A v. ADMINISTRATIVE APPEALS BOARD AND ANOTHER

HCMP 985/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 985 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 244 OF 2016)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Zervos J made on 7 April 2017 (“the Decision”), by which the judge refused leave to the applicant to apply for judicial review in respect of a decision of the Administrative Appeals Board given on 7 October 2016 (“AAB” and “the AAB Decision”).  The AAB had dismissed the applicant’s appeal against a decision of the Privacy Commissioner for Personal Data made on 30 April 2015 (“PCPD” and “the PCPD Decision”).

2.  By the PCPD Decision, the PCPD exercised his power under section 39(2)(d) of the Personal Data (Privacy) Ordinance, Cap 486 (“the Ordinance”) not to pursue further a complaint lodged by the applicant in February 2015 as he is of the opinion that having regard to all the circumstances of the case, it is unnecessary in that after preliminary inquiry there is no prima facie evidence of any contravention of the requirements of the Ordinance.  Of relevance to the complaint was Data Protection Principle 3 (“DPP3”) in Schedule 1 to the Ordinance, which provides that personal data should not be used (including disclosure) for new purpose without the prescribed consent of the data subject.

3.  The complaint lodged by the applicant was against Pathfinders Limited (“Pathfinders”) in respect of the disclosure by its director and co-founder (“M”) to the applicant’s parents of the Prosecution Bundle in relation to her criminal trial in the District Court and the Summary of Events prepared by M.  The applicant had sought assistance from Pathfinders, an approved charity to assist migrant women in distress and their children in Hong Kong.  M had been designated her principal case officer for a period.

4.  Pursuant to Order 59 rule 14A of the Rules of the High Court, the Court of Appeal may direct an interlocutory application to be dealt with on paper.  We have taken into account the nature and degree of complexity of this application and the papers involved, bearing in mind the underlying objectives in Order 1A, in particular the court should promote a sense of reasonable proportion and procedural economy in the conduct of proceedings, to ensure fairness to the parties, and to ensure that the resources of the court are distributed fairly.  We do not think it useful to hold a hearing and we exercise our discretion to deal with this application on paper.

5.  The applicant has been acting in person throughout.

Procedural history

6.  The applicant exercised her right of appeal against the PCPD Decision, pursuant to section 39(4) of the Ordinance.  It was heard over two days on 23 February and 5 May 2016.  The AAB Decision of 7 October 2016 set out in considerable detail the factual background, the reasons for the PCPD Decision, the arguments advanced by the applicant, and its reasons for dismissing her appeal.  In summary, it was held by the AAB that Pathfinders was not a “data user” as defined by section 2 of the Ordinance at the material time and there was no prima facie evidence that Pathfinders was liable for the actions of M in disclosing the Prosecution Bundle and the Summary of Events to the applicant’s parents in M’s email of 2 August 2014.

7.  The applicant filed her Notice of application for leave to apply for judicial review on 30 December 2016.  She did not specify the grounds of application or the relief sought in that form.  She filed an affirmation the same day, which simply attached three exhibits.  Exhibit A set out the reliefs she sought (an order for mandamus, prohibition or certiorari, an injunction, a declaration, a claim for damages) and the grounds of application which ran from page 2 to page 14.  She stated in that document that the application was made in addition by her son, a minor, as an “interested party”.  But her son did not appear in Form 86 as an applicant and, as a person under disability, he may not bring proceedings except by his next friend.  We reject any assertion that the application for leave to apply for judicial review was also brought by the applicant’s son.  Exhibit B was a copy of the AAB Decision.  Exhibit C was headed “Appeal Bundle Pages” and contained 22 pages.  They would appear to be a selection of documents from the appeal bundle used in the AAB hearing.

8.  At the applicant’s request, Zervos J held an oral hearing on 5 April 2017 to consider the application.  He handed down the Decision on 7 April refusing leave, having come to the view that it cannot be said that the AAB Decision was either unreasonable or irrational and from his overall assessment of the applicant’s submissions and the papers filed with the court, he did not think her application reasonably arguable.

9.  The deadline for appeal against the Decision expired on 21 April 2017, as it is provided in Order 53 rule 3(4) that where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days.

10.  The present summons seeking extension of time to appeal against the Decision was dated 26 April 2017 and was filed on 27 April.

11.  The applicant deposed in her affirmation of 27 April 2017 that she attended the High Court on 21 April 2017 and went to the room on the Ground Floor for filing at 5:10 pm, that the staff after checking the documents informed her the payment office was closed and she could not file her papers.  She stated that as she had “further commitments in work” that gave her no opportunity to attend the High Court until 27 April, she was not able to file the necessary documents until that day.

