HUI KEE CHUN v. THE PRIVACY COMMISSIONER FOR PERSONAL DATA

HCA 1980/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1980 OF 2006

----------------------

----------------------

----------------------

D E C I S I O N

----------------------

1.  This is an application by the plaintiff for stay of execution of my order made on 30 November 2007. 

Background

2.  My order was a dismissal of the plaintiff’s appeal against Master Yu’s order made on 11 July 2007.  The Master’s order was to strike out the plaintiff’s claim.  I also made an order nisi requiring the plaintiff to pay the defendant the costs of the appeal to be taxed.  The order nisi has become absolute automatically for want of any application for variation.

3.  After I had given my decision on 30 November 2007, the plaintiff filed a notice of appeal on 14 December 2007.  He also filed a notice to set down the appeal on 20 December 2007. 

4.  On 19 March 2008, the Registrar approved his revised appeal bundle.  On the same day, the Registrar wrote and reminded him to submit the revised appeal bundle and to apply for a hearing date.  The Registrar repeated the reminder on 9 April, 23 April, 21 May, 4 June, 18 June, 3 July, 17 July and 11 August.  But he only filed an application to fix a date for the hearing of the appeal on 5 September.  On the same day, he filed an amended notice of appeal with new grounds of appeal. 

5.  He said he delayed the matter because he was considering how to amend his statement of claim and his grounds of appeal.  He also said that he had explained this to the Registrar by telephone though not in writing.  But he produced no draft amendment to the statement of claim and the drafting of his amended grounds of appeal should not have taken 5 ½ months.

6.  The costs I ordered to be paid by him to the defendant have been taxed on 31 July 2008 and he has applied for a review of the taxation. 

Application to stay and for costs

7.  On 29 July 2008, he made this application for stay of execution of my order.  He also asked in this application for disallowance of part of the costs for the defendant and payment by the defendant to him of course he incurred under O.62 r 7 of the Rules of the High Court.  The ground is that the defendant had done or omitted to do things improperly and unnecessarily during the proceedings.  He also asked for an order under O.62 r 8 that the defendant’s solicitors shall indemnify him the costs payable by him.  The ground is that there were costs incurred improperly and without reasonable cause and wasted by the misconduct and default of the defendant’s solicitors in the proceedings. 

Decision on application for costs

8.  I deal with the applications relating to costs first.  In this application, the plaintiff complained that the defendant’s solicitors were guilty of various alleged misconduct.  He therefore asked for an order of costs against the defendant and his solicitors under O.62 rr 7 and 8 of the Rules of High Court.  He referred me to Practice Direction 14.5 which governed applications under O.62 r.8.  The Practice Direction provides in paragraph 2 that such application should usually only be made after the relevant proceedings have concluded. 

9.  The proceedings before me have concluded on 30 November 2007 when I handed down my decision.  The order of my decision was sealed on 4 December 2007.  This application was not made before my order was sealed.  It was made on 29 July 2008 when I was already functus officio.  I therefore have no power to vary my previous costs order or to make new costs orders to suit the plaintiff’s application.  Hence, I cannot entertain the plaintiff’s application for costs orders under O.62 rr. 7 and 8.

Decision on application for stay

10.  I now come to the application for stay of execution of my order.  The plaintiff brought this action against the defendant for damages.  The facts of this case and the reasons of my decision are contained in my decision dated 30 November 2007 and I do not wish to repeat them here. 

11.  I upheld Master Yu’s decision on two grounds.  On the first ground, I referred to Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 32 and held that the Statement of Claim did not disclose any of the necessary ingredients for an action against the defendant for misfeasance in public office.

12.  On the second ground, I held that the plaintiff could not succeed in this action as the grounds he advanced in this action were the same grounds that he had used before the Administrative Appeal Tribunal in his appeal against the defendant herein and those grounds had been rightly dismissed by the Tribunal.

13.  The plaintiff referred me to the decision of Star Play Development v Bess Fashion Management Co. Ltd, HCA 4726/2001 where Ma J (as he then was) set out in paragraphs 6 to 10 the applicable principles for consideration of stay of execution.  He then referred me to his Amended Notice of Appeal and submitted that he had a strong appeal and a strong likelihood of success.  I would consider his grounds of the appeal briefly.

14.  His first ground was that I should not have treated the defendant as a public officer and it was wrong for me to have followed Tang Nin Mun.  It was therefore wrong for me to have considered whether he had a claim of misfeasance in public office against the defendant.  This ground further stated that the defendant was merely a corporation sole and could be sued for negligence and breach of duty.  The plaintiff could thus sue him on these other grounds rather than being restricted to the claim of misfeasance in public office. 

15.  I do not think it arguable that the defendant is not a public officer.  However, there is also no evidence of any negligence or breach of duty on the part of the defendant.  I do not see any basis for such claims to be made by the plaintiff against the defendant and I do not see any merit in this ground.

