A v. ADMINISTRATIVE APPEALS BOARD

HCAL 221/2017

[2018] HKCFI 2402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 221 OF 2017

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D E C I S I O N

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1.  This is the Applicant’s application for an extension of time to apply for leave to appeal against the order of Zervos JA dated 4 September 2018 (“the Second Leave Order”): (i) refusing to extend time to the Applicant to apply for leave to apply for judicial review, and (ii) dismissing her application for leave to apply for judicial review, of the decision of the Administrative Appeals Board (“the AAB”) dated 21 February 2017.

2.  The background facts are fully set out in the Decision of Zervos JA dated 4 September 2018 (“the Substantive Decision”) and will not be repeated here.

3.  The following matters should be highlighted:-

(1)  The Applicant’s underlying complaint is that PathFinders wrongfully disclosed her personal data, which she had previously provided to them, to her parents, who were sued by the Applicant in the High Court (Family Division) in London for custody of her son whom the Applicant alleged had been abducted by her parents.

(2)  On 9 February 2015, the Applicant made her first complaint against Pathfinders to the Privacy Commissioner for Personal Data (“the PCPD”).

(3)  On 30 April 2015, the PCPD rejected the Applicant’s complaint (“the First PCPD Decision”).

(4)  The Applicant appealed against the First PCPD Decision to the AAB, which dismissed her appeal on 17 October 2016 (“the First AAB Decision”).

(5)  The Applicant applied for leave to apply for judicial review of the First AAB Decision in HCAL 244/2016, which was rejected by Zervos J (as he then was) on 7 April 2017 (“the First Leave Order”).

(6)  The Applicant’s application for an extension of time to appeal against the First Leave Order was dismissed by the Court of Appeal on 21 July 2017 in HCMP 985/2017.

(7)  In the meantime, on 17 April 2015, the Applicant lodged a second complaint against Pathfinders to the PCPD, which was rejected by the PCPD on 11 March 2016 (“the Second PCPD Decision”).

(8)  The Applicant appealed against the Second PCPD Decision to the AAB, which dismissed her appeal on 21 February 2017 (“the Second AAB Decision”).

(9)  On 22 May 2017, the Applicant applied for leave to apply for judicial review of the Second AAB Decision in these proceedings.

(10)  On 28 February 2018, the Applicant’s civil action, commenced in the District Court in DCCJ 3793/2016, against, inter alia, PathFinders, for loss and damage allegedly caused by their breaches and contraventions of Data Protection Principles 3 and 4 was struck out by Deputy District Court Judge C Chow on the ground of res judicata.

(11)  On 4 September 2018, Zervos JA refused to extend time for the Applicant to apply for judicial review of the Second AAB Decision, and dismissed her application for leave to apply for judicial review (ie, the Second Leave Order).

(12)  On 18 September 2018, the Applicant took out a summons seeking leave to appeal against the Second Leave Order.  That summons was dismissed by Zervos JA on 27 September 2018.

(13)  As stated in Zervos JA’s written decision dated 27 September 2018 (“the Leave Decision”), the Applicant could make a further application to the Court of Appeal for leave to appeal, but that had to be done within 14 days from the date of the refusal, ie on or before 11 October 2018.

(14)  The Applicant’s present summons was taken out on 12 October 2018, seeking an extension of time to enable her to apply to the Court of Appeal for leave to appeal.

4.  It is not entirely clear whether the Court of First Instance has power to grant an extension of time in such circumstances, since the present application is for an extension of time to enable the Application to apply to the Court of Appeal for leave to appeal against an interlocutory order made by the Court of First Instance under Order 59, rule 2B(3), which does not seem to come under Order 59, rule 15 which relates to an application to extend or abridge the time prescribed for “serving notice of appeal under rule 4 or for making application ex parte under rule 14(3)”.  Since I have not heard any argument on this matter, I shall assume that I have power to extend time and deal with the application on the merits.

5.  Further, I shall concentrate on the merits of the Applicant’s proposed appeal in view of the fact that the delay is a short one.  On the merits of the proposed appeal, the following finding made by Zervos JA in the Substantive Decision are significant:-

(1)  All the above mentioned proceedings concerned the same subject matter and allegations, and involved the same parties (see paragraph 32 of the Decision).

(2)  The Applicant was guilty of undue delay in applying for leave to apply for judicial review, on which ground alone Zervos JA would refuse the application (see paragraph 40 of the Decision).

(3)  The application was, in any event, not reasonably arguable.  As stated in paragraph 65 of the Decision:-

“The applicant’s complaint amounts to no more than she does not agree with the decision of the AAB, but that is not a basis for judicial review. It was open to the AAB to decide the issues as it did and make the findings that it made.”

6.  The present application is not supported by any affirmation going to the merits of the proposed appeal, nor any draft grounds of appeal.  Her four proposed grounds of appeal in support of the previous application for leave to appeal were dealt with by Zervos JA in the Leave Decision.  At the hearing before this court on 26 October 2018, the Applicant raised the further argument that the AAB had no power to interpret the relevant provisions of the Personal Data (Privacy) Ordinance, Cap 486, but must first seek the court’s opinion on the true interpretation of those provisions before making its decision.  I am unable to accept this argument.  If the AAB makes an error of law, it can of course be corrected by the court in an application for judicial review.  This does not mean, however, that the AAB has no power to interpret a statute for the purpose of determining an appeal before it.

7.  Overall, there is nothing in the materials before the court to show that there is any arguable ground of appeal against the Second Leave Order.  Accordingly, the Applicant’s summons dated 12 October 2018 is dismissed, with no order as to costs.