JIANG ENZHU v. LAU WAI HING EMILY

HCAL27/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST NO.27 OF 1998

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J U D G M E N T

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1. This is an application for judicial review by which the applicant seeks to quash a summons issued by a magistrate.

Background

2. The Personal Data (Privacy) Ordinance ("the Ordinance") was enacted in 1996. Section 18 of that Ordinance makes provision for an individual to 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 there is such data held by that user, to be supplied by that user with a copy of the data. Section 19 of the Ordinance provides that, save in certain circumstances and subject to certain conditions, a data user shall comply with a request not later than 40 days after receiving the request. A data user who, without reasonable excuse, contravenes this requirement commits an offence and is liable on conviction to a fine.

3. The respondent, Ms Lau, is now and was, in December 1996, a legislative councillor. The applicant is the Director of the Hong Kong Branch of the Xinhua News Agency ("Xinhua"), a post to which he was appointed on 24th July 1997 and which he took up in Hong Kong on 6th August 1997. Xinhua is registered in Hong Kong as a newspaper, and is an agency of the Central Government.

4. By letter dated 20th December 1996, Ms Lau made a request in writing. The request was addressed to Mr Zhou Nan, Director, Xinhua News Agency, expressed to be pursuant to the provisions of the Ordinance and by that request she asked :

Mr Zhou Nan was the predecessor in office of the applicant.

5. In December 1996, the applicant, Mr Jiang, was not the Director of Xinhua in Hong Kong. Indeed, he was not then employed in that organisation at all. He was then the Ambassador of the People's Republic of China to the United Kingdom.

6. It is common ground that Ms Lau received no response to her request within the 40 days prescribed by the Ordinance, namely, by 29th January 1997. So, on 17th February 1997, she wrote a letter to the Privacy Commissioner of Personal Data ("the Commissioner"), an office established by the Ordinance, and lodged a complaint and asked that he investigate this matter. The Commissioner replied on 21st February 1997 saying that the usual way of dealing with complaints of that kind was resolution through informal methods, and that his office might ask her to provide him with further information. That was all that Ms Lau heard until she received a letter dated 25th October 1997 from Xinhua which said as follows :

It was signed as by the Agency as a body, and no individual's signature appears on that response.

7. On 6th November 1997, Ms Lau heard again from the Commissioner, who said that Xinhua had attributed the delay to personnel changes at the Agency. Ms Lau was not satisfied and pressed her complaint, and in February 1998, the Commissioner wrote to her saying that there was a breach of section 19 of the Privacy Ordinance in the failure to comply with the data access request within 40 days. The Ordinance makes provision for the service of an enforcement notice by the Commissioner on a data user who has failed to comply with a requirement of the Ordinance, but it is envisaged by the thrust of the provisions that if the Commissioner feels it unlikely that the breach will be repeated, such a notice is unlikely to be served. For that reason, according to the Commissioner, no enforcement notice was issued, but he said that "according to the usual procedures of our Office" a report of the summary of the case would be sent to the Secretary for Justice. In the event, the Secretary for Justice decided not to institute proceedings for the breach. Ms Lau apparently learnt of that decision in late February 1998.

8. She then decided to institute a private prosecution. She consulted solicitors and after they had, according to the evidence which is before me, conducted some research and tendered advice, she applied for the issue of a summons. That application was made under cover of a letter dated 23rd April 1998 sent by her solicitor to the First Clerk, Eastern Magistracy :

9. The draft summons was directed not to Mr Zhou Nan, to whom the request was made in December 1996, but to the applicant in these proceedings, Mr Jiang Enzhu, Director of Xinhua News Agency Hong Kong Branch. It says :

10. Ms Lau also made an affirmation in support of the application to the contents of which I must later return.

11. The magistrate then asked the solicitor, Mr Christopher Chan, to attend court to address him primarily because he, the magistrate, was concerned whether the information was laid within six months from the time when the matter of the information arose, for if it was not, then the proceedings would be time-barred. The point that troubled the magistrate was that 40 days from the date of Ms Lau's request expired on 29th January 1997 and the information was only laid in April 1998. Mr Chan persuaded the magistrate that the offence may well be a continuing offence, and accordingly the magistrate issued the summons, which was in the same terms as the draft summons.

12. It is said in the summons that the information was laid on 1st May 1998, but it is accepted that it was in fact laid on 23rd April 1998. The summons, on its face, required Mr Jiang to appear on 2nd June 1998 at 9:30 am in Court No.1 at the Eastern Magistracy to answer the information. It adds :

The summons is dated 1st May 1998.

The application for judicial review

13. After receipt of the summons, the applicant sought leave to apply for judicial review of the decision of the magistrate to issue the summons. The gravamen of the complaint, as I understood it on the application for leave, was that the respondent's information and conduct pursuant to which the summons was issued constituted an abuse of the process of the magistrate's court in that she well knew, but did not disclose, to the magistrate the fact that the alleged offender was not the same person as the person to whom the data request had been made; that the information had in any event been laid out of time, and that the proposed defendant, Mr Jiang, could not conceivably be guilty of any offence since he did not, nor could he have, received the data request.

14. The paper application for leave was placed before me, but I required to hear counsel for the applicant since, although the threshold test for the grant of leave was satisfied, I wished to be addressed as to whether judicial review was an appropriate remedy; in particular, why it was not more appropriate that the matter of which the applicant complained should not be canvassed and determined by the magistrate. I heard counsel for the applicant, and on 26th May 1998 I granted leave.

15. The matter came before me upon the substantive application in November 1998. Miss Li, S.C., for the respondent complained, with some justification I think, that the grounds of the application did not spell out with particularity the nature of the abuse upon which the applicant relied, and especially, whether it was suggested that the abuse lay in an ulterior motive and if so, what that motive was. Given the retort by counsel for the applicant that there was deliberate non-disclosure to the magistrate of material information, Miss Li sought an adjournment to enable the respondent and Mr Chan, the solicitor, to answer that allegation, and I granted the adjournment. The case was re-listed to early March 1999.

