GOTLAND ENTERPRISES LTD v. KWOK CHI YAU AND OTHERS

HCMP 4550/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4550 OF 2003

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J U D G M E N T

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1.  This is the 1^st and 2^nd defendants’ appeal against an order made by Master Lung on 12 October 2006 for specific discovery by them of certain documents.

2.  In this action the plaintiff claims vacant possession of land in the New Territories of which it is the registered owner.  The defendants, who claim to have established adverse possession, counterclaim for declaratory relief to that effect.  In effect their case is that the 1^st defendant and his family have occupied the land as the place for their business, including breeding fish and ducks, without the permission of the plaintiff or its predecessor in title since 1980.  The 2^nd defendant is a company incorporated by the 1^st defendant for the purposes of the business and the 3^rd defendant was authorised to occupy part of the land since 1991.

3.  The order for discovery relates to applications made to Government as well as licences and profit tax assessments issued by Government in respect of the business carried on by the 1^st and later the 2^nd defendant on the land.  Specifically the documents are those specified in the amended schedule of the plaintiff’s summons dated 14 July 2006, except all correspondence between the 1^st defendant and the Government under paragraphs 4 to 6 and 7(iii) thereof.

4.  The applications referred to in Paragraphs 4, 5, 6 and 7 were made by the 1^st defendant.  The licences referred to in paragraph 7 were issued to him.  The notices of profits tax assessment referred to in Paragraph 10 relate to the 2^nd defendant.  Those referred to in Paragraph 11 are notices in respect of “Kwok Yuen Poultry”, a business operated by the 1^st defendant. 

5.  Under Order 24, Rule 7 of the Rules of the High Court, a party may make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.  By Rule 8, such order is not to be made unless the court is satisfied that it is necessary for disposing fairly of the cause or matter or for saving costs.

6.  The documents referred to in the learned Master’s order relate to matters referred to in a witness statement or an affidavit of the 1^st defendant.  There is, I think, no dispute that they are relevant to the issues in the action. 

7.  The 1^st defendant, on his own behalf and that of the 2^nd defendant, affirms in his 6^th Affirmation that, other than the documents already disclosed (there are four Lists of Documents) the 1^st and 2^nd defendants do not have any documents falling within the descriptions specified in the Schedule. 

8.  The plaintiff, through its authorised representative, accepts that some documents have been disclosed but says that it is apparent that there are other documents which the defendants have had but have not now in their possession, and it is within the power of the defendants to obtain these from the relevant Government department.  In particular, the plaintiff relies on the provisions of the Personal Data (Privacy) Ordinance, Cap. 486. It argues that the 1^st and 2^nd defendants have the right, under this Ordinance, to obtain copies of documents relating to them held by Government departments.  Therefore, the documents are in their power and should be disclosed and made available, or the copies at any rate made available for inspection.  That is the only issue in this appeal.

9.  In fact, in none of the Lists of Documents do the defendants, in Schedule II, specify any documents other than pleadings and documents filed in court and original copies of letters sent to the respective addressees.  They do not mention documents sent to the various Government departments, or received from those departments and later lost.  The 1^st and 2^nd defendants have, through counsel, undertaken to file further affidavit evidence to make good this deficiency.  But, they say, the Ordinance, while it may give them the right to request copies of documents held by Government departments, does not put those documents in their power for the purposes or Order 24.  Therefore, they are not required to give discovery or inspection of these documents. 

10.  Leaving aside for the moment the effect of the Ordinance, the law is simply stated in paragraph 24/2/7 of the Hong Kong Civil Procedure 2006:

“Documents which are or have been in his power – These include all documents which, though they are not in his possession or custody, he has a right to obtain from the person who has them – e.g. where he is the owner and has not parted with the right to possession.”

11.  In Lonrho Ltd & Ors v. Shell Petroleum Co. Ltd & Ors [1980] 1 WLR 627 at 635 Lord Diplock said that the expression “power” (in Order 24):

“must, in my view, mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else.”

12.  I do not think there is any dispute on this point.  Nor, I think, is there any dispute that, unless the Ordinance gives the defendants such a presently enforceable legal right, the documents sought are not otherwise in the possession, custody or power of the 1^st and 2^nd defendants.  Once an application is put in, the applicant has no further right to the application document or documents.  He may have a right to the return of original documents submitted in support of the application but these will normally be returned.  He will not have any more right of ownership in copy documents submitted, than he has in the application form, once he has handed them over.  If he is issued with a licence or a tax assessment, he has no right in some original document within the issuing department though he maybe able to obtain a copy of the licence or assessment on request, with or without payment of a fee. 

13.  The only issue here, therefore, is whether the effect of the Ordinance is to give the 1^st and 2^nd defendants the presently enforceable legal right referred to by Lord Diplock. 

