CACV 63/2023, [2025] HKCA 616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 63 OF 2023

(ON APPEAL FROM THE DECISION OF THE MEDICAL
COUNCIL OF HONG KONG DATED 31 JANUARY 2023)

________________________

BETWEEN

________________________

________________________

DECISION

________________________

Hon Cheung JA (giving the Decision of the Court) :

I. Leave to appeal

1. This is the application by the appellant, Dr Leung Ka Lau (‘Dr Leung’), for leave to appeal to the Court of Final Appeal against our judgment of 13 February 2025 (‘Judgment’). We will deal with the application on paper.

2. In his notice of motion of 13 March 2025, Dr Leung identifies four questions said to be of great general or public importance that ought to be submitted to the Court of Final Appeal for decision :

‘1) Whether on a proper interpretation of [5.2.1.2(d)] of the Code of Professional Conduct (January 2016) (‘Code’) issued by the Medical Council of Hong Kong (‘Council’), doctors in Hong Kong are generally prohibited from advertising discounted fees for their medical services (‘Question 1’);

2) Whether [5.2.1.2(d)] of the Code, and in particular the phrase ‘aim to’ incorporates a mens rea requirement requiring proof of a doctor’s intent to solicit or canvass for patients, or whether liability attaches based solely on the advertisement’s objective soliciting or canvassing effect (‘Question 2’);

3) Whether the Council’s decision to sanction Dr Leung for breach of [5.2.1.2(d)] of the Code (‘Decision’), based on the advertisements in question, constitutes an unlawful and disproportionate restriction on Dr Leung’s right to freedom of expression, as protected under Article 27 of Basic Law and Article 16 of the Bill of Rights , and/or the public’s right to access information about affordable cancer screenings as constitutionally protected under Article 16 of the Bill of Rights (‘Question 3’); and

4) Whether the Code, as interpreted by the Court of Appeal to impose a general prohibition on medical practitioners advertising discounts, is in itself unconstitutional as a disproportionate restriction of the freedom of expression of doctors and the public’s right to receive information on discounted medical fees, as protected under Article 27 of the Basic Law and Article 16 of the Bill of Rights (‘Question 4’).’

II. Our view

1) Question 1

3. We will not grant leave for Question 1.

4. First, the threshold requirement is not engaged. There is no evidence that advertising of discount fees by medical doctors is so prevalent or the views on discounted medical fees are so divergent that a determinative judgment by the Court of Final Appeal on this matter is required. Second, this question is not reasonably arguable. The case involves the construction of the Code and a finding of whether the advertisements by Dr