Hong Kong Ordinances

PERSONAL DATA (PRIVACY) ORDINANCE - SECT 39

Restrictions on investigations initiated by complaints

(1) Notwithstanding the generality of the powers conferred on the Commissioner
by this Ordinance, the Commissioner may refuse to carry out or continue an
investigation initiated by a complaint if-

   (a)  the complainant (or, if the complainant is a relevant person, the
        individual in respect of whom the complainant is such a person) has
        had actual knowledge of the act or practice specified in the complaint
        for more than 2 years immediately preceding the date on which the
        Commissioner received the complaint, unless the Commissioner is
        satisfied that in all the circumstances of the case it is proper to
        carry out or continue, as the case may be, the investigation;

   (b)  the complaint is made anonymously;

   (c)  the complainant cannot be identified or traced;

   (d)  none of the following conditions is fulfilled in respect of the act or
        practice specified in the complaint-

        (i)    either- (A) the complainant (or, if the complainant is a
               relevant person, the individual in respect of whom the
               complainant is such a person) was resident in Hong Kong; or (B)
               the relevant data user was able to control, in or from Hong
               Kong, the collection, holding, processing or use of the
               personal data concerned, at any time the act or practice was
               done or engaged in, as the case may be;

        (ii)   the complainant (or, if the complainant is a relevant person,
               the individual in respect of whom the complainant is such a
               person) was in Hong Kong at any time the act or practice was
               done or engaged in, as the case may be;

        (iii)  in the opinion of the Commissioner, the act or practice done or
               engaged in, as the case may be, may prejudice the enforcement
               of any right, or the exercise of any privilege, acquired or
               accrued in Hong Kong by the complainant (or, if the complainant
               is a relevant person, the individual in respect of whom the
               complainant is such a person); or

   (e)  the Commissioner is satisfied that the relevant data user has not been
        a data user for a period of not less than 2 years immediately
        preceding the date on which the Commissioner received the complaint.

(2) The Commissioner may refuse to carry out or continue an investigation
initiated by a complaint if he is of the opinion that, having regard to all
the circumstances of the case-

   (a)  the complaint, or a complaint of a substantially similar nature, has
        previously initiated an investigation as a result of which the
        Commissioner was of the opinion that there had been no contravention
        of a requirement under this Ordinance;

   (b)  the act or practice specified in the complaint is trivial;

   (c)  the complaint is frivolous or vexatious or is not made in good faith;
        or

   (d)  any investigation or further investigation is for any other reason
        unnecessary.

(3) Where the Commissioner refuses under this section to carry out or continue
an investigation initiated by a complaint, he shall, as soon as practicable
but, in any case, not later than 45 days after receiving the complaint, by
notice in writing served on the complainant accompanied by a copy of
subsection (4), inform the complainant-

   (a)  of the refusal; and

   (b)  of the reasons for the refusal.

(4) An appeal may be made to the Administrative Appeals Board-

   (a)  against any refusal specified in a notice under subsection (3); and

   (b)  by the complainant on whom the notice was served (or, if the
        complainant is a relevant person, the individual in respect of whom
        the complainant is such a person, or either). (Enacted 1995)