16. Mr Chan did not, by the time of the March hearing, depose to the matters in question although they had been brought to his attention. His reluctance to become embroiled in these proceedings, unless that proved really necessary, was wholly understandable and acceptable since by the date of these proceedings he had taken up a judicial appointment. Instead, another solicitor who assisted Mr Chan at the material time, Mr Bucky Chan, deposed to the advice given to Ms Lau and explained why certain facts were not drawn to the attention of the magistrate. He added that Mr Christopher Chan had seen his affirmation, and agreed with its content.

17. It was on that state of the evidence that argument then proceeded. Well into the submissions by Mr Hoo, S.C., on behalf of the applicant, the suggestion was made that since there was no evidence filed by Mr Christopher Chan, there was no evidence to refute the allegation which had been made against him, a contention which, given Mr Bucky Chan's evidence, I found difficult to follow. Nonetheless, in the course of Miss Li's submissions, it was suggested that it may not have been appreciated by Mr Christopher Chan that allegations of material omissions or misrepresentation of the applicant's role were directed to a significant extent to the oral representations made at the hearing before the magistrate and that this was only now evident from the applicant's submissions at this hearing. This troubled me, because it was clear that those oral representations were highly relevant to this judicial review and that this court had to address them and to address also allegations arising from them, and that if Mr Christopher Chan had not appreciated that fact, he ought, in fairness to him, to be told. This was all rather unfortunate because the very airing of this problem was bound to receive publicity at a point when Mr Chan could not himself protest the allegations. But that was the situation, and I ordered all the papers to be served upon him, that the precise allegations be drawn to his attention, and that he be given leave to file evidence; and the order made provision for his solicitors to notify the court whether pursuant to the provisions of O.53, r.9 of the Rules of the High Court he wished to be heard by counsel or at all at the resumed hearing. In the event, Mr Christopher Chan filed an affirmation but did not ask that he be heard. Argument therefore resumed on 17th May.

The applicant's pleaded case

18. There are advanced in the application, as ultimately framed, the following grounds :

19. It is accepted by Mr Hoo that in the normal run of things this court will not grant relief by judicial review where there remains available to the applicant an alternative remedy. The alternative suggested here is that all these complaints, including the allegation of abuse of process, can equally well be canvassed before the magistrate. But Mr Hoo argues that not only is judicial review appropriate where improper motivation can be shown, but it is particularly apposite in this case because the abuse itself lies not in a desire to prosecute a wrong doer, but rather in the desire to haul the applicant before a magistrate and that once that is achieved, the improper or ulterior objective is achieved, so that to require the applicant to argue abuse before the magistrate is to enable the abuse itself to succeed in its objective, and that that should not be permitted.

The Statutory Provisions

The Personal Data (Privacy) Ordinance

20. A data user is defined by section 2 of the Ordinance as :

That is a provision which, as we shall see, is one of some significance in this case.

21. Section 18 of the Ordinance makes provision for the making of a request, which is called a "data access request" :

22. The obligation to respond, and its extent, is imposed by section 19 :

23. Section 20 prescribes circumstances in which the data user shall or may refuse to comply with a data access request. So, for example, the user may do so when any other data user controls the use of the data in such a way as to prohibit the data user to whom the request is furnished from complying with the request. A refusal to comply with the request must be notified to the requestor not later than 40 days after the receipt of the request.

24. Section 50 of the Ordinance empowers the Privacy Commissioner, where he is of the opinion that a data user is contravening or has contravened a requirement under the Ordinance, to serve a notice - an "enforcement notice" - directing the data user :

No enforcement notice was served in the present case, but the provision is relevant in considering whether the offence in respect of which the summons was issued to the applicant is or is not a continuing offence.

25. The offence creating section is section 64, and there are two section 64 provisions germane to this application. Section 64(10) creates the offence of which it is said by the respondent that the applicant is guilty :

Sub-section (7) makes it an offence to contravene an enforcement notice. It says :

The Magistrates Ordinance

26. Section 26 of the Magistrates Ordinance provides for the time in which a complaint or information must be laid :

The information in this case was laid in April 1998, some 15 months or so after the expiry of the 40-day limit for answering the request. Unless the offence is a continuing offence, then the time limit for laying of the information expired in July 1997. The respondent contends that this is a continuing offence, and the magistrate was persuaded that that was a tenable argument. That was the issue upon which he had invited representations from the respondent's solicitor. The applicant says that it is patently not a continuing offence and that the magistrate had, in the circumstances, no jurisdiction to issue the summons; he ought to have determined that issue of law there and then. In any event, says the applicant, even if, contrary to that contention, it is a continuing offence, it could not continue as against him because on no view of the matter had he commenced the commission of the offence.

27. The respondent states that all this is by the by, because the magistrate has not the obligation at the stage he issues a summons to determine such matters; indeed, there is no obligation upon him to consider the information at all and, in any event, if there be shown a disparity between the information and the evidence, these are all matters which, by reason of statutory provision, are capable of correction.

28. Section 8 of the Magistrates Ordinance, insofar as is relevant to this case, provides as follows :

29. Section 23 bears the heading "Variance between information and evidence" :

30. Section 27 empowers a magistrate to amend an information or a summons :

The information

31. The information laid before the magistrate was in the form of an affirmation by the respondent, which affirmation was sent with the draft summons. It is a vital document in two respects : it is relevant to the question whether or not it is misleading in a material respect, and it is revealing in an analysis of the further question whether any criminal liability could, as a matter of law, conceivably lie at the door of the applicant.

32. It is a short document, the material paragraphs of which run as follows :

The applicant asserts that the information is grossly misleading for, by its structure and wording, it suggests that it was this defendant to whom the request was made, when it was known that it was in fact addressed to his predecessor, and it suggests that it was this defendant who received the request, whereas it was known that he did not.

The hearing before the magistrate

33. At the hearing on 30th April 1998, the magistrate explained that one of the two matters which he wished to air - the other being of no consequence to this judicial review - was "the potential difficulty with section 26 and the time limits". In relation to that, the respondent's solicitor made the following submissions :

34. The applicant suggests that the omissions which were hallmarks of the affirmation and the draft summons were compounded by these oral submissions, for there was nothing in these submissions which told the magistrate that the person to whom the data access request was addressed was not the proposed defendant and that the person upon whom was placed the (initial, even if not the only) obligation to reply by 29th January 1997 was not, and could not have been, the proposed defendant. The magistrate was not told that it was somehow proposed to fix the defendant with criminal liability by mere virtue of the office he held in Xinhua and the suggested inheritance thereby of the contended continuing liability to answer a request received when he held some other office. In other words, so goes the argument, the magistrate was not only not informed what the real allegation was by which it was suggested that this applicant could conceivably be guilty of the offence, but was positively misled by clear suggestions that it was this proposed defendant who was in a position to reply by 29th January 1997 yet did not, and that "he" the proposed defendant "was in continuous breach of the Ordinance" for as long as "nine months after the expiry of the 40-day period."

The respondent's case

35. The respondent submits that far too much has been read into the presentation and content of the information, including the draft summons, and the oral submissions, and that they have been approached by the applicant from a distorted or misunderstood perspective; and that, in any event, this court is not the appropriate forum before which these matters of complaint should be aired; that a magistrate is well-equipped to cure such defects in an information as may exist, as well as such a variance between an information and the evidence which then emerges. It is further argued that such facts as were not proffered to the magistrate were not material to the issues which the magistrate was required, as a matter of law, to determine before issuing the summons, or upon which, as a matter of fact, he had sought assistance.

36. The events and the process of thought which led to the laying of this information and to the naming of Mr Jiang as defendant is addressed in three affirmations before me - those of Mr Chan, the solicitor; Mr Bucky Chan, his assistant; and the respondent, Ms Lau.

37. In her affirmation in this application, Ms Lau recites the history of the matter up to and including the decision of the Secretary for Justice not to prosecute Xinhua. That was in late February 1998. At about the same time, there was gazetted a proposed legislative amendment to the Interpretation and General Clauses Ordinance by which, so she feared, organs such as Xinhua might be rendered "beyond the reach of Hong Kong law". This proposed amendment and the decision of the Secretary for Justice not to prosecute in this case "caused me great concern that the long cherished principle of equality before the law was about to be eroded. As a result, I began to consider that I should take out private prosecution against Xinhua for the breach of the Ordinance in order to re-affirm that Xinhua like any other citizen was subject to and not above the law of the land. My concern was the re-affirmation of the rule of law."

38. She concedes that she was well aware that her request for data access was directed at Mr Zhou Nan and that the applicant did not assume his post until August 1997. Nonetheless, the reason that she laid the information against the applicant was this : she was advised by her lawyers that Xinhua was an unincorporated association and could not, therefore, as a matter of law, be summonsed, and she was further advised that the applicant, Mr Jiang, was "an obvious and appropriate person to be named in the legal proceedings" because he was the director of Xinhua "at a time when the offence was continuing." Searches by her, subsequent to the issue of the summons, have confirmed Xinhua's unincorporated status. There was no intention to harass Mr Jiang personally or to drag him into proceedings regardless of any proper legal merit in so doing. The requirement in the issued summons that he appear in person, was not of her doing or at her request, or at the request of her solicitors. This purported requirement simply appeared on the summons which the court issued.

39. The essence of her explanation is supported by the evidence filed by her legal advisers. Mr Bucky Chan, who in April 1998, was an assistant solicitor in the solicitors firm of which Mr Christopher Chan was a partner, deposes to the fact that the time bar issue was the subject of research, and the view was formed that an offence under section 19 was a continuing offence and that Ms Lau, the respondent, was so advised. A company search and a society search were conducted in relation to Xinhua, and the conclusion was that Xinhua was an unincorporated association. Mr Christopher Chan and he concluded that it would be appropriate to name "the responsible director as the defendant" and Ms Lau was so advised. He continues :

The request had been made to Xinhua. He and Mr Christopher Chan considered it to be immaterial that Mr Zhou Nan was director of Xinhua at the time when the data access request was made. If the offence was a continuing offence, the applicant "would be the natural and proper defendant". There was never any intention to mislead the magistrate.

40. Mr Christopher Chan emphasises that whatever might be said about the merits of the assessment of the law, there was no intention to mislead. The change of directorship was, he suggests, a matter of public knowledge at the time and the magistrate was a long serving magistrate. Mr Christopher Chan regarded Xinhua as the data user, but since Xinhua had no separate legal existence and as the offence was continuing and as Mr Jiang was the director, it was appropriate to name Mr Jiang as defendant in his capacity as director of Xinhua. "If there was data to be disclosed, he was a relevant data user within the meaning of the ... Ordinance." As for the hearing before the magistrate, the question, he says, of the identity of the Director did not arise and was never in his mind. "Had the magistrate asked about the effect of the change of directorship, my answer would have been that the one had replaced the other who was no longer the director or in charge; that principle and common sense dictated that the current holder of the office was the correct defendant in relation to the acts of his Agency past and present; that the current director was in control from July 1997 during the period when the offence continued."

41. So, if I understand the thread of the affirmation correctly, it was thought that the data user was in fact Xinhua, and that a director, or the director, of such an unincorporated association was the only person who could be named as a defendant and that, furthermore, since the offence was a continuing offence, it mattered not who was director at the time of the receipt of the request - any director in post at the stage an offence continued was criminally liable as the current director of the association.

