Hong Kong Ordinances

PERSONAL DATA (PRIVACY) ORDINANCE - SECT 33

Prohibition against transfer of personal data to place outside Hong Kong except in specified circumstances

not yet in operation

(1) This section shall not apply to personal data other than personal data the
collection, holding, processing or use of which-

   (a)  takes place in Hong Kong; or

   (b)  is controlled by a data user whose principal place of business is in
        Hong Kong.

(2) A data user shall not transfer personal data to a place outside Hong Kong
unless-

   (a)  the place is specified for the purposes of this section in a notice
        under subsection (3);

   (b)  the user has reasonable grounds for believing that there is in force
        in that place any law which is substantially similar to, or serves the
        same purposes as, this Ordinance;

   (c)  the data subject has consented in writing to the transfer;

   (d)  the user has reasonable grounds for believing that, in all the
        circumstances of the case-

        (i)    the transfer is for the avoidance or mitigation of adverse 
               action against the data subject;

        (ii)   it is not practicable to obtain the consent in writing of the
               data subject to that transfer; and

        (iii)  if it was practicable to obtain such consent, the data  subject
               would give it;

   (e)  the data are exempt from data protection principle 3 by virtue of an
        exemption under Part VIII; or

   (f)  the user has taken all reasonable precautions and exercised all due
        diligence to ensure that the data will not, in that place, be
        collected, held, processed or used in any manner which, if that place
        were Hong Kong, would be a contravention of a requirement under this
        Ordinance.

(3) Where the Commissioner has reasonable grounds for believing that there is
in force in a place outside Hong Kong any law which is substantially similar
to, or serves the same purposes as, this Ordinance, he may, by notice in the
Gazette, specify that place for the purposes of this section.

(4) Where the Commissioner has reasonable grounds for believing that in a
place specified in a notice under subsection (3) there is no longer in force
any law which is substantially similar to, or serves the same purposes as,
this Ordinance, he shall, either by repealing or amending that notice, cause
that place to cease to be specified for the purposes of this section.

(5) For the avoidance of doubt, it is hereby declared that-

   (a)  for the purposes of subsection (1)(b), a data user which is a company
        incorporated in Hong Kong is a data user whose principal place of
        business is in Hong Kong;

   (b)  a notice under subsection (3) is subsidiary legislation; and

   (c)  this section shall not operate to prejudice the generality of
        section 50. (Enacted 1995)