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2 H.K. J. Legal Stud. 1 (2008)

handle is hein.journals/hkjls2 and id is 1 raw text is: Through the Public Interest Lens An Evaluation of Surveillance Law in Hong Kong Silvia Sze-wai Yuen The author systematically dissects the legislative framework governing covert surveillance by law enforcement agencies in Hong Kong. She attacks the stance that individual rights and public interest are competing polar opposites. It is argued that public security does not per se take over the right to privacy. The author lays down the development of the surveillance law and proceeds with a critique of the regime. The conclusion reinforces the potential threat that covert surveillance poses. What man art thou that this bescreen'd in night So stumblest on my counsel?' Introduction Background The image of the all-seeing telescreens in George Orwell's Nineteen Eighty-Four haunted us with dire relevance when the District Court remarked on the want of legislative basis for covert surveillance by law enforcement agencies in Hong Kong.2 In HKSAR v Li Man Tak and Others3 and Secretary for Justice v Shum Chiu and Others4, the District Court ruled that the secret recording of communications by the Independent Commission Against Corruption (ICAC) contravened the right to freedom and privacy of communication under art 30 of the Basic Law. In Shum Chiu, it was also held that the covert recording of the meeting between the accused and his solicitors infringed the right to confidential legal advice under art 35 of the Basic Law. These rulings took flight and landed in the headlines,5 thereby setting in motion a series of events which brought covert surveillance under the spotlight of public attention. The author is greatly indebted to Ms Janice Brabyn, Lecturer, Department of Law, The University of Hong Kong, for her inspiration and guidance throughout the process of writing this dissertation. Shakespeare, Romeo and Juliet, II.ii.52-53. 2 HKSAR v Li Man Tak and Others (2005) DC, DCCC 689/2004, 22 April 2005, Sweeney J; Secretary for Justice v Shum Chiu and Others (2005) DC, DCCC 687/2004, 5 July 2005, Deputy Judge Livesey. See also HKSAR v Mo Yuk Ping and Others (2005) DC, DCCC 367, 1334, 360/2004 and 636/2005 consolidated, 23 August 2005, Wright J. The accused applied for a permanent stay of the proceedings based on the conduct by the ICAC in its obtaining authority to intercept telephone communications, the interceptions themselves and the way in which the ICAC dealt with the information gleaned from those interceptions. 3 HKSAR v Li Man Tak and Others (2005) DC, DCCC 689/2004, 22 April 2005, Sweeney J. 4 Secretary for Justice v Shum Chiu and Others (2005) DC, DCCC 687/2004, 5 July 2005, Deputy Judge Livesey. Note Secretary of Justice v Shum Chiu and Others (2005) CFI, HCAL 101/2005, 22 December 2005, Hartmann J. The ruling of Deputy Judge Livesey was quashed as being wrong in law and the matter was remitted to the District Court. 'ICAC Ordered to Halt Bugging of Suspects, The Standard, 23 April 2005; ICAC Bugging in Breach of the Basic Law, Rules Judge, The Standard, 23 April 2005; Judge Flays ICAC over Secret Taping, South China Morning Post, 6 July 2005.

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