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:

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

Privacy: the Regulation of Covert Surveillance

______________________________________________

CONTENTS

Preface

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Background

1. In October 1989, the Law Reform Commission was asked:

“To examine existing Hong Kong laws affecting privacy and to report on whether legislative or other measures are required to provide protection against, and to provide remedies in respect of, undue interference with the privacy of the individual with particular reference to the following matters:

(a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations;

(b) the disclosure or communication of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong;

(c) intrusion (by electronic or other means) into private premises; and

(d) the interception of communications, whether oral or recorded;

but excluding inquiries on matters falling within the Terms of Reference of the Law Reform Commission on either Arrest or Breach of Confidence.”

2. The Commission appointed a sub-committee to examine the current state of legislation and to make recommendations. The members of the Privacy Sub-committee are

Dr John Bacon-Shone (Chairman)	Associate Dean, Faculty of Social Sciences; Director, Social Sciences Research Centre, The University of Hong Kong
Mr Don Brech	Principal Consultant, Records Management International Limited (Former Director, Government Records Service)
Professor Johannes M M Chan (from November 2001)	Honorary Senior Counsel, Dean, Faculty of Law, The University of Hong Kong
Mrs Patricia Chu, BBS, JP (till April 2001)	Former Deputy Director of Social Welfare (Services), Social Welfare Department
Mr A F M Conway	Chairman, Great River Corporation Limited
Mr Edwin Lau	Chairman, Hooray Holdings Limited (Former Assistant General Manager & Head of Strategic Implementation Asia Pacific, HSBC)
Mr Robin McLeish (from February 2000)	Barrister-at-law
Mr Barry Mortimer, GBS (Chairman of sub-committee from 1990 till August 1999)	Non-Permanent Judge, Court of Final Appeal
Mr James O’Neil	Deputy Solicitor General (Constitutional), Department of Justice
Mrs Kathy Ng Ma Kam-han (from April 2001 to April 2003)	Assistant Director (Elderly) Social Welfare Department
Mr Peter So Lai-yin (till November 2001)	Former General Manager Hong Kong Note Printing Limited
Mr Richard Tang Hau Sing (from April 2005)	Director of Crime and Security Hong Kong Police Force
Professor Raymond Wacks (Chairman of sub-committee from August 1999 to December 2001)	Emeritus Professor of Law and Legal Theory, The University of Hong Kong
Mr Wong Kwok-wah	Editor, Asia Times-On-Line (Chinese version)

Miss Amy Chan, Senior Government Counsel, was the secretary to the sub-committee during the preparation of this report.

3. Since being given its original terms of reference, the Law Reform Commission’s Privacy sub-committee has completed studies of a number of aspects of privacy, resulting in final Commission reports on Reform of the Law Relating to the Protection of Personal Data (published in August 1994), Privacy: Regulating the Interception of Communications (published in December 1996), Stalking (October 2000), Privacy and Media Intrusion and Civil Liability for Invasion of Privacy (both published in December 2004). The one remaining aspect of the privacy reference is surveillance. The sub-committee issued a combined consultation paper on surveillance and interception of communications in 1996, and while final recommendations were subsequently made in respect of interception of communications, the question of surveillance was deferred for later consideration. This report now sets out the Commission’s final recommendations in respect of covert surveillance.

The requirement for a legislative framework

The guarantees of the right to privacy

4. Article 29 of the Basic Law of the Hong Kong Special Administrative Region prohibits arbitrary or unlawful search or intrusion into a resident’s home or other premises. Article 30 provides that the privacy of communications may not be infringed except to meet the needs of public security or of investigation into criminal offences. Article 39 of the Basic Law guarantees that the provisions of the International Covenant on Civil and Political Rights (“the ICCPR”) as applied to Hong Kong shall remain in force.¹

5. Article 17 of the ICCPR as incorporated in Article 14 of the Hong Kong Bill of Rights (Cap. 383, Part II) (“HKBOR”) provides that no one shall be subjected to “arbitrary or unlawful interference with his privacy, family, home or correspondence”, and that everyone has the right to the protection of the law against such interference.

6. In order to provide adequate and effective protection against arbitrary or unlawful intrusion into the privacy of individuals, we recommend that a legislative framework should be set up for the regulation of covert surveillance and the covert obtaining of personal information.²

The general principles for regulation of covert surveillance

Legality

7. The law regulating such surveillance activities must be readily accessible and precise so that individuals will be aware of the circumstances and the conditions under which public authorities may resort to the use of such intrusive powers.³

Proportionality

8. Covert surveillance constitutes an interference with the right to privacy. Any interference with such a fundamental right would only be lawful if it is for the pursuit of a legitimate aim and that any measures taken to restrict that right must be proportionate to the legitimate aim to be achieved.⁴ There must be criteria in place to determine when and under what circumstances it is justified to interfere with the right to privacy.

