Legislation for Interception of Communication
Article 14 of the Hong Kong Bill of Rights (HKBOR) states that "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
However, section 33 of the Telecommunication Ordinance (Cap. 106) allows the Governor or any public officer authorised by him to intercept, detain or disclose any intercepted message if the public interest so requires. Obviously, this law violates the right to privacy guaranteed by the HKBOR as interception of communication is a serious threat to privacy.
The Privacy sub-committee of the Law Reform Committee has recently published a consultation paper on regulating surveillance and the interception of communication. Three cases from the European Court of Human Rights have been quoted. They are Klass v Federal Republic of Germany, Huvig v France, and Malone v United Kingdom. The Court has drawn attention to the deficiency related to interception of communication not being given clear legal effect, or not given reasonable clarity as to the scope and manner of exercise of discretion for interception of communication by public bodies.
The sub-Committee has also noted that the provisions of neither our Telecommunication Ordinance nor the Post Ordinance address any of the matters which the European Court held in Huvig required addressing. I agree with the observation and indeed I would say that these provisions are in breach of the HKBOR.
Ever since Alex Tsui has revealed that the ICAC did intercept communication among political figures, the public has shown great concern over the power of the Government and other public authorities to intercept communication.
The Democratic Party suggests repeal of section 33 of the Telecommunication Ordinance and related provisions in the Post Ordinance, and substitution with an Interception of Communication Ordinance. The proposed legislation allows for a warrant system for the public bodies to apply to the court to intercept legally, subject to the requirement set out in the warrant system, such as the purpose of interception, its duration etc. The court will decide whether it is in the public's interest to grant a warrant for interception.
The consultation paper recommends a similar warrant system. The Democratic Party hopes that the Government is considering the matter seriously or otherwise I may consider moving a private Member's Bill in pursuing regulation of interception of communication in order to protect privacy as such.
James To Kun-sun of the Democratic Party, Legislative Councillor