DR KWONG KWOK-HAY 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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REASONS FOR JUDGMENT

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Hon Ma CJHC :

1.  By a judgment handed down on 11 August 2006, Reyes J made various declarations to the effect that in four respects, the Professional Code and Conduct for the Guidance of Registered Medical Practitioners (“the Code”) issued by the Respondent (the Medical Council) breached Articles 27 and 39 of the Basic Law and Article 16 of the Hong Kong Bill of Rights.  The relevant provisions in the Code all relate to practice promotion (that is, advertising).  The Respondent appealed and the appeal is to be heard by this court on 24 October 2007.  On 1 December 2006, the Respondent sought leave to adduce fresh evidence for the appeal.  By the time this summons was heard by Tang VP on 31 May 2007, there were altogether four affidavits before the court : three from Dr David Fang (the Chairman of the Ethics Committee of the Respondent) and one from the Applicant (Dr Kwong Kwok-Hay).

2.  In a decision handed down on 6 June 2007, the learned Vice President dismissed the application to adduce further evidence.  The Respondent sought to reverse that decision pursuant to section 35(3) of the High Court Ordinance, Cap.4 and RHC O.59 r.14(12).  In support of this appeal, by a summons dated 29 August 2007, the Respondent sought leave to introduce yet another affidavit from Dr Fang.  In all, the Respondent therefore sought leave to use in the appeal, the four additional affidavits of Dr Fang.  At the hearing on 5 September 2007, following counsel’s submissions, the appeal was allowed and leave was given to the Respondent to adduce by way of fresh evidence the said four affidavits of Dr Fang.  I assume that the affidavit of the Applicant will also be used at the appeal since this was in direct answer to Dr Fang’s first affidavit and was also in turn answered by Dr Fang’s third affidavit.  Subsequent to the hearing, the parties submitted a consent order containing consequential directions.

3.  We indicated that the reasons for our judgment would be handed down in due course, together with an order nisi as to costs.

4.  The relevant facts and issues in these judicial review proceedings are set out in the judgment of Reyes J.  The same issues arise in the appeal.  It is unnecessary at this stage to go through them in any great detail.  The proceedings were brought following a decision by the Respondent to maintain the restrictions on practice promotion contained in the Code.  The main issue for the court boils down to this : whether the various restrictions on practice promotion contained in the Code are justifiable and therefore legal, or (as contended by the Applicant) the restrictions infringed without justification the freedom of expression guaranteed under the Basic Law and the Bill of Rights.  In resolving this issue, the court is required to determine whether the relevant restrictions are proportionate to a legitimate purpose; hence the need to engage questions of rationality, necessity and proportionality.

5.  Reyes J dealt with the matters based on the evidence before him.  As far as the Respondent is concerned, it is tolerably clear that the evidence adduced on its behalf was less than satisfactory.  Its approach in the court below can be summarized by the following passages in the judgment of Reyes J : -

“	122.	Thus, the Medical Council has recounted in some detail the history of recent proposals for the revision of the practice promotion provisions in the Code.  But it has provided little (or no) explanation of precisely why the specific restrictions which Dr. Kwong criticises were deemed necessary.
	123.	Mr. Blanchflower submits that this was because it was unnecessary for the Medical Council to provide any or any detailed justification of the restrictions challenged in these proceedings.
	124.	As far as proportionality is concerned, it was sufficient (Mr. Blanchflower suggests) for the Council to show that the Code’s rules on practice promotion had been drafted following a reasonable process of consultation among doctors and lay persons.  If the Court was satisfied that the consultation exercise had been a reasonable one, then the Court should allow the Council a ‘margin of appreciation’ and defer to its considered and expert views.”

6.  With respect, this approach was surprising.  The decision was taken, we understand upon counsel’s advice, to withhold from the court’s consideration the very reasons why the Respondent had arrived at the decision to maintain the restrictions in the Code.  Good or bad, these reasons ought to have been placed before the court and made known to the Applicant so as to enable the main issue (as identified above) to be properly addressed.  As I mentioned to Mr Michael Beloff QC (for the Respondent but who did not appear in the court below or before Tang VP) in the course of argument, I took the view that the Respondent had failed to place “all the cards face upwards on the table” : - see R v Lancashire County Council, ex parte Huddleston [1986] 2 All ER  941 at 945 g-h.  I accept that this omission did not occur through bad faith but there was nonetheless a failure.

7.  The Respondent now seeks through the four affidavits of Dr Fang to place before the court the reasons of the Respondent in arriving at its decision and to reveal the thinking behind them.  The material disclosed in these affidavits ought to have been before the court below.  Only with this material before it can the court fully determine the aspects of rationality, necessity and proportionality identified above.  That Reyes J was unable to assess this evidence was no fault of his nor of the Applicant.  The Respondent clearly had this material but chose, through legal advice apparently, not to divulge it.

