Hong Kong Ordinances

INTERCEPTION OF COMMUNICATIONS AND SURVEILLANCE ORDINANCE - SECT 45

Grounds for not carrying out examination, etc.

(1) Where, before or in the course of an examination, the Commissioner
considers—

   (a)  that the application for the examination is received by the
        Commissioner more than 1 year after the day on which the interception
        or covert surveillance is alleged to have taken place or, where the
        interception or covert surveillance is alleged to have taken place on
        more than 1 day, the last occasion on which it is alleged to have
        taken place, and that it is not unfair for him not to carry out the
        examination;

   (b)  that the application is made anonymously;

   (c)  that the applicant cannot, after the use of reasonable efforts, be
        identified or traced; or

   (d)  that, having regard to all the circumstances of the case, the
        application is frivolous or vexatious or is not made in good faith,
        the Commissioner may refuse to carry out the examination or, where the
        examination has been commenced, to proceed with the carrying out of
        the examination (including the making of any determination further to
        the examination).

(2) Where, before or in the course of an examination, the Commissioner is
satisfied that any relevant criminal proceedings are pending or are likely to
be instituted, the Commissioner shall not carry out the examination or, where
the examination has been commenced, proceed with the carrying out of the
examination (including the making of any determination further to the
examination)—

   (a)  in the case of any pending criminal proceedings, until they have been
        finally determined or finally disposed of; or

   (b)  in the case of any criminal proceedings which are likely to be
        instituted, until they have been finally determined or finally
        disposed of or, if applicable, until they are no longer likely to be
        instituted.

(3) For the purposes of subsection (2), criminal proceedings are, in relation
to an examination, regarded as relevant if, but only if, the interception or
covert surveillance alleged in the application for the examination is or may
be relevant to the determination of any question concerning any evidence which
has been or may be adduced in those proceedings.