Chan Tsui Yan v. Social Workers Registration Board

CACV 123/2018

[2019] HKCA 279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 123 OF 2018

(ON APPEAL FROM HCAL 63 OF 2016)

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J U D G M E N T

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Hon Yuen JA (giving the judgment of the court):

1.1.This is the Applicant Chan Tsui Yan’s appeal from the Judgment of Lok J (“the judge”) given on 19 April 2018 (“the Judgment”) dismissing his application for judicial review against the decision of the Social Workers Registration Board (“the Board”) of 9 December 2015 (“the Decision”).

1.2.As the Judgment the subject-matter of the appeal was in English, this Judgment is written in the same language.  A translation of this Judgment will be provided if the Applicant requires it.

2.We shall first deal with 3 summonses¹ which had been issued by the Applicant prior to the hearing of the appeal.

3.1.First, the summons of 25 June 2018.  As the Applicant acknowledged, this has been dealt with by the amendment of the Notice of Appeal, so no order needs to be made. 

3.2.Second, the summons of 8 November 2018.  Again, as the Applicant acknowledged, this has been dealt with by the inclusion of the transcript of the hearing before the judge (“the Transcript”) in the bundles before this court, so no order needs to be made either.

4.1.Third, the summons of 12 December 2018.  In this summons, the Applicant requested this court to play a video recording of the hearing before the judge.  The reason for his request was because he disputes the accuracy of the Transcript. As an example, he disputes the time indicated in the Transcript of a pause of 30 seconds for him to drink water.

4.2.In our view, the summons is misconceived for the following reasons.  First, the court only has audio recording facilities and does not have video recording facilities.  Secondly, in accordance with most judicial review hearings, no oral evidence was given in court before the judge.  Therefore, the rules of the court² do not provide for an official note or transcript to be supplied to any of the parties.  It would appear that in this case, a transcript was provided because of the Applicant’s persistent requests to the judge.  Thirdly, and most importantly, the Transcript is irrelevant to the substantive grounds of appeal arising from the Judgment.  The Applicant’sdissatisfaction with other matters, eg the judge’s conduct of the hearing in not permitting him to read out written documents, or concluding the hearing earlier than the 2 days for which it was listed, or inaccuracies in the Transcript (assuming there to be any), are irrelevant to the material issues arising from the Judgment which this court has to decide on appeal. 

4.3.For the reasons above, the summons of 12 December 2018 is dismissed with costs.

Background

5.1.The background of the application for judicial review is as follows.

5.2.The Applicant had made certain complaints about a social worker Madam Chau (“the 1^st Interested Party” or “IP1”) to the Board³.  On 9 December 2014, the Board provided a draft of the complaints to the Applicant for his comment. On 15 December 2014, the Applicant signed the draft withoutmaking any amendments or additions.  The document signed by the Applicant contained only 2 complaints.   

5.3.These 2 complaints have been referred to as:

(1)   the “Lunchtime Arrangement Complaint”– the complaint being that IP1 had falsely told the Applicant⁴ that the policy of the centre was that only official employees were allowed to stay during the lunch hour because people who were not official employees were troublemakers; this was denied by IP1 who said that as an experienced social worker, she would never have referred to anyone as troublemakers; and

(2)   the “Receipt of Advantage Complaint” – the complaint being that IP1 had asked the Applicant to make a gift to her of some dried tangerine peel worth $10,000, and asked for more later; this was denied by IP1 who said the Applicant had voluntarily brought some bags of dried tangerine peel to the centre which had been placed on her desk, and she had moved them to a shelf accessible to all colleagues.

5.4.Although an allegation that IP1 had asked the Applicant to shred confidential documents (“the Paper Shredding Allegation”) had been referred to in the Applicant’s complaint form of 1 September 2014⁵, this was not in the draft of the complaints sent to the Applicant for his comment on 9 December 2014, which he signed on 15 December 2014 without making any amendments or additions thereto.

6.The 2 complaints were dealt with in accordance with the Social Workers Registration Ordinance Cap. 505 (“the Ordinance”).  Under the Ordinance, a registered social worker commits a disciplinary offence if he “commits misconduct or neglect in any professional respect”⁶.

