RE YUNG MEI CHUN

HCAL 25/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 25 OF 2011

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D E C I S I O N

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Introduction

1.  This was an ex parte application for leave to apply for judicial review.  According to the Form 86, the decision under challenge was that of the Administrative Appeals Board (“AAB”) dated 12 January 2011.

2.  RHC O 53 r 3(2)(a)(iii) provides:-

“An application for leave must be made ex parte by filing in the Registry-

(a) a notice in Form No. 86 in Appendix A containing a statement of-

…

(iii) the relief sought and the grounds on which it is sought;

…”

3.  A perusal of the Form 86 shows that (1) the relief sought and (2) the grounds on which it is sought, have not been stated.  Accordingly, there has been non-compliance with O 53 r 3(2)(a)(iii). The statutory requirement is not purely technical and has practical importance: see, for example, O 53 r 6(1).

4.  Notwithstanding the court is under no duty to remind a litigant to comply with the provision, a letter dated 19 April 2011 was sent to the address stated in the Form 86 (same as that stated in the applicant’s affirmation) reminding the applicant of the non-compliance.

5.  No reply having been received, the application for leave was refused and a letter dated 16 January 2012 notifying the applicant of the refusal was sent to the above address.

6.  In a letter dated 20 January 2012 (“the 2012 letter”), the applicant claimed that she had not received the letter dated 19 April 2011 and therefore was unaware of the reminder (or the non-compliance presumably).  The 2012 letter also claims that the statements required by O 53 r 3(2)(a)(iii) have already been contained in her affirmation.

7.  The 2012 letter is treated as an application to set aside the order dated 16 January 2012 (refusing leave to apply for judicial review).

Background

8.  Among other things, the applicant’s affirmation sets out the factual background which leads to this application.  It is summarized below to enable the issues to be better understood.

9.  The applicant was employed by Merrill Lynch (Asia Pacific) Ltd (“ML”) until September 2007.  Upon the termination of her employment, she made a data access request, relying on the provisions of the Personal Data (Privacy) Ordinance (Cap 486). Disagreement appeared between her and ML regarding ML’s obligation to provide certain documents; namely, some e-mails and a report prepared by ML’s Office of General Counsel (called “OGC” and “OGC report” in the court documents filed herein).  The OGC was in effect ML’s in-house legal department.

10.  The applicant complained to the Privacy Commissioner for Personal Data (“the Commissioner”).  Having investigated the complaint, the Commissioner declined to issue an enforcement notice against ML in relation to those documents.

11.  The applicant appealed to AAB against that decision.  In a decision handed down on 12 January 2011, AAB (by majority decision) dismissed the appeal.  This decision was the subject-matter of the application for leave.

The application to set aside the refusal of leave

12.  Despite the claim made in the 2012 letter, the applicant’s affirmation does not expressly state the relief sought or the grounds on which it is sought.

13.  Further to the above, there is insufficient merit for leave to apply for judicial review to be given.  As stated above, the applicant’s affirmation has not specified the ground for her challenge, but she appears to contend that AAB has committed an error of mixed law and fact in deciding in ML’s favour.

14.  In relation to the e-mails, AAB opined in short that the applicant’s data access request was not sufficiently clear or precise to ground a complaint that ML had failed to comply with it.

15.  In relation to the OGC report, AAB concluded the document (and its attachment) was exempted from production by legal professional privilege, and that ML had not waived the privilege.

16.  In relation to both matters, AAB’s written decision shows that:-

(a) it has considered and applied the correct legal principles;

(b) it has adopted the correct approach when applying those legal principles to the facts before it; and

(c) the factual materials before it could reasonably justify the findings which it made.

17.  Accordingly, there is no valid ground for the court’s interference of AAB’s decision.

Conclusion

18.  This application is refused.