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

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D E C I S I O N

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1.  Master Yu struck out the plaintiff’s claim on 11 July 2007.  The plaintiff now appeals.

2.  The plaintiff claimed damages from the defendant.  The pleaded cause of action is damages for the annoyance, frustration, nervousness, anxiety and depression that were allegedly caused to him by the defendant’s mal-administration, errors in investigation, judgment and decision.  All these arose from a complaint by one Mr Tam to the defendant.  Mr. Tam complained that the plaintiff had collected and disclosed Mr Tam’s personal data on the internet and had thus breached the Personal Data (Privacy) Ordinance, Cap. 486 (hereinafter called “the Ordinance”).  The defendant investigated the complaint and as a result issued to the plaintiff an enforcement notice pursuant to section 50 of the Ordinance. 

Background

3.  The plaintiff used to be a term lecturer of the Vocational Training Council (hereinafter called “the Council”) and Mr Tam was his head of department.  The dispute arose from a conversation he had with Mr Tam during lunch on 26 October 2005.  In the conversation, Mr Tam discussed with him about his performance.  Mr Tam also told him that Mr Tam himself had written substantial parts of projects or assignments for the students to help them complete the tasks.  Unbeknown to Mr Tam, the plaintiff had this conversation recorded.  The plaintiff then uploaded two versions of the recorded conversation (hereinafter called “the Recorded Conversation”) onto some internet servers in Hong Kong and the USA.  One was a full version and the other was a shortened version.  He later informed the press about the Recorded Conversation and the press duly reported on it on 23 November 2005.  He also wrote an article and posted it on two websites in the internet.  The title of the article was “您們要一個怎樣的香港？”  (“What sort of Hong Kong do you want?” — Translation)  (hereinafter called “the Article”).  He stated the name, job title and employer of Mr Tam in the pre-amble at the top of the Article.  The Article also referred to a press report on the Recorded Conversation.  There then followed four hyperlinks and a direction that the Recorded Conversation could be downloaded and saved.  The hyperlinks led to the servers in Hong Kong and the USA, which contained the Recorded Conversation.  On 26 November 2005, the plaintiff further posted in an internet forum certain messages with hyperlinks to the websites that contained the Article.

The Internal Investigation of the Council

4.  As a result of the press reports and a news article e-mailed by the plaintiff to all the staff of the school in which he taught, the Council quickly set up an Independent Investigation Panel to investigate whether Mr Tam had indeed written up projects/assignments for his students.  The Panel conducted internal hearings and interviewed 26 persons who included Mr Tam himself, his colleagues, his current and former students.  In addition, the Panel also reviewed the assignment reports handed in by Mr Tam’s student of the 2003/2004 final year.  Mr Tam had supervised these students in compiling these reports.  At the Panel’s enquiry, Mr Tam on legal advice did not admit to the Panel that he was a party to the Recorded Conversation.  However, the plaintiff did not even attend the Panel despite two requests having been made to him.

5.  In addition to conducting interviews and reviewing assignment reports, the Panel also listened to the Recorded Conversation.  Since Mr Tam had on legal advice remained silent and the plaintiff did not turn up to the Panel to give evidence on the Recorded Conversation, the Panel did not have any evidence to decide the authenticity of the Recorded Conversation and it did not.

6.  Based on the evidence from the interviews and the examination of the assignment reports, the Panel found that there was no conclusive evidence to substantiate that Mr Tam had completed assignments for his students or had instructed his colleagues to do so or had pressurised his colleagues to pass all students.

7.  A copy of the Panel’s report was released to the plaintiff on 19 January 2006 but no copy was given to Mr Tam.  The plaintiff was given 7 days to appeal.  He did not appeal.

The defendant’s investigation and the enforcement notice

8.  Meanwhile, Mr Tam complained to the defendant that the plaintiff had wrongfully collected and disclosed his personal data on the websites and the internet forum.  The defendant then investigated into the complaint. 

9.  In the course of the investigation, the defendant asked the plaintiff for information and invited him to make representation.  However, the plaintiff provided no positive response.

10.  After the investigation, the defendant concluded that the plaintiff had collected the data unfairly as he did so by covert taping and Mr Tam was unaware of it.  The plaintiff thus appeared to have breached data protection principle 1 (hereinafter called “DPP1”).  The defendant however went on to conclude that the data could properly be regarded as matters concerning the management of the plaintiff’s personal affairs, i.e. his job as a lecturer of the Council.  The defendant therefore considered that under section 52(a) of the Ordinance, the plaintiff’s collection of data was exempt from DPP1.