42. For reasons which I shall provide, I take the view that on the accepted facts, there simply is no legal basis upon which criminal liability under section 19 of the Privacy Ordinance could attach to the applicant, and that the legal advice tendered to Ms Lau was in error. But before I explain why I take that view and analyse the consequences of that view, there are two issues which should first be addressed.

The allegation of deliberate design to mislead

43. Publicity has attended the suggestion that the magistrate was deliberately misled, and those assertions have touched the respondent as well as Mr Christopher Chan. Mr Chan has not had the advantage of representation during the hearing so no one could speak out specifically on his behalf although, of course, Miss Li's submissions did constitute defence of his position as well as that of the respondent.

44. There is a significant difference between error on the one hand and design on the other, and hindsight, a tool which must be deployed delicately, can readily be an instrument of injustice. Our courts are not unfamiliar with cases where applications are shown not to have included information which ought to have been before the court, and the courts will in some such instances set aside orders on the ground that material information was not disclosed. But such instances are not automatically to be equated with an attempt deliberately to mislead a court. A representative might very well have fixed in his mind an approach by reason of which he assumes that a fact or a process of thought is known to, or is shared by, the court, or where it does not occur to him that his process of thought may be flawed and therefore that there are in fact matters he is not putting before the court which he should. In this particular case, whilst I think that it did in fact befall the respondent and her solicitors to explain the nature of the allegation against this defendant and the unusual way in which it was sought to attach liability to him, and whilst I think that the indignant reaction of the applicant to the consequences of the failure to put the story before the magistrate is justified, that does not preclude this court from accepting Mr Chan's assurance that there was no intention to mislead, and I do accept it. This was a new Ordinance. It must be recognized that Mr Chan was approached by a client who had a bona fide complaint about a failure of a data user to observe the requirements of that Ordinance; a fact of which argument in this case has sometimes quite lost sight; and Mr Chan was faced also with the unusual fact that the data user, Xinhua, was an unincorporated association, it being less than certain how such an association stands in terms of criminal proceedings. It is evident that Mr Chan's team specifically addressed the question of the correct identity of the defendant, and specifically addressed the question whether an offence under section 19 was or was not a continuing offence, and a view was taken as to continuity, although it happens to be one with which I do not agree. Once it is accepted, as I do, that Mr Chan had it fixed in his mind, after research, that the offence was a continuing offence and had concluded that it was permissible to name the director for the time being of an unincorporated association as the defendant, it is easier to understand from his standpoint - which is not the same as the wholly objective standpoint - why he did not go into detail at the preliminarily stage, and before the magistrate. That is not to say that the effect was not to mislead the magistrate; but rather that Mr Chan did not intend to do so.

The rule of law and abuse of process

45. For her part, Ms Lau was entitled to rely on the advice which she received. But the allegation against her goes further. It has been suggested that the reason that Ms Lau launched the criminal proceedings was to advance a political campaign in full swing in the Spring of 1998 when elections were pending. I do not think that that is established on the evidence before me. The timing of the proceedings was not of Ms Lau's choice in this sense : she had drawn the infringement of section 19 of the Ordinance to the attention of the Privacy Commissioner as far back as February 1997 and it was only in February 1998 that she received a letter saying that he had referred the case to the Secretary for Justice, and it was at the end of February that the respondent learnt that the Secretary for Justice was to take no action. She then consulted solicitors and they conducted research and searches and tendered advice.

46. Her avowed motive and her purpose (though motive and purpose are not always synonymous), as she herself puts it in her affirmation, was "to ensure the observance of the rule of law", the trigger for her concern being the proposal to amend the Interpretation and General Clauses Ordinance and the failure of the Secretary for Justice to proceed on the clear breach of section 19 of the Privacy Ordinance.

47. Yet, the fact that the predominant purpose or motive was to engage the rule of law in its practical manifestation, does not, in my judgment, turn the institution of proceedings into an abuse. The purpose was to ensure that the process of law was pursued and that none shall be above or beyond that process. That, as a matter of logic, can hardly then be said to be a procedure alien to the purpose for which the process exists; otherwise put, it cannot be said to be abusing the process of the law. On the contrary, the motive is that the process takes its proper course. There is an undoubted duty upon those entrusted with law enforcement to enforce the law (see R v The Commissioner of Police of the Metropolis Ex parte Blackburn [1968] 2 QB 118), which is not to say that there is an obligation to prosecute whenever a breach of the criminal law has been shown. But it is precisely the fact that there is no obligation upon the law enforcement authorities to prosecute in every case that gives rise to the concomitant right of the citizen with a sufficient interest to prosecute where the authorities have not. The concept is hardly new. More than 100 years ago, Stephen in his "History of the Criminal Law of England" wrote that :

There is no doubt an inbuilt discouragement to the private individual to the launching of a prosecution, in particular the lack of expertise and the cost and time taken in pursuing the matter; and there are safeguards against abuse provided by remedies for malicious prosecution, by provision for intervention in proceedings by the Secretary for Justice, and by the ability of the courts to guard against an abuse of the process. But, Stephen continued :

48. Against the bedrock of those fundamental principles, it is evident that if the purpose of a prosecution is to ensure that the process be used rather than be left in abeyance or used for some and not for others, then there is no abuse, and it matters not whether the private complainant in those circumstances is the citizen who asserts that a neighbouring factory is polluting the atmosphere or whether it is a political activist who is genuinely concerned about an alleged breach of the law and the failure of the authorities to prosecute it. If that is the purpose, then the purpose does not become unacceptable as "political" merely because the informant is a politician. The maintenance of the rule of law is no less properly the concern of the politician than it is of the man in the street.

