Rules in respect of Disciplinary Proceedings
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1.1 “Ordinance” means the Social Workers Registration Ordinance (Cap. 505), Laws of Hong Kong.
1.2 “Legal practitioner” means a practicing solicitor or barrister within the meaning of the Legal Practitioners Ordinance (Cap. 159), Laws of Hong Kong.
1.3 “Registrar” means the Registrar appointed under section 15 of the Ordinance including the staff assisting him in connection with a hearing.
2. Hearing in Public or in Camera
2.1 At the discretion of the Disciplinary Committee, a hearing may be open to the public or partly open to the public and partly held in camera with due regard to:-
(a) the interests of the Complainant(s);
(b) the interests of the registered social worker, i.e. the Respondent of the hearing; or
(c) the interests of the witnesses.
2.2 At any stage of a hearing, the Disciplinary Committee may decide that the remainder of the hearing should be open to the public or be held in camera, as the case may be.
2.3 The Disciplinary Committee may deliberate in private (with or without the legal practitioner appointed pursuant to section 28 of the Ordinance and the Registrar) at any time and for any purpose at any stage of the hearing, before or after it.
3.1 Any party to a hearing may be represented by a legal practitioner.
3.2 The Board may appoint a legal practitioner to advise the Disciplinary Committee pursuant to section 28 of the Ordinance.
4. Adjournment of Hearing
4.1 The presiding member of the Disciplinary Committee may adjourn a hearing to such time or such date as he thinks fit.
4.2 The Registrar shall, where appropriate, give notice of an adjournment to the parties of the complaint.
5. Record of Proceedings
5.1 The Registrar may cause the proceedings to be recorded on tape and may arrange for the transcription of the tape recording into a verbatim record in writing.
5.2 If a verbatim record in writing of the proceedings or any part of it has been prepared, the presiding member of the Disciplinary Committee, on application to him by any party to the proceedings and on payment to the Board of the appropriate prescribed fee for the issue of the record, shall furnish the party with a copy of the record or part.
6. Withdrawal and Absence
6.1 If any Complaint has been withdrawn prior to or at any stage of the proceedings, the Disciplinary Committee may, when the circumstances warrant the Disciplinary Committee to do so, accept the withdrawal or proceed with a disciplinary hearing notwithstanding the withdrawal.
6.2 Subject to sub-rules 7.2 and 7.3, if a party, either the Complainant or the Respondent, has failed to appear at any stage of the hearing, the presiding member or the Disciplinary Committee may take such steps as it considers appropriate including but not limited to adjourn the hearing to another date, dismiss the complaint or proceed with the disciplinary hearing without hearing from the absent party.
7. Opening of Hearing
7.1 At the opening of a hearing, the Registrar shall introduce members of the Disciplinary Committee to the parties attending the hearing and the Disciplinary Committee shall deal with any procedural matters arising (if any).
7.2 If the Respondent is not present, nor represented by his/her legal representative, the Registrar shall furnish to the Disciplinary Committee such evidence as the Disciplinary Committee may require to prove that a notice of hearing issued in accordance with section 27(5) of the Ordinance has been served on the Respondent.
7.3 On the Disciplinary Committee being satisfied as to the evidence under sub-rule 7.2 and at the discretion of the Disciplinary Committee, the Disciplinary Committee may proceed with the hearing in the absence of the Respondent.
7.4 If the Respondent is present at the hearing and is not legally represented, the presiding member of the Disciplinary Committee shall inform him/her of his/her right to cross-examine witnesses, to give evidence and to call witnesses on his/her behalf.
8. Objections on Point of Law
8.1 After the opening of the hearing, the Respondent or his/her legal representative, may object to the complaint on a point of law and, upon such objection, the Complainant or his/her legal representative may reply thereto and, if any such party replies to such objection, the Respondent or his/her legal representative may answer such reply.
8.2 If such objection is upheld by the Disciplinary Committee, the complaint to which such objection relates shall be considered only subject to such objection.
9. Order of Procedure
9.1 Subject to other rules hereof, the following order of procedure must be observed in a hearing:-
(a) the Complainant, or his/her legal representative shall present the case against the Respondent and adduce evidence in support thereof and shall close the case against the Respondent;
(b) at the conclusion of the presentation of the case against the Respondent, the Respondent in person, or his/her legal representative, may make either or both of the following submissions in relation to any complaint in respect of which evidence has been adduced-
(i) that sufficient evidence has not been adduced upon which the Disciplinary Committee can find that the facts alleged in that complaint have been proved;
(ii) that the facts alleged in the complaint are not such as to constitute the offence complained of,
and where such submission is made, a reply thereto may be made by the Complainant or his/her legal representative; and the Respondent or his/her legal representative may answer such reply;
(c) if a submission is made under paragraph (b), the Disciplinary Committee shall consider and determine whether the submission shall be upheld and -
(i) the presiding member of the Disciplinary Committee shall announce the determination of the Disciplinary Committee;
(ii) if the Disciplinary Committee upholds the submission in respect of any complaint, the finding shall be recorded that the complaint is not proven;
(iii) if the Disciplinary Committee rejects the submission, the presiding member of the Disciplinary Committee shall call upon the Respondent to state his/her case;
(d) the Respondent, in person or by his/her legal representative may then present his/her case, adduce evidence in support of his/her case;
(e) at the conclusion of the case of the Respondent, the Respondent or his/her legal representative may make his/her closing submission to the Disciplinary Committee. The Complainant or his/her legal representative, may then make his/her closing submission to the Disciplinary Committee in reply, and if there is such a closing submission made by the Complainant or his/her legal representative, the Respondent or his/her legal representative may make a further submission to the Disciplinary Committee in reply.