11.  The defendant then considered whether the plaintiff’s use of the data had infringed data protection principle 3 (hereinafter called “DPP3”).  Though the plaintiff did not invoke any exemption for his disclosure of Mr Tam’s data, the defendant did consider whether the exemption in section 58(2) of the Ordinance would apply.  This exemption covers the use of personal data for prevention, preclusion or remedying of unlawful or seriously improper conduct or dishonesty or malpractice by persons.  There was no evidence before the defendant that the plaintiff had reported the alleged impropriety of Mr Tam to the Council.  Instead, the plaintiff had chosen the more intrusive alternative of the internet to expose Mr Tam’s personal data.  The plaintiff had also provided no information to show how the use of Mr Tam’s data for the purpose of section 58(1) of the Ordinance would be prejudiced if DPP3 should apply.  The defendant was of the view that there were less privacy intrusive means available to the plaintiff for achieving the purposes in section 58(2).  He therefore concluded that the exemption under section 58(2) did not apply.  For these reasons, the defendant concluded that the plaintiff had contravened DPP3.  He therefore issued the enforcement notice pursuant to section 50 of the Ordinance.

12.  The enforcement notice required the plaintiff to remove the Recorded Conversation from the websites, to remove the hyperlinks leading to the Recorded Conversation and the personal data of Mr Tam from the Article as well as from the messages posted in the internet forum.  The plaintiff refused to comply with the notice.  He lodged an appeal to the Administrative Appeal Board.  Shortly afterwards he commenced this action against the defendant.

The plaintiff’s appeal to the Administrative Appeal Board

13.  The plaintiff stated in his grounds of appeal that Mr Tam’s personal data had been publicized in newspapers in November and December 2005.  The Council had also included such data in its press release.  The data were also obtainable from the website of the Council as well as through the search engine on the internet.  He also stated that Mr Tam had been dishonest to the Council in that he did not admit that he was a party to the Recorded Conversation.  He also argued that Mr Tam’s personal data were not in the Article or in the Recorded Conversation but was only contained in the website that contained the Article.

14.  He later filed a large number of further grounds of appeal.  He argued that the defendant did not state what personal data was in the Recorded Conversation and did not refer to the personal data in his decision.  He denied having contravened DPP3.  He tried to rely for the first time on the exemption in section 61 of the Ordinance.  That section exempts the disclosure of personal data to the press if the person making disclosure has reasonable grounds to believe and reasonably believes that the publishing of the data is in the public interest.  He also tried to rely on the report by the Panel of the Council for the first time. 

15.  He appeared to argue that Mr Tam must have committed the seriously improper conduct as Mr Tam had actually admitted it in the Recorded Conversation.  For these reasons, he argued that the defendant should not have found against him at the end of the investigation and should not have issued the enforcement notice to him.

16.  The Administrative Appeal Board considered whether the defendant’s decision to issue the enforcement notice was correct.  It considered the following questions:

(a)	Whether the websites and forums with links to the Recorded Conversation contained personal data of Mr Tam and in making them available to the public contravened DPP3.
(b)	Whether secret recording of the Recorded Conversation contravened DPP1(2).
(c)	Whether the exemptions under section 52 and section 58 of the Ordinance apply.

17.  The definition of personal data in the Ordinance provides among other things that it is data from which it is practicable for the identity of the individual to be directly or indirectly ascertained.  The Recorded Conversation could only be accessed through the hyperlinks in the websites containing the Article or in the messages posted in the forum.  The Board thus found that the Recorded Conversation was an integral part of the information on the websites or in the messages in the forum.  Since the preamble of the Article contained Mr Tam’s personal data and there was a clear indication that the Recorded Conversation was of Mr Tam and the plaintiff, the Board found that it would be practicable to ascertain the identity of Mr Tam from the Recorded Conversation. 

18.  The Board also held that the availability of Mr Tam’s personal data in other public domains did not mean that the plaintiff could have used such data in the way he did without Mr Tam’s consent. 

19.  Contrary to the defendant’s finding, the Board also held that the plaintiff’s collection of Mr Tam’s personal data by covert recording was unfair.  The board came to this view because the plaintiff’s subsequent use of the data showed that he did not record the conversation with the bona fide intention of keeping a record of the meeting.  Even if the exemption of section 52(a) would apply to the keeping of the data, the Board decided that the plaintiff’s collection of the same was contrary to DPP1(2).

