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The Regulation of Covert Surveillance

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The Regulation of Covert Surveillance THE LAW REFORM COMMISSION OF HONG KONG REPORT PRIVACY: THE REGULATION OF COVERT SURVEILLANCE This report can be found on the Internet at: <http://www.hkreform.gov.hk> March 2006 The Law Reform Commission of Hong Kong was established by the Executive Council in January 1980. The Commission considers for reform such aspects of the law as may be referred to it by the Secretary for Justice or the Chief Justice. The members of the Commission at present are: Chairman: Mr Wong Yan-lung, SC, Secretary for Justice Members: The Hon Mr Justice Andrew Li, Chief Justice Mr Tony Yen, SBS, JP, Law Draftsman Dr John Bacon-Shone The Hon Mr Justice Bokhary, PJ Professor Albert Chen, JP Mr Anthony Chow, SBS, JP Professor Y K Fan, BBS, JP Professor Michael McConville Mr Paul Shieh, SC Ms Anna Wu, SBS, JP Mr Benjamin Yu, SC, JP The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at: 20/F Harcourt House 39 Gloucester Road Wanchai Hong Kong Telephone: 2528 0472 Fax: 2865 2902 E-mail: [email protected] Website: http://www.hkreform.gov.hk THE LAW REFORM COMMISSION OF HONG KONG REPORT PRIVACY: THE REGULATION OF COVERT SURVEILLANCE ______________________________________________ CONTENTS Chapter Page Preface 1 Background 1 The requirement for a legislative framework 3 The general principles for regulation of covert surveillance 4 The structure of this report 5 Terminology 6 1. Proposed criminal offences relating to covert surveillance 7 General approach to criminal sanctions 7 The scope of the regulation of surveillance 7 The first offence: trespass into private premises with intent to observe, 8 overhear or obtain personal information The second offence: physical intrusion into private premises by means 12 of a technical device The third offence: placing or using a technical device outside private 15 premises with the intention of monitoring activities on the premises Merging of the second and third offences 16 Meaning of “reasonable expectation of privacy” 18 Application of the proposed offences 20 Unauthorised disclosure of surveillance materials 21 Defences 21 i Chapter Page 2. The regulatory system 26 Circumstances in which a warrant is required to conduct covert 26 surveillance Covert surveillance by a party to the targeted activity 30 Covert surveillance by an informer or undercover agent 37 Use of tracking devices for covert surveillance 39 Circumstances in which internal authorisation is required to conduct 41 covert surveillance Application by the private sector 43 Who may apply for a warrant to conduct covert surveillance 44 Who may apply for internal authorisation 44 3. Grounds for the issue of warrants and internal authorisations 45 for covert surveillance Grounds for the issue of warrants 45 Matters on which the court must be satisfied 48 Grounds for the issue of internal authorisations 50 Disclosure of surveillance materials 51 4. The procedure for authorisation 52 The issuing authority 52 Information to be provided in an application for a warrant or internal 52 authorisation for covert surveillance Duration and renewal of authorisation 54 Detailed procedures 55 Emergency application for a warrant or internal authorisation 55 Record of warrants and internal authorisations 58 5. Admissibility as evidence of materials obtained from covert 60 surveillance The distinction between "interception of communications" and "covert 61 surveillance" Background information: Hong Kong 66 Background information: United Kingdom 72 The options for admissibility 92 Conclusions in respect of the admissibility of surveillance materials 96 ii Chapter Page 6. Disposal of materials obtained from covert surveillance 102 Background information: United Kingdom 102 Background information: Hong Kong 109 Relevant provisions in other jurisdictions 117 The options for retention and destruction of materials obtained through 119 interception and covert surveillance Recommendations on retention, disclosure and destruction of 122 materials obtained from covert surveillance Conclusions in respect of materials obtained from interception of 125 communications 7. Notification following termination of surveillance 127 Recommendations in the consultation paper 127 Review of the previous recommendations 127 The revised recommendations 130 8. The supervisory authority 132 The composition of the supervisory authority 133 The role of the supervisory authority 134 Review by the supervisory authority 137 Notification of the result of the review 140 Orders by the supervisory authority on completion of review 141 Compensation 142 9. Reports 145 The need for reports 