The Ordinance

14.  As may be seen from its long title, the object of the Ordinance is to protect the privacy of individuals in relation to personal data.  It is not intended to protect the privacy of information about companies.  As will be seen, the sections on which the defendants rely relate to individuals and their personal data.  I have noted above that the documents sought relate almost entirely to the 1^st defendant; only those in Paragraph 10 of the amended schedule relate to the 2^nd defendant.  So far as I can see, if the effect of the Ordinance is to give a presently enforceable legal right to obtain documents, it can only give that right to the 1^st defendant as an individual, in respect of personal data relating to him.  The 2^nd defendant, as a limited company, does not come into the picture.

15.  It is not in dispute that, for the purposes of the Ordinance, the 1^st defendant is a “data subject” and the relevant Government departments “data users” as defined in section 2.

16.  By section 2 “data” is defined to mean:

“any representation of information (including an expression of opinion) in any document, and includes a personal identifier”

and “personal data” means:

“any data-
(a)	relating directly or indirectly to a living individual;
(b)	from which it is practicable for the identity of the individual to be directly or indirectly ascertained; and
(c)	in a form in which access to or processing of the data is practicable”.

Section 4 of the Ordinance provides:

“A data user shall not do an act, or engage in a practice, that contravenes a data protection principle unless the act or practice, as the case may be, is required or permitted under this Ordinance.”

17.  The data protection principles are set out in Schedule 1, and Principle 6 is relevant to this matter.  It reads:

“	Principle 6-access to personal data:
	A data subject shall be entitled to —
	(a)	ascertain whether a data user holds personal data of which he is the data subject;
	(b)	request access to personal data:
		(i)	within a reasonable time;
		(ii)	at a fee, if any, that is not excessive;
		(iii)	in a reasonable manner; and
		(iv)	in a form that is intelligible;
	(c)		be given reasons if a request referred to in paragraph;
	(b)		is refused;
	(d)		object to a refusal referred to in paragraph (c);
	(e)		request the correction of personal data;
	(f)		be given reasons if a request referred to in paragraph (e) is refused; and
	(g)		object to a refusal referred to in paragraph (f)”

18.  The scheme for access to data by the data subject is as follows.  By section 18, an individual, or a relevant person on behalf of an individual, may make a request to be informed by a data user whether the data user holds personal data of which the individual is the data subject, and if the data user holds such data, to be supplied by the data user with a copy of such data.  By section 19, the data user has 40 days to comply with such a request.  However, this is subject to section 20 which provides for various circumstances in which the data user shall or may refuse to comply with the request.  By section 28, the data user may charge a fee for compliance, and by subsection (5) may refuse to comply unless the fee is paid. 

19.  If the data user refuses to comply with the data access request, the data subject’s remedy is to be found in section 37.  By that section the data subject is entitled to make a complaint to the Privacy Commissioner about an act or practice done or engaged in by a data user, which relates to personal data of which the data subject is the subject, and which may be a contravention of a requirement under the Ordinance.  The Commissioner may then carry out an investigation under section 38, but may refuse to do so, or to continue to do so, under section 39.  If the Commissioner is of the opinion that the data user is in contravention of a requirement under the Ordinance, he may serve an enforcement notice on the data user to remedy the contravention.  The data user has the right to appeal to the Administrative Appeals Board.  However, there is no right of appeal in the data subject who may be aggrieved, for instance by a refusal by the Commissioner to serve an enforcement notice. 

20.  By section 64(7) of the Ordinance, a data user who contravenes an enforcement notice commits a criminal offence.  This, obviously, does not concern the data subject who may be the victim of such contravention.  The data subject’s only remedy lies under section 66; by that section a civil right and cause of action is created to entitle a data subject to sue the data user for monetary compensation when the former has suffered damage by reason of a contravention of a requirement under the Ordinance. 

21.  It is, I think, obvious from the wording of Principle 6 that the right of access is intended to allow the individual to find out what data the data user has in respect of him, and to correct that data if need be.  Although the Ordinance gives the data user the right to request access to personal data in the form of a copy of the data held, it gives the data subject no rights in the document or documents which contain the data.  There is not even a right of inspection.  Indeed, if the data is held in a computer there may be nothing to inspect.  There is no right, in the event of a refusal, to sue for delivery of any document, even the copy which should normally be supplied under section 19.  All the data user can do is to complain to the Commissioner.

Discussion

22.  The defendants rely on the Australian case of Theodore v. Australian Postal Commission [1988] VR 272 in which it was held that the fact that a litigant had, under the Freedom of Information Act, a right to access a document did not place that document “within his power” within the meaning of the discovery rules.  The plaintiff relies on the New Zealand case of Johansen v. American International Underwriters (New Zealand) Ltd [1997] 3 NZLR 765 in which it was held (by a Master) that the plaintiff had an enforceable right of access to his medical records held by both public and private agencies, so that such records were within his power and discoverable.