8.  Tang VP’s reasons for dismissing the Respondent’s application were essentially as follows : -

(1)	He took as a starting point the principles in Ladd v Marshall [1954] 1 WLR 1491 : -
	“	… 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)”
	These principles are to ensure that there is finality in litigation and that the appellate process does not become a second opportunity to engage in a trial over facts.
(2)	However, Tang VP acknowledged that in public law cases the principles could be departed from in exceptional cases and where the wider interests of justice required.  He referred to E v Secretary of State for the Home Department [2004] QB 1044 and R v Secretary of State for the Home Department, Ex Parte Momin Ali [1984] 1 WLR 663.
(3)	In applying these principles, the learned Vice President held that the first condition of Ladd v Marshall was not satisfied.  He referred to this condition as “the critical condition”.
(4)	Even on the assumption that the new evidence was credible (the third condition in Ladd and Marshall), it was not “the best and fullest evidence” that the court could expect.  An example was given relating to a survey that had been conducted by the Respondent in October 2005 following a proposal by the Ethics Committee to relax restrictions on medical practitioners regarding the provision of information in four types of printed media (journals, magazines, newspapers and periodicals).  Little or no information was provided by the Respondent as to how the survey came about, in particular the reasons of the Ethics Committee in proposing the relaxation in the first place.  Despite having been given the opportunity to supplement its evidence to make the position clear, this was declined.  Tang VP found this most unsatisfactory, and indeed it was.
(5)	It was also held that much of the new evidence would not be helpful or in any event could be made on the existing evidence by way of submission.
(6)	In all, the learned Vice President was not satisfied that the burden on the Respondent to demonstrate exceptional circumstances had been satisfied.  He was of the view that the refusal of further evidence would not lead to a miscarriage of justice.

9.  The Respondent seeks in this appeal to disturb the discretion exercised by the learned Vice President.  However, unless the judge has erred in principle or in law, taken into account irrelevant matters or failed to take into account relevant ones or has otherwise clearly arrived at the wrong decision (beyond the spectrum of what may be reasonable), an appellate court must not interfere.

10.  In the present case, in light of the exceptional circumstances of great public importance, I am of the view that this court should interfere with the Vice President’s discretion.  In terms of the applicable principles, it is unnecessary for the purpose of this appeal to go further than to say that whilst the Ladd v Marshall principles do apply in public law, “some flexibility has been allowed where the ‘interests of justice’ so require” and that those principles “… remain the starting point, but there is a discretion to depart from them in exceptional circumstances.” : see Lord Phillips of Worth Matravers MR in E v Secretary of State for the Home Department, above, at pages 1075-1076 paragraphs 81-82.

11.  To that brief statement of principle, I emphasize the following points.  First, the circumstances must be wholly exceptional before this wider discretion to depart from the Ladd v Marshall principles is exercised.  Secondly, in most if not all cases, a strong public interest will need to be demonstrated.  This probably explains why it is only in the sphere of public law (where the public interest is often engaged) where the wider discretion has been exercised.  It is difficult to conceive in a private law case how the wider discretion will ever be exercised if the Ladd v Marshall test is not satisfied.  Thirdly, the burden is obviously on the party seeking the exercise of discretion to show cogently that exceptional circumstances exist.  A mere general reference to the public interest will not suffice : the court is entitled to be provided with details of this.

12.  In the present case, the first requirement of Ladd v Marshall is not satisfied.  I do not regard it as sufficient that the Respondent had apparently followed the advice of its legal advisors in not providing the evidence before Reyes J that is now sought to be used in the appeal.

