YUEN OI YEE LISA v. DIRECTOR OF LEGAL AID

HCAL 418/2020

[2021] HKCFI 2031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 418 OF 2020

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J U D G M E N T

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Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Legal Aid (“Director”)  made on 10 December 2019 (“Subject Decision”).  By the Subject Decision, the Director refused to grant legal aid to the applicant (“Madam Yuen”)  to pursue her claim against one Best Spirits Company Limited (“Best Spirits”), the former employer of her husband Mr Lee Chick Choi (“Mr Lee), under s 66 of the Personal Data (Privacy)  Ordinance (Cap 486)  (“PDPO”)[1] in DCCJ 5723/2016 (“Subject Action”). 

Background to Madam Yuen’s claim against Best Spirits in the Subject Action

2.  The following background is taken largely from the decision dated 1 December 2014 of Deputy High Court Judge Kent Yee in HCA 2045/2012 (“CFI Decision”)  and the judgment dated 16 November 2015 of His Honour Judge Ko in DCCJ 1914/2015 (“DC Judgment”).

LBTC 588/2011

3.  The origin of the claim in respect of which Madam Yuen issued the writ of summons in the Subject Action can be traced to the dispute between Mr Lee and Best Spirits over the termination of the former’s employment towards the end of 2010.

4.  As a result of such termination, Mr Lee commenced proceedings under LBTC 588/2011 against Best Spirits in the Labour Tribunal (“Tribunal”)  in February 2011 for various payments that Mr Lee said were due from Best Spirits to him.  The primary issue was whether Mr Lee’s employment was terminated by his resignation with effect from 3 December 2010 (as contended by Mr Lee)  or by dismissal for misconduct on 4 November 2010 (as contended by Best Spirits).

5.  Insofar as it is material for present purpose, Best Spirits had in the course of discovery in LBTC 588/2011 disclosed 5 documents (“Documents”), containing data personal to, inter alia, Madam Yuen.  The Documents were stored on the laptop computer (“Computer”)  provided by Best Spirit to Mr Lee for his use during his employment.  The Computer was protected by a password set by, and known only to, Mr Lee.  He returned the Computer to Best Spirit upon the termination of his employment, but he forgot to delete the Documents before doing so.  It was a standard procedure for Best Spirits to back up and check the computers returned to it by employees leaving their employment because the computers would be issued to other users.  Best Spirits was able to gain entry to the Computer through the “DOS” system, an alternative way to using an overriding password, and retrieved the Documents from the Computer while it checked the Computer after it was delivered back by Mr Lee.  In the end, the Tribunal allowed the Documents “not to be referred in the substantive hearing”.

6.  In the end, the Tribunal found for Best Spirits in October 2011.  Madam Justice Mimmie Chan refused Mr Lee’s application for leave to appeal against the Tribunal’s dismissal of his claim on 6 June 2013.

Madam Yuen’s complaint to the PCPD Office

7.  Madam Yuen considered Best Spirit’s obtainment of the Documents (which concerned her)  and discovery and use of the same in LBTC 588/2011 (to which Madam Yuen was not a party)  without her consent or knowledge to be unfair and wrong.  In light of the Tribunal’s said ruling regarding the Documents, she also questioned whether it was really necessary for Best Spirits to produce the Documents for the purpose of LBTC 588/2011.  She further suspected that Best Spirits had disclosed the Documents to its parent company.  On 24 May 2011, Madam Yuen lodged a complaint (“Complaint”)  with the Office of the Privacy Commissioner for Personal Data, Hong Kong (“PCPD Office”)  against Best Spirit for contravention of the PDPO.

8.  In processing the Complaint, the PCPD Office considered, but found no breach of, Data Protection Principles 1(2)  and 3 in Schedule 1 to the PDPO[2] (“DPP1(2)” and “DPP3” respectively).  DPP1(2)  required personal data to be collected by means which is lawful and fair in the circumstances of the case while DPP3 prohibited personal data to be used (including disclosed or transferred)  without the prescribed consent of the data subject, for any purpose other than the purpose for which the data was to be used at the time of the collection of the data or for a directly related purpose.  A copy of the investigation report pertaining to DPP1(2)  and DPP3 was provided at Annex 1 to the PCPD Office’s letter dated 16 May 2013 to Best Spirits.

9.  However, according to Mr Lee, Best Spirits did not inform him of any company policy for gaining entry to the Computer for checking and backing up the information stored thereon.  The PCPD Office concluded that Best Spirits had contravened Data Protection Principle 5 (“DPP5”)  which obliged a data user to take all practical steps to ensure that its policies and practices in relation to the kind of personal data held and its purposes of use should be made generally available.  More particularly, it was found that Best Spirits had failed to take all reasonably practicable steps to make known to its staff the company policy in relation to checking, deleting and backing up information (including personal data)  held in the computers assigned to them for official use upon the cessation of their employment. A copy of the investigation report pertaining to DPP5 was provided at Annex 2 to the PCPD Office’s said letter to Best Spirits.  Nevertheless, the PCPD Office decided not to serve any enforcement notice on Best Spirits as it had already revised its staff handbook to draw its staff’s attention to the relevant policies and practices.

