DR. KWOK-HAY KWONG v. THE MEDICAL COUNCIL OF HONG KONG

HCAL 46/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 46 OF 2006

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J U D G M E N T

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I.  Introduction

1.  The issue is whether certain restrictions against practice promotion imposed on doctors by the Medical Council contravene the right to freedom of expression guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap.383) (HKBORO).

II.  BACKGROUND

A.  The Medical Council and its responsibilities

2.  The Medical Council was established under the Medical Registration Ordinance (Cap.161) (MRO).  Under the MRO the Council regulates the practice of medicine in Hong Kong, including the maintenance of professional standards among doctors.

3.  The Council can inquire into whether a practitioner has failed to meet professional standards.  If it finds that there has been a breach of standards, the Council can discipline the doctor involved, including (where warranted) removing his name from General or Specialist Registers.

4.  By way of guidance on professional standards, the Council publishes (and from time to time revises) a "Professional Code and Conduct" (the Code).  Infractions of the Code may lead to the Council disciplining a doctor.  The present edition of the Code was issued in November 2000. 

5.  The Code regulates (among other things) the ways in which a doctor may promote his practice, including publicising his services and fees.  These proceedings concern section 5 and paragraphs 5 and 14 of the Code, all of which relate to practice promotion.  Section 5 was enacted in March 2006 to replace paragraph 4 of the Code with immediate effect.  Paragraphs 5 and 14 refer to those provisions as set out in the Code's November 2000 edition.

B.  Dr. Kwong and his 4 criticisms

6.  Dr. Kwong is on the General and Specialist Registers maintained by the Council.  He is the Assistant Medical Superintendent of the Hong Kong Sanatorium and Hospital.  He is responsible for publishing information about the Hospital's services, in particular information about treatments and technology available to the public.

7.  Dr. Kwong believes that Hong Kong people do not have sufficient information about doctors and their practices to make truly informed choices about which doctor and what medical services to engage. 

8.  Dr. Kwong attributes this lack of information to (among other reasons) restrictions on practice promotion in section 5 and paragraphs 5 and 14 of the Code.  Through the threat of disciplinary proceedings for breach of the Code, those restrictions (Dr. Kwong says) constrain doctors from fully informing the public about available services, skills or technologies.

9.  The restrictions (Dr. Kwong contends) contravene Article 27 of the Basic Law; Article 19 of the International Covenant on Civil and Political Rights (ICCPR) (incorporated into Hong Kong law by Article 39 of the Basic Law); and Article 16 of the HKBORO. 

10.  In this judicial review, Dr. Kwong challenges the legality of 4 specific restrictions in the Code relating to practice promotion.

11.  First, section 5 provides that a doctor may communicate certain basic information about his qualifications, his consultation hours, the languages spoken by him and the services and procedures which he offers on websites, on Service Information Notices within his office or immediately outside of it, and in Doctors' Directories. 

12.  But section 5 prohibits the communication of precisely the same information in newspapers, magazines or other print media.  There is (Dr. Kwong argues) no good rationale for the prohibition.

13.  Second, section 5 by an Appendix E limits the number of services which can a doctor can list on a Service Information Notice to 5 items. 

14.  Dr. Kwong queries the need for a maximum.  If a doctor offers (say) 6 or more medical services, why (Dr. Kwong asks rhetorically) should he be prohibited from so informing the public?

15.  Third, paragraph 5 permits a doctor to give public lectures, participate in TV or radio programmes and publish books to inform the public about medical or health developments. 

16.  But according to paragraph 5, when so doing, a doctor "should ensure that reference is not made to the doctor's experience, skills and reputation, or practice in a manner which can be construed as promotional".  Further, paragraph 5.4 stipulates that "[i]nformation should never be presented in such a way that it furthers the professional interests of the doctors concerned, or appears to attract patients to their care".

17.  Dr. Kwong says that it is impractical (if not impossible) for a doctor to speak out publicly on medical topics without reference to his experience and skills in the area under discussion. 

18.  A doctor's audience will wish to know (and will certainly inquire) about his personal experience on the matter in issue.  Indeed, the public will inevitably infer that a doctor purports to have experience, skill and reputation in the subject on which he speaks. 

19.  Thus, a doctor who lectures or writes in the public interest on questions of health will almost certainly breach the stricture in paragraph 5 against self-promotion.  The result (Dr. Kwong suggests) is that doctors are reluctant to talk to the public on questions of health and medicine.

20.  There is (Dr. Kwong contends) no justification for the constraint in paragraph 5, which only leads to the public being deprived of important information on health issues and medical developments.

21.  Fourth, paragraph 14.1.1 imposes strict liability on a doctor for advertising or promotion by an organisation (such as a hospital) with which he has a financial or professional association.

22.  That paragraph imposes a duty on doctors "to acquaint themselves with the nature and content of the organization's advertising".  Dr. Kwong has no problem with such an obligation.

23.  However, if there should be any question about a doctor's conduct in relation to advertising by an associated organisation, the last sentence of paragraph 14.1.1 provides that:-

"it will not be sufficient for an explanation to be based on a lack of awareness ..., or lack of ability to exert any influence... "

24.  In light of that last sentence, paragraph 14.1.1 (Dr. Kwong says) punishes even the doctor who uses "due diligence" to see that an organisation complies with the Code on practice promotion.  Even the careful doctor will be subject to disciplinary proceedings if for some reason, beyond his control or influence and despite his best efforts, a related organisation's advertising breaches section 5. 

25.  That (Dr. Kwong argues) is unfair and disproportionate.  It goes too far and cannot be justified in the public interest.

C.  The Medical Council's position on Dr. Kwong's criticisms

26.  The Council acknowledges that it is a public authority under the MRO susceptible to judicial review.  It accepts that Dr. Kwong has standing to bring these proceedings.  But it rejects Dr. Kwong's criticisms as invalid.

27.  The Council says that, in promulgating its rules on practice promotion, it consulted widely.  The November 2000 edition of the Code was drafted by the Council's Ethics Committee only after extensive discussions with persons inside and outside the medical profession.

28.  Between May 2002 and January 2003 a working group of the Council's Ethics Committee proposed to allow doctors to display Service Information Notices at the exterior of their offices.  The Ethics Committee also suggested permitting information to be disseminated through Doctors' Directories published by medical organisations following a uniform format.

29.  The Ethics Committee consulted 7 bodies on these twin proposals.  Those bodies were the Consumer Council, the Hospital Authority, the Hong Kong Medical Association, the Hong Kong Academy of Medicine, the Association of Licentiates of the Medical Council of Hong Kong, the Hong Kong Doctors Union and the Practising Estate Doctors Association.  The views of other committees within the Medical Council were also solicited.

