As covert surveillance laws and privacy rights are tested in the courts, the Basic Law's ambit is again on the political agenda. Ravina Shamdasani reports
Hong Kong's loudest and most prominent activist, 'Long Hair' Leung Kwok-hung, suspects they have done it to him, criminal lawyers have been complaining about it for years, and the issue finally blew up in a big way when four defendants in a corruption trial walked free because of it two months ago.
Covert surveillance, bugging and phone tapping are almost synonymous with the work of secretive law enforcement agents such as the Independent Commission Against Corruption. Over the years, such powers to spy on suspects of serious crimes stood relatively unchallenged in a city eager to stamp out graft and other social evils.
But times have changed. Last month alone, the Office of the Privacy Commissioner for Personal Data received 1,508 enquiries and complaints from Hong Kong people concerned about infringement of their privacy. Privacy Commissioner Roderick Woo Bun says that for Hong Kong's small size, the figure is high relative to other developed territories. Hong Kong people take their privacy seriously, he says.
Human rights guarantees set out in the Basic Law are also finding their way more and more into the court room. Judicial reviews against government action or bad laws on the basis of internationally guaranteed rights are being filed with regularity.
It was against this backdrop that, in April, prominent senior barrister Cheng Huan SC invoked his client Li Man-tak's Basic Law Article 30 right to freedom and privacy of communication in a corruption trial before District Court Judge Fergal Sweeney.
It was an invocation that sparked off a series of events and controversies, bringing into question the vast powers of the ICAC, the chief executive's 'dereliction of his duty', and a contentious executive order on covert surveillance.
Judge Sweeney ruled that evidence acquired through covert surveillance by the ICAC ought to be declared inadmissible because such actions breached Article 30.
Article 30 states that privacy of communication cannot be infringed upon except by 'relevant authorities ... in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences'.
But there is no law in Hong Kong governing the use of covert surveillance, except for phone tapping, which is covered by the Telecommunications Ordinance. Prosecutor David Fitzpatrick in the Li Man-tak case, involving bribery charges, argued that the ICAC's internal guidelines and standing orders qualified as 'legal procedures' but Judge Sweeney disagreed. He said they could not qualify as legal procedures because they were not open to scrutiny, review or appeal by the public.
Li, former executive director of Kwong Hing International Holdings, still went on to be convicted, but the case threw into doubt the use of covert surveillance, in this case secretly audio and video taping a conversation in the VIP room of a restaurant.
Mr Fitzpatrick warned at the time that such a ruling would effectively mean the right to privacy could be used as a 'legal defence to serious crime' and allow criminals to get away with murder. Former ICAC operations chief Tony Kwok Man-wai said the ruling would put lives at risk and was a 'typical example of Hong Kong judges taking a particularly narrow view of the provisions of the Basic Law'.
Rights activists, however, hailed the ruling. And Democratic Party lawmaker and security spokesman James To Kun-sun said the case highlighted the problem that law enforcement agencies had too much power subject to too little scrutiny.
Pandora's box had been opened, and it was little more than two months later that the next challenge to the 'unfettered' powers was raised. This time, four people accused of offering $1.9 million in bribes to Housing Department officers won a permanent stay of proceedings and walked free because the ICAC secretly taped a conversation between one of the defendants and a lawyer at a restaurant.
Top-ranking criminal lawyers told how they had suspected or known for years that their conversations with defendants were being bugged. They severely criticised the authorities' disdain for legal professional privilege or lawyer-client confidentiality and urged speedy enactment of a law requiring prior judicial approval for bugging and other clandestine surveillance.
But none predicted the speed of government action. Just a month after Deputy District Court Judge Julia Livesey's decision to throw out the Housing Department case, Chief Executive Donald Tsang Yam-kuen issued a rare 'executive order' regulating the use of covert surveillance by government departments. This was only the second time since the handover that such an order was issued. The first was an administrative order on issues regarding civil servants.
The executive order requires law enforcement agents - including but not limited to police, ICAC, customs and immigration officers - to seek approval from senior officers before embarking on covert surveillance operations.
Under the order, departments are required to draft their own guidelines on the use of such tactics and submit these to the Secretary for Security, Ambrose Lee Siu-kwong, for approval before using covert surveillance tactics.
