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The Government has drawn up legislative proposals aiming at providing a statutory basis for the conduct of both interception of communications and covert surveillance by law enforcement agencies (LEAs) and stipulating a number of safeguards for privacy and against abuse.
The proposals were outlined by the Secretary for Security, Mr Ambrose SK Lee, at a meeting of the Legislative Council Panel on Security this afternoon (February 7).
"The proposals strike a proper balance between protecting an individual's right to privacy of communication and the need to prevent and detect crime and protect public security," Mr Lee said.
In formulating the proposals, the Government has taken into account the Law Reform Commission's consultation paper and report in 1996, a 1997 White Bill and comments thereon, the Interception of Communications Ordinance, comparable legislation of other common law jurisdictions and views expressed in exchanges with various interested parties in the past months.
"We will introduce a bill to the Legislative Council after soliciting the views of the Legislative Council and other interested parties on the key parameters of the proposed legislative regime," Mr Lee said.
Given the general consensus that new legislation should be in place as soon as possible, the proposals are confined to government parties only. Non-government parties will be dealt with later after the Government has carefully studied the anticipated further recommendations of the Law Reform Commission on covert surveillance.
Noting that the package of proposals was an improvement over the present arrangements, Mr Lee said the criteria for authorisation would be clearly spelt out and a set of stringent safeguards for privacy, including judicial authorization for more intrusive operations, an independent oversight authority, and complaints handling and compensation mechanisms, would be put in place.
Regarding the criteria for authorisation, it is proposed that authorisation should only be given for the purposes of preventing or detecting serious crime or the protection of public security. Serious crime refers to offences punishable with a maximum imprisonment of not less than three years or a fine of not less than $1m for covert surveillance, or offences punishable with a maximum imprisonment of not less than seven years for interception.
In addition, the tests of proportionality and hence necessity must be met, taking into account the gravity and immediacy of a case and whether other less intrusive means can reasonably be adopted.
Mr Lee said safeguards would be introduced at different stages of these operations to ensure the proper implementation of the statutory regime and protecting the privacy of individuals against unwarranted intrusion.
A tiered system incorporating judicial authorisation is proposed to deal with interception of communications and covert surveillance with varying degrees of intrusiveness, broadly as follows:
* Applications for all interception of communications and more intrusive covert surveillance would have to be submitted to one member of a panel of three to six judges from the Court of First Instance of the High Court, and such applications may only be made after clearance by a directorate officer of the LEA concerned. Members of the panel would be appointed by the Chief Executive on the recommendation by the Chief Justice. Applications should only be made by officers of specified departments - the Police, Independent Commission Against Corruption, Customs and Excise Department and Immigration Department.
* Less intrusive covert surveillance would be authorised by designated senior officers of LEAs not below a rank equivalent to that of senior superintendent of police.
* The degree of intrusiveness would mainly hinge on whether surveillance devices are used and whether the surveillance is carried out by a party participating in the relevant communications.
An independent oversight authority would be established to review LEAs' compliance with the law and a code of practice to be issued under the proposed legislation, handle complaints against unlawful interception or covert surveillance, award compensation and submit annual reports to the Chief Executive. The reports setting out information such as the number of authorisations and major categories of offences involved would be tabled in the Legislative Council.
The authority, entitled the Commissioner on Interception of Communications and Surveillance, is proposed to be a sitting or retired judge not below the level of the Court of First Instance of the High Court, to be appointed by the Chief Executive on the recommendation by the Chief Justice.
In addition, LEAs would be required to conduct regular internal reviews of their officers' compliance with authorisations given under the law and the exercise of powers by designated authorizing officers.
There would also be detailed statutory requirements to ensure that products of interception and surveillance are properly handled and disposed of.
Ends/Tuesday, February 7, 2006
Issued at HKT 18:08
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