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
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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,
namely,
(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.
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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.
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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
security.
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