| This is the text of the Hong Kong Personal Data (Privacy) Ordinance, with hypertext (click and jump) links to all paragraph and section cross references, and to the definitions of all terms defined in the Ordinance. For information about the conventions adopted in setting this out, please refer to the separate page. |  |
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PART II
ADMINISTRATION
5. Establishment, etc. of Privacy Commissioner
for Personal Data
(1) For the purposes of this Ordinance, there is hereby
established an office by the name of the Privacy Commissioner for
Personal Data.
(2) The Commissioner shall be a corporation sole with perpetual
succession and—
(a) shall have and may use a seal; and
(b) shall be capable of suing and being sued.
(3) The Governor shall, by notice in the Gazette, appoint a
person to be the Commissioner.
(4) Subject to subsection (5), the person appointed to be the
Commissioner shall hold office for a period of 5 years and shall be
eligible for reappointment for not more than 1 further period of 5
years.
(5) The person appointed to be the Commissioner may—
(a) at any time resign from his office by notice in writing
to the Governor; or
(b) be removed from office by the Governor with the approval
by resolution of the Legislative Council on the ground
of—
(i) inability to perform the functions of his office;
or
(ii) misbehaviour.
(6) The Governor shall determine—
(a) the emoluments; and
(b) the terms and conditions of appointment,
of the person appointed to be the Commissioner.
(7) The provisions of Schedule 2 shall have effect with respect
to the Commissioner.
(8) Subject to subsection (9), the Commissioner shall not be
regarded as a servant or agent of the Government or as enjoying any
status, immunity or privilege of the Government.
(9) The person appointed to be the Commissioner shall be deemed
to be a public servant—
(a) within the meaning of section 2 of the Prevention of
Bribery Ordinance (Cap. 201); and
(b) for the purposes of that Ordinance.
6. Commissioner to hold no other office
The person appointed to be the Commissioner shall not, without the
specific approval of the Governor—
(a) hold any office of profit other than his office as
Commissioner; or
(b) engage in any occupation for reward outside the functions
of his office.
7. Filling of temporary vacancy
(1) Where the person appointed to be the Commissioner—
(a) dies;
(b) resigns;
(c) is removed from office;
(d) is absent from Hong Kong; or
(e) is for any other reason unable to perform the functions
of his office,
then the Governor may, by notice in writing, appoint a person to act
as the Commissioner until, as the case requires—
(i) a new Commissioner is appointed under section 5(3); or
(ii) the Commissioner resumes his office.
(2) A person appointed under subsection (1) to act as the
Commissioner, whilst he is so appointed—
(a) shall perform the functions; and
(b) may exercise the powers,
of the Commissioner under this Ordinance.
(3) Section 6 shall apply to a person appointed under subsection
(1) to act as the Commissioner as if that person were the
Commissioner.
8. Functions and powers of Commissioner
(1) The Commissioner shall—
(a) monitor and supervise compliance with the provisions of
this Ordinance;
(b) promote and assist bodies representing data users to
prepare, for the purposes of section 12, codes of
practice for guidance in complying with the provisions of
this Ordinance, in particular the data protection
principles;
(c) promote awareness and understanding of, and compliance
with, the provisions of this Ordinance, in particular the
data protection principles;
(d) examine any proposed legislation (including subsidiary
legislation) that the Commissioner considers may affect
the privacy of individuals in relation to personal data
and report the results of the examination to the person
proposing the legislation;
(e) carry out inspections, including inspections of any
personal data systems used by data users which are
departments of the Government or statutory corporations;
(f) for the better performance of his other functions,
undertake research into, and monitor developments in, the
processing of data and computer technology in order to
take account of any likely adverse effects such
developments may have on the privacy of individuals in
relation to personal data;
(g) liaise and co-operate with any person in any place
outside Hong Kong—
(i) performing in that place any functions which, in
the opinion of the Commissioner, are similar
(whether in whole or in part) to any of the
Commissioner's functions under this Ordinance; and
(ii) in respect of matters of mutual interest concerning
the privacy of individuals in relation to personal
data; and
(h) perform such other functions as are imposed on him under
this Ordinance or any other enactment.
(2) The Commissioner may do all such things as are necessary for,
or incidental or conducive to, the better performance of his
functions and in particular but without prejudice to the generality
of the foregoing, may—
(a) acquire and hold property of any description if in the
opinion of the Commissioner such property is necessary
for—
(i) the accommodation of the Commissioner or of any
prescribed officer; or
(ii) the performance of any function which the
Commissioner may perform,
and, subject to the terms and conditions upon which such
property is held, dispose of it;
(b) enter into, carry out, assign or accept the assignment
of, vary or rescind, any contract, agreement or other
obligation;
(c) undertake and execute any lawful trust which has as an
object the furtherance of any function which the
Commissioner is required or is permitted by this
Ordinance to perform or any other similar object;
(d) accept gifts and donations, whether subject to any trust
or not;
(e) with the prior approval of the Governor, become a member
of or affiliate to any international body concerned with
(whether in whole or in part) the privacy of individuals
in relation to personal data;
(f) exercise such other powers as are conferred on him under
this Ordinance or any other enactment.
