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

22 / 192

minutes was about a report of an accident with a boiler. On appeal against the
Commissioner’s finding of no contravention, the Chairman of the AAB ruled that the
contents of the minutes did not amount to the personal data of the complainant but
was primarily concerned with the piece of equipment in question, although it had
recorded some of the remarks made by the complainant. The complainant applied for
judicial review of the AAB’s decision. In the judicial review (HCAL 1050/2000) the Court of
First Instance applied the Eastweek case and ruled that the minutes concerned issues
arising from the maintenance and repair of the boiler only, and the identity of the
complainant was not an important piece of information to the data user. In the
circumstances, the Court held that the contents of the minutes did not contain the
complainant’s personal data. The decision of the Court of First Instance was confirmed
by the Court of Appeal (CACV 960/ 2000). If there is no compilation of information about
the member or employee, then Condition A is not satisfied; hence, according to the
judgment of the Eastweek case, there is no collection of personal data of any members
or employees present at the meeting whose discussion may happen to be recorded in
the minutes.
3.17 In an investigation2 carried out by the Commissioner into a management company
operating a car park, a staff member of the management company was found to have
conducted searches with the Transport Department using licence plate numbers he had
collected with a view to finding out the names and contact addresses of the registered
car owners. Direct marketing leaflets were then sent to these owners. The management
company in this case had clearly shown an intention to compile and did compile
information about individuals whom it intended or sought to identify. The act (of physical
receipt of the information) coupled with the requisite intention (of the data user to
compile or seek to compile information about a specific individual) constitute collection
of personal data under the Ordinance.
3.18 Furthermore, the clandestine taking of photos by a reporter of a targeted individual
without his knowledge or consent could amount to collection of his personal data when
the above conditions are met. This was the case in two investigation reports3 in which
three artistes, engaged in personal activities in their private residences were
photographed from a distance outside using cameras with tele-focus lenses. There was
no doubt that the intention of the photographers was to compile information about the
artistes’ private lives to be published in a magazine.
3.19 The actual circumstances must be examined on a case by case basis to determine
whether or not there has been any “collection” of personal data concerning an
individual.
Consequence of Absence of “Collection”
3.20 Apart from providing judicial meaning to the term “collect” and a data user’s act of
2 See Investigation Report No. R12-3428, available on the Website:
3 See Investigation Reports Nos. R12-9159 and R12-9164, available on the Website: