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Following is a question by the Hon Chan Chi-chuen and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (February 25):
Question:
According to the Registration of Persons Regulations (Cap. 177 sub. leg. A), every Hong Kong resident shall apply for an identity card within 30 days of his 11th birthday. In addition, the Immigration Ordinance (Cap. 115) stipulates that every identity card holder who has attained the age of 15 shall have with him at all times his identity card. In this connection, will the Government inform this Council:
(1) of the justifications for the authorities to authorise, through legislation, law enforcement officers to demand members of the public in public places to produce proof of identity for inspection; if the justifications are mainly concerned with the identification of illegal immigrants, whether the authorities will, in the light of the downward trend of the number of illegal immigrants arrested in recent years, review or abolish the relevant authorisation;
(2) of the respective numbers of cases in each of the past three years in which Hong Kong residents aged 11 or above were prosecuted and convicted for failing to apply for identity cards within the specified timeframe;
(3) of the respective numbers of cases in each of the past three years in which Hong Kong residents aged 15 or above were fined, detained and arrested for failing to produce proof of identity on the demand of law enforcement officers;
(4) of the respective numbers of persons who were prosecuted and convicted in each of the past three years for possessing or making forged proof of identity;
(5) of the expenditure on and staff establishment for handling new registration and replacement of smart identity cards in each of the past three years;
(6) given that the Government is planning to introduce the next generation smart Hong Kong Identity Cards (HKIC) for all HKIC holders from 2018 to 2022, whether the authorities have consulted the Office of the Privacy Commissioner for Personal Data (OPCPD), so as to ensure that the practices of collection, handling, storage and disclosure of personal data under the Next Generation Smart Identity Card System (SMARTICS-2) comply with relevant legislation; if the authorities have so consulted, of OPCPD's views;
(7) given that SMARTICS-2 will introduce an additional interface to support the use of wireless technology, so that the data stored in the chips of identity cards can be read by a chip reader within a distance of two centimetres, whether the authorities have measures in place to prevent lawbreakers from reading the relevant data; if the authorities do, of the details; if not, how the authorities ease the worries of the public;
(8) whether it knows the current number of countries the national identity cards issued by which involve the use of wireless technology to read the data stored in the chips of the identity cards; whether these countries have uncovered cases in which the personal data stored in the chips of the identity cards were read unlawfully without the knowledge of the card holders; and
(9) given that the Government of the United Kingdom (UK) announced the abolition of its identity card scheme in 2010, in the hope of saving about £800 million within 10 years, whether the authorities know if there are other countries that have followed UK's practice; if there are, of the reasons why such countries have abolished their identity card schemes; whether the Hong Kong Government will consider following UK's practice in this regard?
Reply:
President,
According to Article 24 of the Basic Law, residents of the Hong Kong Special Administrative Region (HKSAR) shall include permanent residents and non-permanent residents. Hong Kong permanent residents shall have the right of abode in the HKSAR and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode. The non-permanent residents of the HKSAR shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode.
The Registration of Persons (ROP) Ordinance (Cap. 177) aims to provide for the registration of and recording of particulars relating to persons in Hong Kong and persons elsewhere who have the right of abode in Hong Kong, for the issue, carrying, production and application of identity cards and for purposes connected therewith. The ROP Regulations (Cap. 177A) are made under section 7 of the ROP Ordinance. According to section 3 of the ROP Ordinance and regulations 3, 25 and 25A of the ROP Regulations, every person in Hong Kong aged 11 or above (including those who have been permitted to stay in Hong Kong for more than 180 days) is required to be registered and apply for an identity card unless exempted under or excluded from the provisions of the ROP Ordinance and ROP Regulations. Besides, regulation 22 of the ROP Regulations provides that a valid permanent identity card shall be evidence that the person to whom the card relates enjoys the right of abode in Hong Kong.
Regulation 11(1) of the ROP Regulations provides that the Chief Executive in Council may, by order published in the Gazette, require that every person, or every person of such class or such description as may be specified in the order, shall carry his identity card when in such area or place, on such occasion, for such purpose or in such circumstance as may be specified in the order. Regulation 11(2) of the ROP Regulations stipulates that any police officer or member of the Immigration Service may, during the currency of an order made under regulation 11(1), require any person to whom the order relates to produce his identity card on demand for inspection.
On the other hand, according to section 17C(1) of the Immigration Ordinance (Cap. 115), every person who has attained the age of 15 years and is the holder of an identity card or is required to apply to be registered under the ROP Ordinance shall have with him at all times proof of his identity. Section 17B(1)(a) of the Immigration Ordinance provides that proof of identity in relation to any persons includes, but is not limited to, his valid identity card.
Section 49 of the Public Order Ordinance (Cap. 245) provides that where a police officer reasonably believes that it is necessary for the purpose of preventing, detecting or investigating any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment, the officer may require any person to produce proof of his identity for inspection. The proof of identity as mentioned includes, but is not limited to, his valid identity card. Moreover, police officers are empowered under sections 54(1) and 54(2) of the Police Force Ordinance (Cap. 232), whereas members of the Immigration Service are empowered under section 5(6) of the Immigration Ordinance and sections 12(1) and 14(1) of the Immigration Service Ordinance (Cap. 331), to demand the production of proof of identity by specified persons under specified conditions as stipulated in the respective ordinances. Such proof of identity also includes, but is not limited to, their valid identity cards.
On top of the above, there are other ordinances concerning the enforcement of law in areas such as environmental protection, education, public health, urban renewal and town planning, etc. Under these specific ordinances, an officer duly authorised is empowered to inspect the identity card of any person whom he has reason to believe that he is related to an offence which has been or is being committed.
