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.  On 5 March 2009 this court dismissed the Plaintiff’s appeal 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 his claim in HCA1980/2006.  The reasons for our order have been set out in the judgment handed down on 5 March 2009 and will not be repeated here. 

2.  The Plaintiff applied for leave to appeal to the Court of Final Appeal.  On 7 April 2009 the Plaintiff applied for legal aid but the Director of Legal Aid refused his application on 30 June 2009.  In a letter dated 10 July 2009 he asked to vacate the hearing of his application for leave to appeal to the Court of Final Appeal but that application was refused on paper.  He renewed his application at the hearing on 17 July 2009.  Having considered the Director’s decision to refuse legal aid, the fact that the Plaintiff has all along been dealing with this case personally and the questions referred to below, we did not see any good ground for an adjournment.

3.  In a Notice of Motion filed on 2 April 2009, the Plaintiff set out 9 questions which he says are involved in the appeal and which by reason of their great general or public importance or otherwise ought to be submitted to the Court of Final Appeal for decision.  The Notice of Motion is supported by the Plaintiff’s 9^th affidavit which enclosed documents before the court at the hearing of the appeal.  During the hearing before us, the Plaintiff also said he wished to add a reference to Article 16 of the Hong Kong Bill of Rights Ordinance cap. 383 to questions 6 and 8.  

4.  We have considered the 9 questions set out in the Notice of Motion and our views are as follows.

-        Questions 1 to 5 are not questions in the appeal.  As can be seen from para. 26 of our judgment, the crux of the appeal lay in whether the Plaintiff had disclosed any cause of action in the Statement of Claim in which the claim is for damages for the Defendant’s “mal-administration” and various “errors”, and the answer to this question lay in paras. 30-31 of our judgment . 

-        In questions 6 and 8, the Plaintiff raised a Basic Law point which was not raised in the Statement of Claim.  The Bill of Rights point was not raised either. 

-        Question 7 deals with the validity of a decision of the Administrative Appeals Board which had not even occurred at the time of the issue of the writ and which was not referred to in the Statement of Claim. 

-        Apart from the Basic Law and Bill of Rights points which had not been raised in the Statement of Claim, question 8 sets out the issue raised in the appeal, which is whether the Defendant can be sued for damages for negligence and breach of statutory duty for which the Plaintiff has claimed “damages for the annoyance, frustration, nervousness, anxiety, and depression” (para. 1 Statement of Claim).  We do not consider that a question of great general or public importance is involved, nor do we consider that the Plaintiff should be given leave to appeal under the “otherwise” limb.

-        Question 9 concerns the Plaintiff’s perception of the way in which this court dealt with the appeal.  No question of great general or public importance is involved, nor do we consider that the Plaintiff should be given leave to appeal under the “otherwise” limb.

Order

5.  The application is dismissed and since the Defendant had notified the court that he would not appear in the interests of saving costs, there will be no order as to costs.