20.  On the plaintiff’s use of Mr Tam’s data, the Board found that the plaintiff’s uploading of the data onto the internet for disclosure to the public was without the consent of Mr Tam and was contrary to DPP3. 

21.  The Board also referred to the result of the investigation by the Panel of the Council which had been made public by the Council.  The Board did not find Mr Tam dishonest simply because he had on legal advice remained silent at the Panel’s investigation but chose to disclose to the defendant that he was a party to the Recorded Conversation.  There was no other evidence showing that Mr Tam or any other person had committed any seriously improper conduct or mal-practice to justify the plaintiff’s disclosure of Mr Tam’s personal data on the internet.

22.  The Board also found that the plaintiff had not shown that the purpose of remedying the seriously improper conduct or mal-practice would be likely to be prejudiced by the application of DPP3.  The Board thus held that the plaintiff had contravened DPP3 and the exemption in section 58(2) did not apply.  The Board further stated that the circumstances of the case fully justified the issue of the enforcement notice by the defendant to prevent the continuation of the plaintiff’s disclosure of Mr Tam’s data.

23.  The Board’s reasoning is clear.  The correctness of the defendant’s action should only be considered by reference to the evidence available to him.  The Board cannot be faulted in not considering any evidence or argument not presented by the plaintiff to the defendant as the appeal only concerned the propriety of the defendant’s conclusion and action.  The appeal was not supposed to be a reinvestigation of Mr Tam’s complaint.

24.  The plaintiff purported reliance on the section 61 exemption before the Board also came too late.  This exemption might have applied to his direct disclosure of Mr Tam’s personal data and the Recorded Conversation to the press in November, 2005.  The press had duly reported on the matter on 23 November 2005.  However, I cannot see how this exemption can apply to the plaintiff’s disclosure of Mr Tam’s personal data to the internet.  In any case, the Board rightly declined to deal with this ground, as the plaintiff had not raised it to the defendant.  The Board also pointed out that the defendant was not bound by the Ordinance to consider the exemptions at large. 

25.  The plaintiff also sought to introduce to the Board the investigation report of the Council’s Panel.  Mr Tam did not have a copy of this report.  The plaintiff also had not produced a copy of it to the defendant for consideration.  The Board therefore declined the report.

Did the plaintiff have any misapprehension?

26.  The plaintiff appeared to be aggrieved by the findings of the Panel which vindicated Mr Tam.  He seemed to think that Mr Tam had indeed committed the seriously improper conduct as Mr Tam had admitted to in the Recorded Conversation.  He also used this as the justification for his disclosure of Mr Tam’s data in internet. 

27.  He also appeared to think that the Panel had vindicated Mr Tam simply because of Mr Tam’s refusal to admit that Mr Tam himself was a party to the Recorded Conversation.  If that was the case, then the plaintiff had overlooked the facts that the Panel had interviewed Mr Tam, his colleagues and students and reviewed the assignments completed by his students before it vindicated Mr Tam. 

28.  If the Panel should have indeed vindicated Mr Tam for no other reason but the mere fact that it could not confirm whether Mr Tam was a party to the Recorded Conversation, then the plaintiff was partly responsible for this as he had failed to appear before the Panel to give evidence on the Recorded Conversation. 

29.  In any event, the report of the Panel showed that there were other reasons for vindicating Mr Tam.  In the light of these other reasons, even if the Panel should have found that the Recorded Conversation was indeed between Mr Tam and the plaintiff, it does not necessarily mean that the Panel would also have found that Mr Tam had committed what he had admitted to in the Recorded Conversation. 

30.  Furthermore, from paragraphs 12 and 14 of the defendant’s “Result of Investigation”, the Panel’s vindication of Mr Tam was not the reason for the defendant’s conclusion that the plaintiff had infringed DPP3.  The vindication of Mr Tam simply made the plaintiff’s continuous disclosure of Mr Tam’s personal data on the internet all the more unreasonable.  Hence, the plaintiff should not harbour any belief that the defendant would not have issued the enforcement notice if the Panel should have condemned Mr Tam.  In the premises, it was right for the defendant to have issued the enforcement notice against the plaintiff. 

