Hong Kong Ordinances

PERSONAL DATA (PRIVACY) ORDINANCE - SECT 44

Evidence

(Past version on 30/06/1997).

Amendments retroactively made-see 25 of 1998 s. 2

(1) Subject to subsection (2) and section 45, the Commissioner may, for the
purposes of any investigation, summon before him any person who-

   (a)  in the opinion of the Commissioner, is able to give any information
        relevant to those purposes;

   (b)  where the investigation was initiated by a complaint, is the
        complainant (or, if the complainant is a relevant person, the
        individual in respect of whom the complainant is such a person, or
        both), and may examine any such person and require him to furnish to
        the Commissioner any information and to produce any document or thing
        which, in the opinion of the Commissioner, is relevant to those
        purposes and which may be in the possession or under the control of
        any such person.

(2) Where-

   (a)  an investigation has been initiated by a complaint;

   (b)  the complaint relates, whether in whole or in part, to personal  data
        referred to in section 61(1);

   (c)  the Commissioner has, for the purposes of that investigation, under
        subsection (1)(a) summoned before him a person; and

   (d)  that person asserts, in response to any requirement under subsection
        (1) by the Commissioner to furnish him with information or to produce
        a document or thing, that-

        (i)    to comply with that requirement would directly or indirectly
               disclose the identity of the individual from whom those data
               were collected (whether in whole or in part); or

        (ii)   he is not required to comply with that requirement by virtue of
               any common law privilege, then-

        (i)    notwithstanding any other provision of this Ordinance, the
               Commissioner shall not serve an enforcement notice on that
               person in relation to that requirement;

        (ii)   the Commissioner may, not later than 28 days after that
               assertion is made known to him, make an application to the
               Court of First Instance for an order directing that person to
               comply with that requirement; (Amended 25 of 1998 s. 2)

        (iii)  the Court of First Instance may make the order if, but only if,
               it is satisfied, having regard to all the circumstances
               (including the circumstances of the complainant), that-
               (Amended 25 of 1998 s. 2) (A) if the act or practice specified
               in the complaint were proven to be a contravention of a
               requirement under this Ordinance, the contravention would be of
               sufficient gravity to warrant that person complying with the
               requirement referred to in paragraph (d); (B) that
               investigation would be substantially prejudiced if the
               requirement referred to in paragraph (d) were not compiled
               with; (C) it is in the public interest, having regard to the
               benefit likely to accrue to that investigation, that the
               requirement referred to in paragraph (d) be complied with; and
               (D) in any case to which paragraph (d)(ii) is applicable, the
               common law privilege asserted does not apply; and

        (iv)   on the hearing of the application, the Commissioner, that
               person and the complainant shall each be entitled to be heard
               on the application and to call, examine and cross-examine any
               witness.

(3) Where-

   (a)  a person has complied with a requirement referred to in subsection
        (2)(d) the subject of an assertion referred to in that subsection; and

   (b)  the result (whether in whole or in part) of the investigation to which
        that requirement relates is that the Commissioner is of the opinion
        that the individual concerned referred to in subsection (2)(d)(i) has
        not contravened a requirement under this Ordinance in relation to the
        matter the subject of the complaint which initiated the investigation,
        then, notwithstanding any other provision of this Ordinance, neither
        the Commissioner nor any prescribed officer shall disclose the
        identity of that individual to the complainant.

(4) The Court of First Instance may, of its own volition or on an application
made to it for the purpose, by order reverse, vary or discharge an order made
under subsection (2)(iii) or suspend the operation of such an order. (Amended
25 of 1998 s. 2)

(5) Provision may be made by rules of court-

   (a)  with respect to applications to the Court of First Instance under
        subsection (2)(iii) or (4);

   (b)  generally with respect to procedure before the Court of First Instance
        in relation to any such application. (Amended 25 of 1998 s. 2)

(6) Subsection (5) is without prejudice to the generality of any existing
power to make rules.

(7) The Commissioner may administer an oath for the purposes of an examination
under subsection (1) if he thinks fit.

(8) It is hereby declared that-

   (a)  no obligation to maintain secrecy or other restriction, imposed by
        law, upon the disclosure of any information, document or other thing,
        that is or has been in the possession or under the control of any
        person referred to in subsection (1), shall apply to its disclosure
        for the purposes of an investigation; and

   (b)  any requirement by the Commissioner that any such information,
        document or thing as is referred to in paragraph (a) be disclosed or
        produced for the purposes of an investigation shall be sufficient
        authority for its disclosure or production to the Commissioner.

(9) The Commissioner may pay the reasonable expenses of complainants
(including, if the complainant is a relevant person, the individual in respect
of whom the complainant is such a person) and witnesses incurred during the
course of an investigation. (Enacted 1995)