HKSAR v. CHEUNG ALBERT (張鼎)

Press Summary (English)

Press Summary (Chinese)

FACC No. 4 of 2025

FACC No. 1 of 2026

[2026] HKCFA 22

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS. 4 OF 2025 AND 1 OF 2026 (CRIMINAL)

(ON APPEAL FROM CACC NO. 237 OF 2015)

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J U D G M E N T

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Chief Justice Cheung:

1.  I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2.  This appeal raises issues concerning the construction and constitutionality of certain provisions of the Interception of Communications and Surveillance Ordinance (Cap 589) (“ICSO”) in the light of the Court of Appeal’s judgment below.[1]

A.     The background

3.  On 30 June 2015, the appellants were convicted after trial before HH Judge C P Pang[2] on joint charges of conspiracy for an agent to solicit an advantage[3] and of dealing with property known or believed to represent the proceeds of an indictable offence.[4] 

4.  The prosecution’s case was that the appellants had solicited a secret commission of $980,000 from the prospective operator of a restaurant in a hotel which the 1^st appellant had been engaged by the owners to manage, for agreeing to award him the restaurant management contract.  The 2^nd appellant had assisted the 1^st appellant in this enterprise.

5.  The prosecution evidence consisted of the testimony and covert recordings of undercover officers of the Independent Commission Against Corruption (“ICAC”) posing as persons interested in securing the restaurant management contract.  Five of the eight meetings they held with the appellants were thus recorded.  At the trial, the appellants testified that they believed themselves entitled to solicit the funds but were disbelieved.[5] They also tried unsuccessfully to challenge the authorizations for covert surveillance of the five meetings in question, seeking disclosure of redacted parts of the documents relied on by the ICAC in support of their applications for authorization.

6.  The appellants were sentenced to respective terms of 2 years and 6 months’ and 2 years and 3 months’ imprisonment, which sentences have been served in full.

7.  On the appeal to the Court of Appeal, the appellants’ focus was on their challenges to the aforesaid authorizations for covert surveillance.  Compliance with and the constitutionality of the applicable provisions were called into question. 

8.  Except in one respect, the appellants’ challenges failed.  The Court of Appeal accepted that ICSO section 61(4)’s allocation to the law enforcement agency rather than the prosecution of the duty to assess whether information obtained pursuant to a relevant prescribed authorization should be disclosed with a view to promoting a fair trial constituted a disproportionate limitation on the common law duty of disclosure and hence on the right to a fair trial.[6] The Court of Appeal held, however, that this could be cured by a remedial interpretation which, after hearing the parties on its proposed contents,[7] it proceeded to provide.  It held that on the facts, this fault in the statutory scheme did not have an impact on the convictions which were sustained.[8] 

9.  The appellants’ application to the Court of Appeal for certification for leave to appeal to this Court was rejected.[9] They renewed that application before the Appeal Committee, seeking to raise three questions of law which are set out in the Determination.[10] They sought to challenge (i) the constitutionality of that aspect of the ICSO’s scheme[11] which enables certain types of surveillance to be authorized by a law enforcement officer rather than a judge on the basis of unsworn material; (ii) the power of the Court of Appeal to make its remedial interpretation which was said to be at variance with the ICSO’s legislative history; and (iii) the fairness of the trial in that certain information was disclosed to the prosecutor but not the appellants.

10.  The application in respect of the aforesaid questions was dismissed as not reasonably arguable.  However, the Appeal Committee identified other issues arising out of the Court of Appeal’s decision (having sought submissions thereon from the parties) as meriting leave to appeal.  Those issues are set out as Questions A to E in Appendix 1 to this Judgment.

B.     The scheme of the ICSO

11.  Those questions require an understanding of the scheme of the ICSO, in particular as to the types of surveillance regulated; the requirements for obtaining authorization to conduct the surveillance; and how the material obtained can be dealt with, especially involving its disclosure and use in court proceedings.  The main ICSO provisions discussed are set out in Appendix 2. 

B.1   Interception and different types of surveillance

12.  The ICSO regulates the interception of communications and the use of surveillance devices by public officers.  It covers both covert surveillance and interception.

