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CHAPTER
486
PERSONAL DATA (PRIVACY) ORDINANCE
Part
VII - INSPECTIONS, COMPLAINTS AND INVESTIGATIONS
44.
Evidence
| (1) |
Subject to subsection (2) and section 45, the
Commissioner may, for the purposes of any investigation,
summon before him any person who
| (a)
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in the opinion of the Commissioner, is
able to give any information relevant to
those purposes;
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| (b) |
where the investigation was initiated by
a complaint, is the complainant (or, if
the complainant is a relevant person, the
individual in respect of whom the complainant
is such a person, or both),
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and
may examine any such person and require him to
furnish to the Commissioner any information and
to produce any document or thing which, in the
opinion of the Commissioner, is relevant to those
purposes and which may be in the possession or
under the control of any such person.
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| (2) |
Where-
| (a)
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an investigation has been initiated by
a complaint;
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| (b) |
the complaint relates, whether in whole
or in part, to personal data referred to
in section 61(1);
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| (c) |
the
Commissioner has, for the purposes of that
investigation, under subsection (1)(a) summoned
before him a person; and |
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| (d) |
that
person asserts, in response to any requirement
under subsection (1) by the Commissioner
to furnish him with information or to produce
a document or thing, that-
-
to comply with that requirement would
directly or indirectly disclose the identity
of the individual from whom those data
were collected (whether in whole or in
part); or
- he
is not required to comply with that requirement
by virtue of any common law privilege,
then-
(i) notwithstanding any
other provision of this Ordinance, the
Commissioner shall not serve an enforcement
notice on that person in relation to that
requirement;
(ii) the Commissioner may, not later than
28 days after that assertion is made known
to him, make an application to the Court
of First Insfance for an order directing
that person to comply with that requirement;
(iii) the Court of First Insfance (Amended
25 of 1998 s.2) may make the order if,
but only if, it is satisfied, having regard
to all the circumstances (including the
circumstances of the complainant), that-
(Amended 25 of 1998
s.2)
| (A) |
if
the act or practice specified in
the complaint were proven to be
a contravention of a requirement
under this Ordinance, the contravention
would be of sufficient gravity to
warrant that person complying with
the requirement referred to in paragraph
(d ); |
| (B) |
that
investigation would be substantially
prejudiced if the requirement referred
to in paragraph (d ) were not complied
with; |
| (C) |
it
is in the public interest, having
regard to the benefit likely to
accrue to that investigation, that
the requirement referred to in paragraph
(d ) be complied with; and |
| (D) |
in any case to which paragraph (d)(ii)
is applicable, the common law privilege
asserted does not apply; and |
(iv)
on the hearing of the application, the
Commissioner, that person and the complainant
shall each be entitled to be heard on
the application and to call, examine and
cross-examine any witness.
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