Case Notes

(HCMA 49/2016)
HKSAR (Respondent) v Leung Chun-kit Brandon (Appellant)
 
Prosecution not entitled to make closing submission if an unrepresented defendant elects to testify and does not call other factual witnesses – section 19(2) of Magistrates Ordinance empowering both prosecution and defence to make closing submissions is not unconstitutional – section 35J : “to provide a data subject’s personal data to another person for use by that other person in direct marketing” – Appellant clearly knew that the data he provided would be used for communication in order to promote insurance and financial planning products – “offering” not restricted to the meaning of “offer” under the contract law – Christian name and telephone number amount to “personal data” – data recorded in a name card and on a mobile phone was recorded in a “document”
 
Coram: The Hon. Mr. Justice Johnny Chan, Deputy Judge of the Court of First Instance of the High Court
 
Date of Judgment: 2 June 2017
 
Background
The Appellant was charged with the offence under section 35J(5)(b) of the Ordinance for failure to take the action specified in section 35J(2) before providing a data subject’s personal data to another person for use in direct marketing.  The Appellant was convicted after trial by the Eastern Magistrates’ Courts, and was fined $5,000.  At the trial, the Appellant was not legally represented, and he elected to testify but did not call any other factual witnesses.  The Appellant appealed against conviction.

The Appellant was jointly tried with a Miss Evelyn Tam (“Miss Tam”) who was charged with the offence under section 35C, i.e. failing to take specified action before using personal data in direct marketing.  Miss Tam was acquitted after trial.
 
Facts of the Case
The Appellant got acquainted with Prosecution Witness 1 (“PW1”) at an alumni event.   During an alumni Christmas gathering in December 2013, the Appellant and PW1 exchanged their name cards.

In January 2014, PW1 received a WhatsApp message on his mobile phone from a person who claimed to be “AIA Evelyn” (later known to be Miss Tam). She addressed PW1 as “Joseph”, and said that the Appellant had provided her with PW1’s mobile phone number.   On 7 February 2014, Miss Tam called PW1 twice addressing the latter as “李耀祖” or “李生”, and said that she was a “Financial Planner”, and that the Appellant had given PW1’s phone number to her.  She said that she previously rendered “Financial planning” to the Appellant, and she wanted to make an appointment to meet PW1 to assist him.  PW1 asked Miss Tam if she was “selling insurance products”.  After Miss Tam explained to him the concept of financial planning, PW1 indicated that he was not interested.  The telephone conversation came to an end.

PW1 had never received any notification from the Appellant that the latter would provide PW1’s Christian name and phone number to Miss Tam.   Neither had PW1 consented the Appellant to do so.
 
The Magistrate’s Findings
(a)   The Magistrate ruled that the Christian name “Joseph” and mobile phone number of PW1 together constituted his personal data.  Such data related directly or indirectly to PW1, and from which it was practicable for the identity of PW1 to be ascertained.

(b)  The Magistrate considered that PW1 and the Appellant were not close to each other, and that PW1 had never requested the Appellant to introduce customers or friends to him.  Accordingly, the Magistrate ruled that the Appellant provided PW1’s data to Miss Tam for use in direct marketing to offer or advertise the availability of insurance and financial planning service.

(c)   The Magistrate ruled that the Appellant has failed to take the action specified in section 35J(2).  The exemption of domestic purpose under section 52 does not apply to this case, as its applicability does not include section 35J or Part 6A of the Ordinance.
 
The Appeal
Ground of Appeal (1) : The prosecution gave its closing submission on evidence (including that of the Appellant) after both parties had closed their cases.   This infringed the right of the unrepresented Appellant to a fair trial.

