Is our expectation of privacy being diminished?

Recent events highlight the importance of ground rules that protect everyone

PUBLISHED : Tuesday, 03 December, 2013, 4:33am
UPDATED : Tuesday, 03 December, 2013, 5:05am

A person's "reasonable expectation of privacy" in today's Hong Kong appears to be under threat. American intelligence whistle-blower Edward Snowden told us how easy it is for our most personal communications to be the subject of surveillance.

Recently, this paper disclosed that Hong Kong police in a single year carried out twice the number of stop and searches recorded in New York and London combined. A consultation proposes another warrantless police power to test individuals for drug use, which could be used as evidence of drug consumption, punishable by up to seven years in prison.

One might also think that our population density is such we cannot expect much privacy from families, neighbours or even strangers in public. Does this reduce the degree of privacy we all reasonably expect?

Reasonable expectation of privacy is an important legal concept used by courts to determine when our constitutional right to privacy is engaged. If there is no reasonable expectation there is no privacy right to speak of. Our 2006 surveillance law also uses the concept to define "covert surveillance", requiring legal authorisation. But it is an undeveloped concept in our legal system. Reference to it can only be found in eight Hong Kong judgments, compared to the 81 times the Supreme Court of Canada has considered it.

Given its constitutional significance, some basic ground rules should be highlighted.

First, just because governments can and have snooped does not diminish our privacy expectation. It begs the question of constitutionality. We assess our expectation not from the standpoint of a surveillance state but that of a free society with democratic expectations.

Second, the fact evidence of a crime is captured does not diminish the reasonable expectation of privacy of those involved or anyone else - it cannot be assessed "after the fact" but needs to be done objectively based on the totality of the circumstances.

Third, reasonable expectations can vary with the nature of the privacy interest and form of interference. For example, we might have limited expectation of keeping our belongings free from the noses of family members, but we certainly would have a high expectation that the state would not video-record activities in our home. Our Court of Appeal has held that we have a reasonable expectation of privacy in our workplace, even if the employer is the government and working with law enforcement agents.

Finally, interference in places where we have high expectation of privacy need strong justification and safeguards. For searches of homes and computers and the taking of biological samples, the norm should be pre-authorisation by an impartial judicial officer on the basis of reasonable grounds and sworn information.

Professor Simon Young Ngai-man is a practising barrister who teaches criminal law at the University of Hong Kong