Cheung Man Wai Florence v. The Director of Social Welfare

CACV000060/2000

CACV 60/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 60 OF 2000

(ON APPEAL FROM HCAL 25/1999)

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Coram: Hon Godfrey VP, Woo JA and Ribeiro JA in Court

Date of Hearing: 31 May 2000

Date of Judgment: 31 May 2000

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J U D G M E N T

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Hon Godfrey VP :

Introduction

1. This is an appeal from the refusal of Stone J, on an application for judicial review by one Cheung Man Wai Florence ("the applicant"), to make the declarations in favour of the applicant which she had sought in the judicial review proceedings. She now appeals. The respondent to her application (below and in this court) is the Director of Social Welfare.

Legislative background

2. The legislative background against which this application falls to be considered is to be found in the Social Workers Registration Ordinance, Cap. 505. The preamble to this Ordinance states that it is :-

"An Ordinance to provide for the registration of social workers and disciplinary control of the professional activities of registered social workers, and for related matters."

3. The applicant is a social worker. She has voiced objection to the Ordinance. She denies the need for registration of social workers. It is not a matter for this court why it is that she takes that view nor whether she is right. It is a view which she (and others) are perfectly entitled to entertain.

4. At the heart of the Ordinance, so far as the present application is concerned, are the provisions of sections 34 and 35. Section 34 is contained in Part VI of the Ordinance, which relates to "USE OF TITLE". I shall read section 34(1), (2) and (3) :-

"34. Use of title

(1) Subject to subsections (3) and (4), a person whose name does not appear on the Register shall not be entitled to use-

(a) the description 'registered social worker' or '註冊社會工作者';

(b) the initials 'R.S.W.'; or

(c) the description 'social work' or '社會工作' or 'social worker' or '社會工作者' or '社工',

whether in combination with any other description or any initials or otherwise, to describe his profession as being the social work profession or his social work professional qualifications.

(2) The Board [constituted by the Ordinance] may apply to a judge for an order restraining any person whose name is not on the Register from contravening subsection (1).

(3) Subsection (1) shall not be construed to prevent any person from stating any academic or professional qualifications where he actually possesses such qualifications, whether or not he is qualified to be registered."

5. Section 35 is contained in Part VII of the Ordinance, which relates to "OFFENCES AND EVIDENCE". I shall read section 35(h) :-

"35 Offences and evidence :-

Any person who -

.....

(h) not being a registered social worker (but without prejudice to the operation of section 34(3) and (4)), knowingly permits the use of, or uses, in connection with his business or profession [the various descriptions set out in section 34(1)]

commits an offence ..."

The facts

6. The applicant was employed as a social worker at the Lady Mclehose Centre, which is a voluntary organisation subvented by the Social Welfare Department of the Government of the Hong Kong Special Administrative Region. The applicant has a diploma in social work, with distinction, from the City University of Hong Kong. The applicant decided not to apply for registration as a registered social worker under the provisions of the Ordinance. That led to difficulties with the Lady Mclehose Centre. It was anxious that she should so register but she stood firm and, in the end, she was dismissed. (I should perhaps make it clear that the present proceedings are not proceedings for wrongful dismissal and we are not concerned in any way to express an opinion as to whether or not the applicant may have some remedy in private law proceedings against her former employer.)

7. The applicant's grievance in the present proceedings may be summarised as a complaint against the Director of Social Welfare, who, in the past, has expressed a view about the effect of the Ordinance which the applicant contends was incorrect. That view was that it was a statutory requirement under the Ordinance that staff in the "social welfare officer" and "social welfare assistant" grades had to become registered social workers. This view was expressed in a circular letter dated 7 March 1998 addressed by the Director of Social Welfare to subvented welfare organisations.

8. When the proceedings came before the judge below, it was accepted, on behalf of the respondent, that that statement was not strictly correct. The correct position was that, although it might be a criminal offence for a social worker to hold himself or herself out as such unless he or she was a registered social worker, there was no statutory requirement that a social worker should, in fact, so register.

9. But the respondent's acceptance of this was not sufficient for the applicant. The applicant insisted on her right to a declaration as to the true position. The judge, in the exercise of his discretion, declined to make such a declaration. The judge said this :-

"... the relief sought is but a bare declaration based upon the admittedly incorrect assertion in the first of the letters [that is, the letter of 7 March 1998] complained of that it is a statutory requirement to register, although it is plain on a fair reading of the sequence of correspondence that the criminal aspect which was principally arousing concern lay not in failure to register per se but in the event that social workers in the relevant grades continued to use their rank titles in the course of their jobs absent such registration.

After considering all the evidence, together with the legal submissions, in the exercise of my discretion I am disinclined to grant the relief sought under this head, which at bottom crystallises upon but one sentence in one letter as the 'hook' upon which to hang the present application. The position is plain. If this lady wishes to continue to practise the profession for which she is well-qualified, and if she wishes to do it with a subvented organisation, then no doubt she will have to accept the terms of the employment offered, which by reason of the subvention policy will almost certainly involve the element of registration. If, on the other hand, she chooses not to accept any such terms, that is a matter for her. This Court makes no comment upon the wisdom or otherwise of this piece of legislation. That is not its job. In my judgment, however, this application is but a thinly veiled collateral challenge to this Ordinance via recourse to alleged 'decisions' said to be contained in correspondence from the Director of Social Welfare. I reject such challenge which, in my view, has demonstrated little merit." [emphasis added.]

