Hong Kong Ordinances

PERSONAL DATA (PRIVACY) ORDINANCE - SECT 50

Enforcement notices

(1) Where, following the completion of an investigation, the Commissioner is
of the opinion that the relevant data user-

   (a)  is contravening a requirement under this Ordinance; or

   (b)  has contravened such a requirement in circumstances that make it
        likely that the contravention will continue or be repeated, then the
        Commissioner may serve on the relevant data user a notice in writing-

        (i)    stating that he is of that opinion;

        (ii)   specifying the requirement as to which he is of that opinion
               and the reasons why he is of that opinion;

        (iii)  directing the data user to take such steps as are specified in
               the notice to remedy the contravention or, as the case may be,
               the matters occassioning it within such period (ending not
               earlier than the period specified in subsection (7) within
               which an appeal against the notice may be made) as is specified
               in the notice; and

        (iv)   accompanied by a copy of this section.

(2) In deciding whether to serve an enforcement notice the Commissioner shall
consider whether the contravention or matter to which the notice relates has
caused or is likely to cause damage or distress to any individual who is the
data subject of any personal data to which the contravention or matter, as the
case may be, relates.

(3) The steps specified in an enforcement notice to remedy any contravention
or matter to which the notice relates may be framed-

   (a)  to any extent by reference to any approved code of practice;

   (b)  so as to afford the relevant data user a choice between different ways
        of remedying the contravention or matter, as the case may be.

(4) Subject to subsection (5), the period specified in an enforcement notice
for taking the steps specified in it shall not expire before the end of the
period specified in subsection (7) within which an appeal against the notice
may be made and, if such an appeal is made, those steps need not be taken
pending the determination or withdrawal of the appeal.

(5) If the Commissioner is of the opinion that by reason of special
circumstances the steps specified in an enforcement notice should be taken as
a matter of urgency-

   (a)  he may include a statement to that effect in the notice together with
        the reasons why he is of that opinion;

   (b)  where such a statement is so included, subsection (4) shall not apply
        but the notice shall not require those steps to be taken before the
        end of the period of 7 days beginning with the date on which the
        notice was served.

(6) The Commissioner may cancel an enforcement notice by notice in writing
served on the relevant data user.

(7) An appeal may be made to the Administrative Appeals Board against an
enforcement notice by the relevant data user not later than 14 days after the
notice was served.

(8) Where the Commissioner-

   (a)  forms an opinion referred to in subsection (1) in respect of the
        relevant data user at any time before the completion of an
        investigation; and

   (b)  is also of the opinion that, by reason of special circumstances, an
        enforcement notice should be served on the relevant data  user as a
        matter of urgency, he may so serve such notice notwithstanding that
        the investigation has not been completed and, in any such case-

        (i)    the Commissioner shall, without prejudice to any other matters
               to be included in such notice, specify in the notice the
               reasons as to why he is of the opinion referred to in paragraph
               (b); and

        (ii)   the other provisions of this Ordinance (including this section)
               shall be construed accordingly. (Enacted 1995)