7.In accordance with the Ordinance and the Disciplinary Procedures for Handling Complaints against Registered Social Workers, the Board appointed a Disciplinary Committee (“DC”)⁷ to investigate the complaints.

8.1.The DC inquiry started in June 2015.  It took a total of 5 days and finished in September 2015.  All parties, including the Applicant, were legally represented at the inquiry.  There was no suggestion on behalf of the Applicant at any stage of the inquiry that the Paper Shredder Allegation should be added as a separate item of complaint for determination by the DC. 

8.2.The Applicant, IP1 and other witnesses including Wong Yee Nok, Lau Mo Yin and Yeung Cham Ming gave oral evidence and were cross-examined. 

8.3.In the course of the Applicant’s cross-examination by counsel for IP1, counsel referred to the Paper Shredding Allegation.  The chairman referred counsel expressly to the “2 complaints” and questioned counsel on the relevance of the line of questioning regarding the Paper Shredding Allegation⁸.  Counsel’s reply was that the allegations regarding the dried tangerine peel and the paper shredding had appeared in the complaint form after the Applicant had failed in his complaint against IP1 for discrimination, and so it was relevant to the Applicant’s credibility⁹.  The chairman then said while he understood that, he requested that counsel’s questioning be more focused¹⁰. Clearly in accepting that the line of questioning was relevant to credibility, but in asking counsel to be more focused, the understanding of the DC as expressed by the chairman was that the Paper Shredding Allegation was not itself a separate item of complaint. 

8.4.That this was the understanding of all the parties as well was shown by the fact that in the final submissions before the DC, none of the legal representatives treated the Paper Shredder Allegation as a separate item of complaint¹¹.

9.On 30 September 2015, the DC found that no complaint was substantiated (for reasons briefly summarized by the judge in §10 of the Judgment) and sent a Recommendation Report (“the Report”) to the Board recommending that the complaints be dismissed.  On 22 October 2015, the Applicant was notified and he was also provided with a copy of the Report.

10.The matter then went to the Board.  On 1 December 2015, the members of the Board were provided in advance with material documents including, in addition to the Report, a background information paper and the hearing bundle used at the inquiry.

11.At a meeting on 9 December 2015, the Board heard a presentation by the chairman of the DC who had presided over the inquiry.  After consideration by its members, the Board decided to endorse the DC’s recommendation and dismissed the complaints. 

12.This Decision led to the Applicant’s application for leave to apply for judicial review on 17 March 2016. 

13.1.The Form 86 was drafted by counsel and the grounds of review were set out as follows:

“(A) the Board failed to inquire into how the DC had made its recommendation, in particular, on the basis on which the DC rejected and/or failed to deal with crucial evidence given by the Applicant¹²;

(B) the Board failed to give adequate reasons as to its Decision¹³”.

13.2.There was a reference in the Form 86 to the fact that the Paper Shredder Allegation had not been dealt with by the DC, but this was used as support for the first ground that the Board should have realized that further inquiry was necessary¹⁴.

14.Leave was given by the judge on 20 June 2016.  In the originating summons filed on the Applicant’s behalf (Form 86A), it was stated that “the grounds of the application are those set out in the Form no. 86 dated 17^th March 2016 used on the application for leave to apply for such order”.  The affirmations filed by the respective parties were duly prepared on the basis of those grounds only.

15.The application for judicial review was heard on 25 July 2017.  The Applicant was not legally represented at the date of the hearing¹⁵.  Supplemental written submissions were provided on 28 July 2017 and 1 August 2017.

The judge’s Judgment

16.1.In the Judgment, the judge first dealt with the Applicant’s challenge to the Board’s Decision on the ground that the DC had failed to give adequate reasons, and the Board therefore should have made further inquiry, but failed to do so¹⁶. 

16.2.The judge considered whether the DC had given adequate reasons in the Report. After referring to various authorities, the judge held that it was not necessary for the DC to address every single issue at the inquiry, only the most substantial ones, and the Report had adequately informed the complainant Applicant why his complaints were considered unfounded¹⁷. 

