This is an HTML version of an attachment to the Freedom of Information request 'Procedure for applying to the Commissioner for an examination under Section 43 of the Ordinance'.

Interception of Communications and Surveillance Ordinance 
A Guide on Application for Examination 
The law 
1.           The  Interception  of  Communications and Surveillance Ordinance, 
Cap 589 (‘the Ordinance’) was passed in August 2006, putting the activities 
of interception of communications (‘interception’) and covert surveillance by 
officers of four law enforcement agencies (‘LEAs’), namely, Customs and 
Excise Department, Hong Kong Police Force and Independent Commission 
Against Corruption regarding interception, and the same departments plus 
Immigration Department regarding covert surveillance, under a statutory 
framework, and the Commissioner on Interception of Communications and 
Surveillance (‘the Commissioner’) was appointed as the oversight and review 
authority of such activities.    An LEA and its officers can only lawfully carry 
out interception or covert surveillance on anybody where such activity is 
authorized by a prescribed authorization. 
2.            Under section 43 of the Ordinance, a person can apply in writing to 
the Commissioner for an examination if he/she suspects that he/she is the 
subject of any interception or covert surveillance activity carried out by any 
officer of an LEA. Pursuant to section 44, upon receiving an application, the 
Commissioner shall, save where the circumstances set out in section 45 apply 
(see below), carry out an examination to determine: 
(a)      whether or not the suspected interception or covert surveillance has 
taken place; and 
(b)      if so, whether or not such interception or covert surveillance has 
been carried out by an officer of an LEA without the authority of a 
prescribed authorization.   
3.           After  the  examination,  if the Commissioner finds the case in the 
applicant’s favour, he will, subject to certain provisions of the Ordinance, 
notify the applicant concerned and invite him/her to confirm whether he/she 
wishes to seek an order for the payment of compensation by the Government, 
and if so, to make written submissions for that purpose.  The submissions 
- 1 - 

will be taken into account by the Commissioner in considering the award of 
compensation to the applicant. 
Grounds for not carrying out an examination   
4.           Under section 45(1) of the Ordinance, the Commissioner may refuse 
to carry out an examination if he considers that: 
(a)      the application is received by him more than one year after the last 
occasion on which the suspected interception or covert surveillance 
is alleged to have taken place; 
(b)      the application is made anonymously;   
(c)      the applicant cannot be identified or traced after the use of 
reasonable efforts; or 
(d)      the application is frivolous or vexatious or is not made in good faith. 
5.           Where before or in the course of an examination, the Commissioner 
is satisfied that any relevant criminal proceedings are pending or are likely to 
be instituted, section 45(2) mandates the Commissioner not to carry out the 
examination or proceed with the carrying out of the examination until the 
criminal proceedings have been finally determined or finally disposed of or 
until they are no longer likely to be instituted.  Relevant  criminal 
proceedings, as defined under section 45(3), are those where the interception 
or covert surveillance alleged in the application for examination is or may be 
relevant to the determination of any question concerning any evidence which 
has been or may be adduced in those proceedings. 
Other application requirements 
6.           It is only when the proper basis of an application is satisfied that the 
Commissioner is entitled to institute the process of his examination of the 
case.  The proper basis is to satisfy both of the following requirements, 
(a)      there is suspicion of interception or covert surveillance that has been 
carried out against the applicant; and 
(b)      the suspected interception or covert surveillance is suspected to have 
been carried out by one or more of the officers of the LEAs. 
- 2 - 

7.           Regarding requirement (a), that a complainant was surreptitiously or 
openly observed or followed by officers of an LEA would normally not 
satisfy the proper basis for an application for examination, because the matter 
complained of is not an interception and it does not qualify as a covert 
surveillance under the Ordinance because there was no suspicion of any 
surveillance device being used Note.  For the Commissioner to initiate an 
examination, the devices suspected to be used by the officers of the LEAs 
must be of the type which would constitute a covert surveillance, namely, 
data surveillance device, listening device, optical surveillance device or 
tracking device.   
8.        As regards requirement (b), the suspected interception or covert 
surveillance must be carried out by an LEA officer, not for example the 
employer of the complainant. 
9.           In addition, as the Ordinance came into force on 9 August 2006, any 
interception or covert surveillance activity which has or is alleged to have 
occurred before the implementation of the Ordinance is not within the ambit 
of the Commissioner’s functions. 
Disclosure of reasons for determination not allowed 
10.           In performing his examination functions, amongst others, under the 
Ordinance, the Commissioner shall take heed not to divulge any information 
the disclosure of which may prejudice the prevention or detection of crime or 
the protection of public security.  For instance, the Commissioner is not 
allowed to disclose to an unsuccessful applicant the reason why he has 
reached the determination of finding not in favour of the applicant’s case 
[section 46(4)(a)], meaning that the application is not successful, or even 
indicate whether any interception or covert surveillance alleged has taken 
place  [section  46(4)(c)].  This  statutory prohibition is designed to forbid the 
Note      According to section 2 of the Ordinance, covert surveillance means any surveillance carried 
out with the use of any surveillance device if the surveillance is carried out in circumstances 
where the subject of the surveillance is entitled to a reasonable expectation of privacy, that it 
is carried out in a manner calculated to ensure that the subject is unaware that the surveillance 
is or may be taking place, and that it is likely to result in the obtaining of any private 
information about the subject.  Surveillance device means a data surveillance device, a 
listening device, an optical surveillance device or a tracking device or a device that is a 
combination of any two or more of such devices.    Any surveillance which does not satisfy 
the above criteria is not covert surveillance under the Ordinance. 
- 3 - 

disclosure of any sensitive and secret information as mentioned above, thus 
preventing the provision of an advantage to criminals or possible criminals 
over the LEAs in the latter’s efforts in fighting crimes and in protecting the 
safety of the community in Hong Kong.   
How to apply for an examination under section 43 
11.           If you suspect that you are the subject of any interception or covert 
surveillance activity that has been carried out by officers of one or more of 
the LEAs under the Ordinance, you may apply to the Commissioner for an 
examination.  Your application is to be made personally in writing.  In so 
doing, you should give a full account of your case and send your application 
letter together with the duly completed Consent Form on the use of personal 
data to the Commissioner’s office at Units 1501 - 1504, 15/F, Sunlight 
Tower, 248 Queen’s Road East, Wanchai, Hong Kong. 
Procedure involved in handling an application for examination 
12.           If the Commissioner considers that an examination in respect of an 
application should be conducted, the Commissioner’s office will make 
enquiries with the particular LEA who, as the applicant alleges, has carried 
out either interception or covert surveillance against the applicant as to 
whether any such statutory activity has taken place and if so, the reason 
why.  Enquiries will also be made with the Panel Judges’ Office as to 
whether any authorization has been granted by any panel judge for the 
particular LEA to carry out any such activity and if so, the grounds for so 
doing.  Enquiries with other parties and other investigations will be pursued 
if that may help obtain evidence regarding the existence or otherwise of any 
such alleged statutory activity.  The results obtained from various channels 
will be compared and counterchecked to ensure correctness.  Other than the 
information given above, it is undesirable to disclose more details about the 
methods used for the examination of applications or about the examinations 
undertaken, because that would probably divulge information that may 
prejudice the prevention or detection of crime or the protection of public 
- 4 -