Cheung Man Wai Florence v. The Director of Social Welfare
Read the full judgment text of HCAL 25/1999 on BabelCite. This High Court CFI judgment was delivered on 3 December 1999.
1. This is an application for judicial review by the Applicant, formerly a Social Work Assistant at the Lady Mclehose Centre, a voluntary social service organisation subvented by the Social Welfare Department.
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HCAL000025/1999 HCAL25/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.25 OF 1999 ---------------
--------------- Coram : The Hon Mr Justice Stone in Court Dates of Hearing : 23 September and 11 October 1999 Date of Handing Down Judgment : 3 December 1999 _______________________ J U D G M E N T _______________________ The Application 1. This is an application for judicial review by the Applicant, formerly a Social Work Assistant at the Lady Mclehose Centre, a voluntary social service organisation subvented by the Social Welfare Department. 2. Leave to apply for judicial review was granted by this Court on 30th April 1999 after a contested hearing, as the result of which the ambit of the review was significantly restricted, the Court at that time specifically disallowing leave to apply for an order of certiorari to bring up and quash the Code of Practice gazetted on 16th October 1998, and for an order to bring up and quash the decision of the Director of Social Welfare dated 19th October 1998 to enforce a 'claw-back' policy, with effect from 1st December 1998, if a subvented agency should appoint a non-registered social worker to fill a subvented social work post. The Relief Now Sought 3. Consequent upon the application for leave, the Applicant herein applies for declaratory relief only. In this connection, Mr Dykes S.C., leading Counsel for the Applicant, has refined and reformulated the declaratory relief sought as follows :-
I shall refer to this, as did Mr Dykes S.C., as the 'Basic Law Point'.
I also adopt the terminology used and refer to this as 'the Construction Point'. The Decisions in respect of which Relief is Sought 4. The Applicant's Notice of Application for leave to apply for Judicial Review canvasses the matter thus :-
5. Perhaps the document that was most referred to during this application is the first in the sequence of letters of which complaint is made, that dated 7th March 1998, which is in the form of a letter from the Director of Social Welfare to, inter alia, subvented non-governmental organisations (including the Lady Mclehose Centre) :-
6. This letter was followed by an explanatory letter dated 7th September 1998 to all social work officers, an explanatory letter dated 28th September to the Secretary General of Legco, and finally, a letter dated 19th October 1998, once again to all subvented non-governmental organisations, which reads, in part :-
7. I have chosen to set out parts of the letters in issue not least because, in my view, they should be read not in isolation but as part of a sequence of correspondence whereby the Social Welfare Department took the opportunity to advise its agency heads, subvented organisations and social workers as to that Department's concerns about the perceived necessity to comply with the requirements of the new legislation, namely the Social Workers Registration Ordinance, Cap.505 ("SWRO") which was enacted in April 1997 and came into force on 6th June 1997. The Factual Background 8. I turn now to describe the particular position of the Applicant herein, Miss Florence Cheung. 9. In 1996 she obtained a Diploma in Social Work (with Distinction) from the City University of Hong Kong, and on 1st September 1996 began working as a Social Work Assistant for the Lady Mclehose Centre, which is a voluntary organisation subvented by the Social Welfare Department. 10. The enactment of the SWRO, which provides for a registration system for some (albeit not all) social workers in Hong Kong, constitutes the backdrop to the correspondence rehearsed earlier in this judgment, as to the content of which complaint is now made. 11. However, for reasons which are not entirely clear, but which appear to be rooted in personal conviction, Miss Cheung steadfastly refused invitations to apply for registration as a registered social worker under the SWRO. As a consequence of this decision not so to register, she received three letters from her employer, the Lady Mclehose Centre, dated 31st March, 29th April and 11th May 1998 respectively, wherein she was urged to register in order to avoid committing an offence under this new legislation. Indeed, those in charge of the Lady Mclehose Centre were clearly exercised by Miss Cheung's refusal in this regard, the letter of 29th April 1998 to Miss Cheung stating :-
Shortly thereafter, by a Note dated 11th May 1998 to the Executive Director of the Centre from the Senior Supervisor with regard to "working arrangement for non-registered colleagues of the Neighbourhood Level Community Development Project of the Fu Yung Shan, Lo Wai New Village", the following procedures were proposed to Miss Cheung and five of her colleagues, who signed this document to indicate their understanding and agreement thereto :-
12. During the hearing of this application, there was some disagreement as to the precise translation of this document, but for present purposes I do not think it greatly matters, given that the main thrust of this letter remains clear. 13. Finally, on 15th August 1998 Miss Cheung's employer, the Lady Mclehose Centre, after taking legal advice and after receiving the 'Guidelines' from the Social Welfare Department and the Hong Kong Council of Social Services, wrote to her giving formal notice that her employment was to be terminated at noon on 15th September 1998 absent proof that Miss Cheung had indeed applied for registration. 14. This was duly followed by a formal Letter of Termination of 15th November, given Miss Cheung's failure to apply to register, and in light of "the fact that you explicitly stated that you refused to register". 15. Thereafter, Miss Cheung chose to pursue the matter by way of application for judicial review, proceedings for which were filed on 22nd February 1999. At bottom, her complaint is that, absent the advice received by her employers from the Director of Social Welfare, her position would not have been terminated. The Social Workers Registration Ordinance, Cap.505 16. The preamble to this Ordinance which came into force on 6th June 1997 is couched thus :-
