An Ordinance to regulate the conduct of interception of communications and the use of surveillance devices by or on behalf of public officers and to provide for related matters.
[9 August 2006]
(Format changes—E.R. 7 of 2020)
(Enacting provision omitted—E.R. 7 of 2020)
This Ordinance may be cited as the Interception of Communications and Surveillance Ordinance.
In this Ordinance, unless the context otherwise requires—
address (地址), in relation to a communication transmitted by a postal service, includes a postal box address; authorizing officer (授權人員), in relation to any department, means any officer designated under section 7 by the head of the department to be an authorizing officer; code of practice (實務守則) means the code of practice issued under section 63; Commissioner (專員) means the Commissioner on Interception of Communications and Surveillance appointed under section 39; communication (通訊) means— (a)any communication transmitted by a postal service; or (b)any communication transmitted by a telecommunications system; communication transmitted by a postal service (藉郵政服務傳送的通訊) includes a postal article; conduct (行為) includes any act or omission, and any series of acts or omissions or of acts and omissions; conveyance (運輸工具) means any vehicle, vessel, aircraft, hovercraft or other conveyance; copy (文本)— (a)in relation to any contents of a communication that have been obtained pursuant to a prescribed authorization for interception, means any of the following (whether or not in documentary form)—(i)any copy, extract or summary of such contents;(ii)any record referring to the interception which is a record showing, directly or indirectly, the identity of any person who is the sender or intended recipient of the communication; or (b)in relation to any material that has been obtained pursuant to a prescribed authorization for covert surveillance, means any of the following (whether or not in documentary form)—(i)any copy, extract or summary of the material;(ii)any transcript or record made of the material; court (法院), without prejudice to sections 6(4) and 55— (a)means a court as defined in section 3 of the Interpretation and General Clauses Ordinance (Cap. 1); and (b)includes a magistrate and a tribunal; covert surveillance (秘密監察)— (a)means any surveillance carried out with the use of any surveillance device for the purposes of a specific investigation or operation, if the surveillance—(i)is carried out in circumstances where any person who is the subject of the surveillance is entitled to a reasonable expectation of privacy;(ii)is carried out in a manner calculated to ensure that the person is unaware that the surveillance is or may be taking place; and(iii)is likely to result in the obtaining of any private information about the person; but (b)does not include—(i)any spontaneous reaction to unforeseen events or circumstances; and(ii)any such surveillance that constitutes interception under this Ordinance; data surveillance device (數據監察器材)— (a)means any device or program used to monitor or record the input of information into, or the output of information from, any information system by electronic means; but (b)does not include an optical surveillance device; department (部門)— (a)in relation to interception (including any application for the issue or renewal of a prescribed authorization for interception, any prescribed authorization for interception and any other matter relating to interception), means a department specified in Part 1 of Schedule 1; (b)in relation to covert surveillance (including any application for the issue or renewal of a prescribed authorization for covert surveillance, any prescribed authorization for covert surveillance and any other matter relating to covert surveillance), means a department specified in Part 2 of Schedule 1; or (c)in relation to any other matter provided for in this Ordinance, means a department specified in Part 1 or 2 of Schedule 1; device (器材) includes any instrument, apparatus and equipment; device retrieval warrant (器材取出手令) means a device retrieval warrant issued under section 34 and, where the context requires, includes— (Amended 21 of 2016 s. 3) (a)a device retrieval warrant to be issued under that section; and (b)a device retrieval warrant that has been partially revoked under section 38A; (Amended 21 of 2016 s. 3) directorate officer (首長級人員) means an officer not below a rank equivalent to that of chief superintendent of police; emergency authorization (緊急授權) means an emergency authorization issued under Division 4 of Part 3 and, where the context requires, includes— (Amended 21 of 2016 s. 3) (a)an emergency authorization to be issued under that Division; and (b)an emergency authorization that has been partially revoked under Part 5; (Amended 21 of 2016 s. 3) enhancement equipment (增強設備), in relation to a device, means any equipment used to enhance a signal, image or other information obtained by the use of the device; examination (審查) means an examination (including consideration of the application for the examination) carried out under Division 3 of Part 4 (and, where the context requires, includes such an examination to be carried out under that Division); executive authorization (行政授權) means an executive authorization issued or renewed under Division 3 of Part 3 and, where the context requires, includes— (Amended 21 of 2016 s. 3) (a)an executive authorization to be issued or renewed under that Division; and (b)an executive authorization that has been partially revoked under Part 5; (Amended 21 of 2016 s. 3) function (職能) includes power and duty; head (首長), in relation to a department, includes any deputy head of the department; information system (資訊系統) has the meaning assigned to it by section 2(1) of the Electronic Transactions Ordinance (Cap. 553); inspect (查察) includes listen to, monitor and record; install (裝設) includes attach; intercepting act (截取作為), in relation to any communication, means the inspection of some or all of the contents of the communication, in the course of its transmission by a postal service or by a telecommunications system, by a person other than its sender or intended recipient; interception (截取)— (a)in relation to any communication, means the carrying out of any intercepting act in respect of that communication; or (b)when appearing in a context with no specific reference to any communication, means the carrying out of any intercepting act in respect of any communication; interception product (截取成果) means any contents of a communication that have been obtained pursuant to a prescribed authorization for interception, and includes a copy of such contents; journalistic material (新聞材料) has the meaning assigned to it by section 82 of the Interpretation and General Clauses Ordinance (Cap. 1); judge’s authorization (法官授權) means a judge’s authorization issued or renewed under Division 2 of Part 3 and, where the context requires, includes— (Amended 21 of 2016 s. 3) (a)a judge’s authorization to be issued or renewed under that Division; and (b)a judge’s authorization that has been partially revoked under Part 5; (Amended 21 of 2016 s. 3) listening device (監聽器材)— (a)means any device used to overhear, listen to, monitor or record any conversation or words spoken to or by any person in conversation; but (b)does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment; maintain (維修), in relation to a device, includes— (a)adjust, reposition, repair or service the device; and (b)replace the device when it is faulty; optical surveillance device (視光監察器材)— (a)means any device used to record visually or observe any activity; but (b)does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome the impairment; oral application (口頭申請) means an oral application made under section 25(1); panel judge (小組法官) means a judge appointed under section 6(1) to be a panel judge; postal article (郵遞品) has the meaning assigned to it by section 2(1) of the Post Office Ordinance (Cap. 98); postal interception (郵件截取) means interception of any communication transmitted by a postal service; postal service (郵政服務) means postal service to which the Post Office Ordinance (Cap. 98) applies; premises (處所) includes any place and, in particular, includes— (a)any land or building; (b)any conveyance; (c)any structure (whether or not movable or offshore); and (d)any part of any of the premises described in paragraph (a), (b) or (c); prescribed authorization (訂明授權) means a judge’s authorization, an executive authorization or an emergency authorization; protected product (受保護成果) means any interception product or surveillance product; public place (公眾地方)— (a)means any premises which are a public place as defined in section 2(1) of the Summary Offences Ordinance (Cap. 228); but (b)does not include any such premises that are intended for use by members of the public as a lavatory or as a place for taking a bath or changing clothes; public security (公共安全) means the public security of Hong Kong; relevant authority (有關當局)— (a)in relation to an application for the issue or renewal of a judge’s authorization, means the panel judge to whom the application is or has been made; (b)in relation to an application for the issue or renewal of an executive authorization, means the authorizing officer to whom the application is or has been made; or (c)in relation to an application for the issue of an emergency authorization, means the head of a department to whom the application is or has been made; relevant purpose (有關目的), in relation to a prescribed authorization, means the purpose sought to be furthered by carrying out the interception or covert surveillance concerned as described in section 3 for the purpose of the issue or renewal, or the continuance, of the prescribed authorization; relevant requirement (有關規定) means any applicable requirement under— (a)any provision of this Ordinance; (b)the code of practice; or (c)any prescribed authorization or device retrieval warrant concerned; serious crime (嚴重罪行) means any offence punishable— (a)in relation to the issue or renewal, or the continuance, of a prescribed authorization for interception, by a maximum penalty that is or includes a term of imprisonment of not less than 7 years; or (b)in relation to the issue or renewal, or the continuance, of a prescribed authorization for covert surveillance, by a maximum penalty that is or includes—(i)a term of imprisonment of not less than 3 years; or(ii)a fine of not less than $1,000,000; surveillance device (監察器材) means— (a)a data surveillance device, a listening device, an optical surveillance device or a tracking device; (b)a device that is a combination of any 2 or more of the devices referred to in paragraph (a); or (c)a device of a class prescribed by regulation made under section 66 for the purposes of this definition; surveillance product (監察成果) means any material obtained pursuant to a prescribed authorization for covert surveillance, and includes a copy of the material; telecommunications interception (電訊截取) means interception of any communication transmitted by a telecommunications system; telecommunications service (電訊服務) has the meaning assigned to it by section 2(1) of the Telecommunications Ordinance (Cap. 106); telecommunications system (電訊系統) has the meaning assigned to it by section 2(1) of the Telecommunications Ordinance (Cap. 106); tracking device (追蹤器材) means any electronic device used to determine or monitor the location of any person or any object or the status of any object; Type 1 surveillance (第1類監察) means any covert surveillance other than Type 2 surveillance; Type 2 surveillance (第2類監察), subject to subsections (3) and (4), means any covert surveillance that— (a)is carried out with the use of a listening device or an optical surveillance device by any person for the purpose of listening to, monitoring or recording words spoken or activity carried out by any other person, if the person using the device—(i)is a person by whom the other person intends, or should reasonably expect, the words or activity to be heard or seen; or(ii)listens to, monitors or records the words or activity with the consent, express or implied, of a person described in subparagraph (i); or (b)is carried out with the use of an optical surveillance device or a tracking device, if the use of the device does not involve—(i)entry onto any premises without permission; or(ii)interference with the interior of any conveyance or object, or electronic interference with the device, without permission.For the purposes of this Ordinance, a person is not regarded as being entitled to a reasonable expectation of privacy within the meaning of paragraph (a)(i) of the definition of covert surveillance in subsection (1) in relation to any activity carried out by him in a public place, but nothing in this subsection affects any such entitlement of the person in relation to words spoken, written or read by him in a public place.
For the purposes of this Ordinance, any covert surveillance which is Type 2 surveillance under the definition of Type 2 surveillance in subsection (1) is regarded as Type 1 surveillance if it is likely that any information which may be subject to legal professional privilege will be obtained by carrying it out.
An officer of a department may apply for the issue or renewal of a prescribed authorization for any Type 2 surveillance as if the Type 2 surveillance were Type 1 surveillance, and the provisions of this Ordinance relating to the application and the prescribed authorization apply to the Type 2 surveillance as if it were Type 1 surveillance.
For the purposes of this Ordinance—
a communication transmitted by a postal service is regarded as being in the course of the transmission if it is regarded as being in course of transmission by post under section 2(2) of the Post Office Ordinance (Cap. 98); and
a communication transmitted by a telecommunications system is not regarded as being in the course of the transmission if it has been received by the intended recipient of the communication or by an information system or facility under his control or to which he may have access, whether or not he has actually read or listened to the contents of the communication.
For the purposes of this Ordinance, the contents of any communication transmitted by a telecommunications system include any data produced in association with the communication.
For the purposes of this Ordinance, advocacy, protest or dissent (whether in furtherance of a political or social objective or otherwise), unless likely to be carried on by violent means, is not of itself regarded as a threat to public security.
