(AAB Appeal No. 71 of 2016)
Data access requests –– director acted as guarantor and mortgagor of company's loans – overlapped with AAB No.62/2016 – default event – demand in writing for full payment – destination of net sale proceeds of property
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.63/2016) :-
(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 Appellant lodged 61 data access requests with the bank seeking information about the company's current and loan accounts, repayment history and details of guarantees and mortgage executed by the Appellant. Some of these requests to a certain extent overlapped with those made under AAB No.62/2016. Failing to receive all the requested documents from the bank within the statutory 40 days' time limit, the Appellant lodged his complaint with the Commissioner.
The Commissioner's Decision
After the Commissioner's intervention, the bank provided further documents in purported compliance with some of the data access requests. The Commissioner finally decided not to proceed with the Appellant's complaint on the following grounds :-
(1) The bank had previously provided the Appellant with documents specified in 3 out of the 61 data access requests (Item Nos. 9, 19 & 36).
(2) Among the 61 data access requests, 18 of them were related to transactions between the company and the bank. Those documents were signed by the Appellant on behalf of the company, and did not contain his personal data. The bank was therefore not obliged to comply with these data access requests (Item Nos. 1 to 3, 8, 10 to 11, 15, 20 to 22, 24, 28, 32 to 33, 39, 46 to 48).
(3) The bank did, pursuant to the Commissioner's ruling, provided the documents stated in 3 data access requests, with the identifying particulars of other third parties redacted (Item No. 5, 24 and 37).
(4) The bank had complied with section 19(1)(b) of the Ordinance by informing the Appellant that it did not hold any personal data which was the subject of the remaining 37 data access requests.
Dissatisfied with the Commissioner's decision, the Appellant lodged an appeal to the AAB.
The Appeal
With regard to the 18 data access requests which were related to the transactions between the company and the bank, the Appellant argued that he and his wife were "liable as an independent principal debtor" under Clauses 21(a) and (b) of the Guarantee. Hence, he should be entitled to a copy of these documents. Nevertheless, the AAB accepted the Commissioner's interpretation that these clauses only served to facilitate enforcement action against the Guarantors directly without recourse to the company being the Principal Debtor. It was only after the bank demanding in writing full payment of the company's loan from the Appellant (i.e. occurrence of the "default event") that subsequent documents might contain his personal data.
The Appellant submitted that the bank did demand in writing full payment from him on 3 occasions, i.e. in 2005, 2009 and 2015. Hence, the "default event" arose back in 2005 and the Appellant should be entitled to all documents after that date (i.e. Item Nos. 40 to 58). Although the Appellant was charged at the default interest rate for amount overdue since 2005, the AAB took the view that his failure to adhere to the repayment terms would not have changed the nature of the documents. The Appellant was never the data subject concerned in these documents.
Regarding Item No.37, the Appellant submitted that the Commissioner erred in ruling that the 3 cheques representing the net sale proceeds of the property did not contain his personal data. He argued that he was one of the mortgagors and should be entitled to know the destination of the sale proceeds. The AAB accepted that the bank's disclosure of the particular part of its staff's affirmation filed in the High Court action should be sufficient in accounting for the destination of the net sale proceeds. The AAB had examined the 3 cheque copies issued by two solicitors' firms to the bank, and was satisfied that they did not contain the Appellant's personal data.
The AAB's Decision
The appeal was dismissed.
(Uploaded in October 2019)