RE HUI KEE CHUN

HCAL 90/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO. 90 OF 2011

____________

____________

_______________________

D E C I S I O N

_______________________

Introduction

1.  This is an ex parte application for leave to apply for judicial review.  It is directed against:-

(a) the decision of the 1^st putative respondent, the Privacy Commissioner for Personal Data (“the Commissioner”), to issue an enforcement notice dated 16 August 2006;

(b) the decision of the 2^nd putative respondent, the Administrative Appeals Board (“the Board”), dated 17 April 2007 to dismiss the applicant’s appeal;

(c) the decision of the 3^rd putative respondent, a magistrate, dated 2 December 2008 to convict, and dated 17 December 2008 to sentence, the applicant.

2.  At the beginning of the ex parte hearing, the applicant asked for an adjournment to await his application for legal aid.

Background

3.  This application was made on 21 October 2011. Before making this application, the applicant commenced an action at the High Court (HCA 1980/2006).  The applicant later appealed to the court of appeal against the decision to strike out the writ and pleading (CACV 401/2007).

4.  The background facts leading to this application are the same as those leading to the said action and appeal.  They have been summarized in the court of appeal’s judgment handed down on 5 March 2009.  I will gratefully quote from the relevant paragraphs of the judgment to assist the comprehension of this decision:-

“6. In 2005 the Appellant was a term lecturer at an institute of vocational education run by the Vocational Training Council (‘VTC’). During a lunch break, he had a conversation with his head of department (‘Mr Tam’) about his performance, in the course of which Mr Tam is alleged to have said that he (Mr Tam) had completed students’ assignments for them and that the Appellant should do the same. The Appellant audio-recorded the conversation without informing Mr Tam (‘the Recorded Conversation’).

Uploading onto websites

7. The Appellant then uploaded the Recorded Conversation onto the internet in two versions of different lengths. He informed the media in Hong Kong about it and some newspapers carried reports about it.

The Article

8. The Appellant also wrote an article (‘the Article’) and posted it on two websites. Mr Tam’s name, job title and employer appeared at the top of the Article, and it also contained hyperlinks to the Recorded Conversation.

Forum messages

9. The Appellant also posted messages on internet forums (‘the Forum messages’) with hyperlinks to the Article.

VTC INVESTIGATION

10. The VTC then set up an Independent Investigation Panel to investigate whether Mr Tam had completed his students’ assignments for them. Mr Tam did not acknowledge that the Recorded Conversation included his voice. The panel interviewed Mr Tam (but not the Appellant who did not wish to be interviewed) as well as the students and examined their assignments, and found the allegation unsubstantiated.

Tam’s complaint to Privacy Commissioner

11. On 2 December 2005, i.e. after the setting up of the panel but before the issue of its report, Mr Tam made a complaint to the Privacy Commissioner for Personal Data (‘the Commissioner’) that the Appellant had wrongfully collected his personal data and used it on the websites and internet forums. The Commissioner commenced investigations.

Commissioner’s Investigations

12. On 16 August 2006, the Commissioner found the Appellant was not in contravention of data protection principle 1 (‘DPP1’) as set out in Schedule 1 of the Personal Data (Privacy) Ordinance cap. 486 (‘the Ordinance’) in that he could have collected the personal data for the purpose of managing his work as a lecturer and so the exemption in s. 52 of the Ordinance could apply.

13. The Commissioner found however that the Appellant had contravened DPP3 in using the personal data other than for that purpose. The Commissioner found that even if the Appellant had used the personal data to prevent or remedy improper conduct or malpractice by Mr Tam, s. 58 of the Ordinance did not exempt him as he could have provided it to the VTC authorities privately and had no need to publicly disseminate the personal data by uploading it on the internet. Accordingly the Commissioner found the Appellant in breach of DPP3.

14. In this connection the Appellant has complained about the Commissioner’s findings as to the personal data which he is alleged to have collected and wrongfully used.

ENFORCEMENT NOTICE

15. The Commissioner issued an enforcement notice against the Appellant requiring him to:

(1) remove the Recorded Conversation and hyperlinks to it from the websites and forums;

(2) remove Mr Tam’s personal data from the Article and the Forum messages; and

(3) stop using Mr Tam’s personal data in association with the Recorded Conversation for public dissemination.

APPEAL TO THE AAB

16. The Appellant did not comply with the Enforcement Notice. He lodged an appeal from the Commissioner to the Administrative Appeals Board (‘AAB’) on 14 September 2006. On 27 March 2007 the AAB heard the appeal and on 17 July 2007 it dismissed it. The AAB further found that the Appellant was also in breach of DPP1.

WRIT

17. Before the AAB hearing however, on 7 September 2006 the Appellant issued a writ in the High Court against the Commissioner as Defendant. The question in this appeal is whether the Appellant’s pleading has disclosed a reasonable cause of action against the Commissioner.