13.  However, in my view, there is a compelling case that this evidence ought nevertheless be admitted now : -

(1)	As earlier stated, the issues in the present judicial review proceedings centre on questions of rationality, necessity and proportionality surrounding the relevant decision.  Here, the actual reasoning and thought processes of the Respondent are crucial.  Where evidence of this is available (and, from the material we have seen, extensive), it would be wholly unrealistic for the court not to be able to examine such evidence in resolving the present proceedings.  Were the court to be handicapped in this way, any determination would be an arid exercise and almost pointless.
(2)	That the court ought to be given the benefit of all highly relevant material becomes decisive when one takes into account the public interest in the present case.  The present litigation does not only involve the Applicant and the Respondent.  The public and all medical practitioners have a significant interest in the outcome.  Fundamental rights are involved.  The health and well-being of patients are involved.  For a court to shut itself from the evidence now sought to be introduced, which would entail a decision based on woefully insufficient evidence, would not be in the public interest at all.  Both parties relied heavily on the public interest in their respective stances they have adopted.
(3)	I therefore must part company with the learned Vice President when he said that the refusal to admit further evidence would not lead to a miscarriage of justice or any harm to the public good.  In my view, justice demands that the evidence is admitted.
(4)	To be fair, the material before us was quite different to that before the learned Vice President.  The evidence before Tang VP was inadequate in the respect identified in paragraph 7(4) above.  This has now been remedied, at least to some extent, by the fourth affidavit of Dr Fang.  It will be recalled that counsel for the Respondent had been asked whether the Respondent wished to provide this material but the invitation had been declined.  I daresay this refusal might well have influenced the learned Vice President in his view that even at this late stage the Respondent was somewhat coy in revealing the full extent of its hand.  Tang VP indeed commented that the court had not been provided with the best and fullest evidence.
(5)	Mr Beloff frankly acknowledged the unsatisfactory state of the evidence from the Respondent as it stood both in the court below and before Tang VP.  It was in an attempt to provide “all relevant material” in a matter of great public importance that led to the present appeal.  I accept this submission from leading counsel as now reflecting the Respondent’s position.
(6)	Mr Adrian Huggins SC (for the Applicant) in the course of his submissions, pointed to numerous instances where, even on the new evidence, there were clear inadequacies.  These are points that are better made in the appeal proper.  I say nothing for the time being as to whether the new evidence will in the end assist or adversely affect the Respondent’s case, but am content merely to say that the new evidence is highly relevant in the forthcoming appeal.

14.  It must be stressed that the admission of further evidence on appeal in the present case, should be regarded as wholly exceptional.  I would add that but for the public interest identified above, the application would simply have been dismissed.

15.  I now come to the question of costs.  For my part, I would make an order nisi that the costs of the hearing before Tang VP, of the  summons dated 29 August 2007, and of the appeal from his decision be to the Applicant to be paid by the Respondent on a common fund basis.  The more generous basis for costs is to reflect the fact that the Respondent has had to seek (and has now obtained) a massive and wholly exceptional indulgence from the court.  The order also reflects the fact that hitherto, the Respondent has not really laid all its cards face upwards on the table.  Although the Respondent has been successful in the Court of Appeal, I am of the view that the rather unusual circumstances merit the order I have proposed.

Hon Stock JA :

16.  I agree that this appeal should be allowed and with the proposed costs order.  I wish specifically to endorse the Chief Judge’s emphasis on the unusual circumstances that have compelled this court’s decision.  To take our determination as some widening of the limited discretion in public law cases to permit fresh evidence on appeal would be perverse.

17.  As the passages quoted at paragraph 4 above reveal, it seems to have been assumed in the court below – before which Mr Beloff did not appear – that no rationale for the restrictions on practice promotion had to be advanced, for the court, it was suggested, had only to be satisfied that a reasonable consultation exercise had been conducted, and that since the court was expected to allow some margin of appreciation to the expertise of the profession, that sufficed.  That approach was misconceived.

18.  Where there is an infringement on the freedom of expression (or, for that matter, on any other fundamental freedom) but it is argued that the infringement is lawful, it is for the body imposing the restriction – in this case, the Council – to show a justifiable societal objective for the restriction, and that the restriction goes no further than is necessary to achieve that objective.  It is difficult, if not impossible, to envisage an infringement that could be justified without a clearly explained rationale, even though the depth of the explanation required will vary according to the nature of the restriction and its context.  But to state merely that the decision accords with the majority view of a professional body as revealed in a consultation exercise comes nowhere close to an acceptable rationale.  And to say that the court should allow the Council a margin of appreciation is fine so far as it goes, but means nothing in a vacuum.  One can only accord a degree of appreciation if one is told what it is one is being asked to appreciate.

19.  The fact is, therefore, that the case in the court below was conducted on a footing that simply did not address what had to be addressed.  In many, perhaps most, judicial reviews, the consequences of such an evidential failure will fall on the party that has been remiss and the fact, if it be the fact, that the remiss party is a public body will not save it.  But the spectrum of judicial review cases is, in their impact, wide.  This particular case is not one that impacts merely upon an individual and a public body, or merely upon an organization or grouping and a public body.  It is not even a case that impacts only upon a large body of practitioners and its regulatory council.  Rather, it is a case in which the decision impugned directly affects a large section of society and, in addition, affects society in a vital aspect of its welfare, namely its health.  So much is common ground.  The one side says that a relaxation of the restrictions is a must, so that potential patients can better inform themselves when in need of attention that may be crucial to their health; the other side says that lax information that cannot adequately be policed carries real danger to the health of potential patients.  That is what distinguishes this case from most.  Without the further evidence, the question whether the restrictions are justifiable in that crucial public interest and whether, in the pursuit of that interest, they go no further than are necessary, is a question that cannot be answered.  The likely result would be that the restrictions would have to go, but would go by default.  In a case of such consequence, a result by that route would be disturbing and would be a route that did not, in my opinion, accord with the interests of justice.

Hon Stone J :

20.  I agree with the judgments of Ma CJHC and Stock JA.