UPDATE ON COVERT SURVEILLANCE AND WIRETAPPING

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 002635

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NOFORN
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NSC FOR DENNIS WILDER
DEPT FOR EAP/CM

E.O. 12958: DECL: 06/26/2031
TAGS: PGOV PHUM PREL HK CH PINR MC
SUBJECT: UPDATE ON COVERT SURVEILLANCE AND WIRETAPPING
LEGISLATION: BILLS COMMITTEE FINISHES SCRUTINY

REF: A. A) HONG KONG 2493

B. B) HONG KONG 0465

C. C) HONG KONG 0523

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


1. (C) Summary: The Bills Committee on the Interception of
Communications and Covert Surveillance (BC) finished
scrutinizing the legislation on June 22 -- only 10 days after
Secretary for Security Ambrose Lee criticized the Committee

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for its slow progress (see ref a). Pro-democracy members of
the BC complained that the bill was being rushed through and
worried that it had not been properly vetted. They also
expressed concern over provisions in the bill empowering the
Government to destroy potentially exculpatory evidence
obtained through wiretaps. The BC is now considering
amendments to the bill -- a process set to be completed by
June 30. The pro-democracy Civic Party is seeking 11
specific amendments that it says will ensure its support.
The Government has yet to outline its amendments. A vote on
the bill could come as soon as July 12, and passage remains
all but certain. End Summary.

Miraculous Progress
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2. (SBU) After being criticized on June 12 by Secretary for
Security Ambrose Lee for its slow progress (see ref a),the
Bills Committee on the Interception of Communications and
Covert Surveillance (BC) finished scrutinizing the
Government's bill on June 22. While it took more than three
months to scrutinize the first 12 clauses of the 65-clause
bill, the final 53 clauses were finished in just over one
week. The progress was due largely to the addition of 50
hours of meetings to the committee's schedule following Lee's
remarks.


3. (C) Pro-democracy members of the BC complained that the
rushed pace and marathon meetings had left the bill
improperly vetted. Civic Party member Ronnie Tong said "part
of the strategy is to impose what I regard to be totally
unreasonable working hours." He explained that most
pro-government members of the committee were indifferent to
the length of the meetings since they often left immediately
following the quorum call. Democratic Party member James To
complained that the BC worked its way through 10 clauses
during his two-hour absence from one eight-hour Saturday
session. To is the BC's most outspoken member on how the new
law could undermine the rights and freedoms guaranteed in the
Basic Law. Pro-democracy member Emily Lau called the vetting
process "unhealthy." As might be expected, pro-government
members of Legco were as outspoken in their complaints about
pan-democratic "nitpicking," singling out To as
obstructionist. It seems clear that no one in Legco is happy
about the pressure they feel to complete work on the bill
before the court-imposed August 9 deadline.


4. (SBU) Pro-democracy members of the committee also
expressed concern over the Government's power to destroy
exculpatory evidence obtained through wiretaps. The bill
provides that products of covert surveillance, such as
evidence from hidden cameras and tracking devices, are
admissible in court, but the products of wiretaps are not.
According to the bill, evidence obtained by wiretaps must be
destroyed as soon as possible, unless it contains exculpatory
evidence. However, Civic Party member Margaret Nq said that
the bill relied too much on the "conscience of prosecutors"
to determine what was exculpatory. The issue was thrown into
the spotlight after it was revealed that crucial evidence in
the Independent Commission Against Corruption (ICAC) case --
the 2005 case which led to the overturning of the existing
wiretapping law -- was destroyed, despite a letter from one
of the defendants seeking its preservation. Permanent
Secretary for Security Stanley Ying responded by noting that

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the purpose of intercepting communications was intelligence
gathering and investigation and that "once that purpose is
served, the product will be destroyed." He added that all
such material would be destroyed prior to trial to ensure
fairness.

What Next?
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5. (C) The BC is now considering amendments to the bill -- a
process set to be completed by June 30. The Civic Party is
seeking 11 specific amendments that it says will ensure its
support for the bill. These amendments are centered on the

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following four goals: 1) Broaden the scope of crimes for
which judicial authorization is required to conduct covert
surveillance or wiretapping; 2) Safeguard attorney-client
communications from surveillance; 3) Impose criminal
sanctions, as opposed to administrative punishments, for
violations of the law by Government officials; 4) Redefine
"serious crimes," which would have a lower threshold for
surveillance authorization, to be those involving prison
terms of seven years rather than three years (see ref b).
The Government has indicated to us in the past that it may be
willing to amend the bill to protect the attorney-client
privilege, but the extent to which it is willing to address
the other concerns remains unclear. On June 23, Solicitor
General Bob Allcock told us that Department of Justice
legislative drafters were already hard at work preparing
amendments in response to the BC's concerns.


6. (SBU) A vote on the bill could come as soon as July 12,
media reports said. While the Government would dearly like
to gain the support of the pan-democrats, it has made clear
that it will seek a vote before the August 9 court-imposed
deadline (see ref c),and passage remains all but certain.
Cunningham