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Practice Note: How to Appeal PCPD's Decision?

Updated: Dec 14, 2019

I. Background

The Administrative Appeals Board (AAB) is established for the purpose of hearing appeals against certain administrative decisions.

Under Schedule of the Administrative Appeals Board Ordinance (Cap. 442) (“AABO”), the AAB can hear appeal from a decision of the Privacy Commissioner for Personal Data (PCPD) in relation to the following matters: -

(a) to impose conditions on his consent to the carrying out of a matching procedure under sections 32(1)(b)(i) of the Personal Data (Privacy) Ordinance (Cap. 486) (“PDPO”);

(b) to refuse to consent to the carrying out of a matching procedure under section 32(1)(b)(ii) of the PDPO;

(c) to refuse under section 39(3) to carry out an investigation initiated by a complaint;

(ca) to terminate under section 39(3A) an investigation initiated by a complaint;

(d) not to delete under section 46(5) a matter from a report under the PDPO;

(e) not to serve an enforcement notice under section 47 of the PDPO; and

(f) to serve an enforcement notice under section 50 of the PDPO.

II. Notice of Appeal

In relation to termination or refusal of an investigation initiated by a complaint, the PDPO does not prescribe a period within which an appeal may be made, but under section 9(b) of the AABO, in the case where no such period is prescribed in specific ordinance, the complainant should within 28 days after receiving the decision of the PCPD file the notice of appeal (“Notice”).

In the case of an enforcement notice, under section 50(7) of the PDPO, an appeal may be made to the AAB against an enforcement notice by the relevant data user not later than 14 days after the notice is served.

The Secretary to the AAB will then serve the Notice to the respondent within 14 days after the Notice is lodged. The respondent then shall within 28 days after the service upon it a copy of the Notice, a statement in writing relating to the decision that sets out:

(i) the reasons for the decision to which the appeal relates;

(ii) the policy, if any, relied upon by the respondent when such decision was made;

(iii) the particulars of any evidence or other thing considered and relied upon by the respondent when such decision was made;

(iv) the findings on material questions of fact relating to the decision; and

(v) whether or not the appellant was made aware of the matters referred to those matters when such decision was made.

III. Hearing and Conduct of Proceedings

Under section 15 of the AABO, any parties to the appeal may request the AAB to issue a notice in writing requiring him or her to appear before the AAB to give evidence and produce any document that is in his possession or under his control.

The Secretary to the AAB will fix the date, time and place of the hearing, and serve a notice of the date, time and place to the parties not less than 28 days before the hearing commenced.

The hearing of the appeal will usually be in public hearing. However, the AAB may direct the hearing or part of it take place in private and give directions prohibiting or restricting the publication of the evidence given before the AAB.

The Chairman of the AAB may make rules of the proceedings, and may receive and consider material whether or not such material would be admissible in evidence in civil or criminal proceedings.

The AAB also has the power to require person to attend before it to give evidence and produce documents.

The AAB can also, with the consent of the parties, determine an appeal without an oral hearing on the basis of written submissions only.

The AAB has a wide scope of powers and may do all things ancillary to the powers conferred under section 21 of the AABO or reasonably necessary for the discharge of its functions.

IV. Service of Documents, Legal Representation and Question of Law

Under section 13 of the AABO, any of the parties to the appeal may at any time serve notice on any of the other parties to produce any document relating to the appeal for inspection, and the party being served with the request shall provide the document within 14 days after the notice is served.

Under section 18 of the AABO, the parties may be represented either by a barrister or a solicitor or, with the approval of the Secretary, by any other person authorized by any of the parties in writing.

In a situation where there is a question of law arises, the AAB may, before an appeal is determined, refer the question to the Court of Appeal for determination by way of case stated.

V. AAB’s Decision

Under section 22(1)(j) of the AABO, the AAB can: -

(i) confirm, vary or reverse the decision that is appealed against;

(ii) substitute therefor other decision; or

(iii) make such other order as it may think fit.

In exercising the AAB powers under section 22(1)(j), the AAB shall take into account of any ‘statement of policy’ lodged by the respondent with the Secretary to the AAB.

The AAB may order the case as so determined be sent back to the respondent for consideration by the respondent of such matter as the AAB orders.

Under section 25(1) of the AABO, the AAB will give reasons in writing for its decisions, which will include findings on material questions of fact and summary of the evidence on which those findings were based.

The AAB may also make an award as to costs relating to the appeal: see below, X. Costs.

VI. Costs

Under section 22(1) of the AABO, the AAB shall only make an award as to costs against an appellant, if it is satisfied that he has conducted his case in a frivolous or vexatious manner, and against any other party to the appeal, if it is satisfied that in all the circumstances of the case it would be unjust and inequitable not to do so.

In Michael David Reeve v. PCPD, AAB 20/2018, dated 21 August 2019, the respondent submitted that the AAB should make a costs order against the appellant on the ground that the appellant’s complainant is a frivolous one. In its decision, the AAB stated that ‘a complaint is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed’ and that ‘a complaint is made in good faith if it was predominantly motivated by matter(s) not related to concern for one’s privacy’. The AAB is satisfied that the complaint was predominantly motivated by the appellant’s concern in relation to the matter leading to the removal of the Appellant’s administrative rights by the Assembly, and not any infringement of his personal data privacy rights. The AAB subsequently ordered that the appellant do pay to the respondent HK$40,000 being the costs incurred by the respondent in the appeal.

In So Chung Leung v. PCPD, AAB 19/2018, dated 27 August 2019, the AAB ruled that although the PCPD had failed to investigate a potential breach of section 19(2)(a)(ii) of the PDPO (i.e. unable to comply with a Data Access Request within time period), costs do not automatically follow the event and that it would not be unjust or inequitable to make no award of costs in the case in pursuance of section 22(1)(b) of the AABO.

VII. Conclusion

In conclusion, the AAB has a wide scope of powers in terms of how to conduct administrative appeal proceedings, and that complainant should take into consideration of the adverse cost consequences prior to bringing an appeal to the AAB.

It is also important that the public should be informed as to what mechanisms are in place should they feel aggrieved by a PCPD’s decision, and more importantly, what can they do to appeal such decision.

For more information regarding how to appeal PCPD’s decision, please contact ADG at info@aurumconsultancy.co or Tel: +852 3725 4806.

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