Re Yung Mei Chun Jessie

CACV 85/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 85 OF 2014

(ON APPEAL FROM HCAL NO 106 of 2012)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.In HCAL 106 of 2012, the Applicant Yung Mei Chun Jessie applied for leave to commence application for judicial review against the decisions of the Administrative Appeals Board in AAB Nos 26 of 2009 and 7 of 2010. In both appeals, the Applicant appealed against the decisions of the Privacy Commissioner for Personal Data refusing to carry out investigation in respect of her complaints (made on 22 June 2009 and 12 January 2010 respectively) concerning the Commissioner’s disclosure of her information in the course of investigations of her other complaints. The decisions of the AAB were made on 9 May 2012 in writing with reasons set out in the decisions.

2.The application of leave was heard by Au J on 23 January 2014. On 4 April 2014, Au J refused to grant leave.  Au J’s reasons for refusal were, in line with usual practice of the court in proceedings in the Constitutional and Administrative Law List, set out in the CALL-1 Form sent to the parties.  The reasons were as follows:

“ 1. In relation to the Board’s decision under AAB 7/2010, the principal reason for dismissing the appeal was premised on the conclusion that the Commissioner was entitled to write to the Small Claims Tribunal to ask for further information for the purpose of carrying out the applicant’s complaint against Merrill Lynch (“ML”). More importantly, the Board also found that in these letters, none of the applicant’s personal particulars were given, and thus the information disclosed to the Small Claims Tribunal did not amount to the applicant’s personal data within the definition of the Personal Data (Privacy) Ordinance (“the Ordinance”). In the premises, the Board concluded that there was no breach of the Ordinance. The conclusion is reasonably open to the Board to arrive at as a matter of law and on the evidence.

2. It is therefore not reasonably arguable that this conclusion is wrong in law or Wednesbury unreasonable. The Board’s said conclusion to dismiss the applicant’s appeal under AAB 7/2010 is thus not challengeable by way of judicial review, whether or not the Board had also allegedly misunderstood the applicant’s 4^th ground of appeal (as summarized at paragraph 5 of the Board’s Written Decision) as contended by the applicant in this application.

3. In relation the Board’s decision under AAB 26/2009, one of the grounds for the Board to dismiss the applicant’s appeal is that the Commissioner’s inclusion of the two documents (provided by the applicant to the Commissioner in a separate complaint against ML) in AAB 18/2008 had already been determined by the Chairman of the Board under that appeal to be relevant and necessary for the purposes of that appeal (paragraphs 41-44 of the Written Decision). In the premises, the Commissioner was correct in any event not to carry out the investigation of the applicant’s complaint that the Commissioner had without her consent included those two documents in AAB 18/2008 (i.e., the June Complaint, as defined in the Written Decision). The Commissioner was clearly entitled to refuse to carry out the investigation under s 39(2) of the Ordinance.

4. Again, it is not reasonably arguable that this conclusion of the Board to dismiss the appeal is wrong in law or Wednesbury unreasonable.

5. The court has some reservations as to the correctness of the Board’s further reasoning (in addition to the above) in AAB 26/2009 that, on a proper construction of the Ordinance, a s 38 investigation does not cover a complaint against the Commissioner himself.  However, it is unnecessary for the court to determine this for the present purposes, as the Board’s said dismissal of the appeal remains correct and thus unchallengeable under judicial review for the above reasons.”

3.The Applicant appealed against the decision of Au J by a notice of appeal of 17 April 2014.  The grounds of appeal in the notice of appeal were as follows:

“ I received the Court order/written decision but could not see the Court justification of refusing to give leave. I therefore wrote to the Court asking for the written decision. However, the Court said that reasons have been given in the written decision.

As I could not see the reason, I shall submit my original grounds which were used to support my application for leave to Judicial Review for the Court of Appeal consideration.”

4.The Applicant made an application to fix date for hearing of this appeal on 22 May 2017.  The Registrar of Civil Appeals granted directions for fixing of date on 24 May 2017.  In those directions, the Registrar also directed the Applicant to comply with Section G of PD 4.1 in respect of lodging and service of skeleton argument and list of authorities.

5.The hearing date of the appeal was fixed on 1 June 2017 with the agreement of the Applicant (given on her behalf by her husband before the Listing Officer).  The appeal was scheduled to be heard on 9 November 2017. 

6.Notice of hearing was issued and sent to the Applicant on 21 June 2017.  In the notice, the Applicant was reminded to comply with the directions of 24 May 2017.

7.Paragraph 57 of PD 4.1 requires an appellant to lodge skeleton argument and list of authorities at least 28 days before the hearing of the appeal.  Hence, in the present appeal, the Applicant should have lodged her skeleton argument and list of authorities by 12 October 2017. 

8.The Applicant did not lodge any skeleton argument and list of authorities at all.  Attempts by court clerk to contact the Applicant concerning the lodging of these documents were unfruitful. 

9.On 31 October 2017, Lam V-P made the following unless order:

“ Unless the Appellant shall lodge 3 copies of her skeleton submissions (not more than 15 pages) by 12:00 noon on 3 November 2017, the hearing date of 9 November 2017 shall be vacated. The appeal shall be disposed on the papers based on existing materials before the court and her Notice of Appeal shall be treated as her skeleton submissions.”

10.The unless order was served on the Applicant on 2 November 2017 by leaving at her address given in the notice of appeal by the bailiff.

11.Despite that order, the Applicant did not lodge any skeleton submission or list of authorities.

12.On 3 November 2017, she sent to the Court by fax a letter saying that she withdrew the appeal with immediate effect.

13.The hearing date was vacated in accordance with the unless order.

14.It is not the practice of this Court to permit an appeal to be withdrawn.  In light of the developments set out above, it is clear to us that the Applicant has no intention to prosecute the appeal further.  We have considered the appeal based on the materials before us.  We do not find the grounds of appeal to be meritorious.  Au J had already given reasons in the CALL-1 Form.  There is nothing before us to suggest that the judge erred in law or fact in coming to his decision.

15.We dismiss the appeal accordingly.

The applicant appeared in person