Privacy Law and Policy Reporter
Graham Greenleaf and Robin McLeish
This article was first published by UK based Privacy Laws and Business (http://www.privacylaws.com/) and is reproduced here with their permission.
In 2005 a constitutional right to privacy, coupled with Hong Kong’s common law Courts upholding the rule of law, has unexpectedly resulted in a major challenge to the surveillance practices of the Hong Kong SAR government’s law enforcement bodies.
Long-standing legislative provisions (in Hong Kong’s Telecommunications Ordinance Cap. 106) prohibit unauthorised interference with a telecommunication installation in order to intercept a message (s27). On the other hand, they also empower the Chief Executive to authorise the interception of messages transmitted by telecommunication if he considers that the public interest so requires (s33).
In 1996, the Hong Kong Law Reform Commission (LRC) concluded in its Report on Privacy: Regulating the Interception of Communications (para 3.45). that this legislation did not give “an adequate indication of the circumstances in which, and the conditions on which, interceptions may be authorised.” Hence, they do not provide sufficient protection against unlawful or arbitrary interference with the individual’s right to privacy and freedom of communication as required by Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which was enacted locally in Article 14 of the Bill of Rights Ordinance (BORO). The ICCPR was subsequently entrenched in Hong Kong law by its ‘mini-constitution’, the Basic Law (Article 39), which also requires ‘legal procedures’ to sanction any interferences with such rights (Article 30).
The LRC recommended that the existing powers of authorization for the interception of communications be replaced by a judicial warrant system (see Report, Chapter 6). It also recommended the establishment of a supervisory authority, with the appointee to be an existing or former Court of Appeal judge, to review the issuing of warrants authorising interceptions and to investigate complaints of contraventions of the relevant statutory requirements (Chapter 8).
In response, the government published draft legislation for consultation in early 1997 that embodied much of what had been recommended. When it became clear that the government did not intend to bring forward such legislation for enactment before the ‘handover’ of sovereignty to the People’s Republic of China (PRC), a private member’s bill (i.e. non-government bill) was introduced into the legislature that provided for the judicial warrant system as proposed. The bill was passed and signed into law by the then-Governor on the last day before the ‘handover’ as the Interception of Communications Ordinance (Cap. 532). However, its provisions have never been brought into force by the post-‘handover’ government, which claims that they would ‘severely hinder’ law enforcement .
The current crisis
Other covert surveillance activities, such as the use of recording devices etc. not involving the interception of messages transmitted by telecommunications, are not the subject of any legislative control or authorization, and that is where the government’s most immediate problem arises.
The lack of any statutory system of authorisation of such surveillance resulted in a court ruling in April 2005 that the use of covert surveillance devices by a law enforcement body (ICAC, the Independent Commission Against Corruption) was a breach of Article 30 of the Basic Law because its requirement for ‘legal procedures’ to sanction their use had not been met. The Judge observed that if the agency continued such practices without some legislative basis it might well be held to be acting in bad faith (which would result in evidence obtained by such means being excluded) unless and until his ruling on their legality was overturned.
A similar ruling was made in a subsequent case involving the covert recording by ICAC of a conversation between a defendant and his lawyer . In that case a permanent stay of criminal proceedings was ordered because the recording of a conversation between one of the defendants and his lawyer was found to be a ‘cynical and flagrant infringement of [the] right to legal professional privilege’, which rendered a fair trial impossible.
The government’s response to these rulings was to issue an ‘Executive Order’ in August 2005 that made provision for the ‘authorisation’ by senior officers designated by any head of department of the government of covert surveillance for law enforcement investigations or operations.
Under the Order, to carry out covert surveillance, a law enforcement officer must make an application to an authorising officer in accordance with the specified procedures. The authorising officers designated by a head of department and must be senior officers at or above the rank of senior superintendent of police or equivalent. He or she must be satisfied with a set of prescribed conditions before authorising covert surveillance. The government claims the Order provides various safeguards including mandatory internal guidelines and a mechanism for the regular review of authorisations. No judicial oversight is involved.
