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The report concludes that section 33 of the Telecommunication Ordinance and section 13 of the Post Office Ordinance do not provide sufficient protection against unlawful or arbitrary interference with the individual's right to privacy. In order to comply with the requirements of the International Covenant on Civil and Political Rights and the Basic Law, legislation must be in place to regulate the interception of communications.
The report recommends that it should be an offence intentionally to intercept or interfere with a telecommunication, a sealed postal packet or a transmission by radio on frequencies which are not licensed for broadcast while the message or packet is in the course of transmission.
Only the Administration and its law enforcement agencies may apply for a warrant authorising the interception of communications. The application should be made to a High Court judge. A warrant may be issued only if the interception is to be carried out for the purpose of preventing or detecting serious crime or safeguarding public security in respect of Hong Kong.
The report recommends that material obtained through interception of telecommunications carried out pursuant to a warrant shall be inadmissible as evidence and shall be destroyed as soon as the authorised purpose has been fulfilled. However, material obtained through interception of postal mail shall be admissible and may be retained for the purpose of any criminal proceedings.
The report further recommends that a judge of the Court of Appeal be appointed to be the supervisory authority to keep the warrant system under review. He may examine on his own initiative whether a warrant has been properly issued and whether its terms have been properly complied with. An aggrieved person who believes that his communications have been unlawfully intercepted may request the supervisory authority to investigate whether there has been a contravention of the statutory requirements relating to the issue of warrants.
To increase public accountability for interception activities carried out by the law enforcement agencies, the supervisory authority should furnish annually a public report to the Legislative Council and a confidential report to the Governor.
The Commission's Privacy sub-committee will now move on to consider the law relating to surveillance in a separate report.
Anyone who wishes to have a copy of the report on Interception of Communications should contact the Secretary to the Commission, 20th Floor, Harcourt House, 39 Gloucester Road, Wanchai, Hong Kong.
End
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