Criminal proceedings for prosecution of offences relating to living on the earnings of prostitution - photographs downloaded from a memory card of digital camera seized during the operation were disclosed to co-defendants of the action by prosecution - photographs classified as "unused materials" showed intimate acts and sex organ of one of the complainants - common law on disclosure for fair trial - directly related purpose and exemptions - DPP3 and section 58(1)(a) and (b) and section 58(2)
The Complaint
The complainants jointly complained about the disclosure of certain photographs by a law enforcement agency to the defendants charged with offences relating to living on the earnings of prostitution. The photographs were downloaded from a memory card of digital camera seized during an operation. They showed intimate acts of the complainants and the sex organ of one of the complainants. The complainants claimed that such disclosure caused them embarrassment and infringed DPP3.
Findings of the Privacy Commissioner
Upon enquiry raised with the law enforcement agency, it was confirmed that the photographs in question were downloaded and were categorized as "unused materials", i.e. not being used as evidence to support the prosecution's case. However, in accordance with the common law duty on disclosure (the case of HKSAR v Lee Ming Tee, FACC1/2003 was quoted as judicial authority on this point), the prosecution has a duty to disclose these materials to the defendants of the action. The prosecution also relied upon the exemption provisions in section 58(2) of the Ordinance in relation to personal data held for the prevention or detection of crime and the apprehension, prosecution or detention of offenders as applicable to exempt from compliance with DPP3 in respect of the use of the personal data in question.
The Privacy Commissioner found that compliance with the common law requirements on disclosure of personal data was for a directly related purpose and there was no evidence showing that the photographs were being disclosed to unrelated parties. Moreover, it was found that section 58(1)(b) and (2) were properly invoked in the circumstances of the case to exempt from application of DPP3. Pursuant to section 39(2)(d), no investigation was commenced on the complaint lodged. Dissatisfied with the decision, the complainant appealed to the AAB.
The Appeal
The question to decide by the Board was whether the decision not to investigate by the Privacy Commissioner was properly made. The Board examined the common law duty of disclosure by prosecution as expounded in Lee Ming Tee's case. The prosecution is under a common law duty to disclose to the defence material or information in its possession in the interest of a fair trial and the right to a fair trial includes adequate knowledge of the case to be made by the prosecution. It would be contrary to this common law principle if the prosecution were to withhold from the defence materials which might undermine the case against the defendant or which might assist the defence case. Information not itself admissible might lead by a train of inquiry to evidence which is admissible and materials which is not admissable may be relevant and useful for cross examining of a prosecution witness on credit.
In view of the nature of the offence charged and having also considered that the photographs were not disclosed to parties unrelated to the offence charged, the Board found the disclosure to be for a purpose consistent with the purpose of collection, i.e. for prosecution of the offence. Besides, the Board also agreed that the exemption provisions under section 58(1) and (2) applied to such disclosure of the personal data.
The AAB's Decision
The appeal was dismissed.