DR. YUK KONG LAU v. THE MEDICAL COUNCIL OF HONG KONG

HCAL 4/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 4 OF 2007

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BETWEEN

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J U D G M E N T

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1.  In these proceedings, the applicant, who is a registered medical practitioner in Hong Kong, seeks to judicially review the decision of the Medical Council of Hong Kong (“the Council’) refusing to include the professional qualification of Fellow of American College of Cardiology (FACC) in the List of Quotable Qualifications maintained by the Council. There is also a challenge to the lawfulness of the definition of practice promotion under the professional code and conduct.

The applicant

2.  The applicant is a registered specialist in cardiology.  He is a full time consultant in cardiovascular disease and internal medicine and the Head of Cardiology Division of Ruttonjee & Tang Shiu Kin Hospitals. He is also an Honorary Clinical Associate Professor of the University of Hong Kong.   

3.  The applicant obtained his M.B.B.S. degree from the University of Hong Kong in 1982.  He is a Fellow of the Hong Kong College of Physicians and Fellow of the Hong Kong Academy of Medicine (Medicine).  He was appointed FACC in February 1997.  He is qualified to practise medicine in Hong Kong and California, USA.

The Council

4.  The Council was established under section 3 of the Medical Registration Ordinance, Cap.161.  Section 21(1) of the Ordinance confers on the Council the power to regulate the registration of medical practitioners, the conduct of the Licensing Examination as well as the maintenance of ethics, professional standards and discipline in the medical profession.

5.  One of the committees under the Council is the Education and Accreditation Committee (EAC), which was established in January 1997.

The 2009 Code of Professional Conduct

6.  Pursuant to section 20R(2) of the Ordinance, the Council published in November 2000 a Professional Code and Conduct, which was updated in March 2006 and a new section 5 was introduced.   After the Court of Appeal decision in Dr Kwok Hay Kwong v. Medical Council of Hong Kong [2008] 3 HKLRD 524, the Council conducted a review of the 2006 Professional Code and Conduct (“2006 Professional Code”).  In January 2009, a new set of professional code of ethics entitled “Code of Professional Conduct - For the Guidance of Registered Medical Practitioners” (“the 2009 Professional Code”) was published, which superseded the 2006 Professional Code and Conduct.   

7.  As with the 2006 Professional Code, Section 5 of the 2009 Professional Code deals with professional communication and information.  Section 5.2 sets out the principles and rules governing communication and provision of information to the public.  Section 5.2.2 relates to practice promotion while Section 5.2.3 deals with dissemination of service information to the public. 

8.  Section 5.2.2 of the 2009 Professional Code, which is in identical terms as that of the 2006 Professional Code, provides as follows:

“5.2.2 Practice promotion

5.2.2.1 Practice promotion means publicity for promoting the professional services of a doctor, his practice or his group, excluding communication with registered medical and dental practitioners, Chinese medicine practitioners, chiropractors, nurses, midwives, pharmacists, medical laboratory technologists, radiographers, physiotherapists, occupational therapists and optometrists. Practice promotion in this context will be interpreted by the Medical Council in its broadest sense, and includes any means by which a doctor or his practice is publicized, in Hong Kong or elsewhere, by himself or anybody acting on his behalf or with his forbearance (including the failure to take adequate steps to prevent such publicity in circumstances which would call for caution), which objectively speaking constitutes promotion of his professional services, irrespective of whether he actually benefits from such publicity.

5.2.2.2 Practice promotion by individual doctors, or by anybody acting on their behalf or with their forbearance, to people who are not their patients is not permitted except to the extent allowed under section 5.2.3.”

9.  In short, practice promotion by doctors is only allowed to the extent permitted by Section 5.2.3.  Under Section 5.2.3, a doctor may only provide information about his professional services to the public in the ways set out in the section, namely, signboards, stationery, announcements in mass media, telephone directories, practice websites, service of information notices, doctors’ directories, newspapers, magazines, journals and periodicals.  Section 5.2.3 also delineates the information that may be disseminated to the public.  One of the information that may be disseminated is the quotable qualifications approved by the Council.

10.  It should be noted that when the applicant brought this application, the code that was in force is the 2006 Professional Code.  The arguments advanced at the hearing however direct at the updated version of Sections 5.2.2 and 5.2.3.  Nothing turns on this.   

List of Quotable Qualifications

11.  The scheme of quotable qualifications was set up by the Council to regulate the quoting of qualifications by doctors in their communication of practice information to the public.  The regulation was considered necessary to maintain public confidence in the medical profession and to protect the public from misleading information.  A List of Quotable Qualifications (“the List”) was established to include only those qualifications which the Council was satisfied to be of an acceptable standard and reflected significant improvement to a doctor’s medical competence over and beyond his basic training.   

12.  The Quotable Qualifications scheme applies to communication of information about professional services to the public users of the medical services.  As noted above, under Section 5.2.3 of the Code, only qualifications in the List can be quoted by medical doctors in giving information about his professional services to the public.  Section 5.2.2.1 expressly provides that communication with fellow medical practitioners and other registered healthcare professionals do not amount to practice promotion and the restriction placed by the List does not apply. 

13.  The objectives of the List, as endorsed by the Council in October 1999, are:

(i) To give recognition to the basic medical education that was required of a person to be registered as a medical practitioner in Hong Kong;

(ii) To give due recognition to further instruction/ training that may significantly enhance the clinical expertise of the medical practitioner in the particular specialty or subspecialty of the quoted qualification;

(iii) To provide such information to the public so that the latter would have knowledge of what significant additional training, relevant to medical practice, that the medical practitioner has undergone and achieved recognition in; and

(iv) To provide other medical practitioners with information of specialty or subsequent subspecialty expertise of any medical practitioner, based on which relevant patient referrals to him or her can be done.

