183 / 192
12.73
A data user may invoke this exemption not to comply with a data access request on the
grounds that such disclosure will result in the data user self-incriminating itself in relation
to an offence, other than an offence under the Ordinance. Further, any information
disclosed by a data user in compliance with a data access request will be inadmissible
as evidence in prosecuting an offence under the Ordinance. It should be borne in mind
that the burden of proof lies with the data user who seeks to invoke and rely on an
exemption. Mere speculation on the part of the data user that the personal data
disclosed to the relevant data requestor will be self-incriminating is not sufficient.
Section 60B — Legal Proceedings, etc.
12.74
Section 60B is another newly added exemption under the Amendment Ordinance. It
operates to cover situations where a data user may be required or authorised by or
under law, or by the Court to disclose or transfer information which may contain
personal data. If not for the application of this exemption, such use of personal data
may run the risk of contravening DPP3, since the use of the personal data in legal
proceedings may fall outside the original purpose of collection or its directly related
purpose and very often it is not practicable to obtain the prescribed consent of the
data subject for one reason or another.
12.75
Section 60B operates to exempt personal data from the provisions of DPP3 if the use of
the data is:
(a) required or authorized by or under any enactment, by any rule of law or by an order of a
court in Hong Kong;
(b) required in connection with any legal proceedings in Hong Kong; or
(c) required for establishing, exercising or defending legal rights in Hong Kong.
12.76
“Legal proceedings” is not defined under the Ordinance. It is important to note the
territorial application of section 60B which is confined to Hong Kong laws, orders made
by Hong Kong Courts and legal proceedings and rights in Hong Kong. Data users
cannot rely on this exemption to, for example, disclose personal data in any
proceedings that take place outside Hong Kong.
12.77
The Commissioner finds it reasonable and proper that insofar as the use of personal data
for the purpose of legal proceedings is concerned, it is justifiable as an exemption from
use in recognition of the right and freedom of individuals to protect or defend his own
personal or proprietary rights.
11
12.78
The application of section 60B was discussed in the decision of Bharwaney J made on 8
May 2015 in Chan Yim Wah Wallace v. New World First Ferry Services Limited [HCPI
820/2013]. In this case, an application was made to the Court
12
for discovery of
documents including the witness statements and investigation report compiled by the
11
See
AAB No.1/2015
as discussed in paragraph 12.47.
12
Pursuant to section 42(1) of the High Court Ordinance (Cap 4) and Order 24 rule 7A(2) of the Rules of High Court.