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CHAPTER
486
PERSONAL DATA (PRIVACY) ORDINANCE
Part
VII - INSPECTIONS, COMPLAINTS AND INVESTIGATIONS
39.
Restrictions on investigations initiated by complaints
| (1) |
Notwithstanding the generality of the powers conferred on
the Commissioner by this Ordinance, the Commissioner may refuse to
carry out or continue an investigation initiated by a complaint if-
| (a) |
the complainant (or, if
the complainant is a relevant person, the individual in respect of whom
the complainant is such a person) has had actual knowledge of the act
or practice specified in the complaint for more than 2 years
immediately preceding the date on which the Commissioner received the
complaint, unless the Commissioner is satisfied that in all the
circumstances of the case it is proper to carry out or continue, as the
case may be, the investigation; |
| (b) |
the complaint is made
anonymously; |
| (c) |
the complainant cannot be
identified or traced; |
| (d) |
none of the following conditions is fulfilled in respect
of the act or practice specified in the complaint-
- either-
(A) the complainant (or, if the complainant is a relevant person, the
individual in respect of whom the complainant is such a person) was
resident in Hong Kong; or
(B) the relevant data user was able to control, in or from Hong Kong,
the collection, holding, processing or use of the personal data
concerned, at any time the act or practice was done or engaged in, as
the case may be;
- the complainant (or, if the complainant is a relevant
person, the individual in respect of whom the complainant is such a
person) was in Hong Kong at any time the act or practice was done or
engaged in, as the case may be;
- in the opinion of the Commissioner, the act or
practice done or engaged in, as the case may be, may prejudice the
enforcement of any right, or the exercise of any privilege, acquired or
accrued in Hong Kong by the complainant (or, if the complainant is a
relevant person, the individual in respect of whom the complainant is
such a person); or
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| (e) |
the Commissioner is
satisfied that the relevant data user has not been a data user for a
period of not less than 2 years immediately preceding the date on which
the Commissioner received the complaint. |
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| (2) |
The Commissioner may refuse to carry out or continue an
investigation initiated by a complaint if he is of the opinion that,
having regard to all the circumstances of the case
| (a) |
the complaint, or a complaint of a substantially similar
nature, has previously initiated an investigation as a result of which
the Commissioner was of the opinion that there had been no
contravention of a requirement under this Ordinance;
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| (b) |
the act or practice specified in the complaint is
trivial;
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| (c) |
the complaint is frivolous
or vexatious or is not made in good faith; or |
| (d) |
any investigation or further investigation is for any
other reason unnecessary.
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| (3) |
Where the Commissioner refuses under this section to carry
out or continue an investigation initiated by a complaint, he shall, as
soon as practicable but, in any case, not later than 45 days after
receiving the complaint, by notice in writing served on the complainant
accompanied by a copy of subsection (4), inform the complainant-
| (a) |
of the refusal; and
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| (b) |
of the reasons for the refusal.
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| (4) |
An appeal may be made to the Administrative Appeals Board-
| (a) |
against any refusal specified in a notice under
subsection (3); and
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| (b) |
by the complainant on whom the notice was served (or, if
the complainant is a relevant person, the individual in respect of whom
the complainant is such a person, or either).
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Notice/
Copyright 2001 Office of the Privacy Commissioner for Personal
Data, Hong Kong. All rights reserved. Disclaimer
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