The government argues that the 'legal procedures' requirement of Article 30 is satisfied by the executive order, but that it will also introduce legislation in due course. It denies circumventing the Executive and Legislative Councils, saying this is not law and thus does not need Exco or Legco approval.
If Mr Tsang expected to be roundly congratulated for his quick action, he was disappointed. While there was praise for the swift reaction from pro-government quarters, many delivered a stinging rebuke.
The Article 45 Concern Group described the move as dangerous, saying it was worse than the proposed national security laws under Article 23 of the Basic Law, because at least those were legislative proposals, whereas this was an executive decree on a matter involving fundamental human rights. The Bar Association and Law Society joined the criticism, refuting the claim that the order qualified as 'legal procedure'.
Proclaiming himself 'Hong Kong's most prominent protester', Long Hair two weeks ago filed for a judicial review seeking to have the executive order quashed. He is also seeking for the chief executive to be mandated by the court to bring into force an Interception of Communications bill passed in 1997 but never brought into force.
University of Hong Kong associate law professor Simon Young says in an article to be published in this month's Hong Kong Law Journal that the order 'served more to cause unnecessary public concern and legal uncertainty than to clarify the law'.
'This is a classic example of wanting to suck and blow at the same time,' he writes. 'The government would like to have it both ways: on the one hand, to allay the public concern by minimising the legal effect of the order but, on the other, to claim it is of sufficient legality to overcome constitutional challenge.'
Professor Young argues that Judge Sweeney and Deputy Judge Livesey 'consistently contemplated that nothing short of legislation could pass constitutional scrutiny under Article 30'.
'It seems difficult to justify in the face of these two strongly worded judicial rulings the issuance of an executive order that gives law enforcement false confidence in the constitutional firmity of their actions.'
But security chief Mr Lee stresses that law enforcement agencies need to use covert surveillance to combat crime and an executive order qualifies as 'legal procedure', at least in the interim, while a law is being drafted, debated and passed. 'The executive order simply gives a clearer legal basis for existing policy on surveillance and makes it more transparent,' he says.
Mr Lee says the Interception of Communications Ordinance has serious deficiencies and will hinder the fight against crime. He also says that a new law would be complex, as it would have to cover not just law enforcement agencies, but the private sector as well - including the media.
Not surprisingly, the Hong Kong Journalists' Association is displeased with the government's decision to bring attempts to regulate the media into the controversy. 'We object to the legislation to govern our investigative activities,' says Lo King-wah, press freedom subcommittee chairman for the group. 'Our position is that it may be very dangerous and have a negative effect on press freedom. We already have personal data privacy laws which cover us and that is enough.'
A conspiracy theory is advanced by some that by including the media, the government intends to make the proposals so controversial that the executive order's life can be lengthened.
Meanwhile, the government will argue its case in a judicial review next month against Deputy Judge Livesey's decision. Li Man-tak is also appealing against his conviction and further arguments on the admissibility of the evidence covertly obtained against him are expected.
Mr Woo, the privacy chief, has also expressed concern about the executive order and says he is making enquiries about it. Legislator Mr To, who spearheaded the Interception of Communications Bill, says he reserves the right to take his own legal action against the government for not bringing the law into force.
In a Democratic Party survey of 500 people, more than half thought law enforcers should get court approval before doing phone taps or covert surveillance. About half were opposed to authorities 'policing themselves'.
Law Society president Peter Lo Chi-lik agrees. 'Starting with the premise that the Basic Law recognises that the government is entitled to inspect communication under Article 30, the question is really how to strike a balance with the right to privacy,' Mr Lo says.
Mr Lo says it is important to note that unlawfully obtained information can still be used as evidence under common law unless the judge in a case rules it would be unfair to the defendant. 'My view is that we should devise a new system under Article 30 and spell out what should or should not be done in such cases,' he says.
As the government and rights activists await the hashing out of legal arguments in court, one thing is for certain: Hong Kong people are no longer content with having their rights at the mercy of law enforcement agents or the government. Many in the legal and human rights community see the case going all the way to the Court of Final Appeal to strike a balance.