LegCo Paper No. CB(2)1635/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/PL/IP, CB2/PL/SE
- Items II and III
- Mrs Carrie YAU
- Deputy Secretary for Security 1
- Mr Philip CHAN
- Principal Assistant Secretary for Security E
- Miss Vega WONG
- Assistant Secretary for Security E2
- Mr G A FOX
- Senior Assistant Law Draftsman
- Item III
- Ms Sumithra G DHANARAJAN
- Personal Assistant to Hon James TO Kun-sun
Clerk in Attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2) 1
Staff in Attendance :
- Mr Colin CHUI
- Senior Assistant Secretary (2) 2
I. Election of Chairman
Miss Emily LAU was elected Chairman of the joint meeting.
II. Administrations views and plans on the Law Reform Commission (LRC) Report on "Privacy : Regulating the Interception of Communications"
Timetable for the legislative proposals on interception of communications
At the Chairmans invitation, representatives of the Administration said that the LRC Report was only issued in December 1996. The Administration had completed the analysis of various recommendations by LRC. The proposal that interception of communications should be prohibited unless authorised in the form of a judicial warrant was accepted. The Administration had to carefully examine how the proposals could be implemented. It would bring forward the necessary legislative proposals at the earliest possible date. Members were extremely concerned that the Administration might not be able to introduce into LegCo the relevant legislative proposals before the deadline on 10 April 1997. They requested the Administration to provide a timetable for the legislative proposals. The Administration undertook to revert to member in two weeks time.
3. In reply to a member, the Administration advised that in drafting the proposals, it was necessary to ensure such proposals would be acceptable to the law enforcement agencies, other organizations (e.g. carriers) and the public. Law enforcement agencies had been consulted during the analysis process. The Administration was considering how consultation on the legislative proposals should be carried out and whether the Chinese side had to be consulted.
Existing administrative measures to regulate interception of communications
4. On the question of existing administrative measures to regulate interception of communications, the Administration said that stringent guidelines on interception of communications were in place. Interception of communications would not be permitted unless it was necessary, e.g. for the maintenance of law and order. Any interceptions had to be authorised by the Governor. The Chairman opined that the Administration should increase the transparency of the existing regulatory mechanism. The Administration responded that the best way to achieve a higher degree of transparency was to put in place the necessary legislative proposals. The Administration was working towards that end.
III. Interception of Communications Bill - A Members Bill proposed by Hon James TO
(LegCo Paper No. 1214/96-97(01))
5. Mr James TO briefed members on the key features of the Interception of Communications Bill set out in para 7-8 of his paper. He said that the Chinese version of the Bill was still under preparation.
Deficiencies in the Bill
6. In response to a member, Mr TO admitted that there were deficiencies in the Bill. Mr TO said that, whilst allowing the court to control interception of communications which would only be authorised by a court order from a High Court judge, the Bill did not have monitoring mechanism proposed by LRC, i.e. issue of warrant by a High Court judge and a supervisory authority (a judge of the Court of Appeal) to review the warrant system. Nevertheless, it was important to have legislative proposal(s) which aimed to curb unlawful and arbitrary interference with privacy by regulating interception of communications and replace existing legislative provisions on interception of communications which were in breach of Article 14 of the Hong Kong Bill of Rights. The Bill was proposed in the light of the uncertainty that the Administrations legislative proposals could be introduced into LegCo in this session.
Reporting by the Attorney General (AG) to the Governor and the Legislative Council
7. On the AGs report to the Governor and LegCo as required under the Bill, Mr James TO said that the AGs report would include statistics on details of interceptions carried out as listed in clause 9(1)(a)-(g). The phrase "the place" in clause 9(b) referred to the types of place where communications were intercepted, e.g. public venues. The names and addresses of the premises where communications were intercepted would not be specified in the report. He would consider refining the drafting of clause 9(1)(b).
Application for authorisation
8. In response to the Chairman, Mr James TO said that clause 5(1) set out the five categories of law enforcement officers allowed to apply for a court order to conduct an interception of communications. Officers of the Inland Revenue Department were not included as they already had extensive power to investigate a persons financial situation in relation to an offence under taxation legislation. Interception of communications was a last resort and should not be used unless it was absolutely necessary. He would further consider whether the Inland Revenue Department should be included.
Interception of communications by the media
9. On the question of interception of communications by the media, Mr James TO pointed out that, whilst the Bill outlawed interception of communications without prior authorisation, clause 3(4) provided a defence to the accused to prove that the interception was conducted in good faith for the purpose of revealing a serious threat to public order or to the security of Hong Kong, or to the health and safety of the public.
Renewal of court order
10. Mr TO said that clause 6(4) provided that any lawful interception of communication could only last for 30 days. Clause 6(8) allowed for a renewal of a court order for a period not exceeding 30 days. A member asked whether a total period of 60 days was adequate. Mr James TO said that in proposing these provisions, reference had been made to relevant legislation in other jurisdictions. The relevant legislation of the United States of America only allowed a court order for a period of 60 days authorising interception of communications for collecting intelligence for the purpose of national security. Nevertheless, he would consider views on the validity period and renewal of the court order.
Consultation with law enforcement agencies
11. In reply to the Chairman, Mr James TO said that law enforcement agencies had not been consulted on the Bill. He, however, was confident that the agencies would not object to the Bill. The Bill was in general consistent with the proposals in the LRC Report to which the law enforcement agencies did not raise any objection. He pointed out that being different from the LRCs proposal, the Bill allowed materials obtained through a lawful interception of communications to be admissible as evidence in court. This provision, in his view, should not attract objection from the agencies. The Schedule containing a list of offences categorised as "serious crimes" for the purpose of the Bill was based on Schedules 1 and 2 to the Organised and Serious Crimes Ordinance on which the agencies had been consulted. There might be crimes which were regarded as serious for the purpose of the Bill but were not on the list. He would consider views on the coverage of "serious crimes".
12. In reply to the Chairman, the Administration undertook to revert to the Panels its comments on the Bill.
13. Mr James TO said that he would proceed with seeking LegCo Presidents ruling as to whether the Bill had a charging effect with a view to gazetting and introducing it into LegCo as soon as possible.
14. Members agreed to hold another joint meeting on 7 March 1997 at 10:45 am in Conference Room A of the Legislative Council Building for the Administration to respond to the LRC Report and the Bill proposed by Mr James TO.
15. The meeting ended at 3:46 pm.
25 March 1997
Last Updated on 20 August 1998