Criteria for vetting quotable qualifications

14.  As to what qualifications may be included in the List, the Council had promulgated a set of criteria for vetting qualifications.  In August 2001, the Council published a Revised Criteria for Vetting Quotable Qualifications (“the Revised Criteria”), which came into effect on 1 January 2002.  The Revised Criteria was amended in February 2004.

15.  Under the Revised Criteria as amended, for a qualification to be included in the List, it must meet the following requirements:

(i) satisfy fully the spirit of the Professional Code and Conduct as is expressed in paragraph 4.

(ii) been ordinarily acquired through formal assessment by a recognized medical body, or assessment involving some sort of public vetting of the evaluation process (for example eternal examiners) from a recognized medical body acceptable to the Education and Accreditation Committee.

(In this regard a recognized medical body would be :-

(a) that providing tertiary education recognized by the Medical Council to be similar to that of the University of Hong Kong or the Chinese University of Hong Kong; or

(b) a post-graduate body with standards equivalent to that of the Royal Colleges or to those set by the Hong Kong Academy of Medicine.)

(iii) the course of study should ordinarily be full-time, post-graduate structured and supervised training or study related to medical practice of an appropriate duration which will be at least 6 months.  Where the course is not full-time, the Education and Accreditation Committee may apportion the equivalency in time if the Education and Accreditation Committee considers that the course is valid.

(iv) MD, MS awarded by a recognized medical body should be quotable.

(v) Honorary higher medical qualifications from recognized medical body as defined above should be quotable.

(vi) Master or PhD from recognized medical body shall be considered individually.  If the work leading to the degree is medically related, then the doctor may quote that degree.      

(vii) An application for the quotability of a qualification will not be considered before the completion of the initial course leading to that qualification. 

16.  Applications for inclusion of qualifications in the List are considered by the EAC, who will make recommendations to the Council.  The ultimate decision is made by the Council.

Events leading to the judicial review 

17.  On 19 December 2005, the applicant wrote to the EAC applying for permission to quote FACC as his quotable qualification.  The EAC replied by letter dated 9 January 2006, the relevant part of which states as follows:

“You may wish to note that application for inclusion of the captioned qualification in the List had been rejected by the Medical Council in 2004 on the ground that it had failed to fulfil the requirements of the Revised Criteria as it was not a specialist qualification and was not obtained by examination. Under the circumstance, unless you can provide the Committee with further information to support that the qualification fulfils the requirements of the Revised Criteria, your application will not be considered by the Committee.”

18.  What happened was this.  In March 2004, EAC received an application from another medical practitioner for inclusion of FACC in the List.  In the course of considering the application, the EAC wrote to the Hong Kong College of Physicians (HKCP), seeking its advice on the Chinese translation of the qualification.  In reply, HKCP stated that its council was of the opinion that FACC “is not a specialist qualification and is not obtained by examination” and it would therefore not comment on the Chinese translation.  Acting on the view of HKCP, EAC recommended to the Council that the application be rejected in that the qualification failed to fulfil the Revised Criteria. Subsequently, the Council endorsed the recommendation and rejected the application on the ground that FACC failed to fulfil the Revised Criteria.           

19.  In response to EAC’s letter dated 9 January 2006, the applicant wrote to EAC on 19 January 2006 to provide further information to show that the qualification of FACC fulfils the requirements of the Revised Criteria.  The matter was considered by EAC at its meeting on 17 March 2006.  Having regard to the fact that the qualification was not obtained by examination conducted by the conferring body, American College of Cardiology (ACC) and also HKCP’s views in 2004 (see paragraph 18 above), EAC recommended to the Council that the application be rejected. 

20.  At its Policy Meeting held on 4 April 2006, the Council endorsed the EAC’s recommendation and decided to reject the application.  The decision was communicated to the applicant by letter dated 7 April 2006.  The material part of the letter reads:

“… Having considered all the information placed before it, the Council considered that the captioned qualification was not a specialist qualification and was not obtained by examination provided by the American College of Cardiology.

In the light of the above, the Council decided that the application for inclusion of the qualification “Fellow of the American College of Cardiology” in the List should be rejected.”

21.  By letter dated 24 April 2006, the applicant wrote to the Council giving notice of his intention to appeal against the decision.   He further requested for copy of the minutes of the Policy Meeting regarding the considerations and reasoning underlying the decision.  The Council replied on 17 May 2006, stating that the reasons for its decision to reject the application had been set out in the latter dated 7 April 2006.  The request for minutes was refused on the basis that it was confidential information.

22.  On 15 August 2006, the applicant lodged an appeal to the Council against its decision to reject his application.  In his letter setting out his appeal, the applicant dealt specifically with the two reasons given in the Council’s letter of 7 April 2006, namely, FACC is not a specialist qualification and it is not obtained by examination provided by ACC. 

23.  The applicant’s appeal was supported by the Hong Kong College of Cardiology (HKCC) and the ACC.  By letter dated 15 August 2006, HKCC wrote to the Council, pointing out that FACC is highly recognized worldwide and confers on its holder a specialist status in cardiovascular medicine.  HKCC further pointed out that like most other specialty Colleges in the U.S., ACC would not provide the specialty examinations itself; instead it endorsed the American Board certification and examination in cardiovascular disease.  HKCC further observed that the Revised Criteria did not stipulate that the qualification had to be a specialist qualification and obtained by examination provided by the conferring body.  By another letter dated 15 September 2006, HKCC reiterated that FACC is a highly prestigious and internationally recognized specialist qualification and offered to send a representative to explain the situation if the Council so desired.  The letter intimated as well that HKCC was exploring the possibility of judicial review, if necessary.

24.  ACC also wrote to the Council on 15 August 2006, explaining that FACC is a specialist qualification and is only granted to those who have successfully completed an accredited training program in a cardiovascular-related subspecialty field and have certification by an applicable subspecialty board, and that the process is controlled by confirmed information from training program directors and, as is the practice of medicine in the United States, by independent boards of medicine.      