For the purposes of this Ordinance—
an application is regarded as being made orally if it is made orally in person or made by telephone, video conferencing or other electronic means by which words spoken can be heard (whether or not any part of the application is made in writing);
information is regarded as being provided orally if it is provided orally in person or provided by telephone, video conferencing or other electronic means by which words spoken can be heard (whether or not any part of the information is provided in writing); and
a determination (including the issue of a prescribed authorization or a renewed prescribed authorization and the giving of any reason) is regarded as being delivered orally if it is delivered orally in person or delivered by telephone, video conferencing or other electronic means by which words spoken can be heard (whether or not any part of the determination is delivered in writing).
In this Ordinance, the conditions for the issue or renewal of a prescribed authorization, or the continuance of a prescribed authorization or a part of a prescribed authorization, are that, in the circumstances of the particular case— (Amended 21 of 2016 s. 4)
the purpose sought to be furthered by carrying out the interception or covert surveillance concerned is that of—
preventing or detecting serious crime; or
protecting public security;
there is reasonable suspicion that any person has been, is, or is likely to be, involved in—
where the purpose sought to be furthered by carrying out the interception or covert surveillance is that specified in paragraph (a)(i), the particular serious crime to be prevented or detected; or
where the purpose sought to be furthered by carrying out the interception or covert surveillance is that specified in paragraph (a)(ii), any activity which constitutes or would constitute the particular threat to public security; and
the interception or covert surveillance is necessary for, and proportionate to, the purpose sought to be furthered by carrying it out, upon—
balancing the relevant factors against the intrusiveness of the interception or covert surveillance on any person who is to be the subject of or may be affected by the interception or covert surveillance;
considering whether the purpose sought to be furthered by carrying out the interception or covert surveillance can reasonably be furthered by other less intrusive means; and
considering such other matters that are relevant in the circumstances.
Subject to subsection (2), no public officer shall, directly or indirectly (whether through any other person or otherwise), carry out any interception.
Subsection (1) does not apply to—
any interception carried out pursuant to a prescribed authorization;
any interception of telecommunications transmitted by radiocommunications (other than the radiocommunications part of a telecommunications network for the provision of a public telecommunications service by any carrier licensee under the Telecommunications Ordinance (Cap. 106)); and
any interception authorized, permitted or required to be carried out by or under any enactment other than this Ordinance (including any interception carried out in the course of the execution of an order of a court authorizing the search of any premises or the seizure of any evidence).
Subject to subsection (2), no public officer shall, directly or indirectly (whether through any other person or otherwise), carry out any covert surveillance.
Subsection (1) does not apply to any covert surveillance carried out pursuant to a prescribed authorization.
The Chief Executive shall, on the recommendation of the Chief Justice, appoint 3 to 6 eligible judges to be panel judges for the purposes of this Ordinance.
A panel judge shall be appointed for a period of 3 years.
The Chief Executive may, on the recommendation of the Chief Justice, revoke the appointment of a panel judge for good cause.
In performing any of his functions under this Ordinance, a panel judge—
is not regarded as a court or a member of a court; but
has the same powers, protection and immunities as a judge of the Court of First Instance has in relation to proceedings in that Court.
Schedule 2 applies to and in relation to the procedures of, and other matters relating to, a panel judge.
A person previously appointed as a panel judge may from time to time be further appointed as such in accordance with the provisions of this Ordinance that apply to the appointment of a panel judge.
The head of a department may designate any officer not below a rank equivalent to that of senior superintendent of police to be an authorizing officer for the purposes of this Ordinance.
An officer of a department may apply to a panel judge for the issue of a judge’s authorization for any interception or Type 1 surveillance to be carried out by or on behalf of any of the officers of the department.
The application is—
to be made in writing; and
to be supported by an affidavit of the applicant which is to comply with the requirements specified in Part 1 or 2 of Schedule 3 (as may be applicable).
An application may not be made under subsection (1) unless the making of the application has been approved by a directorate officer of the department concerned.
Upon considering an application for the issue of a judge’s authorization made under section 8, the panel judge may, subject to subsection (2)—
issue the judge’s authorization sought under the application, with or without variations; or
refuse to issue the judge’s authorization.
The panel judge shall not issue the judge’s authorization unless he is satisfied that the conditions for its issue under section 3 have been met.
The panel judge shall deliver his determination under subsection (1) by—
in the case of subsection (1)(a), issuing the judge’s authorization in writing; or
in the case of subsection (1)(b), giving the reason for the refusal in writing.
A judge’s authorization—
takes effect at the time specified by the panel judge when issuing the judge’s authorization, which in any case is not to be earlier than the time when it is issued; and
subject to any renewal under this Division, ceases to have effect upon the expiration of the period specified by the panel judge when issuing the judge’s authorization, which in any case is not to be longer than the period of 3 months beginning with the time when it takes effect.
At any time before a judge’s authorization ceases to have effect, an officer of the department concerned may apply to a panel judge for the renewal of the judge’s authorization.
The application is—
to be made in writing; and
to be supported by—
a copy of the judge’s authorization sought to be renewed;
copies of all affidavits provided under this Part for the purposes of any application for the issue or renewal of the judge’s authorization, or for the purposes of any application made further to an oral application for confirmation of the judge’s authorization or its previous renewal; and
an affidavit of the applicant which is to comply with the requirements specified in Part 4 of Schedule 3.
An application may not be made under subsection (1) unless the making of the application has been approved by a directorate officer of the department concerned.
Upon considering an application for the renewal of a judge’s authorization made under section 11, the panel judge may, subject to subsection (2)—
grant the renewal sought under the application, with or without variations; or
refuse to grant the renewal.
The panel judge shall not grant the renewal unless—
he is satisfied that the conditions for the renewal under section 3 have been met; and
without limiting the generality of paragraph (a), he has taken into consideration the period for which the judge’s authorization has had effect since its first issue.
The panel judge shall deliver his determination under subsection (1) by—
in the case of subsection (1)(a), issuing the renewed judge’s authorization in writing; or
in the case of subsection (1)(b), giving the reason for the refusal in writing.
A judge’s authorization may be renewed more than once under this Ordinance.
A renewal of a judge’s authorization—
takes effect at the time when the judge’s authorization would have ceased to have effect but for the renewal; and
subject to any further renewal under this Division, ceases to have effect upon the expiration of the period specified by the panel judge when granting the renewal, which in any case is not to be longer than the period of 3 months beginning with the time when it takes effect.
An officer of a department may apply to an authorizing officer of the department for the issue of an executive authorization for any Type 2 surveillance to be carried out by or on behalf of any of the officers of the department.
The application is—
to be made in writing; and
to be supported by a statement in writing made by the applicant which is to comply with the requirements specified in Part 3 of Schedule 3.
Upon considering an application for the issue of an executive authorization made under section 14, the authorizing officer may, subject to subsection (2)—
issue the executive authorization sought under the application, with or without variations; or
refuse to issue the executive authorization.
The authorizing officer shall not issue the executive authorization unless he is satisfied that the conditions for its issue under section 3 have been met.
The authorizing officer shall deliver his determination under subsection (1) by—
in the case of subsection (1)(a), issuing the executive authorization in writing; or
in the case of subsection (1)(b), giving the reason for the refusal in writing.
An executive authorization—
takes effect at the time specified by the authorizing officer when issuing the executive authorization, which in any case is not to be earlier than the time when it is issued; and
subject to any renewal under this Division, ceases to have effect upon the expiration of the period specified by the authorizing officer when issuing the executive authorization, which in any case is not to be longer than the period of 3 months beginning with the time when it takes effect.
At any time before an executive authorization ceases to have effect, an officer of the department concerned may apply to an authorizing officer of the department for the renewal of the executive authorization.
The application is—
to be made in writing; and
to be supported by—
a copy of the executive authorization sought to be renewed;
copies of all statements provided under this Part for the purposes of any application for the issue or renewal of the executive authorization, or for the purposes of any application made further to an oral application for confirmation of the executive authorization or its previous renewal; and
a statement in writing made by the applicant which is to comply with the requirements specified in Part 4 of Schedule 3.
Upon considering an application for the renewal of an executive authorization made under section 17, the authorizing officer may, subject to subsection (2)—
grant the renewal sought under the application, with or without variations; or
refuse to grant the renewal.
The authorizing officer shall not grant the renewal unless—
he is satisfied that the conditions for the renewal under section 3 have been met; and
without limiting the generality of paragraph (a), he has taken into consideration the period for which the executive authorization has had effect since its first issue.
The authorizing officer shall deliver his determination under subsection (1) by—
in the case of subsection (1)(a), issuing the renewed executive authorization in writing; or
in the case of subsection (1)(b), giving the reason for the refusal in writing.
An executive authorization may be renewed more than once under this Ordinance.
A renewal of an executive authorization—
takes effect at the time when the executive authorization would have ceased to have effect but for the renewal; and
subject to any further renewal under this Division, ceases to have effect upon the expiration of the period specified by the authorizing officer when granting the renewal, which in any case is not to be longer than the period of 3 months beginning with the time when it takes effect.
An officer of a department may apply to the head of the department for the issue of an emergency authorization for any interception or Type 1 surveillance to be carried out by or on behalf of any of the officers of the department, if he considers that—
there is immediate need for the interception or Type 1 surveillance to be carried out by reason of an imminent risk of—
death or serious bodily harm of any person;
substantial damage to property;
serious threat to public security; or
loss of vital evidence; and
having regard to all the circumstances of the case, it is not reasonably practicable to apply for the issue of a judge’s authorization for the interception or Type 1 surveillance.
The application is—
to be made in writing; and
to be supported by a statement in writing made by the applicant which is to—
set out the reason for making the application; and
comply with the requirements specified in Part 1 or 2 of Schedule 3 (as may be applicable) which are to apply to the statement as they apply to an affidavit referred to in section 8(2)(b).
Upon considering an application for the issue of an emergency authorization made under section 20, the head of the department concerned may, subject to subsection (2)—
issue the emergency authorization sought under the application, with or without variations; or
refuse to issue the emergency authorization.
The head of the department shall not issue the emergency authorization unless he is satisfied—
that section 20(1)(a) and (b) applies; and
that the conditions for the issue of the emergency authorization under section 3 have been met.
The head of the department shall deliver his determination under subsection (1) by—
in the case of subsection (1)(a), issuing the emergency authorization in writing; or
in the case of subsection (1)(b), giving the reason for the refusal in writing.
An emergency authorization—
takes effect at the time specified by the head of the department concerned when issuing the emergency authorization, which in any case is not to be earlier than the time when it is issued; and
ceases to have effect upon the expiration of the period specified by the head of the department when issuing the emergency authorization, which in any case is not to be longer than the period of 48 hours beginning with the time when it is issued.
Without prejudice to any application under section 8 for the issue of any judge’s authorization for the interception or Type 1 surveillance concerned, an emergency authorization may not be renewed under this Ordinance.
Where any interception or Type 1 surveillance is carried out pursuant to an emergency authorization, the head of the department concerned shall cause an officer of the department to apply to a panel judge for confirmation of the emergency authorization, as soon as reasonably practicable after, and in any event within the period of 48 hours beginning with, the time when the emergency authorization is issued.
The application is—
to be made in writing; and
to be supported by—
a copy of the emergency authorization; and
an affidavit of the applicant which is to verify the contents of the statement provided under section 20(2)(b) for the purposes of the application for the issue of the emergency authorization.
In default of any application being made for confirmation of the emergency authorization within the period of 48 hours referred to in subsection (1), the head of the department concerned shall—
cause the immediate destruction of any information obtained by carrying out the interception or Type 1 surveillance concerned; and
without prejudice to section 54, submit to the Commissioner a report with details of the case.
Upon considering an application for confirmation of an emergency authorization as provided for in section 23(1), the panel judge may, subject to subsection (2)—
confirm the emergency authorization; or
refuse to confirm the emergency authorization.
The panel judge shall not confirm the emergency authorization unless he is satisfied that section 21(2)(b) has been complied with in the issue of the emergency authorization.