49. What, then, of Ms Lau's purpose? Was it one which was alien to the proper use of the court's process? That brings me to certain core facts. The fact is that Ms Lau had a special or individual interest in this case, different, in other words, from the concern of a politician not affected at first hand by a case. Her special interest stemmed from the fact that the data request which lies at the heart of the magistrate's case emanated from Ms Lau herself, and that it was her request that was, it would appear, not answered as was required by law. That failure to respond, if proved, was not a failure of her making, nor a figment of her imagination. It may very well be that she was trying to make a point, and it may very well be that the point she was trying to make was a point which bore the colour of, and advanced, her political campaign. But given that I cannot say that her request for data information was other than lawful, and given that the failure to respond was not met with a prosecution at the behest of the Secretary for Justice, the institution of these proceedings to advance the cause of the rule of law was not an abuse of process.

50. But all that said, the rules are there as much for the protection of those against whom the ardent proponent of the rule of law wishes to make a point as they are for the proponent himself, or herself. That is the very essence of the rule of law. That is its attraction and its importance. It provides for certainty, and it ensures fairness across the board. And, in my judgment, the process has in this case been utilized in such a way as to impact unfairly and with clear injustice upon the applicant. There is no doubt in my mind but that the applicant has committed no offence contrary to section 19 of the Ordinance arising from the respondent's data access request; that it should have been apparent to those responsible for the institution of the proceedings that that was so; that there was a failure to bring before the magistrate information material to the question which he was addressing, namely, whether or not to issue a summons; and that the commencement of the proceedings against this applicant was neither justifiable nor defensible. In such circumstances, it is open for this court to intervene, even though bad faith is not established and, for reasons I shall provide, I have decided to do so.

Non-liability of the applicant

51. It seems to me to be self-evident, even assuming the offence under section 19 to be a continuing offence (and in my judgment it is clearly not a continuing offence), that criminal liability cannot attach to a person in the manner in which it was (and is still) sought, on the facts of this case, to attach liability to the applicant.

52. The difficulty with the respondent's approach to Mr Jiang's suggested liability under section 19 is evident from a mere examination of the draft summons :

A comparison between the phrasing of this draft summons, on the one hand, and the relevant statutory provision, on the other, at once reveals the difficulty with the informant's case against Mr Jiang. The request made by Ms Lau was not in its terms a request "to be informed within 40 days ... whether [Mr Jiang] held personal data." That is not how the request was put, and that is not what section 18 requires. Section 18 of the Ordinance merely states :

The request followed that formula and asked :

Section 19 places the obligation on the recipient of that request :

It seems clear enough to me that it is the recipient of the request who has to comply within 40 days. If the summons submitted by Ms Lau's advisers were accurately to reflect the statutory provisions, it should have read :

Had the summons been drafted that way, it might have stopped the draftsman in his tracks because the individual proposed by that summons as the defendant was not the recipient of the data request; he was not the director of Xinhua when the request was sent or, which is more to the point, when Xinhua was recipient of the request; and he was not the director of Xinhua during any part of the 40-day period, which expired on 29th January 1997. He was then an Ambassador in London.

53. It is said that the fact of the unincorporated status of Xinhua posed a problem for the informant : Xinhua could not be prosecuted and therefore "an individual had to be named as a defendant". Mr Hoo suggests that the first premise, namely, that an unincorporated association cannot be a defendant to criminal proceedings, is flawed, in support of which argument he draws my attention to the definition of "person" in section 3 of theInterpretation and General Clauses Ordinance as including "any public body and any body of persons, corporate or unincorporate, and this definition shall apply notwithstanding that the word 'person' occurs in a provision creating or relating to an offence ....". I do not think that the position thereby becomes clear cut. A similar provision in the New Zealand Crimes Act 1961 has drawn the comment that the provision renders it possible "to charge two or more accused with an offence ... of conspiracy to defraud 'the public, or any person' where the 'person' was an unincorporated association. However, it would not be possible to charge an unincorporated association with an offence, whether on indictment or summarily. To convict an unincorporated association would be a legal nonsense, so, in that situation the context is inconsistent with such an interpretation. But of course, individual members of such a body can be prosecuted in their own names in respect of their own acts or omissions as members." (See Adams on Criminal Law, section 1A, para.CA2.27.07)

54. The view taken that Xinhua could not properly, as a matter of law, be named as defendant was not in my judgment the erroneous, or necessarily erroneous, view which Mr Hoo suggests. Yet that difficulty hardly justifies the pinning of liability on a director who assumed office some seven months after the event. There is nothing in section 19, or in any other section of the Ordinance, that warrants that leap of the imagination. A person cannot be criminally liable by mere virtue of his position, and nothing more. He may only be liable, as the passage in Adams suggests, in respect of his own act or omission as director. A person who is not himself the principal offender may be rendered party to an offence which has been committed by another if he knows the essential elements of the offence and encourages or assists its commission, or if a statute specifically provides for liability of a director or other office holder, for example, where he is in a position to, but has failed, to take reasonable steps to prevent the commission of the offence. The common law generally rejects the principle of vicarious liability in crime, and this Ordinance provides no exception to that principle. Indeed, whereas section 65 of the Ordinance stipulates circumstances in which acts done by an employee or agent are for the purpose of the Ordinance to be imputed to the employer or principal, as the case may be, section 65(4) declares that those provisions shall not apply for the purposes of any criminal proceedings.

