LegCo Paper No. CB(2) 1503/95-96
(These minutes have been seen by the Law Reform Commission)
Ref : CB2/PL/IP, CB2/PL/SE
LegCo Panel on Information Policy and
LegCo Panel on Security
Minutes of Joint Meeting held on
Monday, 29 April 1996 at 4:45 p.m.
in the Chamber of the Legislative Council Building
Members Present :
- LegCo Panel on Information Policy
on Emily LAU Wai-hing (Chairman) *
- Hon Bruce LIU Sing-lee (Deputy Chairman) *
- Hon Christine LOH Kung-wai
- Hon Andrew CHENG Kar-foo *
- Hon LEUNG Yiu-chung
- LegCo Panel on Security
- Hon James TO Kun-sun (Chairman)
- Hon Mrs Selina CHOW, OBE, JP (Deputy Chairman)
- Hon CHEUNG Man-kwong
- Hon IP Kwok-him
- Hon Lawrence YUM Sin-ling
Members Absent :
- LegCo Panel on Information Policy
- Hon Mrs Elizabeth WONG CHIEN Chi-lien, CBE, ISO, JP
- LegCo Panel on Security
- Hon LI Wah-ming
- Hon Howard YOUNG, JP
- Hon Zachary WONG Wai-yin
- Hon CHAN Kam-lam
- Hon CHEUNG Hon-chung
- Hon HO Chun-yan
- Dr Hon LAW Cheung-kwok
- Hon LAW Chi-kwong
- Hon LO Suk-ching
- Hon Margaret NG
- Hon TSANG Kin-shing
(* Also a member of the LegCo Panel on Security)
Attendance by Invitation :
- Law Reform Commission
- Hon Mr Justice MORTIMER, JA
- Chairman, Privacy Sub-committee
- Dr John Bacon-Shone
- Member, Privacy Sub-committee
- Mr Don Brech
- Member, Privacy Sub-committee
- Mr A F M Conway
- Member, Privacy Sub-committee
- Mr Godfrey KAN
- Secretary, Privacy Sub-committee
- Mr Stuart Stoker
- Secretary, LRC
Staff in Attendance :
- Mrs Justina LAM
- Assistant Secretary General 2
- Mrs Anna LO
- Chief Assistant Secretary (2) 2
- Mr Colin CHUI
- Senior Assistant Secretary (2) 2
I. Election of Chairman
Miss Emily LAU was elected Chairman of the meeting.
II. Meeting with the Law Reform Commission
The Consultation Paper
2. The Chairman welcomed representatives of the Law Reform Commission (LRC) to the meeting which was to discuss its Consultation Paper (the Paper) on "Privacy : Regulating Surveillance and the Interception of Communications".
3. In his opening statement, Mr Justice MORTIMER briefed members on the salient points of the Paper. The Sub-committee considered that, with increasingly sophisticated technology, existing laws needed to be updated to provide adequate and effective protection to the privacy of communications and safeguards against arbitrary or unlawful interference with a persons privacy or correspondence. The Sub-committee believed that physical surveillance was a sufficiently serious intrusion into a persons privacy to warrant the use of criminal sanctions, and they recommended the creation of three criminal offences along the following lines:
- entering private premises as a trespasser with intent to observe, overhear or obtain personal information therein;
- placing or using in private premises a sense-enhancing, transmitting or recording device without the consent of the lawful occupier; and
- placing or using a sense-enhancing, transmitting or recording device outside private premises with the intention of monitoring the activities of the occupant without the consent of the lawful occupier.
4. As regards interception of communications, the Sub-committee agreed that the integrity of the public communications systems should be protected. They recommended that it should be an offence intentionally to intercept or interfere with a communication transmitted by a mail or telecommunications system.
5. As the Sub-committee considered that private communications should also be protected, they recommended that it should be an offence intentionally to intercept or interfere with a communication by means of a technical device, whether or not the communication itself was mediated by means of such a device. However, this offence should be subject to a proviso that the interception concerned could not have been effected without the use of a device. This was to exclude communications which could in any event be casually overheard by a third party.
6. The Sub-committee acknowledged that there were circumstances where surveillance or interception of communications might be justified on legitimate grounds. They therefore recommended a warrant system which allowed application to be made to the High Court for the issue of a warrant authorising intrusion for the purpose of preventing or detecting serious crime, or for the purpose of security, defence or international relations in respect of Hong Kong. A warrant should be issued for an initial period of 60 days and renewals should be granted for such further periods of the same duration where it was shown to continue to be necessary.
7. They recommended that a Justice of Appeal should be appointed as the supervisory authority to review the issue of warrants. Any person who suffered loss as a result of an unauthorised intrusion should be able to claim compensation.
8. The supervisory authority was also expected to furnish annually a confidential report to the Governor and a public report to the Legislative Council, covering such matters as the number of warrants authorised and their average length and extensions.
8. The Paper was issued to elicit comments on the preliminary recommendations made by the Sub-committee. Mr Justice MORTIMER stressed the importance of the consultation process in ensuring that any final recommendations by the Commission were workable and broadly acceptable to the community.
10. The meeting was then opened to the floor. Members raised many questions on the Paper, in particular on those aspects affecting the press and the public right to know in the regulatory framework and supervisory authority (Chapters 6 and 8 of the Paper).
