dismissed; the four restrictions in the Professional Code and Conduct were found not to be constitutionally justified under the freedom of expression and the Applicant's judicial review succeeded.
Cited by 5 cases