HUI KEE CHUN v. THE PRIVACY COMMISSIONER FOR PERSONAL DATA

CACV 401/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.401 of 2007

(On Appeal from HCA No.1980 of 2006)

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JUDGMENT

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Hon. Yuen JA (giving the judgment of the court):  

1.  This is an appeal by the Plaintiff (“the Appellant”) from a Decision of Deputy High Court Judge L. Chan given on 30 November 2007 dismissing his appeal from Master Yu’s order given on 11 July 2007 striking out the claim.  The Appellant has also issued a summons for leave to adduce fresh evidence on appeal which will be dealt with later in this judgment.

Membership of the court

2.  The appeal and summons were heard on the morning of 27 February 2009.  The Court reserved judgment.  In the afternoon, there came to this division’s notice a letter the Appellant had faxed to the Registrar of Civil Appeals the previous afternoon in which he said (amongst other things) that Hon. Cheung JA had dismissed his application for stay of execution on 27 November 2008 and he “wondered” if it was appropriate for Cheung JA to hear the appeal.

3.  In our view, it is clear there is no impediment to Cheung JA hearing the appeal.  An application for a stay of execution is an interlocutory procedure in which the merits of the appeal forms only one of the considerations, and even then, the evaluation of the merits is a provisional one made without the benefit of hearing full argument.  There is therefore no question of pre-judgment or bias against the Appellant actual, presumed or apparent. 

4.  In any event the Appellant has waived his right to object to the membership of this court.  The Appellant did not refer to his letter and made no objection to the membership of the court when the hearing commenced. 

5.  Coming back to the substance of the appeal, the Appellant’s claim arose against the following backdrop of events. 

Recorded Conversation

6.  In 2005 the Appellant was a term lecturer at an institute of vocational education run by the Vocational Training Council (“VTC”).  During a lunch break, he had a conversation with his head of department (“Mr Tam”) about his performance, in the course of which Mr Tam is alleged to have said that he (Mr Tam) had completed students’ assignments for them and that the Appellant should do the same.  The Appellant audio-recorded the conversation without informing Mr Tam (“the Recorded Conversation”). 

Uploading onto websites

7.  The Appellant then uploaded the Recorded Conversation onto the internet in two versions of different lengths.  He informed the media in Hong Kong about it and some newspapers carried reports about it. 

The Article

8.  The Appellant also wrote an article (“the Article”) and posted it on two websites.  Mr Tam’s name, job title and employer appeared at the top of the Article, and it also contained hyperlinks to the Recorded Conversation. 

Forum messages

9.  The Appellant also posted messages on internet forums (“the Forum messages”) with hyperlinks to the Article. 

VTC investigation

10.  The VTC then set up an Independent Investigation Panel to investigate whether Mr Tam had completed his students’ assignments for them.  Mr Tam did not acknowledge that the Recorded Conversation included his voice.  The panel interviewed Mr Tam (but not the Appellant who did not wish to be interviewed) as well as the students and examined their assignments, and found the allegation unsubstantiated.

Tam’s complaint to Privacy Commissioner

11.  On 2 December 2005, i.e. after the setting up of the panel but before the issue of its report, Mr Tam made a complaint to the Privacy Commissioner for Personal Data (“the Commissioner”) that the Appellant had wrongfully collected his personal data and used it on the websites and internet forums.  The Commissioner commenced investigations. 

Commissioner’s Investigations

12.  On 16 August 2006, the Commissioner found the Appellant was not in contravention of data protection principle 1 (“DPP1") as set out in Schedule 1 of the Personal Data (Privacy) Ordinance cap. 486 (“the Ordinance”) in that he could have collected the personal data for the purpose of managing his work as a lecturer and so the exemption in s.52 of the Ordinance could apply.

13.  The Commissioner found however that the Appellant had contravened DPP3 in  using the personal data other than for that purpose.  The Commissioner found that even if the Appellant had used the personal data to prevent or remedy improper conduct or malpractice by Mr Tam, s.58 of the Ordinance did not exempt him as he could have provided it to the VTC authorities privately and had no need to publicly disseminate the personal data by uploading it on the internet.  Accordingly the Commissioner found the Appellant in breach of DPP3. 

14.  In this connection the Appellant has complained about the Commissioner’s findings as to the personal data which he is alleged to have collected and wrongfully used.

