Hong Kong Ordinances

INTERCEPTION OF COMMUNICATIONS AND SURVEILLANCE ORDINANCE - SECT 2

Interpretation

(1) In this Ordinance, unless the context otherwise requires—

"address" (地址), in relation to a communication transmitted by a postal 
service, includes a postal box address;

"authorizing officer" (授權人員), in relation to any department, means any
officer designated under section 7 by the head of the department to be an
authorizing officer;

"code of practice" (實務守則) means the code of practice issued under
section  63 ;

"Commissioner" (專員) means the Commissioner on Interception of
Communications and Surveillance appointed under section 39;

"communication" (通訊) means—

   (a)  any communication transmitted by a postal service; or

   (b)  any communication transmitted by a telecommunications system;

"communication transmitted by a postal service"
(藉郵政服務傳送的通訊) includes a postal article;

"conduct" (行為) includes any act or omission, and any series of acts or
omissions or of acts and omissions;

"conveyance" (運輸工具) means any vehicle, vessel, aircraft, hovercraft or
other conveyance;

"copy" (文本)—

   (a)  in relation to any contents of a communication that have been obtained
        pursuant to a prescribed authorization for interception, means any of
        the following (whether or not in documentary form)—

        (i)    any copy, extract or summary of such contents;

        (ii)   any record referring to the interception which is a record
               showing, directly or indirectly, the identity of any person who
               is the sender or intended recipient of the communication; or

   (b)  in relation to any material that has been obtained pursuant to a
        prescribed authorization for covert surveillance, means any of the
        following (whether or not in documentary form)—

        (i)    any copy, extract or summary of the material;

        (ii)   any transcript or record made of the material;

"court" (法院), without prejudice to sections 6(4) and 55—

   (a)  means a court as defined in section 3 of the Interpretation and 
        General Clauses Ordinance ( Cap 1); and

   (b)  includes a magistrate and a tribunal;

"covert surveillance" (秘密監察)—

   (a)  means any surveillance carried out with the use of any
        surveillance device for the purposes of a specific investigation or
        operation, if the surveillance—

        (i)    is carried out in circumstances where any person who is the
               subject of the surveillance is entitled to a reasonable
               expectation of privacy;

        (ii)   is carried out in a manner calculated to ensure that the person
               is unaware that the surveillance is or may be taking place; and

        (iii)  is likely to result in the obtaining of any private information
               about the person; but

   (b)  does not include—

        (i)    any spontaneous reaction to unforeseen events or circumstances;
               and

        (ii)   any such surveillance that constitutes interception under this
               Ordinance;

"data surveillance device" (數據監察器材)—

   (a)  means any device or program used to monitor or record the input of
        information into, or the output of information from, any information 
        system by electronic means; but

   (b)  does not include an optical surveillance device;

"department" (部門)—

   (a)  in relation to interception (including any application for the issue
        or renewal of a prescribed authorization for interception, any
        prescribed authorization for interception and any other matter
        relating to interception), means a department specified in Part 1 of
        Schedule 1;

   (b)  in relation to covert surveillance (including any application for the
        issue or renewal of a prescribed authorization for covert 
        surveillance, any prescribed authorization for covert surveillance and
        any other matter relating to covert surveillance), means a department
        specified in Part 2 of Schedule 1; or

   (c)  in relation to any other matter provided for in this Ordinance, means
        a department specified in Part 1 or 2 of Schedule 1;

"device" (器材) includes any instrument, apparatus and equipment;

"device retrieval warrant" (器材取出手令) means a
device retrieval warrant issued under section 34 (and, where the context
requires, includes a device retrieval warrant to be issued under that
section);

"directorate officer" (首長級人員) means an officer not below a rank
equivalent to that of chief superintendent of police;

"emergency authorization" (緊急授權) means an emergency authorization
issued under Division 4 of Part 3 (and, where the context requires, includes
an emergency authorization to be issued under that Division);

"enhancement equipment" (增強設備), in relation to a device, means any
equipment used to enhance a signal, image or other information obtained by the
use of the device;

"examination" (審查) means an examination (including consideration of the
application for the examination) carried out under Division 3 of Part 4

(and, where the context requires, includes such an examination to be carried
out under that Division);

"executive authorization" (行政授權) means an executive authorization
issued or renewed under Division 3 of Part 3 (and, where the context requires,
includes an executive authorization to be issued or renewed under that
Division);

"function" (職能) includes power and duty;

"head" (首長), in relation to a department, includes any deputy head of the
department;

"information system" (資訊系統) has the meaning assigned to it by
section 2(1) of the Electronic Transactions Ordinance ( Cap 553);

"inspect" (查察) includes listen to, monitor and record;

"install" (裝設) includes attach;

"intercepting act" (截取作為), in relation to any communication, means the
inspection of some or all of the contents of the communication, in the course
of its transmission by a postal service or by a telecommunications  system, by
a person other than its sender or intended recipient;

"interception" (截取)—

   (a)  in relation to any communication, means the carrying out of any
        intercepting act in respect of that communication; or