23.  They also refer to a comment made in the General Note at paragraph 18.01 of the Annotated Ordinances of Hong Kong, by reference to Johansen, that access rights “may have broadened the reach of discovery in civil proceedings”.

24.  Generally, foreign cases will only assist where the legislation concerned in them is the same as or very similar to that in force in Hong Kong.  In Australia and New Zealand, it seems that while the discovery rules are the same, the legislation relating to rights of access under privacy legislation is rather different.  However, in view of the comment by the editors of the Annotated Ordinances, it is as well to look briefly at the Johansen decision and the New Zealand legislation.

25.  In Johansen the plaintiff sued the defendant under an accident insurance policy claiming permanent total disability following a motor vehicle accident.  The defendant denied that the plaintiff had sustained permanent total disability and applied for an order for particular discovery of his medical records from both public sector and private agencies.  The plaintiff opposed on the ground that the records held by the private agencies were personal information and not within his power because they were subject to section 11(2) of the Privacy Act 1993.

26.  Principle 6 set out in section 6 of that Act provides that where an agency holds personal information in such a way that it can be readily received, the individual concerned is entitled to obtain confirmation of whether or not the agency holds the information, and to access to the information.  By section 11 (1), these entitlements are declared to be legal rights and accordingly enforceable in a court of law, insofar as they relate to personal information held by a public sector agency; but section 11(2) provides that, subject to subsection (1), the information privacy principles do not confer on any person any legal right that is enforceable in a court of law. 

27.  At page 768 the Master said this:

“I am satisfied, having considered the provisions of the Privacy Act 1993, that the plaintiff has an enforceable right of access to the documents relating to him held by the parties named in the defendants’ application and that those documents are therefore within his power, as that word is understood for the purpose of the law relating to discovery.

I do not consider that the fact that the right is enforceable, as against parties other than the Accident Compensation Corporation or the Accident Rehabilitation and Compensation Insurance Corporation, only by way of application to the Privacy Commissioner and reference by him to the Proceedings Commissioner, or, as the case may be, by a proceeding under s. 83 of the Privacy Act 1993 means that the right is unenforceable.  It is merely enforceable in a different manner to that in which the equivalent right against a public sector agency is enforceable.”

28.  Where personal information is not held by a public sector agency, the scheme of enforcement is complicated.  The aggrieved individual may complain to the Privacy Commissioner on the ground of interference with privacy.  Investigation may follow and ultimately proceedings may be taken by the Proceedings Commissioner, or the individual in certain circumstances, before the Complaints Review Tribunal.  That Tribunal has wide powers under section 85 of the Ordinance, including power to make an order that the defendant perform any acts specified in the order with a view to remedying the interference.  In other words, the Tribunal could technically make an order for delivery to the plaintiff of his medical records held by a private sector agency.

29.  As noted above, the position in Hong Kong is quite different.  The aggrieved individual can only obtain damages; there is no provision for any other remedy. 

30.  It is to be remembered that discovery goes hand in hand with inspection.  Discovery is only the first stage.  Under Rule 9, a party must allow the other party to inspect the documents in his list.  Under Rule 11A, a party entitled to inspect documents may by notice require the party required to produce them for inspection to supply copies at a reasonable charge.  The inspection referred to is obviously the inspection of the original documents.  Not all litigants could be trusted to supply true copies in the absence of a right to inspect. 

31.  The “presently enforceable legal right” referred to by Lord Diplock, above, is a right of inspection.  It is not a right to secure a copy, by whatever means.  As I have noted, the Ordinance gives no right of inspection.  I do not see how it can be said that the Ordinance gives the 1^st and 2^nd defendants that presently enforceable right.  I do not see that the Ordinance has broadened the reach of discovery in civil proceedings.

32.  I realise that it would be easy enough for the defendants to write to the various departments and ask for copies.  They might get them.  If their request were in the form of a data access request, the 1^st defendant at any rate should get some documents; though whether the departments concerned would accept that all documents submitted with the applications relate directly or indirectly to the 1^st defendant as an individual is not clear.  But that is not the point; the point is that the Ordinance does not give the 1^st defendant a presently enforceable legal right to the documents; and it does not give the 2^nd defendant any rights at all. 

33.  This is subject however to one caveat.  If either the 1^st or the 2^nd defendant has submitted his or its own original documents, with a view to having them scrutinised by the department concerned and returned, but they have not been returned, there would obviously be a right of ownership in those documents on general principles, and hence a right to get them back.  The defendants and their legal advisers will need to consider this when they come to file the further affidavit evidence which they have undertaken, through counsel, to file.

Result

34.  The appeal is allowed.  The Master’s order is set aside.  The 1^st and 2^nd defendants will have, in any event, the costs of the appeal and of the application before the Master, including the hearing, with certificate for Counsel, except that, as the Master ordered, there be no order as to costs on the summons to amend.