172 / 192
direct the Commissioner not to carry out an inspection or investigation and the
Commissioner shall comply with that directive.
12.28
This exemption is necessary in safeguarding security, defence or international relations in
respect of Hong Kong. For cases concerning non-compliance with a data access
request, the Commissioner has taken a broad approach in deciding whether
compliance with a data access request would jeopardise the purposes covered by
subsection (1).
12.29
The issue was illustrated in one case in which a complaint was lodged against a law
enforcement agency for non-compliance with a data access request made under
section 18(1). The requestor asked for records and documents in the law enforcement
agency’s possession that “. . . relate to or assist the [law enforcement agency] to come
to the view or conclusion that I am a member of or linked to any triad society”. The law
enforcement agency refused to confirm or deny the existence or non-existence of the
data. The reason put forward was that the disclosure of such information, even if it
existed at all, would put the lives and well-being of those individuals who contributed the
information to the law enforcement agency in jeopardy. Exemptions under sections
57(1), 58(1)(a) (i.e. the prevention or detection of crime) and 58(1)(b) (i.e. the
apprehension, prosecution or detention of offenders) were invoked with a view to
justifying non-compliance with the data access request. The Commissioner found that
there was no contravention of DPP6 on the grounds that the elements of these
exemption provisions were satisfactorily proved by the law enforcement agency. The
statutory duty of the law enforcement agency to inform the requestor whether the data
existed or not under section 18(1)(a) may also be exempted under section 63 in these
circumstances. For the scope of application of section 63, readers are referred to
paragraphs 12.99 to 12.102.
12.30
In coming to the aforesaid conclusion, consideration was given by the Commissioner to
the fact that the law enforcement agency had a substantial interest to ensure that all
statements made in confidence by members of the public to the law enforcement
agency were full and frank without fear of their statements being later used for another
purpose. The candour of informants would be inhibited if their statements were liable to
be accessed by the individuals mentioned therein.
Section 58 —Crime, etc.
12.31
Among the various exemptions in Part 8, section 58 probably has the widest application,
and thus deserves careful study. It covers personal data held or used for the following
purposes:
(1)
(a) the prevention or detection of crime;
(b) the apprehension, prosecution or detention of offenders;
(c) the assessment or collection of any tax or duty;
(d) the prevention, preclusion or remedying (including punishment) of unlawful or
seriously improper conduct, or dishonesty or malpractice, by persons;