UPDATE ON COVERT SURVEILLANCE AND WIRETAPPING

C O N F I D E N T I A L SECTION 01 OF 03 HONG KONG 001656

SIPDIS

SIPDIS

NSC FOR DENNIS WILDER
DEPT FOR EAP/CM

E.O. 12958: DECL: 01/12/2031
TAGS: PGOV PHUM PREL HK CH PINR MC
SUBJECT: UPDATE ON COVERT SURVEILLANCE AND WIRETAPPING
LEGISLATION

REF: A. HONG KONG 0465

B. HONG KONG 0523

Classified By: E/P Chief Simon Schuchat. REASONS: 1.4(b,d).


1. (C) Summary: As committee debate continues in the
Legislative Council (Legco) on the Government's bill to
regulate covert surveillance and wiretapping, critics of the
legislation say they want to amend several troubling aspects
of the legislation. Two prominent legal groups recently
issued reports citing flaws in the bill )- most notably the
vagueness of the term "public security," which the bill uses
as a justification for surveillance, and the proposal that
warrants to conduct surveillance be issued by a panel of
judges appointed by the Chief Executive (CE),which critics
argue could lead to politicization. A Justice Department
official told us that the Government was trying to address
legislators' concerns, but was unwilling to abandon these two
points. A pro-democracy legislator said that the Government
is being fairly flexible in its negotiations with
legislators. Legco is expected to vote on the bill by early
July, and passage seems likely. End Summary.

Legal Groups Cite Flaws in Government's Bill
--------------


2. (C) On March 24, the Law Reform Commission of Hong Kong
(LRC),a public body composed of legal professionals
appointed by the Chief Executive, issued recommendations on
covert surveillance legislation (the report can be found at
www.hkreform.gov.hk). The LRC proposal differs in several
key respects from the Government's bill, which was tabled in
Legco on March 8 (see ref a). Specifically, while the
Government's bill allows for compensation for those wrongly
surveilled, it has no provision requiring the Government to
notify such persons and merely provides for internal
disciplinary action in these cases. The LRC recommendation
calls for a notification system and proposes making officials
criminally liable if they carry out surveillance without
prior authorization. The LRC proposal also recommends that
warrants to conduct covert surveillance be issued by a court
rather than by a special panel of judges appointed by the CE,
as outlined in the Government's bill. This feature of the
Government's plan has been sharply criticized as allowing for
politicization of the system. (Comment: It is highly unusual
for the Government to table legislation before getting the
LRC's views, which carry significant weight. The LRC's
chairman is the Secretary for Justice, and its members
include the Chief Justice of the Court of Final Appeal, who
is second only to the CE in the precedence list of the HKG.
The move is an indication of the Government's desire to
expedite the legislation (see ref a). End Comment.)


3. (SBU) On April 3, the Hong Kong Bar Association (HKBA)
released a report criticizing the Government bill as "too
vague." The Government's bill says that law enforcement
agencies can only seek authorization to conduct covert
surveillance to prevent or detect "serious crime" or to
safeguard "public security." The legislation defines
"serious crime" as any offense punishable by at least seven
years imprisonment when seeking wiretapping authority, and at
least three years imprisonment when seeking covert
surveillance authority. However, the HKBA said the scope of
the term "serious crime" is too broad. It recommended that
the Government specify an "enumerated list of offenses."
Likewise, the group called the term "public security" too
vague and ill-defined to be included in the law. HKBA
chairman Philip Dykes said "I am still puzzled by the
wording... it is clearly not national security. No Hong Kong
law gives law enforcement the power to protect 'public
security'." The director of Hong Kong Human Rights Monitor,
Law Yuk-kai, reportedly agreed that "public security" was "a
rather confused concept." Legislator Margaret Ng worried
that inclusion of the term would broaden the scope of the law
to allow covert surveillance even where there was no serious
crime. She speculated that the law could even be used to
eavesdrop on attorney-client communications.


4. (SBU) The HKBA, various legislators, and civil rights
groups have also voiced concerns about a provision of the
legislation thatwould require judges and their relaties to
undergo a security or "integrity" check. Government
officials say the integrity checks are designed to protect
classified information, and to minimize the risks that panel
judges would have family members or friends whose cases would
come before the panel. Philip Dykes said "There is no case
for vetting judges because, bydefinition, a judge can be

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trusted with sensitive information." Several lawmakers also
called the Government's concern over potential conflicts of
interest "ridiculous" since it was impossible to predict in
advance what cases would come before the panel. During the
reading of the bill to Legco on March 8, Secretary for
Security Ambrose Lee tried to reassure legislators by
stating, "The pre-appointment check is not political vetting.
Anyone with access to sensitive government papers has to go
through it." Despite these assurances, pro-democracy
lawmakers remained concerned that the proposed law grants too
much power to the executive and could limit judicial
independence.

