First published: 31st December 2010
Our Chief Consultant Allan Dyer's further thoughts on the Consultation Report on Review of Personal Data (Privacy) Ordinance:
In my previous submission, I dismissed Proposal 4, concentration of the additional power of prosecution in the Privacy Commissioner, but that was before I knew the consequences of the existing arrangement. If I understand correctly, the procedure now is for a complaint to be made to the Privacy Commissioner, who investigates and decides whether there is a criminal offence. If there is, a complaint must be made to the Police, who then investigate the offence. The investigation is duplicated.
Quite how ridiculous this procedure is can be appreciated by considering a member of the public discovering a dead body. The equivalent procedure would be for the person to call a pathologist to conduct an autopsy, and, only if the pathologist considered there was a possible crime, would the Police be called.
The repetition of the investigation, after a delay, is likely to substantially lower the success rate. Potential witnesses will be discouraged by the waste of time repeating their statements, and recall of facts will be impaired by the delay. The initial investigation might even obliterate significant evidence before the second investigation is conducted, the only way to ensure against this would be to have equally-skilled forensic investigators in the initial investigation, thus ensuring that the repetition doubles the cost.
Any complaint by a member of the public of a possible crime should be handled by the Government in an efficient, transparent and effective manner. Duplicating the investigation does not achieve this.