M v M

Judgment Date10 June 1997
Judgement NumberFCMC1425/1988
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC001425/1988 M v. M




SUIT NO. 1425 OF 1988


M Petitioner
M Respondent

Coram: Deputy Judge Saunders in Chambers

Date of Hearing: 2 June 1997

Date of Judgement: 10 June 1997




1. In this matter the Respondent wife has filed a summons seeking an order from the Court directed to the Director of Housing that he should supply to the wife the address, presently held by the Director of Housing, for the Petitioner husband.

2. The matter arises in the following way.

3. The husband and wife were married on 25 November 1981. They have one child, a daughter born on 26 October 1980. Unhappy differences arose between the husband and wife and they separated in June 1983. In March 1988 the husband issued a petition for divorce based upon two years apart with the consent of the wife to a decree. A decree nisi was pronounced on that petition on 14 July 1988 and at the same time the judge ordered the husband, on his own application, to make periodic payments for the maintenance the child of the family at the rate of $1,400 per month commencing on 1 August 1988. A decree absolute was made on 7 September 1988.

4. From July 1996 the husband has failed to pay the periodic payments, in breach of the Court order. He has not, for the last two years, exercised his rights of access to the child.

5. In an affirmation in support of the summons the wife says that in October 1986 she went to visit the husband at his last known address but discovered that he had moved. She made enquiries of the Housing Department Estate Office and was told that the husband had been allowed to move to a bigger room within the estate. The staff of the Housing Department were however, unwilling to tell the wife the husband's new address. Through her solicitors the wife sought from the Housing Department the address but the Department declined to supply that address, relying upon the provisions of the Personal Data (Privacy) Ordinance.

6. Until the commencement of the Personal Data (Privacy) Ordinance it was common practice for the District Court, in its Matrimonial jurisdiction, to order either the Director of Housing or the Director of Immigration to supply to a party to matrimonial proceedings the address or movement record of the other spouse. This information was sought to enable proceedings to be served, or to enable the Court to ascertain whether or not service should be undertaken by way of substituted service. The practice continued for many years and no objection was ever raised to it. With the commencement of the Personal Data (Privacy) Ordinance both the Housing Department and the Immigration Department have consistently declined to supply the information.

7. The issue in this case is whether or not I should make the order sought by the wife.

8. There is no doubt that by definition the information, including the husband's address, held by the Housing Department constitutes "personal data"; see s.2 of the Ordinance. Equally, the Housing Department (or the Immigration Department whenever relevant) is a "data user" as a "person controlling the collection, holding, processing or use of data": s.2 of the Ordinance. By s.4 of the Ordinance it is provided that:

"a data user shall not do an act, or engage in a practice, that contravenes a data protection principle unless the act or practice, as the case may be, is required or permitted under this ordinance."

9. The "data protection principles" are set out in schedule 1 of the Ordinance. Data protection principle 3 states as follows:

"Principle 3 - use of personal data. Personal data shall not, without the prescribed consent of the data subject, be used for any purpose other than-
(a) the purpose for which the data to be used that the time of the connection of the data; or
(b) a purpose directly related to the purpose referred to in paragraph (a)."

There is no doubt that supplying the address of a person for the purposes of proceedings under matrimonial legislation does not fall within the terms by which personal data may be used under data protection principle 3. Consequently, unless exemption from that principle can be found, the address of the husband may not be supplied to the wife without the prescribed consent of the husband, (the data subject).

10. Prima facie therefore, unless permitted under the Ordinance, and no matter how much it may obviously be in the public interest to pursue a person for unpaid maintenance, the information may not to be...

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