TSUI KOON WAH v. DIRECTOR OF SOCIAL WELFARE

HCA2938/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.2938 OF 2003

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D E C I S I O N

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Introduction

1. The plaintiff was employed as a Contract Social Security Assistant at the Mongkok Field Unit of the Social Welfare Department (“SWD”).  His employment began on 21 May 2002 and ended on 3 January 2003 when he was summarily dismissed on ground of misconduct, without payment in lieu of notice or the accumulated annual leave.  Aggrieved, the plaintiff commenced three actions in the Court of First Instance :

(1)	HCA2938/2003 (the present action) against the Director of Social Welfare (“the Director”) for wrongful dismissal.
(2)	HCA890/2003 against four officers of SWD for defamation.
(3)	HCAL94/2003 seeking judicial review of the Privacy Commissioner decision of treating as frivolous and/or vexatious and/or not in made in good faith” his complaints against the Director under the Personal Data (Privacy) Ordinance, which was dismissed by A. Cheung J on 10 June 2004.

2. By summons dated 10 June 2004, the plaintiff sought discovery against the defendant in respect of three classes of documents, one of which is L/M Files to File Reference No.PF15830 (“the L/M Files”).  On 4 October 2004, the master dismissed the application with costs.  The plaintiff now appeals against the learned master’s order in respect of the L/M Files only.

The L/M Files

3. Before I proceed further, it will be helpful if I first describe what the L/M Files are.  The nature of such files is explained in the 3^rd affidavit of Hsu Chun I William, Deputy Departmental Secretary (Appointments) of SWD filed on 10 August 2004 thus :

“	8.	For the purpose of explaining the nature and the content of the L/M files sought by the Plaintiff, I believe it will be helpful for me to outline the procedures in the Social Welfare Department for the handling of data access requests, which follow those provided in the ‘Guidelines for Users of Employment-Related Personal Data in the Civil Service’ promulgated by the Civil Service Bureau in September 2002 :
		(a)	When a data access request is received, a L/M file is opened to record the processing of the request.  The officer assigned to handle data access requests is Assistant Departmental Secretary (Personnel) 2 (‘AS(P)2’).
		(b)	Where the request is likely to take more than 10 days to process, an interim reply acknowledging the receipt of the request is issued to the requestor.
		(c)	Where necessary, the filing system of the Department is checked to identify the officers or offices which hold the data required.  If the request does not contain sufficient information to identify the data, clarification will be sought with the requestor.
		(d)	The offices or officers holding the data provide the relevant data to AS(P)2.
		(e)	AS(P)2 checks the data to see whether the data meet the request.  AS(P)2 also checks, by reference to the Personal Data (Privacy) Ordinance (Cap.486), whether any data are not to be released.  Where necessary advice will be sought from the Department of Justice or senior officers.
		(f)	The data, subject to omissions made in accordance with the Personal Data (Privacy) Ordinance, are provided to the requestor after payment of the prescribed fees, normally under cover of a letter by AS(P)2.  If any data is not released the reasons are explained in the letter.  If the Department does not hold the data requested it will also be explained to the requestor by letter.
	9.	The L/M files in respect of data requests by the Plaintiff contain records and documents generated in the course of processing the data access requests.  For convenience of appreciation I can describe the contents of the L/M files as comprising the following types of materials :
		(a)	Correspondence between the Plaintiff and officers of the Department in respect of the data access requests;
		(b)	Communications among officers of the Department relating to the processing of the data access requests, in forms of memos, minutes, or e-mail messages;
		(c)	Other records relating to the process of the data access requests, such as file notes about telephone conversations between officers of the Department and the Plaintiff;
		(d)	Correspondence between the Department and the Department of Justice for the Justice for the purpose of legal advice in relation to the processing of the data access requests;
		(e)	In the cases where complaints are made to the Office of the Privacy Commissioner for Personal Data about the handling of the data access requests, correspondence between that Office and our Department in relation to such complaints;
		(f)	In the cases where ‘data correction requests’ are made by the Plaintiff subsequent to the provision to him of the requested personal data, records about the processing of such data correction requests;
		(g)	Data collected as a result of the procedures described in paragraph 8(c)-(d) above; and
		(h)	Data provided to the Plaintiff.
	10.	To the best of my knowledge and belief all the data collected and released to the Plaintiff were in the form of photocopies of documents existing at the time of the data access requests.”

Relevance

4. There is not dispute that the defendant is in possession of the L/M Files.  The debate that took place before me principally concerned their relevance.  I have already carefully considered all the submissions advanced before me by the parties, both oral and written.  For present purposes, it is not necessary to set them all out.  In my view, the L/M Files are not relevant and hence not discoverable.

5. As correctly pointed out by Mr Yuen, Government Counsel appearing for the Director, the issues in this action are :

(1)	whether the grounds for dismissing the plaintiff were made out, and whether they were sufficient according to law;
(2)	whether there were other grounds capable of justifying the dismissal; and
(3)	whether the Director had acted correctly and lawfully in dismissing the plaintiff.

The L/M Files are simply not relevant to any of these issues.

6. The plaintiff nonetheless argued that the L/M Files are relevant by praying in aid this plea in the amended statement of claim :

“… Moreover, some officers of the Defendant had before and after the dismissal of Plaintiff denied access to Plaintiff of certain information in respect of (i) each and every incidents and/or complaints concerning Plaintiff (ii) performance appraisal of Plaintiff and (iii) dismissal of Plaintiff, when Plaintiff pursued such applications through (i) data access requests (ii) complaints to the Defendant (iii) complaints to the Privacy Commissioner for Personal Data and (iv) judicial review, in order to (i) have defamed Plaintiff without Plaintiff’s knowledge (ii) have proceeded with the disciplinary actions/sanctions/proceedings against Plaintiff and the subsequent dismissal of Plaintiff in an unfair, unjust and unlawful manner and (iii) have covered up the said disciplinary actions/sanctions/proceedings and dismissal being conducted in such a manner. …”

7. The complaint ventilated in this plea, as clarified by the plaintiff in his submissions, is that the procedure of dismissing him, as opposed to the dismissal itself, was wrongful.  In this connection, he relied on Clause 16.3 of his employment contract.  The main crust of his contention is that the L/M Files contained evidence of contravention of the Personal Data (Privacy) Ordinance (“the Ordinance”) which shows that the dismissal was conducted in an unfair, unjust and unlawful manner.

8. I am unable to accept the plaintiff’s contention for three reasons.  First, this contravention point was simply not pleaded.  In the absence of a proper plea, he cannot rely on it to justify the application for discovery of the L/M Files.  Second, it is on the evidence before me a sheer speculation that the L/M Files did contain evidence of contravention of the Ordinance as alleged.  The case of relevance of the L/M Files is not made out on evidence.  Third, in the course of his oral submissions, the plaintiff complained that without the disclosure, he would not have the evidence to make up a case against the Director.  It is clearly a fishing exercise.  It cannot be allowed.

Conclusion

9. For the above reasons, the learned master was correct in refusing the application.  I will therefore dismiss the appeal.

10. I see no reason why costs should not follow the event.  This appeal is wholly unmeritorious and costs should be paid forthwith.  I will therefore make an order nisi that the plaintiff shall pay the costs of this appeal to the defendant forthwith, to be taxed if not agreed.