CHAN TSUI YAN v. SOCIAL WORKERS REGISTRATION BOARD

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

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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 1^st Interested Party who was then a registered social worker at the SRCP.  The complaints can be summarized as follows:

(i) The 1^st Interested Party had told the Applicant that he could not stay at the Centre during the lunch hour, and only official employees were permitted to.  He subsequently discovered through other sources that there was no such policy or rule (“the Lunchtime Arrangement Complaint”).

(ii) The 1^st Interested Party had wrongfully asked the Applicant to gift her a considerable amount of aged “chenpi” (sun-dried tangerine peel) which was valued at around $10,000.  Later, when she had used up the chenpi, she asked him for more (“the Receipt of Advantage Complaint”).

(iii) The 1^st Interested Party had wrongfully asked him to shred confidential documents, such as old case files, on several occasions.  When the Applicant continuously refused to do so, the 1^st Interested Party asked other persons to do the same (“the Paper Shredder Complaint”).

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 1^st 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 2^nd and 3^rd Interested Parties, for “harbouring” the 1^st 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 1^st Interested Party; and (iii) the SRCP issued a public apology in a newspaper.

7.  The 1^st 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:

(i) The Applicant’s allegations as to the Lunchtime Arrangement Complaint were uncorroborated and discredited even by other independent witnesses. The 1^st Interested Party was an experienced social worker who had ample experience in dealing with clients.  They preferred the 1^st Interested Party’s evidence on the issue.

(ii) The Applicant’s allegations as to the Receipt of Advantage Complaint were also unsubstantiated and uncorroborated because no one else had heard the 1^st Interested Party making such alleged requests.  Further, when the 2^nd Interested Party went to the Centre to investigate the complaints, the chenpi was placed in a conspicuous space accessible to all social workers.  The 1^st Interested Party also immediately handed the chenpi to the 2^nd Interested Party.  The Disciplinary Committee did not accept that the 1^st Interested Party had intended to keep the chenpi for her own benefit.

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 1^st 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 1^st 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:

(i) The Board failed to inquire into how the Disciplinary Committee made its recommendation and was therefore in breach of Tameside duty.

(ii) The Board failed to give adequate reasons in rejecting the complaints.

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:

“(1) The Board may do all such things as are necessary for, or incidental or conducive to, the better performance of its functions and in particular but without prejudice to the generality of the foregoing, may—

(a) establish committees to advise the Board on the performance of its functions and the exercise of its powers (including committees which have members who are not members of the Board);

… … …

(e) exercise such other powers as are conferred on it under this Ordinance…”

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:

“(1) The Board shall appoint persons (not being members of the Board) to be members of a disciplinary committee panel in accordance with the following numbers and categories—

(a) not less than 12 registered social workers (category 1) who each hold a recognized degree in social work;

(b) not less than 12 registered social workers (category 1) who each hold a recognized diploma in social work; and

(c) not less than 10 persons who are not registered social workers.

… … …”

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:

“(3) Any complaint concerning any disciplinary offence shall be made in the specified form to the Registrar who shall, in accordance with rules made by the Board under section 9, submit the form to 2 members of the Board appointed by the Board for the purpose, and the members, in accordance with such rules, shall refer the complaint to the Board unless—

(a) the members are satisfied that—

(i)the complainant has had actual knowledge of the disciplinary offence complained of for more than 2 years immediately preceding the date on which the Registrar received the complaint; and

(ii)there are no special circumstances which explain the delay in making the complaint;

(b) the complaint is made anonymously;

(c) the complainant cannot be identified or traced;

(d) the social worker the subject of the complaint has ceased to be a registered social worker;

(e) the complaint, or a complaint of a substantially similar nature, has previously been inquired into by a disciplinary committee and the Board decided that the disciplinary offence complained of was not committed;

(f) the members are satisfied that the disciplinary offence complained of is trivial;

(g) the members are satisfied that the complaint is frivolous or vexatious or is not made in good faith; or

(h) the members are satisfied for any other reason that referring the complaint to the Board is unnecessary.

(4) Where a complaint has been referred to the Board under subsection (3), the Board shall, before reaching a decision in relation to the complaint or making a disciplinary order, appoint a disciplinary committee to inquire into the complaint, to advise it whether the disciplinary offence complained of has been committed and, if so, to recommend an appropriate disciplinary order.”

24.  As to the procedures before the Disciplinary Committee and Board, s 27 provides that:

“(1) The Board shall, not later than 30 days after a complaint is referred to it under section 25(3), appoint the disciplinary committee required by section 25(4) in relation to the complaint.

… … …

(5) The disciplinary committee shall not proceed to hear evidence of a complaint concerning a disciplinary offence unless the registered social worker in respect of whom the complaint is made is given 28 days’ notice of the complaint and the date, time and place of the hearing.

… … …

(7) After the disciplinary committee has reached a decision on the advice to be given to the Board as to whether the disciplinary offence complained of has been committed and any appropriate disciplinary order that it would recommend in respect of the complaint, it shall report to the Board accordingly.

(8) The Board shall, after considering the disciplinary committee’s decision or recommendation, the reasons in support thereof, any evidence and findings in respect thereof and all relevant circumstances relating thereto, decide whether the disciplinary offence complained of has been committed and notify the complainant concerned of the decision and the reasons therefor.

(9)  Where the Board, after consideration of the advice of the disciplinary committee that a disciplinary offence has been committed or the recommendation that a certain disciplinary order should be made, is of the opinion that the complaint concerned or the recommended disciplinary order requires further investigation, it may refer the complaint back to the disciplinary committee which has reported thereon or to another disciplinary committee which the Board may appoint for further investigation, and may at the time of making such reference or thereafter give directions on matters relating to the complaint or the recommended disciplinary order on which such further investigation should be conducted…”

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:

“(1) Where the Board has decided that a registered social worker has committed a disciplinary offence, it shall—

(a) order the Registrar to remove the name of the social worker from the Registrar permanently;

(b) order the Registrar to remove the name of the social worker from the Registrar for such period (not being more than 5 years) as the Board thinks fit;

(c) reprimand the social worker in writing and order the Registrar to record the reprimand on the Register; or

(d) order that the Chairperson of the Board admonish the social worker orally.

(2) Where the disciplinary offence referred to in subsection (1) is a disciplinary offence under section 25(1)(f), the Board shall exercise its power under subsection (1)(a).”

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 1^st Interested Party.  Further, as the complaints involved allegations of professional misconduct which would have serious consequences for the 1^st Interested Party, it would have been prudent for the Disciplinary Committee not to make any adverse findings against the 1^st 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]

“Their Lordships now turn to the alternative approach, that of the common law. In its most general form the argument proposes that there should be a general obligation on all decision-makers to give reasons for their decisions. The advantages of the provision of reasons have been often rehearsed. They relate to the decision-making process, in strengthening that process itself, in increasing the public confidence in it, and in the desirability of the disclosure of error where error exists. They relate also 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. But there are also dangers and disadvantages in a universal requirement for reasons. It may impose an undesirable legalism into areas where a high degree of informality is appropriate and add to delay and expense.”

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] :

“First, the reasons given should show that the tribunal has addressed the 
substantial issues before it and show why the tribunal has come to its decision. 
There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered.

Secondly, when deciding on questions of indecency or obscenity, there may be cases where the contents of the articles in question would virtually 
speak for themselves. In these instances, the duty to give reasons could be discharged by describing the contents without much more. Apart from cases of this kind, a decision on indecency or obscenity which merely recites the statutory guidelines in s.10 would not normally be adequate. Such statements would in effect assert conclusions and would not reveal why the tribunal has 
come to such conclusions.

Thirdly, the reasons may not require great elaboration and they may be brief. It is only when they are defective in substance that they should be considered inadequate. Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly.

Fourthly, where a point of law is raised the point has to be decided by the presiding magistrate and the statute expressly requires reasons to be given in writing. See s.7(3). Reasons for a decision on a point of law should usually set out the findings of fact, the point of law at issue and the process of reasoning leading to the conclusion.”

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]

“…the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

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 1^st Interested Party retired in December 2014 and she did not renew her registration which had expired on 31^st December 2014. Notwithstanding the expiry of the 1^st 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 1^st 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 1^st Interested Party’s name was removed from the Register by the Board on 4^th August 2016 with retrospective effect from 1^st January 2015.^[18] Since the 1^st 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 1^st 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 1^st 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 1^st 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 1^st Interested Party, which shall be made absolute 14 days after the date of the handing down of this Judgment.