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Chan Tsui Yan v Social Workers Registration Board

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date19 April 2018
Neutral Citation[2018] HKCFI 839
Year2018
Judgement NumberHCAL63/2016
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL63/2016 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

_____________

BETWEEN
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

_____________

Before: Hon Lok J in Court
Date of Hearing: 25 July 2017
Date of Supplemental Written Submissions: 28 July & 1 August 2017
Date of Judgment: 19 April 2018

___________________

JUDGMENT

___________________

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

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

7. The 1st 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 1st Interested Party was an experienced social worker who had ample experience in dealing with clients. They preferred the 1st 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 1st Interested Party making such alleged requests. Further, when the 2nd Interested Party went to the Centre to investigate the complaints, the chenpi was placed in a conspicuous space accessible to all social workers. The 1st Interested Party also immediately handed the chenpi to the 2nd Interested Party. The Disciplinary Committee did not accept that the 1st 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 1st 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 1st 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...

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