In a report last month, the department of Justice suggested the Medical Council seek private legal counsel if it wanted to pursue the case.

While the Medical Council chairwoman said its officials had confidence in winning the appeal, the doctor who initiated the original judicial review said he was disappointed and the appeal would simply 'waste the taxpayers' money'.

The Court of First Instance ruled on August 11 that the restriction in Section 5 and two other paragraphs of the council's code on professional conduct on doctors' advertising violated the freedom-of-speech provisions of Articles 27 and 39 of the Basic Law, and Article 16 of the Bill of Rights.

The court case was initiated by Hong Kong Sanatorium and Hospital assistant medical superintendent Kwong Kwok-hay, who argued doctors had the right to advertise under the mini-constitution. Doctors are currently banned from doing so by the council's code of conduct.

Council chairwoman Felice Lieh Mak yesterday said legal advice from Britain showed that the council could win. 'Why not try it when this is very important,' she said, adding the appeal was aimed at ensuring that information publicised by a doctor was correct.

But Dr Kwong said the August ruling was fair and sensible so the council should not waste taxpayers' money. Instead, he said the council should amend its code according to the ruling, and not rely on the courts to clarify its own code of conduct.

'Even an appeal wouldn't make the court spell it out for you,' he said, adding that the council could learn from other countries' experiences on how to regulate doctors' advertisements and promotions,' Dr Kwong said. 'The council members would have to bear the responsibility for the public if they lost the appeal.'

He also said that if the city hoped to develop medical tourism, then doctors had to be allowed to promote their expertise to the public, so people in Hong Kong and overseas would have more options.

In his judgment in August, Mr Justice Anselmo Reyes said 'where there is an interference with a guaranteed right [such as the freedom of expression], it is incumbent upon the infringing authority [the Medical Council] to give cogent reasons for justifying the infringement'.

Medical sector legislator Kwok Ka-ki said he hoped the appeal would help clarify the August ruling, which was too broad. 'I think [filing the appeal] is not for winning or losing. This is about clarifying and striking a balance between protecting the interest of doctors and safeguarding the public interest.'