Where the panel judge refuses to confirm the emergency authorization under subsection (1)(b), he may make one or more of the following orders—
in any case where the emergency authorization still has effect at the time of the determination, an order that the emergency authorization is, notwithstanding any other provision of this Ordinance—
to be revoked upon the making of the determination; or
only to have effect subject to the variations, and any new conditions, specified by him, from the time of the determination; (Amended 21 of 2016 s. 6)
in any case whether or not the emergency authorization still has effect at the time of the determination, an order that the head of the department concerned shall cause the immediate destruction of—
subject to subparagraph (ii), any information obtained by carrying out the interception or Type 1 surveillance concerned; or
where paragraph (a)(ii) applies, any information obtained by carrying out the interception or Type 1 surveillance concerned that is specified in the order.
The new conditions specified by the panel judge under subsection (3)(a)(ii) may apply to the emergency authorization itself or to any further authorization or requirement under it (whether granted or imposed under its terms or any provision of this Ordinance). (Added 21 of 2016 s. 6)
Where the emergency authorization is revoked under subsection (3)(a)(i), the emergency authorization is, notwithstanding section 22(1)(b), to cease to have effect from the time of the revocation.
The panel judge shall deliver his determination under subsection (1) by—
in the case of subsection (1)(a), endorsing his confirmation on the emergency authorization in writing; or
in the case of subsection (1)(b), giving the reason for the refusal and making any order under subsection (3) in writing.
Notwithstanding the relevant written application provision, an application for the issue or renewal of a prescribed authorization under this Ordinance may be made orally, if the applicant considers that, having regard to all the circumstances of the case, it is not reasonably practicable to make the application in accordance with the relevant written application provision.
Notwithstanding the relevant determination provision and without prejudice to the relevant conditions provision, where an oral application is made, the relevant authority shall not issue or grant the prescribed authorization or renewal sought under the application unless he is satisfied that, having regard to all the circumstances of the case, it is not reasonably practicable to make the application in accordance with the relevant written application provision.
Notwithstanding the relevant document provision, where an oral application is made, the information required to be provided for the purposes of the application under the relevant document provision may be provided orally (and accordingly any requirement as to the making of any affidavit or statement does not apply).
Notwithstanding the relevant written determination provision, where an oral application is made, the relevant authority may deliver the determination required to be delivered in respect of the application under the relevant determination provision by—
issuing the prescribed authorization or the renewed prescribed authorization orally; or
where he refuses to issue or grant the prescribed authorization or renewal sought under the application, giving the reason for the refusal orally.
Except as otherwise provided in this Division, any oral application and any prescribed authorization or renewal issued or granted as a result of that application are for all purposes regarded as having the same effect respectively as an application made in writing and a prescribed authorization or renewal issued or granted as a result of that application, and the provisions of this Ordinance are, subject to necessary modifications, to apply accordingly.
In this section—
relevant conditions provision (有關條件條文) means section 9(2), 12(2), 15(2), 18(2) or 21(2) (as may be applicable); relevant determination provision (有關決定條文) means section 9(1), 12(1), 15(1), 18(1) or 21(1) (as may be applicable); relevant document provision (有關文件條文) means section 8(2)(b), 11(2)(b), 14(2)(b), 17(2)(b) or 20(2)(b) (as may be applicable); relevant written application provision (有關書面申請條文) means section 8(2)(a), 11(2)(a), 14(2)(a), 17(2)(a) or 20(2)(a) (as may be applicable); relevant written determination provision (有關書面決定條文) means section 9(3), 12(3), 15(3), 18(3) or 21(3) (as may be applicable).Where, as a result of an oral application, the prescribed authorization or renewal sought under the application has been issued or granted, the head of the department concerned shall cause an officer of the department to apply to the relevant authority for confirmation of the prescribed authorization or renewal, as soon as reasonably practicable after, and in any event within the period of 48 hours beginning with, the time when the prescribed authorization or renewal is issued or granted.
The application is—
to be made in writing; and
to be supported by—
a record in writing containing all the information that would have been provided to the relevant authority in writing under the relevant written application provision had the oral application been made in writing;
where section 25(3) applies in relation to the oral application—
where the relevant authority is a panel judge, an affidavit of the applicant which is to verify all the information provided pursuant to that section for the purposes of the oral application; or
where the relevant authority is not a panel judge, a statement in writing made by the applicant setting out all the information provided pursuant to that section for the purposes of the oral application; and
where section 25(4) applies in relation to the oral application, a record in writing setting out the determination delivered pursuant to that section in respect of the oral application.
In default of any application being made for confirmation of the prescribed authorization or renewal within the period of 48 hours referred to in subsection (1), then—
in any case where the prescribed authorization or renewal still has effect upon the expiration of the period, the prescribed authorization or renewal is, notwithstanding any other provision of this Ordinance, to be regarded as revoked upon the expiration of the period; and
in any case whether or not the prescribed authorization or renewal still has effect upon the expiration of the period, the head of the department concerned shall—
cause the immediate destruction of any information obtained by carrying out the interception or covert surveillance concerned; and
without prejudice to section 54, submit to the Commissioner a report with details of the case.
Where the prescribed authorization or renewal is regarded as revoked under subsection (3)(a), the prescribed authorization or renewal is, notwithstanding the relevant duration provision, to cease to have effect from the time of the revocation.
If, at the time of an application for confirmation of the prescribed authorization or renewal as provided for in subsection (1), the relevant authority is no longer holding his office or performing the relevant functions of his office—
without prejudice to section 54 of the Interpretation and General Clauses Ordinance (Cap. 1), the reference to relevant authority in that subsection includes the person for the time being appointed as a panel judge or authorizing officer (as the case may be) and lawfully performing the relevant functions of the office of that relevant authority; and
the provisions of this section and section 27 are to apply accordingly.
In this section—
relevant duration provision (有關時限條文) means section 10(b), 13(b), 16(b) or 19(b) (as may be applicable); relevant written application provision (有關書面申請條文) means section 8(2)(a), 11(2)(a), 14(2)(a), 17(2)(a) or 20(2)(a) (as may be applicable).Upon considering an application for confirmation of a prescribed authorization or renewal as provided for in section 26(1), the relevant authority may, subject to subsection (2)—
confirm the prescribed authorization or renewal; or
refuse to confirm the prescribed authorization or renewal.
The relevant authority shall not confirm the prescribed authorization or renewal unless he is satisfied that the relevant conditions provision has been complied with in the issue or grant of the prescribed authorization or renewal.
Where the relevant authority refuses to confirm the prescribed authorization or renewal under subsection (1)(b), he may make one or more of the following orders—
in any case where the prescribed authorization or renewal still has effect at the time of the determination, an order that the prescribed authorization or renewal is, notwithstanding any other provision of this Ordinance—
to be revoked upon the making of the determination; or
only to have effect subject to the variations, and any new conditions, specified by him, from the time of the determination; (Amended 21 of 2016 s. 8)
in any case whether or not the prescribed authorization or renewal still has effect at the time of the determination, an order that the head of the department concerned shall cause the immediate destruction of—
subject to subparagraph (ii), any information obtained by carrying out the interception or covert surveillance concerned; or
where paragraph (a)(ii) applies, any information obtained by carrying out the interception or covert surveillance concerned that is specified in the order.
The new conditions specified by the relevant authority under subsection (3)(a)(ii) may apply—
to the prescribed authorization or renewed prescribed authorization itself; or
to any further authorization or requirement under the prescribed authorization or renewed prescribed authorization (whether granted or imposed under the terms of the prescribed authorization or renewed prescribed authorization or any provision of this Ordinance). (Added 21 of 2016 s. 8)
Where the prescribed authorization or renewal is revoked under subsection (3)(a)(i), the prescribed authorization or renewal is, notwithstanding the relevant duration provision, to cease to have effect from the time of the revocation.
The relevant authority shall deliver his determination under subsection (1) by—
in the case of subsection (1)(a), issuing the prescribed authorization or the renewed prescribed authorization (being the prescribed authorization confirmed under that subsection or being in terms of the renewal confirmed under that subsection (as the case may be)) in writing; or
in the case of subsection (1)(b), giving the reason for the refusal and making any order under subsection (3) in writing.
In this section—
relevant conditions provision (有關條件條文) means section 9(2), 12(2), 15(2), 18(2) or 21(2)(b) (as may be applicable); relevant duration provision (有關時限條文) means section 10(b), 13(b), 16(b), 19(b) or 22(1)(b) (as may be applicable).Where an emergency authorization is issued as a result of an oral application, sections 26 and 27 do not apply if—
an application for confirmation of the emergency authorization as provided for in section 23(1) has been made to a panel judge within the period of 48 hours referred to in that section; and
the application is supported by—
a record referred to in section 26(2)(b)(i);
an affidavit of the applicant which is to verify the contents of the statement provided under section 20(2)(b) for the purposes of the application for the issue of the emergency authorization or, where section 25(3) applies in relation to the oral application, all the information provided pursuant to section 25(3) for the purposes of the oral application; and
a copy of the emergency authorization or, where section 25(4) applies in relation to the oral application, a record in writing setting out the determination delivered pursuant to that section in respect of the oral application.
Notwithstanding section 23(2)(b), the application described in subsection (1)(a) and (b) is for all purposes regarded as an application duly made for confirmation of the emergency authorization as provided for in section 23(1), and the provisions of this Ordinance are to apply accordingly (subject to section 24(5)(a) being read as requiring the panel judge to deliver his determination under section 24(1) by issuing the emergency authorization (being the emergency authorization confirmed under section 24(1)(a)) in writing).
A prescribed authorization for interception may—
in the case of a postal interception, contain terms that authorize one or both of the following—
the interception of communications made to or from any premises or address specified in the prescribed authorization;
the interception of communications made to or by any person specified in the prescribed authorization (whether by name or by description); or
in the case of a telecommunications interception, contain terms that authorize one or both of the following—
the interception of communications made to or from any telecommunications service specified in the prescribed authorization;
the interception of communications made to or from any telecommunications service that any person specified in the prescribed authorization (whether by name or by description) is using, or is reasonably expected to use.
A prescribed authorization for covert surveillance may contain terms that authorize one or more of the following—
the use of any surveillance devices in or on any premises specified in the prescribed authorization;
the use of any surveillance devices in or on any object or class of objects specified in the prescribed authorization;
the use of any surveillance devices in respect of the conversations, activities or location of any person specified in the prescribed authorization (whether by name or by description).
A prescribed authorization, other than an executive authorization, may contain terms that authorize the doing of anything reasonably necessary to conceal any conduct authorized or required to be carried out under the prescribed authorization.
A prescribed authorization, other than an executive authorization, may, if it is reasonably necessary for the execution of the prescribed authorization, contain terms that authorize the interference with any property (whether or not of any person who is the subject of the interception or covert surveillance concerned).
A prescribed authorization, other than an executive authorization, may contain terms that require any person specified in the prescribed authorization (whether by name or by description), on being shown a copy of the prescribed authorization, to provide to any of the officers of the department concerned such reasonable assistance for the execution of the prescribed authorization as is specified in the prescribed authorization.
A prescribed authorization for interception also authorizes—
the installation, use and maintenance of any devices required to be used in order to intercept any of the communications authorized to be intercepted under the prescribed authorization;
the entry, by the use of reasonable force if necessary, onto any premises in order to carry out any conduct authorized or required to be carried out under the prescribed authorization;
the incidental interception of any communication which necessarily arises from the interception of communications authorized to be carried out under the prescribed authorization; and
where subsection (1)(a)(ii) or (b)(ii) is applicable, the provision to any person, for the execution of the prescribed authorization, of particulars of the addresses, numbers, apparatus or other factors, or combination of factors, that are to be used for identifying—
in the case of subsection (1)(a)(ii), the communications made to or by the person specified in the prescribed authorization; or
in the case of subsection (1)(b)(ii), the communications made to or from any telecommunications service that the person specified in the prescribed authorization is using, or is reasonably expected to use.
