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Covert surveillance legislation does not meet Basic Law requirements: experts

Snooping operations by law enforcement agencies will remain open to constitutional challenges even after the covert surveillance bill is passed, legal experts warned yesterday.

The warning came ahead of the expected endorsement of the controversial bill by the Legislative Council on Wednesday.

The democratic camp has decided to vote against the bill in the absence of a sunset clause. But its opposition is unlikely to sway the outcome of the voting as it has only 25 of the 60 votes in the legislature.

The legal experts say the limited scope of the bill means it does not entirely fulfil the requirements of the Basic Law. The legislation covers only interception of communication and covert surveillance through the use of devices. It does not regulate intrusions upon privacy through means such as the use of undercover agents.

Article 30 of the Basic Law states that the freedom and privacy of communication cannot be infringed except in accordance with legal procedures.

High Court judge Mr Justice Michael Hartmann ruled in February that this meant the government had to legislate to regulate the use of covert surveillance intruding upon this right.

Bar Association chairman Philip Dykes said that unless the bill was comprehensive, the government would still have the same problems it faced in its absence.

'If the constitutional obligation is to legislate [for] all forms of surveillance and they only legislate for some, they've still got the same problem,' he said.

Law Society president Peter Lo Chi-lik said it was arguable whether undercover operations would breach Article 30 - it would depend  on the interpretation of 'infringement' and 'communication'.

University of Hong Kong associate law professor Simon Young said there would 'absolutely be many other challenges' to the government's surveillance law,  but added that interception by devices 'is probably more intrusive than other forms'.

'This bill is not the final word on the law in this area,' he said.

'There will be challenges in the court and that would provide a very principled, strict set of rules in accordance with constitutional standards.'

Professor Young said this kind of 'dialogue between the courts and the legislature' was more meaningful than the sunset clause demanded by the democratic camp.

Defending the bill, Permanent Secretary for Security Stanley Ying Yiu-hong said the legislation was intended to cover only operations by public officials, and the government had always maintained there would be another law to implement other aspects of Article 30.

'It depends on your analysis of what is the privacy of communication that should be protected under Article 30,' Mr Ying said.

'If you look at the Law Reform Commission reports, in the forms of intrusion subject to criminal offences you will see a focus on the use of devices.

'Surveillance by [people other than law enforcement officers] will have to be the subject of another exercise taking forward the recommendations of the Law Reform Commission report.'



Snooping bill 'won't end legal challenges'