13.  Covert surveillance (“CS”) is defined as involving use of a surveillance device (such as a listening or optical or tracking device) for the purposes of an investigation or operation. It is carried out in circumstances where the subject of the surveillance (“the target”) is entitled to a reasonable expectation of privacy, and carried out in a manner calculated to ensure that the target is unaware of the surveillance which is likely to result in the obtaining of private information about him or her.[12] 

14.  The ICSO further distinguishes between Type 1 surveillance and Type 2 surveillance.

15.  Type 2 surveillance embraces two sub-categories of CS.  First, it involves the use of a listening or optical device for the purpose of listening to, monitoring or recording words spoken or activity carried out, where the target (while ignorant of the surveillance) intends, or should reasonably expect, the words or activity to be heard or seen by the person using the device; or expressly or impliedly consents to such activity.[13] An example might involve an undercover agent recording conversations or dealings using a concealed audio or video recorder where the target is aware of their interaction (even though unaware of the device).  This has been called “participant surveillance”, a situation in which the target has a reduced expectation of privacy since he or she must be taken to know that the other person could at least report (and so testify) on what was said or done.

16.  The second sub-category of Type 2 surveillance involves CS using an optical surveillance or tracking device “if the use of the device does not involve entry onto any premises without permission; or interference with the interior of any conveyance or object, or electronic interference with the device, without permission”.[14] This sub-category does not envisage any direct communications between the target and the officer but does involve restrictions against entry into premises, etc.  Thus, for instance, officers carrying out surveillance using binoculars or cameras from a neighbouring building may come within this Type 2 sub-category.

17.  Type 1 surveillance is defined to mean “any covert surveillance other than Type 2 surveillance”.[15] This encompasses two further sub-categories.  First, it covers CS which falls outside the Type 2 surveillance sub-categories, for instance, involving devices secretly installed in a target’s premises or vehicle.  Secondly, Type 1 surveillance includes Type 2 surveillance which may result in obtaining information subject to legal professional privilege.[16]

18.  “Interception” (“ITC”) is excluded from the definition of CS and is separate from Types 1 and 2 surveillance.[17] ITC involves the inspection by someone other than the sender or recipient of the contents of a communication between them in the course of its transmission by a postal service or a telecommunications system.[18] 

B.2   The ICSO’s requirements for surveillance or interception to be authorized

19.  ITC and CS by public officers are prohibited unless carried out pursuant to a prescribed authorization.[19] Such an authorization can only be obtained by specified departments, namely, the Police, the ICAC and the Customs and Excise Department for ITC; and additionally, by the Immigration Department for CS.[20]

20.  An application for a prescribed authorization to conduct ITC or Type 1 surveillance is made by an officer to a panel judge for a “judge’s authorization”, supported by an affidavit.[21] Judges of the Court of First Instance are eligible to be panel judges but, when acting as such, they do not act as a court or member of a court.[22]  

21.  To conduct Type 2 surveillance, the “prescribed authorization” is sought by an officer applying to an authorizing officer of the same department for an “executive authorization”[23] supported by a written statement.[24]  An “authorizing officer” is an officer not below a rank equivalent to that of senior superintendent of police, designated by the head of the department.[25]

22.  ICSO section 3 lays down the necessary conditions for issuing such prescribed authorizations, namely (i) that the purpose of the ITC or CS is to prevent or detect serious crime or to protect public security;[26] (ii) that there is reasonable suspicion that any person has been, is or is likely to be involved in the particular serious crime or threat to public security;[27] and (iii) that the ITC or CS is necessary for, and proportionate to, the purpose sought to be furthered by carrying it out.[28]

23.  The last-mentioned proportionality requirement is to be assessed by (i) balancing the relevant factors against the intrusiveness of the ITC or CS on any person who is to be the subject of or may be affected by the ITC or CS;[29] (ii) considering whether the purpose sought to be furthered by carrying out the ITC or CS can reasonably be furthered by other less intrusive means;[30] and (iii) considering other matters that are relevant in the circumstances.[31]

24.  Section 3 expands upon the balancing exercise, specifying that “relevant factors” means (a) the immediacy and gravity of the particular serious crime to be prevented or detected; or of the particular threat to public security; and (b) the likely value and relevance, in relation to the purpose sought to be furthered by carrying out the ITC or CS, of the information likely to be obtained; to be balanced against the intrusiveness of the ITC or CS in question.

