LEGCO PASSES COVERT SURVEILLANCE BILL

C O N F I D E N T I A L HONG KONG 003171

SIPDIS

NOFORN
SIPDIS

NSC FOR DENNIS WILDER
DEPT FOR EAP/CM



E.O. 12958: DECL: 08/07/2031
TAGS: PGOV PHUM PREL HK CH PINR MC
SUBJECT: LEGCO PASSES COVERT SURVEILLANCE BILL

REF: A. HONG KONG 3109

B. HONG KONG 0465

CLASSIFIED BY: ACTING E/P CHIEF JEFF ZAISER. REASONS: 1.4(B,D).


1. (C) SUMMARY: ON AUGUST 6, THE LEGISLATIVE COUNCIL (LEGCO)
PASSED A CONTROVERSIAL LAW REGULATING THE USE OF COVERT
SURVEILLANCE, INTERCEPTION OF TELECOMMUNICATIONS, AND
INTERCEPTION OF POSTAL COMMUNICATIONS BY HONG KONG LAW
ENFORCEMENT AGENCIES. PRO-DEMOCRACY LAWMAKERS CRITICIZED THE
LEGISLATION FOR GRANTING TOO MUCH POWER TO LAW ENFORCEMENT
AGENCIES AND STAGED A MASS WALKOUT PRIOR TO THE LEGCO VOTE.
CHIEF EXECUTIVE (CE) DONALD TSANG DISMISSED CRITICISM OF THE
LAW, SAYING IT WAS FAIRER AND MORE PROTECTIVE OF PRIVACY THAN
SIMILAR LAWS IN THE WORLD'S MOST OPEN DEMOCRACIES. HE SAID
THE PUBLIC COULD REST ASSURED THAT THE POLICE WOULD NOT
BYPASS OR ACT BEYOND THE LAW. PROFESSOR JOHANNES CHAN, DEAN
OF THE HONG KONG UNIVERSITY SCHOOL OF LAW, TOLD US ON AUGUST
7 THAT WHILE THE NEW LAW HAS SOME PROBLEMATIC FEATURES, IT
OFFERS "AN ACCEPTABLE SYSTEM OVERALL" AND MERELY LEGALIZES
WHAT IS ALREADY TAKING PLACE IN PRACTICE. CHAN SAID THE
GOVERNMENT'S HANDLING OF THE LEGISLATION HAD LED TO FURTHER
POLARIZATION BETWEEN THE POLITICAL PARTIES IN LEGCO AND ALSO
CAUSED AN EROSION OF TRUST BETWEEN THE GOVERNMENT AND THE
DEMOCRATS. PRIOR TO THE FINAL VOTE, LEGISLATOR "LONG HAIR"
LEUNG KWOK-HUNG LAUNCHED A LEGAL CHALLENGE TO LEGCO PRESIDENT
RITA FAN'S REFUSAL TO ALLOW A VOTE ON MANY OF THE AMENDMENTS
OFFERED BY PRO-DEMOCRACY LEGISLATORS. ANALYSTS SAID LEUNGS
CHALLENGE COULD HELP SETTLE THE QUESTION OF HOW MUCH POWER
LEGCO HAS IN AMENDING LAWS DRAFTED BY THE ADMINISTRATION.
END SUMMARY.

BILL PASSES AS DEMOCRATS STAGE WALKOUT
--------------


2. (SBU) IN THE EARLY HOURS OF AUGUST 6, LEGCO PASSED THE
CONTROVERSIAL INTERCEPTION OF COMMUNICATIONS AND SURVEILLANCE
BILL BY A VOTE OF 32 TO ZERO AFTER A RECORD 57 HOURS OF
DEBATE OVER FIVE DAYS. AS EXPECTED, THE BILL GARNERED NO
SUPPORT FROM PRO-DEMOCRACY LEGISLATORS (SEE REF A),WHO
STAGED A MASS WALKOUT IN PROTEST OF THE BILL. PRO-DEMOCRACY
LAWMAKERS SAID THE LEGISLATION GIVES LAW ENFORCEMENT AGENCIES
TOO MUCH POWER AND PROVIDES INSUFFICIENT PROTECTION AGAINST
ABUSE OF THAT POWER. THE NEW LAW WILL BE GAZETTED
(PUBLISHED) ON AUGUST 9, ALONG WITH A NEW CODE OF PRACTICE
FOR LAW ENFORCEMENT AGENCIES, A DAY AFTER THE COURT-IMPOSED
DEADLINE TO HAVE NEW ARRANGEMENTS IN PLACE. A COMMISSIONER
FOR COVERT SURVEILLANCE AND A PANEL OF JUDGES TO VET
SURVEILLANCE APPLICATIONS FROM LAW ENFORCEMENT AGENCIES WILL
BE NAMED THE SAME DAY.