25.  The Council considered the applicant’s appeal at its Policy Meeting on 4 October 2006.  The material part of the minutes on the deliberation states as follows:

“ Fellow of the American College of Cardiology

94. Referring to the letters dated 15 August 2006 from the HKCC and American College of Cardiology (ACC) and a second letter from HKCC dated 15 September 2006 tabled at the meeting, the Temporary Chairman noted that ACC did not hold the specialty examination itself but endorsed the American Board certification and examination in cardiovascular disease as one of the mandatory prerequisite. Pointing out that the examination which led to the award of the captioned qualification was not organized by the ACC but the American Board in Cardiovascular Disease, the Temporary Chairman was concerned whether it was appropriate to allow the appeal given the fact that the examination did not have a direct relationship to the captioned qualification. The Temporary Chairman also drew Members’ attention to the penultimate paragraph of HKCC’s letter dated 15 September 2006 tabled at the meeting which stated that ‘As advised by our legal adviser, we are seeking the opinion of our fellows for the possibility of judicial review if necessary.’

95. In response, Prof. Grace TANG informed the meeting that based on the same concern of the Temporary Chairman, the EAC formed the view that the application for inclusion of the captioned qualification in the List of Quotable Qualifications (the List) be rejected. Being an EAC member, Dr K CHOI confirmed that whilst the captioned qualification was a prestigious one, the EAC, after due consideration, formed the view that he captioned qualification should not be allowed for quotability.

96. Having considered the details of the captioned qualification, the reasons set out in the appellant’s letter and the letters from HKCC and ACC, the meeting maintained the view that the application for inclusion of the captioned qualification in the List should be rejected.  In the circumstances, the meeting decided to uphold its previous decision of rejecting the application and dismiss the appeal.”         

26.  By letter dated 10 October 2006, the Council informed the applicant of its decision to dismiss his appeal.  The material part of the letter states:

“Your appeal was considered by the Council at its Policy Meeting held on 4 October 206. Having considered the reasons stated in your letter and the letters from the Hong Kong College of Cardiology and the American College of Cardiology respectively in support of the appeal, the Council maintained the view that the application should be rejected. In the circumstances, the Council decided to uphold its previous decision of rejecting the application and dismiss the appeal.

In accordance with the appeal procedures adopted by the Council, the above-mentioned decision on the appeal is final.”

As can be seen, no new reasons were given by the Council in rejecting the applicant’s appeal.

The application for judicial review

27.  On 8 January 2007, the applicant filed the Form 86A herein. Leave to apply for judicial review was granted on 10 January 2007. On 23 January 2007, the Notice of Motion applying for judicial review was filed.  The Council acting by the Department of Justice filed its evidence in opposition on 19 March 2007.  However, no step was taken by the applicant to set down the application for hearing until 2 November 2009. 

28.  In the Form 86A, three grounds were raised. They are:

(1) The decision of the Council as communicated in the letter dated 10 October 2006 (“the Decision”) constitutes a breach of Articles 27 and 39 of the Basic Law and Article 16 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap. 383.

(2) The Decision is irrational and/or manifestly unreasonable.

(3) Section 5.2.2.1 of the Code is in breach of Articles 27 and 39 of the Basic Law and Article 16 of HKBORO.

29.  In the Form 86A, the following relief were sought:

(1) A declaration that the Decision was an unlawful breach of Articles 27 and 39 of the Basic Law and Article 16 of HKBORO.

(2) An order quashing the Decision.

(3) A declaration that the updated Section 5.2.2.1 in the 2006 Professional Code is an unlawful breach of Articles 27 and 39 of the Basic Law and Article 16 of HKBORO.

(4) Further and other relief.

(5) Costs. 

30.  In paragraph 5 of his 2^nd affirmation, the applicant indicated he would seek a declaration that Section 5.2 of the Professional Code (as revised in January 2009) was in breach of Articles 27 and 39 of the Basic Law and Article 16 of HKBORO.  This was not pursued at the hearing.

31.  In the course of his submissions, Mr Huggins SC for the applicant sought to revise and re-formulate the declaration in respect of Section 5.2.2.1 (see paragraph 75 below).     

32.  Mr Huggins SC further asked, by way of further and other relief, that upon quashing the Decision, either a declaration be granted declaring the applicant is entitled to quote publicly his qualification of FACC or a mandamus be issued directing the Council to forthwith include the qualification of FACC in the List. 

The qualification of FACC

33.  Before addressing the issues in this application, it is necessary to understand the nature of the qualification of FACC, the criteria for its conferment and how it is obtained by the applicant.

34.  FACC is a qualification that has been in existence for over 30 years.  The qualification is conferred by ACC.  It is the applicant’s case that ACC is a post-graduate medical body highly recognized among the medical profession and with standard equivalent to that of many Royal Colleges, whose qualifications the Council has allowed to be quotable and are on the List.  The applicant’s view is supported by the HKCC, who refers to ACC as “one of the most prestigious and leading cardiology specialty colleges in the world” and is “a highly regarded and recognized medical body by the profession globally”.  ACC’s letter to the Council dated 15 August 2006 also made the point that “ACC holds standards equivalent to that of the Royal Colleges of the UK, Canada, and Australia-New Zealand”.   There is nothing on the evidence to indicate that the Council takes issue with the status or reputation of ACC as a leading and internationally recognized cardiology specialty medical body, with standard comparable to Royal Colleges, whose qualifications the Council has accepted to be quotable qualifications.

