Chan Tsui Yan v. Social Workers Registration Board
Read the full judgment text of HCAL 63/2016 on BabelCite. This High Court CFI judgment was delivered on 19 April 2018.
1. This is an unusual judicial review case. The Applicant made complaints against certain social workers to the Respondent, i.e. the Social Workers Registration Board (“the Board”). The Board appointed a disciplinary committee (“the Disciplinary Committee”) to investigate the complaints. There was then a lengthy hearing for the inquiry lasting for 5 days (“the Inquiry”), and all the major parties, including the Applicant, were legally represented in the Inquiry. The Board endorsed the finding
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HCAL 63/2016 [2018] HKCFI 839 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 63 OF 2016 _____________
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___________________ JUDGMENT ___________________ 1.This is an unusual judicial review case. The Applicant made complaints against certain social workers to the Respondent, i.e. the Social Workers Registration Board (“the Board”). The Board appointed a disciplinary committee (“the Disciplinary Committee”) to investigate the complaints. There was then a lengthy hearing for the inquiry lasting for 5 days (“the Inquiry”), and all the major parties, including the Applicant, were legally represented in the Inquiry. The Board endorsed the findings made by the Disciplinary Committee that the complaints were unsubstantiated. The Applicant was not satisfied with the decision made by the Board (“the Decision”) and sought to challenge the Decision by way of judicial review. BACKGROUND 2.The Applicant was at the material time a “peer” of the Society of Rehabilitation and Crime Prevention (“SRCP”) and was stationed at the Kowloon South Centre (“the Centre”). 3.On 1 September 2014, the Applicant made various complaints against the 1st Interested Party who was then a registered social worker at the SRCP. The complaints can be summarized as follows:
4.Upon receiving the complaints, the Board appointed the Disciplinary Committee to conduct a disciplinary inquiry as required under s 27(1) of the Social Workers Registration Ordinance, Cap 505 (“SWRO”). 5.The Applicant’s complaint form filed on 1 September 2014 had only identified the Lunchtime Arrangement Complaint and the Receipt of Advantage Complaint as distinct complaints against the 1st Interested Party. Though the paper shredder incident was also mentioned, it did not appear to the Board members to be a distinct complaint at the time. On 9 December 2014, the Board sent a letter to the Applicant, enclosing a copy of the draft complaints on which the disciplinary hearing would be based. On 15 December 2014, the Applicant returned the draft without any proposal for amendment. Nor was there any suggestion that the Paper Shredder Complaint should be put forward as a separate complaint. 6.The Applicant had, prior to his filing of the complaints to the Board, made complaints directly to the SRCP. The SRCP conducted an internal investigation into these complaints and found that the allegations were unsubstantiated. The Applicant did not accept such conclusion, and on 14 November 2014 filed a supplemental complaint against other social workers, the 2nd and 3rd Interested Parties, for “harbouring” the 1st Interested Party and failing to carry out their investigation dutifully. The Applicant had also informed the SRCP that he would settle the case on the conditions that: (i) the SRCP paid him $200,000 in compensation; (ii) the SRCP demoted the 1st Interested Party; and (iii) the SRCP issued a public apology in a newspaper. 7.The 1st Interested Party retired as a social worker in late 2014. 8.The Applicant’s complaints were heard by the Disciplinary Committee in the Inquiry held on 11 & 19 June, 18 and 21 August and 30 September 2015. All parties including the Applicant were legally represented in the Inquiry. 9.After considering all the submissions and evidence, the Disciplinary Committee came to the conclusion that the Applicant’s complaints were not established. A written decision and recommendation dated 30 September 2015 was prepared for the Board’s consideration (“the Recommendation Report”). 10.As contained in the Recommendation Report, the reasons for rejecting the complaints can be summarized as follows:
11.On 22 October 2015, the Board notified the Applicant that the Disciplinary Committee had recommended that the Applicant’s complaints were not established, and that no disciplinary action be taken against the 1st Interested Party. The Board also enclosed a copy of the Recommendation Report. 12.On 9 December 2015, the Board held a meeting to consider the Applicant’s complaints. Prior to the meeting, on 1 December 2015, the Board members were provided with a bundle of documents including: (i) a background information paper; (ii) the Recommendation Report; and (iii) the hearing bundle for the Inquiry. The Decision was made by the Board to endorse the Recommendation Report. 13.On 18 December 2015, the Board notified the Applicant of the Decision to endorse the Disciplinary Committee’s recommendation enclosing the Recommendation Report. 14.The Applicant was not satisfied with the Decision in relation to the 1st Interested Party and lodged the present application for judicial review. The relief sought is, inter alia, an order of certiorari to quash the Decision and for the case be remitted back to the Board for re-consideration. 15.The Applicant was legally represented when he made the application for leave to apply for judicial review. The grounds of review put forward by the Applicants are as follows:
16.On 6 June 2017, the Applicant filed the Notice to Act in Person in these proceedings. LEGAL FRAMEWORK FOR THE HEARING OF COMPLAINTS AGAINST REGISTERED SOCIAL WORKERS 17.The Board is a body corporate constituted under s 4 of the SWRO. 18.The functions of the Board are set out in s 7 of the SWRO which provides, inter alia, that the Board shall “deal with disciplinary offences in accordance with this Ordinance”. 19.The powers of the Board are set out in s 8:
20.The Board may approve codes of practice under s 10 of the SWRO. Under s 11, the codes of practice may be taken into account by the Board or the Disciplinary Committee when deciding whether a social worker has committed a disciplinary offence.[1] However, failure to observe any provision of an approved code of practice does not by itself amount to a disciplinary offence.[2] 21.The disciplinary committee panel is constituted under s 26 of the SWRO, where it provides that:
22.The disciplinary offences are found under s 25 of the SWRO, which provides that a registered social worker commits a disciplinary offence if he, inter alia, is “guilty of misconduct or neglect in any professional respect”.[3] 23.Further, in relation to the procedure of the making of a complaint, ss 25(3) and (4) of the SWRO provide that:
24.As to the procedures before the Disciplinary Committee and Board, s 27 provides that:
25.The Board may, upon a finding that a registered social worker has committed a disciplinary offence, make any of the following disciplinary orders under s 30 of the SWRO:
GROUNDS TO CHALLENGE THE DECISION 26.The Applicant puts forward 2 grounds to challenge the Decision. Firstly, the Applicant complains that the Board had erred in wholly adopting the Recommendation Report without making further inquiry. This argument is based on the premise that the Recommendation Report contains “grossly inadequate reasons”. If the reasons given by the Disciplinary Committee are adequate, it would be extremely difficult for the Applicant to argue that the Board was in breach of Tameside duty in failing to conduct further inquiry, which is the second ground for the challenge. (i) Are the reasons given by the Disciplinary Committee inadequate? 27.Firstly, I do not accept that the reasons given by the Disciplinary Committee are inadequate, whether for the Applicant to know why his complaints were found unsubstantiated or for the Board in making the Decision. 28.In my judgment, the reasons provided in the Recommendation Report are plainly sufficient for informing the Applicant the strengths and weaknesses of his case and why his complaints were found unsubstantiated. The complaints basically involved a “one-to-one” scenario, and one single factor may explain why the Disciplinary Committee preferred to accept the evidence of the 1st Interested Party. Further, as the complaints involved allegations of professional misconduct which would have serious consequences for the 1st Interested Party, it would have been prudent for the Disciplinary Committee not to make any adverse findings against the 1st Interested Party in the absence of corroboration evidence. 29.Further, as emphasised in Marta Stefan v General Medical Council[4], the obligation to give reasons only extends to a short statement of reasons for its decisions in order to inform the parties in broad terms why the decision was made. The extent and substance of the reasons would depend upon the circumstances. The Privy Council said:[5]
30.The principles governing the assessment of whether adequate reasons have been given are also set out in the Court of Final Appeal’s judgment in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority[6] :
31.Hence, it was not necessary for the Disciplinary Committee to address every single issue that arose in the case. The Disciplinary Committee need only demonstrate that the most substantial issues had been considered. Further, in view of the clear statutory scheme of the disciplinary offences set out under s 25 of SWRO, the matters required to be proved in the present case are self-explanatory. There were also no particular points of law that arose in the course of the Inquiry, and the key issue involved in the Inquiry was one of factual findings and credibility which was adequately addressed in the Recommendation Report. 32.Sufficiency of the reasons also depends on the context of each individual case. As mentioned in Marta Stefan[7], the obligation to give reasons relates to the parties immediately affected by the decision, in enabling them to know the strengths and weaknesses of their respective cases, and to facilitate appeal where that course is appropriate. In the present case, the Decision arose in context of a finding that there was no professional misconduct committed by a registered social worker. This is quite different from the usual cases involving professional misconduct, where the challenge is brought by a registered professional who has been found guilty of professional misconduct. In those circumstances, it is of greater importance that detailed reasons be given for a finding of guilt as penalty may be imposed upon such finding. 