LegCo Paper No. CB(2)1857/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/PL/IP, CB2/PL/SE

LegCo Panel on Information Policy
LegCo Panel on Security

Minutes of Joint Meeting
held on Friday, 7 March 1997 at 10:45 am
in Conference Room A of the Legislative Council Building

Members Present :

LegCo Panel on Information Policy
* 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

LegCo Panel on Security
Hon James TO Kun-sun (Chairman)
Hon CHEUNG Man-kwong
Hon Fred LI Wah-ming
Hon Howard YOUNG
Hon IP Kwok-him

Members Absent :

LegCo Panel on Information Policy
Hon Mrs Elizabeth WONG, CBE, ISO, JP

LegCo Panel on Security
Hon Mrs Selina CHOW, OBE, JP (Deputy Chairman)
Dr Hon Philip WONG Yu-hong
Hon Zachary WONG Wai-yin
Hon CHEUNG Hon-chung
Hon Albert HO Chun-yan
Dr Hon LAW Cheung-kwok
Hon LO Suk-ching
Hon Margaret NG
Hon TSANG Kin-shing

(* also member of LegCo Panel on Security)

Public Officers Attending :

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

Clerk in Attendance :

Mrs Anna LO
Chief Assistant Secretary (2) 2

Staff in Attendance :

Mr Stephen LAM
Assistant Legal Adviser 4
Mr Colin CHUI
Senior Assistant Secretary (2) 2



I. Election of Chairman

Miss Emily LAU was elected Chairman of the joint meeting.

II. Follow-up on Administration’s views and plans on the Law Reform Commission (LRC) Report on "Privacy : Regulating the Interception of Communications"

2. The Chairman said that since the last meeting, the Administration had issued to all Members a consultation paper on the Interpretation of Communication Bill together with a flowchart on the judicial warrant system proposed in the Bill. At the Chairman’s request, representatives of the Administration briefed members on the consultation paper. They highlighted that the Administration accepted the key recommendation of LRC that a judicial warrant system should be introduced to regulate interception of communications. Unless exempted under clauses 3 and 4 of the White Bill, interception of communications must be authorised by judicial warrants which would be issued only on the grounds of prevention and detection of serious crime or safeguarding the security of Hong Kong.

Public Counsultation on the White Bill

3. Noting the public consultation exercise on the White Bill ending on 4 April 1997, the Chairman was concerned of the adequacy of time for the Administration to introduce the Bill into the Legislative Council (LegCo) before the agreed deadline (between the Administration and LegCo) of 9 April 1997 for the Bills to be scrutinized and passed before 1 July 1997. The Administration pointed out that as prior approval of the Governor in Council was required for publication of the White Bill, it was unable to consult the Privacy Commissioner for Personal Data on the White Bill earlier. The public consultation period had been shortened to one month. The Administration would conduct a careful assessment of the public opinion received during the consultation period. Depending on the response received in the public consultation exercise, in particular, support from LegCo Members, the Administration would then consider whether the Bill should be introduced into LegCo. If this worked out, it would mean Hong Kong take a much shorter time to enact a piece of legislation on this issue than many other countries.

4. Members noted that, according to para 4 of the Administration’s consultation paper on the White Bill, LRC considered that the existing provisions under the Telecommunications Ordinance and the Post Office Ordinance did not provide sufficient protection against unlawful or arbitrary interference with the individual’s right to privacy and freedom of communication as provided in Article 17 of the International Covenant on Civil and Political Rights (ICCPR). The Basic Law also provided that the freedom and privacy of communication of Hong Kong residents would be protected by law. As such, a member asked why public views were sought in para 22(a) of the consultation paper on whether the Bill should be introduced to regulate the interception of communications in Hong Kong.

5. The Administration reiterated that while it accepted the LRC’s key recommendation of a judicial warrant system to regulate the interception of communications, public views on the introduction of the Bill were necessary and would be taken into account in deciding the way forward. The Administration further pointed out that, given the complexities of the issue and its wide-ranging implications, interested parties of the community such as the Privacy Commissioner for Personal Data, media and general public had to be consulted. The publication of a White Bill was the best means to gauge public opinion over the issue.