16.  The second ground alleged that it was wrong for me to rely on the reasoning of the Administrative Appeals Board in upholding the Master’s decision.  The ground stated that in relying on such reasoning, I had ignored many facts and evidence.  It further stated that there were many flaws in those reasoning.  But it did not point out the facts or evidence that I had ignored or the flaws of the reasoning that I had relied on.  This ground against is no good.

17.  The third ground was that I had ignored many facts and evidence that were submitted to me which revealed the plaintiff’s cause of action, his chance of success, and his action being bona fide and not an abuse of process.  It further said that those facts and evidence revealed the defendant’s negligence and breach of duty of care which led to his suffering from nervous shock.  However, there is again no indication of what fact or evidence that I had ignored.  This ground is again unhelpful.

18.  The fourth ground asserted that the merits of the claim must be examined by looking at further facts and evidence to be obtained in discovery and such facts and evidence would reveal the defendant’s true motives in issuing an enforcement notice to the plaintiff under the Personal Data (Privacy) Ordinance which notice contained many errors and should not have been issued.

19.  However, on the case as pleaded by the plaintiff, there was no reasonable cause of action and no discovery should be undertaken.  If discovery were to be used as a means to require the other party to reveal anything outside the scope of the case as pleaded by the plaintiff, it would be allowing the plaintiff to embark on a fishing expedition and is wrong.  This ground also does not mention what is the true motive of the defendant in issuing the notice or what are the errors as contained in the notice.

20.  The fifth ground argues that if the Statement of Claim was defective in not containing particulars for any cause of action, the defendant should apply for particulars and not to apply to strike it out.  It further says that the possibility of the plaintiff amending the Statement of Claim should also not be ruled out.

21.  However, the plaintiff’s pleaded case suffered not the want of particulars but the want of a cause of action.  A claim that has no basis cannot be cured by particulars.  The argument of amendment of the Statement of Claim also does not help as it is just an empty assertion.

22.  The sixth ground asserted that my decision was self-conflicting.  It referred to my view that the exemption under section 61 of the Ordinance might have applied to the plaintiff’s direct disclosure to the press of the personal data in question and the recorded conversations.  It also referred to my agreement with the Appeal Board that his collection of the personal data was not exempted.  It therefore asserted that I was self-conflicting. 

23.  I think the plaintiff’s reasoning is that if the disclosure of the data could be exempted, the collection must be exempted as well.  I was therefore conflicting with myself when I on the one hand agreed with the Board’s finding that his collection of data was not exempted, but on the other hand I said that his disclosure of the same data could be exempted.

24.  This is a mis-reading of my decision.  I agreed with the Appeal Board that the plaintiff’s collection of the data was not exempted.  The section 61 exemption was only raised by the plaintiff belatedly before the Board and the Board rightly declined to deal with it.  I merely said in my decision that the section 61 exemption might have applied to his direct disclosure of data to the press, but that exemption did not cover his other use of the data on the internet servers and the internet which were subject to the defendant’s enforcement notice. 

25.  I also did not say that the section 61 exemption would have exempted his collection of the data.  The Appeal Board decided that his collection of data was not covered by any exemption, because the Board considered all his uses of the data after the collection.  The Board did not confine its consideration to his direct disclosure of the data to the press.  This ground of appeal therefore cannot stand if my decision is properly read.

26.  The plaintiff complained in the last ground that the Appeal Board had not even heard the recorded conversations available on the internet and the conversations were therefore not evidence before the Appeal Board.  The ground went on to say that the Board was therefore wrong to have found the plaintiff’s use of the conversations on the internet contravened Data Protection Principle 3.  It then concluded that I was also wrong in agreeing with this finding of the Board.

27.  This ground is based on a mis-reading of the Board’s decision.  The Board no doubt did not hear the recorded conversations as there was no dispute that the conversations themselves would not have revealed the personal data in question.  It was therefore unnecessary to listen to the conversations.  However, the conversations did not stand on their own.  As the Board rightly pointed out in paragraphs 42 to 48 of its decision, the recorded conversations were an integral part of the information on the websites or the messages on the forums.  The information on the websites and the forums contain the personal data in question which clearly referred to the recorded conversations as being between the plaintiff and the person whose personal data was in question.  In the light of these facts, it was indeed unnecessary for the Board to listen to the conversations as nothing more of relevance would the Board have obtained by listening to them.  I therefore do no see any merit of this ground of appeal.

28.  The plaintiff also submitted that he is impecunious and is out of employment.  He is relying on the Comprehensive Social Security Assistance Scheme.  He therefore cannot pay the taxed costs to the defendant.  He further submitted that if I do not stay the execution of my order, the defendant can execute the taxed costs against him and that would bring him financial ruin or bankruptcy.

Decision

29.  In the light of my discussion on the grounds of appeal, I do not think the plaintiff has any real chance of success on the appeal.  The plaintiff has also delayed the application for a hearing date for the appeal.  He delayed it for 5½ months.  If he should have prosecuted the appeal with diligence, there may not be the need for this application as the appeal might have been or will very soon be heard.  For the above reasons and despite his impecuniosity, I will not stay the execution of my order.

30.  I therefore dismiss this application.  I also make an order nisi that the costs of this application be costs in the appeal.