LCQ17: The making of an audio recording of a conversation by a party thereto without the knowledge of the other party
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Question:
I have learnt that recently, when meeting a public officer, an assistance seeker made, without informing the other party, an audio recording of their conversation. Upon learning about the incident, the public officer was dissatisfied and relayed it to a supervisor. In this connection, will the Government inform this Council whether:
(1) it has studied if, in the event of a public officer facing a criminal trial or disciplinary inquiry, audio recordings of his/her conversations with other persons made without his/her knowledge will normally be admitted as evidence; if it has studied and the outcome is in the affirmative, whether it has assessed if such a situation is tantamount to encouraging the making of an audio recording of the contents of a conversation by a party thereto without the knowledge of the other party;
(2) it has studied under what circumstances the audio recording of a conversation by a party thereto without the knowledge of the other party will constitute the offence of "access to computer with criminal or dishonest intent" under section 161 of the Crimes Ordinance (Cap. 200); when a public officer reports a similar incident to the Police, whether the Police will conduct criminal investigation to find out if anyone has committed the said offence; if they will not, what type of case into which the relevant incident will be classified by the Police for handling; and
(3) it will implement effective measures to promote mutual trust between public officers and members of the public so as to reduce the occurrence of similar incidents; if so, of the details; if not, the reasons for that?
Reply:
President,
Having consulted the Department of Justice and the Security Bureau, our replies to different parts of the question are appended below:
(1) In respect of criminal trial, the court has discretion to decide on the admissibility of the evidence concerned, and the main consideration factors include the evidential value; whether there is prejudicial effect; the identity of the person making the recording as well as the reason and motive; the accusation against the public officer involved; and the nature of the court proceeding seeking the admission of the recording, etc. According to case law, covert recordings are not absolutely inadmissible as evidence.
As regards disciplinary hearings, there is also no general rule precluding all covert recordings from being admitted as evidence. Bureau or department must consider whether the audio recording may prove the relevant facts and whether it would be fair and just to admit it as evidence in hearings. It depends on the circumstances of individual case and there is no hard and fast rule for all such cases.
(2) According to section 161(1) of the Crimes Ordinance (Cap. 200), any person who obtains access to a computer with the following criminal or dishonest intent commits an offence and is liable on conviction upon indictment to imprisonment for five years:
(a) with intent to commit an offence (whether on the same occasion as he obtains such access or on any future occasion);
(b) with a dishonest intent to deceive (whether on the same occasion as he obtains such access or on any future occasion);
(c) with a view to dishonest gain for himself or another (whether on the same occasion as he obtains such access or on any future occasion); or
(d) with a dishonest intent to cause loss to another (whether on the same occasion as he obtains such access or on any future occasion).
Whether recording a discussion of two parties without the knowledge of the other party would amount to the offence of "access to computer with criminal or dishonest intent" would depend on whether the device used is a computer, and the reasons and intent of the recording, etc. According to case law, a smart phone can legally be regarded as a computer.
The Police will investigate any reported case in detail. However, whether the act involved in a case constitutes an offence would require careful consideration of the details of the case, including the evidence obtained, and taking into account the legal advice sought as necessary. Upon receiving request for legal advice from law enforcement agency, the Department of Justice would consider the relevant law, the Prosecution Code and the actual circumstances of the case in deciding whether to take forward criminal prosecution.
(3) The Civil Service Bureau promulgated the Civil Service Code in 2009 to set out core values including commitment to the rule of law; honesty and integrity; objectivity and impartiality; and dedication, professionalism and diligence, etc. These values not only underpin good governance, they also help maintain trust of the general public.
In addition, the Civil Service Training and Development Institute organises regular courses on complaint management, handling disputes, public engagement, communication skills, etc. The aim is to help minimise conflicts between civil servants and the general public, and enhance mutual understanding and trust.
Ends/Wednesday, June 14, 2017
Issued at HKT 15:30
Issued at HKT 15:30
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