Dr. Kwok-Hay Kwong v. Medical Council of Hong Kong

K, a medical practitioner, sought judicial review proceedings to challenge the Medical Counsel of Hong Kong (‘the MC’)’s decision that certain restrictions relating to practice promotion (or advertising) contained in the Professional Code and Conduct for the Guidance of Registered Medical Practitioners (‘the Code’) were justified. K argued that these restrictions were contrary to the freedom of expression guaranteed under the Basic Law, the International Covenant on Civil and Political Rights (‘the ICCPR’) and the Bill of Rights contained in the Hong Kong Bill of Rights Ordinance, Cap. 838 (‘the Bill of Rights’). The right to freedom of expression includes as one of its facets the right to advertise.

For its part, the MC argued that the restrictions were imposed out of a concern that allowing the forms of practice promotion at issue could undermine public confidence and trust in the medical profession, which in turn could give rise to the exploitation or manipulation of the sick and the vulnerable. The MC therefore argued that the restrictions placed on practice promotion were consistent with the constitutional right to freedom of expression and were appropriate to protect the public interest.

While four restrictions in the Code were at issue on appeal, the main issue of the appeal was the first restriction, which related to the medium of information. The Code only allowed basic information about doctors (name, address, qualifications, specialties, consultation hours, languages spoken and contact details) to be notified to the public on signboards outside medical surgeries, stationery, in telephone directories, doctor’s directories and on medical practice websites. Providing this same information to the public on other types of print media such as newspapers or magazines was prohibited. K sought only to be able to provide to the public the same level of information then available to the public but in more media forms than had been permitted up to that point.

In the first instance Keyes J found that the MC could not justify these restrictions. K appealed to the Court of Appeal. Substantially more evidence to support the justifications of the MC was adduced.

[Adapted from INTERIGHTS summary, with permission]

In dismissing the appeal, the Court of Appeals held that:

(1) The restrictions infringed the right to freedom of expression and could not be justified.

(2) The role of the court in judicial review proceedings where decisions are under challenge was different from the function of an appellate body which looks into the merits of a decision. In a judicial review proceeding the court was limited to reviewing a decision by reference only to three aspects: firstly, the legality of a decision, i.e. whether the decision complies with the law; secondly, whether in arriving at the relevant decision the decision maker has followed due procedural requirements and has been fair; and thirdly, whether the decision itself on the merits is rational or unreasonable. In this appeal, only the first aspect was at issue, namely whether the MC complied with the law.

(3) Where a constitutionally protected right was involved, a two-stage enquiry was involved. First, has a right protected by the Basic Law or the ICCPR been infringed? If so, can such infringement be justified?

(4) A body such as the MC that imposes restrictions must carefully balance the interests of the person who seeks the right to exercise the freedom of expression against other aspects of the public interest. Where the public interest was favored by allowing advertising, the fact that a person who places the advertisement would incidentally benefit was no reason to justify restrictions. In the context of medical advertising, there was in addition the important consideration that the ‘public’ which was exposed to advertising would include particularly vulnerable members of society, namely the sick, and inform them.

(5) In the case of the first restriction, the restriction was not constitutionally justifiable. There must be less intrusive means of dealing with the concerns of the MC than a total ban of the practice promotion.

Per Hon Tang VP:

(1) Freedom of expression protected the communicator as well as the recipient.  People will only know what was in their best interests if they had enough information to make an informed decision and the best means to that end was to open the channels of communication.

Per Hon Stock JA:

(1) The restriction imposed by the MC infringed the right to freedom of expression, a freedom which connoted both the right to impart and receive information. The questions to then ask were first, whether the restrictions pursued a legitimate societal objective. If they do, could the restrictions be rationally connected to that objective, and if so, had the MC discharged the burden in showing that the restrictions went no further than was necessary to achieve the objective?

(2) The MC’s objective in imposing the restrictions was the protection of public health and the reputation of the profession. The first two questions were therefore answerable in the affirmative. However, the MC did not adduce sufficient evidence to discharge the burden that the restriction was broader than reasonably necessary to prevent the dangers underlying the MC’s decision.

[Adapted from INTERIGHTS summary, with permission]

"The body that imposes restrictions (in our case the Respondent) must therefore carefully balance the interests of the person who seeks the right to exercise the freedom of expression (such as the Applicant) against other aspects of the public interest. Where the public interest is in favour of allowing advertising, the fact that the person who places the advertisement will incidentally benefit is no reason to justify restrictions. I should also add this. In the context of medical advertising, there is in addition the important consideration that the “public” which is exposed to advertising will include particularly vulnerable members of society, namely, the sick and infirm. The interests of these persons must be particularly borne in mind. The balancing exercise may not always be easy to perform, and in any given case, the scales may be tipped one way or the other by the importance of any factor in the circumstances." Paragraph 34.

"By far the major concern of the Respondent is the danger of misleading advertisements being placed by doctors in newspapers, magazines and other printed media. As Dr Fang rightly points out, misleading advertisements, particularly in the context of the vulnerable and the infirm, may lead to danger to health and life. However, in my view, in the language of the proportionality test (see paragraph 21 above) the restriction is admittedly rationally connected to a legitimate purpose (in this case, the danger of misleading advertisements) but the means used (a total and absolute ban on all advertising, irrespective of whether the information provided is misleading or not) is much more than is necessary to achieve the legitimate purpose. A more prosaic way of putting it (though less precise) is that a sledgehammer has been
used to crack a nut." Paragraph 46(1)

"With such considerations at play, restrictions on advertising by doctors will not be difficult to justify. But there is a countervailing consideration, with the same interests in view, namely, the right of members of the public to receive information with which to make an informed choice on a matter of such individual importance. The question then becomes one of balance: how to provide an informed choice whilst at the same time protecting the most vulnerable from influence that may be detrimental; detrimental where it is misleading, or lures
the individual from a secure and competent existing relationship, or provides false hope, or confuses in its language or by competing claims, or because ‘the doctor most successful at achieving publicity may not be the most appropriate to consult’ (R v General Medical Council ex parte Colman [1990] 1 All E R 489 at 484) or because the advent of advertising itself may force others into what has been called (Semler v Oregon State Board of Dental Examiners 294 U.S. 608 (1935)) ‘unseemly rivalry which would enlarge the opportunities of the
unscrupulous.’" Paragraph 71.