30.  Support being widespread, the proposals were approved by the Medical Council in January 2004 and promulgated in February 2004.

31.  Since then, the Medical Council has approved 5 medical organisations to publish Doctors' Directories.  Those 5 bodies are the Hong Kong Medical Association, the Hong Kong Orthopaedic Association, the Hong Kong Ophthalmological Society, the Hospital Authority, and the Hong Kong Doctors Union.  The directories published by the first 3 entities just mentioned can be accessed by the public over the internet.

32.  On the recommendation of the Ethics Committee, in April 2006 the Medical Council encouraged the 5 approved organisations to publicise the availability of Doctors' Directories.

33.  In January 2005, having consulted 9 major medical professional organisations, the Ethics Committee proposed further to relax the restrictions on practice promotion.  It suggested allowing doctors to publish notices in journals, magazines, newspapers and periodicals. 

34.  However, this time, opinions on the Ethics Committee's proposal varied.

35.  In October 2005 the Medical Council conducted a survey of all registered medical practitioners.  A majority being against the January 2005 proposal, the Medical Council decided not to pursue them.  It instead directed the Ethics Committee to investigate the matter further.

36.  In deliberating among various proposals for relaxation of restrictions against practice promotion, the Medical Council has kept in mind the following considerations:-

(1) Guidelines on practice promotion should be clear, simple and easy to follow and implement.

(2) Advertising by doctors for the sole purpose of attracting patients was not endorsed.

(3) There should be more systematic presentation of information to avoid "information overload" or "information fragmentation".

(4) The aim of allowing a doctor to display a fee schedule was to enable the public to obtain more information before consulting the doctor.  The measure was not meant to encourage fee competition or undercutting among doctors.

(5) To avoid misleading the public, doctors should ensure that descriptions of procedures or operations used on their signboards or notices adhered to standard terminology endorsed by the Colleges of the Hong Kong Academy of Medicine.

37.  In light of the history summarised above, the Medical Council says that, when enacting practice promotion restrictions, it has acted reasonably and responsibly in weighing up the conflicting interests involved.  In particular, the Council has had the difficult task of balancing between the public interest in knowing more about medical fees and services and the duty of medical practitioners to uphold the dignity of their profession. 

38.  In the Council's view it would be unseemly if doctors (who are charged with safeguarding the health, well-being and often the lives of individuals) should embark on a promotional free-for-all for the mere sake of attracting patients and making a commercial profit.

39.  The Council contends that the present regime on practice promotion is well within the "margin of appreciation" or deference which the Courts routinely accord to decisions of bodies charged with the regulation of a profession.  The Council consequently believes that its practice promotion rules are consistent with the right of free speech guaranteed to Hong Kong people.

III.  Discussion

40.  This section has 4 parts.  First, I will consider the legal principles applicable to this case.  Second, I will examine the Council's submissions in respect of the "margin of appreciation".  Third, I will evaluate the merits of Dr. Kwong's 4 criticisms in light of the applicable legal principles.  Fourth, I will discuss what (if any) remedy should be granted.

A.  General legal principles

A.1    Statute

41.  Basic Law Article 27 provides that "Hong Kong residents shall have freedom of speech...".

42.  HKBORO Article 16 (equivalent to ICCPR Article 19) states:-

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

(2) Everyone shall the right to freedom of expression; this right shall include freedom to 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 right provided for in paragraph (2) of this article carries with 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) for the protection of national security or public order (ordre public), or of public health or morals."

43.  The freedom of expression guaranteed under the Basic Law and the HKBORO are therefore not absolute rights.  The rights may be restricted where it is "necessary" to do so in the interests of national security, of public order or of public health or morals.

44.  The test of necessity requires the Court to assess whether a 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 also be no more than is necessary to accomplish such purpose.  See HKSAR v. Ng Kung Siu (1999) 2 HKCFAR 442 (at §§57, 60) and Leung Kwok Hung v. HKSAR (2005) 8 HKCFAR 229 (at §§34, 36).

45.  Both parties accept that the Code's practice promotion roles touch upon the freedom of expression guaranteed by Hong Kong law.

46.  Both parties recognise that, given doctors' role in society, it is legitimate for the purpose of public order (in a broad sense) and health to impose restrictions on a doctor's ability to advertise his medical services and fees.  It could undermine public trust in the medical profession if doctors were perceived as businessmen purely engaged in profit-making commercial activities. 

47.  Accordingly, both parties acknowledge that persons seeking medical services (and their families) may be especially susceptible to persuasion.  Patients (actual or potential) should thus be protected from misleading advertisements.  Both parties agree that (as stipulated by section 5.2.1 of the Code) any information provided by a doctor to the public "shall be legal, decent, honest, truthful, factual, accurate, and not exaggerated" and "shall not claim superiority over or disparage other doctors or their work".

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?  

49.  For guidance on the Court's approach to that question, it is useful to examine case law relating to freedom of speech and expression from various jurisdictions.

A.2  Case law

50.  There is no Hong Kong precedent that deals directly with the question arising here. 

51.  But there are helpful authorities from other jurisdictions.  In particular, 2 cases deal with circumstances closely similar to those here.  The cases are Stambuck v. Germany (2003) 37 EHRR 42 (a decision of the European Court of Human Rights) and Rocket v. Royal College of Dental Surgeons of Ontario [1990] 2 SCR 232 (a decision of the Canadian Supreme Court).

52.  Mr. Blanchflower SC (appearing for the Medical Council) relies heavily on the decisions of the English Courts in R v. General Medical Council, ex p. Colman [1990] 1 All ER 489 and the ensuing Report of the European Commission of Human Rights in Colman v. United Kingdom (1994) 18 EHRR 119.

53.  Mr. Blanchflower has also drawn my attention to the decision of the European Court of Human Rights in Casado Coca v. Spain (1994) 18 EHRR 1.

A.2.1  Stambuk

54.  Dr. Stambuk, an ophthalmologist, gave an interview to a newspaper.  The resulting story reported that the doctor was pioneering a new laser technique to treat defective sight. The doctor was reported as saying that with the new technique he had treated more than 400 patients with a 100% success rate. 

55.  The article included a photo which showed the doctor at a computer work-station pointing to his monitor.  The photo was captioned: "On the occasion of the ‘mapping' Dr. Miro Stambuk sees on the monitor of his computer whether or not the patient can be treated with the laser technique.".

56.  The Tübingen District Disciplinary Court for Medical Practitioners imposed a fine on the doctor for disregarding the advertising ban in relevant rules of professional conduct.  The doctor appealed, on the basis that the advertising ban infringed Article 10 of the European Convention on Human Rights.  Article 10 is similar to HKBORO Article 16.

57.  The European Court accepted that, in light of a doctor's social and professional obligations, restrictions on his ability to advertise could be justified.  But any restrictions "should not be interpreted as putting an excessive burden on medical practitioners to control the content of press publications". 

58.  Further, the need to impose restrictions on doctors was balanced by society's right to know (and the duty of the press to report) information and ideas on all matters of public interest.

59.  The newspaper's account of the new laser technique was "informing the public on a matter of general medical interest".  The article was an accurate account of the doctor's experience with the technique, including an indication of the risks involved.  The article may have incidentally publicised and promoted the doctor's practice.  But the Court was satisfied that this effect was only of "a secondary nature".

60.  The accompanying photo could "not be regarded as amounting to prohibited and non-objective information or misleading advertising".  On the contrary, "it was closely related to the contents of the article and cannot be reduced to mere publicity".

61.  Taking all the foregoing considerations into account, the European Court allowed Dr. Stambuk's appeal.  The advertising ban was disproportionate.  It was more than was necessary to maintain professionalism among doctors.

62.  Stambuk thus suggests that a restriction in the Code is disproportionate to the legitimate aim of maintaining professionalism among doctors, where the restriction prohibits communication through the press or other media of accurate factual and balanced information which the public has an interest in receiving. 

63.  According to Stambuk, there would still be disproportionality even if the effect (and part of the purpose of publicising the information) was to promote the interests of a doctor.

A.2.2 Rocket

64.  Dr. Rocket and Dr. Price allowed their names to be used in newspaper and magazine advertisements promoting Holiday Inn hotels. 

65.  The advertisements referred to the doctors providing dental services in shopping malls.  Their business (the promotions stated) had grown from a staff of 3 in 1985 to become one of North America's largest storefront dentistry groups.  The advertisement concluded by stating that, when on business, the 2 doctors stayed at Holiday Inns.

66.  The doctors were charged with violating a prohibition against advertising in an Ontario Regulation.  The Regulation had been enacted by the Royal College of Dental Surgeons of Ontario under delegated statutory powers.

67.  The doctors challenged the Regulation as violating the freedom of speech guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms.  The Supreme Court unanimously upheld their challenge. 

68.  Section 2(b) is similar to Article 27 of the Basic Law . Like the Hong Kong Court, the Canadian Courts apply a test of proportionality in determining whether an interference with a guaranteed right is justified.  As here, the Canadian Courts assess whether a restriction is rationally connected with a legislative objective and is no more than what is necessary to achieve such objective.

69.  McLachlin J (delivering the judgment of the Supreme Court) noted (at 241) that the case posed:-

"a conflict between two values recognized in our society – the need to regulate the scope of professional advertising on the one hand and the value of free expression on the other".

70.  Further, McLachlin J pointed out (at 248-9) that, in making the important choice of a dentist, consumers:-

"would ... be far more vulnerable to unregulated advertising from dental professionals that it would be to unregulated advertising from manufacturers or suppliers of many other, more standardized goods or services.  The fact that the [Ontario] legislature here acted to protect a vulnerable group argues in favour of viewing its attempted compromise [among the conflicting interests identified] with some deference."

71.  McLachlin J observed (at 247) that the freedom of expression being limited by the Regulation was that of the dentists who wished to impart information to the public for primarily economic motives.  Given the commercial motivation behind the desired mode of expression, restrictions on it "might be easier to justify than other infringements of s.2(b)". 

72.  But the expression which the Regulation sought to limit "served an important public interest by enhancing the ability of patients to make informed choices".  Accordingly, since the Regulation denied consumer access to information relevant to the choice of doctors, the interference to the dentists' right of expression could not be readily dismissed.

73.  While McLachlin J (at 250) had "no difficulty in concluding that it is essential to accord professional societies the power to regulate the methods by which their members advertise," she thought that any restrictions had to be "reasonably and demonstrably justified in a free and democratic society".

74.  On analysis, McLachlin J concluded that the Regulation was disproportionate.  It was wider than was necessary to further the legitimate objective of promoting professionalism and avoiding irresponsible and misleading advertising. 

75.  She stated (at 250-1):-

"The second question is whether the means used impair the freedom [of expression] as little as possible.  It is here that difficulties arise.  [The Regulation] is very broadly drafted.  It starts with an absolute prohibition on all advertising, going on to set out exceptions.  It is easy to think of examples of expression not falling with the exceptions which should clearly be permitted.  For example, it is conceded that dentists should be able to advertise their hours of operation and the languages they speak, information which would be useful to the public and present no serious danger of misleading the public or undercutting professionalism.

Such examples equally suggest that the third requirement – that there be proportionality between the effective legislative measure and the objective is not met.  The effect of [the Regulation] is clearly to prohibit expression which in no way furthers its objectives.  The aims of promoting professionalism and preventing irresponsible and misleading advertising on matters not susceptible of verification do not require the exclusion of much of the speech which is prohibited by [the Regulation].  In the result, the effect of the impugned provision is disproportionate to its objectives.  Moreover, the value served by free expression in the case of professional advertising is not purely the enhance of the advertiser's opportunity to profit ...  The public has an interest in obtaining information as to dentists' office hours, the languages they speak, and other objective facts relevant to their practice -- information which [the Regulation] prohibits dentists from conveying by advertising.  Useful information is restricted without justification.  These considerations satisfy me that the adverse effect of infringement of s.2(b) in this case outweighs the benefits conferred by the legislation [that is, the Regulation]."

76.  Rocket suggests at least 2 principles.

77.  First, while the Court may "defer" to a professional body's views on regulating advertising among its members, any restrictions on the freedom of expression imposed by the body still have to be justified as proportionate and no more than necessary to maintain professionalism.  It will not be enough to justify a prohibition to say that it reflects the considered view of a majority of the profession.  The body must explain why its restrictions are proportionate and no more than what is necessary in the interests of professionalism.

78.  Second, much as the European Court held in Stambuk, where the public has an interest in receiving particular information, a professional body would not be justified in restricting the communication of such information on the sole ground that the communication may incidentally lead to a doctor's practice being promoted.

A.2.3 Colman

79.  Dr. Colman practised holistic medicine.  He felt that he could not attract patients without advertising.  So he asked the General Medical Council (GMC) whether he could promote his services in the press.  At the time the GMC's Blue Book imposed restrictions on advertising which were roughly similar to the present Code here.  The GMC refused permission. 

80.  Dr. Colman applied to the Divisional Court for judicial review of the GMC's refusal.

81.  The Divisional Court accepted that there were "powerful arguments" for and against the restrictions in the Blue Book.  But this only meant that the restrictions could not be regarded as irrational or Wednesbury unreasonable.

82.  The Court did not regard the proportionality principle as adding to the Wednesbury unreasonableness test routinely applied in judicial review.  Auld J observed:-

"There are obvious difficulties in importing the broad European concept of proportionality into the common law as a new head for intervention by the Courts by way of judicial review.  To do so could create a monster that could quickly get out of control and cause widespread disruption of the many administrative processes that might attract its application.  Recent decisions of this Court, with which I respectfully agree, suggest that proportionality is simply one aspect of the question of reasonableness, and that it is not to be regarded a separate basis for review, at least not one which enables the Court to act as arbiter of one view over another as to the necessity for the restriction being challenged."

83.  Dr. Colman's counsel argued that the restrictions on advertising in the Blue Book violated Article 10 of the European Convention on Human Rights.  At the time, although the UK had ratified the Convention, it did not form part of UK domestic law.

84.  As we have seen from the passage just cited, the Court viewed the broad test of "proportionality" mandated by the European Convention with some suspicion.  The Court thought that, in any case, even if a contravention of Article 10 were assumed, it was doubtful that the then existing jurisprudence on the Convention:-

"would go so far as to require a professional body like the GMC to demonstrate a pressing social need for its guidance against advertising in order to justify it as a protection of health or morals or for the protection of the rights of other doctors and patients ..."

85.  Having then considered several European and American cases relating to restrictions on advertising, Auld J concluded:-

"As to illegality, the common law of England and the United States, and various European disciplines, recognize the right to freedom of speech may be curtailed in certain circumstances.  In particular, the Courts in this country and in the United States have long recognised that professions may in the interest of their members and the public impose restrictions on their members which interfere with the exercise by their members of freedoms which they would otherwise have, including restrictions on freedom of ‘commercial speech' in the form of soliciting and advertising.  The validity of those restrictions may fall to be considered, under the head of unlawful restraint of trade ..., or under the separate heading of interference with the right of free speech.

In my view, the approach of the Court as to where the burden of proof lies should be the same under both headings.  I refer again and rely on the observations of Lord Reid in Pharmaceutical Society of Great Britain v. Dickson [1970] AC 403 ... at page 421B-C ..., to the effect that where restraints exist as part of a code of professional conduct, it is doubtful whether the person seeking relief from the code can require the restraint to be justified without himself having to allege and prove that the rule was unreasonable.

Such authority as there is on both sides of the Atlantic recognizes that different considerations apply to different professions.  None of the authorities, binding or persuasive, ... support the view that where the medical profession is concerned the doctor can force the GMC to justify its code of conduct simply by claiming that it should not apply to him.  In my judgment, the proper approach here is that indicated by Lord Reid.  It is for the applicant to establish that the GMC has in its guidance to him unreasonably interfered with his freedom of speech so as to render that interference unlawful.  For the reasons that I have given, the applicant has not established that unlawfulness either in the form of Wednesbury unreasonableness ... or of unreasonableness in the ordinary and natural meaning of that term."

86.  The Court of Appeal (while sympathising with Dr. Colman's difficulties) agreed with the Divisional Court.

87.  As far as Article 10 was concerned, the Court of Appeal did not think that it could construe legislation so as to conform with the Convention which was not part of domestic law.  The Court was especially reluctant to interpret previously enacted legislation to accord with whether or not the Court subsequently perceived some factor to be a sufficiently pressing need when the legislation was under challenge by judicial review.

88.  Further, the GMC's rules on advertising (the Court of Appeal noted) had been promulgated under powers conferred by the Medical Act 1983 s.35.  There was nothing in s.35 (which merely authorised the GMC to enact subsidiary legislation) that could be regarded as the subject matter of any international obligation under the Convention.

89.  In January 1990 the House of Lords refused Dr. Colman leave to appeal. 

90.  In May 1990, having exhausted domestic avenues of redress, Dr. Colman took his case to the European Court of Human Rights.  In the same month the GMC enacted a more liberal regime on advertising which would have enabled doctors (including Dr. Colman) to advertise in the press.

91.  By a vote of 11 votes to 8 the European Commission published an opinion which concluded that the GMC's former rules did not violate Article 10.  The majority stated (at §§46-7):-

"The Commission notes that in judicial review proceedings the domestic courts may rule the exercise of executive discretion unlawful on the ground that it is tainted with illegality, irrationality or procedural impropriety.  The Commission has examined the analysis made by the domestic courts of the irrationality principle in English law during the judicial review proceedings in the applicant's case.  Whilst not accepting ‘proportionality' as a separate ground for judicial review, it was considered by the Court of Appeal to be a facet of the irrationality principle...

The domestic courts' approach in the present case, balancing the conflicting interests of free competition and individual freedom of expression with that of the protection of the health of patients and the rights and freedoms of other members of the medical profession, was similar to that of the Convention organs in balancing the individual's freedom of expression with the exigencies of the second paragraph of Article 10 of the Convention [concerning proportionality].  In scrutinising the reasonableness of the GMC's advertising restrictions, the English courts in the present case effectively considered whether these restrictions were proportionate to the pressing social needs and the legitimate aims of protecting patients' health and other doctors' rights and freedoms.  Like the Convention organs it was not for the English courts to substitute their appreciation of appropriate advertising norms for that of the medical profession's governing body.  Their task, like the task envisaged by Article 10 of the Convention, was to detect and denounce any unreasonable or arbitrary interference with the applicant's freedom of expression.  No such unreasonableness was found.  However, the unfavourable outcome for the applicant does not detract from the effectiveness of the remedy of judicial review in such cases."

92.  The European Court never determined Dr Colman's application substantively.  In June 1993 Dr. Colman settled with the UK Government.  Although not admitting a breach of the Convention, the Government paid Dr. Colman £12,500.  The application to the European Court was then struck off the tribunal's list.

93.  I do not obtain much assistance from the decisions in the Colman line of cases.  I would make 3 observations.

94.  First, the English Courts in Colman treated the proportionality test as equivalent to the test of Wednesbury unreasonableness.  This approach was consistent with the law as it stood when Colman was decided by the English Courts both Courts.  But this means that the English Courts did not actually consider whether the GMC's restrictions were proportionate (in the sense required by the European Convention, the Basic Law and HKBORO), as opposed to merely irrational or Wednesbury unreasonable. 

95.  The 2 concepts of proportionality and reasonableness certainly overlap.  A rule which is so unreasonable that no rational administrator could have enacted it, cannot be characterised as something which is proportionate or no more than what is necessary to achieve an objective.  But this does not mean that the 2 concepts are identical.

96.  A restriction may be thought reasonable, possibly by a majority of sensible persons.  However, that same measure may nonetheless be disproportionate. 

97.  The proportionality principle requires that a Court do more than assess whether some sensible person might regard a restriction as reasonable.  Where a prohibition interferes with a guaranteed right, the proportionality test also obliges the Court to evaluate whether the restriction is no more than what is necessary to achieve an identified legitimate purpose.

98.  Consequently, since the enactment in the UK of the Human Rights Act 1998 (HRA) (importing the Convention into municipal law), an English Court could not now uncritically follow the approach in Colman of eliding reasonableness and proportionality. 

99.  Equally, human rights law in Hong Kong being broadly equivalent to that in England under the HRA, it would be wrong for me to follow the approach to proportionality and reasonableness taken in Colman.

100.  Second, Colman reverses the burden of proof in the application of the proportionality test (however defined). 

101.  Contrary to what Colman suggests, it is not for the person whose right is infringed to establish that the interference is disproportionate.  For instance, 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, for example, HKSAR v. Ng Kung Siu and another (1999) 2 HKCFAR 442 (at §46). 

102.  Third, for the reasons just mentioned, to the extent that it regarded the English Courts as in substance applying the proportionality test required by the Convention, the majority of the European Commission cannot have been right.

103.  In any event, as precedent, the European Commission's majority opinion in Colman is of limited value.  It is not binding on the European Court.  The latter rendered no decision on the case.  If anything, European law on the subject is probably best reflected by the more recent decision in Stambuk, an actual judgment of the European Court.

104.  Mr. Blanchflower submits that, since at least one body (namely, the European Commission in Colman) has concluded that advertising prohibitions similar to those here were reasonable and proportionate, I should hesitate in holding that the Code has violated the Basic Law and HKBORO.  But, in light of my observations, I do not think that the Colman decisions can be treated as reliable guides to the law in Hong Kong today.

A.2.4 Casado Coca

105.  Mr. Coca, a lawyer, advertised details of his legal practice in local newspapers.  This was contrary to rules promulgated by the Barcelona Bar Council.  Disciplinary proceedings were commenced against Mr. Coca.  This resulted in his being warned and reprimanded. 

106.  Mr. Coca alleged that the Bar's rules violated Article 10 of the European Convention.  He challenged the validity of the disciplinary proceedings before the European Court.  In June 1993, before the European Court handed down its judgment, the Barcelona Bar proposed to amend its rules to allow for a more liberal advertising regime.

107.  The European Commission by 10 votes to 9 found that the Barcelona Bar's former rules infringed against Article 10.

108.  The European Court did not follow the Commission.  By 7 votes to 2 the Court held that there had been no violation of Article 10 at the time when Mr. Coca was disciplined.

109.  The European Court's reasoning appears in §§55-6 of its judgment:-

"The wide range of regulations [relating to lawyers' advertising] and the different rates of change [to those regulations] in the Council of Europe's Member States indicate the complexity of the issue.  Because of their direct, continuous contact with their members, the Bar authorities and the country's courts are in a better position than an international court to determine how, at a given time, the right balance can be struck between the various interests involved, namely the requirements of the proper administration of justice, the dignity of the profession, the right of everyone to receive information about legal assistance and affording members of the Bar the possibility of advertising their practices.

In view of the above, the Court hold that at the material time – 1982/83 – the relevant authorities' reaction could be considered unreasonable and disproportionate to the aim pursued."

110.  I do not find much help for the present proceedings from Casado Coca.  This is because the case concerns advertising by lawyers, not doctors.

111.  In Stambuk (at §40) the European Court commented that, whatever the position in respect of lawyers' advertising, the circumstances of the medical profession were different.  The Court (echoing what was said in Casado Coca and then contrasting the situation of doctors) said:-

"In the case of lawyers, the Court has held that their central position in the administration of justice as intermediaries between the public and the courts explain the usual restrictions on the conduct of members of the Bar.  Considering the wide range of regulations and the changes occurring in the Council of Europe's member States, the bar authorities and the domestic courts, because of their direct, continuous contact, are in a better position than an international court to determine how, at a given time, the right balance can be struck between the various interests involved.  However, in the field under consideration [namely, the medical profession], there are no particular circumstances – such as a clear lack of common ground among Member States regarding the principles at issue or a need to make allowance for the diversity of moral conceptions – which would justify granting the national authorities a comparable wide margin of appreciation."

112.  Both doctors' professional standards and the public need for information about available services should not vary greatly over geographical boundaries.  Thus, whereas in the case of lawyers a decision on advertising restrictions in one jurisdiction may have little or no persuasive value in another jurisdiction, a decision (such as that in Stambuk) relating to doctors' professional standards should be more universally applicable. 

113.  It may or may not be that greater deference should be paid to the opinions of lawyers' professional bodies on the extent to which advertising by lawyers should be permitted.  It does not follow that circumstances warrant granting the same margin of appreciation to other professionals.

A.3  Summary of general principles

114.  Mr. Pannick QC (appearing for Dr. Kwong) summarises the applicable principles to be derived from statute and case law in a number of propositions.  I accept his suggested propositions and reproduce them (slightly re-worded) below.

115.  First, Articles 27 and 39 of the Basic Law and Article 16 of the HKBORO confer a prima facie right to publish information about the expertise and experience of medical practitioners which is true, accurate, verifiable and not misleading. 

116.  Second, this right is justified by the public's legitimate interest is receiving such information to enable it to make informed choices about available medical services and treatments.

117.  Third, restrictions on doctors' freedom of expression on matters of practice are permissible to advance the legitimate interest of protecting the public from misleading information and promoting professionalism among doctors.

118.  Fourth, the proportionality principle requires however that any restriction on doctors' freedom of expression is carefully considered so that:-

(1) it is no more than what is necessary to accomplish the legitimate aim of protecting the public and promoting professionalism; and,

(2) it does not unnecessarily constrain the communication of information and ideas which the public has a legitimate interest in receiving in order to make informed choices about medical services and treatments.

119.  Fifth, constraints on a doctor's freedom of expression may be difficult to justify as proportionate where the restriction is imposed in relation to:-

(1) commenting in the press or other media on matters of legitimate public interest; or,

(2) communicating true, accurate and verifiable factual information about a doctor's practice which the public has an interest in receiving and which is not dependent on any subjective judgment so that there is no risk of the information being misleading.

120.  Sixth, the fact that the communication of information which the public has a legitimate interest in receiving may incidentally also lead to a doctor's practice being promoted or publicised will not by itself normally justify prohibition of the communication.

B.  The margin of appreciation

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.

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.

125.  In support of his argument, Mr. Blanchflower cited dicta from numerous cases on the "margin of appreciation" or deference which the Court accords to professional bodies and other entities when assessing whether interference with a guaranteed right is permissible.  Of the cases cited, I propose to refer only to the 3 dicta which I have found the most helpful.

126.  The first dictum is from Markt Intern Verlag GmbH v. Germany (1990) 12 EHRR 161.  There the European Court on Human Rights stated (at §33):-

"The Court has consistently held that the Contracting States have a certain margin of appreciation in assessing the existence and extent of the necessity of an interference, but this margin is subject to a European supervision as regards both the legislation and the decisions applying it, even those given by an independent court.  Such a margin of appreciation is essential in commercial matters and, in particular, in an area as complex and fluctuating as that of unfair competition.  Otherwise, the European Court of Human Rights would have to undertake a re-examination of the facts and all the circumstances of each case.  The Court must confine its review to the question whether the measures taken on the national level are justifiable in principle and proportionate."

127.  The dictum suggests that, even where the Court is prepared to accord a "margin of appreciation," the Court must still grapple with the question of proportionality.  In other words, deference to the views of some entity does not free a Court from having to assess whether an impugned regulation is no more than what is necessary to achieve a legitimate purpose. 

128.  Thus, where there is an interference with a guaranteed right, it is incumbent upon the infringing authority to give cogent reasons justifying the infringement.  Absent such reasons, a Court would have little option but to find the interference to be unwarranted.

129.  The second and third dicta are from the decision of the Canadian Supreme Court in RJR-MacDonald Inc. v. Attorney General of Canada (1995) 127 DLR (4th) 1. 

130.  There McLachlin J stated (at §§127-9):-

".... First, to be saved under s.1 [of the Canadian Charter] the party defending the law (here the Attorney General of Canada) must show that the law which violates the right of freedom guaranteed by the Charter is ‘reasonable'.  In other words, the infringing measure must be justifiable by the processes of reason and rationality.  The question is not whether the measure is popular or accords with the current public opinion polls.  The question is rather whether it can be justified by application of the processes of reason.  In the legal context, reason imports the notion of inference from evidence or established truths.  This is not to deny intuition its role, or to require proof to the standard required by science in every case, but it is to insist on a rational, reasoned defensibility.

....

The bottom line is this.  While remaining sensitive to the social and political context of the impugned law and allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that before the state can override constitutional rights, there be a reasoned demonstration of the goods which the law may achieve in relation to the seriousness of the infringement.  It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning.  The task is not easily discharged, and may require the courts to confront the tide of popular public opinion.  But that has always been the price of maintaining constitutional rights.  No matter how important Parliament's goal may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail."

131.  A little later (at §136) McLachlin J added:-

"As with context, however, care must be taken not to extend the notion of deference too far.  Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable.  Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the constitution.  But the courts also have a role: to determine, objectively and impartially, whether Parliament's choice falls within the limiting framework of the constitution.  The courts are no more permitted to abdicate their responsibility than is Parliament.  To carry judicial deference to the point of accepting Parliament's view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded."

132.  McLachlin J makes clear that the public entity being challenged needs to justify an interference with a guaranteed right. 

133.  It will not be sufficient to meet a challenge for the Medical Council simply to say that the Court should defer to its considered opinion (however expert in their field the Council's members may be).  What is at stake here is not solely a question of expertise in medicine.  There is also a legal issue involved, namely, whether a constitutional right may be validly abridged.  On such issue, the Court cannot abdicate (McLachlin J's word) its legal expertise and merely defer to the opinions of a professional body.

134.  Nor (as McLachlin J observes) will it be enough to justify a restriction for a body to point to an opinion poll of constituents (however large the majority voting in favour of the restriction).  Thus, for example, the Medical Council cannot rely on the rejection by a majority of practitioners of the Ethics Committee's January 2005 proposal for liberalising the Code's rules on practice promotion. 

135.  A majority cannot by a poll mandate interference with a minority group's constitutionally protected right of free expression.  There will still be a need to demonstrate that a restriction is proportionate and no more than necessary to further an identified legitimate objective.

136.  To conclude on margin of appreciation, I do not accept Mr. Blanchflower's submission on this question. 

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.

C.  Dr. Kwong's 4 criticisms

C.1  Criticism 1: Why restrict to certain media?

138.  Section 5.2.2.1 of the Code defines practice promotion in wide terms.  Subject to certain exceptions, practice promotion means "publicity for promoting the professional services of a doctor, his practice or his group". 

139.  Practice promotion "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."

140.  Section 5.2.2.2 states that:-

"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."

141.  Section 5.2.3 sets out permitted means of communicating information to the public.  Permissible communications may be through signboards; stationery; announcements in mass media (but only if made within 2 weeks of commencing or changing practice); telephone directories; practice websites; Service Information Notices; and Doctors' Directories.  The section also identifies the limited information which can be provided on each type of permitted medium. 

142.  In certain instances, section 5.2.3 specifies the dimensions, contents and locations of particular modes of communication.

143.  In effect, section 5 prohibits ordinary communication of basic information (for example, fees charged, languages spoken, hours of opening and medical services available) through newspapers and other media not listed in section 5.2.3 (for example, journals and magazines). 

144.  Mr. Pannick contends that there is no good justification for this restriction.  He notes that paradoxically section 5 already allows the publication of much of the basic information just mentioned on websites.  If certain information is fit to be published on websites accessible to the public, there can be no good reason for preventing a doctor from communicating the same information in other media (including newspapers).

145.  I think that Mr. Pannick is right.

146.  Mr. Blanchflower advances only one reason for the restriction.  He suggests that allowing publication of basic information in the press or other media would lead to wealthier doctors being favoured at the expense of the less wealthy.  The richer would (Mr. Blanchflower argues) be able to buy up more advertising and thereby enjoy an unfair advantage over the less well-off.  The restriction on media ensures (Mr. Blanchflower submits) a level playing field among medical practitioners.