35.  As to the criteria required for obtaining the qualification of FACC, the materials provided by the applicant show the general criteria for physicians trained in the USA are as these:

(A) Certification by the American Board of Internal Medicine (ABIM) after:

(1) Satisfactory completion of three years of training in internal medicine at accredited medical centre, and

(2) Successfully passing the examination in internal medicine set by the American Board of Internal Medicine (ABIM); and

(B) Certification by an applicable subspecialty board that holds membership in either the American Board of Medical Specialties (ABMS) or the Advisory Board for Osteopathic Specialists of the American Osteopathic Association (AOA) after:

(1) Satisfactory completion of an accredited training programme in a cardiovascular-related subspecialty field (the minimum number of years of training being three years for adult cardiology or paediatric cardiology and two years for cardiovascular surgery) at accredited medical centre, and

(2) Successfully passing the cardiovascular-related subspecialty examination set by the relevant subspecialty board; and

(C) At least 18 months past completion of the required subspecialty training at the time the application for fellowship is considered by the Credentials Committee of ACC.   

36.  Alternatively, for candidates who do not have board certification, they must have undergone the trainings required to qualify for admission to examination by one of the recognized cardiovascular-related subspecialty boards (i.e. (A)(1) and (B)(1) in the preceding paragraph), if working in a field having a certifying board.  They shall also have made significant contributions to the scientific literature or as a teacher or investigator in cardiovascular disciplines.

37.  Information on what FACC denotes and how the qualification may be acquired is readily accessible on the Internet.

38.  In the case of the applicant, he completed three years of accredited training in internal medicine (1987–1990) at Michael Reese Hospital & Medical Centre, University of Chicago.  He then passed the national examination in internal medicine set by the ABIM.  Thereafter, he completed another three years of accredited training in cardiology (1990-1993) at Cedars-Sinai Medical Centre and UCLA.  He then passed the national examination in cardiovascular disease set by the subspecialty board of ABIM, the American Board of Internal Medicine in Cardiovascular Disease (ABIM in CVD).  He had also received formal certifications from ABIM as to the above attainments.  He was assessed and conferred the qualification of FACC by ACC in February 1997.

39.  It should be noted that the Council has not challenged the applicant’s case that FACC is a quotable qualification in the USA, China, UK, Australia, New Zealand, Canada and many other European and Asian countries.  There is no issue that FACC is an internationally recognized and highly regarded qualification.  It was in fact recognized by one of the Council members at the meeting on 4 October 2006, and implicitly by Professor Tang in her affirmation, that FACC is a prestigious qualification.

The reasons for the Decision

40.  I next turn to the Council’s reasons for the Decision.  It is plain from the evidence that there has been a change in the reasons underlying the Council’s refusal to include FACC in the List.  The refusal of the prior application in 2004 was on the ground that FACC was not a specialist qualification and was not obtained by examination.  When considering the applicant’s application in March 2006, the Council no longer took the view that the qualification was not obtained by examination.  It rejected the application on the ground that the examination was not provided by ACC and also that it was not a specialist qualification.

41.  As to the latter reason that FACC was not a specialist qualification, in ACC’s letter to the Council dated 15 August 2006, it was stated that under the bylaws of ACC, holders of FACC are required to be specialists in adult cardiology, paediatric cardiology, cardiovascular surgery or medical scientists who have made significant contributions to and who devote significant parts of their career to cardiovascular medicine.   ACC further confirmed that FACC is a specialist qualification.  It appears that after receipt of this letter from ACC, the Council no longer subscribed to its initial view that FACC is not a specialist qualification.  The issue of whether FACC is a specialist qualification was not among the Council’s considerations at its deliberation of the applicant’s appeal.  This is confirmed by Professor Tang’s affirmation and also by Mr Kwok who appears for the Council.  In these proceedings, the Council has also not adduced any evidence or submission on this issue. 

42.  As can be seen from the minutes of the meeting on 4 October 2006, when the Council came to deliberate on the applicant’s appeal, no issue was taken on the specialist status of the qualification.  The only concern of the Council was that ACC did not hold the specialty examination and that the examination organised by the ABIM in CVD did not have a direct relationship to the qualification. 

43.  In her affirmation, Professor Tang sought to elaborate on the Council’s reasons for the Decision, stating that:

“37.  ACC does not hold its own specialty examination for the grant of the qualification FACC.  Instead it endorses the certification and examination in cardiovascular disease by other medical bodies, i.e. the ABMS or AOA.  The examination involved is neither specific to the qualification, nor is it oriented towards the qualification. Furthermore, the granting of FACC to candidates without certification clearly show that there is no formal assessment for the qualification. The Council considered that the application did not meet the requirement of paragraph (ii) of the Revised Criteria for vetting quotable qualifications, i.e. “ordinarily acquired through formal assessment by a recognized medical body, …”.  Given that the examination did not have a direct relationship to the qualification, the Council decided to reject the Applicant’s application.  The prestige of the qualification and the standing of the qualification holders are not relevant factors for deciding the application.

38. It is inappropriate to include a qualification in the List on the basis that it is a prestigious qualification, as the general public in most of the cases would not have information as to how the qualification is acquired.  The requirement for a quotable qualification to be formally assessed by the qualification conferring body is to assure the public that the qualification holder has acquired a required standard of medical competence in the relevant area.  The purpose of the Quotable Qualification Scheme is to give the public information which properly reflects the additional medical training of significance to the competence of a doctor.  It is not a scheme for the glorification of a doctor’s status or prestige.  Awards and honours which are based on a person’s contribution or service to the community or profession are not matters relevant to the person’s medical competence.”     

44.  The point that Professor Tang sought to make is that the qualification of FACC does not fulfil the requirement in paragraph (ii) of the Revised Criteria (“Revised Criteria (ii)”), which requires a qualification to be “ordinarily acquired through formal assessment by a recognized medical body”.   The reasons she gave are: (1) the examination is not organised by the ACC and is not set specifically for the grant of the qualification; and (2) FACC may be granted to candidates without certification.  

