(AAB Appeal No. 63 of 2016)
Destination of net sale proceeds of property – bank provided affirmation in answer to the Commissioner's enquiry – Appellant alleged disclosure was a new purpose – wide power of the Commissioner under section 43 – whether exempted under section 4
Coram:
Mr. Alan Ng Man-sang (Presiding Chairman)
Ms. Julienne JEN (Member)
Ms. Poon Wing-yin (Member)
Date of Decision : 15 April 2019
Facts
The following facts represent the common background of this appeal, and two other appeals lodged by the same Appellant (AAB No.62/2016 and AAB No.71/2016) :-
(1) The Appellant and his wife were the controlling directors and shareholders of the company. Since 1997, the company had borrowed a number of loans from the bank. The Appellant and his wife had also mortgaged their property to the bank as security for the company's loans, and entered into a number of guarantees for those loans. In 2004, the property was sold and the net sale proceeds were paid to the bank in partial settlement of the company's loans.
(2) As the company later defaulted in payment of the loans, the bank demanded in writing full payment of the loans from the company, the Appellant and his wife in early 2015. A High Court action was issued by the bank against all these parties, and judgment was later entered in the bank's favour.
In this case, the bank disclosed a certain part of its staff's affirmation in support of its application for summary judgment in the High Court action, in response to the Commissioner's enquiry as to the destination of the net sale proceeds of the property relating to the Appellant's another complaint. The Appellant considered that such disclosure was inconsistent with the original purpose of the affirmation. He therefore lodged a fresh complaint with the Commissioner, alleging the bank had failed to obtain his prescribed consent for the disclosure in contravention of Data Protection Principle 3 (DPP3) of the Ordinance.
The Commissioner's Decision
Section 43(1)(a) provides that the Commissioner may, for the purposes of any investigation, be furnished with any information or document from such persons as he thinks fit. The affirmation was submitted to the Commissioner pursuant to his request in the course of investigation. This fell within the exception under section 4, which exempted such disclosure from the application of DPP3.
Dissatisfied with the Commissioner's decision, the Appellant lodged an appeal to the AAB.
The Appeal
The AAB affirmed the Commissioner's wide power and discretion in handling a complaint in the course of investigation. Under section 43(1)(a) of the Ordinance, the Commissioner may be furnished with any information, document or thing from such persons and make such inquiries as he thinks fit. One of the legislative purposes of section 4 is to ensure the Commissioner be provided with sufficient information in his investigation without violating the Ordinance. The AAB therefore accepted that the bank's disclosure of the affirmation to the Commissioner was exempted from the application of DPP3 under section 4.
Despite the Commissioner not having obtained a full copy of the affirmation from the bank, the AAB took the view that the disclosed part alone had already answered the Commissioner's enquiry as to the destination of the net sale proceeds of the property.
The AAB's Decision
The appeal was dismissed.
(Uploaded in October 2019)