Hong Kong Human Rights Monitor

Reply letter from Privacy Commissioner

Dear Mr. Harris,

I refer to your letter dated 26 March 1998, which was acknowledged on 31 March 1998.

In your letter you requested that I undertake an inspection of the Xinhua News Agency's Hong Kong Branch ("Xinhua" pursuant to my powers under section 36 of the Personal Data (Privacy) Ordinance ("the Ordinance" The reasons given for your request are well made. On the other hand, the said powers extend only to inspections of personal data system used by data users who are subject to the requirements of the Ordinance. Whether or not Xinhua and other subordinate organs of the Central Authorities of the People's Republic of China ("subordinate organs" are so subject is a matter governed by section 3 of the Ordinance read in conjunction with section 66 of the Interpretation and General Clauses Ordinance (Cap. 1), which was recently amended by the Adaptation of Laws (lnterpretative Provisions) Ordinance (No. 26 of 1998). According to public statements made by the Department of Justice the effect of these provisions is that, under certain circumstance, Xinhua and other subordinate organs are not bound by the Ordinance while the Government of the HKSAR is. In addition, I note that, in response to public concern expressed during the passage of the Adaptation of Laws (lnterpretative Provisions) Ordinance, the Secretary for Justice (Ag.), Mr. Ian Wingfield, gave a commitment that the Administration would conduct a review, as a matter of urgency, of 17 Ordinances, including the Personal Data (Privacy) Ordinance, which have a binding effect of this sort.

Any decision on whether to undertake an inspection of a particular body pursuant to section 36 of the Ordinance is, among other factors, dependent on whether I have the power to do so. Given the developments mentioned above, the present and future position of the Xinhua and other subordinate organs under the Ordinance is, at the very least, a matter of uncertainty. As I am sure you will appreciate, until this uncertainty is resolved following completion of the review process referred to above, it would not be appropriate for me to take a decision on your request.

Thank you for bringing your views on this matter to my attention.

Yours sincerely,

Stephen Lau
Privacy Commissioner for Personal Data

1998 (c) Hong Kong Human Rights Monitor