25.  Neither the panel judge[32] nor the authorizing officer[33] may issue a prescribed authorization unless he or she is satisfied that the conditions under section 3 have been met.

B.3   Disclosure and admissibility of protected products

26.  Where information has been obtained from ITC or CS, such materials are referred to as “protected product”.[34]  The ICSO provides for how such product is to be dealt with; the extent of its availability to parties to any court proceedings; and its admissibility in evidence.  In this connection, sections 59, 60 and 61 should be read together.

27.  ICSO section 59 imposes a duty on the head of the department which obtained the protected product to “make arrangements to ensure” that disclosure thereof is limited to the minimum necessary “for the relevant purpose of the prescribed authorization”.[35] It also requires the protected product to be destroyed as soon as its retention is no longer “necessary for the relevant purpose of the prescribed authorization”.[36]

28.  Section 59(3) stipulates that “something is necessary for the relevant purpose of the prescribed authorization” if the purpose of preventing or detecting serious crime or protecting public security (ie, the “relevant purpose” under section 2) persists.  Beyond that, the phrase encompasses cases where the protected product may “except in the case of a prescribed authorization for a telecommunications interception (“TI”), [be] necessary for the purposes of any civil or criminal proceedings before any court that are pending or are likely to be instituted”. 

29.  Accordingly, where such court proceedings are extant or likely (save where any authorized TI is involved), the restricted disclosure and destruction requirements under section 59(1) are made subject to the potential use of the protected product in such proceedings.

30.  It should be noted that section 59 deals with how the department is obliged to protect the confidentiality of the protected product internally, for instance, avoiding disclosure to persons who do not have any need to know; and guarding against unauthorized or accidental access.[37] Section 59 is not concerned with the treatment of protected product or details of ITC or CS vis-à-vis outsiders, whether or not parties to any proceedings.

31.  ICSO section 60 also has internal objectives.  It imposes record-keeping duties on “each department”, requiring such records to be kept for at least 2 years after the prescribed authorization ceased to have effect.  And as with section 59, section 60(2)(a)(ii) requires the records to be kept longer to cater for any pending or likely civil or criminal proceedings.

32.  Section 61 bears on Questions B, C and D and is presently of central importance.  It has the following features.

33.  Subject to what is said below in relation to section 61(2) and Question D, section 61 is concerned only with restrictions on the treatment of “telecommunications interception product” (“TIP”). In each of its provisions, the reference is to TIP or to a “relevant prescribed authorization” which is defined to mean a prescribed authorization for TI.   Accordingly, these restrictions do not apply to the product of ITC other than TI.  Nor do they apply to the product of CS.  It follows that disclosure in connection with court proceedings regarding the product of those other forms of ITC and CS are governed, not by section 61, but by the common law principles which have not been displaced.  These principles, in relation to criminal proceedings, explained by Sir Anthony Mason NPJ in HKSAR v Lee Ming Tee (2003),[38] are referred to further below.

34.  In subsections (1) to (3), section 61 lays down basic restrictions regarding use of TIP in connection with court proceedings (“the basic restrictions”), as follows:

(a)     Section 61(1) makes TIP non-admissible in evidence in any proceedings.[39] 

(b)     Section 61(2) stipulates that any TIP “and any particulars as to” a TI carried out pursuant to a relevant prescribed authorization “shall not be made available to any party to any proceedings before any court”.

(c)     Section 61(3) forbids the adducing of evidence or the asking of questions in any court proceedings which tends to suggest that an application for a relevant prescribed authorization has been made; that such authorization has been issued (with possible ancillary orders); or that any information has thereby been obtained.

