The Complaint
1. Summary of Facts
The Complainant wrote to a bus company to pursue for compensation for an injury sustained while traveling on a bus. At the same time, the Complainant reported the case to the law enforcement agency for criminal investigation. A written statement was taken from the Complainant (the "statement"). The Complainant had explicitly stated in the statement that he did not consent the law enforcement agency to disclose his personal data to any third party relating to his claim. Despite this, the law enforcement agency provided a copy of the statement to the loss adjustor acting for the bus company. The Complainant therefore made a complaint to the PCPD against the law enforcement agency.
Although no prosecution was brought against the bus company or the bus driver after the law enforcement agency investigation, the statement was released to the loss adjustor on the ground that the information might assist the Complainant to carry out his civil claim against the parties concerned. As such, the law enforcement agency was of the view that the disclosure was exempted under section 58(1)(d) of the Ordinance.
2. Issues of the Case
• Whether the disclosure amounted to a contravention of DPP3; and
• If so, whether the exemption under section 58(1)(d) and 58(2) applied.
Outcome
1. Reasoning
The purpose for which the law enforcement agency obtained the statement from the Complainant was to determine whether there was any criminal element involved. The subsequent disclosure of the statement for the purpose of assisting the Complainant to carry out civil claim was apparently inconsistent with the law enforcement agency's original collection purpose of the data.
In High Court case Lily Tse Lai Yin & Others v The Incorporated Owners of Albert House & Others [2001] HKCFI 976, the court was of the view that "tort", a civil wrong, also amounted to an unlawful or seriously misconduct under section 58(1)(d) of the Ordinance. Despite this, the law enforcement agency had failed to prove why obtaining prescribed consent from the Complainant would likely prejudice the civil claim pursued by the Complainant (if any). In view of this, the Commissioner did not agree that the disclosure was exempted under section 58(1)(d) and 58(2) of the Ordinance, thus the law enforcement agency had contravened DPP3 by disclosing the statement to the loss adjustor without the Complainant's prescribed consent.
2. Action by PCPD
An enforcement notice was served on the law enforcement agency directing it to obtain prescribed consent from the data subjects before releasing their statements to third party unless the exemption of section 58 applies.
3. Improvement Action by PCA, if any
The law enforcement agency agreed to comply with the enforcement notice.
uploaded on web in February 2011