55. It is said in Mr Christopher Chan's affirmation that Mr Jiang "was a relevant data user within the meaning of the Ordinance ...." Insofar as Mr Jiang controlled the collection, holding, processing or use of data - and I am prepared to assume that as director he did - then, yes, he was, upon assuming office and together with Xinhua, a data user. But he was not the data user to whom the request for data had been made and it seems to me that neither principle nor any applicable statutory provision could render him liable for an offence originated and committed by another. The allegation is not, nor was it, that there was a renewal of the request to the applicant in July or August 1997. I fail to see how he could inherit the criminal liability of someone else merely because in July, by virtue of his position, he can be said to have assumed control of Xinhua's data. If that is the suggestion - and it is indeed how the matter is put in Mr Chan's affirmation - when is it suggested that criminal liability attached to Mr Jiang? The moment he assumed office? If that were so, it would mean that he committed a criminal offence before he even arrived in Hong Kong; and I say that because he assumed office in July and arrived only in August. Or is it suggested that he committed an offence the day he arrived in Hong Kong and assumed his duties, even if the request was not drawn to his attention? If that were so, it would mean that he would not have had the advantage accorded to his predecessor, or indeed to any data user, of a period of 40 days in which to attend to and to respond to the request. And if, say, it did come to his attention after his arrival, and he then asked his staff to brief him and perhaps sought legal advice and responded, perhaps within two weeks after assuming his duties, that would avail him nothing, if the respondent's case be tenable, because between the date of his arrival and his swift response he will nonetheless have already committed a criminal offence. These examples illustrate, I believe, the fundamental flaw in the respondent's case against the applicant.

56. If it is now suggested that he must be deemed himself to have received the request on assuming office and that 40 days expired after his arrival before the reply came in October, the truth is that that has never been the respondent's case, and it was patently not the case placed before the magistrate. The complaint to the Privacy Commissioner, to which reference was made in the oral submissions to the magistrate, was about the request in December 1996, not some new notional request in July or August 1997; and the draft summons related to the December request, and the submissions of Mr Chan referred to a delay of a year in relation to the request to which the draft summons referred. The fact is that no other request was made, and liability could only conceivably arise in relation to the December request.

57. Now all this is quite apart from the question whether the offence is or is not a continuing offence. It so happens that I am satisfied that sections 19 and 64(10) of the Ordinance do not create a continuing offence, and I shall in due course, explain, albeit briefly, why I have come to that conclusion. But the immediate point has been to illustrate two matters :

Material non-disclosure

58. I am invited to say that the matters put before the magistrate were not misleading, and that the details which the respondent says should have been placed before the magistrate were not relevant to the issue which the magistrate was then addressing. In neither respect am I able to agree. That the affirmation, the draft summons, and the oral submissions were misleading in their effect is a matter about which I have no doubt.

59. The affirmation is a document which is noteworthy for what it did not say. It did not name the person to whom the request had been directed. It did not reveal the fact, which is undisputed, that the request in 1996 had not been made to the applicant nor that in December 1996 he had held no office, let alone that of Director, with Xinhua. There is no suggestion - nor could there have been - that a fresh request was made once he had become Director. Furthermore, no one could be criticised for concluding from the juxtaposition of paragraphs 3, 4 and 6 of the affirmation that the director to whom the request was made was Mr Jiang, the applicant. That is a conclusion reinforced, surely, by the terms of the accompanying draft summons charging that "you [i.e. Mr Jiang, Director of Xinhua] being a data user did fail to comply with a data access request made on 20th December 1996 .. to be informed within a period of not later than 40 days after receiving the request whether you held personal data of which Lau Wai Hing was the data subject." (Emphasis added) And that, as I have earlier illustrated, is itself a document which does not show, as it should have, that a complaint envisaged by section 19 is one as against the data user who failed to respond within 40 days of the receipt by that data user of a request for information.

60. As for the hearing before the magistrate, which lasted for some 20 minutes or so, the impressions created by the draft summons and the affirmation were not corrected. There is reference on several occasions to "the data user," and there is reference to an obligation on "the offender" to reply by 29th January, and to a delayed response of nine months. The data user, who by express reference to the draft summons is said to be this applicant, is alleged to have been in continuous breach to the date "he" replied, namely, 25th October 1997. There is no reference at all in these submissions (or in the information) to Mr Zhou Nan; no hint that liability is said to attach by reason of a process which, on any view, was unusual; no mention of the fact that the proposed defendant did not himself receive the request, certainly not by the expiry of the 40-day period. I can see the process by which in Mr Chan's mind he genuinely thought that liability could attach to this applicant. I can see it, though I disagree with it. What I cannot, however, see is merit in the contention implied in argument before me that the magistrate could have thought otherwise than that the respondent was the data user who received the request. And in that, he was misled, even though Mr Chan did not intend to mislead him.

61. The question then is : was that material? Miss Li contends - and it is a contention echoed in Mr Christopher Chan's affirmation - that questions of identity or succession to office were irrelevant to the function which the magistrate was then exercising, and to the question which he, the magistrate, was then addressing.

62. As for function, I have heard much in the course of submissions about the function of a magistrate when he decides whether or not to issue a summons. Mr Hoo has placed much reliance upon English authority that :

(See Lord Widgery C.J. in R v West London Metropolitan Stipendiary Magistrate, Ex parte Khlan [1979] 1 WLR 933, 935).

In this regard, Mr Hoo asserts :

So, too, did he emphasise other cases (for example, R v Leeds Justices Ex parte Hanson [1981] 1 Q.B. 892 and R v Brentford Justices Ex parte Catlin [1975] 1 Q.B. 455) requiring from a magistrate that judicial consideration be given to an information before a summons is issued.

63. But the statutory requirements in Hong Kong for magistrate proceedings do not require that in all cases a magistrate must give judicial consideration to an information. Section 8(1B), to which I have earlier referred, is much prayed in aid by Miss Li. There was, she says, whatever the position may be in England, no obligation in Hong Kong for a magistrate to address the issues itemised in Khlan, a point made, Ms Li contends, by the very wording of section 8(1B) and by the provisions for amendment granted by sections 23 and 27. That, as a general proposition, holds water, but it does not mean that if a magistrate in fact addresses the question whether to issue a summons, he is not then bound to address that question judicially, and it does not mean that if he is concerned whether or not a summons may properly issue in a particular case, that a party invited to address him on that issue is absolved from a duty to place all material facts before him.