35.  Section 61(4) (unaltered by the Court of Appeal’s remedial interpretation discussed later) establishes an exception to the basic restrictions so that “where, for the purposes of any criminal proceedings ..., any information obtained pursuant to a relevant prescribed authorization and continuing to be available to the department concerned[40] might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence ... the department shall disclose the information to the prosecution; and ... the prosecution shall then disclose the information to the judge in an ex parte hearing that is held in private.”

36.  The feature of section 61(4) which the Court of Appeal found objectionable is its assigning to the department rather than the prosecution, the task of deciding whether the TIP obtained has what might be called the aforesaid “undermining or assisting potential”.

37.  Section 61(5) builds on the section 61(4) exception by providing that the judge to whom disclosure of the TIP information is made “may ... make such orders as he thinks fit for the purpose of securing the fairness of the proceedings.”

38.  However, section 61(7) severely confines that apparently broad power by providing that: “Notwithstanding subsection (5), no order made under that subsection authorizes or requires anything to be done in contravention of subsections (1), (2) and (3).” 

39.  Thus, even where a judge, who has seen the TIP and agrees that such information has undermining or assisting potential and so is relevant to securing the fairness of the proceedings, section 61(7) precludes the admission of the TIP as evidence; or making available to the parties the TIP or particulars as to the making of the TI; or the adducing of evidence or asking of questions suggestive of there having been an application for, issue of, or obtaining of, a relevant prescribed authorization. 

40.  How is the judge to reconcile the fair trial objectives of section 61(4) with the restrictions imposed by section 61(7)?  In my view, section 61(5) ultimately confines the judge to ordering the proceedings to be permanently stayed.  As recognized by this Court in HKSAR v Lee Ming Tee (2001),[41] the court has this power where a fair trial is impossible because continuance of the prosecution in such circumstances would be an abuse of the court’s process. 

41.  It is nevertheless the court’s primary endeavour to ensure that a fair trial takes place, employing the law’s available resources, and not to abort it on the ground that fairness cannot be attained, save as a last resort.  Possible remedial measures should be explored.  The judge might inform the prosecution at an ex parte hearing of his or her inclination to grant a permanent stay, leaving it to the prosecution to reflect on how the case might proceed.  The prosecution might, for instance, propose modifying the charges or the evidential or other basis of its case for the court’s consideration.  If no solution can be found, the prosecution may decide to discontinue the case or the court may proceed to order the stay.[42]

42.  The Court of Appeal adopted an approach to section 61(5) consistent with the foregoing.[43] However, the respondent submitted that under that provision, without going so far as to grant a permanent stay:

“Orders which may properly be made include ordering the prosecution (1) to put its case in a certain way, (2) to refrain from relying on certain evidence, and/or (3) to make admissions of fact.”[44]

43.  That is erroneous since such orders would be contrary to Article 63 of the Basic Law which states that the “Department of Justice ... shall control criminal prosecutions, free from any interference”.  While the Court, exercising the judicial power, may stay the action to protect its own process, it may not make orders dictating how the prosecution is conducted. 

C.     The Questions arising

C.1   Question A

In the light of ICSO section 3, was the Court of Appeal correct to adopt the “manifestly without reasonable justification” standard in holding that the ICSO’s scheme for executive authorizations is proportionate and constitutionally unobjectionable?

44.  In the Court of Appeal, the appellants mounted a challenge to the ICSO’s scheme for Type 2 surveillance based on executive (as opposed to judicial) authorization, arguing that this was an infringement of their constitutional right to privacy.[45]  In addressing that challenge, the Court of Appeal held that the standard for judging the proportionality of that arrangement was the manifest standard, ie, whether it was “manifestly without reasonable foundation”.[46] Question A asks whether adoption of that standard was correct.

45.  A decision as to the applicable standard may arise as part of the reasoning involved in a constitutional review.  In Hysan Development Co Ltd v Town Planning Board,[47] the Court set out the sequence of such reasoning which may be summarized as follows.  Assuming that the measure complained of is prescribed by law and engages and encroaches upon a particular constitutional right which is not an absolute right, one asks first, whether that encroaching measure pursues a legitimate aim; secondly, whether it is rationally connected to accomplishing that aim; and thirdly, whether the infringement passes the proportionality test. 