Accountability

9. The exercise of intrusive powers must be subject to adequate and effective safeguards which include such elements as prior scrutiny, independent oversight, and access to remedy before an independent court or tribunal.⁵

An integrated approach to regulating intrusion

10. We take the view that an integrated approach should be adopted to the regulation both of the interception of communications and of covert surveillance to provide effective protection against undue interference with privacy.

The structure of this report

11. In accord with Article 29 of the Basic Law which prohibits arbitrary or unlawful intrusion into a resident’s home or other premises, we take the view that criminal sanctions should afford protection against covert surveillance and the covert collection of personal information which involve intrusion into “private premises” without lawful justification or consent. We have defined the conduct that would constitute a criminal offence in relation to surveillance in Chapter 1 of this report.

12. We take the view that covert surveillance is necessary for law enforcement purposes and for the protection of the public security in Hong Kong. In Chapter 2, we recommend the establishment of a regulatory system which sets out the circumstances in which a warrant issued by the Court of First Instance should be required for such intrusions to be lawful and the situations where an internal authorisation granted by an authorising officer of a designated law enforcement agency would be sufficient for those purposes.

13. We examine in Chapter 3 the grounds upon which a warrant or an internal authorisation for covert surveillance may be issued and the matters that should be taken into account by the judge or the issuing authority in assessing whether the application is for a legitimate purpose and whether it complies with the proportionality requirement. The procedures for the application and the renewal of a warrant or internal authorisation, their duration, and the procedures for emergency applications are explained in Chapter 4.

14. In Chapter 5, we consider the admissibility of materials obtained from covert surveillance as evidence in legal proceedings. Recommendations relating to the retention, disclosure and destruction of materials obtained from surveillance are made in Chapter 6.

15. The question of whether it is necessary to notify the person who is subject to covert surveillance of that fact is discussed in Chapter 7 of the report.

16. In Chapter 8, we recommend the creation of an independent supervisory authority, which would review the issue of warrants or internal authorisations as a means of providing effective safeguards to the regulatory system. The supervisory authority would also deal with complaints from aggrieved persons in relation to covert surveillance.

17. We recommend in Chapter 9 that an annual public report should be furnished to the Legislative Council and a confidential report to the Chief Executive. These reports would serve to increase transparency and accountability in relation to covert surveillance activities carried out by the law enforcement agencies.

Terminology

18. Unless the context requires otherwise, references to “the sub-committee” are to the Law Reform Commission’s Privacy Sub-committee, and “the consultation paper” refers to the sub-committee’s consultation paper on “Privacy: Regulating Surveillance and the Interception of Communications”, published in 1996. The consultation paper can be accessed through the Commission’s website at http://www.hkreform.gov.hk/reports/index.htm.

Chapter 1

Proposed criminal offences

relating to covert surveillance

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General approach to criminal sanctions

1.1 In recommending what surveillance conduct should be regarded as unlawful and subject to criminal sanctions we have borne the following considerations in mind:

1. Social need

Conduct should not be criminalised unless there is a social need and it is essential to do so. Broadly drawn criminal offences could lead to abuse.

2. Establishing norms

Where social need is made out, criminal sanctions usefully establish social norms and proscribe unacceptable conduct.

3. Deterrence and retribution

The existence of criminal offences would have a deterrent effect, even if no prosecution were ever brought.

4. Systematic investigation

Attaching criminal sanctions to unacceptable conduct enables the Individual to obtain police assistance in investigating and remedying wrongdoing.¹

The scope of the regulation of surveillance

1.2 The Privacy Sub-committee recommended in its consultation paper on Privacy: Regulating Surveillance and the Interception of Communications a statutory regulatory framework incorporating three proposed criminal offences:

(1) trespass into private premises with intent

It would be an offence for a person to enter private premises as a trespasser with intent to observe, overhear or obtain personal information therein.²

(2) physical intrusion into private premises by means of a technical device

It would be an offence for a person to place, use or service in, or remove from, private premises a sense-enhancing, transmitting or recording device without the consent of the lawful occupier.³

(3) placing or using of a technical device outside private premises with intention of monitoring activities held on the premises