   (b)  when appearing in a context with no specific reference to any
        communication, means the carrying out of any intercepting act in
        respect of any communication;

"interception product" (截取成果) means any contents of a communication
that have been obtained pursuant to a prescribed authorization for
interception, and includes a copy of such contents;

"journalistic material" (新聞材料) has the meaning assigned to it by
section  82 of the Interpretation and General Clauses Ordinance ( Cap 1);

"judge's authorization" (法官授權) means a judge's authorization issued or
renewed under Division 2 of Part 3 (and, where the context requires, includes
a judge's authorization to be issued or renewed under that Division);

"listening device" (監聽器材)—

   (a)  means any device used to overhear, listen to, monitor or record any
        conversation or words spoken to or by any person in conversation; but

   (b)  does not include a hearing aid or similar device used by a person with
        impaired hearing to overcome the impairment;

"maintain" (維修), in relation to a device, includes—

   (a)  adjust, reposition, repair or service the device; and

   (b)  replace the device when it is faulty;

"optical surveillance device" (視光監察器材)—

   (a)  means any device used to record visually or observe any activity; but

   (b)  does not include spectacles, contact lenses or a similar device used
        by a person with impaired sight to overcome the impairment;

"oral application" (口頭申請) means an oral application made under
section  25 (1);

"panel judge" (小組法官) means a judge appointed under section 6(1) to be
a panel judge;

"postal article" (郵遞品) has the meaning assigned to it by section 2(1) of
the Post Office Ordinance ( Cap 98);

"postal interception" (郵件截取) means interception of any communication 
transmitted by a postal service;

"postal service" (郵政服務) means postal service to which the Post Office 
Ordinance ( Cap 98) applies;

"premises" (處所) includes any place and, in particular, includes—

   (a)  any land or building;

   (b)  any conveyance;

   (c)  any structure (whether or not movable or offshore); and

   (d)  any part of any of the premises described in paragraph (a), (b) or
        (c);

"prescribed authorization" (訂明授權) means a judge's authorization, an
executive authorization or an emergency authorization;

"protected product" (受保護成果) means any interception product or
surveillance  product;

"public place" (公眾地方)—

   (a)  means any premises which are a public place as defined in section 2(1)
        of the Summary Offences Ordinance ( Cap 228); but

   (b)  does not include any such premises that are intended for use by
        members of the public as a lavatory or as a place for taking a bath or
        changing clothes;

"public security" (公共安全) means the public security of Hong Kong;

"relevant authority" (有關當局)—

   (a)  in relation to an application for the issue or renewal of a judge's
        authorization, means the panel judge to whom the application is or has
        been made;

   (b)  in relation to an application for the issue or renewal of an
        executive authorization, means the authorizing officer to whom the
        application is or has been made; or

   (c)  in relation to an application for the issue of an emergency 
        authorization, means the head of a department to whom the application
        is or has been made;

"relevant purpose" (有關目的), in relation to a prescribed authorization,
means the purpose sought to be furthered by carrying out the interception or
covert surveillance concerned as described in section 3 for the purpose of the
issue or renewal, or the continuance, of the prescribed  authorization;

"relevant requirement" (有關規定) means any applicable requirement
under—

   (a)  any provision of this Ordinance;

   (b)  the code of practice; or

   (c)  any prescribed authorization or device retrieval warrant concerned;

"serious crime" (嚴重罪行) means any offence punishable—

   (a)  in relation to the issue or renewal, or the continuance, of a
        prescribed authorization for interception, by a maximum penalty that
        is or includes a term of imprisonment of not less than 7 years; or

   (b)  in relation to the issue or renewal, or the continuance, of a
        prescribed authorization for covert surveillance, by a maximum penalty
        that is or includes—

        (i)    a term of imprisonment of not less than 3 years; or

        (ii)   a fine of not less than $1000000;

"surveillance device" (監察器材) means—

   (a)  a data surveillance device, a listening device, an optical 
        surveillance device or a tracking device;

   (b)  a device that is a combination of any 2 or more of the devices
        referred to in paragraph (a); or

   (c)  a device of a class prescribed by regulation made under section  66
        for the purposes of this definition;

"surveillance product" (監察成果) means any material obtained pursuant to
a prescribed authorization for covert surveillance, and includes a copy of the
material;

"telecommunications interception" (電訊截取) means interception of any
communication transmitted by a telecommunications system;

"telecommunications service" (電訊服務) has the meaning assigned to it by
section 2(1) of the Telecommunications Ordinance ( Cap 106);

"telecommunications system" (電訊系統) has the meaning assigned to it by
section 2(1) of the Telecommunications Ordinance ( Cap 106);

"tracking device" (追蹤器材) means any electronic device used to determine
or monitor the location of any person or any object or the status of any
object;

"Type 1 surveillance" (第1類監察) means any covert surveillance other than
Type 2 surveillance;

"Type 2 surveillance" (第2類監察), subject to subsections (3) and (4),
means any covert surveillance that—

   (a)  is carried out with the use of a listening device or an optical 
        surveillance device by any person for the purpose of listening to,
        monitoring or recording words spoken or activity carried out by any
        other person, if the person using the device—

        (i)    is a person by whom the other person intends, or should
               reasonably expect, the words or activity to be heard or seen;
               or

        (ii)   listens to, monitors or records the words or activity with the
               consent, express or implied, of a person described in
               subparagraph (i); or

   (b)  is carried out with the use of an optical surveillance device or a
        tracking device, if the use of the device does not involve—

        (i)    entry onto any premises without permission; or

        (ii)   interference with the interior of any conveyance or object, or
               electronic interference with the device, without permission.

