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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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BETWEEN
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| CHAN TSUI YAN |
Applicant |
| and |
| SOCIAL WORKERS REGISTRATION BOARD |
Respondent |
| CHAU SHUI HOI MALINA |
1st Interested Party |
| NG WANG TSANG |
2nd Interested Party |
| NG YUEN CHING WILLIS |
3rd Interested Party |
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| Before: |
Hon Cheung, Yuen and Kwan JJA in Court |
| Date of Hearing: |
27 February 2019 |
| Date of Judgment: |
11 March 2019 |
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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 1st 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 17th 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...
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