The government stated that the order was an interim measure pending legislation but contended, nevertheless, that it created ‘legal procedures’ for the authorisation of covert surveillance as required by Article 30 of the Basic Law. Critics of the move rejected this reasoning and characterised it as one that undermined the rule of law because it by-passed the legislative process.
The underlying problem faced by the government in introducing legislation, even when it is minded to do so, is that it may not be able to ensure that the legislation it introduces will be passed, or passed in a form it finds acceptable, by the legislature (the Legislative Council or LegCo). The executive is not formed from the legislature. Neither, being appointed, does it command the legitimacy that is conferred by being elected. As a result, the executive regularly encounters difficulty in persuading a majority of the legislature to support its legislative proposals.
The response of the government has been to avoid legislating in potentially controversial areas. The Interception of Communications Ordinance that was passed before the ‘handover’, but has not been brought into effect following it, is a case in point. If the Ordinance would unduly hinder law enforcement as claimed, the obvious solution would be to amend it prior to bringing it into force or replace it with an entirely new ordinance. However, the government has taken neither step in the eight years following its enactment.
Possible future developments
While the Basic Law provides for Hong Kong to have a high degree of autonomy, the reality is that the Central People’s Government is sovereign. Whatever the formal position on Hong Kong’s high degree of autonomy may be as provided for in the Basic Law, the CPG’s possible reaction to actions taken by the Hong Kong administration is bound to be a factor in its decision-making process. This may provide some explanation for the Hong Kong’s government’s reluctance to legislate on such matters as the interception of communications.
There is no realistic prospect of a private member’s bill containing legislative initiatives in the area of privacy being introduced into the legislature as occurred before the ‘handover’ with the Interception of Communications Ordinance. This is because the consent of the Chief Executive is now required for any bill relating to government policy (Article 74 of the Basic Law). This effectively gives the Chief Executive a veto over the introduction of such legislation.
Unless legislation to replace the Executive Order is enacted soon the issue is likely to be played out further in the Courts when a future case tests the question of whether the Executive Order does in fact provide the created ‘legal procedures’ required by the Basic Law. If the matter goes as far as the Court of Final Appeal and results in a finding adverse to the government, a constitutional crisis could result if the government referred the matter to the Standing Committee of the National People’s Congress of the PRC for ‘interpretation’ under Article 158 of the Basic Law.
In the meantime, maverick legislator, ‘Long-hair’ Leung Kwok Hung, has commenced judicial review proceedings challenging the executive order and the failure to appoint a day for the coming into force of the Interception of Communications Ordinance . Whether he even has standing before a court to pursue such a case remains to be seen.
Graham Greenleaf is Professor of Law, University of New South Wales and PL&B Asia-Pacific Editor
Robin McLeish is a Barrister in Hong Kong and former Deputy Privacy Commissioner, Hong Kong.
 The bill did not, however, provide for the establishment of any supervisory authority as this would have created a charge on public revenue, which would have required government agreement for the bill to go forward.
 Secretary of Security quoted in South China Morning Post, 13 August 2005.3 DCCC 689 of 2004 (unreported judgment of H.H. Judge Sweeney of 22 April 2005).
 DCCC 687 of 2004 (unreported judgment of Deputy Judge Livesey of 5 July 2005),
 Pursuant to Article48(4) of the Basic Law. The only other such order to date was issued to replace the civil service regulations of the pre-‘Handover’ government..
 The Enforcement (Covert Surveillance) Order (S.S. No. 5 to Gazette No. 31/2005).
 The Chief Executive is appointed by the Central People’s Government following election by a 400 member selection committee (Article???????????????????45 and Annex 1 of the Basic Law) and the members of his ‘cabinet’, the Executive Council, are appointed by him (Article?????55).
 The fact that this case was pending in the courts was one reason given in a ruling in another case, HKSAR v. Mo Yuk-Ping & Ors (unreported judgment of H.H. Judge Wright of 23 August 2005), for not handing down a decision on the constitutionality of the provisions empowering the Chief Executive to authorize the interception of telecommunications.