A prescribed authorization for covert surveillance also authorizes—
where subsection (2)(a) is applicable—
the installation, use and maintenance of any of the surveillance devices authorized to be used under the prescribed authorization in or on the premises specified in the prescribed authorization; and
in the case of Type 1 surveillance, the entry, by the use of reasonable force if necessary, onto the premises, and onto any other premises adjoining or providing access to the premises, in order to carry out any conduct authorized or required to be carried out under the prescribed authorization;
where subsection (2)(b) is applicable—
the installation, use and maintenance of any of the surveillance devices authorized to be used under the prescribed authorization in or on the object, or an object of the class, specified in the prescribed authorization; and
in the case of Type 1 surveillance, the entry, by the use of reasonable force if necessary, onto any premises where the object, or an object of the class, is reasonably believed to be or likely to be, and onto any other premises adjoining or providing access to the premises, in order to carry out any conduct authorized or required to be carried out under the prescribed authorization; and
where subsection (2)(c) is applicable—
the installation, use and maintenance of any of the surveillance devices authorized to be used under the prescribed authorization in or on any premises where the person specified in the prescribed authorization is reasonably believed to be or likely to be; and
in the case of Type 1 surveillance, the entry, by the use of reasonable force if necessary, onto the premises, and onto any other premises adjoining or providing access to the premises, in order to carry out any conduct authorized or required to be carried out under the prescribed authorization.
A prescribed authorization also authorizes the undertaking of conduct, including the following conduct, that is necessary for and incidental to the carrying out of what is authorized or required to be carried out under the prescribed authorization—
the retrieval of any of the devices authorized to be used under the prescribed authorization;
the installation, use, maintenance and retrieval of any enhancement equipment for the devices;
the temporary removal of any conveyance or object from any premises for the installation, maintenance or retrieval of the devices or enhancement equipment and the return of the conveyance or object to the premises;
the breaking open of anything for the installation, maintenance or retrieval of the devices or enhancement equipment;
the connection of the devices or enhancement equipment to any source of electricity and the use of electricity from that source to operate the devices or enhancement equipment;
the connection of the devices or enhancement equipment to any object or system that may be used to transmit information in any form and the use of that object or system in connection with the operation of the devices or enhancement equipment; and
the provision of assistance for the execution of the prescribed authorization.
Notwithstanding anything in this Ordinance, unless exceptional circumstances exist—
no prescribed authorization may contain terms that authorize the interception of communications by reference to—
in the case of a postal interception, an office or other relevant premises, or a residence, of a lawyer; or
in the case of a telecommunications interception, any telecommunications service used at an office or other relevant premises, or a residence, of a lawyer, or any telecommunications service known or reasonably expected to be known by the applicant to be ordinarily used by a lawyer for the purpose of providing legal advice to clients; and
no prescribed authorization may contain terms that authorize any covert surveillance to be carried out in respect of oral or written communications taking place at an office or other relevant premises, or a residence, of a lawyer.
For the purposes of subsection (1), exceptional circumstances exist if the relevant authority is satisfied that there are reasonable grounds to believe—
that—
the lawyer concerned;
in the case of an office or other relevant premises of the lawyer, any other lawyer practising with him or any other person working in the office; or
in the case of a residence of the lawyer, any other person residing in the residence,
is a party to any activity which constitutes or would constitute a serious crime or a threat to public security; or
that any of the communications concerned is for the furtherance of a criminal purpose.
For the avoidance of doubt, a prescribed authorization does not authorize any device to be implanted in, or administered to, a person without the consent of the person.
In this section—
lawyer (律師) means a barrister, solicitor or foreign lawyer as defined in section 2(1) of the Legal Practitioners Ordinance (Cap. 159) who practises as such, or any person holding an appointment under section 3(1) of the Legal Aid Ordinance (Cap. 91); other relevant premises (其他有關處所), in relation to a lawyer, means any premises, other than an office of the lawyer, that are known or reasonably expected to be known by the applicant to be ordinarily used by the lawyer and by other lawyers for the purpose of providing legal advice to clients (including any premises ordinarily used by lawyers for the purpose of providing legal advice to clients when in court or visiting a prison, police station or other place where any person is detained).A prescribed authorization may be issued or renewed subject to any conditions specified in it that apply to the prescribed authorization itself or to any further authorization or requirement under it (whether granted or imposed under its terms or any provision of this Ordinance).
Where a prescribed authorization has in any way ceased to have effect under this Ordinance, an officer of the department concerned may apply to a panel judge for the issue of a device retrieval warrant authorizing the retrieval of any of the devices authorized to be used under the prescribed authorization if such devices—
have been installed in or on any premises or object, pursuant to the prescribed authorization; and
are still in or on such premises or object, or are in or on any other premises or object.
The application is—
to be made in writing; and
to be supported by—
a copy of the prescribed authorization; and
an affidavit of the applicant which is to comply with the requirements specified in Schedule 4.
Upon considering an application for the issue of a device retrieval warrant made under section 33, the panel judge may, subject to subsection (2)—
issue the device retrieval warrant sought under the application, with or without variations; or
refuse to issue the device retrieval warrant.
The panel judge shall not issue the device retrieval warrant unless he is satisfied that section 33(1)(a) and (b) applies to the devices concerned.
The panel judge shall deliver his determination under subsection (1) by—
in the case of subsection (1)(a), issuing the device retrieval warrant in writing; or
in the case of subsection (1)(b), giving the reason for the refusal in writing.
A device retrieval warrant—
takes effect at the time specified by the panel judge when issuing the warrant, which in any case is not to be earlier than the time when it is issued; and
ceases to have effect upon the expiration of the period specified by the panel judge when issuing the warrant, which in any case is not to be longer than the period of 3 months beginning with the time when it takes effect.
A device retrieval warrant may authorize the retrieval of any devices specified in the warrant.
A device retrieval warrant may contain terms that authorize the doing of anything reasonably necessary to conceal any conduct authorized to be carried out under the warrant.
A device retrieval warrant may, if it is reasonably necessary for the execution of the warrant, contain terms that authorize the interference with any property (whether or not of any person who is the subject of the interception or covert surveillance concerned).
A device retrieval warrant also authorizes the undertaking of conduct, including the following conduct, that is necessary for and incidental to the carrying out of what is authorized to be carried out under the warrant—
the retrieval of any enhancement equipment for the devices authorized to be retrieved under the warrant;
the entry, by the use of reasonable force if necessary, onto any premises where the devices or enhancement equipment is reasonably believed to be or likely to be, and onto any other premises adjoining or providing access to the premises, in order to retrieve the devices or enhancement equipment;
the temporary removal of any conveyance or object from any premises for the retrieval of the devices or enhancement equipment and the return of the conveyance or object to the premises;
the breaking open of anything for the retrieval of the devices or enhancement equipment; and
the provision of assistance for the execution of the warrant.
A device retrieval warrant which authorizes the retrieval of any tracking devices also authorizes the use of the tracking devices and any enhancement equipment for the tracking devices solely for the purposes of the location and retrieval of the tracking devices or enhancement equipment.
A device retrieval warrant may be issued subject to any conditions specified in it that apply to the warrant itself or to any further authorization under it (whether granted under its terms or any provision of this Ordinance).
If, while a device retrieval warrant is in force but not yet completely executed, the officer of the department concerned who is for the time being in charge of the execution of the warrant—
becomes aware that section 33(1)(a) or (b) does not apply to the devices or any of the devices specified in the warrant; or
is of the opinion that the warrant or a part of the warrant cannot for whatever reason be executed,
the officer must, as soon as reasonably practicable after becoming aware of the matter or forming the opinion, cause a report on the matter or opinion to be provided to a panel judge.
If a panel judge receives a report under subsection (1), the panel judge may revoke the device retrieval warrant concerned or the relevant part of the device retrieval warrant concerned.
If the device retrieval warrant or a part of the device retrieval warrant is revoked under subsection (2), the warrant or that part of the warrant, despite section 35(b), ceases to have effect from the time of the revocation.
If the device retrieval warrant is not revoked or only part of the device retrieval warrant is revoked, the panel judge may do one or both of the following—
vary any terms or conditions in the warrant;
specify any new conditions in the warrant that apply to the warrant itself or to any further authorization under it (whether granted under its terms or any provision of this Ordinance).
(Added 21 of 2016 s. 9)
There is hereby established an office by the name of the “Commissioner on Interception of Communications and Surveillance”. (Amended E.R. 7 of 2020)
The Chief Executive shall, on the recommendation of the Chief Justice, appoint an eligible judge to be the Commissioner.
The Commissioner shall be appointed for a period of 3 years.
The Commissioner shall be entitled to such remuneration and allowances as are determined by the Chief Executive.
The Chief Executive may, on the recommendation of the Chief Justice, revoke the appointment of the Commissioner for good cause.
A person previously appointed as the Commissioner may from time to time be further appointed as such in accordance with the provisions of this Ordinance that apply to the appointment of the Commissioner.
The functions of the Commissioner are—
to oversee the compliance by departments and their officers with the relevant requirements; and
without limiting the generality of paragraph (a), to—
conduct reviews under Division 2;
carry out examinations under Division 3;
give notifications to relevant persons under Division 4;
submit reports to the Chief Executive and make recommendations to the Secretary for Security and heads of departments under Division 5;
perform any further functions prescribed by regulation made under section 66 for the purposes of this subparagraph; and
perform such other functions as are imposed or conferred on him under this Ordinance or any other enactment.
The Commissioner shall conduct such reviews as he considers necessary on compliance by departments and their officers with the relevant requirements.
Without limiting the generality of subsection (1), the Commissioner shall conduct reviews on cases in respect of which a report has been submitted to him under section 23(3)(b), 26(3)(b)(ii) or 54.
Upon the conduct of any review under subsection (1) or (2), the Commissioner shall record in writing—
details, as identified in the review, of any case of failure by any department or any of its officers to comply with any relevant requirement; and
any other finding he has made in the review.
The Commissioner shall notify the head of any department concerned of his findings in a review under section 41(3).
On being notified of the findings of the Commissioner under subsection (1), the head of the department shall submit to the Commissioner a report with details of any measures taken by the department (including any disciplinary action taken in respect of any officer) to address any issues identified in the findings, as soon as reasonably practicable after the notification or, where the Commissioner has specified any period for submission of the report when giving the notification, within that period.
Without prejudice to sections 49 and 50, the Commissioner may, whether before or after the head of the department has submitted a report to him under subsection (2), refer the findings and any other matters he thinks fit to the Chief Executive, the Secretary for Justice or any panel judge or any or all of them.
A person may apply to the Commissioner for an examination under this Division, if he suspects—
that any communication transmitted to or by him has been intercepted by an officer of a department; or
that he is the subject of any covert surveillance that has been carried out by an officer of a department.
The application is to be made in writing.
Where the Commissioner receives an application under section 43, he shall, subject to section 45, carry out an examination to determine—
whether or not the interception or covert surveillance alleged has taken place; and
if so, whether or not the interception or covert surveillance alleged has been carried out by an officer of a department without the authority of a prescribed authorization.
If, on an examination, the Commissioner, having regard to section 46(1), determines that the interception or covert surveillance alleged has been carried out by an officer of a department without the authority of a prescribed authorization, he shall as soon as reasonably practicable give notice to the applicant—
stating that he has found the case in the applicant’s favour and indicating whether the case is one of interception or covert surveillance, the date on which the interception or covert surveillance began and the duration of the interception or covert surveillance; and (Amended 21 of 2016 s. 10)
inviting the applicant to confirm whether the applicant wishes to seek an order for the payment of compensation under the application, and if so, to make written submissions to him for that purpose.