10.  In the penultimate paragraph of the PCPD Office’s said letter to Best Spirits, the latter was asked to note that under s 66, an individual who suffers damage (including injury to feelings)  by reason of a contravention of a requirement under the PDPO by a data user shall be entitled to compensation from that data user for that damage.

11.  By a letter also dated 16 May 2013, the PCPD office advised Madam Yuen that it found no contravention of DPP1(2)  and DPP3 by Best Spirit and enclosed a copy of the investigation report pertaining to DPP1(2)  and DPP3 at Annex 1.

HCA 2045/2012

12.  By then, Mr Lee had commenced HCA 2045/2012 against Best Spirits.  In response to Best Spirits’ application to strike out his writ of summons and statement of claim, Mr Lee abandoned his original claim and applied to replace it with a new claim under s 66 for over $14 million arising from Best Spirits’ breach of DPP5.  This amount allegedly represented Mr Lee’s loss of income at $89,000 per month for the rest of his life.  It was suggested that Best Spirits was liable to compensate Mr Lee for such alleged loss because the former’s breach of DPP5 led to the rejection of Mr Lee’s resignation and his dismissal due to misconduct so that he had been unable to find a comparable high level managerial position.

13.  By the CFI Decision, Deputy Judge Yee struck out the action and refused to give Mr Lee leave to amend for 2 reasons.  First, Mr Lee’s new claim fell within the exclusive jurisdiction of the District Court under s 66(5), notwithstanding that such claim was in excess of the civil jurisdiction of the District Court.  Second, such claim was in any event untenable as there was no causal link between Mr Lee’s alleged loss of income and Best Spirits’ breach of DPP5, which had nothing to do with Mr Lee’s dismissal to start with.

14.  On 28 November 2016, the Court of Appeal dismissed Mr Lee’s application for leave to appeal against the CFI Decision out of time as lacking in merits.

DCCJ 1914/2015

15.  In the meantime, in 2015, Madam Yuen had commenced DCCJ 1914/2015 against 8 defendants, with Best Spirits being the 8^th defendant, claiming HK$16 million as damages for:

(1)  the alleged loss of income and deterioration of living standard as a result of the termination of Mr Lee’s employment by Best Spirits; and

(2)  the alleged injury to feeling pursuant to s 66 in consequence of the defendants’ unlawful use of her personal data.

With regard to the latter head of damage, other than a bare assertion, there was no particular pertaining to any injury to feelings[3].

16.  By the DC Judgment[4], Judge Ko (1)  struck out Madam Yuen’s case on the ground that it disclosed no reasonable cause of action; that it was scandalous, frivolous and vexatious; and that it was an abuse of the process of the court; and (2)  imposed a restricted proceedings orders (“RPO”)  on Madam Yuen.

17.  Insofar as it is material, the RPO expressly contained the following exception:

“Notwithstanding the other provisions in this order, the Plaintiff is at liberty to commence fresh proceedings against the 8^th Defendant herein (namely, [Best Spirits])  under section 66 of the Personal Data (Privacy)  Ordinance, Cap 486 to claim for damage for injury to her feelings as a result of the contravention identified in the Result of Investigation dated 16 May 2013 of the Privacy Commissioner (ie Annex 2 to the letter from the Privacy Commissioner to the 8^th Defendant dated 16 May 2013)”.

18.  It was further respectively noted in [59], [64] and [105(e)] of the DC Judgment that “insofar as Madam Yuen has suffered any injury to feelings by reason of D8’s contravention of DPP5, she may have a claim against D8 under s 66”; that “the better course to take in the present instance is to strike out Madam Yuen’s action leaving it to her to commence fresh proceedings against D8 in respect of her claim for injury to feelings”; and that “Madam Yuen should be permitted to claim against D8 under s 66 of the PDPO for injury to her feelings as a result of the contravention identified in the Result of Investigation dated 16 May 2013 of the Privacy Commissioner.  Madam Yuen is well advised to seek legal advice on her intended claim before commencing any action”.

Subject Action

19.  On 26 November 2016, Madam Yuen issued a generally indorsed writ of summons in the Subject Action against Best Spirits. The Indorsement of Claim simply read: “The Plaintiff’s claim is for HK$16,000,000.00 under section 66 of Personal Data (Privacy)  Ordinance which is a precedent case in HKSAR”.  No statement of claim has yet been filed and served in the Subject Action pending grant of legal aid to Madam Yuen.  It is worthy of note that the amount claimed in the Subject Action ($16 million)  coincides with that of the struck out claim under DCCJ 1914/2015.

Madam Yuen’s first failed application for legal aid in respect of the Subject Action

20.  Prior to the commencement of the Subject Action, Madam Yuen had in fact applied for legal aid to pursue her then intended claim against Best Spirits for damages for injury to her feelings as a result of the company’s breach of DPP5.  Her application was refused by the Director on 28 September 2016 (“Director’s Earlier Decision”)  on the ground that:

“You have failed to show that you have reasonable grounds for taking the proceedings to which your application relates or would relate if proceedings were to be issued.