Enforcement Notice

15.  The Commissioner issued an enforcement notice against the Appellant requiring him to:

(1)     remove the Recorded Conversation and hyperlinks to it from the websites and forums

(2)     remove Mr Tam’s personal data from the Article and the Forum messages; and

(3)      stop using Mr Tam’s personal data in association with the Recorded Conversation for public dissemination.           

Appeal to the AAB

16.  The Appellant did not comply with the Enforcement Notice.  He lodged an appeal from the Commissioner to the Administrative Appeals Board (“AAB”) on 14 September 2006.  On 27 March 2007 the AAB heard the appeal and on 17 July 2007 it dismissed it.  The AAB further found that the Appellant was also in breach of DPP1.

Writ

17.  Before the AAB hearing however, on 7 September 2006 the Appellant issued a writ in the High Court against the Commissioner as Defendant.  The question in this appeal is whether the Appellant’s pleading has disclosed a reasonable cause of action against the Commissioner.

Statement of Claim

18.  Para. 1 of the Statement of Claim specifies the claim as follows:

“The Plaintiff’s claim against the Defendant is for the sum of HK$5,000,000.00 (Hong Kong Dollars Five Million Only), being Damages for 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”.  (Emphasis added).

Para. 2 then states:

“The Plaintiff appeals to the Court on the Defendant’s ‘Result of Investigation’ dated 16 August 2006 (...) that the Plaintiff has contravened the requirement of [DPP3] in relation to the disclosure of the personal data of [Mr Tam].  (Emphasis added).

And para. 3 states:

“The Plaintiff requests the Defendant to set aside the ‘Enforcement Notice’ ... dated 16 August 2006 ... on the Plaintiff until Judgment by the Court is made on the case, and inform the Plaintiff as such”.  (Emphasis added).

As for the rest of the Statement of Claim, in brief it was pleaded that:

-        the Commissioner indicated to the Appellant that Mr Tam’s personal data were his full name, job title and employer’s name (para. 4);

-        in a letter to the Appellant dated 16 August 2006 , the Commissioner has stated that it was the objective of the Ordinance to protect personal data privacy of individuals (para. 5);

-        Mr Tam’s personal data had been published to newspapers on various dates after the Recorded Conversation was uploaded (para. 6);

-        Mr Tam’s personal data had been publicized by the VTC in a Press Release on the results of the panel investigation (para. 7);

-        Mr Tam’s personal data had been available for public access from the VTC’s electronic telephone directory on the internet (para. 8);

-        Mr Tam’s personal data had been available for public access from the internet (para. 9);

-        Mr Tam had been dishonest with the VTC as he did not report that it was his voice on the Recorded Conversation, whereas he had done so to the Commissioner (para. 10);

-        there was an article in a newspaper reporting an officer of the VTC as saying that the Recorded Conversation was not used as evidence as it was not proved that it was Mr Tam’s voice on the Recorded Conversation (para. 11);

-        the VTC had made a statement that Mr Tam had declined to answer any questions on the Recorded Conversation and the panel was thus unable to establish the authenticity of the recording (para. 12);

-        the Commissioner did not provide the Appellant with copies of the information mentioned in his letter to the Appellant of 16 August 2006 which had appeared in the websites (para. 13);

-        the Article itself did not contain Mr Tam’s personal data, although the personal data did appear in the websites of which the Article formed part (para. 14); and

-        the Recorded Conversation did not contain Mr Tam’s personal data, and this was accepted by the Commissioner in his letter dated 16 August 2006 (para. 15).

Application to strike out

19.  The Commissioner applied to strike out the claim on the basis that no reasonable cause of action had been disclosed, the claim was vexatious, embarrassing and prejudicial and was an abuse of the process of the court.

Deputy Judge Chan’s  judgment

20.  Deputy Judge Chan struck out the claim on the grounds that (1) the statement of claim did not contain the essential ingredients for a claim of misfeasance in public office and (2) as the Appellant’s arguments were similar to the ones he had advanced at the appeal to the AAB, in light of the AAB’s reasons for dismissing that appeal, the action also could not possibly succeed.  The action was therefore vexatious and an abuse of the process.

21.  The Appellant appealed.

Application to adduce fresh evidence

22.  On 20 February 2009, the Appellant filed a summons for leave to adduce fresh evidence.  The fresh evidence comprised mostly of documents which had come into being after the hearing before Deputy Judge Chan, and were mostly to do with the proceedings in the Tuen Mun Magistrate’s Court under s.64(7) of the Ordinance for contravention of the Enforcement Notice in which the Appellant was convicted (although we understand he has filed an appeal).

