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HCAL 125/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 125 OF 2012
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IN THE MATTER OF Application for Leave to Apply for Judicial Review (Order 53, rule 3 of the Rules of the High Court, Cap 4)
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BETWEEN
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CHAN HUI MAY KIU |
Applicant |
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and
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ADMINISTRATIVE APPEALS BOARD |
Putative Respondent |
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| Before: Hon Andrew Chan J in Court |
| Date of Hearing: 30 November 2012 |
| Date of Judgment: 24 December 2012 |
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J U D G M E N T
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A. Introduction
1. This is the applicant’s application for leave to apply for judicial review.
2. The decision under challenge is the determination of the Administrative Appeals Board (“the Appeals Board”) made on 16 November 2011 dismissing the applicant’s appeal against the decision of the Office of Privacy Commission for Personal Data (“CMR”) made on 12 April 2010, namely refusal to carry out or continue in the investigation about Madam Lam Pik Yee (“Lam”), Nursing Officer of St Paul’s Hospital, requesting a colleague, Madam Mak Yin Hang Bonnie (“Mak”) to take video record of the applicant’s alleged sleeping during working hours.
B. The facts
3. In November 2009, the applicant joined St Paul’s Hospital as a supporting service staff.
4. In July 2010, Lam instructed her subordinate, one health care assistant, Mak to take video of the applicant’s alleged sleeping during working hours. Mak used her mobile phone to record one such incident. The video captured was transferred into a USB device and subsequently uploaded onto a computer. After the transfer, the video contained both in the mobile phone and the USB device was deleted.
5. On 18 September 2010, the applicant was interviewed by Lam for job performance review. The applicant denied any wrongdoing. The video was then showed to the applicant in the presence of another nurse, Madam Ann Ma (“Ma”). After showing, the video was deleted from the computer.
6. On 28 September 2010, St Paul’s Hospital decided to terminate the applicant’s employment contract. In view of the adverse effect, the applicant chose to resign. Her resignation was accepted by the hospital.
7. In October 2010, the applicant filed a complaint to the CMR. The essence of her complaint was directed at Lam who instructed Mak to take video and the showing in the presence of others. The CMR carried out its investigation. During its investigation, the CMR received a letter from the hospital. In this letter, the hospital stated, among other matters, that the applicant when confronted with issues at work inevitably demanded proof and it was then decided by Lam to obtain concrete evidence. The CMR also received statements from other staff who denied having viewed the video. After enquires being made, it was decided in April 2011 that further investigation was not necessary.
8. In coming to that decision, the CMR relied on Principles 1(2) and 3 of Schedule 1 of the Personal Data (Privacy) Ordinance. In its decision, the CMR stated that given the video recording took place inside the hospital where other employees also had access and that Lam caused the misconduct of the applicant be recorded with the purpose to prove the applicant’s alleged misconduct in the future and therefore, with this piece of evidence, denial or dispute could be avoided. As such, the CMR came to the conclusion that the means so employed was not unlawful or unfair in the circumstances of the case.
9. The applicant appealed to the Appeals Board in May 2011. On 20 January 2012, the Appeals Board dismissed the applicant’s appeal.
C. Grounds of the proposed judicial review
10. Two grounds have been put forward:
(1) The Appeals Board erred in law:
(a) in interpreting the purpose of the video recording; and
(b) in acting unreasonably in not calling witness.
(2) The Appeals Board was in breach of natural justice:
(a) in failing/refusing to take into consideration that the applicant was taking a break; and
(b) in failing to exercise its discretion to call all or some of the nine nurses who had been shown the video.
D. This leave application
11. It is not in dispute that St Paul’s Hospital did not allow its employees to take video or audio recording for the purpose of employee performance review. In other words, the video in question was taken by Lam on her own initiative against the hospital policy. All these have been made known to the CMR by the hospital during its investigation.
12. It is also not in dispute that such video recording did take place and that sometime afterward the video was shown to the applicant in the presence of another nurse.
13. It is also not in dispute that the video stored on either the mobile telephone or USB after its transfer to computer was deleted. Indeed, even the video uploaded onto the computer was deleted after showing. In short, almost all of the facts surrounding the video recording are not in dispute.
14. In a report dated 30 September 2012, Mak stated that she did not show the video to any of her colleagues except Ma. In various statements made by the nine health care assistants, they all stated that they had not seen the video.
15. In light of all these facts which the CMR received and the complaint raised by the applicant was at best only her own speculation, I do not firstly see what more could be done by the CMR. Although section 21(c) of the Administration Appeals Board Ordinance gives the Appeals Board power to require any person to give evidence, speculation is no firm foundation for calling more evidence. Secondly, I also fail to see the CMR could be accused of acting Wednesbury unreasonable. For stated reasons above, I do not see any merit in Grounds (1)(b) and (2)(b).
16. In respect of Ground (1)(a), the fact that the hospital prohibits its employees to take video does not make the video recording by Lam unlawful.
17. Principle 1 of the Data Protection Principles states:
“(1) Personal data shall not be collected unless—
(a) the data is collected for a lawful purpose directly related to a function or activity of the data user who is to use the data;
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(2) Personal data shall be collected by means which are—
(a) lawful; and
(b) fair in the circumstances.”
18. The purpose was to provide proof of the applicant’s misconduct. The means used in this case was video recording. It took place in an open area (ie nursing station) where other staff had access. It was fair in the sense that given the repeated demand for proof by the applicant in the past, the video provides independent undisputable evidence. The fact of the matter is even after the arrival of this piece of evidence, the applicant continues to dispute the veracity of this video by arguing that she was in fact sleeping during break. Sleeping during work hours on a hospital ward can hardly be described as trivial. In my view, such serious misconduct in hospital setting can be used as a ground for summary dismissal.
19. Coming to Ground (2)(a), this argument was not advanced to the CMR at all. This contention was completely new before the Appeals Board. The Appeals Board rejected this argument. In fact, the applicant, after the conclusion of the hearing, submitted to this court another affirmation stating that the hospital did provide staff with break. This may be so, however, the Appeals Board did consider this point but decided to reject the argument. The reasons put forward by the Appeals Board in paragraphs 12 to 16 of the Reasons for Decision are cogent and I fail too to see how one can say the Appeals Board was acting against natural justice.
E. Conclusion
20. For these reasons, I would not grant leave to the applicant to apply for judicial review.
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(Andrew Chan)
Judge of the Court of First Instance
High Court
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Ms Lorinda C W Lau, instructed by Hon & Co, for the applicant
Please refer to CACV4/2013 for the relevant appeal(s) to the Court of Appeal. |