UPDATE ON COVERT SURVEILLANCE AND WIRETAPPING

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 002493

SIPDIS

SIPDIS

NSC FOR DENNIS WILDER
DEPT FOR EAP/CM

E.O. 12958: DECL: 06/15/2031
TAGS: PGOV PHUM PREL HK CH PINR MC
SUBJECT: UPDATE ON COVERT SURVEILLANCE AND WIRETAPPING
LEGISLATION: SLOW PROGRESS AND GROWING IMPATIENCE

REF: A. HONG KONG 0523

B. HONG KONG 1656

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


1. (C) Summary: The government is becoming frustrated with
the Legislative Council's (Legco) slow progress in
scrutinizing a covert surveillance and wiretapping bill and
has signaled that it may force a vote by August 2. On June
12, Secretary for Security Ambrose Lee called the progress
"unsatisfactory" and said he might seek a special Legco
session on August 2 to vote on the bill. While eventual
passage of the bill is all but certain, the Government blames
pan-democratic members of the Bills Committee for the slow
progress and is attempting to increase pressure on them by
warning of dire consequences if the legislation is not passed
by the August 8 deadline. Pan-democratic legislators say
they are moving as expeditiously as possibly given the
complexity of issues. A complicating factor is the Court of
Final Appeal's agreement to hear a judicial challenge to the
lower court's February ruling granting the Government a
six-month grace period to enact legislation (see ref a).


2. (C) Comment: These are difficult issues for any modern
society. Particularly after the Article 23 debacle, however,
Hong Kong's democracy and civil rights advocates (as well as
much of the general public) are extremely sensitive to
potential infringement of their traditional rights and
freedoms. The intense scrutiny of every word in this bill by
pan-democratic legislators (whose ranks include many of Hong
Kong's most prominent lawyers),and the drive to insert a
judicial role into the process of authorizing surveillance,
is further evidence that many democracy and civil rights
advocates here see the court system as their final line of
defense. End Comment and Summary.

Government Seeking Consensus, But Growing Impatient
-------------- --------------


3. (C) While all sides appear to be working in good faith to
enact covert surveillance legislation before the
court-imposed grace period ends on August 8 (see ref a),the
government is clearly frustrated with Legco's slow progress
and has signaled that it may force a vote by August 2. On
June 12, Secretary for Security Ambrose Lee, speaking on a
radio program, said the Legco Bills Committee's progress in
scrutinizing the legislation was "unsatisfactory." The
committee has set a June 23 deadline for conclusion of its
work, but thus far has completed only 12 of the bill's 65
clauses. Lee suggested that Legco might have to stay in
session during its summer recess, which normally runs from
mid-July to early October, to work on the bill. Lee also
said he might ask Legco President Rita Fan to convene a
special Legco session on August 2 to vote on the bill.
Committee member Philip Wong, who supports the government and
is familiar with its plans, told us on June 14 that the
government had decided to work right up to the deadline to
gain the support of the pan-democratic camp. However, with
or without such support, Wong predicted the government would
force a vote by August 2, though they "don't want to do it
unless absolutely necessary." Wong added that he had already
cancelled his summer travel plans in anticipation of an
extended session.


4. (C) The government has the power to demand an up or down
vote on its bill at any time, and passage seems all but
certain. Prior to such a vote, Legco members would have the
right to offer amendments, but those amendments would require
majority support from both the geographical and functional
constituency halves of Legco. While the pan-democratic camp
holds 18 of 30 geographic constituency seats, it has only 7
of 30 functional constituency seats, making amendment of the
bill virtually impossible without government support. Both
pro-government parties, the Liberal Party and the Democratic
Alliance for the Betterment and Progress of Hong Kong (DAB),
have already indicated their support for bill (see ref b).

"Bad Guys" Would Take Over
--------------


5. (C) The Government is also attempting to increase pressure
on the pan-democrats by warning the public of dire
consequences if the legislation is not passed by the August 8
deadline. "If we don't have this law in place when the
six-month grace period ends, there will be a vacuum where law
enforcement agents will not have the legislative backing to
carry out their work," Lee said on the same radio program.
He added ominously, "the bad guys will take over" if the

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legislation is not passed. Several pro-government media
outlets echoed Lee's warning. The mass-circulation Oriental
Daily News said in an editorial on June 13 that "Hong Kong's
security system would collapse" and "the bad guys would do
whatever they wanted" if Legco failed to pass the legislation
by the deadline.


6. (C) Pan-democratic members of the bills committee are
being blamed for the slow progress. During a May 25 session,
Liberal Party legislator Selina Chow expressed exasperation
with Democratic Party member James To for questioning the
definitions of words like "judicial," "postal" and "install,"
according to the minutes of the meeting. To responded that
"every word may be controversial. If the bill is not well
drawn up, the scope can be extremely broad." At another
meeting, To questioned Permanent Secretary for Security
Stanley Ying at length about the meaning of "private places"
where people would have a reasonable expectation of privacy
and, therefore, covert surveillance would require
authorization. He asked, for example, whether a golf course
or a VIP room at a restaurant would be considered public
places. Ying responded that if they were open to the public,
then conversations would not be entitled to reasonable
privacy, unless they were conducted at a whisper. Based on
this type of questioning, Philip Wong told us the democrats
were "intentionally dragging their feet" in order to have an
issue for the July 1 march.


7. (C) Pan-democratic legislators, however, claim they are
moving as expeditiously as possible, given the complexity of
trying to strike the right balance between personal freedoms
and security. Civic Party member Ronnie Tong has placed the
blame on the Government, arguing that it took too long to
produce draft legislation following the court rulings in 2005
which overturned the current covert surveillance regime.
Pan-democratic legislators also point out that the bills
committee has been meeting almost daily over the past several
weeks, but they continue to find additional problems. For
example, members say the bill would allow the Chief Executive
to spy on his opponents since he is not considered a "public
officer" under the Government's interpretation of that term.
They also charge that a number of terms in the bill are vague
and over broad. The term "preventing crime," for example,
which the bill lists as one justification for conducting
covert surveillance, has broad coverage, said Civic Party
member Margaret Ng. "What should the trigger point be? You
need to state what the limitations are," Ng said.

Nobody Spoiling For a Fight
--------------


8. (C) Nevertheless, in comparison with other recent
legislative battles in Hong Kong involving issues of personal
freedom and liberty -- notably the controversy surrounding
Article 23 legislation in 2003, and the debate over
constitutional reform and a timetable for universal suffrage
in late 2005 -- both sides appear anxious to avoid a
rancorous confrontation. Philip Wong told us that, despite
differences on various points in the bill, he believes that
all committee members have accepted the overall concept of
the legislation. Likewise, Emily Lau told us on June 14 that
"members want to get on with it and get it done." She also
said that, while serious differences of opinion still existed
on important issues such as the definition of "public
security," she believed the Government was working in good
faith to address members' concerns. She added, in reference
to the former Secretary for Security during the Article 23
debate, "Stanley Ying is definitely better than Regina Ip."

Another Factor -- Long Hair's Court Challenge
--------------


9. (C) Another wild card that could complicate an already
confused situation is the judicial review launched by
legislator "Long Hair" Leung Kwok-hung. Long Hair and
another plaintiff are challenging the decision by High Court
Justice Michael Hartman in February to delay for six months
the effect of his ruling that the current covert surveillance
regime had no legal basis, and that a decades-old wiretapping
law was unconstitutional (see ref a). The Court of Final
Appeal will hear the case on July 5.
Cunningham