(3) The Commissioner may make and execute any document in the
performance of his functions or the exercise of his powers or in
connection with any matter reasonably incidental to or consequential
upon the performance of his functions or the exercise of his powers.
(4) Any document purporting to be executed under the seal of the
Commissioner shall be admitted in evidence and shall, in the absence
of evidence to the contrary, be deemed to have been duly executed.
(5) The Commissioner may from time to time cause to be prepared
and published by notice in the Gazette, for the guidance of data
users, guidelines not inconsistent with this Ordinance, indicating
the manner in which he proposes to perform any of his functions, or
exercise any of his powers, under this Ordinance.
9. Staff of Commissioner, etc.
(1) The Commissioner may—
(a) employ such persons (including technical and professional
persons); and
(b) engage, other than by way of employment, such technical
and professional persons,
as he thinks fit to assist him in the performance of his functions,
and the exercise of his powers, under this Ordinance.
(2) The Commissioner shall determine—
(a) the remuneration and terms and conditions of employment
of any person, or any person belonging to a class of
persons, who may be employed under subsection (1)(a);
(b) the remuneration and terms and conditions of engagement
of any person, or any person belonging to a class of
persons, who may be engaged under subsection (1)(b).
(3) The Commissioner may—
(a) grant, or make provision for the grant of, pensions,
gratuities and retirement benefits to employees;
(b) provide other benefits for the welfare of employees and
their dependents;
(c) authorize payments, whether or not legally due, to the
personal representatives of a deceased employee or to any
person who was dependent on such employee at his death.
(4) The Commissioner may—
(a) establish, manage and control; or
(b) enter into an arrangement with any company or association
for the establishment, management and control by that
company or association either alone or jointly with the
Commissioner of,
any fund or scheme for the purpose of providing for the pensions,
gratuities, benefits and payments referred to in subsection (3).
(5) The Commissioner may make contributions to and may require
employees to make contributions to any fund or scheme referred to in
subsection (4).
(6) In this section "employees" (¹µû) includes any class of
employee which the Commissioner specifies and in subsection (3)
includes former employees.
10. Delegations by Commissioner
(1) Subject to subsection (2), the Commissioner may delegate in
writing any of his functions or powers under this Ordinance to any
prescribed officer subject to such terms and conditions, if any, as
he thinks fit and specified in the delegation.
(2) The Commissioner shall not delegate any of his functions or
powers under—
(a) subsection (1);
(b) any provisions of any regulations made under this
Ordinance which are specified in the regulations as
provisions which shall not be subject to subsection (1);
(c) any provisions of Schedule 2 which are specified in that
Schedule as provisions which shall not be subject to
subsection (1).
(3) A delegate of the Commissioner—
(a) shall perform the delegated functions and may exercise
the delegated powers as if the delegate were the
Commissioner; and
(b) shall be presumed to be acting in accordance with the
relevant delegation in the absence of evidence to the
contrary.
11. Establishment of Personal Data (Privacy)
Advisory Committee
(1) There is hereby established a committee by the name of the
Personal Data (Privacy) Advisory Committee for the purpose of
advising the Commissioner upon any matter relevant to the privacy of
individuals in relation to personal data or otherwise relevant to the
operation of this Ordinance.
(2) The Committee shall consist of—
(a) the Commissioner, who shall be the chairman; and
(b) not less than 4 or more than 8 other persons, appointed
by the Secretary for Home Affairs, of whom—
(i) not less than 1 shall have not less than 5 years'
experience in the processing of data; and
(ii) not more than 1 shall be a public officer.
(3) The members of the Committee appointed under subsection
(2)(b) shall hold office for such period and upon such terms as the
Secretary for Home Affairs specifies in their respective appointments
or from time to time.
(4) A member of the Committee appointed under subsection (2)(b)
may resign at any time by notice in writing delivered to the
Secretary for Home Affairs.
(5) The Committee may regulate its procedure.
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Contents
[Prelim. & definitions]
[Admin.] [Codes of practice]
[Returns & register]
[Data access & correction]
[Matching & transfers]
[Complaints, etc.] [Exemptions]
[Offences] [Forms, fees, etc.]
[Sched 1: Data protection principles]
[Sched 2: Finances]
[Sched 3: Prescribed information]
[Sched 4: Other ordinances]
[Sched 5: Prescribed matters]
[Sched 6: Warrants]
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