Plea to protect lawyer-client privilege

PUBLISHED : Friday, 17 March, 2006, 12:00am
UPDATED : Friday, 17 March, 2006, 12:00am

Legislators say they have reservations over proposed new surveillance operations that could intrude on law firms

Law enforcement agencies would have to get court approval before launching any covert surveillance that could compromise legal professional privilege, legislators heard yesterday.

But they were unconvinced that a planned new law should allow breaches of lawyer-client confidentiality under any circumstances.

Covert surveillance became an issue last year when a court threw out a bribery case after finding that wiretaps used by the Independent Commission Against Corruption violated legal privilege and was unconstitutional.

The government had proposed that any request for surveillance which could result in obtaining information protected by legal professional privilege would have to be approved by judges.

This is compared with other types of surveillance where only the more intrusive ones, such as those involving the use of hidden devices, would need prior court approval.

But the lawmakers on the Bills Committee on the Interception of Communications and Surveillance Bill expressed reservations about the proposals when they met the government yesterday.

'Don't touch legal professional privilege,' urged Alan Leong Kah-kit, a legislator from the Article 45 Concern Group.

'There are many other ways to obtain information and please turn the recorders off when the target enters a law firm.'

Fellow lawmakers Margaret Ng Ngoi-yee and Ronny Tong Ka-wah also expressed concern, with Mr Tong saying that Article 35 of the Basic Law gives people the right to have confidential legal advice.

Mr Tong also believed the public would be concerned if they thought lawyer-client privilege would be affected by the new covert surveillance applications.

The privacy of lawyer-client communication is protected by legal professional privilege, unless the prosecuting authority has strong grounds to show that it is part of a criminal enterprise or the client involved agrees to waive it.

The government said yesterday that the privilege was not absolute and permission to launch such surveillance would be granted only if the court was satisfied the exceptions applied.

The lawmakers studying the proposed bill also objected to government plans to subject judges to an integrity audit process before appointing them to the panel that will grant surveillance permission.

Emily Lau Wai-hing pointed out that under the proposals, the judges would have to go through tougher vetting procedures than for the appointment of the chief justice.

Legal constituency lawmaker Ms Ng said she knew of some judges who had reservations about the proposals.

Permanent Secretary for Security Stanley Ying Yiu-hong said caution was needed as the appointed judges would be required to handle sensitive information from different law enforcement agencies.