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

Since tort is a civil wrong, the bringing of a civil claim for damages in tort amounts to the

remedying of unlawful or seriously improper conduct. For these reasons, I have no hesitation in

coming to the conclusion that the words contained in section 58(1)(d) of the Personal Data

(Privacy) Ordinance is (sic) sufficiently wide to cover a claim for damages in a personal injuries

and/or fatal accident case.

12.45

The analysis in the Lily Tse Lai Yin case was adopted in Cinepoly Records Co. Ltd. and

Others v Hong Kong Broadband Network Ltd and Others [2006] HKLRD 255, in which

seven music producers sought discovery from four internet service providers the names,

HKID numbers and addresses of twenty-two alleged online copyright infringers. The

Court in the Cinepoly case ruled that the phrase “unlawful and seriously improper

conduct” covers copyright infringement, and the music producers’ use of the personal

data sought was clearly for the purpose of prevention, preclusion (in the form of

injunctions) or remedying of the copyright infringements of the producers’ musical works.

12.46

In another judicial decision, Oriental Press Group Limited v

Inmediahk.net

Limited [2012]

2 HKLRD 1004, the plaintiff filed an action of defamation against the articles published

online through a website hosted by the defendant. The plaintiff sought discovery from

the defendant of the full name, HKID number, mobile phone number, email address and

residential address of the internet user who posted online the articles claimed to be

defamatory. The Court, in granting the application allowed for the discovery of only the

full name, email address and residential address of the internet user in question. The

Court was not satisfied that the HKID number and mobile phone number were

information necessary for the contemplated legal action and doubted if they were data

falling within the exemption under section 58(1)(d) and 58(2) of the Ordinance.

12.47

The disclosure of complaint details to the person being complained against for a

purpose under section 58(1)(d) was considered in AAB No. 1/2015. In that case, a school

received a complaint letter from a parent containing allegations of improper conduct

committed by a teacher. The school disclosed a copy of the complaint letter to the

teacher’s solicitors for the purpose of instituting legal proceedings against the parent for

defamation. The AAB considered that such disclosure was for the purpose of remedying

a civil wrong and hence exempted under section 58.

12.48

In Chan Chuen Ping v. The Commissioner of Police, [2014] 1 HKLRD 142, prior to taking

out a writ, a victim’s solicitors wrote to the police requesting the essential information

revealing the identities of two individuals (being the person who allegedly caused the

accident and a potential witness) so as to enable the victim to advance a personal

injury claim for damages as a result of an injury sustained by him. The police refused to

supply the information and maintained that the victim had to issue a writ first. Deputy

Judge Seagroatt was of the view that section 58(1)(d) covered steps to remedy a civil

wrong (i.e. unlawful conduct) and there could be no justification for withholding the

data requested by the victim.

The AAB also considered that the disclosure was exempted under section 60B as the information was required by the

teacher for defending his legal rights in Hong Kong (namely, to prove his case in respect of the parent’s allegations). For

detailed discussion of the exemption under section 60B, see paragraphs 12.74 to 12.81.

See also the judgment of Deputy Judge Seagroatt in

Chan Wai Ming v. Leung Shing Wah

[2014] 1 HKLRD 376.