16.3.The judge noted that the Applicant did not identify any particularly crucial evidence that the DC had failed to take into account, and his arguments that the DC should have given weight to the evidence of certain witnesses were not permissible at an application for judicial review¹⁸.

16.4.As for the Board, the judge referred to the affidavit of Kwan Yiu Huen, the Chairperson of the Board dealing with the complaints.  In Mr Kwan’s affidavit, he had set out (a) what materials had been sent to the members of the Board prior to the meeting, (b) the presentation given by Teddy Tang Chun Keung who had presided over the DC, and (c) the Board’s deliberations.  Mr Kwan said that “the Board, in coming to its Decision, took into account the reasons given by the [DC], as well as the available evidence, and were satisfied that the [DC] had duly considered all evidence and submissions before them”.

16.5.nbsp;  The judge held that there were sufficient materials before the Board which its members had considered, and that it had not failed to acquaint itself with relevant information, nor was there a need to conduct further inquiry.  In light of the above, it was not necessary for the Board to give further reasons for its Decision.

17.The application for judicial review was therefore dismissed.

Appeal

18.The Applicant’s grounds of appeal can be categorized as follows:

(1)   the judge had failed to consider that the DC did not accept evidence from some witnesses¹⁹ which evidence was in favour of the Applicant’s version of events;

(2)   there were procedural errors in the cross-examination at the inquiry before the DC;

(3)   the DC did not deal with the Paper Shredder Allegation which he regarded as a complaint.  

Discussion

19.1.In relation to ground (1), as we sought to explain to the Applicant during the hearing of this appeal, the powers of a court in judicial review proceedings are limited, particularly in respect of the fact-finding exercise.  The law is well-established²⁰ that in judicial review proceedings, it is not for the court to determine and evaluate the evidence with a view to testing findings of fact made by a public body tribunal (in this case, the DC).  A court would only interfere with the tribunal’s fact-finding decision if the decision had been predicated upon a factual error, upon it being shown by the applicant that:

-   there was simply no evidence at all for the finding, or

-   the evidence taken as a whole was not reasonably capable of supporting the finding of fact.

19.2.At the inquiry, there was evidence from IP1 denying the 2 complaints.  The DC also took into account IP1's experience and the unlikelihood that she would have done the things of which she was accused.  The DC also took into account the fact that the bags of tangerine peel were found in a place accessible by everyone, and not in IP1's exclusive possession.  The DC was well aware of the other witnesses’ evidence.  In the Report, the DC had referred to the three witnesses Mr Wong, Madam Lau and Mr Yeung²¹ and part of their evidence, eg at §3(A)(1)(b)(ii). 

19.3.As with all fact-finding tribunals, it was open to the DC to accept all or part of a witness’ evidence, and to give more weight to one part of his/her evidence or another.  Any issues as to the importance or weight of any particular piece of evidence from any of the witnesses which the tribunal saw and heard are for the DC, not the court.

19.4.Accordingly, this ground of appeal should be rejected. 

20.1.In relation to ground (2), it would appear that the Applicant’s objection is that IP2 and IP3 only put forward their “defence” after the witnesses had given evidence.  It would appear that this was not an argument that had been advanced before the DC, or to which the Board was alerted. 

20.2.More importantly, it was not a ground in the Form 86, or in the Originating Summons for judicial review (Form 86A).  The Applicant did not apply to the judge for leave to amend the grounds. 

20.3.Even if the Applicant had applied for amendment, the judge should not have acceded to it.  The importance of the grounds specified in the application for judicial review has been stressed by the courts.  In Lau Kong Yung & Others v Director of Immigration²², Litton PJ emphasized the discipline of law and of legal procedures, saying:

“Once leave to apply for judicial review is granted, amendment of the grounds should rarely occur. All too often applications are made for amendment after leave to issue proceedings has been granted, as if O.53 r.3 were simply the portals to a playground of infinite possibilities where the administrators could then be made to leap through more and more hoops of fire. It is up to the Judges of the High Court to stop this kind of extravaganza”.