STATEMENT OF CLAIM

18. Para. 1 of the Statement of Claim specifies the claim as follows:

‘The Plaintiff’s claim against the Defendant is for the sum of HK$5,000,000.00 (Hong Kong Dollars Five Million Only), being Damages for the annoyance, frustration, nervousness, anxiety, and depression created by the Defendant on the Plaintiff as a result of the Defendant’s mal-administration, error in investigation, error in judgment, and error in decision on the case’. (Emphasis added).

Para. 2 then states:

‘The Plaintiff appeals to the Court on the Defendant’s ‘Result of Investigation’ dated 16 August 2006 (...) that the Plaintiff has contravened the requirement of [DPP3] in relation to the disclosure of the personal data of [Mr Tam]. (Emphasis added).

And para. 3 states:

‘The Plaintiff requests the Defendant to set aside the ‘Enforcement Notice’ ... dated 16 August 2006 ... on the Plaintiff until Judgment by the Court is made on the case, and inform the Plaintiff as such’. (Emphasis added).

As for the rest of the Statement of Claim, in brief it was pleaded that:

- the Commissioner indicated to the Appellant that Mr Tam’s personal data were his full name, job title and employer’s name (para. 4);

- in a letter to the Appellant dated 16 August 2006, the Commissioner has stated that it was the objective of the Ordinance to protect personal data privacy of individuals (para. 5);

- Mr Tam’s personal data had been published to newspapers on various dates after the Recorded Conversation was uploaded (para. 6);

- Mr Tam’s personal data had been publicized by the VTC in a Press Release on the results of the panel investigation (para. 7);

- Mr Tam’s personal data had been available for public access from the VTC’s electronic telephone directory on the internet (para. 8);

- Mr Tam’s personal data had been available for public access from the internet (para. 9);

- Mr Tam had been dishonest with the VTC as he did not report that it was his voice on the Recorded Conversation, whereas he had done so to the Commissioner (para. 10);

- there was an article in a newspaper reporting an officer of the VTC as saying that the Recorded Conversation was not used as evidence as it was not proved that it was Mr Tam’s voice on the Recorded Conversation (para. 11);

- the VTC had made a statement that Mr Tam had declined to answer any questions on the Recorded Conversation and the panel was thus unable to establish the authenticity of the recording (para. 12);

- the Commissioner did not provide the Appellant with copies of the information mentioned in his letter to the Appellant of 16 August 2006 which had appeared in the websites (para. 13);

- the Article itself did not contain Mr Tam’s personal data, although the personal data did appear in the websites of which the Article formed part (para. 14); and

- the Recorded Conversation did not contain Mr Tam’s personal data, and this was accepted by the Commissioner in his letter dated 16 August 2006 (para. 15).”

This Application

5.  The grounds on which relief is sought in this application have been set out in the Form 86.  They will be discussed below.

6.  One, the Commissioner and the Board have failed to give reasons for their decision.

7.  In relation to the Commissioner, allegedly he has acted in breach of s. 50(1)(b)(ii), Personal Data (Privacy) Ordinance (Cap. 486).  That provision reads:-

“Where, following the completion of an investigation, the Commissioner is of the opinion that the relevant data user … has contravened such [a requirement under Cap. 486] in circumstances that make it likely that the contravention will continue or be repeated, then the Commissioner may serve on the relevant data user a notice in writing [stating that he is of that opinion and] specifying the requirement as to which he is of that opinion and the reasons why he is of that opinion”.

8.  The relevant part of the Form 86 alleges that the Commissioner stated that the only personal data is Mr Tam’s name, but failed to give reasons as to why there are privacy concerns for using or quoting that name.

9.  In relation to the Board, allegedly it has also been guilty of the same failure.

10.  The enforcement notice dated 16 August 2006 has been exhibited to the applicant’s supporting affidavit.  It contains an 8-page document headed “Result of Investigation”.  The 8-page document contains (among other things) the Commissioner’s findings.  The relevant parts state:-

“The term ‘personal data’ is defined under section 2 of [Cap. 486] as meaning 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.” (para. 3 thereof);

“… exposing the identity of [Mr Tam] … (i.e. his full name, job title and employer’s name) to the public via internet renders it practicable for the identity of [Mr Tam] to be directly ascertained … ” (para. 10 thereof);

“The facts of the present case before me showed that although the Recorded Conversation per se without other identifying information made known may not render it practicable for the identity of [Mr Tam] to be ascertainable by third parties … the subsequent posting of the Article … containing the information [the name of the institution employing, and the job title of, Mr Tam were then set out] when considered together … had revealed the identity of [Mr Tam] to be the data subject … ” (para. 11 thereof).

11.  A copy of the Board’s decision dated 17 April 2007 is also exhibited to the applicant’s supporting affidavit.  The relevant parts are:-

“[After setting out the name of the institution employing, and the job title of, Mr Tam shown on the web sites, and to the similarly-worded preamble and web links] … It should be noted the access to the Recorded Conversations could only be made via the links in the Websites or the Forums so that the Recorded Conversations do not stand on their own. The Recorded Conversations are an integral part of the information on the Websites or the messages on the Forums. Having regard … that the preamble contains the personal data of Mr. Tam and clearly refers to the Recorded Conversations as being between Mr. Tam and the [applicant] … it would be practicable for the identity of Mr. Tam to be ascertained from the Recorded Conversations” (para. 48 thereof).

