5 December 2013
In a recent judgment in the case of Chan Chuen Ping v. The Commissioner of Police (HCMP 2741/2013), the Court of First Instance held that the police are obliged to provide a potential claimant in civil actions with information of the tortfeasor upon the request of the potential claimant. The police cannot refuse to supply the information by relying on the Personal Data (Privacy) Ordinance.
On 9 March 2013, the plaintiff was allegedly injured when he was struck by a wheelchair being pushed by an unknown woman. At the time, another woman, also unknown, was seated in the wheelchair. The plaintiff instructed solicitors later that month to pursue a personal injuries claim against the two women.
Since the incident had been reported to the police, the plaintiff's solicitors wrote to the Tai Po Division Police Office to request the essential information of the two women, i.e., their names and addresses, for the purpose of commencing proceedings. However, the police office repeatedly refused to supply the information. The police put forward various reasons for the refusal. They insisted that the solicitors had to first issue a writ, even though this could not be done until the identities of the tortfeasors were known.
The dispute carried on over several rounds of correspondence and the plaintiff's solicitors issued an originating summons for pre-action discovery, hoping to put the matter to an end. The Department of Justice (DOJ) on behalf of the police finally agreed to disclose the requested information and the plaintiff agreed to pay costs of the DOJ. The Court, however, refused to endorse the agreed terms.
The Court criticised the police for unreasonably delaying the matter. While the DOJ argued that the Personal Data (Privacy) Ordinance of 1996 (the "Ordinance") gave the discretion to the Commissioner of Police to disclose information if he thought it appropriate, the judge held that the provision of personal data for cases of this nature was exempted from the Ordinance under section 58(1).
Section 58(1) provides that, where "Personal data [is] held for the purpose of…(d) the prevention, preclusion or remedying…of unlawful or seriously improper conduct…by persons" it "is exempt from the provisions of data protection principle 3…where the application of those provisions in relation to such use would be likely to prejudice any of the matters referred to in [subsection (d)]".
Deputy Seagroatt J. held that the wording of the provision clearly provides an exemption for providing personal data to remedy an act of unlawful conduct, including a civil wrong. Therefore, there can be no justification for withholding the data requested by the plaintiff. The judge opined that the police were obstructing the proper efficient and fair administration of justice by refusing to disclose the material identities to the plaintiff. He was also of the view that the case had been a waste of administrative and judicial resources which, he said, must not happen again. As a result, costs were ordered against the DOJ.
The judgment of the Court of First Instance in the case reaffirms the position that the police cannot unreasonably withhold information in relation to accidents from potential claimants, including their solicitors, on data privacy grounds. The judgment is welcomed as it clarifies the application of the Ordinance for such cases.
When an accident occurs and the information of the accident comes into the possession of the police in the course of their investigation, an interested party who is seeking a remedy against the wrongdoer is entitled to request the police to provide such information, such as the police report, statements and plan in respect of the incident. The police are obliged to provide such information to the interested party promptly and constructively. By the same token, a defendant or an insurer acting on the defendant's behalf in a personal injury claim who is an interested party should likewise be entitled to obtain relevant information from the police for the purpose of defending any proceedings against the defendant. Further, an employees' compensation insurer in a recovery action against a third-party tortfeasor is an interested party and should be entitled to information from the police, upon payment of a reasonable fee, for pursuing the recovery action.
In light of this latest decision, it is hoped that the police will review their current policies on the processing of data requests. Where appropriate, a defendant or insurer should not hesitate to assert their rights in this regard.