Surveillance malpractices need to be addressed, but not criminalized
Updated: 2009-12-10 07:36
(HK Edition)
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HONG KONG: In his surprisingly explosive remarks at a press conference Monday, Justice Woo Kwok-hing, the commissioner on Interception of Communications and Surveillance, lashed out at the anti-graft body and police, in the wake of the appalling findings contained in the surveillance commissioner's yearly report, concerning breaches over the past year.
The vocal top-judge-turned-commissioner criticized the 11 unauthorized and improper investigations during covert operations by our law-enforcement agencies in the past 12 months.
Among the irregularities, blunders in covert surveillance cases are alarming. In a case where the check of a telephone number proved faulty, a man was wrongly mistaken for a female suspect during a 4-day phone-tap.
More dauntingly, the responses and disciplinary actions by the Independent Commission Against Corruption angered Justice Woo, despite the apology by the commission. As pointed out by Justice Woo, the replies and explanation by commissioner Timothy Tong Hin-ming were far from satisfactory. We respect his role as our watchdog over any breaches and abuses in covert surveillance as shown by the 11 irregularities in the report.
At present, unauthorized bugging and surveillance breaches by the police and graft busters can only face internal sanctions within the government or censure by the Chief Executive.
In defiance of Justice Woo's criticism, some of his critics lashed out, saying the judge exceeded his authority in demanding the removal of an ICAC investigation officer. Justice Woo is duty-bound to uncover shortcomings in covert operations. But it is not within his jurisdiction to pass judgment on personnel appointments but that of the administration.
However, I support any action helping to ensure appropriate and fair handling of internal discipline. Whenever the findings of breaches are substantiated, the Chief Executive should ensure that the anti-graft body is properly and fairly managed, not at the expense of human rights and privacy.
It is unwise to see the watchdog for surveillance diminished to the point of its becoming a toothless tiger. But given the existing clout of covert operations, we understand the frustration and anger of Justice Woo.
In the debate over the power of the watchdog for surveillance, a court ruling by the Supreme Court of Canada last year over the power entitled to its privacy commissioner was drawn into the comparison.
The legal query was provided in a legal advice from the Department of Justice. The Canadian privacy commissioner was barred from dealing in intercepted materials. But Woo said the case had no binding power in Hong Kong. However, he said that the power of the Interception of Communications and Surveillance Ordinance does not entitle him to listen to the covert recordings.
Should the watchdog be empowered with greater muscle?
The irregularities prompted calls that it be made a criminal offense for authorities to commit malpractices in covert monitoring of communications. This suggestion stirred up some discussion in the city. Protection of human rights and privacy should be upheld in balance with the requirements of law enforcement. We also cherish our government as a clean administration in a clean city. This valuable asset makes our city stand out from many other cities in the region. Authority and effectiveness of the graft busters over covert investigations bears the same weight for Hong Kong's rule of law.
For those who are concerned with the integrity of the anti-corruption body, establishing a criminal offences in response to surveillance breaches requires more thorough consideration. It is premature, for how can such an enactment ensure that covert operations are not hampered by the breach deterrent? Lau Kwong-wah of the Democratic Alliance for the Betterment and Progress of Hong Kong slashed the idea as he said, "It is unreasonable to criminalize surveillance breaches."
Too heavy-handed disciplinary actions and internal penalties for law-enforcement agencies might hurt the morale and vitality of the forces and serve to deter proper covert investigations. We respect Woo as the guard dog who expresses his concerns. But we also cherish the integrity of the anti-graft body.
As Secretary for Security Ambrose Lee said, a review of the ordinance is underway and will be ready by the middle of next year. We are looking forward to efforts by the government to review the issue and plug the loopholes in future.
The author is a political commentator
(HK Edition 12/10/2009 page1)