The Complaint
Factual Background
The Appellant’s husband made a claim (the “Claim”) against his former employer (the “Company”) at the Labour Tribunal and the Claim was dismissed with costs awarded to the Company. He applied for a stay of the costs order. The Company wrote to the Labour Tribunal objecting to such application and quoted some of the contents of a letter previously sent from the Appellant to the Company in relation to the financial standing and life style of the Appellant and her husband (“Contents 1”).
The Appellant’s husband then applied for legal aid in relation to his stay application. The Company wrote to the Legal Aid Department objecting to the application and quoted the contents of the Appellant’s previous communications with the Company’s staff and her letter to the Judiciary Administrator in relation to the financial circumstances of the Appellant and her husband, and the fact that she enjoyed playing her endless “legal games”, which she was training her husband to play (“Contents 2”).
The Appellant complained to the Commissioner that the Company’s use of her personal data in Contents 1 and 2 (the “Data”) was not for a purpose for which the Data was collected by the Company or a directly related purpose, and thus the Company had contravened DPP3 in the Schedule to the Ordinance.
Findings of AAB
(1) Whether the Company’s use of the Data was for a purpose for which the Data was collected by the Company, or a directly related purpose
AAB took the view that Contents 1 and 2 were sent to the Company through the Appellant’s communications which were intended to influence the conduct of the legal proceedings in the Claim and that the Data was used by the Company to oppose Mr Lee’s respective applications for a stay of the cost order against him and legal aid, which were part and parcel of the same proceedings in the Claim. Hence, the Company’s use of the Data was for a purpose directly related to the purpose for which it was collected.
First, on a proper construction of the Ordinance, and considering the legislative purpose of the Ordinance, section 4 and DPP3 of the Ordinance should not receive a strict and narrow interpretation as to prevent collected data to be used in a court or tribunal to ensure a fair proceedings therein, when Article 10 of the Bills of Right Ordinance guarantees a right to a fair trial.
Alternatively, AAB found that the use of the Contents 1 by the Company was also exempt from DPP3, as being “required in connection with any legal proceedings in Hong Kong” under section 60B(b) of the Ordinance notwithstanding that the acts complained of occurred prior to the effective date of such provision. AAB was of the view that section 60B should have retrospective effect.
(2) Whether costs of the appeal should be awarded to the Commissioner
Under section 21(1)(k) of the AAB Ordinance, AAB may, subject to section 22, award costs of the appeal to any of the parties to the appeal. Section 22(1) further provides that AAB shall only make an award as to costs against an appellant if it is satisfied that the appellant has conducted his case in a frivolous or vexatious manner
.(a) Vexatious
In this case, AAB found that the appeal was brought by the Appellant with the intention of causing nuisance to the Commissioner, the Company and those representing the Company. AAB found that the Appellant was using this appeal to exert improper pressure on the Commissioner to resolve another complaint case expeditiously. In addition, AAB took the view that the Appellant’s application to subpoena six individuals of the Company and one individual from the solicitors’ firm representing the Company and the unwarranted derogatory remarks on individuals of the Company were strong evidence indicating that the Appellant was launching a personal vendetta against the Company, its directors and officers, and those representing it.
(b) Frivolous
The Appellant initially applied to reschedule the appeal hearing, and her application was duly approved by AAB. Prior to the rescheduled hearing, however, the Appellant wrote to AAB stating, among other things, that she was also required to attend a hearing of another action in the High Court (the “High Court Action”) on the same day. AAB did not vacate the appeal hearing as per the Appellant’s request, however.
The Appellant did not attend the AAB appeal hearing. It subsequently transpired that she did not attend the hearing of the High Court Action on that day either. However, the Appellant did not provide sufficient explanations to AAB as to why she did not attend both hearings.
AAB took the view that the various applications made by the Appellant for extensions of time in this appeal might or might not be by themselves sufficient to constitute frivolous or vexatious conduct warranting a cost order against her but having regard to the Appellant’s whole course of conduct, it was quite clear that she had no genuine intention of prosecuting her appeal on its merits. The appeal was only a means to her ulterior motive of causing nuisance to the Commissioner, the Company, its officers and its representatives.
Decision of AAB
Accordingly, the AAB dismissed the appeal and ordered the Appellant to pay the Commissioner’s costs of the appeal in the sum of HK$22,240.30.
uploaded on web in April 2014