The Appellant quoted 香港特別行政區 訴 曹建成 [2014] 3 HKLRD 721 and香港特別行政區 訴 卓亞營  CACC 432/2014 in support of his argument that the prosecution is not entitled to make closing submission if an unrepresented defendant elects to testify and does not call any other factual witnesses.  In addition, the Appellant argued that even if section 19(2) empowers both the prosecution and the defence to make closing submissions, section 19(2) is unconstitutional as it prejudices the right to a fair trial guaranteed by the Basic Laws and the Hong Kong Bill of Rights Ordinance.

The Judge opined that both the English and Chinese provisions in section 19(2) are  consistent in explicitly granting both the prosecution and the defence the right to make closing submissions in magistrates’ courts.  The provision does not distinguish the situations where the defendant is legally represented or not.   The Judge considered that it was unfounded and impracticable to allow the common law principles in曹建成 and卓亞營 to override the statutory provision in section 19(2) and to apply them in magistracy proceedings.

The Judge confirmed that in deciding whether a statutory provision is unconstitutional, the following principles as laid down by the Court of Appeal in SJ v Latker [2009] 2 HKC 100 should be adopted :-
(1) The court has to consider whether the provision engages the protection of human rights, and the constitutional challenge must fail if the answer is in the negative;
(2) If the provision does engage the protection of human rights, the next question is whether it infringes the protection of human rights.   If no, the constitutional challenge must fail.
(3) If the provision does infringe the protection of human rights, the court has to consider if there is any justification in support of the infringement.  If there is none, the provision is not regarded as unconstitutional.
 
The Judge considered that the content of section 19(2) is neutral, and grants the prosecution and the defence the equal right of making closing submission, irrespective of whether the defendant or the prosecution is legally represented.   The Judge was of the view that section 19(2) does not cater specifically for the situation where the prosecution is represented by a lawyer while the defendant is unrepresented but elects to testify and not to call any factual witnesses, as in the present case.    He therefore ruled that section 19(2) does not engage the protection of human rights.   As to the protection of right to a fair trial and equality of arms between the prosecution and the defence, the Judge believed that the protection arose from other statutory provisions or case law under common law.  According to the principle (1) as laid down in Latker, the constitutional challenge lodged by the Appellant cannot be sustained.

For completeness in the discussion of Ground of Appeal (1), the Judge proceeded further to consider : If section 19(2) does engage the protection of human rights, does it infringe the protection of human rights?   The Judge took the view that the right given to the prosecution to make closing submission in the magistrates’ courts is not unrestricted, but is governed and restrained by statues and common law principles applicable to the magistrates’ courts.  Furthermore, a magistrate can come to a findings of fact based only on the evidence of the case.  Therefore, although section 19(2) empowers the prosecution to make closing submission, it does not necessarily mean the protection of the right to a fair trial and equality of arms has been infringed.  The Judge then ruled that section 19(2) does not infringe the protection of human rights.

In light of the above analysis, the Judge held that Ground of Appeal (1) failed.
 
Ground of Appeal (2) : The Magistrate erred in interpreting the definition of  “direct marketing” and therefore came to the wrong finding that the Appellant provided the relevant data to Miss Tam for use in direct marketing.

Regarding the actus reus in section 35J, the Appellant argued that it was necessary for the prosecution to prove beyond reasonable doubt that the relevant data was used in direct marketing.   As the calls made by Miss Tam to PW1 did not amount to direct marketing, the prosecution had failed to prove the actus reus of the offence, i.e. “Miss Tam has used PW1’s personal data in direct marketing”.   Furthermore, the word “offering” as appeared in the statutory definition of “direct marketing”, should be given its meaning in contract law.

As to the mens rea in section 35J, the Appellant argued that the prosecution has to prove beyond reasonable doubt that the defendant ‘intends’ to provide the relevant data to others for use in direct marketing, which  is so worded in the provision.

The Judge considered that section 35J(5) aims at requiring a data user to take each and every specified action in subsection (2) before providing a data subject’s data to another person for use in direct marketing.   Accordingly, the elements required for proving the section 35J(5) offence cannot possibly include the use of personal data by a third party in direct marketing after provision of the data.   In this case, whether or not Miss Tam did use PW1’s personal data in direct marketing was not an element of actus reus of the section 35J(5) offence that the prosecution was required to prove.