It would be an offence for a person to place or use a sense-enhancing, transmitting or recording device outside private premises with the intention of monitoring, without the consent of the lawful occupier, either the activities of the occupant or data held on the premises relating directly or indirectly to the occupant.⁴

In reviewing the proposals in the consultation paper, and the responses to that paper, we are conscious that the consultation exercise was carried out ten years ago. Since then, there have been legislative developments in a number of other jurisdictions, including Australia and the United Kingdom. In the United Kingdom, for instance, there has been considerable debate over the years, both in Parliament and in the community at large, as to the regulation of covert surveillance and interception of communications. The results of the consultation exercise carried out in Hong Kong in 1996 must accordingly be viewed with that caveat.

The first offence: trespass into private premises with intent to observe, overhear or obtain personal information

1.3 The responses to the consultation paper all supported the creation of the offence of entering private premises as a trespasser with intent to observe, overhear or obtain personal information.⁵

Definition of private premises

1.4 For the purposes of the proposed offence, the consultation paper defined “private premises” to mean any private residence, together with its immediate curtilage (garden and outbuildings), but excluding any adjacent fields or parkland. It also included bedrooms (but not other areas) in a hotel and those parts of a hospital or nursing home where patents are treated or accommodated, school premises, commercial premises, aircraft, vessels and vehicles from which the public are excluded.⁶

1.5 The general response to the consultation paper was that the definition of “private premises” for the purposes of the proposed criminal offences was too wide.⁷ We have taken account of the submissions, and have decided to revise the definition of “private premises” to include only:

“any premises, or any part of premises, occupied or used by any person, however temporarily, for residential purposes or otherwise as living accommodation; any room hired by the proprietor of a hotel or guesthouse to guests for lodging;⁸ or those parts of a hospital or nursing home where patients are treated or which are used as sleeping accommodation.”

1.6 We have accordingly removed “School premises, commercial premises, aircraft, vessels and vehicles from which the public are excluded” from the original definition of “private premises”.

1.7 Concern was also expressed as to whether passageways, lift lobbies, roofs, balconies, and the common areas in buildings would fall within the definition of “private premises”. We do not intend that our reference to private premises should include any common area to which an individual is allowed access in connection with his use or occupation of such premises.⁹

Meaning of “personal information”

1.8 “Personal information” was not defined in the consultation paper.¹⁰ However, there have been judicial observations in recent decisions in the Court of Appeal¹¹ and the House of Lords¹² in the United Kingdom to the effect that “private information” about a person is information which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved.

1.9 We also note that one of the constituent elements of covert surveillance under the Executive Order No 1 of 2005 is that the surveillance is likely to result in the obtaining of any “private information about the person”.¹³

Use of technical device not essential

1.10 We agree with the recommendation in the consultation paper that the use of a technical device should not be a necessary ingredient of the first offence.¹⁴

The revised recommendations

1.11 The offence proposed in the sub-committee’s consultation paper required that the offender had entered private premises as a trespasser with the intent of observing, overhearing or obtaining personal information. The offence did not require that the offender’s actions were covert, and we agree with this approach. The proposed offence should equally be committed where there is an overt intrusion on private premises, as where, for instance, a photographer forces his way into a person’s home to take photographs.¹⁵

1.12 A key element in the offence proposed in the consultation paper was that the offender had “entered” the private premises as a trespasser. There may be circumstances, however, in which an individual enters private premises legitimately but subsequently outstays his right to remain. For instance, a guest who refuses to leave after being asked to do so by the occupant would at that stage become a trespasser. To cover such situations, we believe that an appropriate adjustment should be made to the wording of the first offence. We therefore recommend that the first offence should consist of:

“entering or remaining on private premises as a trespasser with intent to observe, overhear or obtain personal information.”

Where a law enforcement agency wished to enter premises for these purposes, it would need to obtain a search and seizure warrant if its actions were to be overt, or a covert surveillance warrant if it intended to act covertly.

The second offence: physical intrusion into private premises by means of a technical device

Recommendations in the consultation paper

1.13 The consultation paper recommended that it should be an offence for a person to place, use or service in, or remove from, private premises a sense-enhancing, transmitting or recording device without the consent of the lawful occupier. This is commonly referred to as the “bugging” of premises and involves the placement or use of a surveillance device, such as a camera, microphone, or similar device, in the premises.

The responses to the consultation paper

1.14 The Bar Association was in favour of the proposed offence. One respondent objected on the ground that the offence could be committed by a person who accidentally left a camera in another person’s premises.

Intent to obtain personal information

1.15 The rapid technological advances in the field of communications mean that the availability of devices capable of being used to record, monitor, or listen to conversations or activities for the purpose of obtaining personal information has greatly increased. It would no longer be appropriate to render such conduct criminal without requiring proof that the placement, use, servicing or removal of such a device was carried out with intent to obtain personal information.

1.16 We therefore recommend that a person should only be guilty of the offence of placement or use of a surveillance device inside private premises where the offence is committed with intent to obtain personal information.

Consent of the lawful occupant

1.17 Under the original proposal in the sub-committee’s consultation paper, the offence of physical intrusion into private premises by means of a technical device would be committed where the intrusion was “without the consent of the lawful occupier”. A person would be exempt from criminal liability if he had the consent of the lawful occupier to carry out the prohibited act of surveillance.

1.18 Article 29 of the Basic Law prohibits “arbitrary or unlawful” intrusion into a resident’s home or other premises. It is clearly necessary to specify in the legislation the categories of persons by whom, and the circumstances in which, valid consent may be given to intrusion into private premises by means of a surveillance device.

1.19 Where the premises are occupied for residential purposes by a sole occupant, a person would be guilty of the offence of intrusion into private premises with a technical device unless consent has first been obtained from that sole occupant, who must be an adult.

1.20 Where more than one occupant resides in the same private premises, we consider a distinction should be drawn between the situation where a number of persons occupy the same accommodation independently of each other (as in the case of a dormitory in a hostel) and the situation where a number of persons occupy the same accommodation together (as in the case of a family household). In the former situation, we do not think that one of the lawful occupants should be able to give consent to, or carry out, covert surveillance of the others with the use of a technical device. In contrast, in the latter situation we consider that one lawful occupant should be able to give consent to, or carry out, covert surveillance of the other occupants with the use of a technical device. That would not constitute a criminal offence, subject to the proviso that there should be an express prohibition on covert surveillance in changing rooms, rooms used wholly or in part for sleeping accommodation and toilet, shower or bathing facilities, without the consent of the adult occupant concerned.¹⁶ These are all areas where a person would reasonably expect to have a high degree of privacy and as such merit particular consideration.

1.21 Where the owner or lawful occupant of private premises considers that there is a need to undertake covert surveillance in a prohibited area in relation to a suspected criminal offence committed by another occupant of the premises, the proper approach would be to report the matter to a law enforcement agency. Where a law enforcement agency needs to undertake covert surveillance in those areas, justifications should be provided by an officer of the law enforcement agency concerned to the judge or the authorising officer in the application for a warrant or internal authorisation.

Revised recommendations¹⁷

1.22 We recommend that where the private premises concerned are occupied or used by any person, however temporarily, for residential or sleeping purposes or otherwise as living accommodation, consent to the use of a technical device for surveillance inside the premises may be given:

(a) in the case of premises lawfully occupied by one person, or occupied jointly by more than one person, by any one of those lawful occupants who is an adult; and

(b) in the case of premises lawfully occupied by more than one person independently of each other, only by every lawful adult occupant.

We further recommend that in respect of private premises used as living accommodation there should be an express prohibition on covert surveillance in changing rooms, rooms used wholly or in part for sleeping accommodation, and any toilet, shower or bathing facilities, other than where authorised by a warrant or internal authorisation.

1.23 The effect of these recommendations would be, for instance, that the placement or use of a device for covert surveillance purposes inside a hotel room hired to guests for lodging would be an offence unless consent for so doing had been obtained from the guest or, where the room was occupied by more than one guest, any one of them. In contrast, in premises such as a hostel or a home for the aged, where a number of individuals occupy premises independently of each other, the recommendations would preclude a single occupant giving consent to, or carrying out, covert surveillance of the others.

1.24 Having reviewed the original recommendation in the consultation paper, we maintain the view that the offence of physical intrusion into a hospital or nursing home using a technical device should be restricted to those parts of a hospital or nursing home where patients are treated or which are used as sleeping accommodation. Where the act was done with intent to obtain personal information other than for medical purposes, it would constitute criminal conduct unless the consent of the person who is the subject of the surveillance has been given.¹⁸

Meaning of “sense-enhancing, transmitting or recording device”

1.25 There was criticism that the consultation paper’s proposal did not make clear what kind of equipment would fall within the definition of “sense-enhancing, transmitting or recording device”.