12.  The documents lodged by the applicant on 27 April 2017 were the summons of this application, her affirmation of two pages with six exhibits.  Exhibit 1 was a copy of the Decision.  Exhibit 2 was described as “Outline of the Judiciary [sic] Review” and consisted of 57 pages.  We would have more to say about Exhibit 2.  Exhibit 3 was a copy of the AAB Decision.  Exhibit 4 was described as “the PCPD Decision” of six pages but were in fact two letters of the PCPD to the applicant and Pathfinders both dated 5 March 2015, and the first page of a letter dated 2 April 2015 from Pathfinders’ solicitors to the PCPD.  We have located a copy of the PCPD Decision dated 30 April 2015 with enclosure in Exhibit 5 at pages 39 to 47.  Exhibit 5 was described as “Appeal Bundle” and consisted of 674 pages.  This would appear to be the appeal bundle she used in the AAB hearing.  Exhibit 6 is a one-page document described as “Email attachment appendix 1” being email exchanges between the applicant and M on 16 April 2014.

13.  On 28 April 2017, the Registrar of Civil Appeals gave directions by letter for the conduct of this application.  Paragraph 3 stated as follows: “Except for evidence for explaining the delay in lodging the intended appeal, the applicant may not include in the application bundle any evidence that were not adduced before the court below unless leave to do so is given by the Court of Appeal upon formal application.”  No formal application for this purpose was taken out by the applicant.

14.  On 23 May 2017, the Registrar of Civil Appeals gave directions by letter that as Exhibit 2 to the applicant’s affirmation contains her 57-page long written representation in support of her application, it shall be treated as her written submissions and she may not lodge any further written submission or document in the application.

Factual background

15.  We do not propose to recite the factual background, which has been set out in some detail in the AAB Decision at §§2 to 25 and in the Decision at §§5 to 22.

New evidence

16.  Most of the evidence the applicant sought to place before the Court of Appeal in this application (Exhibit 4 of six pages, Exhibit 5 of 674 pages and Exhibit 6 of one page) were not adduced before the court below.

17.  As we have mentioned, no formal application has been made for leave from the Court of Appeal to adduce this new evidence.

18.  There was repeated mention in the applicant’s submission in Exhibit 2 that she is a litigant in person, that she had the understanding she should file “very brief selected documents” at the stage of the application for leave to apply for judicial review in the Court of First Instance and did not understand she would need to adduce all the evidence and submissions including the appeal bundle in the AAB hearing.  The whole bundle was over 800 pages.  She considered it would be appropriate to adduce such further evidence after leave was granted to apply for judicial review and then she would give a full account of the errors made by the AAB.  She contended that if the judge was unable to make a right and proper decision based on the documents she submitted, he should have adjourned the hearing to give her the opportunity to submit further evidence.

19.  We firmly reject her contentions.

20.  The rules for adducing evidence in the court below and further evidence on appeal apply to all litigants, whether they act in person or are legally represented. In an application for leave to apply for judicial review, it is incumbent on the applicant to file an affidavit verifying all relevant facts intended to be relied on and exhibit the documents that are relevant and material to the application.  It is not for the judge to instruct or guide an applicant what appropriate evidence should be adduced in support of an application.  Further, we must disabuse the applicant of her misapprehension that the whole of the appeal bundle used in the AAB hearing should be adduced as evidence in the application for leave to apply for judicial review.  An application for judicial review of a decision of the AAB is not an appeal, nor does it operate as a rehearing on the merits.  There is no good reason why the court should be burdened with a complete set of the AAB appeal bundle.

21.  The Court of Appeal does not receive new evidence not adduced in the court below unless the new evidence meets these three requirements: (1) it could not have been obtained with reasonable diligence for use at the trial; (2) if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) it must be such as is presumably to be believed, in other words it must be apparently credible though it need not be incontrovertible (Ladd v Marshall [1954] 1 WLR 1489).

22.  In an appeal in judicial review proceedings, it was held in Dr Kwong Kwok Hay v Medical Council of Hong Kong (No 2) [2007] 4 HKC 446 that where the interests of justice required, the court had a discretion to depart from the Ladd v Marshall principles where: (1) the circumstances were wholly exceptional; (2) it must be demonstrated that a strong public interest existed, beyond making a mere general reference to the public interest; and (3) the party seeking the exercise of discretion was able to show cogently that exceptional circumstances existed.

23.  Being a litigant in person and being under a misapprehension as to the evidence required to be adduced in the leave application do not amount to exceptional circumstances, let alone wholly exceptional circumstances.  There is no basis to depart from the Ladd v Marshall principles.  The first requirement in Ladd v Marshall (the new evidence could not have been obtained with reasonable diligence for use in the court below) is obviously not satisfied here.  It is doubtful that the second requirement (the new evidence would have an important influence on the result of the case) is met.  There is no prospect that the new evidence would be allowed to be adduced on appeal, if we should decide to grant the applicant extension of time to appeal.

24.  It is not necessary to consider the new evidence as such evidence would not be allowed to be adduced on appeal.  For completeness, we have nevertheless considered the new evidence on a de bene esse basis in deciding whether we should grant an extension of time to appeal.

The applicant’s submissions

25.  Exhibit 2, which was directed by the Registrar of Civil Appeals to be treated as the applicant’s submissions, is divided into the following parts.  Pages 1 to 2 served as an introduction and overall summary.  Pages 3 to 32 contained a narrative of her grounds of appeal against the PCPD Decision in the AAB, her extensive submissions to the AAB on fact and law, an account of the hearing in the AAB, her comments on the submissions of Pathfinders in the AAB, and her comments on the evidence placed before the AAB. Pages 33 to 49 would seem to correspond with Exhibit A, which was in effect the submissions placed before the judge on the grounds of her application for leave to apply for judicial review.  Pages 50 to 57 contained her response to specific paragraphs of the Decision.

26.  We do not think the applicant has advanced proper grounds of appeal against the Decision in her rambling and repetitive submissions.

27.  The constant theme of the applicant, in all the submissions she made to the various tribunals (the AAB, the judge and this court), may be summarised as follows:

(1)   The AAB should find there was evidence to show that the Prosecution Bundle was received in March 2014 and not August 2014 and it was received by M in her capacity as the principal case officer of the applicant.

(2)   On that basis, the AAB should find Pathfinders a data user and vicariously liable for the release and disclosure of information by M at a later date in August 2014.

(3)   The Summary of Events was prepared by M based on personal data held by Pathfinders (and the AAB failed to make findings in this respect).  Even if the Summary of Events was released by M in her personal capacity, Pathfinders had a duty to secure the personal data and was liable for allowing and facilitating M’s access to the personal data in breach of Data Protection Principle 4 (“DPP4”), which provides that all practicable steps shall be taken to ensure that personal data held by a data user are protected against unauthorised or accidental access, processing or use.

The legal principles

28.  The Court of Appeal has discretion to grant or refuse an extension of time for appealing.  The factors usually taken into account are: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if time for appealing is extended; and (4) the degree of prejudice to the potential respondent if the application is granted (Hong Kong Civil Procedure 2017, vol 1, §59/4/9).

29.  In Secretary for Justice v Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125, the Court of Appeal held that: (1) where the delay was inexcusable although insubstantial, the party seeking an extension of time must show a real prospect of success on merits; and (2) although the existence of prejudice to a would-be respondent was a ground for refusing an extension of time, the absence of prejudice to a would-be respondent is not a ground for extending time.

30.  The delay in this instance was only six days and could be regarded as insubstantial.  The applicant said she had attempted to file the papers for the application in the afternoon of the last day for filing.  But she did not give particulars in her affirmation what were the “further commitments in work” that gave her no opportunity to attend the High Court over the next few days to file the documents.  As we are dealing with this application on paper and she might or might not have a good explanation regarding the “further commitments in work” had particulars been provided, we will not take a severe view in this instance and just treat the delay as excusable.  So the applicant is required to satisfy the court that her appeal has merits on the lower threshold of reasonable prospects of success, not the higher standard of real prospects of success.

31.  There is a clear and well-established distinction between a tribunal exercising appellate jurisdiction to rehear the case on the merits and one that is exercising supervisory jurisdiction of administrative action by public bodies on review.  And this must be borne firmly in mind in considering the merits of this intended appeal.

32.  As stated in the Decision at §46, a court in judicial review proceedings performs a supervisory role concerned with the legality of the decision of the public authority under review.  It is not a reconsideration of the merits of the decision.  It is not concerned with whether it would have come to a different decision, for it may be legitimately open to the decision maker to have decided more than one way.  In Li Wai Hung Cesario v Administrative Appeals Board [2015] 5 HKLRD 575, also a case of judicial review concerning the decision of an Administrative Appeals Board, Zervos J expressed similar views with even greater clarity at §40:

“Whilst the grounds give the appearance of seeking to address certain matters in relation to the decision on the basis of illegality or unreasonableness, they descend into argument on the merits of those matters in order to put an alternative view. It is not a proper function in judicial review proceedings to consider the merits of the matter under challenge for that is the function of the relevant decision maker. Judicial review is a supervisory jurisdiction which reviews administrative action by public bodies, including inferior courts and tribunals, and differs from an appellate process in that it is not generally concerned with whether the decision in question was right or wrong, but with the quality of the decision-making process by ensuring that it was lawfully reached in accordance with proper procedures and was not unreasonable in those circumstances: see Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155, 1173–1174. It is under the various classifications of judicial review that in certain limited instances factual aspects of the decision may be reviewed, such as, where there has been a sufficient mistake of fact giving rise to unfairness or a failure to take account of relevant considerations or the taking into account of an irrelevant consideration. Care needs to be taken to ensure that the grounds properly address the public law function under review and not steer into a review of the merits of the decision.”

33.  In contrast to judicial review proceedings, the appeal to the AAB is truly appellate and a rehearing on the merits.  Furthermore, the AAB has extensive powers under section 21(1) of the Administrative Appeals Board Ordinance, Cap 442 to receive and consider any material, whether by way of oral evidence, written statements, documents or otherwise, whether or not such material would be admissible in evidence in civil or criminal proceedings.  It may confirm, vary or reverse the decision that is appealed against.

Our decision

34.  The AAB found after a two-day hearing that there is no evidence to support any allegation that Pathfinders collected and/or received the Prosecution Bundle in March 2014; and that it is more probable it was the legal team representing the applicant in her criminal trial who had received the Prosecution Bundle and had held, processed or used the data in it before and after the criminal trial (AAB Decision, §§44 and 50(d)).

35.  The AAB also found although it is undisputed that the Prosecution Bundle fell into the hands of M in August 2014 so that she could prepare the Summary of Events, the working relationship between M and the applicant had already ended in August.  The AAB also took into account the applicant admitted in her letter of 3 March 2015 to the PCPD that M assisted the applicant’s parents in her personal capacity.  They rejected the applicant’s contention that because M was the co-founder and a director of Pathfinders, Pathfinders could be said to be in control of the holding, processing or use of the Prosecution Bundle and the data contained therein (AAB Decision, §45).

36.  The AAB further found there is no evidence to the effect that M had the express or implied authority of Pathfinders to disclose the Prosecution Bundle and the Summary of Events to the applicant’s parents in her email of 2 August 2014 and the evidence is against the existence of such express or implied authority for the reasons given (AAB Decision, §50).  Further, there is no evidence that M had any ostensible authority to disclose such information and the overwhelming evidence is that M did so in her personal capacity (AAB Decision, §51).

37.  Having considered the new evidence de bene esse, including the appeal bundle at the AAB hearing, we agree entirely with the judge that the above findings were legitimately open to the AAB to make on the evidence.  The decision of the AAB was lawfully reached in accordance with proper procedures and was clearly not unreasonable in all the circumstances of the case.  The fact that the applicant’s evidence and submissions to the AAB were to the contrary is quite simply insufficient to render the findings of the AAB irrational or unreasonable.  The submissions of the applicant to this court are, by and large, a re-run of her arguments rejected by the AAB.  In the judicial review proceedings, the court should steer clear of a review of the merits of the decision as it is not a proper function of the court to consider the merits of the matter under challenge for that is the function of the AAB.

38.  We make two additional points.

39.  First, it is not quite right for the applicant to say that the AAB did not address her allegation M used the personal data held by Pathfinders in preparing the Summary of Events.  It was found in §45 of the AAB Decision that M used the personal data in the Prosecution Bundle to prepare the Summary of Events.  But, as mentioned above, the AAB found that Pathfinders did not hold the Prosecution Bundle.

40.  Second, the AAB held that the allegation that Pathfinders had a duty to secure the personal data and was in breach of DPP4 in allowing and facilitating M’s access to the personal data was a new allegation not covered by the applicant’s complaint to the PCPD and the PCPD Decision.  Hence, this was not a competent ground of appeal and the AAB was entitled to ignore it.  In any event, on the reasoning of the findings made by the AAB in respect of the applicant’s complaint (in particular that Pathfinders was not a data user), which was equally applicable to the new allegation concerning breach of DPP4, an appeal premised on this new allegation would likewise be dismissed (AAB Decision, §56(a)).  This finding was one legitimately open to the AAB to reach and there is no basis that it could be challenged as unreasonable or irrational.

41.  For the above reasons, the intended appeal against the Decision is quite hopeless and would have no reasonable prospect of success.  The judge is entirely correct in holding that the application for judicial review is not reasonably arguable and leave to make that application should be refused.  We therefore exercise our discretion to refuse an extension of time to appeal against the Decision and dismiss this application.  As no other party is involved, we make no order as to the costs of this application.