64. Insofar as it is argued that the omitted facts were of no consequence at that stage because argument was focused on the question whether the offence was or was not a continuing offence, that, I believe, with respect, is to take too nice and too compartmentalised an approach. The magistrate was in effect asking whether it was or was not too late to take proceedings against the proposed defendant, and all allegations and potential problems bearing upon that question should have been disclosed, and they quite evidently were not. Nor do I accept the suggestion that the disclosure of the full facts would have made no difference. I would be surprised indeed if that were so. Had the magistrate been alerted to the fact that the applicant was not the recipient of the request, had arrived in Hong Kong only in August, and that no request had ever been addressed to him, I would have expected the magistrate to have required Mr Chan to explain how then the proposed defendant could be said to be liable, continuing offence or no continuing offence. In the circumstances, I am satisfied that this was a case in which the magistrate was engaged upon a judicial exercise in determining whether to issue the summons, and that the informant withheld material information from the magistrate.

Procedural unfairness by a party

65. There is a line of cases, restricted it seems to criminal or quasi criminal proceedings, in which the courts have been prepared to exercise their supervisory jurisdiction to quash proceedings tainted by material non-disclosure or other unfairness or mishap, though the failing is not that of the tribunal but rather that of a prosecutor or other party to the proceeding, and even where the faulty conduct is not dishonest.

66. The cases, and the principle which emerges from them, were the subject of analysis in R v Criminal Injuries Compensation Board Ex parte A [1997] 3 WLR 776 :

Referring to that special category of cases, analogous to fraud, where relief is available even in the absence of error or misconduct by a tribunal, the court in Ex parte Scally expressed its opinion that :

67. Miss Li points to the fact that in all these cases, the court exercised its jurisdiction to quash proceedings already concluded at first instance. Yet, in my judgment, it hardly follows that the court in its supervisory function will never, even in the face of a demonstrable injustice, stop first instance proceedings in limine. R v Kingston-upon-Thames Justices Ex parte, Khanna [1986] RTR 364 is the type of case where a higher court might well have taken pre-emptive steps had the mishap come to light before, rather than after, proceedings were underway and had the prosecutor and the court, despite the acknowledged mishap, evidenced an intention nonetheless to proceed. In that case, the irregularity stemmed "from the very initiation of [the proceedings] the commencement of which as the prosecution is only too anxious to concede was unjustifiable and indefensible," and Watkins L.J. said that : "It would be a monstrous injustice if this court were disabled from bringing down a conviction which was obtained in circumstances where it should have been apparent to the prosecutor that there was no case against the applicant...."; and Kennedy J. added : "Where the prosecutor ought to know and to declare to the court that he has no evidence at all on which to rely in order to support the charge, then, if no declaration is made and a plea of guilty offered is accepted, even if there is no bad faith, the way is, in my judgment, open for this court to interfere."

68. It is my opinion that this case, this prosecution, was a case in which there was in fact, as those prosecuting ought to have appreciated, no evidence against this applicant to support the offence for which the proceedings were instituted, and that information was withheld from the magistrate which would have alerted him to that fact.

69. But, beyond that, the very withholding of material information "is in itself a critical factor in determining whether a summons should be set aside as an abuse of the process of the court." (per Nolan J. in R v Gray's Justices Ex parte Low [1990] 1 Q.B. 54, 59); and in R v Bury Justices Ex parte Anderton (a decision of the Queen's Bench Division on 3rd April 1987) - also a case of material non-disclosure, it was said that :

It is also established by the authorities that an abuse may be constituted, and that the courts will interfere in consequence of such abuse, even where there is no bad faith. That point is made in terms in Ex parte Khanna (per Kennedy J.); Ex parte Scally [1991] 1 QB 537, 567; and Ex parte Low [1990] 1 QB 54, 59.

70. In my judgment, the failure to disclose in the information, including the draft summons, and in the submissions to the court, the fact that the respondent was not the intended recipient of the data request, was not in fact the recipient, and that he was not the director of Xinhua until July 1997 were omissions which constituted in their effect, and in themselves, material misrepresentations to the magistrate.

71. I am satisfied that the application for the summons, being a summons in respect of an offence for which, as against the proposed defendant, there was, as the prosecutor ought to have known, no evidence, and being an application encumbered by non-disclosure of material information, constituted an abuse of process.

Other arguments

(1) A single offence

72. Although it has been unnecessary for the purpose of deciding the question of abuse to determine whether or not the offence under sections 9 and 64(10) of the Ordinance is a continuing or a single offence, the offence is clearly, in my judgment, not a continuing offence.

73. Generally speaking, an offence of non-compliance with a "do" provision is complete when the period for compliance ends, whereas the courts are more ready to construe a continuing obligation where there is a "desist" provision. Section 19 is a "do" provision, and there are other provisions which demonstrate legislative intent in this case, not least section 50 which empowers the Commissioner, where he is of the opinion that the data user is contravening a requirement under the Ordinance or has contravened a requirement in circumstances that make it likely that the contravention will continue or be repeated, to direct the data user to remedy the contravention, and failure then to comply is specifically made a continuing offence by the terms of section 64(7) of the Ordinance, the reference in which to a continuing offence is in stark contrast to section 64(10). I note also provisions by which a request might be refused, for example, where a user cannot comply without disclosing personal data of another or where another data user controls the data so as to preclude disclosure. If the requirement of section 19 were a continuing requirement, in the absence of an enforcement notice, is the suggested continuing obligation somehow suspended if during its continuance beyond 40 days, such practical inhibitions then come into play? There are no specific provisions or indicia in this Ordinance which warrant a departure from the normal approach to 'do' provisions; on the contrary, there are indicia which compel adherence to that approach.