45.  As Mr Huggins SC observed, this affirmation is the first occasion that the Council seeks to explain why it considers the qualification does not meet the requirements laid down in the Revised Criteria.  In the Council’s letters to the applicant communicating the rejection of his application and the dismissal of his appeal, there was no reference at all to the Revised Criteria.  Mr Kwok referred to EAC’s first reply letter to the applicant dated 9 January 2006, which said that the prior application by another doctor was rejected for not meeting the Revised Criteria.  I do not agree this letter shows the Council had explained to the applicant that non-fulfillment of the Revised Criteria was a reason for the Decision.  It has to be remembered that in response to the applicant’s request for the reasons underlying the Decision, the Council stated in the letter dated 17 May 2006 that the reasons for the Decision were those in the letter dated 7 April 2006, in which no reference was made to the Revised Criteria.

46.  I pause here to observe that although Professor Tang had, in explaining the origin and development of the Quotable Qualifications scheme, mentioned that there were some qualifications that did not directly relate to medical practice and were of questionable standard and they would confuse or even mislead the public, there is no suggestion that FACC falls within this category of qualifications.

Ground 1: The Decision infringes the freedom of expression

47.  The challenge to the Decision is mounted on two grounds, the first of which is that it infringes the freedom of expression guaranteed by the Basic Law and the HKBORO.

48.  Articles 27 and 39 of the Basic Law provide:

“Article 27

Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.

Article 39

The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedom enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

49.  Article 16 of HKBORO further provides:

“Article 16

Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary-

(a) for respect of the rights or reputations of others; or

(b) or the protection of national security or of public order (ordre public), or of public health or morals.”

50.  The applicant’s case is that these Articles confer a prima facie right to publish information about the qualifications, expertise and experience of medical practitioners which is true, verifiable and not misleading because the public has a legitimate interest in receiving such information to enable it to make informed choices of doctors and available medical treatments.  Interference with this prima facie right may only be lawful if and to the extent that it advances a legitimate public interest and does so in a proportionate manner, having regard to the aforesaid public interest in the provision of information.

51.  The applicant relies on the Court of Appeal’s judgment in Dr Kwok Hay Kwong v. Medical Council of Hong Kong [2008] 3HKLRD 524, the judgment of the European Court of Human Rights in Stambuk v. Germany (2003) 37 EHRR 845 and the judgment of the Supreme Court of Canada in Rocket v. Royal College of Dental Surgeons of Ontario [1990] 2 SCR 232.  The latter two cases had been considered and discussed by the Court of Appeal in Dr Kwok Hay Kwong’s case.

52.  The applicant’s arguments are: (1) The Council has given no justification nor legitimate reason for the Decision, which restricts the applicant’s freedom of expression; (2) The Decision is an absolute prohibition against the use of the qualification of FACC, which is unnecessary and disproportionate to achieving any legitimate objective; (3) The qualification of FACC is factual, verifiable and is not misleading; the public has an interest in receiving this information; and (4) The Decision deprives the public of the rights to receive information about doctors who possess the qualification of FACC in order to make informed choices as to doctors, medical services and treatments.

53.  Mr Kwok, on the other hand, submits that the right to freedom of expression is not engaged at all in that what prohibits the applicant, in his practice promotion, from disseminating to the public information of his qualification of FACC is the restriction imposed by the 2006 or 2009 Professional Code.  

54.  In my view, Mr Kwok must be right in saying that the restriction on the freedom of expression is imposed by the professional code.  This is abundantly clear from the Court of Appeal’s judgment in Dr Kwok Hay Kwong v. Medical Council of Hong Kong, which concerns Section 5 of the 2006 Professional Code.  Section 5.2.2.2 of the 2009 Professional Code prohibits practice promotion save to the extent permitted by Section 5.2.3, which only permits qualifications on the List to be quoted. 

55.  The present application does not involve any challenge to the restriction placed on practice promotion by Section 5.2.2.2.  Neither is there a challenge to the Quotable Qualifications scheme.  The subject matter of the applicant’s challenge is the Decision, by which the Council refused to include FACC in the List.  What the Decision decides is that the restriction imposed by the 2009 Professional Code shall not be relaxed to allow the qualification of FACC to be quoted.  The prohibition against dissemination of information to the public on the qualification of FACC is not brought about by the Decision.  This is acknowledged by Mr Huggins SC in his submissions when he said that “The mechanism itself is perfectly lawful. It is how the mechanism is implemented from time to time which is open to challenge and is challenged in this particular instance.”  (emphasis added)

56.  Thus analyzed, in respect of the challenge to the Decision, the right to freedom of expression is not really engaged.  What is at the heart of the applicant’s challenge is the rationality of the Decision, to which I now turn.         

Ground 2: The Decision is irrational

57.  In a nutshell, the applicant’s case is that there is overwhelmingly strong evidence indicating that the qualification of FACC has fulfilled the criteria for it to be included in the List, that the reasons given by the Council for rejecting the application’s application is irrational; and that the Decision produces the absurd result that the applicant cannot even quote FACC in the USA where the qualification is granted.

58.  The Council’s rationale for refusing to include FACC in the List is that the examinations leading to the grant of FACC are not set by ACC and are also not set specifically for the qualification of FACC. As such, the requirements in Revised Criteria (ii) are not met because there is no “formal assessment by a recognized medical body”.  The Council is effectively contending that “formal assessment by a recognised medical body” requires the medical body conferring the qualification to conduct examination for the specific purpose of assessing whether a candidate should be granted the qualification in question.  The question that the court has to decide is whether such a construction of Revised Criteria (ii) is well founded.

59.  The starting point must be to look at the wordings in Revised Criteria (ii).  There is nothing in Revised Criteria (ii) that mandates the holder of the qualification to pass examination(s) organised for the specific purpose of obtaining the qualification and conducted by the body conferring the qualification.  The evidence filed on behalf of the Council also does not offer any basis for reading into Revised Criteria (ii) the requirement that the qualification must be obtained by passing examinations conducted by the medical body conferring the degree and set for the specific purpose of granting the qualification.  