147.  I am not persuaded by Mr. Blanchflower's submission.

148.  First, there is no evidence that the submission is in fact the Medical Council's rationale for the prohibition against provision of basic information in the press.  The Council's affidavit evidence does not mention the reason.

149.  Second, the Council itself allows publication of basic information on websites.  One would have thought that, if compelling, Mr. Blanchflower's logic would apply equally to websites.  The richer would presumably be able to commission slicker or more stylish web-pages to the detriment of the poorer.  If the reason provided by Mr. Blanchflower had been the motivating factor for the restriction in the Council's mind, one might have supposed that the Council would have prohibited recourse to web-pages.

150.  Third, in fact the Code caters for the possibility that the wealthier may be able to afford better web-pages.  Section 5.2.3.5 extends to web-pages the restriction in the Code's Appendix F on the content of Doctors' Directories in electronic format.  To an extent, section 5 therefore homogenises the appearance of web-sites so as not to favour the wealthier over others.

151.  In much the same way, it would be relatively straightforward for the Medical Council to place limits (say) on the number of advertisements in newspapers and other print media which a doctor could take out over any given period of time.  The format of any such advertisements could also be regulated to the extent deemed appropriate.

152.  Thus, by itself, Mr. Blanchflower's argument would not justify a blanket ban on practice promotion save to the limited extent allowed by section 5.  The prohibition in section 5 is plainly not the minimum interference necessary to ensure that a level competitive playing field is maintained among doctors.

153.  The Council not having put up any other justification for the restriction under attack, it seems to me that Dr. Kwong's 1st criticism must be upheld as valid. 

154.  I note that a relaxation of the ban against promotion in the press would not affect the principle in section 5.2.1 of the Code.  Everyone (Dr. Kwong included) accepts that in accordance with section 5.2.1 any press notice would still have to be "legal, decent, honest, truthful, factual, accurate and not exaggerated".

C.2  Criticism 2: Why restrict notices to 5 items?

155.  Appendix E provides that Service Information Notices can publicise available medical services, procedures and operations, but only up to 5 items each.

156.  Mr. Pannick asks why, given that it must be in the public interest to know what services a doctor is offering at what fees, there should be any limit at all on the items which a doctor can mention on a notice.  If a doctor were genuinely able to perform (say) 10 services, why should he not be able to tell the world so?

157.  The Council did not provide any reason for the restriction in its affidavit evidence.  Mr. Blanchflower simply submitted that a line had to be drawn somewhere.  Five items, although admittedly arbitrary, must have (Mr. Blanchflower suggests) been thought ample in the Council's considered view.

158.  I do not think that Mr. Blanchflower's submission answers Mr. Pannick's point.  The issue is not about drawing the line at (say) 5 or some other number of items.  The question is why there should be any limit on the number of available services which a doctor can mention in a Service Information Notice at all.

159.  As far as I can see on the material before me, there is simply no good reason for interfering with the freedom of expression by imposing a limit of 5 items.  I find that Dr. Kwong's 2nd criticism is also valid.

C.3 Criticism 3: Why restrict communication of information where practice incidentally promoted?

160.  Stambuk and Rocket suggest that, where information is truthful and relevant in the public interest, the mere fact that in communicating such information a doctor's practice may also be promoted incidentally, will not normally be enough to justify interference with the right of expression.

161.  How then does the Medical Council justify the restriction in paragraph 5 of the Code?

162.  In answer, Mr. Blanchflower has drawn my attention to paragraph 7 of the Code.  That states that doctors may "directly or indirectly release information to the public on new discoveries, inventions, procedures or improvements".

163.  But paragraph 7 is subject to the restrictions in section 5 and paragraph 5 of the Code.  Thus, while the intentions behind paragraph 7 are obviously commendable, it cannot justify the restrictions in paragraph 5 to which paragraph 7 is itself subject.

164.  It should not be too onerous (Mr. Blanchflower argues) for the Council to require that in publicising new techniques or procedures a doctor refrain from so doing "in a manner which can be construed as promotional" as required by paragraph 5.1 of the Code.

165.  But that again does not confront Mr. Pannick's point.  It is impossible, in practical terms, for a doctor to talk about new medical techniques or procedures without at least indirectly referring to his personal experience, skills and reputation.  Why, after all, should the public attach any weight to the information provided by him unless it had some idea of the doctor's credentials?

166.  Paragraph 5 constrains the provision to the public of important information about available medical services.  It places the doctor at risk of disciplinary proceedings every time that he attempts to tell the public about some new technique, procedure or operation.  He will inevitably promote his practice by so doing and consequently violate the stricture against self-promotion in paragraph 5.  The result is that a doctor will be reluctant to speak out about medical and health developments of legitimate public interest.

167.  I therefore think that the restriction against incidental self-promotion in paragraph 5 operates disproportionately.

C.4  Criticism 4: Why strict liability in relation to medical organisations?

168.  Medical organisations are not subject to the Code. 

169.  Paragraph 14 of the Code nevertheless attempts to compel such organisations to follow the Code in matters of practice promotion.  It does this by requiring associated doctors to ensure that their organisations adhere to the Code.

170.  Without a provision in the nature of paragraph 14, even reasonable and proportionate restraints on advertising found in the Code may be readily circumvented.  A medical organisation might promote the practice of its associated doctors in a manner that individual doctors could not.  This would be unfair at the very least to doctors who are not connected with an organisation.

171.  I consequently think that paragraph 14 fulfils a legitimate purpose.  The issue is whether imposing strict liability on doctors where a related organisation contravenes the Code's rules on practice promotion, can be justified as proportionate in light of this legitimate purpose.

172.  Mr. Blanchflower draws my attention to the penultimate sentence of paragraph 14.1.1.  That states that all doctors associated with medical organisations "must exercise due diligence in an effort to ensure that [their organisations] conform with this guidance".

173.  Mr. Pannick accepts that, if paragraph 14.1.1 ended with the sentence which Mr. Blanchflower has highlighted, Dr. Kwong would have no quarrel with paragraph 14.1.1.  The difficulty (Mr. Pannick says) lies in the last sentence of paragraph 14.1.1.  That imposes strict liability for the defaults of an organisation even where a doctor has taken all due diligence to ensure that the Code's rules on advertising are followed by an organisation. 

174.  Given the last sentence of paragraph 14.1.1, a doctor cannot say that, despite all reasonable care to keep himself informed of his organisation's activities, the organisation suddenly put out an advertisement without reference to the doctor.  That (according to paragraph 14.1.1) will be no defence. 

