Personal Data (Privacy) Law in Hong Kong – A Practical Guide on Compliance

the reply and documents supplied, the Commissioner took the view that the former

employer had complied with his requests. It was also noted that the complainant had

separately commenced legal action against his ex-employer for unlawful dismissal. The

way and manner that the complainant conducted his complaint led the Commissioner

to conclude that the complaint was frivolous, vexatious or not made in good faith under

section 39(2)(c) of the Ordinance. Dissatisfied with the Commissioner’s finding, the

complainant applied to the Court of First Instance for judicial review.

10.96

The Judge

dismissed the application and ruled that since it transpired that the

complainant had already obtained or would be able to obtain the documents he

requested in the process of legal discovery in the separate lawsuits, the attempt to

obtain his personal data by lodging data access requests against his ex-employer under

section 18 of the Ordinance had become meaningless. The fact that in AAB No. 46/2004

the AAB accepted the fact that the complainant had obtained a copy of the

document she requested in her data access request through other legal proceedings is

a relevant factor for the Commissioner to consider in exercising his discretion to refuse to

carry out any or further investigation under section 39(2)(d).

Cheung J. in judgment given in

Tsui Koon Wah v Privacy Commissioner for Personal Data [2004] 2 HKLRD 840

Section 39(2)(d) provides that the Commissioner may refuse to carry out or decide to terminate an investigation initiated

by a complaint if he is of the opinion that any investigation or further investigation is for any other reason unnecessary.

According to the Complaint Handling Policy of the Commissioner, an investigation or further investigation may be

considered unnecessary if there is no prima facie evidence of any contravention of the requirements under the

Ordinance, or the investigation or further investigation cannot reasonably be expected to bring about a more

satisfactory result given the circumstances of the case, etc.