33.By contrast, the Applicant was not directly affected by the Decision. In such case, the Disciplinary Committee should be entitled to give a brief statement of reasons as to why it considered the Applicant’s bare allegations to be unsubstantiated. It cannot be right that the Board was required to give extensive and detailed reasons in respect of every complaint and allegation that had been made, even if the complaint was trivial in nature and unsupported by any independent evidence. The reasons set out in the Recommendation Report (as endorsed by the Board) have adequately informed the Applicant, as complainant, as to why his complaints were considered unfounded. 34.By endorsing the Recommendation Report, the Board has clearly adopted the reasons given by the Disciplinary Committee. In so doing, adequate reasons had been given by the Board to the Applicant, and his challenge based on the ground of inadequacy of reasons cannot possibly succeed. (ii) Whether the Board was in breach of Tameside duty? 35.As I find that the reasons given by the Disciplinary Committee are adequate, it would be extremely difficult for the Applicant to argue that the Board had failed to take reasonable steps to acquaint itself with the relevant information of the case so as to enable it to make the Decision to endorse the Recommendation Report submitted by the Disciplinary Committee. 36.The classic test giving rise to Tameside duty is set out in Secretary of State for Education and Science v Tameside Metropolitan Borough Council:[8]
37.It is well established that it is not the role of a court in a judicial review to decide upon the manner and intensity of inquiry to be undertaken in considering matters such as factual disputes and credibility. A court should not be invited to intervene on such disciplinary decisions made by specialist tribunals, merely because certain further inquiries are considered by the applicant to be sensible or desirable. An applicant is required to establish that “no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient”.[9] 38.As mentioned in Dr Chan Sze Lai Jacqueline v Dental Council of Hong Kong[10], judicial restraint should be exercised against reviewing a public body for its conclusion of fact or fact and degree. It should avoid substitution of its own findings of fact, and give appropriate weight and measure of respect to the fact that the specialist tribunal has applied its own knowledge and expertise in assessing the evidence and making factual findings. 39.The Applicant is plainly inviting the court to embark on what has repeatedly been considered to be an impermissible inquiry as mentioned in the authorities above. The Applicant just complains that certain facts were not given adequate weight, and yet he has not identified any particular matters that the Disciplinary Committee had wrongfully failed to take into account. The Disciplinary Committee had, after a lengthy inquiry consisting of up to 4 days of evidence, found that the Applicant’s complaint was unsubstantiated as uncorroborated and discredited allegations. The reasons for such findings had been adequately set out in the Recommendation Report. 40.The Board had properly considered the Recommendation Report and all underlying materials before it decided to endorse the views set out in such report.[11] There were sufficient materials before the Board to make the Decision. A reasonable tribunal possessing these materials would easily come to the conclusion that it had sufficient materials to make the Decision and that no further inquiry need to be made. In such circumstances, there is simply no room for the Applicant to argue that the Board was in breach of Tameside duty in failing to acquaint itself with the information or to conduct further inquiry before making the Decision. 41.Finally, as to the alleged failure to make findings on the Paper Shredder Complaint, the Applicant’s initial complaint form did not specifically identify the Paper Shredder Complaint as a distinct complaint. The Board had in any event sent a letter to the Applicant on 9 December 2014 enclosing a copy of the draft complaints (with no mention of the Paper Shredder Complaint as a separate complaint), which was confirmed in writing by the Applicant. Further, no request was made for the Paper Shredder Complaint to be added in the hearing, even though the Applicant was legally represented throughout the process. Again there is no merit in such complaint. REMITTING THE CASE BACK TO THE BOARD IS AN ACADEMIC EXERCISE 42.Further, even if there is some merit in the grounds to challenge the Decision, the court should not grant the relief as sought by the Applicant, namely an order of certiorari to quash the Decision and to remit the case back to the Board for re-consideration. 43.Under s 2 of the SWRO, “registered social worker” means a person whose name is currently entered in the register of registered social worker (“the Register”). The Board is established under the SWRO[12] to deal with, inter alia, the registration of social workers and disciplinary offences in accordance with the provisions in the SWRO.[13] 44.S 25 sets out the disciplinary offences which can be committed by a registered social worker. On the other hand, s 30 specifies the kinds of disciplinary orders that can be made if the registered social worker is found by the Board to have committed a disciplinary offence. 