Read the full judgment text of CACV 000403/2006 on BabelCite. This Court of Appeal judgment was delivered on 30 April 2009 before Le Pichon JA, Cheung JA, Stone J.
Medical professional discipline – disciplinary inquiry by the Medical Council – presence of legal adviser during deliberations and involvement in drafting the decision – whether the proceedings are a nullity – whether the appellant was guilty of professional misconduct – public endorsement by a doctor of a commercial brand of health products where she has a financial relationship with the manufacturer – whether the unwritten prohibition is 'prescribed by law' under Article 39 of the Basic Law and Article 16(3) of the Hong Kong Bill of Rights – whether the restriction on freedom of expression is necessary and proportionate – whether there was a breach of Article 10 of the Bill of Rights (fair and public hearing by a competent, independent and impartial tribunal) – the legal adviser was present during the Council's deliberations and prepared a draft of the decision for the Council's review – the court held that the legislation does not authorise such presence or involvement – the specific authorisation in section 6 of sub. leg. D and the implied authorisation in section 8 are exceptions to the normal rule that a non-member should not be present during deliberations – the irregularity is fundamental and goes to the validity of the decision – the court refused to evaluate the overall merits via untested affidavit evidence – on the substantive issues, the court held that the unwritten prohibition on public endorsement satisfies the requirements of certainty and accessibility and is 'provided by law' – the restriction is rationally connected with the protection of public health and the reputation of the medical profession, and is a proportionate restriction – appeal allowed and the order of the Medical Council set aside – order nisi of costs in favour of the appellant – leave to appeal to the Court of Final Appeal granted to the respondent
Legal issues: Whether the legal adviser's presence during Medical Council deliberations and involvement in drafting the decision invalidated the disciplinary proceedings · Whether the unwritten prohibition against public endorsement of commercial health products is 'prescribed by law' under Article 39 of the Basic Law and Article 16(3) of the Hong Kong Bill of Rights · Whether the restriction on freedom of expression is necessary and proportionate under Article 16(3) of the Bill of Rights
Outcome: Appeal allowed; order of the Medical Council set aside
Cites 4 cases