Upon receiving confirmation from the applicant that an order for the payment of compensation is sought, the Commissioner, upon taking into account any written submissions made to him for that purpose, may make any order for the payment of compensation by the Government to the applicant.
The compensation ordered to be paid under subsection (3) may include compensation for injury of feelings.
If, on an examination, the Commissioner makes a determination other than that referred to in subsection (2), he shall as soon as reasonably practicable give notice to the applicant stating that he has not found the case in the applicant’s favour.
Notwithstanding subsections (2), (3) and (5), the Commissioner shall only give a notice or make an order under those subsections when he considers that the giving of the notice or the making of the order (as the case may be) would not be prejudicial to the prevention or detection of crime or the protection of public security.
The Commissioner shall not make a determination referred to in subsection (2) in respect of an interception if the interception is within the description of section 4(2)(b) or (c).
Where, before or in the course of an examination, the Commissioner considers—
that the application for the examination is received by the Commissioner more than 1 year after the day on which the interception or covert surveillance is alleged to have taken place or, where the interception or covert surveillance is alleged to have taken place on more than 1 day, the last occasion on which it is alleged to have taken place, and that it is not unfair for him not to carry out the examination;
that the application is made anonymously;
that the applicant cannot, after the use of reasonable efforts, be identified or traced; or
that, having regard to all the circumstances of the case, the application is frivolous or vexatious or is not made in good faith,
the Commissioner may refuse to carry out the examination or, where the examination has been commenced, to proceed with the carrying out of the examination (including the making of any determination further to the examination).
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, the Commissioner shall not carry out the examination or, where the examination has been commenced, proceed with the carrying out of the examination (including the making of any determination further to the examination)—
in the case of any pending criminal proceedings, until they have been finally determined or finally disposed of; or
in the case of any criminal proceedings which are likely to be instituted, until they have been finally determined or finally disposed of or, if applicable, until they are no longer likely to be instituted.
For the purposes of subsection (2), criminal proceedings are, in relation to an examination, regarded as relevant if, but only if, the interception or covert surveillance alleged in the application for the 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.
For the purposes of an examination—
in determining whether any interception or covert surveillance has been carried out without the authority of a prescribed authorization, the Commissioner shall apply the principles applicable by a court on an application for judicial review; and
without limiting the generality of paragraph (a), the Commissioner may by applying those principles determine that any interception or covert surveillance has been carried out without the authority of a prescribed authorization notwithstanding the purported issue or renewal of any prescribed authorization.
Subject to section 53(1), the Commissioner shall carry out an examination on the basis of written submissions made to him.
Without prejudice to section 53(4), for the purposes of an examination, the applicant is not entitled to have access to any information, document or other matter (including any protected product, whether or not it contains any information that is or may be subject to legal professional privilege) compiled by, or made available to, the Commissioner in connection with the examination. (Amended 21 of 2016 s. 11)
Without prejudice to section 44(6), in giving notice to an applicant or making any order under section 44(2), (3) or (5), the Commissioner shall not—
give reasons for his determination;
give details of any interception or covert surveillance concerned further to those mentioned in section 44(2)(a); or
in the case of section 44(5), indicate whether or not the interception or covert surveillance alleged has taken place.
Where, on an examination, the Commissioner makes a determination referred to in section 44(2), he shall notify the head of the department concerned of the determination, including any order or findings he has made in the examination.
On being given the notification under subsection (1), the head of the department shall submit to the Commissioner a report with details of any measures taken by the department (including any disciplinary action taken in respect of any officer) to address any issues arising from the determination, as soon as reasonably practicable after the notification or, where the Commissioner has specified any period for submission of the report when giving the notification, within that period.
Without prejudice to sections 49 and 50, the Commissioner may, whether before or after the head of the department has submitted a report to him under subsection (2), refer the determination and any other matters he thinks fit to the Chief Executive, the Secretary for Justice or any panel judge or any or all of them.
If, in the course of performing any of his functions under this Ordinance, the Commissioner, having regard to subsection (5), considers that there is any case in which any interception or covert surveillance has been carried out by an officer of a department without the authority of a prescribed authorization, subject to subsection (6), the Commissioner shall as soon as reasonably practicable give notice to the relevant person—
stating that there has been such a case and indicating whether the case is one of interception or covert surveillance, the date on which the interception or covert surveillance began and the duration of the interception or covert surveillance; and (Amended 21 of 2016 s. 12)
informing the relevant person of his right to apply to the Commissioner for an examination in respect of the interception or covert surveillance.
Where the relevant person makes an application for an examination in respect of the interception or covert surveillance within 6 months after receipt of the notice or within such further period as the Commissioner may allow, the Commissioner shall, notwithstanding anything in section 45(1)(a) but subject to the other provisions of section 45, make a determination referred to in section 44(2), and the provisions of this Ordinance are to apply accordingly.
Notwithstanding subsection (1), the Commissioner shall only give a notice under that subsection when he considers that the giving of the notice would not be prejudicial to the prevention or detection of crime or the protection of public security.
Without prejudice to subsection (3), in giving notice to a relevant person under subsection (1), the Commissioner shall not—
give reasons for his findings; or
give details of any interception or covert surveillance concerned further to those mentioned in subsection (1)(a).
For the purposes of this section—
in considering whether any interception or covert surveillance has been carried out without the authority of a prescribed authorization, the Commissioner shall apply the principles applicable by a court on an application for judicial review; and
without limiting the generality of paragraph (a), the Commissioner may by applying those principles determine that any interception or covert surveillance has been carried out without the authority of a prescribed authorization notwithstanding the purported issue or renewal of any prescribed authorization.
This section does not require the Commissioner to give any notice to a relevant person if—
the relevant person cannot, after the use of reasonable efforts, be identified or traced;
the Commissioner considers that the intrusiveness of the interception or covert surveillance concerned on the relevant person is negligible; or
in the case of interception, the interception is within the description of section 4(2)(b) or (c).
In this section—
relevant person (有關人士) means— (a)if the interception or covert surveillance concerned is one that is continued after the prescribed authorization concerned or the relevant part of the prescribed authorization concerned has ceased to have effect, the subject of the interception or covert surveillance; (b)if the interception or covert surveillance concerned is carried out by an officer of the department concerned purportedly pursuant to a prescribed authorization but the subject of the interception or covert surveillance is not the intended subject under the prescribed authorization, the subject of the interception or covert surveillance; or (c)if the interception or covert surveillance concerned is carried out without the authority of a prescribed authorization, otherwise than in a situation specified in paragraph (a) or (b), the subject of the interception or covert surveillance. (Replaced 21 of 2016 s. 12)The Commissioner shall, for each report period, submit a report to the Chief Executive.
A report for a report period is to set out, separately in relation to interception and covert surveillance—
a list showing—
the respective numbers of judge’s authorizations, executive authorizations and emergency authorizations issued under this Ordinance during the report period, and the average duration of the respective prescribed authorizations;
the respective numbers of judge’s authorizations and executive authorizations renewed under this Ordinance during the report period, and the average duration of the respective renewals;
the respective numbers of judge’s authorizations, executive authorizations and emergency authorizations issued as a result of an oral application under this Ordinance during the report period, and the average duration of the respective prescribed authorizations;
the respective numbers of judge’s authorizations and executive authorizations renewed as a result of an oral application under this Ordinance during the report period, and the average duration of the respective renewals;
the respective numbers of judge’s authorizations and executive authorizations that have been renewed under this Ordinance during the report period further to 5 or more previous renewals;
the respective numbers of applications for the issue of judge’s authorizations, executive authorizations and emergency authorizations made under this Ordinance that have been refused during the report period;
the respective numbers of applications for the renewal of judge’s authorizations and executive authorizations made under this Ordinance that have been refused during the report period;
the respective numbers of oral applications for the issue of judge’s authorizations, executive authorizations and emergency authorizations made under this Ordinance that have been refused during the report period; and
the respective numbers of oral applications for the renewal of judge’s authorizations and executive authorizations made under this Ordinance that have been refused during the report period;
a list showing—
the major categories of offences for the investigation of which prescribed authorizations have been issued or renewed under this Ordinance during the report period; and
the number of persons arrested during the report period as a result of or further to any interception or covert surveillance carried out pursuant to a prescribed authorization;
a list showing—
the number of device retrieval warrants issued under this Ordinance during the report period, and the average duration of the warrants; and
the number of applications for the issue of device retrieval warrants made under this Ordinance that have been refused during the report period;
a list showing—
a summary of reviews conducted by the Commissioner under section 41 during the report period;
the number and broad nature of any cases of irregularities or errors identified in the reviews during the report period;
the number of applications for examination that have been received by the Commissioner during the report period;
the respective numbers of notices given by the Commissioner under section 44(2) and section 44(5) during the report period further to examinations;
the number of cases in which a notice has been given by the Commissioner under section 48 during the report period;
the broad nature of recommendations made by the Commissioner under sections 50, 51 and 52 during the report period;
the number of cases in which information subject to legal professional privilege has been obtained in consequence of any interception or covert surveillance carried out pursuant to a prescribed authorization during the report period; and
the number of cases in which disciplinary action has been taken in respect of any officer of a department according to any report submitted to the Commissioner under section 42, 47, 52 or 54 during the report period, and the broad nature of such action; and
an assessment on the overall compliance with the relevant requirements during the report period.
The report is to be submitted within 6 months after the expiry of the report period.
The Chief Executive shall cause to be laid on the table of the Legislative Council a copy of the report, together with a statement as to whether any matter has been excluded from that copy under subsection (5) without the agreement of the Commissioner.
If the Chief Executive considers that the publication of any matter in the report referred to in subsection (4) would be prejudicial to the prevention or detection of crime or the protection of public security, he may, after consultation with the Commissioner, exclude such matter from the copy of the report to be laid on the table of the Legislative Council under that subsection.
In addition to any report required to be submitted to the Chief Executive under section 49, the Commissioner may from time to time submit any further report to the Chief Executive on any matter relating to the performance of his functions under this Ordinance as he thinks fit.
If, in the course of performing any of his functions under this Ordinance, the Commissioner considers that any provision of the code of practice should be revised to better carry out the objects of this Ordinance, he may make such recommendations to the Secretary for Security as he thinks fit.
Where the Commissioner makes any recommendations to the Secretary for Security under subsection (1), the Secretary shall notify the Commissioner of any exercise of power by him under section 63(3) to implement the recommendations, as soon as reasonably practicable after the recommendations have been made or, where the Commissioner has specified any period for the issue of the notification when making the recommendations, within that period.
If, in the course of performing any of his functions under this Ordinance, the Commissioner considers that any arrangements made by any department should be changed to better carry out the objects of this Ordinance or the provisions of the code of practice, he may make such recommendations to the head of the department as he thinks fit.
Where the Commissioner makes any recommendations to the head of the department under subsection (1), the head of the department shall submit to the Commissioner a report with details of any measures taken by the department (including any disciplinary action taken in respect of any officer) to implement the recommendations, as soon as reasonably practicable after the recommendations have been made or, where the Commissioner has specified any period for submission of the report when making the recommendations, within that period.
Without prejudice to sections 49 and 50, the Commissioner may, whether before or after the head of the department has submitted a report to him under subsection (2), refer the recommendations and any other matters he thinks fit to the Chief Executive, the Secretary for Justice or any panel judge or any or all of them.
