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Following is a question by the Hon Frederick Fung Kin-kee and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (July 3):
Question:
Article 30 of the Basic Law stipulates that "the freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences." At present, the interception of communications and specified kinds of covert surveillance operations by public officers are regulated by the Interception of Communications and Surveillance Ordinance (the Ordinance). In order to obtain authorisation, the investigation operations concerned must be carried out for the purpose of preventing or detecting serious crime or protecting public security. At the same time, the two vetting and approval criteria of proportionality and necessity must also be met. However, the Ordinance only governs the interception of communications and covert surveillance operations by law enforcement agencies, and is not applicable to non-government parties, individuals or countries. In this connection, will the Government inform this Council:
(a) whether the authorities have examined and assessed the collection of confidential information in the communication of residents and infringement upon the privacy of residents in Hong Kong by bodies or individuals outside local law enforcement agencies (including non-government parties or individuals, private organisations, government intelligence services of foreign countries and the Mainland, etc.); if they have, of the outcome; whether they have detected any interception of communications and covert surveillance operations carried out by such organisations in Hong Kong; if they have, of the details; whether the Government or individual law enforcement agencies have obtained through such organisations relevant information or intelligence which clearly involved infringement upon the privacy of communication of Hong Kong residents; if so, of the details;
(b) of the regulation under existing legislation of the operations carried out in Hong Kong by bodies or individuals outside local law enforcement agencies (including non-government parties or individuals, private organisations, government intelligence services of foreign countries and the Mainland, etc.) which infringe upon the freedom and privacy of communication of residents; whether it has assessed if such legislation has been enacted to counter such kind of operations; and
(c) given that private organisations and organisations outside Hong Kong are not governed by the Ordinance, and the authorities had stated clearly when the Ordinance was enacted that the relevant conduct of non-government parties or individuals would not be dealt with at that stage, whether the authorities will now consider introducing legislation to regulate such matters, with a view to further implementing the requirement under Article 30 of the Basic Law on the protection of the freedom and privacy of communication of Hong Kong residents by law; if they will not, of the reasons for that?
Reply:
President,
The Member's queries relate to the policy areas of various Government Bureaux, including the Security Bureau, the Commerce and Economic Development Bureau, and the Constitutional and Mainland Affairs Bureau. I give below a reply as consolidated from information provided by the Bureaux concerned.
Article 30 of the Basic Law specifies that the freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.
Between 1996 and 2006, the Law Reform Commission (LRC) published five reports relating to different aspects of privacy, including the following two reports on intercepting or interfering intentionally with communications in progress, and obtaining personal information through intrusion into private premises or by means of a surveillance device:
(1) The report on Regulating the Interception of Communications was published in December 1996. This report recommended that it should be an offence to intercept or interfere intentionally with communications (i.e. a telecommunication, a sealed postal packet or a transmission by radio on frequencies which were not licensed for broadcast), unless the interception was carried out pursuant to a warrant granted by the court; and
(2) The report on The Regulation of Covert Surveillance was published in March 2006. This report recommended the creation of two new criminal offences: (i) entering or remaining on private premises as a trespasser with intent to observe, overhear or obtain personal information; and (ii) placing, using, servicing or removing a sense-enhancing, transmitting or recording device (whether inside or outside private premises) with the intention of obtaining personal information relating to individuals inside the private premises in circumstances where those individuals would be considered to have a reasonable expectation of privacy.
In the light of the recommendations relating to public officers in the above two reports, the Government enacted the Interception of Communications and Surveillance Ordinance (ICSO) in 2006 to regulate the interception of communications and covert surveillance operations conducted by the law enforcement agencies (LEAs) with a stringent statutory regime.
The purpose and designated scope of the ICSO is to regulate LEAs' lawful interception of communications and covert surveillance operations for the prevention and detection of serious crimes and the protection of public security. The ICSO is not applicable to non-public officers, and cannot be used to apply to non-governmental bodies and individuals. LEAs are required by the ICSO to obtain an authorisation from a panel judge or a designated authorising officer prior to any interception of communications and covert surveillance operations. In accordance with Sections 4 and 5 of the ICSO, no LEA shall, directly or indirectly (whether through any person or otherwise), conduct any interception and covert surveillance, except for any interception or covert surveillance carried out pursuant to a prescribed authorisation.
There are several pieces of legislation which regulate the interception of communications in Hong Kong:
(i) Section 24 of the Telecommunications Ordinance (Cap 106) does not allow a telecommunications officer, or any person who, though not a telecommunications officer, has official duties in connection with a telecommunications service to wilfully intercept any message;
(ii) Section 27 of the Telecommunications Ordinance imposes prohibition on any person who damages, removes or interferes with a telecommunications installation with intent to intercept or discover the contents of a message;
(iii) Section 29 of the Post Office Ordinance (Cap 98) states that no person shall open any postal packet or take any of the contents out of any postal packet or have in his possession any postal packet or mail bag or any of the contents of any postal packet or mail bag or delay any postal packet or mail bag;
(iv) If such activities involve the collection of personal data, they are subject to the provisions of the Personal Data (Privacy) Ordinance.
The hacking of the computer system is dealt with mainly by section 161 of the Crimes Ordinance (Cap 200) (obtains access to a computer with intent to commit an offence or with a dishonest intent) and section 27A of the Telecommunications Ordinance (Cap 106) (by telecommunications, obtains unauthorised access to any computer).
As for the regulation on non-public officers, the Government has examined the LRC reports of Regulating the Interception of Communications and The Regulation of Covert Surveillance. We need to carefully consider whether the conduct of non-public officers in this respect should be regulated, given that when the reports were published, the Hong Kong media sector and journalists expressed their worry that the recommendations might compromise press freedom. Accordingly, the Government will consider very carefully views from all parties concerned and ensure different interests are properly safeguarded, and will not take action lightly.
As a matter of fact, the recommendations in these five LRC reports all touch on the sensitive and controversial issue of how to strike a balance between protection of individual privacy rights and freedom of the media. There have been mixed responses and divergent views from different sectors of the community. The Government has to reconcile the differences and balance the legitimate interests of all parties, with a view to forging a consensus within the community on the way forward.
Given the complexity and sensitivity of the issues involved, we are handling the five reports by stages and will determine the way forward after discussions with the parties concerned. We consider the report on "Stalking" to be comparatively less controversial than the other reports and so will deal with it first. A public consultation exercise was conducted between December 2011 and March 2012 to gauge public views on the recommendations but a consensus was not reached. The public, the media and other sectors had grave concerns about the likely impact of the recommendations on the freedom of the press and freedom of expression. The Administration attaches great importance to concerns on the protection of press freedom. We are studying the views collected and related issues, and have commissioned a study of overseas experience by a consultant in this regard in order to map out the way forward. Likewise, on the question of regulating non-public officers in interception activities, the SAR government will consider the need for further protection on the basis of the existing laws, while at the same time bearing in mind the need to take into account other policies considerations such as upholding press freedom.
Ends/Wednesday, July 3, 2013
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