Mok Shuk Mui v. The Church of Christ in China Ming Kei College

DCPI368/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 368 OF 2008

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Before:    H H Judge Lok in Chambers (Open to the public)

Date of Hearing: 20 November 2008

Date of Decision:   20 November 2008

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D E C I S I O N

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1.In this application, the Plaintiff applies for specific discovery against the Defendant for the correspondence address and a copy of the Hong Kong identity card of one Madam Yu.

2.The present action involves a claim for damages for personal injuries.  As at the material time, the Plaintiff was employed by the Defendant as a school worker, and it is the Plaintiff’s case that she was injured when she was assigned by the Defendant or its employees to move a display board with her colleagues. 

3.The Defendant, however, denies that the Plaintiff had ever been assigned to carry out such work.  The Defendant has filed 2 witness statements by school workers Mr Lai and Madam Cheung.  According to these witnesses, the Plaintiff was not involved in the moving of the display board at the material time, and such work was only carried out by Madam Yu and themselves. 

4.Obviously, Madam Yu will be a potential witness who can assist the court in determining whether the Plaintiff was involved in the work of moving the display board at the time of the alleged accident.  Madam Yu is no longer working for the Defendant.  However, as ex-employer, it is not disputed that the Defendant is in possession of the information relating to the personal particulars of its ex-employees.  As I see, the only issue here is whether ordering the disclosure of these particulars would infringe the provisions in the Personal Data (Privacy) Ordinance, Cap.486, (“the Ordinance”). 

5.It is common ground that the required information falls within the meaning of “personal data” as defined in section 2 of the Ordinance, and that the Defendant is a “data user”.  As provided for in section 4, a data user shall not do any act that contravenes a Data Protection Principle unless permitted by the Ordinance. 

6.Principle 3 set out in Schedule 1 of the Ordinance requires that the personal data of a person shall not, without the written consent of that person, be used for any purpose other than the purpose for which the data were to be used at the time of the collection of the data or for any purpose directly related to that purpose.  Hence, unless there is any specific exemption in the Ordinance, the Defendant should not disclose the personal particulars of Madam Yu.

7.The Plaintiff now seeks to rely on the exemption provided in ss. 58(1) (d) and 58(2) of the Ordinance, which reads:

“ (1)  Personal data held for the purposes of...

    ……

(d) the prevention, preclusion or remedying (including punishment) of unlawful or seriously improper conduct, or dishonesty or malpractice, by persons:

are exempt from the provisions of data protection principle 6 and section 18(1)(b) where the application of those provisions to the data would be likely to -

(i) prejudice any of the matters referred to in this subsection; or

(ii) directly or indirectly identify the person who is the source of the data.

(2)  Personal data are exempt from the provisions of data protection principle 3 in any case in which -

 (a)    the use of the data is for any of the purposes referred to in subsection (1) (and whether or not the data are held for any of the those purposes); and

(b)   the application of those provisions in relation to such use would be likely to prejudice any of the matters referred to in that subsection,

and in any proceedings against any person for a contravention of any of those provisions it shall be a defence to show that he had reasonable grounds for believing that failure to so use the data would have been likely to prejudice any of those matters.”

8.The ambit of these exemptions had been considered by the Court of First Instance in Lily Tse Lai Yin and others v The Incorporated Owners of Albert House & Others [1999] l HKC 386 and Cinepoly Records Company Limited & Others v Hong Kong Broadband Network Limited & Others [2006] 1 HKLRD 255.

9.In the case of Lily Tse Lai Yin, the plaintiff applied for discovery against the Building Department and the Police, which were not parties to the proceedings, to disclose witness statements obtained by them in respect of an accident involving the collapse of a canopy.  In dealing with the objection under the provisions of the Ordinance, Suffiad J held that the wording in s. 58(1)(d) is wide enough to cover claim for damages in a personal injury case, and the use of such data in respect of a civil claim is therefore, by virtue of s. 58(2), exempted from the provisions in Data Protection Principle 3.  Further, the learned judge was of the view that it was never the intention of the legislature that the Ordinance would impair the administration of justice by restricting or eliminating the power of the court to order discovery.  The application for discovery was therefore allowed.

10.In Cinepoly Records, a number of music companies were asking various Internet service providers to disclose names, Hong Kong identity cards and addresses of 22 of their subscribers.  It was the plaintiffs’ case that these subscribers had breached their copyright in musical works by heavy and unauthorised uploading of musical works on the Internet with the consequence that the music could then be shared by others.  In dealing with the objection to provide such information under the provisions of the Ordinance, Deputy High Court Judge J Poon, as he then was, held that the exemption under ss. 58(1)(d) and 58(2) is wide enough to cover a possible claim for damages for copyright infringement, and the learned judge therefore granted the relief as sought by the plaintiffs. 

11.Applying the ratio in the said cases, it is clear that ordering the Defendant to disclose the correspondence address of Madam Yu, who is a potential witness, does not infringe the provisions in the Ordinance.  I also note the concern of Ms Soo, solicitor for the Defendant, that the two cases mentioned above relate to application for discovery against third parties who were not direct parties.  However for discovery purpose, I am of the view that the same principle applies whether the party in possession of the relevant document is a party to the proceedings or not. 

12.As mentioned by Deputy High Court Judge J Poon in paragraph 13 of the judgment of Cinepoly, the discovery sought must not be unduly wide.  In the said case, the court ordered the Internet service providers to disclose copies of the Hong Kong identity cards of the alleged infringers.  This is quite understandable because the plaintiffs in that case only had the Internet protocol addresses of the alleged infringers.   In order to track down these tortfeasors, ID card copies were necessary.  This is quite different from the present case as the identity of the potential witness is known. 

13.As I see it, copy of Hong Kong identity card is a sensitive document.  The court has a duty to protect the privacy of Madam Yu and there is no good reason to order the discovery of such document at this stage.  In order to enable the Plaintiff to approach Madam Yu and to serve the witness summons, the Plaintiff only needs to know the address and the full name of Madam Yu.  Hence, I only order the Defendant to disclose such information at this stage, with the liberty to apply later for the discovery of a copy of the Hong Kong identity card if there is any dispute about the identity of Madam Yu and the disclosure of the ID card is necessary to resolve such issue.

14.I now hear the parties on the wording of the order and on the issue of costs. 

Mr Vincent Lung, instructed by Messrs Fong Chan & Lee, for the Plaintiff

Ms Betty Soo, of Messrs Li, Kwok & Law, for the Defendant