10.1 The rules of evidence do not apply to the proceedings of a hearing save where clearly and expressly stated as applicable.
10.2 Evidence may be taken by the Disciplinary Committee by oral statement on oath and the presiding member of the Disciplinary Committee may administer an oath.
10.3 Every witness shall be examined by the party calling him and may then be cross-examined by the other party and only upon matters arising out of the cross-examination may be re-examined by the party calling him.
10.4 The Disciplinary Committee may decline to admit the evidence of any deponent to a document who is not present for, or who declines to submit to cross-examination.
10.5 At any stage during the hearing, the Disciplinary Committee may put such questions to the parties and the witnesses as the Disciplinary Committee thinks expedient.
10.6 The Disciplinary Committee may at the hearing admit or take into account any statement, document, information or matter whether or not it would be admissible in a court of law.
11.1 In the taking of votes of the Disciplinary Committee on any question to be determined by it, the presiding member of the Disciplinary Committee shall call upon the members, if any, to signify their votes by raising their right hands, and shall thereupon declare the determination of the Disciplinary Committee in respect of such question.
11.2 Members of the Disciplinary Committee shall consider all evidence and findings and all relevant circumstances when casting their respective vote.
11.3 Where the determination of the Disciplinary Committee so declared by the presiding member of the Disciplinary Committee is challenged by any member of the Disciplinary Committee, the presiding member of the Disciplinary Committee shall call upon each member severally to declare his vote, announce his own vote and announce the number of members of the Disciplinary Committee who have voted each way, and the result of the vote.
11.4 No person other than members of the Disciplinary Committee, the legal practitioner appointed under rule 3.2 above and the Registrar may be present when the Disciplinary Committee votes on any matter related to disciplinary decision.
12. Announcement of Decision
12.1 The Disciplinary Committee shall consider and determine whether the facts alleged in any complaint before the Disciplinary Committee have been proved to its satisfaction and whether the Respondent of the hearing is guilty of the offence complained of.
12.2 The Disciplinary Committee may announce its decision of whether the Respondent is guilty of the offence complained of immediately after the hearing or announce its decision in writing at a later date if the Disciplinary Committee so decides. The Disciplinary Committee will not and needs not to account for its decision in the announcement made under this rule.
13. Mitigation to Disciplinary Committee
13.1 After a hearing, if the Disciplinary Committee finds and announces that a disciplinary offence has been committed, it shall advise the Respondent of the procedures pertaining to mitigation before the Disciplinary Committee makes recommendation on disciplinary order(s).
13.2 If the Respondent chooses to mitigate, the Disciplinary Committee shall postpone its recommendation on disciplinary order(s) pending the hearing of the plea of mitigation by the Respondent.
13.3 If the Respondent would like to submit any written submission and supporting documents on mitigation, he/she shall do so within five working days after the Disciplinary Committee announces its decision. Any application to the Disciplinary Committee for late submission of such written submission and supporting documents on mitigation shall be in writing with reasons to justify such delay.
13.4 A mitigation hearing shall be fixed at a date the Disciplinary Committee sees fit for the Disciplinary Committee to hear the plea of mitigation by the Respondent. A notice of the mitigation hearing shall be sent to the Respondent not less than 14 days before the mitigation hearing. The mitigation hearing will, unless the Disciplinary Committee directs otherwise, be held in camera.
13.5 After hearing the mitigation, the Disciplinary Committee shall announce its recommendation on disciplinary order(s) in accordance with sub-rule 12.2 hereof.
14. Submission of Report to the Board
14.1 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 submit a report to the Board, in which the reasons for the decision shall be given.
14.2 If the Disciplinary Committee recommends a disciplinary order of written reprimand to be made under section 30(1)(c) of the Ordinance, it may, if it considers it appropriate, set out in the report to the Board its recommendation as to the duration of keeping the record of such a reprimand on the Register of registered social workers.
14.3 The report prepared shall be dispatched under confidential cover to Board members before the Board meeting in which the report is to be presented.
14.4 The presiding member of the Disciplinary Committee (or in case of his/her non-availability another member of the Committee so appointed) would orally present the report in the Board meeting.
14.5 The minimum number of members at any meeting of the Board to consider a disciplinary case is ten.
14.6 If the Board decides to make a disciplinary order of written reprimand under section 30(1)(c) of the Ordinance, it shall order the Registrar to record the reprimand on the Register of registered social workers with or without prescribing the duration of keeping such a record on the Register. In the absence of such prescription, the record shall be kept on the Register indefinitely (subject to any further order made by the Board in future upon the application of the Respondent of the hearing or on its own motion).
15. Notification of Decision and Disciplinary Order
15.1 After the Board has decided that a disciplinary offence has been committed, the Registrar shall notify the same and the reasons for the decision to the parties of the hearing.
15.2 The Board shall consider and determine whether or not to postpone the announcement of disciplinary order under section 30 of the Ordinance.
15.3 If the Board decides to postpone the announcement of disciplinary orders, the same stands postponed until such future meeting of the Board as the Board may decide. The parties of the hearing would be notified by the Registrar.
16. Submission of Fresh Grounds of Mitigation to the Board
16.1 After a Disciplinary Committee has announced its recommendation on disciplinary order(s), if there exist fresh grounds of mitigation which have not earlier been submitted to the Disciplinary Committee under rule 13 above, the Respondent can submit such grounds to the Board within five working days after the Disciplinary Committee has announced its recommendation on disciplinary order(s).
16.2 The Respondent shall provide reasons as to why such fresh grounds of mitigation have not earlier been submitted to the Disciplinary Committee under rule 13 above.
16.3 The Board shall consider such fresh grounds of mitigation of the Respondent before it decides on disciplinary order(s) and the Board shall announce the decision in such manner as it thinks fit.