46.  In some circumstances, a decision as to the standard applicable for judging such proportionality may be needed.  The choice would then be between the standard of reasonable necessity, asking whether the infringing measure is “no more than reasonably necessary” for advancing the legitimate aim; and the manifest standard, asking whether that impugned measure is “manifestly without reasonable foundation”.  Those standards embody differing degrees of intensity of review, being located at different points on the same spectrum of reasonableness.  The choice of standard is influenced by the significance and degree of interference with the right; the identity of the decision-maker; and the nature and features of the encroaching measure.

47.  The proportionality analysis fourthly requires consideration of whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the rights of the individual, asking whether pursuit of the societal interest has resulted in an unacceptably harsh burden on the individual.

48.  Where the standard of reasonable necessity is applied, the impugned measure fails the test if the Court is satisfied that a significantly less intrusive and equally effective measure is available, so that the impugned measure is disallowed as unconstitutional.[48]

49.  The reasonable necessity standard is more demanding than the manifest standard test under which the impugned measure is only disallowed if it is “manifestly without reasonable foundation”. This standard is generally only appropriate when the authority responsible for the infringing action is entitled to a wide margin of discretion.  That may occur, for instance, where the challenged measure involves the government’s implementation of social or economic policies with major implications for public expenditure; or the distribution of limited social resources among competing claimants; or may require special knowledge or expertise not available to the courts.  In such cases, the relevant authority is likely to be much better equipped than the courts to assess the justification for the impugned measure.  Applying the manifest standard, the court will only interfere where the challenged measure lies clearly beyond the spectrum of reasonable options – giving the authority much greater leeway than under the reasonable necessity standard.

50.  Was the Court of Appeal correct to adopt the less demanding manifest standard in judging the proportionality of executive authorizations?  In my view, the answer is in the negative.

51.  In the first place, as noted in Section B.2 above, ICSO section 3 makes proportionality a necessary condition for issuing a prescribed authorization.[49] It identifies the legitimate aims of the ITC or CS  (which encroach upon the right to privacy) as the prevention or detection of serious crime or protection of public security.[50] It requires the panel judge or executive authority to be satisfied that such encroachment “is necessary for, and proportionate to, the purpose sought to be furthered by carrying it out”, balancing the specified relevant factors against the intrusiveness of the ITC or CS and “considering whether the purpose sought to be furthered by carrying out the interception or covert surveillance can reasonably be furthered by other less intrusive means”.[51]

52.  It is therefore clear that the ICSO imports the standard of reasonable necessity for authorizing intrusions into a target’s privacy.  One is therefore led to question why the Court of Appeal thought it appropriate to adopt a standard less demanding than that laid down by the Ordinance.   It is true that the Court of Appeal was addressing one specific aspect of the ICSO’s scheme – use of executive rather than judicial authorizations.  However, section 3 and the Court of Appeal were both concerned with the proportionality requirements for permitting intrusion into a target’s privacy and use of the product.  It is hard to see why a different, and especially a more relaxed, standard should be used by the Court of Appeal in that context.  While it is in principle open to the Court to adopt a different proportionality standard in conducting a constitutional review of a statutory scheme which itself incorporates a specific standard of review, cogent reasons are needed for doing so, particularly where the differing standard relaxes the requirements for the authority’s encroachment upon the guaranteed right.

53.  An inconsistency in the Court of Appeal’s approach is furthermore apparent in its adoption of the reasonable necessity standard when assessing the proportionality of a different aspect of the ICSO scheme, namely, section 61(4)’s assignment to the department rather than the prosecution of the duty of assessing whether information obtained has undermining or assisting potential.[52] Applying the reasonable necessity test in that context, the Court of Appeal concluded that retaining the common law position which imposes that duty upon the prosecution was a significantly less intrusive and equally effective measure, leading to its decision that a remedial interpretation of section 61(4) was needed.

