「I write to review your office’s decision, which rejected my application dated July 3 in seeking the (i) names, (ii) respective courts, and (iii) official titles of the magistrates designated by the Chief Executive under The Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”).
It is worth setting out the background of this application. The NSL was formally gazetted on June 30, where the first charge has arisen from the event on July 1.
At 2pm on July 3, a government spokesperson said via a press statement entitled “Establishment of Committee for Safeguarding National Security of HKSAR”, and mentioned the following:
“As required by Article 44(1) of the National Security Law, the Chief Executive, after consulting the Committee and the Chief Justice of the Court of Final Appeal, has also designated six serving magistrates from the Judiciary as designated judges to handle cases concerning offences endangering national security.” (emphasis added)
The request under the Code on Access to Information (“the Code”) was raised at 6pm on the same day of July 3 by email to the Chief Executive’s Office, setting out the three kinds of information aforementioned.
The grounds of review include:
(1) The CE Office cited the wrong reason
It was important to bear in mind that the application was specific to the six magistrates designated, not other judges at high level courts yet to be appointed at the time.
Rejecting the request, your office cited paragraph 2.17 under the Code that “Information which will soon be published, or the disclosure of which would be premature in relation to a planned announcement or publication.”
This is however clearly a wrong interpretation of the exemption under the Code to provide a simple answer to a question of undeniable public interest.
The paragraph 2.17.1, 2.17.2, and 2.17.3 of Guidelines on Interpretation and Application of the Code clearly suggested the exemption is only to protect information, in their final form, “which will be published by the department within 60 days after the request is made”, “since the record containing the information will be a public document once it is published/announced”.
The request on July 3 was in relation to a final decision with regards to the six magistrates, which is already published by the government at the time. In fair interpretation of the Code, the request never comes any close to being qualified as “soon to be published” or “premature”. It’s already published and in public domain, it’s a matter of details of who, which court, and what’s the original role in the Judiciary.
Also worth considering, the relevant laws that govern court procedures stipulate that the name of the judges should be made clear to both the accused and the public, which made it even more compelling to provide names of the magistrates.
(2) The promise to disclose information never materialised
In rejecting the request, the Chief Executive’s Office claimed “the Chief Executive will continue to designate judges at other courts, and will disclose the relevant information all at one time”.
Firstly, the argument has unfairly raised the hurdle of the disclosure to all judges under the NSL. It was never the intention of the request- it was plainly about the magistrates, not others. Because there was an unfilled position in other levels of court, does not change the fact that the six magistrates are already a final and published information that warrant to be disclosed.
As an illustration of the example, the Chief Executive has regularly appointed judges and deputies judges under the recommendation of Judicial Officers Recommendation Commission, despite there are still unfilled position in various levels of courts. That will not stop the positive duty of the administration to disclose the judges and deputy judges appointed since they took office and started presiding over cases, instead of waiting for all positions filled.
Secondly, paragraph 2.17.1 of the Guidelines on Interpretation and Application of the Code stated “This provision may be used to protect information which will be published by the department within 60 days after the request is made.”
60 days have clearly passed after the initial request, but neither names of the six magistrates, nor the names of the judges from High Court and the Court of Final Appeal designated by the Chief Executive under the NSL have been released by the government.
(3) Updates should be given
While the publication of the judges designated did not happen within 60 days after the request made, based on the proper interpretation of the Code, the original request should be released since paragraph 2.17.3 of the Guideline clearly stated “If publication does not take place, the information should be released forthwith..”.
At the very least, the government should in a positive manner provide update where "The applicant should be informed of the position and given an indication of the expected publication/announcement date.” (paragraph 2.17.2 of the Guidelines) .
There is no such effort from the government at each juncture, neither counting from July 3 where the request made, or July 23 where the request is turned down.
Given the development of the events, it was unclear if the Chief Executive’s Office even had a “planned publication/announcement date” of the all judges at all levels of courts designated to hear NSL cases.
But the exemption has already been in use anyway, that pointed to an overly broad and potentially arbitrary use of the exemption under the Code.
Given the proper interpretation of the Code and the public interest in allowing clear administration of justice, I hope your office may release the requested information upon request, as well as the judges designated at other high level of courts under the NSL.」
2.14 (a) 資料是為第三者持有或由第三者提供，並從第三者明確知道或獲得暗示不會進一步披露。但如第三者同意或披露資料的公眾利益超過可能造成的傷害或損害，則可予以披露。
2.15 與任何人（包括已故人士） 有關的資料（除了向資料所述的當事人或其他合適人士披露外），除非：
2.18 資料如披露會 ：
「With regard to your request for review of 8 October 2020 under the Code on Access to Information (“the Code”), our response after internal review is set out below.
The requested information constitutes personal data protected under the Personal Data (Privacy) Ordinance (Cap. 486) (“PDPO”). Data protection principle 3 of the PDPO states that personal data shall not, without the prescribed consent of the data subject, be used for a new purpose, i.e. a purpose other than that for which the data was to be used at the time of the collection of the data or any purpose directly related thereto. If the personal data is used for a new purpose, the prescribed consent of the data subject would be required unless any of the exemptions in Part 8 of the PDPO applies.
As far as your request for information of 3 July 2020 is concerned, the personal data of the six designated judges was collected in confidence solely for the purpose of designation under the NSL and their handling of cases concerning national security (“the Original Purpose”). In the absence of the designated judges’ consent, and given that none of the exemptions in Part 8 of the PDPO is applicable, the personal data of the designated judges cannot be disclosed to you to be used for a purpose other than the Original Purpose.
Furthermore, the information relating to the designation of judges under the NSL is confidential. It is in the public interest that confidence relating to the designation of judges should be preserved and protected by the law before the judges hear any cases concerning offence endangering national security. Having regard to the circumstances of the present case, we do not consider that there is any countervailing public interest in favour of disclosure that outweighs the public interest in preserving and protecting the personal information relating to the designated judges as well as the confidentiality involved. Such information should not be disclosed in the absence of the designated judges’ consent and without any legal authorisation requiring the disclosure.
Paragraphs 2.14(a), 2.15 and 2.18 of the Code provide that disclosure of the following information may be refused:
2.14(a) Information held for, or provided by, a third party under an explicit or implicit understanding that it would not be further disclosed. However, such information may be disclosed with the third party's consent, or if the public interest in disclosure outweighs any harm or prejudice that would result.
2.15 Information about any person (including a deceased person) other than to the subject of the information, or other appropriate person, unless -
(a) such disclosure is consistent with the purposes for which the information was collected, or
(b) the subject of the information, or other appropriate person, has given consent to its disclosure, or
(c) disclosure is authorised by law, or
(d) the public interest in disclosure outweighs any harm or prejudice that would result.
2.18 Information the disclosure of which would constitute -
(a) a contravention of any law which applies in Hong Kong, or
(b) a breach of any obligation arising under common law or under any international agreement which applies to Hong Kong.
Pursuant to the above paragraphs of the Code, we are unable to provide the requested information.
Should you disagree with the above decision, you may consider taking the matter to the Ombudsman pursuant to paragraph 1.26 of the Code.」