For the purpose of performing any of his functions under this Ordinance, the Commissioner may—
require any public officer or any other person to answer any question, and to provide any information, document or other matter (including any protected product, whether or not it contains any information that is or may be subject to legal professional privilege) in his possession or control to the Commissioner, within the time and in the manner specified by the Commissioner when making the requirement; and (Amended 21 of 2016 s. 13)
require any officer of a department to prepare any report on any case of interception or covert surveillance handled by the department, or on any class of such cases, within the time and in the manner specified by the Commissioner when making the requirement.
For the purpose of performing any of his functions under this Ordinance, the Commissioner may request a panel judge to provide him with access to any of the documents or records kept under section 3 of Schedule 2.
Notwithstanding any other provision of this Ordinance or any other law, any person on whom a requirement is imposed by the Commissioner under subsection (1) shall comply with the requirement.
Except as otherwise provided in this Ordinance, the Commissioner shall not be required to produce in any court or to divulge or communicate to any court, or to provide or disclose to any person, any information, document or other matter (including any protected product, whether or not it contains any information that is or may be subject to legal professional privilege) compiled by, or made available to, him in the course of performing any of his functions under this Ordinance. (Amended 21 of 2016 s. 13)
Except as otherwise provided in this Ordinance, the Commissioner may determine the procedure to be adopted in performing any of his functions under this Ordinance.
The Commissioner may delegate, in writing, the Commissioner’s power specified in subsection (2) to an officer working in the Commissioner’s office who is responsible to the Commissioner.
The power is the power to examine protected products provided to the Commissioner in compliance with a requirement imposed under section 53(1)(a).
The Commissioner may specify in any instrument of delegation any terms or conditions subject to which the delegation is to have effect.
A delegation under this section does not preclude the Commissioner from exercising at any time the power so delegated.
(Added 21 of 2016 s. 14)
Without prejudice to other provisions of this Part, where the head of any department considers that there may have been any case of failure by the department or any of its officers to comply with any relevant requirement, he shall submit to the Commissioner a report with details of the case (including any disciplinary action taken in respect of any officer). (Amended 21 of 2016 s. 15)
Without affecting other provisions of this Part, if the head of any department considers that—
there may have been a failure to comply with a relevant requirement in a case handled by the department; but
the failure is not due to the fault of the department or any of its officers,
the head must also submit to the Commissioner a report with details of the failure. (Added 21 of 2016 s. 15)
In performing any of his functions under this Ordinance, the Commissioner is for all purposes not regarded as a court or a member of a court.
The head of each department shall make arrangements to keep under regular review the compliance by officers of the department with the relevant requirements.
Without prejudice to subsection (1), where the head of any department has made any designation under section 7, he shall make arrangements for officers of a rank higher than those held by the authorizing officers of the department to keep under regular review the performance by the authorizing officers of any function under this Ordinance.
(Amended 21 of 2016 s. 16)
If the officer by whom any regular review is or has been conducted under section 56(1) or (2) is of the opinion that the ground for discontinuance of a prescribed authorization or a part of a prescribed authorization exists, he shall, as soon as reasonably practicable after forming the opinion, cause the interception or covert surveillance concerned or the relevant part of the interception or covert surveillance concerned to be discontinued.
Without prejudice to subsection (1), where a prescribed authorization has been issued or renewed under this Ordinance, the officer of the department concerned who is for the time being in charge of the interception or covert surveillance concerned—
shall, as soon as reasonably practicable after he becomes aware that the ground for discontinuance of the prescribed authorization or a part of the prescribed authorization exists, cause the interception or covert surveillance or the relevant part of the interception or covert surveillance to be discontinued; and
may at any time cause the interception or covert surveillance or a part of the interception or covert surveillance to be discontinued.
Where any officer has caused any interception or covert surveillance to be discontinued, whether under subsection (1) or (2), he shall, as soon as reasonably practicable after the discontinuance, cause a report on the discontinuance and the ground for the discontinuance to be provided to the relevant authority to whom an application under this Ordinance for the issue or renewal of the prescribed authorization concerned has last been made.
Where the relevant authority receives a report under subsection (3), he shall, as soon as reasonably practicable after receiving the report, revoke the prescribed authorization concerned or the relevant part of the prescribed authorization concerned.
Where the prescribed authorization or a part of the prescribed authorization is revoked under subsection (4), the prescribed authorization or that part of the prescribed authorization is, notwithstanding the relevant duration provision, to cease to have effect from the time of the revocation.
If only part of the prescribed authorization is revoked, the relevant authority may do one or both of the following—
vary any terms or conditions in the prescribed authorization;
specify any new conditions in the prescribed authorization that apply to the prescribed authorization itself or to any further authorization or requirement under it (whether granted or imposed under its terms or any provision of this Ordinance). (Added 21 of 2016 s. 16)
If, at the time of the provision of a report to the relevant authority under subsection (3), the relevant authority is no longer holding his office or performing the relevant functions of his office—
without prejudice to section 54 of the Interpretation and General Clauses Ordinance (Cap. 1), the reference to relevant authority in that subsection includes the person for the time being appointed as a panel judge or authorizing officer (as the case may be) and lawfully performing the relevant functions of the office of that relevant authority; and
the provisions of this section are to apply accordingly.
For the purposes of this section, the ground for discontinuance of a prescribed authorization or a part of a prescribed authorization exists if the conditions for the continuance of the prescribed authorization or that part of the prescribed authorization under section 3 are not met.
In this section, relevant duration provision (有關時限條文) means section 10(b), 13(b), 16(b), 19(b) or 22(1)(b) (as may be applicable).
(Amended 21 of 2016 s. 16)
(Replaced 21 of 2016 s. 17)
Where, further to the issue or renewal of a prescribed authorization under this Ordinance, the officer of the department concerned who is for the time being in charge of the interception or covert surveillance concerned becomes aware that the subject of the interception or covert surveillance has been arrested, the officer shall, as soon as reasonably practicable after he becomes aware of the matter, cause to be provided to the relevant authority by whom the prescribed authorization has been issued or renewed a report assessing the effect of the arrest on the likelihood that any information which may be subject to legal professional privilege will be obtained by continuing the interception or covert surveillance.
Where the relevant authority receives a report under subsection (1), if the relevant authority considers that the conditions for the continuance of the prescribed authorization concerned or a part of the prescribed authorization concerned under section 3 are not met, the relevant authority must revoke the prescribed authorization or that part of the prescribed authorization. (Amended 21 of 2016 s. 17)
Where the prescribed authorization or a part of the prescribed authorization is revoked under subsection (2), the prescribed authorization or that part of the prescribed authorization is, notwithstanding the relevant duration provision, to cease to have effect from the time of the revocation. (Amended 21 of 2016 s. 17)
If the prescribed authorization is not revoked or only part of the prescribed authorization is revoked, the relevant authority may do one or both of the following—
vary any terms or conditions in the prescribed authorization;
specify any new conditions in the prescribed authorization that apply to the prescribed authorization itself or to any further authorization or requirement under it (whether granted or imposed under its terms or any provision of this Ordinance). (Added 21 of 2016 s. 17)
If, at the time of the provision of a report to the relevant authority under subsection (1), the relevant authority is no longer holding his office or performing the relevant functions of his office—
without prejudice to section 54 of the Interpretation and General Clauses Ordinance (Cap. 1), the reference to relevant authority in that subsection includes the person for the time being appointed as a panel judge or authorizing officer (as the case may be) and lawfully performing the relevant functions of the office of that relevant authority; and
the provisions of this section are to apply accordingly.
This section applies if, while a prescribed authorization is in force, the officer of the department concerned who is for the time being in charge of the interception or covert surveillance concerned—
becomes aware that there is a material inaccuracy in the information provided for the purposes of—
the application for the issue of the prescribed authorization made under section 8, 14 or 20, including such an application made orally under section 25;
the application for the renewal of the prescribed authorization made under section 11 or 17, including such an application made orally under section 25;
the application for confirmation of the prescribed authorization as provided for in section 23(1) or 26(1); or
the application for confirmation of the renewal of the prescribed authorization as provided for in section 26(1); or
becomes aware that there has been a material change in the circumstances on the basis of which—
the prescribed authorization was issued under section 9(1)(a), 15(1)(a), 21(1)(a) or 25(4)(a);
the prescribed authorization was renewed under section 12(1)(a), 18(1)(a) or 25(4)(a);
the prescribed authorization was confirmed under section 24(1)(a) or 27(1)(a) or ordered to have effect under section 24(3)(a)(ii) or 27(3)(a)(ii); or
the renewal of the prescribed authorization was confirmed under section 27(1)(a).
Subject to subsection (3), the officer must—
as soon as reasonably practicable after becoming aware of the matter described in subsection (1)(a)(i) or (b)(i), cause a report on the matter to be provided to the relevant authority by whom the prescribed authorization has been issued;
as soon as reasonably practicable after becoming aware of the matter described in subsection (1)(a)(ii) or (b)(ii), cause a report on the matter to be provided to the relevant authority by whom the prescribed authorization has been renewed;
as soon as reasonably practicable after becoming aware of the matter described in subsection (1)(a)(iii) or (b)(iii), cause a report on the matter to be provided to the relevant authority by whom the prescribed authorization has been confirmed or ordered to have effect; or
as soon as reasonably practicable after becoming aware of the matter described in subsection (1)(a)(iv) or (b)(iv), cause a report on the matter to be provided to the relevant authority by whom the renewal of the prescribed authorization has been confirmed.
The officer is not required to cause a report on a material change in circumstances to be provided to the relevant authority under subsection (2) if—
the change arises from a discontinuance of the interception or covert surveillance concerned or a part of the interception or covert surveillance concerned under section 57(1) or (2) and a report has been provided to the relevant authority under section 57(3); or
the change arises from the arrest of the subject of the interception or covert surveillance concerned as referred to in section 58(1) and a report has been provided to the relevant authority under that section.
Where the relevant authority receives a report under subsection (2), if the relevant authority considers that the conditions for the continuance of the prescribed authorization concerned or a part of the prescribed authorization concerned under section 3 are not met, the relevant authority must revoke the prescribed authorization or that part of the prescribed authorization.
If the prescribed authorization or a part of the prescribed authorization is revoked under subsection (4), the prescribed authorization or that part of the prescribed authorization, despite the relevant duration provision, ceases to have effect from the time of the revocation.
If the prescribed authorization is not revoked or only part of the prescribed authorization is revoked, the relevant authority may do one or both of the following—
vary any terms or conditions in the prescribed authorization;
specify any new conditions in the prescribed authorization that apply to the prescribed authorization itself or to any further authorization or requirement under it (whether granted or imposed under its terms or any provision of this Ordinance).
If, at the time of the provision of a report to the relevant authority under subsection (2), the relevant authority is no longer holding his or her office or performing the relevant functions of that office—
without affecting section 54 of the Interpretation and General Clauses Ordinance (Cap. 1), the reference to relevant authority in that subsection includes the person for the time being appointed as a panel judge or authorizing officer (as appropriate) and lawfully performing the relevant functions of the office of that relevant authority; and
the provisions of this section are to apply accordingly.