175.  Nor can a doctor say that there is nothing more that he could have done to prevent the issue of by an organisation of non-conformist advertising.  Paragraph 14.1.1 indicates that will not amount to a defence either.

176.  There is (Mr. Pannick submits) no justification for imposing such strict liability.  If a doctor has done everything that can reasonably be done to prevent a contravention of the Code, what purpose could be served by making him strictly liable for what an organisation has nonetheless done?

177.  It seems to me that Mr. Blanchflower has no answer to Mr. Pannick's point. 

178.  Mr. Blanchflower stresses that the Code should not protect the careless doctor.  That is not controversial.  Everyone accepts that the Code should not be a shield for the negligent.  The penultimate sentence of paragraph 14.1.1 (against which no complaint is made) will ensure that the negligent doctor is punished.  But, that consideration aside, there is no apparent need to go further and impose strict liability.

179.  Mr. Blanchflower observes that, where a doctor has exercised due diligence, he is unlikely to be severely disciplined even if he is held strictly liable.  However, this would be cold comfort to a doctor found to be in breach of the Code.  Regardless of a lenient sentence, an adverse disciplinary finding against a doctor will usually be enough to stigmatise (and adversely affect) his professional career.

180.  Mr. Blanchflower refers to the recent decision of the Court of Final Appeal in So Wai Lunn v. HKSAR FACC No.5 of 2005, 18 July 2006.  There the Court upheld as constitutional and not arbitrary a law making a person absolutely liable for having sexual intercourse with a girl under the age of 16.  It is no defence to a charge for such offence that a person genuinely believed the girl to be over 16 and in fact took reasonable steps to ascertain her age.

181.  I do not think that So Wai Lun helps Mr. Blanchflower.

182.  As the Court of Final Appeal noted in So Wai Lun (at §39), there may be sound (and non-arbitrary) reasons for imposing liability in the case of the offence of having sexual intercourse with a girl under 16.  It may, for example, lead to persons taking "care to avoid what may be unlawful and steering well away from the line between legality and illegality".  In so doing, it "would add materially to the protection for young girls which the section provides".

183.  But I do not see how that reasoning applies here.  What extra protection would be obtained by whom if doctors were made strictly liable?  How would strict liability cause doctors to steer well away from what acts or omissions in respect of associations with medical organisations?  What conduct precisely would strict (as opposed to negligence-based) liability be helping to prevent?

184.  I therefore conclude that the strict liability imposed on a doctor under paragraph 14.1.1 is disproportionate.  It is more than what is reasonably required to ensure that medical organisations adhere to the Code's restrictions on practice promotion.

D.  Remedy

185.  In his Form 86A Notice, Dr. Kwong asks the Court to declare that section 5 and paragraphs 5 and 14 of the Code constitute unlawful breaches of Articles 27 and 39 of the Basic Law and Article 16 of the HKBORO.

186.  Such relief would have been far too broadbrush. 

187.  There is much that is commendable in section 5 and paragraphs 5 and 14.  A declaration of the sort sought in the Form 86A Notice would overturn both good and bad elements.  At worst, such a declaration would leave a vacuum, pending revision of the impugned provisions by the Medical Council.  This would be undesirable as it could lead to an advertising free-for-all which might undermine public trust in the medical profession.

188.  Before me, Mr. Pannick narrowed down the declaration sought.  He asked that I merely declare that section 5 and paragraphs 5 and 14 violated relevant Hong Kong law to the extent only that any of Dr. Kwong's 4 criticisms were upheld.

189.  Mr. Blanchflower welcomed Mr. Pannick's refinement of the proposed declaration, but submitted that it may be better for me not to make any declaration at all.  Mr. Blanchflower invited me simply to state my reasons for acceding to particular arguments of one side or the other and to leave matters at that.

190.  I do not think that Mr. Blanchflower's approach is appropriate.  It would leave too much in suspense.  I am duty-bound to make transparent exactly what I have determined.  I thus believe that it is right to make the more modest declaration which Mr. Pannick now seeks. 

191.  I note finally an argument which Mr. Blanchflower appeared to be advancing.

192.  He rightly observed that Dr. Kwong has not actually violated section 5 or paragraphs 5 and 14 of the Code.  In contrast to Dr. Stambuk or Dr. Rocket, Dr. Kwong is not in fact facing disciplinary proceedings.  It might accordingly be said that his application is "hypothetical" in the sense that Dr. Kwong is seeking judicial relief when nothing is being threatened against him by the Medical Council.   Mr. Blanchflower suggests that, in such circumstances, it would be a "trap" to make any sort of declaration.

193.  I disagree with Mr. Blanchflower.

194.  Dr. Kwong wishes fully to inform the public about medical services, techniques and procedures which he (or the hospital with which he is associated) provides.  He cannot do so under the Code's present regime.  It follows that his freedom of expression is being curtailed.  He must surely be entitled to commence proceedings for a remedy (including declarations of right) to ameliorate his circumstances.

195.  In conceding that Dr. Kwong has locus to bring these proceedings, the Medical Council must be regarded as accepting that this was not an academic debate over a purely hypothetical question.  These proceedings have concerned the concrete issue of whether Dr. Kwong's constitutional right has actually been infringed.

IV.     Conclusion

196.  There will be a Declaration that the Code breaches Articles 27 and 39 of the Basic Law and Article 16 of the HKBORO insofar as:-

(1) section 5 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;

(2) 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;

(3) paragraph 5 prohibits a doctor from informing the public about medical and health developments if in so doing the doctor's practice is incidentally promoted; and,

(4) paragraph 14.1.1 imposes strict liability on a doctor for breaches by an associated medical organisation of the Code's provisions on practice promotion.

197.  There will be liberty to apply in respect of the precise wording of the foregoing Declaration.

198.  Dr. Kwong having essentially succeeded in his application, there will be an Order Nisi that the Medical Council pay Dr. Kwong's costs, such costs to be taxed if not agreed.

199.  My conclusion should not be construed as criticism of the process by which the Medical Council has sought to revise its Code.  On the contrary, the Medical Council has admirably engaged in an extensive consultation process in an effort to make the Code responsive to changing circumstances.

200.  The Medical Council faced an unenviable exercise of reconciling various interests (not least those of the professional doctors comprising its membership) within an appropriate legal framework.  The Council appears to have been guided in its choice of legal framework by the English Courts' decisions in Colman.  But human rights law in Hong Kong and England has developed considerably since Colman was decided a decade and a half ago.  At least in the 4 specific areas relating to practice promotion examined here, the law having moved on, the Code has simply not kept pace with legal development.