Discretion

10. Mr Dykes SC, for the applicant, accepts that the decision whether or not to grant a declaration in judicial review proceedings is a matter for the discretion of the judge. He accepts that, accordingly, unless the applicant can establish in this court that the judge went wrong in principle, or failed to take into account some matter which he was bound to take into account, or took into account some matter which he was not entitled to take into account, this court will not interfere with the exercise by the judge of his discretion. He also accepts that, if we were to take the view that the judge had exercised his discretion wrongly, it would then be for this court to decide for itself how to exercise the discretion, and that this court might come to the same conclusion as the judge, although for different reasons.

11. The attack made by Mr Dykes on the judge's reasoning, as I understood his argument, depends on this, that the judge overlooked the range of possibilities open to one who wishes to practise social work. Some social work agencies are wholly subvented; some are partially subvented; some are not subvented at all; some conduct specific projects which are subvented, although otherwise they are not subvented.

12. The judge, as Mr Dykes pointed out, does not expressly mention this range of possibilities, in particular, that the applicant might want to obtain a position with a non-subvented organisation. But, as it seems to me, the judge plainly did have in mind the possibility that a qualified social worker, whether registered or not, might want to obtain a position with a non-subvented organisation. This seems to me to follow by necessary implication from the words in his judgment which I have already emphasised.

13. As I understood the argument, the applicant has no other ground for suggesting that the judge's decision not to make a declaration here is open to challenge. In my judgment, that challenge fails. The judge did not fall into error. But, in any event, I would add this. The court, even in public law proceedings, is loath to make any declaration in the nature of an advisory opinion as to the true construction or effect of legislation. It is equally loath to make a declaration in a situation which can be described as academic or hypothetical, because such a declaration would not be grounded on any factual basis. And the court will certainly not make a declaration unless it is satisfied that the making of that declaration will serve some useful purpose.

14. The declaration now sought by the applicant (on the footing that this court might see fit to interfere with the judge's exercise of his discretion to make no declaration at all) is a declaration in the following terms :-

"That, on 15th September 1998 (the date of the Applicant's dismissal), it was not a requirement under the Social Workers Registration Ordinance, Cap. 505 ('the SWRO') for the Applicant, as a person then holding a social work post (Social Work Assistant) to register under the provisions of Part III of the SWRO and that her using the description 'Unregistered Social Worker' to describe her post did not constitute an offence under s.35(h) and (i) of the SWRO."

15. In my judgment, the making of such a declaration would fall foul of every one of the grounds which I have indicated are good grounds for not making a declaration. Worse still, so far as the claim for a declaration in relation to the use of the description "unregistered social worker" is concerned, I would, for my part, be inclined, if I were to make any declaration at all, to make a declaration in precisely the opposite sense to that suggested by the applicant. So, even if I had thought it right to interfere with the exercise by the judge of his discretion not to make a declaration in this case, I would, for my own reasons, have emphatically refused to do so.

Result

16. In the result, I would dismiss this appeal.

Hon Woo JA :

The Applicant's case on appeal is that the Judge was wrong in refusing to exercise his discretion to grant a declaration in the following terms:

"That, on 15th September 1998 (the date of the Applicant's dismissal), it was not a requirement under the Social Workers Registration Ordinance, Cap.505 ('the SWRO') for the Applicant, as a person then holding a social work post (Social Work Assistant) to register under the provisions of part III of the SWRO and that her using the description 'Unregistered Social Worker' to describe her post did not constitute an offence under s.35(h) and (i) of the SWRO."

17. The case argued before us is inconsistent with the case argued before Stone, J, the judge hearing the application, in that whereas the Applicant now says she may work for a non-subvented organisation, her ground for relief before the judge was that she wished to work for subvented organisations.

She applies to adduce fresh evidence before us to support her allegation that the judge's refusal of her application was based on his assumption that there was no non-subvented non-government organisations with which she might seek employment in the field of social work. That allegation is simply unjustified and unsubstantiated when one reads the judge's judgment in its entirety. Moreover, the judge was dealing with the submission of the applicant that she was working in a subvented organisation and she wished to work in organisations which were publicly funded, and it lies ill in the mouth of the Applicant to now turn round to suggest that the judge was operating under the alleged wrong assumption. The application to adduce evidence has therefore been dismissed.

With regard to the declaration sought, I am of the view that to declare in effect that it is not illegal for the Applicant to work as a social worker by declaring herself to whomsoever concerned that she is an "unregistered social worker" may unwittingly induce persons like the Applicant to tread extremely dangerous ground because insofar as a person is not registered under the Social Workers Registration Ordinance, Cap 505, he (or she) commits an offence where he "knowingly permits the use of, or uses, in connection with his business or profession" "the description 'social work' or '社會工作' or 'social worker' or '社會工作者' or '社工'" under section 35(h)(iii) of the Ordinance. I say this because if a person works as a social worker in connection with his business or profession, when he is asked by a client or a co-worker whether he is a social worker, he would normally have to answer yes, but if he is unregistered, he hastily adds that "he is not registered" or "he is not a registered social worker". When asked by such a person what his work is, he is bound to say that he is engaged in social work. In such or similar circumstances, he will then open himself to the risk of having committed an offence contrary to the said section 35(h)(iii), for he has used the description of "social worker" or its abbreviation in Chinese '社工' in connection with his business or profession. This should be the realistic way of looking at this matter. For my part, I think this realistic approach fully justifies my refusing to exercise my discretion to grant the application, even if I am asked to do so. That does not, however, detract from the fact that no justifiable or proper reason has been shown before us that the judge exercised his discretion incorrectly or against principle.

18. I also would dismiss the appeal.

Hon Ribeiro JA :

19. I entirely agree with both judgments that have been delivered and have nothing to add.

Representation:

Mr Philip Dykes, SC, & Mr Hectar H. Pun, instructed by Messrs Tsang, Chan & Woo (assigned by DLA) for the Applicant

Mr Johnny Mok, instructed by Department of Justice, for the Respondent