In this section—
relevant duration provision (有關時限條文) means section 10(b), 13(b), 16(b), 19(b) or 22(1)(b) (as may be applicable).(Added 21 of 2016 s. 18)
Where any protected product has been obtained pursuant to any prescribed authorization issued or renewed under this Ordinance on an application by any officer of a department, the head of the department shall make arrangements to ensure—
that the following are limited to the minimum that is necessary for the relevant purpose of the prescribed authorization—
the extent to which the protected product is disclosed;
the number of persons to whom any of the protected product is disclosed;
the extent to which the protected product is copied; and
the number of copies made of any of the protected product;
that all practicable steps are taken to ensure that the protected product is protected against unauthorized or accidental access, processing, erasure or other use; and
that, except as otherwise provided in subsection (1A), the protected product—
is destroyed as soon as its retention is not necessary for the relevant purpose of the prescribed authorization, unless it is to be or has been provided to the Commissioner in compliance with a requirement imposed under section 53(1)(a) before it is so destroyed; or
if it has been provided to the Commissioner in compliance with a requirement imposed under section 53(1)(a), is, after it is no longer required by the Commissioner, destroyed as soon as its retention is not necessary—
for the relevant purpose of the prescribed authorization; and
if further requirements are imposed by the Commissioner under section 53(1)(a), for the purpose of enabling compliance with the requirements. (Replaced 21 of 2016 s. 19)
Subsection (1B) applies if the protected product consists of information described in section 23(3)(a), 24(3)(b)(i) or (ii), 26(3)(b)(i) or 27(3)(b)(i) or (ii). (Added 21 of 2016 s. 19)
Despite section 23(3)(a) or 26(3)(b)(i) or any requirement in an order made under section 24(3)(b) or 27(3)(b), the head of the department concerned—
must immediately notify the Commissioner of the case;
must make arrangements to ensure that the information is retained; and
must—
if the Commissioner notifies the head of the department that the Commissioner will not require the provision of the information under section 53(1)(a), cause the immediate destruction of the information; or
if the Commissioner requires the provision of the information under section 53(1)(a)—
provide the information as required; and
cause the immediate destruction of the information when it is no longer required by the Commissioner. (Added 21 of 2016 s. 19)
Where any protected product described in subsection (1) contains any information that is subject to legal professional privilege, subsection (1)(c) is to be construed as also requiring the head of the department concerned to make arrangements to ensure that any part of the protected product that contains the information—
in the case of a prescribed authorization for a postal interception or covert surveillance, is destroyed not later than 1 year after its retention ceases to be necessary for the purposes of any civil or criminal proceedings before any court that are pending or are likely to be instituted; or
in the case of a prescribed authorization for a telecommunications interception, is as soon as reasonably practicable destroyed.
For the purposes of this section, something is necessary for the relevant purpose of a prescribed authorization—
in the case of subsection (1)(a), if—
it continues to be, or is likely to become, necessary for the relevant purpose; or
except in the case of a prescribed authorization for a telecommunications interception, it is necessary for the purposes of any civil or criminal proceedings before any court that are pending or are likely to be instituted; or
in the case of subsection (1)(c)—
when it continues to be, or is likely to become, necessary for the relevant purpose; or
except in the case of a prescribed authorization for a telecommunications interception, at any time before the expiration of 1 year after it ceases to be necessary for the purposes of any civil or criminal proceedings before any court that are pending or are likely to be instituted.
Without prejudice to section 59, each department shall keep a record which is to contain—
in respect of each application for the issue or renewal of a prescribed authorization under this Ordinance by any officer of the department, a record of—
the application (including a copy of any affidavit or statement provided under Part 3 for the purposes of the application); and
the determination in respect of the application by the relevant authority (including a copy of any prescribed authorization issued or renewed under Part 3 as a result of the application);
in respect of each application for confirmation of an emergency authorization by any officer of the department as provided for in section 23(1), a record of—
the application (including a copy of any affidavit provided under section 23(2)(b) or, where section 28 applies, a copy of any record, affidavit or other document provided as described in section 28(1)(b), for the purposes of the application); and
the determination in respect of the application by a panel judge (including a copy of any endorsement made or, where section 28 applies, a copy of any emergency authorization issued, under section 24(5) as a result of the application);
in respect of each application for confirmation of a prescribed authorization or renewal by any officer of the department as provided for in section 26(1), a record of—
the application (including a copy of any record, affidavit or statement provided under section 26(2)(b) for the purposes of the application); and
the determination in respect of the application by the relevant authority (including a copy of any prescribed authorization issued or renewed under section 27(5) as a result of the application);
a record of—
any case in which any interception or covert surveillance has been discontinued by any officer of the department under section 57; and
any case in which any prescribed authorization has been revoked under section 57 further to the discontinuance;
in respect of each application for the issue of a device retrieval warrant under section 33 by any officer of the department, a record of—
the application (including a copy of any affidavit provided under section 33(2)(b) for the purposes of the application); and
the determination in respect of the application by a panel judge (including a copy of any device retrieval warrant issued under section 34(3) as a result of the application);
a record of—
any case to which section 23(3) applies by reason that no application for confirmation of an emergency authorization is made within the period of 48 hours by any officer of the department;
any case to which section 26(3) applies by reason that no application for confirmation of a prescribed authorization or renewal is made within the period of 48 hours by any officer of the department; and
any findings in respect of any other irregularities and errors identified or detected by any officer of the department, whether in any regular review conducted under section 56(1) and (2) or otherwise; and
any record reasonably required to be kept by the department to enable the Commissioner to prepare reports for submission to the Chief Executive under section 49, or otherwise to perform any of his functions under this Ordinance.
The record kept under subsection (1)—
to the extent that it relates to any prescribed authorization or device retrieval warrant—
is to be retained for a period of at least 2 years after the day on which the prescribed authorization or device retrieval warrant (as the case may be) has ceased to have effect; and
without prejudice to subparagraph (i), where it has come to the notice of the department concerned that any relevant civil or criminal proceedings before any court are pending or are likely to be instituted, or any relevant review is being conducted under section 41, or, in the case of a prescribed authorization, any relevant application for an examination has been made under section 43, is to be retained—
in the case of any pending proceedings, review or application, for a period of at least 1 year after the pending proceedings, review or application has been finally determined or finally disposed of; or
in the case of any proceedings which are likely to be instituted, for a period of at least 1 year after they have been finally determined or finally disposed of or, if applicable, for a period of at least 1 year after they are no longer likely to be instituted; or
to the extent that it does not relate to any prescribed authorization or device retrieval warrant, is to be retained for a period of at least 2 years.
For the purposes of subsection (2), any proceedings, review or application is, in relation to any part of a record that relates to any prescribed authorization or device retrieval warrant, regarded as relevant if, but only if—
the prescribed authorization or device retrieval warrant (as the case may be) is or may be relevant to the determination of any question for the purposes of the proceedings, review or application (as the case may be); or
in the case of a prescribed authorization, any protected product obtained pursuant to the prescribed authorization is or may be relevant to the determination of any question for the purposes of the proceedings, review or application (as the case may be).
Any telecommunications interception product shall not be admissible in evidence in any proceedings before any court other than to prove that a relevant offence has been committed.
Any telecommunications interception product, and any particulars as to a telecommunications interception carried out pursuant to a relevant prescribed authorization, shall not be made available to any party to any proceedings before any court (other than any such proceedings instituted for a relevant offence).
In any proceedings before any court (other than any such proceedings instituted for a relevant offence), any evidence or question which tends to suggest any of the following matters shall not be adduced or asked—
that an application has been made for the issue or renewal of a relevant prescribed authorization, or the issue of a relevant device retrieval warrant, under this Ordinance;
that a relevant prescribed authorization has been issued or renewed, or a relevant device retrieval warrant has been issued, under this Ordinance;
that any requirement has been imposed on any person to provide assistance for the execution of a relevant prescribed authorization or a relevant device retrieval warrant;
that any information has been obtained pursuant to a relevant prescribed authorization.
Notwithstanding subsection (2) or any other provision of this Ordinance, where, for the purposes of any criminal proceedings (whether being criminal proceedings instituted for an offence or any related proceedings), any information obtained pursuant to a relevant prescribed authorization and continuing to be available to the department concerned might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence—
the department shall disclose the information to the prosecution; and
the prosecution shall then disclose the information to the judge in an ex parte hearing that is held in private.
The judge may, further to the disclosure to him of the information under subsection (4)(b), make such orders as he thinks fit for the purpose of securing the fairness of the proceedings.
Where any order is made under subsection (5) in any criminal proceedings, the prosecution shall disclose to the judge for any related proceedings the terms of the order and the information concerned in an ex parte hearing that is held in private.
Notwithstanding subsection (5), no order made under that subsection authorizes or requires anything to be done in contravention of subsections (1), (2) and (3).
In this section—
judge (法官), in relation to any proceedings, means the judge or magistrate before whom those proceedings are or are to be heard, or any other judge or magistrate having jurisdiction to deal with the matter concerned; party (一方), in relation to any criminal proceedings, includes the prosecution; related proceedings (有關法律程序), in relation to any criminal proceedings, means any further proceedings (including appeal proceedings) arising from, or any proceedings preliminary or incidental to, those proceedings; relevant device retrieval warrant (有關器材取出手令) means a device retrieval warrant for the retrieval of any of the devices authorized to be used under a relevant prescribed authorization; relevant offence (有關罪行) means any offence constituted by the disclosure of any telecommunications interception product or of any information relating to the obtaining of any telecommunications interception product (whether or not there are other constituent elements of the offence); relevant prescribed authorization (有關訂明授權) means a prescribed authorization for a telecommunications interception; telecommunications interception product (電訊截取成果) means any interception product to the extent that it is—(a)any contents of a communication that have been obtained pursuant to a relevant prescribed authorization; or(b)a copy of such contents.Any information that is subject to legal professional privilege is to remain privileged notwithstanding that it has been obtained pursuant to a prescribed authorization.
The Secretary for Security shall issue a code of practice for the purpose of providing practical guidance to officers of the departments in respect of matters provided for in this Ordinance.
Without limiting the generality of subsection (1), the Secretary for Security may in the code of practice specify the form of any application to be made to a panel judge under this Ordinance.
The Secretary for Security may from time to time revise the whole or any part of the code of practice, in a manner consistent with his power to issue the code under this section, and, unless the context otherwise requires, any reference to the code of practice, whether in this Ordinance or otherwise, is to be construed as a reference to the code as so revised.
Any officer of a department shall, in performing any function under or for the purposes of any provision of this Ordinance, comply with the provisions of the code of practice.
A failure on the part of any person to comply with any provision of the code of practice—
is for all purposes not of itself to be regarded as a failure to comply with any provision of this Ordinance; and
without prejudice to paragraph (a), does not affect the validity of any prescribed authorization or device retrieval warrant.
A prescribed authorization or device retrieval warrant is not affected by any minor defect relating to it.
Without limiting the generality of subsection (1), any information (including any protected product) obtained pursuant to a prescribed authorization is not by reason only of any minor defect relating to the prescribed authorization to be rendered inadmissible in evidence in any proceedings before any court.
For the purposes of this section, any reference to minor defect, in relation to a prescribed authorization or device retrieval warrant, includes any defect or irregularity, other than a substantial defect or irregularity, in or in connection with—
the issue, or the purported issue, of that prescribed authorization or device retrieval warrant or of a document purporting to be that prescribed authorization or device retrieval warrant; or
the execution, or the purported execution, of that prescribed authorization or device retrieval warrant or of a document purporting to be that prescribed authorization or device retrieval warrant.
Subject to subsection (2), a person shall not incur any civil or criminal liability by reason only of—
any conduct carried out pursuant to a prescribed authorization or device retrieval warrant (including any conduct incidental to such conduct);
his performance or purported performance in good faith of any function under this Ordinance; or
his compliance with a requirement made or purportedly made under this Ordinance.
Nothing in subsection (1) affects any liability that is or may be incurred by any person by reason only of—
any entry onto any premises without permission; or
any interference with any property without permission.
If a prescribed authorization or a part of a prescribed authorization is revoked under section 24(3)(a)(i), 27(3)(a)(i), 58(2) or 58A(4), the head of the department concerned must make arrangements to ensure that the interception or covert surveillance concerned or the relevant part of the interception or covert surveillance concerned is discontinued as soon as reasonably practicable.
Any protected product that is obtained after the prescribed authorization concerned or the relevant part of the prescribed authorization concerned is revoked and before the interception or covert surveillance concerned or the relevant part of the interception or covert surveillance concerned is discontinued in accordance with the arrangements made by the head of the department concerned under subsection (1) is, for the purposes of this Ordinance, to be regarded as having been obtained pursuant to a prescribed authorization.
(Added 21 of 2016 s. 20)
The Chief Executive in Council may, subject to the approval of the Legislative Council, make regulations for—
the better carrying out of the purposes of this Ordinance; and
without limiting the generality of paragraph (a), prescribing any matter which this Ordinance provides is, or may be, prescribed by regulation made under this section.
The Chief Executive in Council may, subject to the approval of the Legislative Council, amend Schedules 1, 2, 3 and 4 by notice published in the Gazette.
(Omitted as spent—E.R. 7 of 2020)
Where any materials have been obtained by or on behalf of any department by carrying out any telecommunications interception pursuant to an order issued or renewed before the commencement* of this Ordinance under section 33 of the Telecommunications Ordinance (Cap. 106), section 59 applies, with necessary modifications, to the materials, to the extent that they are any of the contents of the communication intercepted or a copy of such contents, as if—
the order were a prescribed authorization issued or renewed under this Ordinance, and accordingly—
the materials were protected product; and
the application for the issue or renewal of the order were an application for the issue or renewal of a prescribed authorization under this Ordinance; and
the purpose sought to be furthered by carrying out the operation required to be carried out under the order were the relevant purpose of the order.
Subsection (1) is in addition to and not in derogation of section 23 of the Interpretation and General Clauses Ordinance (Cap. 1).
Nothing in this section operates to validate or authorize any telecommunications interception carried out pursuant to an order referred to in subsection (1).
| 1. | Customs and Excise Department |
| 2. | Hong Kong Police Force |
| 3. | Independent Commission Against Corruption |
| 1. | Customs and Excise Department |
| 2. | Hong Kong Police Force |
| 3. | Immigration Department |
| 4. | Independent Commission Against Corruption |
A panel judge shall consider any application made to him under this Ordinance in private.
Without prejudice to subsection (1), the application may, where the panel judge so directs, be considered outside the court precincts at any place other than the premises of a department.
The panel judge may consider the application in such manner as he considers appropriate.
For the purpose of performing any of his functions under this Ordinance, a panel judge may administer oaths and take affidavits.
A panel judge shall cause all documents and records compiled by, or made available to, him for any purpose related to the performance of any of his functions under this Ordinance to be kept in a packet sealed by his order, as soon as they are no longer immediately required for the purpose of performing any of his functions under this Ordinance.
Notwithstanding subsection (1), a panel judge to whom any documents or records are made available in the circumstances described in that subsection shall—
cause a copy of each of the documents or records so made available to him to be certified by affixing his seal to it and signing on it; and
cause the copy so certified to be made available to the department concerned.
Where any documents or records are kept in a packet under subsection (1)—
the packet is to be kept in a secure place specified by a panel judge;
the packet may not be opened, and the documents or records may not be removed from the packet, except pursuant to an order of a panel judge made for the purpose of performing any of his functions under this Ordinance (including those performed at the request of the Commissioner under section 53(2) of this Ordinance); and
the packet, and the documents or records, may not be destroyed except pursuant to an order of a panel judge.
Where any packet is opened pursuant to any order of a panel judge referred to in subsection (3)(b)—
if any documents or records have been removed from the packet, the panel judge shall cause the documents or records to be returned to be kept in the packet, as soon as they are no longer immediately required for the purpose of performing any of his functions under this Ordinance; and
the panel judge shall cause the packet to be sealed by his order, as soon as access to the documents or records kept in it is no longer immediately required for the purpose of performing any of his functions under this Ordinance,
and the provisions of subsection (3) apply, with necessary modifications, to the packet so sealed as they apply to the packet referred to in subsection (1).
Nothing in this section prevents any of the documents and records referred to in subsection (1), or any copies of such documents and records, to be made available to the department concerned, whether for the purposes of any relevant written determination provision or pursuant to an order of a panel judge.
An affidavit supporting an application for the issue of a judge’s authorization for interception is to—
state which of the purposes specified in section 3(1)(a)(i) and (ii) of this Ordinance is sought to be furthered by carrying out the interception;
set out—
the form of the interception and the information sought to be obtained by carrying out the interception;
if known, the identity of any person who is to be the subject of the interception;
if known, particulars of the addresses, numbers, apparatus or other factors, or combination of factors, that are to be used for identifying any communication that is to be intercepted;
the proposed duration of the interception;
the grounds for the reasonable suspicion specified in section 3(1)(b) of this Ordinance;
the following information—
where the purpose sought to be furthered by carrying out the interception is that specified in section 3(1)(a)(i) of this Ordinance, the particular serious crime to be prevented or detected and an assessment of its immediacy and gravity; or
where the purpose sought to be furthered by carrying out the interception is that specified in section 3(1)(a)(ii) of this Ordinance, the particular threat to public security, an assessment of its immediacy and gravity, and an assessment of its impact, both direct and indirect, on the security of Hong Kong, the residents of Hong Kong, or other persons in Hong Kong;
the benefits likely to be obtained by carrying out the interception;
an assessment of the impact (if any) of the interception on any person other than that referred to in subparagraph (ii);
the likelihood that any information which may be subject to legal professional privilege, or may be the contents of any journalistic material, will be obtained by carrying out the interception;
the reason why the purpose sought to be furthered by carrying out the interception cannot reasonably be furthered by other less intrusive means; and
if known, whether, during the preceding 2 years, there has been any application for the issue or renewal of a prescribed authorization in which—
any person set out in the affidavit under subparagraph (ii) has also been identified as the subject of the interception or covert surveillance concerned; or
where the particulars of any telecommunications service have been set out in the affidavit under subparagraph (iii), the interception of any communication to or from that telecommunications service has also been sought,
and if so, particulars of such application; and
identify by name, rank and post the applicant and any officer of the department concerned approving the making of the application.
An affidavit supporting an application for the issue of a judge’s authorization for Type 1 surveillance is to—
state which of the purposes specified in section 3(1)(a)(i) and (ii) of this Ordinance is sought to be furthered by carrying out the Type 1 surveillance;
set out—
the form of the Type 1 surveillance (including the kind or kinds of any devices to be used) and the information sought to be obtained by carrying out the Type 1 surveillance;
if known, the identity of any person who is to be the subject of the Type 1 surveillance;
the identity of any person, other than that referred to in subparagraph (ii), who may be affected by the Type 1 surveillance or, if the identity of such person is not known, the description of any such person or class of such persons who may be affected by the Type 1 surveillance;
if known, particulars of any premises or any object or class of objects in or on which the Type 1 surveillance is to be carried out;
the proposed duration of the Type 1 surveillance;
the grounds for the reasonable suspicion specified in section 3(1)(b) of this Ordinance;
the following information—
where the purpose sought to be furthered by carrying out the Type 1 surveillance is that specified in section 3(1)(a)(i) of this Ordinance, the particular serious crime to be prevented or detected and an assessment of its immediacy and gravity; or
where the purpose sought to be furthered by carrying out the Type 1 surveillance is that specified in section 3(1)(a)(ii) of this Ordinance, the particular threat to public security, an assessment of its immediacy and gravity, and an assessment of its impact, both direct and indirect, on the security of Hong Kong, the residents of Hong Kong, or other persons in Hong Kong;
the benefits likely to be obtained by carrying out the Type 1 surveillance;
an assessment of the impact (if any) of the Type 1 surveillance on any person referred to in subparagraph (iii);
the likelihood that any information which may be subject to legal professional privilege, or may be the contents of any journalistic material, will be obtained by carrying out the Type 1 surveillance;
the reason why the purpose sought to be furthered by carrying out the Type 1 surveillance cannot reasonably be furthered by other less intrusive means; and
if known, whether, during the preceding 2 years, there has been any application for the issue or renewal of a prescribed authorization in which any person set out in the affidavit under subparagraph (ii) has also been identified as the subject of the interception or covert surveillance concerned, and if so, particulars of such application; and
identify by name, rank and post the applicant and any officer of the department concerned approving the making of the application.
A statement supporting an application for the issue of an executive authorization for Type 2 surveillance is to—
state which of the purposes specified in section 3(1)(a)(i) and (ii) of this Ordinance is sought to be furthered by carrying out the Type 2 surveillance;
set out—
the form of the Type 2 surveillance (including the kind or kinds of any devices to be used) and the information sought to be obtained by carrying out the Type 2 surveillance;
if known, the identity of any person who is to be the subject of the Type 2 surveillance;
the identity of any person, other than that referred to in subparagraph (ii), who may be affected by the Type 2 surveillance or, if the identity of such person is not known, the description of any such person or class of such persons who may be affected by the Type 2 surveillance;
if known, particulars of any premises or any object or class of objects in or on which the Type 2 surveillance is to be carried out;
the proposed duration of the Type 2 surveillance;
the grounds for the reasonable suspicion specified in section 3(1)(b) of this Ordinance;
the following information—
where the purpose sought to be furthered by carrying out the Type 2 surveillance is that specified in section 3(1)(a)(i) of this Ordinance, the particular serious crime to be prevented or detected and an assessment of its immediacy and gravity; or
where the purpose sought to be furthered by carrying out the Type 2 surveillance is that specified in section 3(1)(a)(ii) of this Ordinance, the particular threat to public security, an assessment of its immediacy and gravity, and an assessment of its impact, both direct and indirect, on the security of Hong Kong, the residents of Hong Kong, or other persons in Hong Kong;
the benefits likely to be obtained by carrying out the Type 2 surveillance;
an assessment of the impact (if any) of the Type 2 surveillance on any person referred to in subparagraph (iii);
the likelihood that any information which may be subject to legal professional privilege, or may be the contents of any journalistic material, will be obtained by carrying out the Type 2 surveillance;
the reason why the purpose sought to be furthered by carrying out the Type 2 surveillance cannot reasonably be furthered by other less intrusive means; and
if known, whether, during the preceding 2 years, there has been any application for the issue or renewal of a prescribed authorization in which any person set out in the statement under subparagraph (ii) has also been identified as the subject of the interception or covert surveillance concerned, and if so, particulars of such application; and
identify by name, rank and post the applicant.
An affidavit or statement supporting an application for the renewal of a judge’s authorization for interception or Type 1 surveillance or an executive authorization for Type 2 surveillance is to—
set out—
whether the renewal sought is the first renewal and, if not, each occasion on which the judge’s authorization or executive authorization has been renewed previously and the duration of each renewal;
any significant change to any information previously provided in any affidavit or statement under this Ordinance for the purposes of any application for the issue or renewal of the judge’s authorization or executive authorization, or for the purposes of any application made further to an oral application for confirmation of the judge’s authorization or executive authorization or its previous renewal;
an assessment of the value of the information so far obtained pursuant to the judge’s authorization or executive authorization;
the reason why it is necessary to apply for the renewal; and
the proposed duration of the interception, Type 1 surveillance or Type 2 surveillance (as the case may be); and
identify by name, rank and post the applicant and any officer of the department concerned approving the making of the application.
An affidavit supporting an application for the issue of a device retrieval warrant for the retrieval of any of the devices authorized to be used under a prescribed authorization is to—
set out—
the kind or kinds of the devices sought to be retrieved;
particulars of the premises or object from which the devices are to be retrieved, and the reason why the applicant considers that the devices are in or on such premises or object;
the estimated time required to complete the retrieval;
an assessment of the impact (if any) of the retrieval on any person; and
the need for the retrieval; and
identify by name, rank and post the applicant.
(Omitted as spent—E.R. 7 of 2020)