9 / 192
person with whom he may have been involved.
This judicial ruling became useful authority followed by the UK privacy authority in
interpreting the meaning of personal data under the Data Protection Act 1998. However,
application of the arguments or principles in this English authority to Hong Kong cases
must be considered with great care. As pointed out by the learned judge in Wu Kit Ping
v. Administrative Appeals Board [2007] HKLRD 849:
I have come to the conclusion that the substantial differences between the English legislation
and the Hong Kong legislation means that great care must be taken in attempting to apply
either arguments or principles used in the English cases when considering issues arising under
the Ordinance. Consequently, rather than attempt to approach the issues on same point of
view as the English courts, I have found it more appropriate to examine the language of the
legislation and to attempt to discern its true interpretation.
1
2.9
In the case of data that bears only an indirect relationship to an individual, it is
questionable whether there in fact exists a certain point (and, if so, how to determine
such a point) beyond which the relationship may be considered to be so remote that it
fails to satisfy the condition laid down in paragraph (a). For example, while it should be
reasonably obvious that in the case of an unincorporated business owned by an
individual, data about debts owed by the business relates directly to the sole proprietor,
whether or not a relationship exists may become progressively less clear in other cases
where, say, the business is owned by a partnership in which the individual is one of the
partners, or where the business is owned by a company and the individual is merely one
of many shareholders, and so forth.
2.10
In the case of Wu Kit Ping, the complainant made a data access request to a data user
asking them to supply her with written statements concerning her health condition which
had been given by medical officers to the data user. The data user supplied the
relevant documents to the complainant but made certain redactions which can be
divided into three categories:
(i) in several letters and a statement concerning the diagnosis, treatment and use of
medications of the complainant, the names of the writers and recipients, not being
the complainant;
(ii) in a letter from a writer to a recipient, who was not the complainant, the writer’s
statement concerning his conduct of the treatment of the complainant in his
professional capacity; and
(iii) the writer’s general statements made in a letter.
2.11
The Court considered that the names of the writers and recipients in category (i) were
personal data of the writers and recipients, not the complainant, nor did they fall within
the scope of personal data “relating directly or indirectly” to the complainant.
The
redactions were therefore lawful. In respect of category (ii), the Court considered that
1
The cases of
Durant
and
Wu Kit Ping
have been referred to by the Hon. Bharwaney J in his judgment in
Chan Yim Wah
Wallace v. New World First Ferry Services Limited
[HCPI 820/2013]. See paragraphs 12.78 to 12.81 in Chapter 12 for
detailed discussion.