The regulatory framework
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11. Members were concerned that to criminalise unauthorised intrusion into private premises with intent to observe, overhear or obtain personal information therein might particularly obstruct the effective functioning of the press, thereby jeopardising the public right to know. They asked whether there were similar provisions in other jurisdictions. Representatives of the LRC said that it was important to strike a balance between the rights of the press and the privacy rights of individuals. Some other jurisdictions had similar provisions. However, they warned that quoting out of context from similar provisions in other jurisdictions might be misleading. As requested, the Subcommittee would provide some materials on the law of privacy adopted by other jurisdictions for members reference.
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LRC |
(Post-meeting note: Some materials on the law of privacy adopted by other jurisdictions were provided by the LRC and circulated to members vide LegCo Papers No. CB(2) 1242 and 1285/95-96.)
12. Members were of the opinion that the recommendations in para. 6.20 and 6.21 of the Paper, would seriously hinder the activities of the press. They asked if exceptions would be granted to the press, particularly the investigative journalists, on the grounds of public interest. Representatives of the LRC explained that the recommendation to apply to the court ex post facto for a warrant (para. 6.20) was to cater for urgent situations (as where life was at risk). Emergency interceptions, such as in hostage or other life-threatening situations, should be subsequently ratified by judicial authorisation. With regard to the recommendation that authorisation by warrant should be available to section intrusions by both public authorities and private companies (para. 6.21), both public and private sector applicants would have to satisfy the same tests. It was a level playing field for all parties. But in practical terms, the Sub-committee envisaged that it would be very unusual for a private applicant to be able to satisfy the tests. Having said that, however, there was no intention to restrict anyone, including the press (particularly the investigative journalists), from obtaining a warrant which would have to be justified on the merits of each case. But they did not see a case at the moment for an exception for the press. All would have to apply ex-parte to ensure privacy.
13. Members were concerned that, without clearly defined criteria for the exceptions for issuing a warrant authorising intrusion for the purposes of security and safeguarding the stability of the local financial system, the exceptions might be abused. Given the free economic environment in Hong Kong, e.g. no control in foreign exchange, there was perhaps no need for an exception for the latter purpose. Representatives of the LRC commented that any law, if not carefully drafted, might be open to abuse. The reason why the warrant was proposed to be issued by the High Court was to ensure no possible abuse. These exceptions were put in because they were important aspects of the law for the well-being of Hong Kong. The importance of protecting the Hong Kong currency peg to the US dollar was just quoted as an example. It was not meant to have different tests for a warrant issued for the prevention or detection of serious crime or one for the purposes of security, defence, or, international relations. The tests were to provide some guidelines for the judge to issue a warrant. In sum, whoever applied for a warrant must prove that he had a prima facie case. The Sub-committee welcomed any reaction from the public so that they could examine it again.
14. On Sub-committees recommendation that "serious crime" should mean either an offence punishable by at least 7 years imprisonment, or an offence punishable by at least 3 years imprisonment where there was an element of bribery or corruption, representatives of the LRC clarified that the first category basically focused on High Court cases while, in the second category, small corruption cases might lead to large corruption cases in the investigating process.
Supervisory authority
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15. In response to members request, representatives of the LRC agreed that the annual report by the supervisory authority should cover the number of persons intercepted and the number of communications intercepted.
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LRC |
16. Representatives of the LRC remarked that their recommendation that a Justice of Appeal should be appointed as the supervisory authority followed the UK system which was working well. Since all applications for warrants involved very sensitive information, it was considered that a Justice of Appeal would be more appropriate than a committee. All in all, the Sub-committee wished to see a supervisory authority in which the public had confidence.
Notification following termination of surveillance
17. Members pointed out that if, as a general rule, surveillance materials should be destroyed once the investigatory phase had been completed, and the target would not be informed of the fact that they had been under surveillance, the system of review cases at the request of an aggrieved individual would appear to be superfluous or inconsistent. Representatives of the LRC replied that this was a difficult field which the Sub-committee had considered with great care. Although some jurisdictions imposed a notification requirement, there were huge practical problems, including prolonged retention of surveillance materials and resource implications. As a remedy to ensure the protection of privacy interests, particularly that of the innocent parties, the Sub-committee recommended the appointment of a Justice of Appeal as the supervisory authority to review the issue of warrants. The recommendation was a trade-off between limiting the scope of the operation and destroying the surveillance materials on completion of the investigation, or having disclosures at the cost of keeping detailed records relating to many people for a long period of time.
The regulation of physical surveillance
18. Representatives of the LRC explained that the definition of a sense-enhancing device would have to be left to the good sense of the law draftsman and to be eventually scrutinised by the Legislative Council.
Consultation with the Administration
19. Representatives of the LRC said that the LRC was charged by the Attorney General and Chief Justice to examine existing Hong Kong laws affecting privacy. In reaching their conclusions, the Sub-committee had not requested the Administration for input. The Sub-committee expected comments to the Paper from the law enforcement agencies like the Police, ICAC.
Conclusion
20. The Chairman thanked representatives of the LRC for their elaboration on points raised by members. She reminded members and the public to send in their views in writing to the Sub-committee by 15 June 1996. Representatives of the LRC reiterated that the Paper contained their preliminary recommendations only, and any comments on them were welcomed.
21. The meeting ended at 6:30 p.m.
LegCo Secretariat
5 June 1996
Last Updated on 20 Aug, 1998