17. The sections which have attracted the greatest attention in the context of this application are parts of sections 34 and 35, and for ease of reference I set out below the relevant extracts therefrom :-
The Issues for Decision (1) The Basic Law Point 18. The argument here is in short compass, and involves a perceived clash between the terms of this new legislation and the Basic Law. In a nutshell, the argument is thus : that the effect of the Basic Law is to preserve the status quo of those who were in employment before the establishment of the HKSAR, that at the time the Basic Law was adopted there was no requirement for social workers (whether within Government or working for a subvented agency) to register with a central registry, and that any change in policy as incorporated in new legislation cannot affect the rights guaranteed by the Basic Law. 19. In this regard, Article 144 of the Basic Law mirrors Article 100 (which relates to public servants serving in Hong Kong Government departments) and provides thus :-
20. So, the argument goes, Miss Cheung, who became a social worker in April 1996, can pray in aid the status quo prior to the enactment of the Basic Law. There is, however, disagreement as to the relevant dates to be applied. The Applicant's primary contention is that the 'cut-off dates' for both the Basic Law and the SWRO were the dates on which they were enacted : for the Basic Law April 1990 and for the SWRO 6th June 1997. Alternatively, it is argued that the 'cut-off date' for the Basic Law is 1st July 1997, the date upon which it came into effect and the 'cut-off date' for the SWRO was 16th January 1998, the date on which the particular requirement of registration (as opposed to the Ordinance) came into force. 21. But in either case it is asserted that the requirement to register is unconstitutional because, prior to the relevant date, there was no such requirement. 22. So far as the relevant date is concerned, the answer seems to me to be tolerably clear. Mr Mok submitted, and I agree, that the relevant date could only sensibly be construed as 30th June/1st July 1997, which is made clear by the wording in Article 142, part of which reads :-
23. He further pointed out that in a decision relating to the meaning of the words "the laws previously in force in Hong Kong" under Article 160, the Court of Appeal has held that the "cut-off date" was neither the date of the Joint Declaration nor that of the promulgation of the Basic Law, but "could only be 30th June 1997" when the Basic Law came into effect : see HKSAR v. Ma Wai Kwan David [1997] 2 HKC 315 at 316. 24. Mr Mok further submitted that the statutory system of registration was established, at the latest, by 6th June 1997, when the SWRO came into operation, and that accordingly it was this which was the "previous system", within the meaning of Article 144. He argued, further, that if indeed the word "previous" had the meaning ascribed to it by the Applicant, that is prior to the promulgation of the Basic Law on 4th April 1990, then the Applicant herself (who was first employed by a subvented agency on 1st September 1996) accordingly would not have been "previously serving in the subvented organizations" to qualify for protection under Article 144. 25. In my view, Mr Mok's analysis as to the relevant 'cut-off dates' is correct. Perhaps more to the point, however, is that the Applicant's argument fails to pay due (or indeed any) regard to the specific provisions of Article 142 :-
which provides the statutory context for the provisions of Article 144, and also Article 145, viz. :-
Pursuant to this Article the Government has the duty and is obliged to develop and improve the social welfare system as Hong Kong society requires, and I find it difficult to understand how the provisions of Article 144 could, in effect, stultify this requirement given that the legislation complained of falls squarely within the area of the development of the social welfare system. 26. At the end of the day I am unable to discern any prospect of success within the Applicant's argument under the Basic Law head. Accordingly, I reject the submissions in this regard, and decline the declaration as sought. (2) The Construction Point 27. The Applicant's case under this head is that the statements contained in the three letters from the Director of Social Welfare are wrong in law and are therefore misleading. 28. Argument in this regard focused primarily upon the first letter in the sequence, and in particular the passage :-
29. The main point within the Applicant's case is that the advice tendered to the effect that it was "a statutory requirement" under the Ordinance for all staff in the SWO and SWA grades to register was plainly incorrect. Equally, says the Applicant, if a person does not use in connection with his business or profession the descriptions, initials or abbreviations of the words prescribed in the SWRO when he performs his duties, no offence will be committed, so that he cannot be convicted of any offence if he makes clear to his client that he is not a registered social worker under the SWRO. 30. Mr Dykes S.C. for the Applicant has pointed out that, perhaps oddly, there is no definition of 'social work' or 'social worker' in the SWRO, the target of the legislation being persons who occupy a social work post, but that he has located such definitions in another Ordinance, the Social Work Training Fund Ordinance, Cap.1100, and as such the Applicant falls squarely within the definition of "social worker" therein as "a person who is trained for ... any social work". In so far as it be relevant, he says, the Applicant clearly matched that description. 