Margaret Ng

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Interception of Communication and Surveillance Bill - 2nd Reading Debate - 2nd August 2006
LEGCO 2006-08-02

Madam President

In 1956, a distinguished English Judge, Patrick Devlin, gave a series of lectures to the Yale Law School on criminal prosecution in England. He told them this:

“We like to grant large powers so as to prevent any legal quibble about their extent, but we expect the holders of them to act fairly and reasonably and well within them. Similarly, if we have to curb an existing power, we are quite satisfied if we can get the holder to accept a policy of self-restraint, and we often think this preferable to any formal curtailment.”

These words remind us that good governance is based on the public’s confidence that power is used with discretion. If matters have to be pushed to extremes, public disapproval can be made effective by legal means.

But legislation itself must aim at being fair. Bad legislation forced upon the people will only foster hatred for those in power.

The Government does not seem to appreciate this. It is blinded by a sense of self-righteousness, that because the Government seeks only to act in the public interest, and law enforcement agents seek only to protect law and order, they are entitled to use these powers to the utmost, unrestraint by any thoughts about fairness or infringement of civil and political rights. Because the Government believes it knows best, it thinks nothing of keeping the public in the dark.

This is what has led to the crisis with the Bill before us. We are convened today to patch up a gaping hole in the rule of law as a result of the Government’s abuse of power and breach of the Basic Law.

Due process is put in jeopardy. However much the Government denies it, this Bill, which affects fundamental rights, has gone through no public consultation. A hundred and thirty hours of meeting between the Administration and the Bills Committee cannot replace the public’s right to have a say. This is why we urge this Council to accept a “sunset clause” being put into the Bill. In this way, a legal vacuum is avoided while binding the Government to a thorough review with full public consultation within two years. To accept this obligation with all the dignity of law is to express proper remorse and sincerity to recompense. This will help restore the public’s confidence for the future.

We are not here to obstruct the Law Enforcement Agents in their job to protect the security of Hong Kong or to fight crime. We are here to ensure that they do so while also protecting the rights and freedoms and privacy of communication of the people under the Basic Law. In the Government’s anxiety to ensure that the Law Enforcement Agents have all the power they need, it must never lose sight of this.

Issues of privacy is not only of intense sensitivity personally and politically, but vital to our business and professional life. This is an essential aspect which makes Hong Kong different from the mainland of China.

The Court of Final Appeal has given valuable guidance on the law that Article 30 of the Basic requires the HKSAR to enact: “covert surveillance is not to be prohibited but is to be controlled. Such control must sufficiently protect – and enjoy public confidence that it sufficiently protects – fundamental rights and freedoms, particularly freedom and privacy of communication. The “legal procedures” requirement … exists to ensure such protection.” – I have just quoted from the judgment of Mr. Justice Bokhary.

To achieve this purpose, the legislation meet several basic requirements.

First of all, the legislation must be simple and straightforward so that it can be understood by the men and women whose rights are affected by it.

Secondly, it must make clear to law enforcement agents that interception and covert surveillance is inherently objectionable and an infringement of the constitutional right of the individual. It should not be used as a normal, convenient tool, but only exceptionally, sparingly and with great caution.
To ensure that it is used sparingly interception must be confined to the protection of the security of the territory from serious threats such as acts of terrorism, and where it is necessary for the detection of really serious crimes. It should be used only when there is no real alternative, and only when conviction is reasonably likely to result from it.

The procedure of application for authorization should ensure that authorization is given only when these conditions are met. It is essential that someone on a very senior level takes responsibility for using the power of interception. Hong Kong should learn from the best practice in other parts of the world.

In England it is the responsibility of the Secretary of State. In the United States of America, it is the Attorney General, who makes application to a judge in court. They make themselves the guarantor that the power is used sparingly and with the greatest caution. It is no guarantee for the public if at the end of the day only the frontline officer who carries out the interception takes the blame. They are indeed the very people entitled to immunity so long as they act conscientiously and in good faith.

Finally, there must be effective monitoring by an independent external body, and adequate channel of complaint. Fairness must be seen and good faith backed up by willingness to recompense for wrongs committed, however inadvertently. Covert as wiretapping must inevitably be, open government requires the greatest utmost transparency possible. This means a genuine system of accountability to the public through their elected representatives, and an effective channel of complaint and redress.