More recently, in Tang Suk Chun and Director of Food and Environmental Hygiene²³, Lam VP also said:

“This Court should not allow new grounds to be run lightly as the running of such new points would, in effect, circumvent the duty of an applicant to proceed with promptitude. Relaxation of such an approach without good and exceptional reason is not conducive to good public administration”.

The Applicant was legally represented (i) at the DC inquiry, (ii) when he applied for leave to apply for judicial review, (iii) when the Originating Summons for judicial review was issued, and (iv) when the affirmation in support was prepared.  This new ground was never raised.  There is no good reason why he should be permitted to run a new ground now.  This ground of appeal should also be rejected.

21.1.In relation to ground (3):

-   the Paper Shredder Allegation was not a distinct complaint put forward by the Applicant in the complaint document he signed; 

-   it was not made a separate item of complaint at the inquiry before the DC;

-   IP1’s counsel was only allowed to question the Applicant about it at the inquiry for the purposes of credibility only; this was not disputed on behalf of the Applicant;

-   none of the legal representatives made submissions to the DC on the Allegation as if it were a separate item of complaint.    

21.2.It was by reason of the Applicant’s conduct that the Board and IP1 had proceeded on the basis that the Paper Shredder Allegation was not a separate complaint. Accordingly, the judge was correct and this ground of appeal should also be rejected. 

22.1.As a matter of completeness, we would also mention that the Applicant sought to introduce even more new grounds in his written submissions, eg his allegation that the Board had presented “false documents” because a copy of the Report had not been signed.

22.2.Again this was a new ground, which has never been foreshadowed.  In any event, since there was no suggestion that, apart from the absence of signatures, there were any differences in any copies of the Report, this is immaterial.   

23.1.Also as a matter of completeness, we would deal with one particular submission of Miss Chow, counsel for IP1. 

23.2.This submission arises from the fact that after the Applicant made his complaints in December 2014, IP1 did not apply to renew her registration as a registered social worker on its expiration on 31 December 2014. 

23.3.Although the Board has a power to remove a registered social worker’s name from the register under s.22(1)(d) of the Ordinance if she has failed to renew her registration, the Board did not do so as its policy was not to exercise that power while disciplinary proceedings were extant.  According to the Chairperson of the Board,

“The Board does so in order to ensure that it may exercise its disciplinary jurisdiction over the social worker, in the event that a disciplinary order is made against him/her”.²⁴

23.4.The disciplinary orders include removal of the social worker’s name (whether permanently or for a period), reprimand and oral admonition. 

23.5.IP1’s name therefore remained on the register until 4 August 2016, when the removal of her name was made retrospective to 1 January 2015.  It would be noted that leave to apply for judicial review was given on 20 June 2016.   

23.6.Miss Chow’s submission was that in view of the fact that IP1 was no longer a registered social worker because her name was not “currently entered in the Register”, the court should not grant the relief sought by the Applicant.  This was accepted by the judge as a secondary reason to dismiss the Originating Summons²⁵.

24.1.Miss Chow emphasized that she was not contending that this court does not have jurisdiction to deal with the appeal because IP1 was no longer a registered social worker.  Miss Chow accepted that the case is distinguishable from Surrey Police Authority v Beckett²⁶which she cited.  In the UK case, the employment of the police officer was under contract, and the contract simply expired by effluxion of time.  The UK Court of Appeal held that on the date of expiry of the contract, the officer ceased to be a police officer, and so proceedings which had started could not be continued.  In our case, it is for the Board to exercise its power to remove from the register a social worker who has not applied to renew her registration.

24.2.Miss Chow’s submission was rather, that her client’s removal from the register renderedthe appeal “moot” or academic.  It is well-established that the grant of relief in judicial review proceedings is an exercise of discretion, and since the appeal has been dismissed on the primary grounds, it is not necessary for us to express a view on whether the judge’s view on this secondary point is correct.   

Order

25.The appeal is dismissed with costs to be paid by the Applicant to the Board and IP1, to be taxed if not agreed.  

The applicant unrepresented, acting in person

Ms Isabel Tam, instructed by Chan and Cheng, for the respondent

Ms Monica Chow, instructed by Ellen Au & Co, for the 1^st interested party