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LCQ5: Freedom and privacy of communication of Hong Kong residents shall be protected by law

     Following is a question by the Hon Cyd Ho and a reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (December 3):


     It has been reported that since the 7th of last month, nine Hong Kong residents with no criminal records either in Hong Kong or on the Mainland have been refused entry one after another by mainland border officials when they headed for the Mainland.  These residents include a non-core member of Scholarism, a volunteer of Scholarism who is also an intern assistant to a Legislative Council Member, three university student union members or university students having participated in the "Umbrella Movement" (the Movement), a stewardess-on-duty who is allegedly a supporter of the Movement, and three representatives of the Hong Kong Federation of Students (HKFS) who intended to go to Beijing on the 15th of last month.  The reasons given for refusing their entry include their participation in activities which violated national security or affected national diplomacy, as well as "contravention of the relevant rules".  Some members of the public have expressed the concern that some law enforcement personnel from outside Hong Kong have come to the territory to monitor the activities of members of the public, with a view to restricting the freedom of Hong Kong residents to travel to and from the Mainland.  In this connection, will the Government inform this Council:

(1) whether it has monitored the activities of various social movement organisations such as Scholarism and HKFS as well as their members, and the activities of those members of the public who have participated in the Movement; whether it has kept a blacklist of social activists and forwarded such a blacklist to the Mainland authorities;

(2) of the existing legislation that protects members of the public from the monitoring of their activities by law enforcement personnel from outside Hong Kong, and the channels through which members of the public may lodge complaints or seek assistance when they suspect that their activities have been monitored by law enforcement personnel from outside Hong Kong, so as to protect their privacy; and

(3) whether the existing legislation has any requirement for law enforcement personnel from outside Hong Kong to obtain the authorisation by the relevant authorities for undertaking monitoring activities in Hong Kong; if there is such a requirement, whether the authorities instituted any prosecution in the past three years against law enforcement personnel from outside Hong Kong who had undertaken monitoring activities in Hong Kong without authorisation; if there is no such requirement, whether the authorities will consider making amendments to the Interception of Communications and Surveillance Ordinance to regulate such acts of monitoring; if they will not consider, of the reasons for that?



     The Hon Cyd Ho is concerned about the recent refusal of some Hong Kong residents' entry to the Mainland by Mainland border officials.  I would stress that Hong Kong and the Mainland have their own immigration clearance policies and regimes under which the immigration departments of both sides implement their respective policies.  Relevant law enforcement authorities of the Mainland may, in accordance with the Mainland policies, determine the arrangements with respect to Mainland immigration matters.  For some recent cases in which Hong Kong residents were denied entry to the Mainland, there are people holding the Administration responsible for providing a so-called "blacklist of social activists" to the Mainland authorities.  I maintain that such accusations are totally unfounded, and are nothing more than malicious slander against the law enforcement agencies (LEAs), to which I would note with regret.

     As we all know, over the past 60 days, there have been very extensive and highlighted local media reports of the "Occupy Central" (OC) or the "Occupy Movement", together with wide coverage on the Internet and by overseas media.  Presented lavishly with words and photos, those reports contain such personal data as names, identities and backgrounds of some protesters.

     Besides, by means of current social networking platforms, any person may upload their own audios and videos onto the web for sharing of opinions, stances, acts, etc.  During the OC, there were also cases in which a group of people, while taking no heed of law and order, used the web media to indiscriminately incite others to commit unlawful acts.  This should definitely be condemned.  While posting their opinions, photos and videos online, these people might also have disclosed their personal data.  Given that the Internet is boundary-free, any information uploaded online may eventually go public.

     In consultation with the Constitutional and Mainland Affairs Bureau, I give my reply to the three parts of the Hon Ho's question as follows:

(1) The Administration absolutely does not compile any so-called "blacklists of social activists", not to mention the passing of such lists to any authorities outside Hong Kong.
     Under the Personal Data (Privacy) Ordinance (PD(P)O) (Cap. 486), the handling of personal data is protected by law. Always acting in a lawful manner, the Administration handles the personal data of Hong Kong residents in accordance with the law.

(2) and (3) Article 30 of the Basic Law clearly stipulates that the freedom and privacy of communication of Hong Kong residents shall be protected by law.  No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.

     At present, no lawful channels are in place for law enforcement officers from other jurisdictions to conduct surveillance in Hong Kong.

     As far as the Interception of Communications and Surveillance Ordinance (ICSO) (Cap. 589) is concerned, I have to make it clear that the purpose of the ICSO is not related to the concerns raised in the question.  The purpose and designated scope of the ICSO are to regulate lawful interception of communications and surveillance by designated LEAs in Hong Kong for the prevention and detection of serious crimes and the protection of public security.  In addition to a complicated and sophisticated mechanism, there are stringent provisions under the ICSO to govern LEAs' submission of applications to panel judges for the authorisation of interception of communications and surveillance according to statutory procedures and requirements.  The ICSO does not apply to non-public officers.  Nor is it applicable to non-governmental organisations or individuals.  The Administration has no intention to amend the ICSO to cover non-public officers.

     Any acts of interception of communications by non-public officers may contravene the provision of wilful interception of messages by a telecommunications officer under section 24 of the Telecommunications Ordinance (Cap. 106), or the provision of damaging, removing or interfering telecommunications with intent under section 27 of the same.  Such acts shall be under the regulation of the PD(P)O if collection of personal data is involved.

     Thank you, president.

Ends/Wednesday, December 3, 2014
Issued at HKT 15:19


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