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

took place between him and his supervisor. The purpose of the lunch meeting was to

discuss the teacher’s performance and to offer counseling to the teacher. The recording

was made without the knowledge of the supervisor and the recorded conversations

were subsequently uploaded onto a website accessible by the public. The case went on

appeal to the AAB in AAB No. 46/2006. The AAB took the view that the subsequent use

of the recorded conversations indicated that the recording was not made bona fide in

that it was not simply for keeping a record of the meeting. The AAB agreed that the

means of collection of the personal data contained in the recorded conversations were

unfair, contrary to DPP1(2).

5.43

In another case concerning employee monitoring, the AAB in its decision in AAB

No.25/2013 agreed with the Commissioner that the collection of the personal data, by

searching the employer’s own computer system and the office email account for use of

the complainant, was not unfair because the monitoring conformed with the employer’s

IT policy. The complainant was informed of the policy when she signed the employment

letter. Such policy covered the monitoring activities complained of which had been

undertaken after some serious allegations against the complainant’s supervisor were

made and the irregularities about the complainant’s application to sit for a qualifying

examination were raised. Furthermore, the scope and duration of the monitoring

activities were appropriate in view of the purpose.

5.44

The use of covert monitoring devices to collect personal data without the data subject’s

knowledge is generally taken to be highly privacy intrusive, more so if these devices

have been installed in places where there is a legitimate expectation of privacy, for

example, in changing rooms or bedrooms. In the Privacy Guidelines: Monitoring and

Personal Data Privacy at Work issued by the Commissioner, data users are advised to

carefully evaluate the need for engaging in covert monitoring which should only be

used as a last resort after taking into account the following factors, namely:

•

that there is a reasonable suspicion to believe that an unlawful activity is about to

be committed, is being committed or has been committed;

•

that the need to resort to covert monitoring to detect or collect evidence of that

unlawful activity is absolutely necessary in the circumstances;

•

that the use of overt monitoring would likely prejudice the detection or the

successful gathering of the evidence of that unlawful activity; and

•

that covert monitoring can be limited in scope so that it targets only those areas in

which the unlawful activity is likely to take place and it is undertaken on a limited

duration basis.

Collection of the Activities of Individuals That Take Place inside a Private Residence by

Dissatisfied with the AAB decision, the teacher applied for leave for judicial review, and the application was refused by

the Court, see

HCAL 90/2011

See Paragraph 2.3.3 of the Guidelines, available on the Website: