EASTWEEK PUBLISHER LTD. v. PRIVACY COMMISSIONER FOR PERSONAL DATA

CACV 331/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 331 OF 1999

(ON APPEAL FROM HCAL 98/1998)

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J U D G M E N T

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Ribeiro JA:

1. On 28 March 2000, this court, by a majority, allowed Eastweek's appeal from the decision of Keith JA (sitting as an additional judge of the Court of First Instance) in which he upheld the Commissioner's decision against Eastweek under the Personal Data (Privacy) Ordinance.

2. This court made an order nisi that the 1st applicant's costs of the appeal and in the Court of First Instance should be paid by the Commissioner.

3. The Commissioner now applies for that order nisi to be varied.

4. The course followed in the proceedings below was unusual. Keith JA was clearly troubled :-

" ...... as to the scope of the Ordinance and the Commissioner's powers, and where the line between the protection of personal data and the protection of privacy is to be drawn."

He had real doubts as to whether the photograph of the complainant amounted to data about her, and as to whether the data protection principles were engaged. He adjourned the case to enable full submissions to be made on these matters. However, at the resumed hearing, counsel appearing for Eastweek adopted what was described as "a neutral stance" on whether those principles were engaged and made no submissions on the point.

5. Keith JA did not consider the matter resolved but gave judgment for the Commissioner on the points which were argued.

6. This unusual course of events was reflected in the costs order made below. Having found for the Commissioner, Keith JA ordered that the costs of the application be paid by the applicants to the Commissioner save that there should be no order as to the costs of the hearing on 17 September 1999, i.e. the adjourned hearing.

7. Eastweek succeeded on appeal on the very point that had given rise to the judge's doubts, namely, that the Ordinance was not engaged because there had been no act of personal data collection in relation to the complainant.

8. The Commissioner accepts that Eastweek should have its costs in the Court of Appeal and also the costs of the first day's hearing (on 15 March 1999) before Keith JA. However, he submits that he should not bear the costs of the second day's hearing.

9. Having held against Eastweek, it would have been open to the judge to order Eastweek to pay all the costs. The hearing had been adjourned to afford it the opportunity to argue for the non-application of the Ordinance but, since Eastweek had chosen not to avail itself of that opportunity, the costs, including those of the adjourned hearing, could have been ordered to follow the event.

10. However, the judge decided instead to make no order as to costs largely because of his "scepticism" as to whether the Commissioner was correct in his assertion that the data protection principles were engaged. He stated:-

"I confess that I remain extremely sceptical about the correctness of the Commissioner's view, but since neither party wished to argue that the photograph did not amount to data, and because I have not had the benefit of any argument in support of my provisional view, I do not think that I should consider the matter further. The consequence is that, although I have real doubts as to whether the photograph of the complainant amounts to data about her, and although I therefore have real doubts as to whether the DPPs were even engaged, I have concluded that I should not give effect to these doubts."

Accordingly, he decided to treat the second day's costs as having been incurred as the result of an initiative from the bench which left the issue unresolved. In such circumstances, he decided to order each party to bear its own costs. He stated :-

" ...... since a second day hearing was only required because I wanted to hear representations on whether the photograph amounted to 'data' the order nisi must include an order that there be no order as to the costs of the hearing on 17th September."

In my view, the judge was quite entitled to make such an order in the exercise of his discretion. Having heard today's submissions I am of the view that this court should not disturb that order and accordingly that the costs order nisi should be varied so that in effect each party should bear its own costs in relation to the 17 September hearing. Godfrey VP has indicated an appropriate form of words which ought to be adopted.

11. This result accords with an open proposal that had been made by the Commissioner to Eastweek with a view to resolving this question without the necessity for a hearing. However, Eastweek did not accept that proposal so that the costs of this appeal had to be incurred. In the circumstances, it is my view that the costs of this appeal must be borne by Eastweek.

Wong JA:

12. I agree.

Godfrey VP:

13. I also agree.