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employer may consider collecting the information if the prospective employee will be
involved, or will be likely to be involved in frequent or regular contact with children or
mentally incapacitated persons.
The Scheme does not operate to give prospective
employers a blanket right to ask for the sex offence related criminal records from job
applicants unless the stated circumstances of the Scheme are satisfied and it is
necessary for the prospective employers to collect such criminal records. Further,
employers should note that section 2 of the Rehabilitation of Offenders Ordinance (Cap
297) provides that if an individual was sentenced to imprisonment not exceeding three
months or to a fine not exceeding HK$10,000, such individual will be treated as not
having been convicted for the offence, if a period of three years has elapsed without
further conviction. Previous record of this kind or failure to disclose the conviction will not
form lawful grounds for dismissing or excluding an individual from any office, profession,
occupation or employment.
DPP1(2)
5.30
Data Protection Principle 1(2) in Schedule 1 of the Ordinance provides as follows:
(2) Personal data shall be collected by means which are –
(a) lawful; and
(b) fair in the circumstances of the case.
5.31
DPP1(2)(a) requires a data user to collect personal data by lawful means. The means of
collection is unlawful if it is prohibited under any law. The theft of one’s credit card or
bank account information is a typical example of collection by unlawful means. An
example of the collection of personal data by lawful means is the lawful interception of
a person by the police in exercise of the powers conferred under relevant enabling
legislation
24
and the subsequent recording in the police notebook of the particulars of
the person as shown on his identity card with the aim of investigating and preventing
crime.
25
5.32
An obvious example of data being obtained by unfair and perhaps also unlawful means
is personal data obtained through deception or coercion, for instance, the offering of
free gifts on the street by a survey conductor to attract passers-by to complete a
questionnaire and to provide their personal data without making known to them that
the purpose is, in fact, to collect and amass personal data for sale in bulk to direct
marketing companies for profits.
5.33
In a complaint case, telemarketers made cold calls to target customers and offered
them free medical check-ups in return for their provision of personal data including
names, contact details and HKID numbers. The collected personal data was passed to
an insurance broker for use in direct marketing activities.
The telemarketers provided
24
Section 54 of the Police Force Ordinance.
25
See
Wong Tze Yam v Tang King-shing, Commissioner of Police and Secretary for Justice,
CACV 199/2009.