Case Notes

(AAB APPEAL NO.21/2019)

Property manager – collection of personal data by unlawful or unfair means – data subject’s consent – new purpose – pre-action letter

Coram:
Dr Lo Pui-yin (Presiding Chairman)
Mr Simon Chan Cham-man (Member)
Mr Dick Kwok Ngok-chung (Member)

Date of Decision: 28 April 2020

The Complaint

The party being complained against is a staff of the property manager of the Appellant’s housing estate (“PCA”). The Appellant complained that the PCA used his name and address without his consent for issuing a letter to him regarding a private dispute between them. The Appellant complained to the Commissioner that the PCA collected his personal data by unlawful or unfair means.

The PCA explained that his young daughter was traumatised by the Appellant’s scolding and he might pursue civil action against the Appellant if necessary. Therefore, he issued the pre-action letter to the Appellant after learning his name and address from other residents. During investigation, the PCA confirmed to the Commissioner that he had erased the Appellant’s personal data.

The Commissioner’s Decision

After preliminary enquiry, the Commissioner took the view that the fact that the PCA obtained the Appellant’s personal data from other residents did not constitute unlawful or unfair means of collecting personal data. Besides, the Personal Data (Privacy) Ordinance (“the Ordinance”) did not require data users to obtain prior consent from data subjects before collecting their personal data. Even if the PCA used the data collected in the course of daily property management work for a new purpose, he was exempt by virtue of s.60B of the Ordinance as he used the data for issuing a pre-action letter, i.e. for defending his legal rights. Therefore, the Commissioner decided not to carry out an investigation of the Appellant’s complaint as there was no prima facie evidence of contravention of any requirement under the Ordinance.

Dissatisfied with the Commissioner's decision, the Appellant lodged an appeal to the AAB.

The Appeal

The AAB allowed the Appeal for the following reasons:

1. The AAB had certain doubts in the PCA’s verbal testimony at the hearing and thus could not agree with the Commissioner’s view that there was no sufficient evidence of contravention on a balance of probabilities;
2. The AAB found that the PCA’s allegation that he merely tried issuing the letter to the Appellant after learning the Appellant’s name and address from other residents was inconsistent with the complete and accurate name and address stated in the letter;
3. Since the PCA stated that the property management office had the estate residents information, the AAB considered that it was necessary to investigate the access control to such information in order to determine how the PCA collected the Appellant’s personal data and whether the means were unlawful or unfair;
4. The Commissioner’s mediation only dealt with one aspect of the complaint which was not the fundamental or critical aspect.

The AAB’s Decision

The appeal was allowed and the complaint was remitted for the Commissioner’s investigation.

(Uploaded in June 2020)