LegCo Paper No. CB(2)1403/96-97
(These minutes have been seen
by the Law Reform Commission)
Ref : CB2/PL/IP
LegCo Panel on Information Policy
Minutes of Special Meeting
held on Thursday, 16 January 1997 at 4:45 pm
in the Chamber of the Legislative Council Building
Members Present :
Hon Emily LAU Wai-hing (Chairman)
Hon Andrew CHENG Kar-foo
Hon LEUNG Yiu-chung
Hon Bruce LIU Sing-lee
Hon Lawrence YUM Sin-ling
Member Absent :
Hon Mrs Elizabeth WONG, CBE, ISO, JP
Members Attending :
Hon James TO Kun-sun
Hon CHEUNG Man-kwong
Hon Howard YOUNG
Hon Zachary WONG Wai-yin
Hon TSANG Kin-shing
Attendance by Invitation :
- Representatives of the Law Reform Commission
- The Hon Mr Justice MORTIMER, JA
- Chairman, Privacy Sub-committee
- Dr John BACON-SHONE
- Member, Privacy Sub-committee
- Mr Con CONWAY
- Member, Privacy Sub-committee
- Mr Stuart STOKER
- Secretary, Law Reform Commission
- Mr Godfrey KAN
- Secretary, Privacy Sub-committee
Clerk in Attendance :
- Mrs Anna LO
- Chief Assistant Secretary (2) 2
Staff in Attendance :
- Mr Colin CHUI
- Senior Assistant Secretary (2) 2
I. Purpose of Meeting
The Chairman said that, due to a lack of quorum for a joint meeting of the Information Policy Panel and Security Panel as originally scheduled, the meeting was taken as a special meeting of the Information Policy Panel. The purpose of the special meeting was to discuss the report by the Law Reform Commission of Hong Kong (LRC) on "Privacy: Regulating the Interception of Communications" (attached to LegCo Paper No. CB(2) 808/96-97).
II. Meeting with representatives of LRC
The Chairman welcomed representatives of LRC to attend the meeting. At the Chairmans invitation, representatives of LRC went over the report which made the following recommendations -
- It should be an offence intentionally to intercept or interfere with a telecommunication, a sealed postal packet or a transmission by radio on frequencies which were not licensed for broadcast while the message or packet was in the course of transmission.
- Only the Administration and its law enforcement agencies may apply for a warrant authorising the interception of communications. The application should be made to a High Court judge. A warrant may be issued only if the interception was to be carried out for the purpose of preventing or detecting serious crime or safeguarding public security in respect of Hong Kong.
- Material retained through interception of telecommunications carried out pursuant to a warrant should be inadmissible as evidence and should be destroyed as soon as the authorised purpose had been fulfilled. However, material obtained through interception of postal mail should be admissible and may be obtained for the purpose of any criminal proceedings.
- A judge of the Court of Appeal should be appointed to be the supervisory authority to keep the warrant system under review. He may examine on his own initiative whether a warrant had been properly issued and whether its terms had been properly complied with. An aggrieved person who believed that his communications had been unlawfully intercepted may request the supervisory authority to investigate whether there had been a contravention of the statutory requirements relating to the issue of warrants. To increase public accountability for interception activities carried out by the law enforcement agencies, the supervisory authority should furnish annually a public report to the Legislative Council and a confidential report to the Governor.
Interception of telephone transmissions
(para. 2.22 - 2.24 of the report)
On the question of the number of interceptions of telephone transmissions (para 2.22 - 2.24 of the report referred), representatives of LRC said that LRC neither had access to nor asked for such information. They pointed out that LRC proposed a statutory requirement (para 8.97 of the report) that all licensed telecommunications carriers which carried out interceptions of telecommunications pursuant to a warrant be required to furnish quarterly reports to the Telecommunications Authority for onward transmission to the supervisory authority.
Existing legislation on interception of communications
(para. 3.44 of the report)
In reply to the question of the drawbacks of the existing legislation on interception of communiations, representatives of LRC said that the provisions of the Telecommunication Ordinance (Cap. 106) and the Post Office Ordinance (Cap. 98) did not accord with the requirements of article 17 of the International Covenant on Civil and Political Rights (replicated as Article 14 of the Hong Kong Bill of Rights). Neither the Telecommunication Ordinance nor the Post Office Ordinance provided sufficient protection against unlawful or arbitrary interference with the individuals right to privacy and freedom of communication.
Grounds on which a warrant may be issued
Definition of "serious crime"
(para. 6.5(a) of the report)
On the question of the rationale for defining "serious crime" by virtue of the maximum sentence applicable to the offence, LRC considered that such a definition could achieve the necessary degree of certainty in the law, while avoiding the difficulties associated with providing a schedule of specific offences. The appropriate level of sentence should be determined by the Administration, but account should be taken of the need to provide a lower sentencing threshold for offences involving an element of bribery or corruption.
Definition of "public security"
(para. 6.5(b) of the report)
On the question of why the scope of "public security" might cover international relations, LRC pointed out that the consultation paper of the Privacy sub-committee recommended that a ground for issuing a warrant authorising interception of communications should be that it was for the purpose of safeguarding the security, defence or international relations. But Article 30 of the Basic Law provided that the only ground on which a residents privacy of communication may be infringed was "public security" or "investigation into criminal offences". The term "public security" was not defined in the Basic Law, but LRC believed that it would be wide enough to cover defence and, in certain circumstances, international relations. In order to be in line with the Basic Law, LRC modified the original proposal in the consultation paper by restricting such a ground to safeguarding public security in respect of Hong Kong. LRC did not intend to define the term "public security" as such a definition might be held to be inconsistent with the Basic Law.
Application by the private sector for a warrant
(para. 6.6 of the report)
Regarding the reasons for not giving the private sector the right to apply for a warrant, LRC considered it desirable that any person who detected or suspected that there was a crime should report the matter to the police rather than pursuing a private investigation on their own. Moreover, if the private sector were allowed to intercept private communications, it would be extremely difficult to control the subsequent use and disclosure of information obtained by the interception.
In reply to a members question, LRC clarified that recording a phone interview by the reporter conducting the interview was not an interception of communication. Placing tape recorders in the office to record communications without the consent of the parties to the communication was an act of surveillance which would be covered in another LRCs report. LRC pointed out that some employers could make it a condition of employment that they had the right to monitor and control a staff members telecommunications which were transmitted via the companies telecommunications equipment.
Ex post facto applications
(para. 6.18 of the report)
The Chairman raised the following questions -
- The situations which justified ex post facto applications.
- Whether a directorate officer was senior enough to authorise an interception before applying for a warrant ex post facto. She considered that the authorisation should rest with the Governor/Chief Secretary or at least the head of the law enforcement agency concerned.
Representatives of LRC responded as follows -
- Ex post facto applications would be necessary in urgent situations, e.g. kidnappers contacted victims family over the phone, where it was impracticable to apply to a judge before initiating an interception.
- Whilst agreeing that additional protection was needed to eliminate the possibility of an interception being made by a rogue officer, LRC considered that permission need not come from the Chief Secretary or the head of the law enforcement agency concerned. They should be allowed to delegate the power to officers at the directorate level designated for such purposes. In emergency cases where interceptions requiring ex post facto applications it would be easier to find the large number of designated directorate officers rather than the Chief Secretary or the head of the law enforcement agency concerned for authorisation of interceptions.
Members noted the two proposals outlined respectively at para 6.24 and 6.25 of the report, i.e. (a) where an ex post facto application was denied by a judge, the officers authorising or making an interception would not be guilty of unlawful interception if the court was satisfied that the officer concerned acted in good faith when authorising or making the interception; and (b) availability of an ex post facto appplication to ratify an interception which was not covered by an existing warrant because of an honest error committed by the applicant; provided that the application was made within 48 hours of the applicant having notice of the error, and the interception would have been authorised if the applicant had applied for it at the time he made the original application. A member was concerned that such an exemption of criminal liability and availbility of an ex post facto application may be abused if the officers kept on relying on this exemption as an excuse. LRC pointed out that the court may refer the matter to the Attorney General or the Court of Appeal whenever an ex post facto application was denied by a judge. In the case of an ex post facto application to ratify an interception which was not covered by an existing warrant, the court may issue a warning to the applicant or refer the matter to the Attorney General for consideration of prosecution if the applicant made such applications repeatedly.
On the question of the ways to ensure that an interception, which an ex post facto application was required to ratify, did not go beyond the terms of the warrant, LRC pointed out that a warrant would be issued for an initial period not exceeding 90 days and that renewals might be granted for such further periods of the same duration where it was shown (according to the same criteria applied to the initial application) to continue to be necessary. Intercepted material could only be used for criminal intelligence and would be destroyed as soon as its retention was no longer necessary for the specified purpose. The judge issuing the warrant remained in control of the execution of the warrant. Review of the propriety of a warrants issue rested with the supervisory authority who could examine on its own initiative whether a warrant had been properly issued and complied with.
