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Page Background


Since the collection and use of personal data has become part of daily life

in the age of data and as contravention of any of the data protection

principles may lead to legal sanctions, it is in every data user’s interest to

understand them. However, understanding their literal meaning may not

be sufficient in every case. This is because the principles are not expressed

in definitive terms. A data user will benefit from expert explanations and

advice in certain situations.


Up to now there has not been a large body of judicial decisions providing

authoritative interpretations on all the principles. Be that as it may, the

Commissioner has, over the last twenty years, dealt with many enquiries

and complaints in respect of alleged contraventions of the data protection

principles. The Commissioner’s decisions, based on his interpretation of the

principles in the Ordinance, have occasionally been tested in the Court

and in the course of appeals to the Administrative Appeals Board (“AAB”),


whose determinations carry quasi-judicial authority.


Against this background, it is certainly in the public interest for the

Commissioner to state openly the criteria and principles upon which he, as

the statutory regulator, has interpreted the six data protection principles as

well as some related provisions of the Ordinance.

In so doing he may:

• help data users to comply with the requirements under the Ordinance in

a way that will minimise the risk of sanction by the Commissioner

regarding their handling of personal data;

• help the legal advisors of both data users and data subjects in giving

practical advice to their clients;

• help individuals to understand the Commissioner’s likely position on a

particular issue before they consider lodging a complaint;

• provide reference material for consideration by the Court or the AAB in

cases before them involving the six data protection principles; and

• provide academics and other interested persons with material for further

study and research.

The Regulatory Approach


The Commissioner’s regulatory approach is consistent with the general

common law rules on statutory interpretation and in particular the

principles of interpretation


laid down by the Interpretation and General


To which, pursuant to the Ordinance and the Administrative Appeals Board Ordinance (Cap 442, Laws

of Hong Kong), appeals from certain decisions of the Commissioner may be brought.


These include the “literal rule” which accords primacy to the literal meaning of the language used in

the legislation; the “golden rule” with the presumption that an absurd result is not intended; and the

“mischief rule” that legislation has targeted a particular mischief and provided a remedy for it.