Recommendations of LRC rejected by the Administration

6. In reply to the Chairman, representatives of the Administration provided the following details of the eight recommendations of LRC which the Administration had rejected and the reasons for rejecting them -

Recommendation

Reason for rejection

(a) An ex post facto application to ratify an interception which was not covered by an existing warrant because of an honest error committed by the applicant.

The judicial warrant system should not have an inherent mechanism to allow such an honest error.

(b) The Supervisory Authority should have power to delay notification to an aggrieved person if the Supervisory Authority was satisfied that this would seriously hinder existing or future investigation of serious crime or prejudice the security of Hong Kong.

An aggrieved person should be notified of the result of his complaint without delay so as to protect him.

(c) The judge issuing a warrant might impose such other restrictions or conditions as he might consider appropriate.

As the designated judge might not be familiar with the enforcement of a warrant, such restrictions or conditions might create operational difficulties to the law enforcement agency concerned.

(d) All licensed telecommunications carriers should be required to furnish quarterly reports to the Telecommunications Authority for onward transmission to the Supervisory Authority.

As the Supervisory Authority could have access to any official documents relating to warrants, such quarterly reports were not necessary.

(e) The Post Office, the Customs and Excise Service and the courier companies should furnish quarterly reports to the Supervisory Authority.

Same as (d) above.

(f) The judge should have regard to a number of factors in reaching a conclusion on the appropriateness of issuing a warrant.

As the two grounds for applying a judicial warrant (i.e., prevention, investigation or detection of serious crime; or security of Hong Kong) had been clearly spelt out in the White Bill, it was not necessary for the designated judge to have regard to other factors.

(g) A warrant should be issued for an initial period not exceeding 90 days and that renewals may 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.

As some operations requiring interception of communications might last for six months or more, a designated judge should be allowed to issue a warrant for a maximum period of six months rather than 90 days and to grant successive renewals of the warrant for the same duration. Australian laws also allowed a warrant for a maximum period of six months and renewals for the same duration.

(h) An authorised public officer making an ex post facto application must act in good faith.

Clause 7(1) of the White Bill only allowed ex post facto application to ratify an interception of communication where an authorised public officer was unable to apply for a warrant because of the urgency of the situation; and believed on reasonable grounds that such an interception was immediately necessary to detect or investigate serious crime or prevent its occurrence. As such conditions already implied that the officer acted in good faith, the recommendation that an officer had to prove that he acted in good faith when applying for an ex post facto application was not necessary.

At a member’s request, the Administration undertook to provide in writing details of the eight recommendations and the reasons for rejecting them.

Admin

(Post-meeting note: A paper setting out the eight recommendations and the Administration’s views on them was circulated to members vide Annex A to LegCo Paper No.CB(2) 1777/96-97(01).)

Communications transmitted via the computer network

7. A member asked why the Bill did not cover communications transmitted via the computer network. Representatives of the Administration said that since unauthorised access to computer by telecommunication was prohibited under the Computer Crimes Ordinance, the Administration considered that this area of communication had been sufficiently protected. The member opined that, like communication by post, electronic mail should have similar protection of privacy.

Report by the Supervisory Authority

8. On the suggestion of including the number of persons arrested and/or convicted as a result of interceptions in the report by the Supervisory Authority, the Administration pointed out that intercepted materials provided clues for investigation but might not result in the conviction of criminals. There were technical difficulties in providing such statistics. However, the Administration undertook to consider including in the report broad categories of serious crimes for which judicial warrants had been issued.

Admin

Resources required for work of the Supervisory Authority

9. In reply to a member, the Administration said that it would discuss with the Judiciary on the resources required for the Supervisory Authority to discharge his duties.

Admin

Recording of Communications by a participating party

10. In reply to a member, representatives of the Administration said that recording by a person of his/her communications with another person (e.g. telephone conversations) did not involve interception by a third party and was therefore not covered in the White Bill.

