Privacy: The Regulation of Convert Surveillance

Hong Kong Law Reform Commission

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The Law Reform Commission of Hong Kong

Report

Privacy: The Regulation of Covert Surveillance

This report can be found on the Internet at: <http://www.hkreform.gov.hk>

March 2006

The Law Reform Commission of Hong Kong was established by the Executive Council in January 1980. The Commission considers for reform such aspects of the law as may be referred to it by the Secretary for Justice or the Chief Justice.

The members of the Commission at present are:

Chairman:

Members:

Mr Wong Yan-lung, SC, Secretary for Justice

The Hon Mr Justice Andrew Li, Chief Justice

Mr Tony Yen, SBS, JP, Law Draftsman

Dr John Bacon-Shone

The Hon Mr Justice Bokhary, PJ

Professor Albert Chen, JP

Mr Anthony Chow, SBS, JP

Professor Y K Fan, BBS, JP

Professor Michael McConville

Mr Paul Shieh, SC

Ms Anna Wu, SBS, JP

Mr Benjamin Yu, SC, JP

The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at:

20/F Harcourt House
39 Gloucester Road
Wanchai
Hong Kong

Telephone: 2528 0472
Fax: 2865 2902
E mail: hklrc@hkreform.gov.hk
Website: http://www.hkreform.gov.hk

The Law Reform Commission of Hong Kong

Report

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CONTENTS

Chapter	Page

Preface	1

Background	1
The requirement for a legislative framework	3
The general principles for regulation of covert surveillance	4
The structure of this report	5
Terminology	6


1. Proposed criminal offences relating to covert surveillance	7

General approach to criminal sanctions	7
The scope of the regulation of surveillance	7
The first offence: trespass into private premises with intent to observe, overhear or obtain personal information	8
The second offence: physical intrusion into private premises by means of a technical device	12
The third offence: placing or using a technical device outside private premises with the intention of monitoring activities on the premises	15
Merging of the second and third offences	16
Meaning of “reasonable expectation of privacy”	18
Application of the proposed offences	20
Unauthorised disclosure of surveillance materials	21
Defences	21

2. The regulatory system	26

Circumstances in which a warrant is required to conduct covert surveillance	26
Covert surveillance by a party to the targeted activity	30
Covert surveillance by an informer or undercover agent	37
Use of tracking devices for covert surveillance	39
Circumstances in which internal authorisation is required to conduct covert surveillance	41
Application by the private sector	43
Who may apply for a warrant to conduct covert surveillance	44
Who may apply for internal authorisation	44

3. Grounds for the issue of warrants and internal authorisations for covert surveillance	45

Grounds for the issue of warrants	45
Matters on which the court must be satisfied	48
Grounds for the issue of internal authorisations	50
Disclosure of surveillance materials	51

4. The procedure for authorisation	52

The issuing authority	52
Information to be provided in an application for a warrant or internal authorisation for covert surveillance	52
Duration and renewal of authorisation	54
Detailed procedures	55
Emergency application for a warrant or internal authorisation	55
Record of warrants and internal authorisations	58

5. Admissibility as evidence of materials obtained from covert surveillance	60

The distinction between "interception of communications" and "covert surveillance"	61
Background information: Hong Kong	66
Background information: United Kingdom	72
The options for admissibility	92
Conclusions in respect of the admissibility of surveillance materials	96

6. Disposal of materials obtained from covert surveillance	102

Background information: United Kingdom	102
Background information: Hong Kong	109
Relevant provisions in other jurisdictions	117
The options for retention and destruction of materials obtained through interception and covert surveillance	119
Recommendations on retention, disclosure and destruction of materials obtained from covert surveillance	122
Conclusions in respect of materials obtained from interception of communications	125

7. Notification following termination of surveillance	127

Recommendations in the consultation paper	127
Review of the previous recommendations	127
The revised recommendations	130

8. The supervisory authority	132

The composition of the supervisory authority	133
The role of the supervisory authority	134
Review by the supervisory authority	137
Notification of the result of the review	140
Orders by the supervisory authority on completion of review	141
Compensation	142

9. Reports	145

The need for reports	145
The report to the Legislative Council	146
The confidential report to the Chief Executive	148
Reports by government departments and law enforcement agencies	149
The revised recommendations	149