60.  In addition, it is trite, and the Council has not contended otherwise, that examination is only one of a variety of ways to assess a candidate’s competence and standard for a qualification.  Indeed, the applicant has identified qualifications currently in the List that are obtained not by examination, such as FRCP (Lond), FRCP (Edin) and FRCP (Glas).

61.  It is also plain that assessment of a candidate’s competence and standard, hence the conditions for the grant of a qualification, may consist of more than one component.  Passing an examination in the relevant area or specialty may be one of them.  It is equally open to the body conferring the qualification to have regard to trainings and examinations conducted by other professional bodies and boards as objective indication of a candidate’s competence and standard. 

62.  It is relevant also to note the applicant’s evidence that many of the approximately 500 qualifications approved by the Council as quotable qualifications are obtained by examinations not conducted by the medical body granting the qualifications, but via an approved or sanctioned medical body: para.27(2) of the applicant’s first affirmation. This is not controverted by the Council.

63.  In my view, there is no warrant for reading “formal assessment by a recognised medical body” as requiring the medical body conferring the qualification to conduct examination(s) specifically for the qualification.  What is most important in considering the requirements in Revised Criteria (ii) is to have regard to the purpose and objective underlying the requirement and of the establishment of the List.  In this regard, Professor Tang identified the purpose of the Revised Criteria (ii) as assuring the public that the qualification holder has acquired a required standard of medical competence in the relevant area, and the purpose of having the List as providing the public with information that properly reflects the additional medical training of significance to the competence of a doctor. 

64.  Neither the Council nor Professor Tang’s affirmation has explained how the problems perceived by the Council, namely, the specialty examination in cardiovascular disease was not set by ACC and not set specifically for FACC (despite being a prerequisite for obtaining the qualification), fall foul of the purpose and objective underlying Revised Criteria (ii) or the Quotable Qualification Scheme.  The conclusion of the Council is particularly difficult to understand in light of the undisputed evidence on the nature and standard of the specialty examination and the other components required for the award of the qualification.  As indicated in the applicant’s letters to EAC, the examination set by ABIM and the specialty examination in cardiovascular disease set by ABIM in CVD are national examinations.  Both ACC and HKCC in their letters to the Council stressed that the system and practice of medicine in the USA has been that specialty examinations are not conducted by the specialty colleges, but by independent boards.  HKCC further pointed out that the examination in cardiovascular disease is a tough 2-day examination.  In addition to passing the examinations, the qualification holder has to complete nationally accredited specialty programme and training for a minimum of three or two years, depending on the specialty.  Importantly as well, the Council has raised no doubt as to the standard of the qualification and the competence of the qualification holder.  It is not the Council’s case that the qualification of FACC is not of an acceptable standard or that it does not reflect a significant improvement to a doctor’s medical competence over and above his basic training. There is no challenge to the applicant’s case that FACC is an internationally recognized and highly regarded qualification.

65.  Mr Kwok made the submission that what is involved in the grant of FACC by ACC is a process of considering the certifications and making endorsement and that this is not formal assessment. In my view, this submission has overlooked the criteria required for obtaining the qualification.  On the evidence, for a physician to become a FACC, the candidate has to complete two fully accredited programmes of medical training, including one in the cardiology speciality, and to pass two examinations, one of which is in the cardiology specialty.  The Council has not really explained, and it is difficult to see, how in the case of physicians, it can be said that no formal assessment of a candidate’s competence and standard is involved in conferring the qualification.

66.  In Professor Tang’s affirmation, it was said that FACC may be granted to candidates without certification and this showed there was no formal assessment for the qualification.  However, this category of candidates would be those who have already received the required trainings and have made significant contributions to the scientific literature or as a teacher or investigator in cardiovascular disciplines.  Professor Tang also made the point that a person’s contribution or service to the community or profession is not relevant to the person’s medical competence.  But in the case of FACC holders who do not have board certification, they will be academics in medical science and researchers in cardiovascular disciplines.  While they do not have board certifications, they will have received the required trainings and possess the requisite medical knowledge and expertise.  The award of FACC is not solely on account of their community or professional service and contribution.  More importantly, this is a special route open only to a specific category of people.  The letter dated 30 July 2009 from ACC to HKCC[1] shows that only 17% of the FACC holders do not have board certifications and they are those who have met the more academic achievement requirements typically associated with scholars and researchers.  Thus viewed, the fact that FACC may be granted to candidates without board certification does not justify the conclusion that no formal assessment is required for obtaining the qualification. 

67.  It is further important to bear in mind that Revised Criteria (ii) only requires the qualification to be “ordinarily obtained through formal assessment” (emphasis added).  Given the small number of FACC holders who are not board certified, it cannot be said that FACC is not ordinarily obtained through formal assessment.         

68.  Mr Kwok sought to take a new point in his submission that the qualification of FACC does not fulfill Revised Criteria (ii) because the examination or assessment of the qualification was not carried out by an acceptable recognized medical body.  He suggested this was implicit in the reasons given in the Council’s letter dated 7 April 2006.  I do not accept the letter can be read this way when all that it said is that FACC “was not a specialist qualification and was not obtained by examination provided by the American College of Cardiology”.  That aside, it is incumbent on the Council to communicate in clear and unambiguous language the considerations and reasons underlying its decision.  In my view, it is not open to counsel to take this point when the Council has not indicated, whether in its communication with the applicant or in the evidence filed in these proceedings, that this is one of the reasons for the Decision.  Further, the examinations leading to the qualification of FACC are administered by the ABIM and the ABIM in CVD while the further trainings are carried out by individual accredited centres.  The Council has to explain and lead evidence to make good the argument that any or all of them are not recognized medical body within the meaning of the Revised Criteria.