HKG Showing Flexibility in Negotiations
--------------


5. (C) Democratic Party legislator James To, who is a member
of the Bills Committee that is scrutinizing the legislation,
told poloff on April 19 that the Government is being fairly
flexible in its negotiations with Legco over the bill. To
speculated that CE Donald Tsang wanted to avoid negative
media coverage over the next several months, a period when,
according to To, Beijing will be deciding whether it wants to
back Tsang for re-election. Officials are also keen to avoid
an "Article 23 scenario," To said, in reference to the
Government's failed attempt in 2003 to enact national
security legislation.


6. (C) Nevertheless, To believes the HKG's hands are tied on
two issues which he believes are "red lines" for Beijing )-
the system of appointed judges, and the inclusion of the term
"public security." To described how the Government sought to
address legislators' concerns on both of these issues by
offering to include language that specifically ruled-out any
nefarious scenarios that legislators could mention. However,
they steadfastly refuse to eliminate the term "public
security." This suggested to To that Beijing was behind the
inclusion of this term, though he offered no evidence to
support his claim. The main point of contention, however,
remains the proposal to allow the CE to appoint a panel of
judges to issue wiretapping and covert surveillance warrants,
To said.

The Government's Response
--------------


7. (C) Ian Wingfield of Justice Department's International
Law Office told poloff on April 20 that the Government was
trying to address legislators' concerns, but was unwilling to
compromise on two points -- the inclusion of the exception
for protecting "public security," and the appointment of
panel judges by the CE. Wingfield argued that, because of
its international obligations, the HKG simply could not
restrict covert surveillance to cases where there is a
suspected violation of Hong Kong law. He cited the examples
of terrorism and WMD proliferation, where suspects may not be
suspected of violating any Hong Kong law, but where the
Government has a clear international obligation to collect
information about their activities. Wingfield said that some
lawmakers were being too parochial in their thinking. Media
reports have also speculated that the Government might need
to conduct covert surveillance in cases involving public
health, such as SARS or bird flu, though Wingfield did not
make this argument.


8. (C) To address lawmakers' concerns, Wingfield said the
Government was willing to write specific exclusions into the
law. For example, many legislators are concerned that the
Government could use the "public security" exception to
conduct covert surveillance of public demonstrations.
Wingfield said the Government would probably include language
specifically ruling-out covert surveillance and wiretapping
in the case of peaceful public demonstrations. He also
thought that an exception for attorney-client privilege was
also "a good idea," but he stressed that it was simply not
possible to enumerate a comprehensive list of things that the
law does not cover, and he suggested that the text of the
bill was already growing unwieldy.


9. (C) Wingfield said the most contentious issue was the
proposal giving the CE the power to appoint a panel of judges
to issue warrants. Wingfield was "surprised" by legislators'
objections since the CE already has the constitutional
authority to appoint all judges, with the recommendation of
the judiciary. He suggested that a possible compromise was
to require the Chief Justice of the Court of Final Appeal to
recommend judges to the CE, who would then make the

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appointments. Wingfield was hopeful that this would allay
legislators' concerns about politicization of the process.


10. (C) The Government is not willing to require a broad
system of after-the-fact notification of those surveilled as
recommended by the LRC, Wingfield said. Wingfield argued
that such a system was impractical. The most the Government
would concede on this issue was to allow persons who suspect
they were wrongly surveilled to make a complaint to a
supervisory authority -- established to review whether
warrants were issued correctly and executed in accordance
with their conditions -- which would then be required to
reach a conclusion as to whether the complaint was valid. If
the complaint were found to be valid, the law would allow for
compensation.

Enactment Virtually Assured This Summer
--------------


11. (C) Despite the criticism of the Government's bill, To
believes the legislation has the votes to pass. The pro-PRC
Chinese-language daily "Wen Wei Po" reported on March 8 that
both the Liberal Party and the Democratic Alliance for the
Betterment and Progress of Hong Kong (DAB) would support the
legislation, virtually ensuring its passage. Nevertheless,
To is hopeful that legislators will be able to amend the bill
to address some of their concerns during the markup process
over the next few months. He noted that even the DAB
supported some of the proposed changes, including the LRC
proposal for a notification system. To added that the DP had
not yet decided whether it would support the bill. Legco is
expected to vote on the legislation before it breaks for
summer recess in early July. The High Court's six-month
suspension of its February ruling invalidating the CE's
authority to conduct covert surveillance expires on August 8
(see ref b).
Cunningham