23.  Counsel for the Commissioner Miss Elizabeth Yang (who did not appear below) did not object to the summons in the interests of saving time. In light of that, we would give an order in terms of para. 1 of the Appellant’s summons. 

24.  As for the costs of the application, we do not see why they should be paid by the Commissioner to the Appellant and we consider the costs should be in the cause of the appeal.

Appeal - discussion

25.  With great respect to the learned judge, we do not agree that the ingredients of misfeasance in public office are relevant.  The Appellant submits and we agree that the Commissioner is not a public officer.  Section 5 of the Ordinance provides that “the Commissioner shall be a corporation sole with perpetual succession and (a) shall have and may use a seal; and (b) shall be capable of suing and being sued”.  The Commissioner’s counsel also agrees the Appellant’s claim is not based on the tort of misfeasance in public office.

26.  This brings us to the crux of this appeal – what is the cause of action disclosed in the statement of claim?  In para. 1 of the Statement of Claim (reproduced at para. 18 above) the Appellant says he is claiming damages for the Commissioner’s “mal-administration” and various “errors”.  However in a civil action, an accusation must fall within a recognized cause of action before it can be actionable.  The Statement of Claim does not specify what is the Appellant’s cause of action against the Commissioner.  In his Amended Notice of Appeal the Appellant sought leave to amend his Statement of Claim.  However no draft was provided, even though this had been pointed out to him at the application for stay of execution some 3 months ago (para. 4). 

27.  The Appellant asked for an opportunity to amend the Statement of Claim and referred us to the passage in Hong Kong Civil Procedure stating that such an opportunity may be given even though the formulation of the amendment was not before the court (§18/19/4(2), p.351, 2009 ed.).  However that passage goes on to say that leave would not be given unless there is reason to believe that the case can be improved by amendment.  So the question remains what is the Appellant’s cause of action.

28.  The Appellant orally suggested during the hearing that the Commissioner was liable in negligence in the performance of his duties and for breach of statutory duty.  The common issue falling for consideration under both suggested causes of action is this – does the Commissioner owe the Appellant a duty which is actionable in private law?

29.  The Appellant has referred to s.5 of the Ordinance which states that the Commissioner is capable of suing and being sued.  However that does not mean that he is liable to be sued for breach of duties under the Ordinance.  That has to be considered in the light of the established tests for ascertaining whether a breach of a statute is actionable.

30.  First, as a matter of construction of the legislation to find the legislative intent, we note that the Ordinance does not provide that a civil remedy lies against the Commissioner for breach of his duties under the statute.  On the contrary the Ordinance provides for compensation for a contravention of the Ordinance only if the conditions of s.66(1) are satisfied, i.e. where an individual has suffered damage by reason of a contravention –

(a)      of a requirement under the Ordinance;

(b)     by a data user; and

(c)     which relates ... to the personal data of which that individual is the data subject.

Where those conditions are satisfied, the data subject may claim          compensation from the data user.

31.  Secondly, there is nothing in the Ordinance that shows that the legislature intended to confer private law rights on a particular class of individuals.

32.  Thirdly, it is well-established that private law rights are not likely to be envisaged where there is provision within the statute for redress of grievances.  In the Ordinance, there is indeed an administrative appeal procedure for those aspects of the Commissioner’s actions which the legislature intended should be capable of redress – under s.47(4), a complainant data subject may appeal to the AAB against a decision of the Commissioner not to serve an enforcement notice, and under s.50(7) a data user who receives an enforcement notice may appeal to the AAB.  This administrative appeal procedure covers precisely the Appellant’s complaints in paras. 2 and 3 of the Statement of Claim.

33.  Finally in the Appellant’s submissions in reply, he also suggested a cause of action in malicious prosecution.  No factual basis for such a claim has been advanced.  Moreover, it is an essential ingredient of this tort that the prosecution has been determined in the plaintiff’s favour.  As we understand the situation, the Appellant has been convicted although the conviction is under appeal.

34.  The Appellant has not persuaded us that his case can be improved by an amendment to plead negligence or breach of statutory duty or malicious prosecution and so his statement of claim must be dismissed for failing to disclose a reasonable cause of action.  In the circumstances, it is not necessary to consider the alternative limbs under which the learned judge dismissed the claim.   

Order

35.  The appeal is dismissed and (the parties having agreed that costs should follow the event) there will be an order that the Appellant is to pay the Commissioner's costs.