The Judge adopted the decision made in香港特別行政區 訴 香港寬頻網絡有限公司  HCMA 624/2015, that “offering” should not be restricted to the meaning of “offer” under contract law, but should include the meaning of offering to provide.   The Judge further pointed out that should “offering” be construed only in the context of contract law, it is difficult to envisage a data subject to allow his communication with the caller or sender of email or text message to proceed to the stage of an “offer”, if he is never interested in the goods, facilities or services involved.   In other words, if a data subject decides to end the communication before both parties can proceed to the stage of an “offer” in the context of contract law, such “offer” would never happen.  The legislative intent of enacting the provision could never be achieved.

The Judge held that Ground of Appeal (2) failed.
 
Ground of Appeal (3) : The Magistrate failed to apprehend the definition of “data” and “personal data”, and thus erroneously ruled that the data provided by the Appellant to Miss Tam amounted to “personal data” under the Ordinance.

It was not disputed that according to the definition of “data” under the Ordinance, the data has to be recorded in a “document” to amount to “personal data” as defined in the Ordinance.  The Appellant argued that PW1’s data became “personal data” only at the moment when Miss Tam jotted down in writing and stored in her mobile phone, but not at the time of the Appellant providing the same to her given such data had not yet been recorded in a “document”.

The Magistrate ruled that the combination of PW1’s Christian name and phone number constituted his “personal data”.   The Judge considered such ruling to be accurate and could not be criticized.  The evidence of this case clearly showed that after the exchange of name cards between the Appellant and PW1, the Appellant stored in his mobile phone the telephone number of PW1 under the latter’s Christian name and surname.  At the time of the Appellant providing PW1’s Christian name and mobile phone number to Miss Tam, irrespective of whether they were transmitted to Miss Tam in the form of words, image or even informed orally, such data was long recorded in the name card obtained by the Appellant from PW1 and stored in the Appellant’s mobile phone.   As such, the data was recorded in a “document” and constituted “personal data” as defined in the Ordinance.  The data did not become “personal data” only after Miss Tam jotted down in writing and stored in her mobile phone.

The Judge held that Ground of Appeal (3) failed.
 
Ground of Appeal (4) :  The prosecution case was fundamentally inconsistent with PW1’s testimony, and coupled with other doubts, gave rise to a lurking doubt which rendered the conviction in this case to be unsafe and unsatisfactory.

The Appellant argued that the prosecution stated in its closing submission that the Appellant provided PW1’s Christian name and mobile phone number to Miss Tam, but PW1’s testified that during the two telephone calls, Miss Tam addressed him with his full Chinese name and surname.   In addition, Miss Tam addressed PW1 with his Christian name and surname in the WhatsApp messages.  The Appellant submitted that there was no evidence during the trial suggesting Miss Tam might obtain PW1’s full Chinese name and full English name through other channels.

The Judge considered that the closing submission did not form part of the evidence.   The Appellant could not use the prosecution’s submission to attack the credibility of PW1’s testimony.   The Magistrate, in considering whether the prosecution could successfully prove the element of personal data of this offence, had fairly taken into account only the Christian name and phone number of PW1.   Further, the Judge considered that other criticisms of the Appellant against PW1’s credibility were frivolous.

The Judge held that Ground of Appeal (4) failed.
 
Conclusion
The Judge reheard the case by considering all the evidence contained in the bundle(s), and found that there was sufficient evidence to prove beyond reasonable doubt all the elements of the offence.  The Judge therefore dismissed the appeal.
 
Barrister Mr. Tien Kei Rui instructed by Messrs. John C. H. Suen & Co., for the Appellant
Mr. Ivan Cheung, Ag. Senior Public Prosecutor of the Department of Justice, for the Respondent