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Transfer of records to

Government Records



Section 51A— Performance of Judicial Functions


Section 51A provides as follows:

(1) Personal data held by a court, a magistrate or a judicial officer in the course of performing

judicial functions is exempt from the provisions of the data protection principles and Parts 4 and

5 and sections 36 and 38(b).


“Judicial officer

is defined in section 51A(2) to have the same meaning given by

section 2 of the Judicial Officers Recommendation Commission Ordinance (Cap 92)



). Section 2 of JORCO defines

judicial officer

as “a holder of a judicial office”,

as listed in Schedule 1 of JORCO (which includes a judge of the Hong Kong High Court,

a Magistrate, a Coroner, etc.). This new exemption was introduced by the Amendment

Ordinance and came into effect on 1 October 2012. Article 85 of the Basic Law states

that the Courts of the Hong Kong Special Administrative Region shall exercise judicial

power independently, free from any interference. In discharging his regulatory powers

under the Ordinance, the Commissioner is mindful that the application of the Ordinance

shall not fetter or disrupt the fundamental principle of judicial independence recognised

under the Basic Law when personal data is handled by the judicial officers in the course

of performing judicial functions. This section 51A is consistent with the position taken by

the Commissioner and the AAB before the Amendment Ordinance came into effect.



In AAB No. 39/2004, in support of his application to revive the hearing of a claim made

before the Small Claims Tribunal, the plaintiff submitted his sickness certificate to the

Tribunal for consideration. The Tribunal disclosed the sickness certificate to the

defendant. The plaintiff complained against the Tribunal claiming that there was a

breach of DPP3. The Commissioner found that such act was performed in the course of

the exercise of the judicial function by the Tribunal, and hence outside the scope of the

Ordinance and the Commissioner had no power to intervene. On appeal to the AAB,

the AAB upheld the decision of the Commissioner and reiterated that the exercise of the



AAB No. 54/2014

, an appellant (being a website operator) argued that the effect of section 51A of the Ordinance

was that all personal data that appeared in Court judgments was exempted from all the data protection principles. He

therefore claimed that his disclosure of the complainant’s identity relating to three anonymised Court judgments was

exempted from DPP3 by virtue of section 51A. Rejecting the argument, the AAB explained that the appellant had never

been a judicial officer and the relevant personal data was never held by him in such a capacity. Hence, section 51A did

not apply to his case.