3. (SBU) CHIEF EXECUTIVE (CE) DONALD TSANG DISMISSED
CRITICISM OF THE LAW, SAYING "I BELIEVE OUR SYSTEM IS AS GOOD
AS THOSE AMONG THE MOST DEMOCRATIC JURISDICTIONS IN THE
WORLD." HE SAID THE PUBLIC COULD REST ASSURED THAT THE
POLICE WOULD NOT BYPASS OR ACT BEYOND THE LAW. SECRETARY FOR
SECURITY AMBROSE LEE SAID THE LAW STRIKES THE RIGHT BALANCE
BETWEEN EFFECTIVE LAW ENFORCEMENT AND PROTECTION OF PRIVACY.
POLICE COMMISSIONER DICK LEE SAID THE LAW GAVE OFFICERS
SUFFICIENT LEGAL GROUND TO ADOPT SURVEILLANCE TECHNIQUES
PROVEN EFFECTIVE IN OTHER ADVANCED COUNTRIES.

OVERVIEW OF THE NEW LAW
--------------


4. (SBU) THE NEW LAW REGULATES THE USE OF COVERT
SURVEILLANCE, INTERCEPTION OF TELECOMMUNICATIONS, AND
INTERCEPTION OF POSTAL COMMUNICATIONS BY HONG KONG LAW
ENFORCEMENT AGENCIES. IT ESTABLISHES A TWO-TIERED SYSTEM FOR
LAW ENFORCEMENT OFFICIALS TO GAIN APPROVAL FOR SURVEILLANCE
ACTIVITIES. "MORE INTRUSIVE" SURVEILLANCE REQUIRES THE
APPROVAL OF A JUDGE FROM A PANEL APPOINTED BY THE CE. "LESS
INTRUSIVE" SURVEILLANCE MERELY REQUIRES THE APPROVAL OF A
SENIOR LAW ENFORCEMENT OFFICIAL, EQUIVALENT TO THE RANK OF
SENIOR SUPERINTENDENT OR ABOVE, WITHIN THE RELEVANT LAW
ENFORCEMENT DEPARTMENT. COVERT SURVEILLANCE IS CONSIDERED
"MORE INTRUSIVE" IF, FOR EXAMPLE, A REMOTE LISTENING DEVICE
WERE USED; INTERCEPTION OF TELECOMMUNICATIONS IS CONSIDERED
"MORE INTRUSIVE" IF, FOR EXAMPLE, BOTH PARTIES TO THE
CONVERSATION WERE UNWITTING.


5. (SBU) AUTHORIZATION TO CONDUCT SURVEILLANCE CAN ONLY BE
GRANTED TO PREVENT OR DETECT "SERIOUS CRIME," OR PROTECT
"PUBLIC SECURITY," THOUGH THE DEFINITIONS OF THOSE TERMS
REMAIN UNCLEAR. APPLICATIONS TO INTERCEPT TELECOMMUNICATIONS
MUST INVOLVE CRIMES WITH A PENALTY OF AT LEAST SEVEN YEARS
IMPRISONMENT, WHILE APPLICATIONS FOR COVERT SURVEILLANCE MUST
INVOLVE CRIMES SUBJECT TO IMPRISONMENT FOR AT LEAST THREE


YEARS OR A HK1$ MILLION (USD 128,000) FINE. AUTHORIZATIONS
WILL HAVE A MAXIMUM DURATION OF THREE MONTHS, BUT WILL BE
RENEWABLE. THE LAW REQUIRES THE CE TO APPOINT AN INDEPENDENT
COMMISSIONER TO AUDIT THE PROGRAM AND HANDLE COMPLAINTS FROM
THE PUBLIC. (SEE REF B FOR ADDITIONAL DETAILS ON THE
LEGISLATION).

