Watchdog chief suspicious on destruction of material

PUBLISHED : Tuesday, 17 February, 2009, 12:00am
UPDATED : Tuesday, 17 February, 2009, 12:00am

ICAC admits some of its officers behaved unprofessionally

The head of Hong Kong's covert surveillance watchdog yesterday voiced suspicions over the ICAC's destruction of material recording a possible breach of legal professional privilege.

He did so as the graft-buster admitted some of its officers had been unprofessional in the operations.

Lawmakers said that the incidents, disclosed in the watchdog's annual report last week, could have shown a lack of respect for the rule of law by law enforcement agencies.

While expressing praise for the ICAC for a perceived improvement in its handling of tapping materials required for his inspection, Mr Justice Woo Kwok-hing, the commissioner on interception of communications and surveillance, said the improved arrangements 'don't dispel my unhappiness in what happened in the first two cases'.

In the report, the commissioner highlighted one case in February 2007, in which a phone tap by the ICAC of a lawyer-client conversation ended 105 minutes after the authorisation was revoked. When the commissioner made inquiries, he was told that some relevant records had been destroyed as a matter of policy.

In another case, an ICAC listener had not reported a call involving legal professional privilege information to the supervisor, and continued to listen to more than 20 other calls until the tapping operation ceased. The summaries of the operation were destroyed as well, without explanation, the day after the commissioner inquired about them.

'As a lawyer, I do not guess what the motive was. My conclusion is simple as there wasn't sufficient evidence to prove there was deliberate flouting of the law, or deliberate destruction to avoid my detection,' said Mr Justice Woo. 'I follow the criminal standard to prove beyond reasonable doubt. I have suspicions but I am not sure,' he added.

The report prompted lawmakers' questions during a security panel meeting yesterday centred on the ICAC's attitude and respect for the rule of law. They also said the cases showed the ICAC appeared to have disregarded Mr Justice Woo's authority and had gone ahead with destruction of material. They added that the report justified their concerns during legislation that the current system did not grant a special panel of judges - who vet applications for surveillance - sufficient authority to keep check of enforcement agencies.

Civic Party lawmaker Ronny Tong Ka-wah described the incidents as 'an open challenge to the rule of the law', while Democratic Party chairman Albert Ho Chun-yan said the report seemed to highlight an 'attitude problem'.

ICAC commissioner Timothy Tong Hin-ming said that if there had been any undermining of public confidence in the agency, it was because of 'mixed messages' arising from the report. He therefore cherished the opportunity to give an explanation.

'I feel that after offering our explanation, the public will not have any adverse impression of the ICAC,' he said.

Director of Investigation Ryan Wong Sai-chiu said it was important to the work of the ICAC that it had the public's support.

Ng Ping-kwok, acting assistant director of operations, said: 'I can assure everyone we absolutely do not have this mentality [of wanting to cover up].'

The graft-buster said it regretted the way certain ICAC officers had conducted themselves in the circumstances, and they had been penalised.

Solicitor General Ian Wingfield said that while the Department of Justice maintained its view that panel judges had no inherent right to revoke authorisation, 'there is no question of us ignoring the views of the panel judges'.

However, having heard the ICAC respond yesterday, legal sector lawmaker Margaret Ng Ngoi-yee said she remained to be convinced the agency would change its attitude.