This Appeal

31.  I now consider the plaintiff’s appeal against the decision of Master Yu.  Master Yu struck out the Statement of Claim on various grounds.  Before dealing with the appeal, which is by way of rehearing, I must warn myself that it is only in the plain and obvious case that the Court should strike out any pleading (see para. 18/19/4 of Hong Kong Civil Procedure 2008 hereinafter called “HKCP 2008”). 

32.  The plaintiff’s claim is for damages for the annoyance, frustration, nervousness, anxiety and depression caused by the defendant’s mal-administration and errors in investigation judgment and decision.  He also seeks to appeal to this court on the defendant’s “Result of Investigation” dated 16 August 2006.  He made an affidavit on 3 May 2007 to oppose the striking out application.  He repeated more or less the same grounds that he had advanced before the Appeal Board.  These grounds include those that he had not raised to the defendant but had only mentioned for the first time in his appeal to the Board.  The affidavit also showed that he was under the same misapprehension that if Mr Tam should have admitted to be a party to the Recorded Conversation, the Panel would have necessarily condemned Mr Tam, and that if the Panel should have found against Mr Tam, the defendant would also have come to the opposite conclusion and not have issued the enforcement notice.

Grounds for Striking Out

33.  I refer to the following discussions in HKCP 2008 on various grounds for striking out pleadings:

“	No reasonable cause of action or defence — A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v. British Medical Association [1970] 1 W.L.R. 688, CA).  So long as the statement of claim or the particulars (Davey v. Bentinck [1893] 1 Q.B. 185) disclose some cause of action, or raise some question fit to be decided by a judge or jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out (Moore v. Lawson (1915) 31 T.L.R. 418, CA; Wenlock v. Moloney [1965] 1 W.L.R. 1238; Brilliant Star Investment Ltd v. NZI International Acceptances Ltd [1989] 1 H.K.C. 375; Karex (H.K.) Ltd v. Fortune Talent Development Ltd [1999] 3 H.K.L.R.D. 397; [1999] 4 H.K.C. 203); Hong Kong Niiroku Ltd & Another v. Kyokuto Securities (Asia) Ltd & Others, unreported, HCA No. 4122 of 2000, March 18, 2002, [2002] H.K.E.C. 376.  (para. 18/19/6)
	‘Frivolous or vexatious’ — ‘The object of the rule is to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious, or obviously unsustainable’  (per Lindley L. J. in Att.-Gen. Of Duchy of Lancaster v. L. & N.W. Ry Co. [1892] 3 Ch. 274 at 277).  See also Day v. William Hill (Park Lane) Ltd [1949] 1 K. B. 632; Law v. Dearnley [1950] 1 ALL E. R. 124 and in Kellaway v. Bury (1892) 66 L. T. 603; Bean v. Flower (1895) 73 L. T. 371.  (para. 18/19/8)
	‘Abuse of the process of the Court’ — Paragraph (1)(d) confers upon the court in express terms powers which the court has hitherto exercised under its inherent jurisdiction where there appeared to be ‘an abuse of the process of the Court’.  This term connotes that the process of the court must be used bona fide and properly and must not be abused.  The court will prevent the improper use of its machinery, and will, in a proper case (e.g. where an action is absolutely groundless; where the claim is time-barred (Ronex Properties Ltd v. John Laing Construction Ltd [1983] Q.B. 398; Chiu Ming Sun v. Ma Wing Michael & Others [1986] H.K.C. 217); where the pleading is a sham or entirely without substance (Hutchvision Asia Ltd v. Asia Television Ltd [1993] 2 H.K.C. 510; or where a writ is issued before the parties are ad idem as to the intended grounds or subject of the claim (Tam Chi Kok v. Fok, unreported, HCA No. 1859 of 1992, June 12, 2003, [2003] H.K.E.C. 723), summary prevent its machinery from being used as a means of vexation and oppression in the process of litigation (see Castro v. Murray (1875) 10 Ex. 213; Dawkins v. Prince Edward of Saxe Weimar, Willis v. Earl Beauchamp (1886) 11 P. 59, per Bowen L. J. at 63).
	The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose considerations of public policy and the interests of justice may be very material.  (para. 18/19/10)”

Analysis

34.  The defendant submits that the statement of claim discloses no reasonable cause of action.  The essential ingredients for a claim of misfeasance in public office have been set out in Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 324.  The headnote of the report is a neat summary of the necessary ingredients.  It reads:

“

…an action for misfeasance in public office involved the allegation that a public officer acted in bad faith and dishonestly abused his powers with the subjective knowledge that his actions would probably injure the plaintiff.  There were three variants of subjective knowledge, namely where the officer: (a) specifically intended to injure the plaintiff; or (b) knew that in the ordinary course, injury to the plaintiff would follow, even though that was not his purpose; or (c) was recklessly indifferent as to whether or not his actions would cause the injury.  Further, the subjective knowledge must be directed towards the actual injury or type of injury suffered.  …  (Northern Territory of Australia v Mengel (1995) 69 ALJR 527, Garret v Attorney General [1997] 2 NZLR 332, Three Rivers District Council v Bank of England (No 3) [2000] 2 WLR 1220 applied).  (See pp. 326G - 329J.)”

35.  The statement of claim does not contain these ingredients at all.  It is not merely a case of lack of particulars.  For this reason, the statement of claim does not disclose a reasonable cause of action.  I therefore agree with Master Yu that the statement of claim and this action should be struck out on this ground.

36.  The defendant also argues that the plaintiff can only claim damages in judicial review proceedings under O.53 r.7 of the Rules of High Court.  The defendant therefore submits that this action is an abuse of process as it seeks to circumvent the leave requirement in O.53 r.3.  O.53 r.7 states:

“	7.	—	(1)	On an application for judicial review the judge may, subject to paragraph (2), award damages to the applicant if —
				(a)	he has included in the statement in support of his application for leave under rule 3 a claim for damages arising from any matter to which the application relates, and
				(b)	the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, it could have been awarded damages.”

Para. 53/14/34 of the HKCP 2008 also says:

“

Damages (r.7) — On an application for judicial review the court has power to award damages, provided (1) the applicant has included in his statement in support of the application for leave, a claim for damages and (2) the court is satisfied that if the claim had been made in an action begun by the applicant he could have been awarded damages (r.7(1)).  For these purposes O.18 r.12 applies so that the claim should be pleaded with the same particularity as an ordinary claim (r.7(2)).  See also s. 21K(4) of the High Court Ordinance, Cap. 4.

This rule avoids two sets of proceedings in respect of the same subject matter.  It does not create a new substantive right to damages for a public law wrong.  The rule could be used where a claim for damages for trespass for example will follow on naturally from a successful challenge to the legality of a warrant authorising entry on private property.”

37.  I agree with the view expressed in HKCP 2008.  I do not think claims for damages for mal-administration by public officials can only be made in judicial review proceedings and not by way of an action for damages in this court.  I do not agree that the statement of claim herein can be said to be an abuse of process simply because the plaintiff can also claim damages in judicial review proceedings.

38.  The defendant also argues that this action is a collateral attack of the Board’s decision dismissing the plaintiff’s appeal and that also amounts to an abuse of the process of the court.  However, the decision of the Board is not a judicial decision.  The plaintiff could not have claimed any damages before the Board.  Even if the plaintiff should have succeeded before the Board, he would not have any automatic right to damages.  An action for damages would still be necessary.  An appeal to the Board is also not a pre-requisite for any claim of damages against the defendant.  The purpose of an appeal to the Board is different from that of an action for damages in this court.  I do not see how a dismissal of an appeal by the Board can, as a matter of law, automatically bar the appellant from launching an action for damages in this court.  Each case has to be decided on its own merits.

39.  However, the defendant’s consideration of Mr Tam’s complaint and the reasons for issuing the enforcement notice to the plaintiff have been carefully scrutinized by the Appeal Board.  The Board did not find that the defendant had committed any mal-administration or any error in investigation, judgment or decision except that the Board also held that the plaintiff’s collection of Mr Tam’s personal data was not covered by any exemption whilst the defendant took a more lenient view.  The Board at the end found that the circumstances of the case fully justified the issue of the enforcement notice and there was nothing wrong for the defendant to have done so.

40.  In this action, the plaintiff is repeating the grounds that he had used before the Board.  In the light of the reasons of the Board for dismissing his appeal, I cannot see how this action can possibly succeed.  For this reason, this action is vexatious and is an abuse of the process of court.  The statement of claim and this action should therefore be struck out on these grounds as well.

Decision

41.  Since the statement of claim and this action should be struck out for the above reasons, I would dismiss this appeal.  I would also make an order nisi that the plaintiff do pay the defendant the costs of this appeal to be taxed.