Privacy: The regulation of covert surveillance
On 24 March 2006, the Law Reform Commission released its report on Covert Surveillance. This is the last report in a comprehensive review by the Commission of the law relating to privacy which began in 1989. Reports have previously been issued on (a) the Protection of Personal Data; (b) the Interception of Communications; (c) Stalking; (d) Civil Liability for Invasion of Privacy and (e) Privacy and Media Intrusion.
The report's recommendations are intended to provide adequate and effective protection and remedies against arbitrary or unlawful intrusion into an individual's privacy, as guaranteed under the Basic Law and the International Covenant on Civil and Political Rights. The report recommends that a legislative framework should be set up to regulate covert surveillance and the obtaining of personal information through intrusion into private premises.
The report recommends the creation of two new criminal offences:
- it should be an offence to enter or remain on private premises as a trespasser with intent to observe, overhear or obtain personal information.
- it should be an offence 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.
These offences will apply to all persons, though a law enforcement agency will not be liable where it has obtained a warrant or internal authorisation for the surveillance in question. It would be a defence to either of the offences that the accused had an honest belief, and there were reasonable grounds for believing, that:
- a serious offence had been, or was being committed;
- the law enforcement agencies would not investigate or prosecute that offence;
- evidence of the commission of that serious offence would be obtained through surveillance, and could not be obtained by less intrusive means; and
- the purpose of the surveillance was the prevention or detection of a serious offence.
The Commission proposes that law enforcement agencies would have to obtain a judicial warrant before undertaking covert surveillance where the surveillance would otherwise constitute one of the proposed criminal offences: where it is to be carried out on certain specified premises from which the public are excluded: or where the surveillance is likely to lead to the acquisition of matters subject to legal privilege, confidential journalistic material or highly sensitive personal information. In less intrusive cases, an internal authorisation from a senior officer of the law enforcement agency will be required where covert surveillance is to be carried out in circumstances where the target would have a reasonable expectation of privacy.
A warrant will only be granted where the covert surveillance is for the purpose of preventing or detecting serious crime (or crime, in the case of an internal authorisation), or to protect public security in respect of Hong Kong. Before granting a warrant or internal authorisation, the court or authorising officer must be satisfied that the information cannot reasonably be obtained through less intrusive means.
The report proposes that a new supervisory authority should be created to keep the proposed warrant and authorisation system under review. The supervisory authority should be a serving or retired judge of the Court of First Instance, or a higher court, or a person eligible for appointment to the Court of First Instance. The supervisory authority would review cases on a sample audit basis. It would also consider complaints from the public, and award compensation in appropriate cases. The supervisory authority would be required to submit a public annual report to the Legislative Council, and a confidential report to the Chief Executive.
|Press Release (PDF) (MS Word)|
|Executive Summary (PDF) (MS Word)|
|Report (PDF) (MS Word)|