In response to a members question, representatives of LRC said that the quarterly reports submitted by the licensed telecommunications carrier (para 8.97 of the report) to the supervisory authority via the Telecommunications Authority would also cover interceptions which required ex post facto judicial authorisation.
(para. 8.2 of the report)
On a members suggestion to appoint more than one judge in the supervisory authority to increase objectivity, LRC considered that, in view of the manpower constraints, it might be better to appoint only one judge as proposed by LRC and see how the proposal worked.
Review of a warrant which was still effective
(para. 8.4 of the report)
A member was concerned about the proposal in para. 8(4)c of the report that the supervisory authority would refer a case of alleged unlawful interception to a judge of the High Court (preferably the one who originally issued the warrant) to review and decide whether the warrant had been properly issued and complied with. Representatives of LRC stressed that the supervisory authority would do so only when he ascertained that there was a warrant affecting the aggrieved person which was still effective (para 8.4(b) of the report). In response to the question whether it would be fairer to refer the case to another judge rather than the judge who originally issued the warrant, LRC considered that a judge would protect an individual by issuing a warrant only on proper grounds and take into account all relevant factors in reviewing the case. It was important that the judge issuing a warrant would remain in total control of the warrant when it was effective. The purposes of the judges review were, instead of checking whether he had made mistakes, to check that the reasons given in the affidavits supporting the issue of the warrant were genuine and that the warrant had been executed in accordance with its conditions. The original judge would be the appropriate person to conduct the review when the warrant was effective. If the warrant affecting the aggrieved person had expired, the review would be conducted by the supervisory authority, not the issuing judge.
Notification to the aggrieved person
(para. 8.74 of the report)
The Chairman enquired LRCs proposal regarding the response to a complainant about the alleged unlawful interception. Representatives of LRC replied that, where the reviewing judge had set aside the warrant which was effective when the complaint was made, or the supervisory authority concluded that the expired warrant had not been properly issued or complied with, the supervisory authority should notify the aggrieved person that there had been a contravention of the statutory requirements relating to the issue of warrants. In any other case, the supervisory authority should refrain from making any comments other than informing the aggrieved person that there had been no contravention of the statutory requirements relating to the issue of warrants.
Compensation to the aggrieved person
(para. 8.80 of the report)
A member was concerned about the supervisory authoritys power to pay compensation to the aggrieved person out of public funds if the authority concluded that the warrant had been improperly issued or complied with, or if the warrant had been set aside by the reviewing judge. He enquired the United Kingdom (UK) experience in this respect and the compensation level.
Representatives of LRC responded that in UK very few people lodged complaints against alleged unlawful interceptions to the supervisory authority. It was a statutory requirement in UK for compensation to be awarded by a tribunal but such a tribunal had not been convened in the past ten years.
Interception of communications by the media
(Chapter 9 of the report)
In response to the Chairmans question, representatives of LRC said that the reasons for not exempting the media from the regulatory framework were set out in Chapter 9 of the report. They pointed out that the principle on interception of communication by the media was that every one should abide by the law. LRC did not see any reason for exempting the media from the regulatory framework. If such an exemption was given, people/organisations could get around the regulatory framework by, e.g. obtaining a newspaper registration which was relatively easy to get and, under the claim of discharging journalists duties, intercept private communications. Moreover, if people/organisations other than law enforcement agencies were allowed to intercept private communications, it would be extremely difficult to control the subsequent use and disclosure of information obtained by the interception.
III. Way forward
In reply to the Chairmans enquiry, representatives of LRC said that Chinese version of the report would be available by the end of February 1997. At a members request, LRC agreed to let members have access to the materials referred to in the report. In this connection, the Chairman asked the Clerk to inform the LegCo library to note the availability of such materials in LRC. In response to the Chairmans question, Mr James TO said that his Members bill, i.e. the Interception of Communications Bill, was awaiting the Law Draftsmans certificate.
Members agreed that a special joint meeting with the Security Panel would be held on 20 February 1997 at 10:45 am in Conference Room A of the Legislative Council Building to discuss with the Administration its views and plans on the report.
(Post-meeting note: As instructed by the Chairman, the special meeting was rescheduled to be held on 18 February 1997 at 2:30 pm in the Chamber of the Legislative Council Building.)
The meeting ended at 6:22 pm.
4 March 1997
Last Updated on 20 August 1998