1.26 We have examined the definitions of surveillance devices in the legislation in the United Kingdom¹⁹ and Australia.²⁰ We do not think it necessary to define the term “sense-enhancing, transmitting or recording device”. Whether any device would fall within the category of a “sense-enhancing, transmitting or recording device” would depend on its use in the particular circumstances of the case. We accordingly adopt the recommendation in the consultation paper that it should be an offence to use a “sense-enhancing, transmitting or recording device” with intent to obtain personal information without the consent of the lawful occupant of private premises. We should stress that we do not intend that the use of everyday devices such as spectacles or hearing aids, designed to correct sensory deficiencies, should be caught by the offence. We mean instead to target devices which enhance sensory perception beyond normal human capability.

The third offence: placing or using a technical device outside private premises with the intention of monitoring activities on the premises

Recommendations in the consultation paper

1.27 The consultation paper recommended that it should be an offence for a person to place or use a sense-enhancing, transmitting or recording device outside private premises with the intention of monitoring, without the consent of the lawful occupier, either the activities of the occupant or data held on the premises relating directly or indirectly to the occupant.²¹ Under this proposed offence, criminal sanctions would only attach to surveillance conducted outside private premises which utilises technical devices and targets individuals within private premises.

1.28 The consultation paper further proposed that the requirement for the presence of intent to monitor the activities or data inside private premises “would exclude accidental surveillance or hacking”. Whether such intent exists “will be a question of fact and there will be situations where the surveillance device can be shown to be targeting particular premises”.²²

The submissions

1.29 The Bar Association agreed to the creation of the proposed offence. The Hong Kong Press Photographers Association took the view that the offence might criminalise certain innocent conduct, and cited the example of a person taking a photo of something seen without the assistance of any technical device while standing in a public place. The Association was of the view that where a person chose not to protect their privacy, the freedom of others should not be restricted, nor should their exercise of that freedom be penalised. There was also concern from the media that reporters taking photos from outside of persons in an aircraft, vessel or private vehicle would be committing a criminal offence.

Revised recommendations

1.30 We consider that where an individual or his property is in plain view and is visible to the naked eye, the use of binoculars or a telephoto-lens camera to observe or record his actions does not normally infringe the individual’s expectation of privacy. However, if a technical device is used to collect data which would otherwise be shielded from observation but for the use of the device, such conduct could constitute an invasion of privacy.²³

Merging of the second and third offences

Recommendations

1.31 We take the view that the elements of the second and third proposed offences are similar. We therefore recommend that the offence of “placing, using or servicing in, or removing from, private premises of a sense-enhancing, transmitting or recording device without the consent of the lawful occupier” should be combined with the offence of “placing or using a sense-enhancing, transmitting or recording device outside private premises with the intention of monitoring either the activities of the occupant or data held on the premises relating directly or indirectly to the occupant without the consent of the lawful occupier”.

1.32 The only difference between the two offences is that, in relation to the second offence, it would constitute criminal conduct for a person “to place, use, or service in, or remove from” inside private premises a surveillance device with intent to conduct covert surveillance of persons inside the premises, whereas in relation to the third offence it would be an offence for a person to place or use a technical device outside private premises with the same intent. We consider the distinction as to whether the device was placed or used “inside” or “outside” the private premises is artificial and unnecessary, taking into account the similar nature of the two offences.

1.33 Upon consolidation, it would be an offence for a person:

“to place, use, service or remove a sense-enhancing, transmitting or recording device (whether inside or outside private premises) with the intention of obtaining personal information relating to individuals inside the private premises in circumstances where those individuals would be considered to have a reasonable expectation of privacy. “

An individual would generally be considered to have a reasonable expectation of privacy that he would not be subject to surveillance from inside private premises, but whether or not such an expectation can reasonably be said to exist in respect of surveillance from outside private premises will depend on the particular circumstances.

1.34 So long as the observation is made by an officer who has the right to be where he is, and encompasses only that which is in plain view, the fact that the observation was made with the use of binoculars does not transform it into an unlawful intrusion into privacy.²⁴ Observations with binoculars do not deprive the person observed of any reasonable expectation of privacy.²⁵ However, if what is observed could not be seen without the use of a telescopic aid, then that amounts to an invasion of the right of privacy of the person observed.²⁶

1.35 We consider that the observation with the use of technical aids of that which is in plain view even without the use of those aids should not constitute an offence. The validity of the observation of persons or property in plain view turns upon the subject’s reasonable expectation of privacy, rather than upon the means used to view it. As long as the object viewed is visible to the naked eye, technological aid