69.  In my view, the Council falls into error in reading and understanding Revised Criteria (ii) as requiring a qualification to be obtained by examination specifically set for the qualification and set by its conferring body.  The Council’s conclusion that the qualification of FACC does not meet Revised Criteria (ii) is also, for the analysis and reasons above, demonstrated to be not properly founded.  The Decision is accordingly Wednesbury unreasonable. 

70.  In coming to this conclusion, I am conscious of the limited role of the court in judicial review proceedings and that due deference should be afforded to the views of the EAC and the Council on whether a particular medical qualification should be recognized and included in the List.  That said, however, it remains for the EAC and the Council to provide proper reasons for their views.  As pointed out by Stock JA (albeit in a different context) in Dr Kwok-Hay Kwong v. The Medical Council of Hong Kong, (unreported) 27 September 2007, [2007] HKCU 1632 at para.18, quoted in [2008] 3 HKLRD 524 at para.26, the court can only accord a degree of appreciation if it is told what it is being asked to appreciate.  Where, as in here, the materials before the court demonstrate that the reasons given for the decision cannot withstand scrutiny, after due and generous regard to the possible differences that reasonable man may have on the matter, the court will have no choice but to quash the decision as being Wednesbury unreasonable. 

Ground 3: The legality of Section 5.2.2.1

71.  The applicant also challenges the lawfulness of Section 5.2.2.1 in so far as it provides that “Practice promotion in this context will be interpreted by the Medical Council in its broadest sense, and includes any means by which a doctor or his practice is publicized, in Hong Kong or elsewhere, by himself or anybody acting on his behalf or with his forbearance …, which objectively speaking constitutes promotion of his professional services, irrespective of whether he actually benefits from such publicity.” (emphasis added)      

72.  The applicant’s complaint is that the words “or elsewhere” place a manifestly unwarranted restriction on the right of the applicant and all medical practitioners to publish qualifications obtained outside Hong Kong in all parts of the world outside Hong Kong.  It is said that the restriction is too wide and is unnecessary for achieving any legitimate objective. 

73.  The Council, on the other hand, points out that Section 5.2.2.1 expressly excludes communication with registered medical and healthcare practitioners from the meaning of practice promotion and that the restriction on quoting of qualifications to the public is only applicable to the promotion of a doctor’s practice in Hong Kong.  It is said that a doctor is at liberty to quote a qualification outside Hong Kong as long as it is not for the purpose of attracting patients to his practice in Hong Kong.  

74.  Mr Huggins SC takes issue with this contention. He argues that since Section 5.2.2.1 refers to “any means by which a doctor or his practice is publicized, … which objectively speaking constitutes promotion of his professional services, irrespective of whether he actually benefits from such publicity” (emphasis added), it imports an objective element so that the subjective intention of the doctor is immaterial on the question of whether it amounts to practice promotion.  And because of this, the section is worded disproportionately too wide.

75.  In the last part of his oral submission, an application was made to amend paragraph 3 of the relief in the Form 86A as follows (with amendments underlined):

“A Declaration that the disproportionately wide wording of section 5.2.2.1 of the Professional Code of Conduct for the Guidance of Registered Medical Practitioners as amended in January 2009 is an unlawful breach of Articles 27 and 29 of the Basic Law and Article 16 of the Hong Kong Bill of Rights Ordinance, Cap.383 to the extent that it has the unwarranted effect, in combination with sections 5.2.2.2 and 5.2.3, of disallowing a medical practitioner to engage in practice promotion outside Hong Kong by quoting a professional qualification (whether or not it is on the List of Quotable Qualifications), which qualification he has lawfully obtained outside Hong Kong, in circumstances in which such practice promotion is permitted in the place in which it is being carried out.”

76.  Mr Huggins SC also makes the point that the challenge to Section 5.2.2.1 is a distinct and free standing point, which is irrespective of the outcome to the challenge to the Decision.  It is also said that this challenge has ramification beyond this case.

77.  For my part, I have considerable reservations whether it is appropriate for the court to review the lawfulness of Section 5.2.2.1 in these proceedings and to entertain the revised declaration sought. Firstly, judicial review is a discretionary remedy.  The court only intervenes and grants relief where it is necessary to do so.  As far as the qualification of FACC and the applicant’s case is concerned, given the conclusion that the Council’s refusal to include FACC in the List is Wednesbury unreasonable and the relief that follow from that conclusion, it is to be expected that the Council will act to include the qualification of FACC in the List.  This being the case, the applicant’s concern about the extra-territorial effect of Section 5.2.2.1 has become academic.  It is unnecessary for the court to consider in this application the lawfulness of extending the restriction imposed on practice promotion to places outside Hong Kong. 

78.  Mr Huggins SC argues that even if FACC is on the List, when a doctor promotes his overseas practice outside Hong Kong in ways other than in accordance with the methods permitted by Section 5.2.3, he will be liable to disciplinary proceedings because of the extra-territorial effect of Section 5.2.2.1 and even though the way of practice promotion is acceptable in the place where it is carried out.  In consequence, he has put forward the amendment to the declaration sought in relation to Section 5.2.2.2.  I am not persuaded by the argument, which is hypothetical and does not arise from the application before the court.  The focus of the present application is on the qualification that can be quoted, and in turn the medical service information that can be disseminated when a doctor promotes his practice.  In the scenario postulated by Mr Huggins SC, however, the focus of the dispute is on the method and mode of practice promotion permitted by Section 5.2.3. 

79.  Similarly, the proposed amendment to the declaration sought is much wider than what was initially sought in the Form 86A and opens up new areas of enquiry that go beyond the scope of the applicant’s case.  The revised declaration is, for example, not confined to the position of the applicant, but is addressing a general situation.  The determination of the lawfulness of Section 5.2.2.1 however cannot be done in a vacuum. Clearly, when considering whether it is justified to extend the restriction on practice promotion outside Hong Kong, it will be relevant to consider whether the promotion or the means of publicity being scrutinised relates to a medical practice in Hong Kong.  The facts of this application are inadequate to support a proper consideration and determination of the issue.  On a judicial review application, a declaration may be granted if it would be just and convenient to do so.  It is very doubtful on the materials presently available that the court would grant the revised declaration.  The application to amend paragraph 3 of the relief in the Form 86A is accordingly refused.