It appears to me that it is unreasonable that you should be granted legal aid in the particular circumstances of the case.

You cannot re-litigate the matter again, besides you are subject to a restrictive proceedings order not to take out further proceedings against these parties.”

21.  Madam Yuen’s appeal against the Director’s Earlier Decision was dismissed on 2 March 2018.

HCAL 15/2017

22.  Pending the hearing and determination of Madam Yuen’s appeal against the Director’s Earlier Decision, on 20 January 2017, she had issued a notice of application for leave to apply for judicial review of such decision under HCAL 15/2017.  Such application was dismissed by Chow J on 2 February 2017 for the following reasons:

“(1)  The complaint that the Director of Legal Aid has passed their refusal of the applicant’s legal aid application to the Chairman of the Committee chaired by the Registrar of the High Court for review of her application is without foundation.

(2)  There is nothing in Form 86 or in the applicant’s affirmation dated 20 January 2017 to show that the Director’s decision is wrong in law, or any reasonably arguable ground of judicial review of that decision exists.

(3)  The application is out of time and no good reason exists for extending the period within which the application shall be made. The allegation that the applicant’s delay is caused by “the delaying tactic of Justice Queeny Au Yeung by having her leave taken from 5^th to 12^th December 2016” is without foundation and frivolous.”

The present application

23.  Undeterred by her failure in HCAL 15/2017, on 27 August 2019, Madam Yuen again applied for legal aid in respect of the Subject Action.  By the Subject Decision, the Director again refused legal aid to Madam Yuen.  The reasons given were:

“You have failed to show reasonable grounds for taking the proceedings to which your application related or would relate if proceedings were to be issued. According to the investigation by the Privacy Commissioner, the Defendant had contravened DPP5 only. DPP5 is to ensure a data user taking practicable steps to make personal data policies and practice known to its staff. As you are not an employee of the Defendant, your claim for compensation for damage (including injury to feelings)  against the Defendant is too remote.”

24.  On 19 December 2019, Madam Yuen filed a notice of appeal against the Subject Decision under LAA 1424/2019. The hearing of the appeal was fixed for 9 April 2020. That hearing was adjourned and apparently never re-fixed.

The present application

25.  On 9 March 2020, Madam Yuen issued a notice of application for leave to apply for judicial review of the Subject Decision (“Form 86”)  in these proceedings.

Discussion

26.  Judicial review is not an appeal mechanism further or alternative to the appeal to the Registrar of the High Court provided for under s 26(1)  of the Legal Aid Ordinance (Cap 91).  The court is not to re-assess Madam Yuen’s application for legal aid in respect of the Subject Action on the merits.  The court’s function is confined to an examination of the legality, rationality and fairness of the process through which the Subject Decision was reached.  The court will intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.

27.  Madam Yuen has simply not, whether in the Form 86[5] or the supporting affirmation filed on the same date, raised any or any reasonably arguable[6] grounds suggesting that the Decision was legally erroneous, procedurally unfair or irrational.

28.  Even if one were to re-examine the substantive merits of the Subject Decision, the Director’s reasoning for refusing legal aid to Madam Yuen cannot, in my view, be faulted.  As noted above, DPP5 imposed an obligation on a data user to take all practical steps to make known its data collection and usage policies and practices.  Best Spirits’ breach of DPP5 was a failure to take all reasonably practicable steps to make known to its staff its policy regarding the checking, deletion and backing up of information held in the computers returned to it upon the departure of its employees.  And Best Spirits remedied such breach by drawing its staff’s attention to the relevant policies and practices in its revised staff handbook.  In other words, Best Spirits’ contravention of DPP5 was not committed against Madam Yuen.  Given the lack of a relationship between Madam Yuen and Best Spirits, I cannot see how the former’s feelings could by injured by not knowing how Best Spirits would deal with the Computer when Mr Lee’s employment with Best Spirits ceased.

29.  In her supporting affirmation, Madam Yuen relied most heavily on the DC Judgment.  More particularly, she repeated multiple times that Judge Ko had expressed the view in [105(e)] that she should be permitted to claim against Best Spirits under s 66 for injury to her feelings as a result of Best Spirits’ infringement of DPP5 and reminded Madam Yuen to seek legal advice before commencing any action.  One must be clear that Madam Yuen had not yet instituted such action.  Judge Ko did not have any or any properly formulated claim by Madam Yuen for damage for injury to her feelings in consequence of Best Spirits’ failure to implement DPP5.  The learned judge was merely saying at [105(e)] that Madam Yuen may very well take such legal action.  His Honour was, however, clearly not making any assessment of the merits of any such claim by Madam Yuen or suggesting that it would be sufficiently meritorious to warrant legal aid.

Disposition

30.  For the aforesaid reasons, Madam Yuen failed to demonstrate a reasonably arguable application for judicial review of the Subject Decision and her application for leave is hereby dismissed.

31.  I make no order as to costs.