45.The clear intention of these provisions is that the disciplinary jurisdiction can only be exercised against “registered social workers” within the meaning of the SWRO. There is no express statutory power for the Board (or the Disciplinary Committee) to receive complaints, investigate or impose disciplinary orders on non-registered social workers. This is contrary to the practice of some other professional bodies which their regulatory provisions may retain a power to deal with disciplinary matters in relation to non-current members.[14] 46.Such construction of the Board’s disciplinary jurisdiction under the SWRO may hamper its powers to properly investigate and punish disciplinary offences. The authors of Disciplinary and Regulatory Proceedings[15] commented that such situations may be “destructive of regulation not least because most regulators give weight to the disciplinary findings of other regulators, if sufficiently serious, as cause for ejection from membership…”, and had identified that this is often avoided by two possible means, namely: (i) by taking powers to retain in membership or authorization any member or authorised person against whom an investigation has begun; or (ii) by providing that the regulator’s jurisdiction extends to former members or authorised persons. 47.In the present case, the 1st Interested Party retired in December 2014 and she did not renew her registration which had expired on 31st December 2014. Notwithstanding the expiry of the 1st Interested Party’s registration, the Board decided not to remove her name from the Register because of the complaints that had been made against her by the Applicant.[16] In the circumstances, at the time of the Inquiry, the 1st Interested Party was a registered social worker since her name was then in the Register. Consequentially, the Board had disciplinary jurisdiction over her by that time. 48.This is the practice adopted by other regulators, by refusing to accept resignations which are made in an attempt to frustrate disciplinary proceedings, so that disciplinary jurisdiction can be retained over them.[17] 49.However, the 1st Interested Party’s name was removed from the Register by the Board on 4th August 2016 with retrospective effect from 1st January 2015.[18] Since the 1st Interested Party is no longer a “registered social worker” within the meaning of the SWRO as her name is not currently entered in the Register, the Board does not have any more disciplinary jurisdiction over the 1st Interested Party. 50.Further, the disciplinary orders under s 30 of the SWRO would be nugatory unless made against a registered social worker. Hence, even if the Board has disciplinary jurisdiction over the 1st Interested Party, it does not have any power to make disciplinary order against her. 51.Finally, as the complaints are trivial in nature, there is minimal public interest in re-investigating the complaints or imposing any disciplinary orders on the 1st Interested Party. Hence, even if there is any merit in the grounds of challenge, which I do not accept it to be the case, the court should not grant the relief as sought by the Applicants. 52.For the above reasons, I dismiss the Applicant’s application for judicial review. I also make a costs order nisi that the costs of this application be paid by the Applicant to the Respondent and the 1st Interested Party, which shall be made absolute 14 days after the date of the handing down of this Judgment.
The Applicant, in person, present Ms Denise Souza, instructed by Chan & Cheng, for the Respondent Ms Monica Chow, instructed by Ellen Au & Co, for the 1st Interested Party The 2nd Interested Party, absent The 3rd Interested Party, absent [1] see: s.11(1) [2] see: s.11(2) [3] see s 25(2)(a) [4] [1999] 1 WLR 1293 [5] at p 300D - 1301G [6] [1998] 1 HKLRD 253, at p 291C-H [7] see §29 and footnote 4 above [8] [1977] AC 1014 at p 1065 [9] R (Khatun) v Newham London Borough Council[2005] QB 37 at §35; adopted in Hong Kong in Hysan Development Co. Ltd v Town Planning Board, unreported, CACV 232 & 233/2012 (13 November 2014) at §§90-93, and Smart Gain Investment Ltd v Town Planning Board, unreported, HCAL 12/2006 (6 November 2017) at §87, and Deng, Suet Yan v Hong Kong Housing Authority & Anor, unreported, CACV 4/2017 (7 July 2017) at §19 [10] [2014] 1 HKLRD 77 at §§22-29 [11] see: Affidavit of Kwan Yui-huen dated 25 August 2016 at §§10-15 and the Board’s meeting minutes exhibited at “KYH-3” [12] s.4 of the Ordinance [13] s.7(1)(g) of the Ordinance [14] see, for example, the Bar Code of Conduct, at §4.1, “It is the duty of every barrister (whether or not he is in practice and whether or not he is admitted to practise generally or on an ad hoc basis for the purposes of a specific case or cases) …”; and the Solicitor’s Guide at Chapter 15, §1 “Article 18(d) of the Articles of Association of the Law Society empowers the Law Society to investigate any charge of misconduct against any solicitor (whether a member or not) or employee of a solicitor and to institute and (if the Council thinks fit) prosecute any disciplinary proceedings.” [15] Gregory Treverton-Jones QC, “Disciplinary and Regulatory Proceedings”, 8th edition, Jordan Publishing, 2015,at §§5.91-5.92. [16] see: §§22 -23 of Affidavit of Kwan Yui-huen [17] see: Woodman-smith v Architcts Registration Board [2014] EWHC 3639 (Admin), at §§12-22, and R (Birks) v Commissioner of Police of the Metropolis [2014] EWHC 3041 (Admin), at §§29-33,71 [18] see: “§24 and “KYH-6” of the Affidavit of Kwan Yu-huen | |||||||||||||||||||||||||||||||
Cases cited in this judgment