74. Insofar as it is argued by Mr Hoo that there was no jurisdiction to issue the summons if as a matter of law the offence under section 19 is not a continuing offence, I rather think that the terms of section 8(1B) of the Magistrates Ordinance militate against that contention. A determination that sections 9 and 64(10) do not create a continuing offence ought to give the magistrate "good cause" to refuse to issue the summons, but that does not preclude him from issuing the summons if he believes it may well be a continuing offence.

(2) The information on its face

75. Nor do I think it established by Mr Hoo that the information, as it was framed, was insufficient to disclose an offence against the applicant, Mr Jiang. If the information is to be read as an allegation that the request was made to Mr Jiang, the applicant, and since it states that he is in control of Xinhua which association held personal data of which the respondent was the data subject, that is sufficient on its face to make Mr Jiang a data user within the meaning ascribed to that term by the Ordinance to whom a request was made. The allegation, as framed, albeit based on a false premise, is sufficient to constitute an allegation of an offence, not least when one considers that it is made in conjunction with a much more direct allegation in the draft summons.

(3) The requirement for personal attendance

76. At the foot of the summon issued is the statement that :

Now this requirement runs contrary to the provisions of section 18 of the Magistrates Ordinance which stipulates that :

77. The Personal Data (Privacy) Ordinance does not require personal attendance at the hearing of a prosecution brought pursuant to its provisions. The requirement for personal attendance was not of the respondent's making. I have ascertained that it is a paragraph which regularly appears in summonses. The inclusion of this paragraph on forms of summonses was apparently designed to cater for difficulties which arose when a defendant pleaded guilty, and it was then necessary to know whether or not the facts alleged by the prosecutor were agreed. There is, apparently, authority to the effect that such facts can only properly be agreed by a defendant in person, so it was decided that defendants should be told that they must attend. There was a further reason, namely, to distinguish such cases from those in which it was permissible to plead guilty by letter. Still, the requirement runs counter to the latitude expressly permitted by section 18, and Mr Hoo would have me strike down the summons on that ground alone. The short answer to the point is that the inclusion of this paragraph does not render the summons a nullity. It is surplus to the form of summons prescribed by the Magistrates (Forms) Rules, and is a requirement that is readily amenable to deletion without affecting the efficacy of the summons.

Whether this court should grant relief

78. Miss Li stresses the importance of access by all to the courts and the undesirability of a court in its supervisory jurisdiction stopping proceedingsin limine where a magistrate can address the self-same issues.

79. Though the matter once seemed in doubt, it appears now to be generally accepted that the issue of abuse of process may be addressed by magistrates, and I bear in mind as well the curative powers conferred by sections 23 and 27 of the Ordinance.

80. In my opinion, however, the applicant was justified in coming to this court in seeking relief rather than going to the magistracy and arguing the matter there. The summons required his personal attendance and although that was not a requirement inserted at the respondent's behest, and although that requirement conflicts with section 18 of the Magistrates Ordinance, one can well understand the disquiet of a senior diplomat at such a requirement in relation to an allegation which was, on any view of the matter, misplaced and advanced, as I have found, in a misleading manner.

81. To remit this case to the magistrate now serves no purpose whatsoever, save quite unnecessarily to prolong proceedings and to augment expense in a case the outcome of which would be a foregone conclusion. It would be a foregone conclusion because - issues of abuse aside - there is, for reasons I have provided, no evidence and no basis upon which the applicant could be convicted of the offence suggested. It is not only that the argument by which he somehow becomes liable for a continuing offence, months after its initiation by another, is a flawed argument - and that would suffice to dispose of the matter - but the offence is clearly in my judgment not a continuing one.

82. Beyond that, the essence of the abuse in this case is to be found in the process which sought to initiate the proceedings, to bring this applicant before the court. To permit the matter to return to the magistracy is to enable the case to reach the stage which it ought never to reach and which, but for the abuse, it would in my judgment never have reached. I agree with Mr Hoo that where a summons is obtained on the basis of a legal fiction and a material omission and where, as in this case, there is nothing to cure, the prospect of requiring a defendant nonetheless to subject himself to criminal proceedings is one that sits ill with concepts of justice. It would be a distasteful charade not least when attended, as such proceedings would be in this case, by publicity. Although the courts should intervene in a supervisory capacity only in exceptional circumstances in such cases, this is in my judgment such a case. I shall accordingly order that the summons be quashed.

83. There was a last minute application for leave to apply for an order that the information also be quashed, for it is feared that it might still be utilized to apply for a fresh summons. I was minded to grant leave but it soon became evident that the application, made at the very tail end of the reply, threatened to be the subject of further substantial argument encompassing, for example, the question whether the information might ground a prosecution against Xinhua. Given the timing of the application and the history of these proceedings, I granted leave to amend the application for leave, but adjourned the application for leave sine die with liberty to the applicant to restore. Nonetheless, it will be clear from this judgment that in my opinion there is no basis upon which a summons could properly issue alleging an offence by this applicant in relation to the December 1996 request. It will also be clear that in my opinion the offence under section 19 and section 64(10) is a single and not a continuing offence.

84. There is a prayer in the application for a declaration that the applicant is under no legal obligation to attend personally before the magistrate. Given the order to quash the summons, there is no need for that declaration.

Conclusion

85. It follows that the applicant's motion is allowed, and that there will be an order of certiorari by which the summons issued by the magistrate to the applicant dated 1st May 1998 will be quashed.

86. There will be a costs order nisi that the respondent do pay to the applicant the costs of and occasioned by this motion, save that (1) the costs of and occasioned by the adjournment on 18th November 1998 shall be borne by the applicant; and (2) there will be no order for costs of and occasioned by the adjournment in March 1999. The first adjournment was caused by a failure of the applicant adequately to particularise his allegations of abuse; whereas I do not think that the second adjournment can be laid at the door of either party. Costs are to be taxed if not agreed.

Representation: