166 / 192
Section
No.
Exemption
Application
63D
Transfer of records to
Government Records
Service
DPP3
Section 51A— Performance of Judicial Functions
12.3
Section 51A provides as follows:
(1) Personal data held by a court, a magistrate or a judicial officer in the course of performing
judicial functions is exempt from the provisions of the data protection principles and Parts 4 and
5 and sections 36 and 38(b).
12.4
“Judicial officer
”
is defined in section 51A(2) to have the same meaning given by
section 2 of the Judicial Officers Recommendation Commission Ordinance (Cap 92)
(
“
JORCO
”
). Section 2 of JORCO defines
“
judicial officer
”
as “a holder of a judicial office”,
as listed in Schedule 1 of JORCO (which includes a judge of the Hong Kong High Court,
a Magistrate, a Coroner, etc.). This new exemption was introduced by the Amendment
Ordinance and came into effect on 1 October 2012. Article 85 of the Basic Law states
that the Courts of the Hong Kong Special Administrative Region shall exercise judicial
power independently, free from any interference. In discharging his regulatory powers
under the Ordinance, the Commissioner is mindful that the application of the Ordinance
shall not fetter or disrupt the fundamental principle of judicial independence recognised
under the Basic Law when personal data is handled by the judicial officers in the course
of performing judicial functions. This section 51A is consistent with the position taken by
the Commissioner and the AAB before the Amendment Ordinance came into effect.
1
12.5
In AAB No. 39/2004, in support of his application to revive the hearing of a claim made
before the Small Claims Tribunal, the plaintiff submitted his sickness certificate to the
Tribunal for consideration. The Tribunal disclosed the sickness certificate to the
defendant. The plaintiff complained against the Tribunal claiming that there was a
breach of DPP3. The Commissioner found that such act was performed in the course of
the exercise of the judicial function by the Tribunal, and hence outside the scope of the
Ordinance and the Commissioner had no power to intervene. On appeal to the AAB,
the AAB upheld the decision of the Commissioner and reiterated that the exercise of the
1
In
AAB No. 54/2014
, an appellant (being a website operator) argued that the effect of section 51A of the Ordinance
was that all personal data that appeared in Court judgments was exempted from all the data protection principles. He
therefore claimed that his disclosure of the complainant’s identity relating to three anonymised Court judgments was
exempted from DPP3 by virtue of section 51A. Rejecting the argument, the AAB explained that the appellant had never
been a judicial officer and the relevant personal data was never held by him in such a capacity. Hence, section 51A did
not apply to his case.