12.  In view of the above-quoted passages, both the Commissioner and the Board have given full, express and valid reasons as to why they concluded the personal data of Mr Tam had been involved.  This ground is therefore misconceived.

13.  Two, the Commissioner has acted ultra vires, illegally/unlawfully, and/or has abused his power by directing in the enforcement notice the removal of the concerned article and recorded conversations which do not contain personal data.  Because of the conclusion reached in para. 12 above, this ground is therefore also misconceived.

14.  Three, the Commissioner has failed to give reasons as to why there are privacy concerns for using or quoting Mr Tam’s name in a newspaper and why he directed the removal of the concerned article and recorded conversations.  By doing so, the Commissioner has acted in contravention of Article 27, Basic Law (relating to freedom of speech, of the press and of publication) and Article 16, Hong Kong Bill of Rights Ordinance (Cap. 383) (relating to freedom of opinion and expression).

15.  Both the Commissioner and the Board have expressly stated why they concluded the use of the personal data of Mr Tam was improper in the context of the provisions of Cap. 486:-

(1) bearing in mind the purpose for the collection of the said personal data, there is no evidence the applicant had reported to Mr Tam’s employer;

(2) instead, the applicant had chosen the more privacy intrusive methods of exposing the said personal data through the mass media and the internet;

(3) the mode and magnitude of the exposure had served to lower Mr Tam’s esteem and reputation which exceeded the original purpose of personal data collection.

16.  It is part of Article 16, Cap. 383 that:-

“It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary … for respect of the rights or reputations of others”.

The Court of Final Appeal has also decided, in the context of Article 27, Basic Law, that a constitutionally valid restriction of the right to freedom of expression, had to satisfy the test that it was both necessary and not disproportionate: Leung Kwok Hung & Others v HKSAR [2005] 8 HKCFAR 229.

17.  By reason of the matters set out in para. 15 above, I find that the provisions of Cap. 486, as applied by the Commissioner and the Board, satisfy the above requirements of the Basic Law and Cap. 383. This ground therefore has no merit.

18.  Four, the Board has acted ultra vires and unlawfully in refusing to consider the statutory exemption provided for in s. 61, Cap. 486 (reasonable belief of public interest).

19.  This ground is again misconceived.  The Board refused to consider the exemption because it concluded:-

(a) there was no supporting evidence other than the applicant’s mere assertion;

(b) there was no objective circumstance suggesting the exemption may apply;

(c) the Commissioner had no duty, and should not be expected, to consider all possible exemptions.

20.  Five, the criminal conviction by the magistrate and the fine imposed by him ought to be quashed, and there should be an interim stay of the magistracy appeal (HCMA 80/2009) pending the determination of this application.

21.  As the applicant has accepted during the hearing of this application, the magistracy appeal has earlier been adjourned by the court to wait for the outcome of this application.  Further, the criminal conviction will be reconsidered by the court when the hearing of the magistracy appeal is resumed.  There is therefore no need to consider this ground.

22.  Apart from the above, there are various other allegations that the Commissioner and/or the Board has/have acted inconsistently, irrationally and/or committed an error of fact.

23.  There is no need to narrate these in detail save to say I have considered them and found no substance in any of them.

24.  This application was made more than 5 years after the Commissioner’s decision (August 2006), about 4-1/2 years after the Board’s decision (April 2007) and about 3 years after the criminal conviction (December 2008).  It falls far beyond the 3-month time limit prescribed by RHC Ord. 53 r. 4(1).  No satisfactory explanation has been put forth (despite an attempt to do so in the Form 86).  This application ought to be refused on ground of delay alone.

25.  To conclude, this application is refused.

The Applicant’s Legal Aid and Adjournment Applications

26.  As stated above, this application was made in October 2011.  It was schedule to be heard on 14 December 2011.

27.  The applicant wrote to court on 9 November 2011 to seek an adjournment of the ex parte hearing so that he could apply for legal aid.  The application was repeated at the hearing.

28.  As stated in para. 24 above, there was already a serious delay between the decisions the subject-matters of this application and the time of this application.

29.  Further, when invited to explain why legal aid, or other forms legal assistance, was not sought much earlier during the period between 30 November 2007 (the date of the striking out decision) or 5 March 2009 (the date of the dismissal of the appeal) and October 2011, the applicant was in effect unable to do so.

30.  When dealing with a similar adjournment application, the court of appeal said in the judgment handed down on 22 July 2009:-

“Having considered the Director’s decision to refuse legal aid, the fact that the Plaintiff has all along been dealing with this case personally and the questions referred to below, we did not see any good ground for an adjournment” (para. 2, CACV 401/2007).

31.  Except that there is no refusal by the Director of Legal Aid, the other matters mentioned in the quoted passage apply all the more to this application.

32.  Taking into account all of the above, the adjournment application is also refused.