APPLICATION FOR EXAMINATION

The law

1.     Under section 43 of the Interception of Communications and Surveillance Ordinance, Cap 589 ('the Ordinance'), a person may apply in writing to the Commissioner on Interception of Communications and Surveillance ('the Commissioner') for an examination if he suspects that he is the subject of any interception or covert surveillance activity that has been carried out by officers of the law enforcement agencies ('LEAs'). Pursuant to section 44, upon receiving an application, the Commissioner shall, save where the circumstances set out in section 45 apply, carry out an examination to determine:

(a)	whether or not the suspected or alleged interception or covert surveillance has taken place; and
(b)	if so, whether or not such interception or covert surveillance has been carried out by an officer of a department without the authority of a prescribed authorization.

2.     After the examination, if the Commissioner finds the case in the applicant's favour, he will, subject to certain provisions of the Ordinance, notify the applicant concerned and invite him to confirm whether he wishes to seek an order for the payment of compensation under the application, and if so, to make written submissions for that purpose.  The submissions will be taken into account by the Commissioner in considering the award of compensation to the applicant to be paid by the Government.

Grounds for not carrying out an examination

3.     Under section 45(1) of the Ordinance, the Commissioner may refuse to carry out an examination if he considers that:

(a)	the application is received by him more than one year after the last occasion on which the suspected interception or covert surveillance is alleged to have taken place;
(b)	the application is made anonymously;
(c)	the applicant cannot be identified or traced after the use of reasonable efforts; or
(d)	the application is frivolous or vexatious or is not made in good faith.

4.     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, section 45(2) mandates the Commissioner not to carry out the examination or proceed with the carrying out of the examination until the criminal proceedings have been finally determined or finally disposed of or until they are no longer likely to be instituted.  Relevant criminal proceedings, as defined under section 45(3), are those where the interception or covert surveillance alleged in the application for 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.

Elaboration on the application requirements

5.     From the initial applications or letters of complaint received in the past few years, the Commissioner has found that a large number of applicants and complainants did not quite understand the basis of an application for examination under the Ordinance.  Such lack of understanding would inevitably generate delay in the process of the application and suspicion on the part of the applicant that the Commissioner might not be dealing with the application or complaint in good faith.

6.     It is only when the proper basis of an application is satisfied that the Commissioner is entitled to institute the process of his examination of the case.  The proper basis is to satisfy both of the following requirements, namely,

(a)	there is suspicion of interception of communications or covert surveillance that has been carried out against the applicant; and
(b)	the suspected interception or covert surveillance is suspected to have been carried out by one or more of the officers of one or more of the LEAs under the Ordinance.

7.     The LEAs under the Ordinance are set out in Schedule 1 to the Ordinance, namely, Customs and Excise Department, Hong Kong Police Force, and Independent Commission Against Corruption regarding interception, and the same departments plus Immigration Department regarding covert surveillance.

8.     Regarding requirement (a), one usual complaint was that the complainant was surreptitiously or openly followed or stalked by officers of an LEA.  This normally would not satisfy the proper basis for an application for examination, because the matter complained of is not an interception of communications and it does not qualify as a covert surveillance under the Ordinance because there was no suspicion of any surveillance device within the statutory definition being used.  There were also complaints of the complainant being implanted in the brain or another part of the body a device that incessantly or occasionally talked to him/her or urged him/her to do something or impersonated him/her to speak to other people.  All these again do not form a proper basis for an application for the Commissioner to initiate an examination, the reason being that the device suspected to be used does not fall within the kind or type of devices under the Ordinance the use of which would constitute a covert surveillance, namely, listening device, optical device, tracking device or data surveillance device.

9.     As regards requirement (b), some complainants described how an employer or a particular person, as opposed to an LEA officer, carried out the suspected interception or covert surveillance.  This fails to satisfy this second requirement for the Commissioner to entertain an application or to initiate an examination.

Disclosure of reasons for determination not allowed

10.     In performing his examination functions, amongst others, under the Ordinance, the Commissioner shall take heed not to divulge any information the disclosure of which may prejudice the prevention or detection of crime or the protection of public security.  For instance, the Commissioner is not allowed to disclose to an unsuccessful applicant the reason why he has reached the determination of finding not in favour of the applicant's case [section 46(4)(a)], meaning that the application is not successful, or even indicate whether any interception or covert surveillance alleged has taken place [section 46(4)(c)].  This statutory prohibition is designed to forbid the disclosure of any sensitive and secret information as mentioned above, thus preventing the provision of an advantage to criminals or possible criminals over the LEAs in the latter's efforts in fighting crimes and in protecting the safety of the community in Hong Kong.

How to apply for an examination under section 43

11.     If you suspect that you are the subject of any interception or covert surveillance activity that has been carried out by officers of one or more of the LEAs under the Ordinance, you may apply to the Commissioner for an examination.  Your application is to be made in writing.  In so doing, you should give a full account of your case and send your application letter together with the duly completed Consent Form on the use of personal data to the Commissioner's office at Units 1501 - 1504, 15/F, 248 Queen's Road East, Wanchai, Hong Kong.

Procedure involved in handling an application for examination

12.     If the Commissioner considers that an examination in respect of an application should be conducted, the Commissioner's office will make enquiries with the specified LEA who, as the applicant alleges, has carried out either interception or covert surveillance against the applicant as to whether any such statutory activity has taken place, and if so the reason why.  Enquiries will also be made with the panel judges' office as to whether any authorization has been granted by any panel judge for the particular LEA to carry out any such activity, and if so the grounds for so doing.  Further enquiries with other parties and other investigations will be pursued if that may help obtain evidence regarding the existence or otherwise of any such alleged statutory activity.  The results obtained from the enquiries will be compared and counterchecked to ensure correctness.  Other than the information given above, it is undesirable to disclose more details about the methods used for the examination of applications or about the examinations undertaken, because that would probably divulge information relating to the prevention or detection of crime or to the protection of public security, which would put the LEAs in a disadvantageous position as against criminals or possible criminals.