Ng Shek Wai v The Medical Council of Hong Kong
Court of First Instance
Constitutional and Administrative Law List No. 167 of 2013
Godfrey Lam J
Data Privacy
18 February 2015

Request for identity of members sitting at disciplinary inquiry, legal adviser and defence counsel – decision not to disclose information quashed – failed to take into account principle of open justice

The Medical Council (the “Council”) held a disciplinary inquiry in relation to M, a medical practitioner. The inquiry was conducted in public and the names of the members of the Council were disclosed on name plates placed in front of them. After M was sentenced, the Council was alerted by the media that M did not have a clear record and reviewed its original decision. The written decision of the Council only stated the name of the Chairman. The matter was reported in the news. X, a member of the public unconnected with the case, enquired with the Council of the identity of members sitting at the inquiry, the Legal Adviser of the Council and the defence counsel. X refused to answer repeated enquiries by the Council as to his purpose of the inquiry and intended use of the information. X applied for judicial review to quash the Council’s decision in refusing to disclose the requested information (the “Decision”). The Council contended that Data Protection Principle (“DPP”) 3 in Sch. 1 of the Personal Data (Privacy) Ordinance (Cap. 486) (the “Ordinance”) applied to restrict disclosure to X and that none of the statutory exemptions from DPP applied.

Held, allowing the application, quashing the Decision and remitting the matter to the Council, that:

  • The Council had taken into account an irrelevant consideration, namely the restriction in DPP 3, and failed to take into account a relevant consideration, namely the requirements of the principle of open justice. If disclosure was required or authorised by the common law principle of open justice, DPP 3 posed no obstacle to disclosure because the exemption in s. 60B(a) applied. However, the fact that the exemption applied did not imply that the Council was required to make disclosure.
  • (Obiter) Disclosing the names to X would not constitute a “new purpose” as defined in s. 3(4) of Sch. 1. There was no evidence of any statement of the purpose for collecting personal data. In ascertaining the original purpose or any directly related purpose, it was legitimate to have regard to “the reasonable expectations of the data subject”. The names of the Council’s members were disclosed on name plates placed in front of them at the inquiry. Members of the Council, the Legal Adviser and defence counsel would reasonably expect that the Council could disclose, either in its written decision or otherwise, their names and the capacity in which they attended.
  • The principle of open justice applied to all tribunals exercising judicial power and was not limited to physical access to the court room where a judicial hearing was taking place. As far as its disciplinary functions were concerned, the Council was a tribunal to which the principle applied. Public interest in the administration of justice and accountability of the judicial process required that basic information about the identities of the key persons who had taken part in a public judicial hearing should normally be published. If the information was not disclosed in the written decision of the tribunal, it should be disclosed upon inquiry made at a time reasonably close to the hearing.

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).