HO KA MAN (aka 清乾) v. THE PRIVACY COMMISSIONER FOR PERSONAL DATA

HCAL 560/2018

[2018] HKCFI 814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 560 OF 2018

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DECISION

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1.  In this application for leave to apply for judicial review, the Applicant seeks to challenge (i) the decision of the Privacy Commissioner for Personal Data (“the Commissioner”) dated 2 March 2017 refusing to provide legal assistance to her under Section 66B of the Personal Data (Privacy) Ordinance, Cap 486 (“the Ordinance”), and (ii) the decision of the Commissioner dated 5 January 2018 maintaining the decision not to provide legal assistance to her upon review of his earlier decision. In this Decision, unless otherwise expressly indicated, references to Sections shall be to the Ordinance.

BASIC FACTS

2.  In about 2005, the Applicant consulted a clinical psychologist (“Dr Li”) for the purpose of obtaining a psychological report in connection with a personal injury claim. 

3.  On 29 May 2006, the Applicant made a data access request to Dr Li for disclosure of 4 specific documents (“Item 1”, “Item 2”, “Item 3” and “Item 4” respectively).  Dr Li provided the Applicant with only Item 1 but not the rest of the documents within 40 days after receipt of the data access request.  On 8 July 2006, the Applicant made a complaint to the Office of the Privacy Commissioner for Personal Data (“the Office”) against Dr Li for failing to fully comply with the data access request. 

4.  On 26 August 2008, the Office completed the investigation of the Applicant’s complaint against Dr Li and concluded that Dr Li had contravened Section 19(1) for not providing Items 2 and 3 to her, but not Item 4 because it was exempt under Section 59.  The Office served an enforcement notice on Dr Li to direct her to release Items 2 and 3 to the Applicant on or before 16 September 2008, which Dr Li did. 

5.  The Applicant was not satisfied with the Office’s decision and lodged an appeal to the Administrative Appeals Board against that decision, contending that Dr Li should also provide her with Item 4. 

6.  On 26 July 2010, the Administrative Appeals Board allowed the Applicant’s appeal, holding the Item 4 was not exempt under Section 59.  As a result, Dr Li released Item 4 to the Applicant on 21 August 2010. 

7.  On 26 August 2010, the Office, in response to the Applicant’s inquiry, drew her attention in writing to her right to claim compensation from Dr Li suffered as a result of the breach of the Ordinance under Section 66. 

8.  However, it was only on 8 February 2017 that the Applicant submitted, through the Office, an application to the Commissioner seeking legal assistance under Section 66B for the purpose of claiming compensation against Dr Li under Section 66.  On 2 March 2017, the Commissioner refused the Applicant’s application for legal assistance, on the ground that the proposed claim against Dr Li was timed-barred under Section 4(1) of the Limitation Ordinance, Cap 347, which provides that an action to recover any sum recoverable by virtue of any Ordinance (other than a penalty or forfeiture) shall not be brought after 6 years from the date on which the cause of action accrued. 

9.  On 14 March 2017, the Applicant applied for a review of the Commissioner’s decision to refuse to provide her with legal assistance.  On 5 January 2018, the Commissioner decided to maintain his earlier decision upon review. 

10.  The Applicant now applies for leave to apply for judicial review of the Commissioner’s two decisions dated 2 March 2017 and 5 January 2018 respectively.  The Applicant also seeks (i) an extension of time to 12 June 2018 to make the leave application (in so far as such extension is necessary) and, (ii) an anonymity order. 

DISCUSSION

11.  In the Form 86 dated 4 April 2018, the Applicant fails to state the relief sought or the grounds on which it is sought, as required by Order 53, rule 3(2)(a)(iii) of the Rules of the High Court, Cap 4A, beyond merely stating “see the Applicant’s affirmation attached”.  The requirement to state the relief sought and the grounds on which it is sought in the Form 86 is a mandatory requirement.  A concise statement of the relief sought and the grounds on which it is sought is important to enable the court to efficiently deal with an application for leave to apply for judicial review, normally on an ex parte basis.  The court should not be required to plough though the affidavit filed in support of the leave application in order to find out the relief sought by the applicant or the grounds on which it is sought.  The fact that the applicant is a litigant in person may explain why there has been a failure to comply with Order 53, rule 3(2)(a)(iii) of the Rules of the High Court, but is not an excuse for such failure.  On this ground alone, there is, I consider, a sufficient basis to dismiss the present leave application. 

12.  In any event, having read the Applicant’s affirmation filed in support of the application, I consider it to be clear that the proposed application for judicial review is not reasonably arguable.  The Applicant’s complaint against the Commissioner’s two decisions, as set out in her affirmation, is that her application for legal assistance was not handled or dealt with by a member of the Legal Division of the Office, but by a “senior personal data officer” (Mr Ng) of the Compliant Division of the Office acting as the “case officer” in respect of the Applicant’s application for legal assistance. 

13.  There is, however, no legal requirement under the Ordinance or otherwise which provides that an application for legal assistance under Section 66B must be handled or dealt with by a member of the Legal Division of the Office.  As mentioned in the letter dated 2 March 2017, the decision to refuse the Applicant’s application for legal assistance was made by the Deputy Privacy Commissioner acting under the delegated authority of the Commissioner.  In so far as the Commissioner’s decision dated 5 January 2018 is concerned, it would appear, from the letter of that date, that it was made by the Commissioner himself.  There is, so far as I can see, no basis to contend that the two decisions were made by persons without proper authority. 

14.  Further, the Commissioner’s view that the Applicant’s proposed claim against Dr Li under Section 66 is time-barred is a view which the Commissioner can, on the facts, properly come to.  That being the position, the Commissioner’s decision not to provide legal assistance to the Applicant to pursue the proposed claim against Dr Li would seem to be reasonable in the public law sense. 

15.  For the foregoing reasons, the application for an extension of time to apply for leave to apply for judicial review (insofar as may be necessary), and the application for leave to apply for judicial review, are dismissed. 

16.  There is no good reason to grant any anonymity order in this case, and the application for such order is also refused.