(2) For the purposes of this Ordinance, a person is not regarded as being
entitled to a reasonable expectation of privacy within the meaning
of paragraph (a)(i) of the definition of "covert surveillance" in subsection
(1) in relation to any activity carried out by him in a public  place, but
nothing in this subsection affects any such entitlement of the person in
relation to words spoken, written or read by him in a public  place.

(3) For the purposes of this Ordinance, any covert surveillance
which is Type 2 surveillance under the definition of "Type 2 surveillance" in
subsection (1) is regarded as Type 1 surveillance if it is likely that any
information which may be subject to legal professional privilege will be
obtained by carrying it out.

(4) An officer of a department may apply for the issue or renewal of a
prescribed authorization for any Type 2 surveillance as if the Type 2 
surveillance were Type 1 surveillance, and the provisions of this Ordinance
relating to the application and the prescribed authorization apply to the
Type 2 surveillance as if it were Type 1 surveillance.

(5) For the purposes of this Ordinance—

   (a)  a communication transmitted by a postal service is regarded as being
        in the course of the transmission if it is regarded as being in course
        of transmission by post under section 2(2) of the Post Office 
        Ordinance ( Cap 98); and

   (b)  a communication transmitted by a telecommunications system is not
        regarded as being in the course of the transmission if it has been
        received by the intended recipient of the communication or by an
        information system or facility under his control or to which he may
        have access, whether or not he has actually read or listened to the
        contents of the communication.

(6) For the purposes of this Ordinance, the contents of any communication
transmitted by a telecommunications system include any data produced in
association with the communication.

(7) For the purposes of this Ordinance, advocacy, protest or dissent (whether
in furtherance of a political or social objective or otherwise), unless likely
to be carried on by violent means, is not of itself regarded as a threat to
public security.

(8) For the purposes of this Ordinance—

   (a)  an application is regarded as being made orally if it is made orally
        in person or made by telephone, video conferencing or other electronic
        means by which words spoken can be heard (whether or not any part of
        the application is made in writing);

   (b)  information is regarded as being provided orally if it is provided
        orally in person or provided by telephone, video conferencing or other
        electronic means by which words spoken can be heard (whether or not
        any part of the information is provided in writing); and

   (c)  a determination (including the issue of a prescribed  authorization or
        a renewed prescribed authorization and the giving of any reason) is
        regarded as being delivered orally if it is delivered orally in person
        or delivered by telephone, video conferencing or other electronic
        means by which words spoken can be heard (whether or not any part of
        the determination is delivered in writing).

"address" (地址)

"authorizing officer" (授權人員)

"code of practice" (實務守則)

"Commissioner" (專員)

"communication" (通訊)

"communication transmitted by a postal service"
(藉郵政服務傳送的通訊)

"conduct" (行為)

"conveyance" (運輸工具)

"copy" (文本)

"court" (法院)

"covert surveillance" (秘密監察)

"data surveillance device" (數據監察器材)

"department" (部門)

"device" (器材)

"device retrieval warrant" (器材取出手令)

"directorate officer" (首長級人員)

"emergency authorization" (緊急授權)

"enhancement equipment" (增強設備)

"examination" (審查)

"executive authorization" (行政授權)

"function" (職能)

"head" (首長)

"information system" (資訊系統)

"inspect" (查察)

"install" (裝設)

"intercepting act" (截取作為)

"interception" (截取)

"interception product" (截取成果)

"journalistic material" (新聞材料)

"judge's authorization" (法官授權)

"listening device" (監聽器材)

"maintain" (維修)

"optical surveillance device" (視光監察器材)

"oral application" (口頭申請)

"panel judge" (小組法官)

"postal article" (郵遞品)

"postal interception" (郵件截取)

"postal service" (郵政服務)

"premises" (處所)

"prescribed authorization" (訂明授權)

"protected product" (受保護成果)

"public place" (公眾地方)

"public security" (公共安全)

"relevant authority" (有關當局)

"relevant purpose" (有關目的)

"relevant requirement" (有關規定)

"serious crime" (嚴重罪行)

"surveillance device" (監察器材)

"surveillance product" (監察成果)

"telecommunications interception" (電訊截取)

"telecommunications service" (電訊服務)

"telecommunications system" (電訊系統)

"tracking device" (追蹤器材)

"Type 1 surveillance" (第1類監察)

"Type 2 surveillance" (第2類監察