174 / 192
the Hong Kong, or of a place outside Hong Kong if personal data is held or used in
connection with legal or law enforcement cooperation between Hong Kong and that
place. “Offender” is defined to mean a person who commits a crime. The definitions were
added by the Amendment Ordinance in order to exempt the provision of personal data
by law enforcement authorities to their overseas counterparts for criminal investigations or
detection of crimes overseas under multilateral and bilateral cooperative agreements or
arrangements. It would also enable assistance to be provided to foreign jurisdictions in
verifying personal data in connection with requests for legal assistance.
12.37
In comparison, the purposes specified in paragraphs (d) to (g) appear to be more
complicated. The purposes specified under paragraph (d), namely, “the prevention,
preclusion or remedying (including punishment) of unlawful or seriously improper
conduct, or dishonesty or malpractice, by persons”, probably have the greatest
practical importance. AAB No. 26/2004 is an example on dishonesty. In the appeal, the
complainant being a member of the disciplinary forces was subjected to disciplinary
hearings which had to be repeatedly postponed as a result of the complainant’s
sickness. With reasonable suspicion, the employer disclosed the holding of the
disciplinary hearings to the complainant’s doctors in order to obtain a medical
certificate regarding his physical and mental fitness to attend the hearing. The AAB held
that disclosure in the circumstances of the case met the purpose under section 58(1)(d),
i.e. for “prevention, preclusion or remedying . . . of dishonesty . . .” in avoiding the
proceedings.
12.38
As regards what constitutes “seriously improper conduct”, a provision is found in section
2(9). It is deemed to be seriously improper conduct when a person who holds any office,
profession or occupation, and is required by any law or rule to be a fit and proper person
to hold such office, profession or occupation, commits any conduct by which he ceases
(or would cease) to be a fit and proper person. Section 2(13) also regards it to be seriously
improper conduct if such conduct by a person has made him or could have made him a
disqualified person or a suspended person under the Rules of Racing and Instructions by
the Stewards of the Hong Kong Jockey Club. For conduct not otherwise falling within the
statutory definitions mentioned, the term “seriously improper conduct” has received
judicial scrutiny in a number of cases.
12.39
In M v M [1997] [FCMC 1425/1998], an ex-wife sought from the Housing Department the
current address of her divorced husband, with a view to enforcing her right to
maintenance payments pursuant to a Court order. The Department refused to disclose
such personal data about the husband on the grounds that this might be contrary to
DPP3. Saunders, Deputy D.J. (as he then was) ruled, however, that although there is no
definition in the Ordinance of the expression “seriously improper conduct”, the failure to
pay maintenance in breach of the Court Order amounted to a contempt of Court and
as such was “seriously improper conduct” as those words are naturally used and
understood in section 58(1)(d). In the circumstances of the case, the application of the
provisions of DPP3 to the use of the data would prejudice the wife’s taking steps to
prevent the husband’s seriously improper conduct. Accordingly, the exemption from
DPP3 under section 58(2) was available.