31. It followed therefore (and I take this to be the principal argument) that a person may hold a social work post and not be a registered social worker (because there is no requirement to register), but that so long as there is no claim to be a registered social worker, the provisions of the SWRO and in particular section 35(h)(iii) would not be offended. Hence the manner in which the relevant declaration now sought is couched. And if this be correct, said Mr Dykes, there is a need for the declaration. The Lady Mclehose Centre had dismissed the Applicant on the strength of the incorrect advice that registration was necessary, and that Centre might wish to reconsider its decision to employ her, or for that matter another non-governmental organization might wish to do so. Indeed, he said, "other social workers in a similar position should know their rights". 32. Mr Mok, on behalf of the Director, strongly opposed the grant of any such declaration. He conceded at the outset that one sentence in the first letter was legally incorrect, in that there is no statutory requirement to register within the SWRO. He maintained, however, that when read together and in context, the tenor and content of the relevant correspondence made it crystal clear that by reason of the provisions of the SWRO, a social work officer or a social work assistant would have to be registered because, by virtue of appointment to that grade, in order actually to do the job a person would already be using the title 'social worker' or the description 'social work', perhaps in combination with other terms, in connection with the practice of this profession. In other words, said Mr Mok, there can be no doubt that the purpose of the SWRO is to ensure that a social worker providing such services by way of business or profession should register, failing which the person would risk prosecution if that person uses or permits the use of the description 'social work' or the title 'social worker', and that it was wholly fanciful to suggest that there could be no risk of prosecution if the Lady Mclehose Centre continued to employ Miss Cheung in a professional capacity as a "Social Work Assistant" absent the required registration. In the circumstances, therefore, it was not feasible, concluded Mr Mok, for such a subvented agency to be able to employ such an unregistered person, nor indeed for the Director to permit or acquiesce in such employment, and it was "wholly fanciful" to suggest that there would be no risk of prosecution if the Lady Mclehose Centre had continued to employ her as a "Social Work Assistant"; indeed it would have been irresponsible to permit such a person to continue to perform professional social work services as a social work assistant without making sure that there was no risk that an offence might intentionally or inadvertently be committed. 33. In addition, Mr Mok submitted that the three letters did not reflect any 'decisions' per se. The only 'decision' so reflected was that the Government would 'claw back' a portion of subvention for those subvented social work posts not filled by registered social workers. However, leave had not been granted to challenge this decision, and it did not remain a live issue upon the present application. 34. It followed, submitted Mr Mok, that the Applicant is and was misusing the procedure of a declaratory remedy by "creating an artificial issue (which has no practical significance to the Applicant) in order to score a political victory". The jurisdiction of the Court to declare whether particular conduct involves the commission of a criminal offence was exercised in exceptional cases only, he argued, such as that in Airedale N.H.S. Trust v. Bland [1993] 2 WLR 316, which was where authoritative guidance was needed as to whether doctors caring for a patient in a vegetative state would risk prosecution for murder by discontinuing life support treatment. In that case, Lord Goff expressly acknowledged (op.cit.) at 366 that "I recognise that strong warnings have been given against the civil courts usurping the function of the criminal courts...", albeit he stated that the jurisdiction existed ("It would be a deplorable state of affairs if no authoritative guidance could be given to the medical profession in a case such as the present"), whilst Lord Browne-Wilkinson observed (op.cit.) at 382-383 :-
35. Clearly the present case bears no resemblance to Bland, and in so far as the second limb of the declaration trespasses upon this rarely-used jurisdiction, it must clearly fail in limine. Nor, for that matter, do I accept the assertion that the Applicant will be assisted by the proposed declaration. She has clearly decided not to become a registered social worker, despite being afforded abundant chances so to do, and this refusal appears to be based upon her own philosophical objection to the registration system (and, for that matter, to the claw-back system and the Code of Practice, albeit leave was not given in relation to these matters), and Mr Dykes' suggestion that a declaration may assist if she seeks work again with a subvented agency in my view carries little real weight, given that for her own reasons, she clearly has set her face against registration. 36. Nor does the present application challenge the reasonableness of the decision to make registration one of the prerequisites for the appointment of staff to full subvented SWO and SWA grade posts. Indeed, the relief sought is but a bare declaration based upon the admittedly incorrect assertion in the first of the letters 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. 37. 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. Order 38. It follows from the foregoing that this application for judicial review is dismissed. I make an order nisi that the costs of the application be to the Respondent, to be taxed if not agreed.
Representation: Mr Philip Dykes, S.C. leading Mr Hectar Pun, inst'd by M/s Tsang, Chan & Woo, for the Applicant Mr Johnny Mok, inst'd by Department of Justice, for the Respondent
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