54.  In examining the impugned use of executive authorizations, the Court of Appeal acknowledged that Type 2 surveillance so authorized, was “at the very lowest level of intrusiveness of privacy”.[53] This is because such authorization is confined to participant surveillance where “the persons who are present know that what they say could be related to others by any one of their number”;[54] where the person making the recording could in any event testify about that interaction;[55] where the only privacy intrusion was constituted by the recording of the interaction;[56] and where the recording has the benefit of providing a more complete and accurate account of what transpired.[57]

55.  Their Lordships also noted that use of executive authorizations promoted operational efficiency[58] and that, even though the authorizing officer was usually a senior officer in the same department, the Code of Conduct issued under ICSO section 63 laid down enforceable guidelines designed to foster independence and impartiality in the issuing process,[59] bringing about a degree of independence even if the authorising officer cannot be said to be capable of acting judicially.[60]

56.  Taking all those considerations into account, it is difficult to see why the Court of Appeal did not simply conclude that the arrangement satisfies the reasonable necessity test.  Having held that executive authorization of Type 2 surveillance operates “at the very lowest level of intrusiveness of privacy”, it would follow that the purpose of the surveillance could not reasonably be accomplished by other less intrusive means.[61] It would also follow that the low level of intrusiveness favours the balance being struck in favour of the relevant factors identified in section 3.[62]

57.  The Court of Appeal did indeed hold that executive authorizations were proportionate.  However, it did not seek to provide any persuasive justification for utilizing the manifest standard other than to say:

“Given that this proportionality analysis involves taking into account the operational efficiency of departments who are responsible for public safety and security we are of the view that we should employ the ‘manifestly without reasonable foundation’ standard. In doing so we allow a sufficiently wide margin of discretion to the government on the operational efficiency aspect of its justification for the impugned measure. However, this is not done just to cater to the needs of our law enforcement agencies. We bear in minds the words of Lord Steyn in the Attorney Generals Reference (No 3 of 1999) case[63] ... [where] he said that ‘the purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property.’ There is, consequently, a much broader interest at stake it [sic]; an interest which is a truly public interest as it involves the whole of Hong Kong.”[64]

58.  With respect, those matters do not explain why the manifest standard should be employed instead of the reasonable necessity standard imported by the ICSO itself.  By invoking the less demanding test, one might have thought that the Court of Appeal considered executive authorizations incapable of meeting the reasonable necessity standard and therefore lowered the standard to avoid the disallowance of such authorizations.  However, that does not appear to reflect the Court of Appeal’s views and, in my view, the constitutionality of executive authorizations would have been correctly upheld applying the standard of reasonable necessity. 

59.  Mr Andrew Bruce SC,[65] submitted on the appellants’ behalf, without further elaboration, that the impugned measure and the rights under consideration made adoption of the manifest standard inapt since this was not a case like Fok Chun Wa v Hospital Authority,[66] involving government determination of socio-economic policies.

60.  Mr Abraham Chan SC, appearing for the respondent,[67] submitted that the manifest standard was appropriate since the need for operational efficiency regarding public security merited a wide margin of discretion[68] and also because its application in relation to privacy rights was justified whereas the Court of Appeal could rightly adopt a stricter standard in connection with fair trial rights.

61.  For the reasons I have given, I do not accept either party’s main submissions on Question A as adequate.  I do, however, agree with Mr Chan SC’s alternative submission that:

“Even if the ICSO’s scheme for executive authorization were to be assessed on the ‘no more than necessary’ standard, it would still have been considered as constitutional given the safeguards built into the scheme, as balanced against the relatively low level of intrusiveness into privacy ...”[69]

C.2   Question B

On the true construction of the relevant provisions of the ICSO, is section 61 engaged in the present case?

62.  Large parts of the judgments below are devoted to the construction and constitutionality of section 61, and especially of section 61(4), culminating in the Court of Appeal’s remedial interpretation of that provision.  The issue was whether the task of assessing the need to disclose the information obtained should be dealt with by the ICAC or by the prosecution.  Questions B and C focus on section 61 and that issue.  Question D examines section 61(2)’s possible relevance to certain other disclosures and the redactions in the present case.

