Hong Kong Ordinances

INTERCEPTION OF COMMUNICATIONS AND SURVEILLANCE ORDINANCE - SECT 48

Notifications to relevant persons

Division 4—Notifications by Commissioner

(1) If, in the course of performing any of his functions under this Ordinance,
the Commissioner, having regard to subsection (5), considers that there is any
case in which any interception or covert surveillance has been carried out by
an officer of a department without the authority of a
prescribed authorization, subject to subsection (6), the Commissioner shall as
soon as reasonably practicable give notice to the relevant person—

   (a)  stating that there has been such a case and indicating whether the
        case is one of interception or covert surveillance and the duration of
        the interception or covert surveillance; and

   (b)  informing the relevant person of his right to apply to the
        Commissioner for an examination in respect of the interception or
        covert  surveillance.

(2) Where the relevant person makes an application for an examination in
respect of the interception or covert surveillance within 6 months after
receipt of the notice or within such further period as the Commissioner may
allow, the Commissioner shall, notwithstanding anything in section 45(1)(a)
but subject to the other provisions of section 45, make a determination
referred to in section 44(2), and the provisions of this Ordinance are to
apply accordingly.

(3) Notwithstanding subsection (1), the Commissioner shall only give a notice
under that subsection when he considers that the giving of the notice would
not be prejudicial to the prevention or detection of crime or the protection
of public security.

(4) Without prejudice to subsection (3), in giving notice to a relevant person
under subsection (1), the Commissioner shall not—

   (a)  give reasons for his findings; or

   (b)  give details of any interception or covert surveillance concerned
        further to those mentioned in subsection (1)(a).

(5) For the purposes of this section—

   (a)  in considering whether any interception or covert surveillance has
        been carried out without the authority of a prescribed authorization,
        the Commissioner shall apply the principles applicable by a court on
        an application for judicial review; and

   (b)  without limiting the generality of paragraph (a), the Commissioner may
        by applying those principles determine that any interception or
        covert surveillance has been carried out without the authority of a
        prescribed authorization notwithstanding the purported issue or
        renewal of any prescribed authorization.

(6) This section does not require the Commissioner to give any notice to a
relevant person if—

   (a)  the relevant person cannot, after the use of reasonable efforts, be
        identified or traced;

   (b)  the Commissioner considers that the intrusiveness of the interception
        or covert surveillance concerned on the relevant person is negligible;
        or

   (c)  in the case of interception, the interception is within the
        description of section 4(2)(b) or (c).

(7) In this section, "relevant person" (有關人士) means any person who is
the subject of the interception or covert surveillance concerned.

"relevant person" (有關人士)