Existing administrative measures on interception of communications

11. On the question of details of the existing administrative measures to regulate interception of communication such as the number of interceptions conducted, representatives of 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 maintenance of law and order. Any interceptions had to be authorised by the Governor. Law enforcement agencies considered that disclosure of the number of interceptions would adversely affect their investigation of crimes related to such interceptions. Nevertheless, the Administration would consider the Chairman’s request for statistics on interceptions in consultation with the law enforcement agencies. A member said that if statistics on such interceptions were not provided, he would consider amending the Appropriation Bill to the effect that resources for conducting such interceptions would not be provided.

Admin

III. Administration’s response to the Interception of Communications Bill - A Member’s Bill proposed by Hon James TO

(LegCo Paper No. CB(2)1214/96-97 (01) - provided by Hon James TO)

12. Representatives of the Administration said that, in comparison with Mr TO’s Bill, the White Bill was more comprehensive and law enforcement agencies had been consulted on its enforcement.

13. The Administration’s comments on Mr James TO’s Bill were as follows -

Proposal in Mr To’s Bill

Administration’s comments

Duration of the Court Order

(a) A court order authorising an interception of communication could only be valid for a maximum period of 30 days and only one renewal for a further 30 days was permitted.

With such duration of a court order, law enforcement agencies might not have sufficient time to complete operations involving interception of communications.

Weekly reports to the judge

(b) A weekly report shall be submitted to the authorising judge by the authorised officer giving details of such progress as had been made in the investigation through the interception.

As the judge was responsible for issuing court order rather than crime investigation, such weekly reports would bring about confusion of roles.

Definition of ‘serious crime’

(c) "Serious crime" for the purposes of Mr TO’s Bill referred to an offence as defined in the Schedule to his Bill.

Law enforcement agencies considered that the Administration’s definition, i.e., any offence punishable by a maximum period of imprisonment of not less than 7 years, included all serious crimes. Definition under Mr TO’s Bill might exclude some serious crimes.

Admissibility of intercepted material as evidence in court proceedings

(d) Intercepted material obtained through an authorised interception might be admitted subject to the court’s discretion to declare the evidence inadmissible where it would be adverse to the fairness of proceedings.

Such admissibility of intercepted material might lead to disclosure of communications with a third party; hence infringe privacy of third party. It was therefore inconsistent with the principle of protection of individual privacy.

Notification procedure

(e) Clause 7 defined the procedure to notify a of the person being intercepted on termination of the court order.

Such notification procedure might result in the disclosure of intercepted materials and retention of these materials for a longer period.

Oral communications

(f) Intercepted material included oral communications.

Such inclusion of oral communications fell outside the scope of interception of communications referred to in the LRC report.

At the Chairman’s request, the Administration undertook to provide members with a paper setting out in detail its comments on Mr TO’s Bill. Mr TO briefed members on his response to the Administration’s comments and undertook to set out his response in writing.

(Post meeting note: Mr TO’s letter to the Administration setting out his response to the Administrations’ comments was circulated to members vide LegCo Paper No.CB(2)1549/96-97. The Administration’s paper setting out its views on Mr TO’s Bill, which had taken into account points raised in his letter, was circulated to members vide Annex B to LegCo Paper No.CB(2)1777/96-97(01).)

14. In reply to the Chairman regarding the position of his Bill, Mr TO said that the President of LegCo was awaiting the Administration’s comments on whether Mr TO’s Bill had a charging effect before making a ruling on the issue.

15. Mr James TO moved a motion that the Information Policy and Security Panels jointly urged the Administration to urgently introduce the Interception of Communications Bill into LegCo after the consultation excercise with a view to enacting it in the current LegCo session. The motion was carried.

IV. Date of next meeting

16. The next meeting would be held on 11 April 1997 at 11:45 am in Conference Room A of the Legislative Council Building to discuss the follow-up on the Administration’s consultation paper on the Interception of Communication Bill.

17. The meeting ended at 12:00 noon.

LegCo Secretariat
4 April 1997

Last Updated on 20 August 1998