Regarding the numbers of intercepted illegal immigrants and persons arrested for unlawful employment, there is indeed an increasing trend in recent years -
Year Illegal Immigrants Illegal Workers
---- ------------------ ---------------
2012 2 042 5 849
2013 2 170 6 052
2014 2 720 6 100
Our response to the various parts of the question raised by the Hon Chan Chi-chuen is as follows:
(1) As mentioned above, apart from the provisions of the ROP Ordinance, the ROP Regulations and the Immigration Ordinance, ordinances in a number of various different areas also authorised relevant officers to certain class of persons to produce their proof of identity (including a valid Hong Kong identity card) for inspection under specified circumstances. In order to continue combating illegal immigrants and unlawful employment effectively, as well as to cater for other law enforcement needs, the Government considers it necessary to maintain the provisions of the relevant ordinances and regulations.
(2) According to our records, there were no cases in the past three years where persons were prosecuted or convicted for failing to apply for identity cards within the specified timeframe under the ROP Ordinance and the ROP Regulations.
(3) According to our records, the number of Hong Kong residents aged 15 or above prosecuted/convicted in the past three years for breaching relevant provisions of the Immigration Ordinance, the Public Order Ordinance, the Police Force Ordinance or the Immigration Service Ordinance due to a failure to produce their proof of identity on the demand of police officers or members of the Immigration Service is as follows –
Year 2012 2013 2014
(as at
September)
---- ---- ---- ----------
Prosecuted 80 84 73
Convicted 69 72 61
--------- -- -- --
Fine 56 61 49
Caution/ 12 11 12
Absolute
discharge
Others 1 0 0
(e.g. Community
Service Order,
etc.)
(4) According to our records, the number of cases of prosecution/conviction in the past three years for breaching section 7A(1) of the ROP Ordinance by using or having in custody or possession of a forged identity card is as follows –
Year 2012 2013 2014
(as at
September)
---- ---- ---- ----------
Prosecuted 338 303 274
Convicted 331 297 271
The Government does not maintain relevant statistics on cases of prosecution/conviction for the making of forged identification documents.
(5) The Immigration Department (ImmD) does not maintain the breakdown on the number of staff deployed or the expenditure involved in handling relevant applications.
(6) As mentioned in the paper that we submitted to the Legislative Council Panel on Security (LC Paper No. CB(2)654/14-15(03)), the ImmD will engage external consultants to conduct Privacy Impact Assessments (PIAs) at different stages of implementing the Next Generation Smart Identity Card System (SMARTICS-2), namely during feasibility study, System Analysis and Design, and before and after system rollout. Such assessment reports will be submitted to the Privacy Commissioner for Personal Data (PCPD) for comment to ensure the effectiveness of the security measures in protecting personal information in SMARTICS-2 and smart Hong Kong Identity Card (HKIC). The external consultant has already completed the first PIA on SMARTICS-2 and confirmed that access protection measures such as Basic Access Control (BAC) and mutual authentication were effective means to prevent unauthorised access to personal data stored in the smart HKIC through contactless interface. The ImmD has submitted the PIA report and the related parts of the feasibility study report to the PCPD for comment. We will report to the Panel on Security upon receipt of PCPD's comment in due course.
(7) As mentioned in the paper that we submitted to the Legislative Council Panel on Security (LC Paper No. CB(2)654/14-15(03)), the proposed new smart HKIC will be designed strictly in accordance with ISO 14443 (type A or B), a proven and internationally adopted standard for smart card chips for secured documents. In addition, with a view to ensuring trusted and secured wireless communication and data transmission between the chip and the reader and preventing "passive" or "remote" reading of chip data, access to the chip must be initiated by the cardholder. In addition, identity of the chip and the reader must be defined, mutual authentication must be confirmed before communication, and all communication and data transmission must be encrypted throughout the process. The chip in the proposed new smart HKIC will not be powered by any standalone battery and will not be able to send out any signal by itself. Reading of chip data through wireless data transmission can only be done if all of the following five steps are carried out: (i) the smart HKIC card is directly placed onto an authorised card reader by the cardholder; (ii) a non-unique key text string will be captured by the card reader; (iii) the first encrypted key generated by the reader will be authenticated by the chip; (iv) after the encrypted key is authenticated, the real-time and exclusive encrypted communication channel will be established; and (v) the reader will submit a second encrypted key to the chip for authentication in order to turn on the data transmission function where data, with proven encryption technology, can be transmitted securely in the encrypted communication channel. Reading of chip data through wireless data transmission will only start to function if all of the specific steps outlined above are successfully carried out. Therefore, if the cardholder does not take out the smart HKIC himself/herself, or if there is no encrypted key in the specific card reader authorised with certificate, no one can read the data in the chip.
Furthermore, the existing legislation also provides stringent safeguards to information in the chip on the smart HKIC. Pursuant to regulation 12(1A)(b) of the ROP Regulations, any person who, without lawful authority or reasonable excuse, gains access to any data stored in a chip shall be guilty of an offence and liable to a fine at level 4 (HK$25,000) and to imprisonment for two years.
(8) As far as we understand, countries or regions with identity cards adopting contactless interface which supports BAC and/or related technologies include Germany, Chile, the Netherlands, Finland, Sweden, Malaysia and the Macao Special Administrative Region, etc. Up till now, there is no information indicating that there are incidents where identity card information was retrieved without the cardholder's knowledge in those places.
(9) As far as we understand, before 2010, identity cards were issued by the British Government on voluntary application. British nationals may apply at will for such identity card for use as identification document and travel document to travel in and out of the European Union. As regards Hong Kong, considering paragraphs one to six and our reply to Part (1) of the Question above, the Government considers it necessary to maintain the existing provisions in relation to identity cards.
Ends/Wednesday, February 25, 2015
Issued at HKT 18:16
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