145 The report to the Legislative Council 146 The confidential report to the Chief Executive 148 Reports by government departments and law enforcement agencies 149 The revised recommendations 149 iii Preface __________ Background 1. In October 1989, the Law Reform Commission was asked: ―To examine existing Hong Kong laws affecting privacy and to report on whether legislative or other measures are required to provide protection against, and to provide remedies in respect of, undue interference with the privacy of the individual with particular reference to the following matters: (a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations; (b) the disclosure or communication of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong; (c) intrusion (by electronic or other means) into private premises; and (d) the interception of communications, whether oral or recorded; but excluding inquiries on matters falling within the Terms of Reference of the Law Reform Commission on either Arrest or Breach of Confidence.‖ 2. The Commission appointed a sub-committee to examine the current state of legislation and to make recommendations. The members of the Privacy Sub-committee are Dr John Bacon-Shone Associate Dean, Faculty of Social (Chairman) Sciences; Director, Social Sciences Research Centre, The University of Hong Kong 1 Mr Don Brech Principal Consultant, Records Management International Limited (Former Director, Government Records Service) Professor Johannes M M Chan Honorary Senior Counsel, (from November 2001) Dean, Faculty of Law, The University of Hong Kong Mrs Patricia Chu, BBS, JP Former Deputy Director of Social (till April 2001) Welfare (Services), Social Welfare Department Mr A F M Conway Chairman, Great River Corporation Limited Mr Edwin Lau Chairman, Hooray Holdings Limited (Former Assistant General Manager & Head of Strategic Implementation Asia Pacific, HSBC) Mr Robin McLeish Barrister-at-law (from February 2000) Mr Barry Mortimer, GBS Non-Permanent Judge, (Chairman of sub-committee Court of Final Appeal from 1990 till August 1999) Mr James O‟Neil Deputy Solicitor General (Constitutional), Department of Justice Mrs Kathy Ng Ma Kam-han Assistant Director (Elderly) (from April 2001 to April 2003) Social Welfare Department Mr Peter So Lai-yin Former General Manager (till November 2001) Hong Kong Note Printing Limited Mr Richard Tang Hau Sing Director of Crime and Security (from April 2005) Hong Kong Police Force Professor Raymond Wacks Emeritus Professor of Law and Legal (Chairman of sub-committee Theory, The University of Hong Kong from August 1999 to December 2001) Mr Wong Kwok-wah Editor, Asia Times-On-Line (Chinese version) 2 Miss Amy Chan, Senior Government Counsel, was the secretary to the sub- committee during the preparation of this report. 3. Since being given its original terms of reference, the Law Reform Commission‟s Privacy sub-committee has completed studies of a number of aspects of privacy, resulting in final Commission reports on Reform of the Law Relating to the Protection of Personal Data (published in August 1994), Privacy: Regulating the Interception of Communications (published in December 1996), Stalking (October 2000), Privacy and Media Intrusion and Civil Liability for Invasion of Privacy (both published in December 2004). The one remaining aspect of the privacy reference is surveillance. The sub- committee issued a combined consultation paper on surveillance and interception of communications in 1996, and while final recommendations were subsequently made in respect of interception of communications, the question of surveillance was deferred for later consideration. This report now sets out the Commission‟s final recommendations in respect of covert surveillance. The requirement for a legislative framework The guarantees of the right to privacy 4. Article 29 of the Basic Law of the Hong Kong Special Administrative Region prohibits arbitrary or unlawful search or intrusion into a resident‟s home or other premises. Article 30 provides that the privacy of communications may not be infringed except to meet the needs of public security or of investigation into criminal offences. Article 39 of the Basic Law guarantees that the provisions of the International Covenant on Civil and 1 Political Rights (“the ICCPR”) as applied to Hong Kong shall remain in force. 5. Article 17 of the ICCPR as incorporated in Article 14 of the Hong Kong Bill of Rights (Cap. 383, Part II) (“HKBOR”) provides that no one shall be subjected to “arbitrary or unlawful interference with his privacy, family, home or correspondence”, and that everyone has the right to the protection of the law against such interference. 6. In order to provide
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