AN ASSESSMENT OF THE LAW BY A FAIRLY NEUTRAL OBSERVER
-------------- --------------


6. (C) PROFESSOR JOHANNES CHAN, DEAN OF THE HONG KONG
UNIVERSITY SCHOOL OF LAW, TOLD US ON AUGUST 7 THAT WHILE THE
NEW LAW HAS SOME PROBLEMATIC FEATURES, IT OFFERS "AN
ACCEPTABLE SYSTEM OVERALL" AND MERELY LEGALIZES WHAT IS
ALREADY TAKING PLACE IN PRACTICE. MOREOVER, THE NEW SYSTEM
IS "PREFERABLE TO WHAT EXISTED BEFORE," SAID CHAN, BECAUSE IT
INCORPORATES SOME ADDITIONAL SAFEGUARDS. HE ADDED THAT,
WHILE PEOPLE CAN LEGITIMATELY CRITICIZE SOME OF THE DETAILS
OF HOW THE TWO-TIERED SYSTEM IS SET-UP, IN GENERAL, HAVING
TWO TIERS MAKES SENSE DUE TO THE NUMBER OF SURVEILLANCE
REQUESTS EXPECTED -- MORE THAN 3000 PER YEAR. CHAN SAID IT
IS SIMPLY NOT FEASIBLE TO HAVE A JUDGE VET EACH OF THESE
REQUESTS. AS CHAN SEES IT, THE BIGGEST POTENTIAL PROBLEM
WITH THE LAW IS THE "SPECIAL SECURITY VETTING" OF PANEL
JUDGES. CHAN CALLED THIS VETTING "QUITE WORRYING" BECAUSE OF
ITS IMPLICATIONS FOR THE INDEPENDENCE OF THE JUDICIARY IF THE
PROCESS WERE USED FOR POLITICAL PURPOSES.


7. (C) DESPITE HIS FAIRLY BENIGN VIEW OF THE SUBSTANCE OF THE
NEW LAW, CHAN SAID THE PROCESS OF ENACTING THE LEGISLATION
WAS HANDLED SO BADLY THAT IT COULD HAVE A LASTING IMPACT.
CHAN SAID THAT RUSHING THE BILL THROUGH AT THE LAST MINUTE
HAD LED TO FURTHER POLARIZATION BETWEEN THE POLITICAL PARTIES
IN LEGCO. AT THE SAME TIME, THE GOVERNMENT'S EFFORTS TO WORK
WITH THE PRO-BEIJING PARTIES TO THWART DEMOCRATIC AMENDMENTS
CAUSED AN EROSION OF TRUST BETWEEN THE GOVERNMENT AND THE
DEMOCRATS. THAT TRUST WILL NOT BE EASILY REGAINED, SAID
CHAN.

ANOTHER THORNY ISSUE ARISES
--------------


8. (SBU) EVEN BEFORE THE FINAL VOTE, LEGISLATOR "LONG HAIR"
LEUNG KWOK-HUNG LAUNCHED A JUDICIAL REVIEW CHALLENGING LEGCO
PRESIDENT RITA FAN'S REFUSAL TO TABLE MANY OF THE AMENDMENTS
OFFERED BY PRO-DEMOCRACY LEGISLATORS. (NOTE: ABOUT 200
PAN-DEMOCRATIC AMENDMENTS WERE APPROVED BY FAN, BUT ALL WERE
VOTED DOWN. END NOTE.) ARTICLE 74 OF THE BASIC LAW STATES
THAT INDIVIDUAL MEMBERS CANNOT INTRODUCE LEGISLATION THAT
AFFECTS GOVERNMENT EXPENDITURE OR EXISTING GOVERNMENT POLICY.
WHILE ARTICLE 74 PLACES NO EXPLICIT RESTRICTIONS ON THE
ABILITY OF MEMBERS TO OFFER AMENDMENTS TO BILLS, FAN REJECTED
MANY INDIVIDUAL AMENDMENTS TO THE COVERT SURVEILLANCE BILL ON
THE GROUNDS THAT THEY AFFECTED GOVERNMENT EXPENDITURE OR
EXISTING POLICY. LEUNG ARGUES THAT FAN'S DECISION VIOLATED
THE BASIC LAW. THE HIGH COURT ANNOUNCED ON AUGUST 5 THAT IT
ACCEPTED LEUNG'S REQUEST FOR A JUDICIAL REVIEW.


9. (SBU) HONG KONG UNIVERSITY PROFESSOR SIMON YOUNG SAID
LEUNG'S CHALLENGE COULD HELP SETTLE THE QUESTION OF HOW MUCH
POWER LEGCO HAS IN AMENDING LAWS DRAFTED BY THE
ADMINISTRATION. CITY UNIVERSITY PROFESSOR JAMES SUNG OPINED
THAT LEUNG'S CHALLENGE OPENS A WHOLE NEW CAN OF WORMS BY
TOUCHING ON THE COMPLICATED AND VERY TWISTED POWER
RELATIONSHIP BETWEEN LEGCO, THE HONG KONG SAR GOVERNMENT, AND
THE CENTRAL GOVERNMENT.
SAKAUE