In England, the expenditure, administration an policies relating to wiretapping for national security reasons are monitored by a statutory parliamentary committee. Complaints from the public are made to an Investigatory Power Tribunal of lawyers appointed by the Queen. They have power to cancel warrants and award compensation.

In the United States, the head of the Department of Justice is required by law to submit annual reports to Congress. Intercepting agencies are accountable to parliamentary committees. The reports contain detailed figures and overviews.

Hong Kong people are entitled to the same openness and accountability and fair treatment in the law which sanctions interference with their freedom and privacy of communication.

Regrettably, the Bill before us falls short of the basic requirements I have just outlined.

Instead of being clear and straightforward, the Bill is extremely difficult to understand. The language is opaque and artificial. Practically no term can be understood on its own or given its natural meaning. Nothing is what it seems. Words do not mean what they say, but what they are defined to refer to. The ordinary lawyer, not to say the ordinary man or woman anxious to know his or her rights, is soon hopelessly lost in a labrynth of definitions and cross references.

This hides a serious defect which comes to the fore after working everything out: this Bill does not protect privacy of communication. Your privacy comes within the protection of the law only if the law enforcement agent concerned thinks you have a legitimate expectation of privacy in each circumstance. This is an open question and has been the subject matter of many court cases. You will never know if the law enforcement agent gets it right. But if he gets it wrong, your privacy will be freely intruded upon without you, or anybody else knowing about it. None of the application procedures or safeguards set up in the law will be engaged.

Even more shocking, this Bill does not even claim to regulate covert surveillance, contrary to Article 30 and the policy stated in the LegCo Brief on the Bill. The Government, in objecting to my CSA to amend the definition of “covert surveillance”, blatantly said that it only aims to regulate “the use of surveillance devices”. Likewise, my CSA to amend the definition of “communication” is objected to because, according to the Government, only postal service and certain telecommunication services are regulated under the Bill.

In other words, by the admission of the Government, this Bill does not meet the requirement of Article 30 of the Basic Law where Government law enforcement agents are concerned. The bill, if passed, will only invite litigation, not put an end to it.

The central purpose of the Bill is supposed to create the legal procedures which a law enforcement agent has to follow to get permission to do wiretapping or covert surveillance. These procedures are supposed to be very strict, and for the more seriously intrusive kinds of surveillance a judge’s authorization is necessary. While attention is concentrated on how strict the procedures are, it is easy to miss the weakness that a great deal is excluded by the use of convoluted definitions. It is easy to name other examples: articles sent by courier can be intercepted, email messages can be read from the server without the need of any authorisation; undercover agents can tape conversations and inspect private records without involving any permission by any judge.

By giving wide definitions to “public security” and “serious crime”, the door is open for wiretapping and covert surveillance to be used extensively. Intelligence gathered from these operations may be put to any use and not confined to public security or detection of serious Crime. It is simply unregulated. There is nothing in the Bill to prohibit their use for political or economic purposes.

Grave concerns for the protection of legal professional privilege and fair trial, and implications on judicial independence and separation have been voiced by the legal profession. These go to the root of our legal system. If the public cannot be sure that their communication with their legal advisors is safe from interception even when they and their lawyers are not in a criminal conspiracy, fairness in the administration of justice is no longer possible.

There are many other problems with the Bill, too many and too fundamental to correct by CSAs.

Madam President, taken as a whole as well as in its several parts, this Bill does not meet the threshold requirement of inspiring public confidence. By rights, this Council should reject this Bill. This is only balance against the public’s grave anxiety of a “legal vaccum”.
To resolve the dilemma, I with the support of several of my colleagues have put forward a “sunset clause”. The name might be fanciful, but the device is actually a familiar one which sets the expiry date for certain provisions. The Copyright (Suspension of Amendments) Ordinance is just a recent example. It made possible a transitional arrangement while the Government works out a long-term solution in consultation with section of the community whose interests are affected. As a stop-gap measure, this Council may be able to pass the present Bill; as a permanent settlement this must be out of the question. A Government acting fairly will see no difficulty with this. I urge the Secretary for Security to tell us that he will accept this clause in his speech in reply.

Finally, I should like to share this with my honourable colleagues. In an interview on this Bill, I was asked whether I realized we will have to pay a political price if we reject this Bill. It is ironical that one has to pay a political price here today for defending the constitutional right of the people, but more important still is that the public will have confidence in this Council only if we instinctly put their interest above ours. I am in no doubt of where our duty lies.
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