關子山 v. 楊燕芳

DCCJ7812/97

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

Case No. DCCJ 7812 of 1997

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JUDGMENT

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1. This is a claim by the plaintiff against the defendant for damages in the sum of $100000 and fixed costs.

2. The facts show that the plaintiff gained employment as the chief chef in a well-known western restaurant (hereinafter called "the restaurant") in about the beginning of March 1997. Amongst the responsibilities of the plaintiff as chief chef was the responsibility to oversee staff in the kitchen and to assist in the selection and employment of staff under him. On about 8 March 1997 the plaintiff was told by the manager of the restaurant one Mr Smith to go about the selection and to assist in the employment of between two to three junior chefs. Mr Smith told the plaintiff to contact the defendant who is the cashier of the defendant to advertise for the positions.

3. The plaintiff stated that he gave the proof of the advertisement to the defendant. The defendant said he did not do so. Instead the defendant wrote out an advertisement and advertised in the Oriental Daily News a Chinese newspaper on 11 March 1997. The advertisement in the Oriental Daily News marked Exhibit P1A reads

" 聘請廚師，灣仔高級西餐廳現聘請廚師，有意請電28279184謝生洽 "

4. Unfortunately, the defendant put in the name謝instead of 關 in the advertisement. The defendant said that she thought the defendant's surname was 謝 and she did not check it with the plaintiff thus causing this mistake.

5. According to Mr Smith the manager of the restaurant who was also the defendant's witness DW2 he informed the plaintiff to let him have the proof of the advertisement after he prepared it for Mr Smith to pass it on to the defendant. Mr Smith stated that the plaintiff had not handed him the proof. The plaintiff stated that he handed the proof to the defendant. In relation to whether the proof of this advertisement was prepared by the plaintiff or the defendant I accept the defendant's evidence that the plaintiff did not submit to her a proof.

I accept that it was the defendant who drafted the advertisement. My reason for this finding is if the plaintiff drafted the advertisement he would not have wrongly stated his name to be 謝 . As both the plaintiff and the defendant stated that they did not know one another prior to the plaintiff's employment with the restaurant there was no reason for the defendant to deliberately alter the proof of an advertisement submitted by the plaintiff to change the plaintiff's surname from the correct name of 關 to that of 謝 .

6. I accept therefore that the defendant drafted the advertisement and made a mistake in the draft through wrongly thinking that the plaintiff's surname was 謝 .

7. It seems that junior chef were employed arising from this advertisement on 11 March 1997. However the junior chef employed proved unsuitable. Mr Smith requested the plaintiff to advertise again. The plaintiff asked the defendant to do so. Again the plaintiff said he provided a proof for the defendant. The defendant said the plaintiff did not do so.

The defendant said that as she had previously made a mistake about the plaintiff's name this time she checked the plaintiff's name from a photocopy of an identity card of the plaintiff which the plaintiff had given to Mr Smith. She said that she was cashier of the restaurant but assisted Mr Smith with some minor administrative matters and because of that she was given the photocopy of the plaintiff's identity card. She put in the advertisement on 25 March 1997 in the Oriental Daily News. She said before she put in the advertisement she had told the plaintiff she would put in his name. The plaintiff agreed. However she did not say in evidence that she had told the plaintiff she would put in the full name of the plaintiff. The plaintiff denied that the defendant told him she would put his full name in the advertisement.

8. As regards the disparity of evidence between the plaintiff and the defendant in this matter I find that the defendant did not ask the plaintiff beforehand for the plaintiff's consent to insert the full name of the plaintiff in the advertisement.

The advertisement read

" 聘請廚師，灣仔高級西餐廳現聘請經驗廚師多名，有意請電28279184關子山洽 "

9. The plaintiff however stated that he gave the defendant a proof of the advertisement. The defendant said that he did not do so but she drafted the advertisement herself. In respect of this disparity in evidence I again prefer the evidence of the defendant that she was the one who drafted the advertisement and that the plaintiff did not give her the proof of the advertisement. I do not believe that if the plaintiff had drafted the advertisement in writing and did not write therein his full name but stated關生洽 the defendant would alter it to 關子山洽.

10. The plaintiff said he had a lot of people telephoning him the day the advertisement came out. The plaintiff went to the defendant to ask her why she had put his full name in the advertisement. It seemed he was quite angry and displayed it. Mr Smith the manager of the restaurant who gave evidence said that that morning he saw the plaintiff walking into the middle of the restaurant and shouted at the defendant. I have no reason to doubt the truth of this evidence. The plaintiff said Mr Smith asked him what was the matter. The plaintiff told Mr Smith that the defendant had put in his full name in the advertisement. Mr smith said that he did not know what the problem was or "I don't understand the problem."

11. According to the plaintiff he said to Mr Smith "You do not see the problem because you are not Chinese." Following this the plaintiff said he saw Mr Smith talking to the defendant in a corner of the restaurant and he thought Mr Smith looked sad. The plaintiff felt they were talking about him but he really did not know what they were talking about. He only guessed that they were talking about him.

12. Following this the plaintiff went to Mr Smith and gave his resignation. He said that Mr Smith accepted his resignation three days later. According to Mr Smith he accepted the plaintiff's resignation immediately. It was the plaintiff's case that he gave in his resignation to Mr Smith. Mr Smith had not dismissed him.

13. The following day the advertisement again came out in the Oriental Daily News but this time the full name of the plaintiff was changed to "關生". The defendant stated that following the plaintiff's complaint to her she telephoned the newspaper and asked them to change the advertisement to change the name of the plaintiff to "關生".

14. As I understand it the claim for compensation made by the plaintiff arises from the alleged violation of the plaintiff's personal data privacy rights by disclosure of his full name in the advertisement without his prior consent.

15. Section 12 of the Personal Data Privacy Ordinance provides for approval of codes of practice by the Privacy Commissioner for personal data for the purpose of providing practical guidelines in respect of the requirements under the ordinance imposed on data users. However such codes of practice have not as yet been approved. I therefore do not have the assistance of such codes of practice in this case.

16. The advertisement appearing in the Oriental Daily News marked Exhibit P1D that is the one appearing on 25 March 1997 contained only one item of personal data of the plaintiff and that is his full name in Chinese characters. I refer to principle 3 of the Data Protection Principles contained in Schedule 1 of the ordinance that is the Personal Data Privacy Ordinance "Use of Personal Data" which states

"Personal data shall not without the prescribed consent of the data subject be used for any purpose other than

(a) the purpose for which the data were to be used at the time of the collection of the data; or

(b) a purpose directly related to the purpose referred to in paragraph (a)."

17. The plaintiff's full name is an item of personal data essential for the employment of the plaintiff and is to be used in connection with the identification of the plaintiff by his employer. His identification has to be made known to his employer. The plaintiff's job description includes assisting in the employment of staff working under him by interviewing applicants and providing a shortlist of such applicants for the selection of Mr Smith the manager.

The person that applicants for the post advertised had to contact was the plaintiff because it was the plaintiff's duty to initially see them to provide a shortlist of the applicants to the manager. Identifying the plaintiff by his name in the advertisement in order for these job applicants to contact him is directly related to the purpose for which this data were to be used at the time when this data was collected by his employer because it related to the identification of the plaintiff in order that he could perform one of his duties in employment. Therefore the use of this personal data that is the plaintiff's full name in the advertisement in my view does not contradict principle 3 of the Data Protection Principles contained in Schedule 1 of the ordinance.

18. I therefore find that the use of the plaintiff's full name in the advertisement in the Oriental Daily News on 25 March 1997 was not a violation of the plaintiff's personal data privacy rights even though his prior consent was not obtained.

19. Even if there were any violation of the plaintiff's personal data privacy rights which I do not so find in this case it is clear that the plaintiff has not established any loss which resulted to the plaintiff as a natural consequence of the act of the defendant in inserting the plaintiff's full name in the advertisement.

20. The plaintiff admitted having spoken to the defendant in angry tones over the inclusion of his full name in the advertisement. It was this that led to Mr Smith's attention being drawn to the matter and asking the plaintiff what the matter was. The plaintiff told Mr Smith that the defendant had inserted his full name in the advertisement. Mr Smith said that he could not see what the problem was or "I don't understand the problem." The plaintiff said "That is because you are not Chinese." The plaintiff said he resigned as a result of this conversation with Mr Smith. It was the plaintiff who chose to resign. Mr Smith had not dismissed the plaintiff.

21. It was the plaintiff who chose to react in anger towards the defendant. He had a choice of not being angry. Therefore the plaintiff's loss of employment arose purely out of the personal choices made by him in reacting to this whole incident in this manner. Therefore I find that the loss of employment was not a natural consequence of the act of the defendant in placing the plaintiff's full name in the advertisement on 25 March 1997.

22. As regards the plaintiff's claim to damages arising from his distress flowing from the disclosure of his full name in the advertisement this item of compensation would arise if I found there was a violation of the plaintiff's personal data privacy rights but there is no such finding on my part that there is any violation of the plaintiff's personal data privacy rights therefore this head of damages is not available to the plaintiff.

23. But this claim of the plaintiff according to the plaintiff arises from his fear that bad elements might mistake him for someone of the same name as he with whom these bad elements have a reason to harm and they would come to the restaurant to cause harm to him. This fear is far-fetched and unfounded. This kind of distress cannot be foreseeable by the defendant because it is far-fetched. Hence even were there any violation of the plaintiff's personal data privacy rights no damage could flow from this allegation of distress because the defendant cannot be liable for any damages which cannot be foreseeable by the defendant.

24. Having so found I dismiss the claim and I award costs to the defendant to be taxed if not agreed.