Hugill & Ip successfully assisted Dr. Kung Yan Sum (“Dr. Kung”) in dismissing an appeal against Master’s decision in relation to an application for specific discovery in Chan Shu Chun & Anor v Dr Kung Yan Su & Anors  HKCFI 360; Reported in:  1 HKLRD 1162. The decision handed down by the Honourable Madam Justice Mimmie Chan offers a succinct summary on the relevance and application of the Personal Data (Privacy) Ordinance, Cap. 486 (“PDPO”) in relation to an order for specific discovery. This decision is significant as it illustrates the importance of specifying clearly the document or any class of document which an applicant would like to request for disclosure pursuant to Order 24 Rule 7 of the Rules of High Court, Cap. 4A (“RHC”). The distinction between seeking discovery of a document and seeking discovery of data is emphasized.
It is held that a Statement of Travel Records, the application of which requires the approval and certification by the Immigration Department, does not constitute a document already in existence when it has not been applied for by a data subject. Even if a data subject is entitled to be informed by the Immigration Department, as the data user, as to whether the Department holds his or her personal data by way of making a data access request under section 18(1) of the PDPO, it does not mean that the data subject is regarded to have control or power of a document which is inexistent for the purpose of Order 24 Rule 7 of the RHC.
The background facts of this case concern claims made by the Plaintiffs against Dr. Kung and other Defendants, for deceit and conspiracy to defraud the Plaintiffs. The Plaintiffs alleged that Dr. Kung made fraudulent misrepresentations to the 1st Plaintiff and induced the 1st Plaintiff to pay a sum of HK$50 million to Dr. Kung for the purpose of an investment in real estate, land development and securities to be made jointly with one Madam Song. The Plaintiffs rely on one Memorandum of Understanding (“MOU”) which was allegedly signed by the 1st Plaintiff on behalf of the 2nd Plaintiff, and by Madam Song on behalf of the 2nd Defendant.
One of the claims made by the Plaintiffs is that on 12th January 2011, Dr. Kung had travelled to Shanghai with the 1st Plaintiff, with the intent of introducing Madam Song to the 1st Plaintiff and to ask Madam Song to sign a Cancellation Agreement in respect of the investment and the MOU and to refund the HKD50 million to the 1st Plaintiff. The Plaintiffs argued that one of the issues in dispute and for determination at trial is whether the 1st Plaintiff and Dr. Kung made the Shanghai trip on 12th January 2011.
The decision of this judgment is made pursuant to an appeal against the decision of the Master on 26th April 2019, whereby the Master dismissed the Plaintiffs application for specific discovery under Order 24 rule 7 RHC. By the appeal, the Plaintiffs pursue their application for discovery of Dr. Kung’s Statement of Travel Records (“Statement”) for the period of January 2011.
To apply for a Statement of Travel Records, one should file a duly completed application form with the Immigration Department. The applicant will be notified within 10 working days the result of the application. The said Statement is not simply a printout or an image of an electronic file held in the database of the Immigration Department. Instead, the Statement is a form of certification by the Immigration Department of the particulars of the arrival and departure date, clearance time, and control port of each occasion of the applicant’s travel from and to Hong Kong during a specified period.
The Plaintiffs’ Order 24 rule 7 application was refused by the Master, for the reason that no such a document sought by the Plaintiffs exists. In this appeal, the Plaintiffs argued that the Master was wrong for taking a simplistic approach to the meaning of a “document” in deciding that the document sought did not exit.
- Distinction between document and information
The Plaintiffs contended that the definition of “documents” has a broad scope, citing Disclosure, Paul Matthews, 5th ed, at paragraph 5.07: “Records and information are increasingly held on computer, whether on disk, database, microchips or microcircuits. In principle the disc and other material holding the information should be regarded as documents, even though this may well pose difficulties when it comes to inspection.” This means that a computer database, as far as the information contained therein could be retrieved and read, is a document.
The Plaintiffs concluded that the Statement comprises a “document” which existed in the database of the Immigration Department even though it has not yet been generated and printed. Seeking aid from the PDPO, the Plaintiffs claimed that Dr. Kung has a presently enforceable right to obtain the Statement from the Immigration Department, such that the Statement is in the power of Dr. Kung and is discoverable.
The Plaintiffs further relied on section 18(1) of the PDPO to argue that the PDPO confers a presently enforceable legal right on Dr. Kung to obtain the Statement:
Sec. 18: Data access request
(1) An individual, or a relevant person on behalf of an individual, may make a request—
(a) to be informed by a data user whether the data user holds personal data of which the individual is the data subject;
(b) if the data user holds such data, to be supplied by the data user with a copy of such data.
The Court was in favour of our argument, pointing out the Plaintiffs’ failure to make the key distinction between data and document. It is emphasized that the Summons seeks specific discovery of a clearly defined and named document, namely the Statement. The Summons does not seek information or personal data concerning Dr. Kung’s travel history. Whilst it may be true that “documents” include computer discs and records, the Summons does not seek discovery of such computer discs and records. The Statement sought by the Plaintiffs is a document which must be issued and produced by the Immigration Department upon an application made, and the information has to be duly certified by the Immigration Department.
Further, Dr. Kung never had the Statement nor applied to the Immigration Department for the Statement. The decision emphasized that seeking discovery of a document is different from seeking discovery of data.
- Whether Dr. Kung has control or power of the Statement
The Plaintiffs argued that the decision in Gotland Enterprise Ltd v Kwok Chi Yau  1 HKLRD 226 was wrongly decided, when the Court held that a data subject had no enforceable claim under the PDPO to enforce any right for the inspection or delivery of any documents. The Plaintiffs claimed that “power” includes a right to obtain possession or to have a copy of the document, which Dr. Kung has under the PDPO in regard to his personal data.
The Court responded by endorsing the observations made by Saunders J in Wu Kit Ping v Administrative Appeals Board  4 HKLRD 894: it is not the object of the PDPO to extend the rights and duties of discovery in legal proceedings, to require a party to apply to another party or authority in order to produce a document for the purpose of discovery.
To better illustrate the Court’s decision that Dr. Kung has no power or control over the Statement, it is helpful to refer to Lonrho Ltd v Shell Petroleum Co Ltd  1 WLR 627, as held by Lord Diplock: “in the context of the phrase “possession, custody or power”, the expression “power”, must mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else.” Dr. Kung may only apply to the Immigration Department for the Statement, the issuance of the Statement is a matter of discretion and the application can in principle be allowed or rejected.
- Legislative intent of the PDPO
The Court noted that the mischief which the PDPO intended to address was the misuse and retention of personal data collected, and the objective it was intended to achieve was to provide for the right of an individual to access personal data collected by a data user, in order to prevent misuses and to correct inaccuracies of personal data.
- Is the order for discovery necessary?
The last point made by the Court was that the Statement was irrelevant in showing whether Dr. Kung had travelled to Shanghai on 12th January 2011 in order to meet with Madam Song to finalize and sign the Cancellation Agreement.
Even if the Statement is produced, it will only show that Dr. Kung’s departure from and arrival in Hong Kong on particular days in January 2011. The Statement would not show whether he had visited Shanghai nor establish whether Dr. Kung visited Shanghai to meet with Madan Song. Since the Statement has little probative value, the Court do not consider discovery of the Statement necessary for disposing fairly of the matter or for saving costs.
Parties to a litigation are reminded that the PDPO is not intended to extend the rights and duties of discovery in legal proceedings. Order 24 of the RHC allows a party to make an application to another party or an authority in order to produce a document, while the PDPO gives an individual the right to obtain data under section 18(1), and this right is limited to the individual’s personal data. Providing data subjects such access right is to ensure that personal data is not misused and to allow data subjects to correct inaccurate data, and it does not supplement rights of discovery in legal proceedings.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.