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. In this action the Plaintiff claims against the Privacy Commissioner for Personal Data for damages amounting to $5 million and also applies to set aside the Enforcement Notice dated 16 August 2006 issued by the Defendant under Section 50 of the Personal Data (Privacy) Ordinance (Cap. 486).

2. The fact of the case is simple.  The Plaintiff recorded a private conversation with his immediate superior Mr. Tam Wing-kwong during a lunch meeting between them on or about 26 October 2005.  It was recorded without the latter’s knowledge and consent.  The conversation was in relation to the work of the Plaintiff.  The Plaintiff regarded certain improper and unprofessional suggestions had been made by Mr. Tam, as an educationalist.  On 23 November 2005, he published the conversation in several newspapers and certain websites.

3. On 2 December 2005 Mr. Tam Wing-kwong (“the Complainant”) complained to the Defendant, the Privacy Commissioner who found that the Plaintiff was in contravention of the Data Protection Principle 3 as set out in the Schedule 1 to the Ordinance.  As the information remained accessible on the Websites, the Commissioner issued the Enforcement Notice.  On 14 September 2006 the Plaintiff lodged an appeal to the Administrative Appeals Board against the Commissioner’s decisions.  The proceeding is still pending and the appeal is yet to be heard.

4. On 7 September 2006, 7 days before the appeal, the Plaintiff instituted the present action now before me.  Instead of filing a defence, the Defendant applied to strike out the Statement of Claim and to dismiss the whole action under the different grounds as set out in Order 18 rule 19 of the Rules of High Court (Cap. 4A), viz. that the Statement of Claim discloses no reasonable cause of action, it is vexatious, embarrassing and prejudicial and it is an abuse of the process of the Court.

5. As I understand from the evidence before me and the submission made by Ms. Chan for the Defendant, the main argument relied on by the Defendant is that the Plaintiff’s claim is duplicitous and therefore is an abuse of court process.  It is not disputed that the Plaintiff has initiated two different proceedings: (a) an appeal against the Defendant’s decision in the Administrative Appeals Board and (b) this present High Court Action.

6. The Plaintiff argues that the Privacy Commissioner is liable to be sued for any wrongful act committed by him or his subordinate.  I have no doubt about it if the act is wrongful.  The present action, as the Plaintiff submits as a reply, is based on a different cause of action.  He rests his claim on “the annoyance, frustration, nervousness, anxiety, and depression created by the Defendant on the Plaintiff as a result of the Defendant’s mal-administration, error in investigation, error in judgment, and error in decision on the case”.

7. I accept that at present I have not received any evidence in support of the case of either party.  The court proceeding has not yet reached the stage of discovery.  Whether the Defendant acting as the Privacy Commissioner has committed any “mal-administration, error in investigation, error in judgment, and error in decision” is a factual issue.  The Administrative Appeals Board has been charged with the duty, and has been invoked, to hear the appeal.  It is not appropriate for the Court at this stage to make further investigation and draw conclusion on the factual issue.

8. I am not saying that once the appeal procedure has been invoked, a litigant should not institute any legal action in court until the other remedy has been exhausted.  I always consider that the Court has the power to intervene in appropriate cases.  Whether the Court should allow the court action to proceed depends on the facts of the case and the nature of the claim.  I do not accept the Defendant’s submission that the statement of claim is duplicitous and is an abuse of the court process simply because the Plaintiff has lodged an appeal and is pursuing it before the Administrative Appeals Board.

9. In this case I have no doubt that the two proceedings rely on the same set of facts and the same issues whether the Defendant as the Privacy Commissioner committed any of the errors alleged by the Plaintiff.  For example, if it is found by the Board that the Defendant has committed such error, the Court then has to consider whether the Plaintiff has suffered any damage.  Of course, the Court does not wish to see that two different adjudicators decide on the same facts and issues at the same time.

10. It is wrong for the Court to allow the two proceedings running parallel to each other.  One of them has to be stopped pending the outcome of the other.  There are many good reasons why the proceeding before the Board should come first e.g. simple procedure and due deference to the law providing such procedure etc.  The Court is rather reluctant to strike out the Statement of Claim without deciding on the merits of the case itself.  I note that the Plaintiff, though a highly educated person, is not legally represented.  He may not fully understand the procedures and their legal effect.  I also take note of Ms. Chan’s argument that even if the court proceeding has to be instituted, it should be by way of judicial review under Order 53 of the Rules.  The Court should allow certain degree of latitude and flexibility to those acting in person.

11. For the above reasons, I refuse to strike out the Statement of Claim and to dismiss the action.  I make the following order:

(a) There be stay of proceeding in this action until the determination of the appeal in the proceeding before the Administrative Appeals Board;

(b) Liberty to restore the hearing of this summons after the determination made by the Board; and

(c) Costs reserved.