Delay

80.  Before dealing with the relief, it is necessary to address the issue of delay.  These proceedings were commenced on 8 January 2007 and leave was granted on 10 January 2007. The evidence of the Council in opposition was completed on 19 March 2007.  Thereafter, the applicant did not proceed to set down the application for hearing until 2 November 2009.  There was a delay of over two and a half years.  It is a substantial delay.  In his 2^nd affirmation, the applicant explained his inaction on the basis of the appeal against the first instance decision in Dr Kwok Hay Kwong v. Medical Council of Hong Kong (unreported) HCAL 46 of 2006 and the subsequent revision of the professional code.  The first instance decision of Reyes J was handed down in August 2006, two months before the applicant made this application.  The appeal was fixed to be heard in October 2007.  The applicant said he was advised the appeal would have a significant impact on the professional code with regard to the dissemination of information to the public.  After the Court of Appeal’s judgment became available in January 2008, the Council indicated it would review the professional code.  In the meantime, the applicant and the doctors who support his present application were hoping that the Council would review the position of the qualification of FACC.  Efforts were made to resolve the difference by means other than legal proceedings, but they were not successful.  In January 2009, the 2009 Professional Code was enacted.  It did not materially relax the restriction concerning the quotation of qualifications.  After consideration, the applicant decided to revive these proceedings.  Correspondence with the Department of Justice ensued in July 2009 and after giving Notice of Intention to Proceed, the application came to be set down.

81.  Mr Kwok submits this is undue and inordinate delay.  He points out that a change in the understanding of the law cannot, by itself, justify an extension of time, save in exceptional circumstances, relying on the principles summarised in Chiu Kin Ho v. Commissioner of Police (unreported) HCAL 135 of 2004 at para.14 and the discussions in Anderson Asphalt Limited & Others v. Secretary for Justice [2009] 3HKLRD 215, at paras.143-146.  It is argued that as the applicant has failed to act promptly, even if he has a meritorious case, he should be barred from pursuing his rights.

82.  I can readily see why the applicant wished to await the outcome of the appeal in Dr Kwok Hay Kwong’s case and the review to the professional code.  It is also not unreasonable for the applicant to attempt an amicable resolution of the dispute with the Council.  That notwithstanding, the delay in these proceedings is serious and undue.  Even after leave to apply for judicial review has been given, there is a continued need to act expeditiously.  As A Cheung J (as he then was) observed in Anderson Asphalt Limited & Others v. Secretary for Justice, at para.146, the fact that the applicants’ reasons for delay may be understandable does not mean that the resulting delay is necessarily justifiable or excusable.

83.  Section 21K(6)(b) of the High Court Ordinance, Cap.4 provides that that where there has been undue delay in making an application for judicial review, the court may refuse to grant any relief sought on the application if it considers that the granting of relief would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.

84.  Mr Huggins SC argues there is no evidence that the delay has occasioned any prejudice, hardship or detriment to good administration to the Council.  It is further argued that the substantive issue in this application will not go away because the Council has not indicated that it would grant the application if the applicant were to make a new application for the inclusion of FACC in the List.

85.  I can see the force of the submissions.  Unless the Council were to take a different view on whether the qualification of FACC may be included in the List and/or the application of Revised Criteria (ii), there is a real likelihood that the applicant or other doctors have to resort to fresh judicial review proceedings in order to resolve the issues that arise in the present application.  The issues articulated in this application not only affect the position of the applicant, but also impact upon other doctors who are holders of the qualification of FACC.  There is also a wider issue of the construction and application of Revised Criteria (ii).  It will not be in the interest of the administration of justice for the court to decline to grant relief on account of the applicant’s delay.  There is additionally no suggestion of any prejudice and detriment to good administration, which is over and above the general prejudice caused by delay in proceedings.  Having regard to all the circumstances, I consider that despite the delay, this is not a case that the court should exercise its discretion against the granting of relief.

Relief

86.  For the reasons indicated above, the application for judicial review of the Decision is allowed on the Wednesbury ground.  The judicial review of the Decision on the ground of infringement of the Basic Law and HKBORO and the judicial review of Section 5.2.2.1 are refused. 

87.  It follows that there will be an order quashing the Decision. The declarations sought under paragraphs 1 and 3 of the relief in the Form 86A and the Originating Motion are refused.  

88.  Mr Huggins SC asked by way of submission that upon quashing the Decision, a declaration be granted declaring the applicant is entitled to quote publicly his qualification of FACC or, alternatively, a mandamus be issued directing the Council to forthwith include the qualification of FACC in the List.  I do not consider it is appropriate to grant the declaration sought.  It is not a relief sought in the Form 86A and Order 53 rule 6(a) of Rules of the High Court, Cap.4A prohibits the granting of relief that is not set out in the Form 86A.  More importantly, the declaration is incompatible with the court’s limited supervisory role in judicial review.  The decision on what qualifications may be quoted publicly by a doctor under the Quotable Qualifications scheme is a matter for the Council.    

89.  I am however prepared to grant a mandamus directing the Council to reconsider and approve the applicant’s application to include the qualification of FACC in the List.  Under Order 53 rule 9(4) of the Rules of the High Court, there is power, upon quashing a decision, to remit the matter to the decision maker with a direction to reconsider it and reach a decision in accordance with the findings of the court.    

Costs

90.  As to costs, applying the normal rule of costs follow event, there is an order nisi that the Council pays the applicant the costs of these proceedings, to be taxed if not agreed, save that there should be no order as to the costs in connection with the delay in setting down the application for hearing.