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Following is a question by the Hon Emily Lau and an oral reply by the Secretary for Security, Mr Ambrose S K Lee, in the Legislative Council today (March 1):
Question:
On the 9th of last month, the Court of First Instance of the High Court ruled that the Law Enforcement (Covert Surveillance Procedures) Order, made by the Chief Executive on July 30 last year, was inconsistent with the provisions of Article 30 of the Basic Law, and that section 33 of the Telecommunications Ordinance was also inconsistent with the relevant provisions of the Basic Law and the International Covenant on Civil and Political Rights. However, the court suspended the above judgement for six months to avoid a legal vacuum arising before new legislation was put in place. The authorities indicated that they would expedite the enactment of the new legislation on interception of communications and covert surveillance. In this connection, will the Executive Authorities inform this Council:
(a) of the respective numbers of interception of communications and covert surveillance operations carried out by each law enforcement agency last year;
(b) whether they plan to consult the public in the form of a white bill; if so, of the details; if not, the reasons for that; and
(c) whether they have assessed if the legality of the interception of communications and covert surveillance operations by law enforcement agencies will again be subject to legal challenges prior to the enactment of the new legislation; if an assessment has been made, of the results?
Reply:
Madam President,
The judgment handed down on February 9, 2006 has three main parts. In gist, the court -
* dismissed the application for a declaration that the Chief Executive (CE) had acted unlawfully in breach of his duty by failing to appoint a day for the commencement of the Interception of Communications Ordinance (IOCO);
* found that the Law Enforcement (Covert Surveillance Procedures) Order (the Executive Order) made by CE in July 2005 (and gazetted on August 5, 2005) was lawfully made, but did not constitute a set of "legal procedures" for the purpose of Article 30 of the Basic Law; and
* declared that insofar as section 33 of the Telecommunications Ordinance (TO) authorises or allows access to or disclosure of the contents of any message, it is unconstitutional.
The court recognised that any legal vacuum brought about by the declarations made would constitute a real threat to the rule of law in Hong Kong if law enforcement agencies are unable to conduct interception of communications and covert surveillance. It therefore ordered that they be suspended for six months so as to allow time to put in place corrective legislation. The court declared that notwithstanding its judgment, section 33 of the TO and the Executive Order are valid and of legal effect for a period of six months from the date of the order.
At the same time as announcing the making of the Executive Order in August 2005, the Administration made clear its intention to put in place legislation to regulate covert surveillance (and later for interception of communications) as a matter of priority. Since then, recognising the need for the legislation to be enacted as early as possible, we have been consulting various interested parties on their views concerning the key parameters of the proposals, and in parallel preparing the draft legislation at full steam.
Based on the recommendations of the 1996 Law Reform Commission (LRC) report on interception of communications, the 1997 White Bill on interception of communications, the Interception of Communications Ordinance (IOCO), as well as views gathered earlier on the key parameters of the proposed regime, we published our legislative proposals on February 1, 2006. We have since had three meetings with the Panel on Security of the Legislative Council on our proposals, and provided explanations and clarifications regarding the issues raised by Members during the discussions. We have also continued to meet with interested parties to listen to their views on the proposals.
A major concern among many of our interlocutors is the need for the draft legislation to be introduced into this Council as soon as possible. I am pleased to report that the Executive Council has now approved the introduction of the Interception of Communications and Surveillance Bill into this Council. The brief for this Council on the Bill will be provided to Members today. I sincerely hope that with the cooperation of Members, the Bill may be enacted as soon as possible, such that the safety and law and order of Hong Kong may continue to be protected effectively.
The replies to the three parts of the question are as follows -
(a) The law enforcement agencies have undertaken a quick review of the cases of interception of communications and covert surveillance in the last three months of 2005. The number of cases is as follows -
* Interception of communications: 178
* Covert surveillance: 170
We have also undertaken to count the cases arising since February 20, 2006 for three months. The information will be provided to the Panel on Security in due course.
(b) Our legislative proposals on interception of communications are not entirely new, but are based on the recommendations of the LRC in 1996, the 1997 White Bill on interception as well as the IOCO. We will continue to listen to views on the Bill in the coming months during the scrutiny of the Bill by LegCo.
(c) The court declared that section 33 of the TO and the Executive Order remain valid and of legal effect for a period of six months from the date of the order and we are advised that it will continue to be lawful for our law enforcement agencies to carry out interception of communications and covert surveillance under the respective legislation and the Executive Order during that period. Members will be aware that the declaration of temporary validity is the subject of an appeal, and we will not speculate on the outcome of the appeal; but it does emphasise the need for the early enactment of the Bill.
Ends/Wednesday, March 1, 2006
Issued at HKT 12:56
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