Basic Law

Does liaison office have immunity from criminal investigation?

Numerous city laws, such as on privacy, not binding on central government's representatives

PUBLISHED : Sunday, 19 May, 2013, 12:00am
UPDATED : Sunday, 19 May, 2013, 5:55am

Hong Kong has more than a dozen laws that are not binding on the central government's liaison office or other representatives of Beijing, such as legislation on personal privacy and the environment.

Pan-democratic lawmakers point to difficulties in enforcement, despite a Basic Law stipulation that all personnel of Beijing in Hong Kong shall obey the city's laws and co-operate with any criminal inquiry.

So is the liaison office immune from criminal investigation? The question arose after it was drawn into the controversy over Timothy Tong Hin-ming's lavish spending on receptions and gifts for officials from the office and other mainland officials while head of the Independent Commission Against Corruption.

The liaison office is one of three agencies of the central government in Hong Kong, the others being the Hong Kong garrison of the People's Liberation Army and the Office of the Commissioner of the Ministry of Foreign Affairs.

The liaison office took over the role of representing the central authorities in the city from the Xinhua News Agency's office in Hong Kong, which was set up in 1947 and served as Beijing's de facto embassy in the city until June 1997.

Today, Xinhua still has its Asia-Pacific headquarters in Hong Kong, but has transferred its representative role to the liaison office, which was formed in 2000. Consular immunity also expired after reunification.

On Wednesday, the Department of Justice said that under Article 22 of the Basic Law, "all offices set up in Hong Kong by departments of the central government, or by other provinces and bodies directly under the central government, and their personnel shall abide" by the city's laws. That stipulation was applied in 2006, when a PLA officer, 27, was fined HK$1,000 for stealing a keychain at Hong Kong Disneyland.

Democratic Party chairwoman Emily Lau Wai-hing says applying the city's laws to mainland officers is more difficult than it seems.

In 1998, Xinhua came under investigation by the privacy commissioner for failing to respond in time to Lau's demand to see any files it had on her. When the agency asked whether it could claim exemption from the city's laws, the government said it was not a consular mission and consular immunity did not apply.

But the government decided not to pursue the matter either, Lau noted, because the Personal Data (Privacy) Ordinance was among 17 laws that made no mention of their binding effect on Beijing's offices. Other laws that fall into that category, according to a Legislative Council bills committee report, concern discrimination based on sex, disability or family status; patents and registered designs; occupational safety; and dumping at sea.

Legco's legal panel also indicated last month that the administration was studying whether 11 ordinances could be applied to Beijing's offices.

"Isn't it ridiculous?" Lau asked. "The government says it is still discussing with Beijing whether the privacy ordinance applies. It's just leaving the matter in limbo."