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Following is a question by the Hon Alice Mak and a reply by the Secretary for Development, Mr Paul Chan, in the Legislative Council today (June 8):
Question:
Currently, members of the public may conduct land search to inspect the Land Register and copies of registered instruments (collectively referred to as "land records") maintained by the Land Registry (LR) through LR's online system or in person through the counters and self-service terminals at LR's customer centre or search offices. It has been reported that early this year, a swindler obtained the personal data of the owner of a private residential flat through land search and used such data to forge an identity card. That person then, disguising as the owner, put up the flat for sale and succeeded in cheating a buyer into paying a deposit. Some members of the public have pointed out that the aforesaid case reveals that the personal data in public registers may be used for illegal purposes, thereby jeopardising the interests of the data subjects. In this connection, will the Government inform this Council:
(1) whether the authorities instituted prosecutions in the past five years against persons who made abusive use of the personal data in land records and those who used such data to disguise as other people in the purchase and sale of properties; if they did, of the respective numbers of such cases and the procedures for handling such cases;
(2) whether the authorities will consider adopting the following measures to prevent abusive use of the personal data in various public registers: recording the personal data of searchers; requesting searchers conducting search through counters to confirm that they are aware of the purpose for establishing the registers, the restrictions on the use of public registers and the consequences of abusive use of the information obtained; requesting searchers to make a statement on the intended purpose for which the information obtained is to be used; and amending the Land Registration Ordinance and other related ordinances to stipulate that people will be held criminally liable for abusive use of the personal data in the relevant public registers; if they will, of the details; if not, the reasons for that; and
(3) whether there are other measures to prevent abusive use of the personal data in various public registers in order to protect the interests of the data subjects; if so, of the details?
Reply:
President,
The Land Registry (LR) is a public office responsible for registration of instruments affecting land and provision of land records for public search in accordance with the Land Registration Ordinance (LRO) and the Land Registration Regulations (LRR). As stated in the Long Title and Preamble of the LRO, the purposes of keeping the Land Register and providing land records for public search are to prevent secret and fraudulent conveyances, and to provide means whereby the title to real and immovable property may be easily traced and ascertained.
According to the LRR, the Land Registrar shall upon request and payment of the prescribed search fees make available records of the LR to any person. Currently, the LR handles over 20 000 searches daily. Users of the services include professionals, estate agencies, financial institutions and other members of the public who need the records of the LR for property transactions, conveyancing and other matters.
Records of the LR may contain personal data, which is subject to the provisions of the Personal Data (Privacy) Ordinance (PDPO). Under the PDPO, without voluntary and express consent by the data subject, personal data must only be used for the purpose for which the data is collected or for a directly related purpose. In case of contravention, the Privacy Commissioner for Personal Data (PCPD) is empowered under the PDPO to serve enforcement notices directing the data user to remedy and prevent any recurrence of the contravention. A data user who contravenes an enforcement notice served on them commits an offence and is liable to fine and imprisonment under the PDPO.
To enhance the awareness of users of the LR's search services about the proper use of its records and compliance with the PDPO, the LR has put in place numerous administrative measures over the years, including requiring users of online services and self-service terminals to first indicate their agreement to accept the "Terms and Conditions" of using the services, which include a restriction that the information obtained from the searches shall not be used for any activities in violation of any provisions of the PDPO. The LR has also reminded searchers through different channels, including putting up notices at the LR premises and adding a statement in the land record documents, that the use of information provided in the land records is subject to the provisions of the PDPO.
Having consulted the Police and the Constitutional and Mainland Affairs Bureau, my consolidated reply to the three-part question raised by Hon Mak is as follows:
(1) In 2011-2015, the Police handled a total of 83 cases relating to property fraud, including impersonation, provision of false information and deception by making use of Mainland property, which led to the arrest of 48 persons and prosecution of 15 persons. The Police do not maintain figures of persons abusing personal data in the land records.
When handling the relevant cases, the Police would investigate from various aspects as to how the criminals have obtained the information. In a bid to vigorously combat and prevent crimes relating to property fraud, the Police shall continue to maintain close contact with the relevant sector for intelligence gathering and analysis, as well as for dissemination of the most effective anti-crime messages in a timely manner.
(2) and (3) The Government has been making continuous efforts in enhancing the protection of personal data contained in public registers, and has issued an internal guideline on the operation of public registers. The guideline's requirements include: government departments should advise searchers of the purpose of the establishment of the relevant registers and the limitations on the usage of the personal data therein; the amount of data collected and made available for public access should not be more than what is necessary for the establishment of the registers, etc. Although the Government internal guideline does not require searchers to acknowledge the purpose of establishing the register and the limitations on data usage, this measure has been put in place in nearly 40 registers so far. As regards the recording of searchers' personal particulars, the Government internal guideline does not include such a requirement. Notwithstanding this, searchers of certain public registers are required to provide personal particulars including their names, identity card numbers, addresses, etc in their declarations of purpose.
Moreover, the Government internal guideline suggests that departments should consider introducing amendments to the relevant legislation to set out the criminal liability of abusing personal data in a public register or to require searchers to declare the purpose of their search. This measure has been adopted by about 30 public registers. The Government will continue its efforts in implementing different measures, and will take into account the views of various sectors to prevent abuse of personal data contained in public registers.
As regards the land records, they serve important legal functions including the prevention of secret and fraudulent conveyances. If a person lodges a request with the LR in accordance with the relevant procedures for conducting a search of the land records, the LR cannot refuse such request under the existing law. Besides, public demand for searching land records is huge. Due care must be exercised before introducing any measure which may affect the convenience and efficiency of conducting legitimate searches. The practicability and other implications of any such measure, including its impact on the demand of resources and the efficiency of service delivery by the LR, must also be considered.
Regarding measures for tackling the abuse of personal data, as I mentioned just now, the PCPD is empowered under the PDPO to take enforcement action against breaches of the PDPO provisions. If there is any suspected case involving public searches of the LR's records which are in breach of the PDPO, the LR will refer the case to the PCPD for follow-up. At the moment, we have no plan to amend the LRO for imposing any additional sanction against abuse of personal data in the records of the LR.
The LR will continue to explore feasible administrative measures for enhancing the protection of personal data in its records. For example, the LR is planning to extend the measure currently applicable to on-line users and users at the self-service terminals to users of counter services, so that these users will be required to acknowledge the purposes for establishing the land registers and the land records, the restrictions of use and the consequences of abusive use of data before their search requests are accepted. Subject to the effectiveness of the measure, the LR will continue to explore with the PCPD possible ways to enhance the protection of personal data in the records of the LR under the PDPO. When there is a need to amend the LRO and the LRR in future, we will also consider whether a more specific formulation of the purposes of keeping the Land Register can be adopted, the declaration of the purposes of the search required to be made by searchers and the imposition of liability for abuse of personal data on the Register.
Ends/Wednesday, June 8, 2016
Issued at HKT 14:57
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