63.  For the purposes of Question B, as previously noted,[70] section 61 is concerned with restrictions regarding the treatment of TIP, ie, the product of telecommunications interception.  Its restrictions are not engaged if the surveillance does not involve TIP.  They do not come into play in relation to the product of ITC other than TI.  Nor do they apply to the product of CS.    

64.  As the Appeal Committee recorded,[71] counsel then appearing for the respondent[72] confirmed that the surveillance in this case only involved use of audio recording devices during five meetings held between undercover ICAC officers and the appellants, as detailed by the Court of Appeal.[73] She also explained that authorization for Type 1 surveillance was sought for two of those meetings because it was thought that information which may be subject to legal professional privilege might be obtained, as noted by the trial Judge.[74]

65.  It is therefore clear that the surveillance did not involve TI or TIP and section 61 was not engaged in respect of its product.  It follows that the basic restrictions laid down by sections 61(1) to 61(3), all concerned with TIP, were inapplicable.[75]  There was therefore no need to consider the disclosure exception in section 61(4).  It furthermore follows that the proportionality analysis and the remedial interpretation of section 61(4) were not called for.  Accordingly, the remedial interpretation should be disregarded and not applied.

66.  The correct approach would have been to hold that questions concerning disclosure to the defendants of the CS product were to be answered by applying the common law rules explained by Sir Anthony Mason NPJ in HKSAR v Lee Ming Tee (2003).[76] The relevant principles are set out in the following passages:

“The principles recognise that the prosecution is under a duty of disclosure to the defence which extends to material in the possession or control of the prosecution which may undermine its case or advance the defence case.”[77]

“The prosecution’s duty is to disclose to the defence material (including information) in its possession or control. That will ordinarilyinclude materials that have been gathered by the investigating agency ... and it is the responsibility of the prosecution to make the investigating agency aware of the need to make available all relevant materials. In this sense, the prosecutor’s duty is to disclose to the defence all relevant material in its possession or control and in the possession or control of the investigating agency.”[78]

“The prosecution’s duty is to disclose to the defence relevant material (including information) which may undermine its case or advance the defence case. The duty is not limited to the disclosure of admissible evidence. Information not itself admissible may lead by a train of inquiry to evidence which is admissible: R v Preston [1994] 2 AC 130 at pp.163-164, per Lord Mustill. And material which is not admissible may be relevant and useful for cross-examination of a prosecution witness on credit.”[79]

67.  Indeed, the stated object of the Court of Appeal’s remedial interpretation was to read phrases into section 61(4) so as to “retain the common law position” to the extent of assigning the vetting task to the prosecution rather than the department.  Their Lordships stated:

“We apply the reasonable necessity test and in doing so we conclude that the intruding measure of transferring the disclosure duty from the prosecution to the investigator is more than is necessary. We are satisfied that retaining the common law position whereby the duty is imposed upon the prosecution is ‘a significantly less intrusive and equally effective measure’ in achieving the legitimate aim of maintaining secrecy of telephone interception.”[80]

68.  To that extent, the Court of Appeal’s exegesis leading to its desired application of the common law rule in respect of the prosecution’s role turns out to have been an unnecessary detour in the present case.  Those rules were immediately applicable without reference to section 61 or any remedial interpretation of section 61(4). 

69.  The Court of Appeal nonetheless held that the shortcomings of section 61(4) prior to the remedial interpretation did not affect the validity of the convictions because, as a matter of fact, the common law rule was effectively applied since the prosecution did vet the information and did form the view that disclosure was not required.  The Court of Appeal noted that at the ex parte hearing, the Judge was told that:

“... the ICAC and the Prosecution both hold the view that the material requested to be disclosed, being information subject to the provision under S.61, might not reasonably be considered capable of undermining the prosecution case or assisting the defence case.”[81]

70.  Thus, the Court of Appeal was satisfied that the prosecution had concluded that the common law test regarding undermining or assisting potential did not require disclosure.  No argument to the contrary has been raised.

71.  Having made the foregoing observations, I would suggest (necessarily tentatively and without deciding) that if section 61(4) had been engaged, there may have been much to recommend an appropriate remedial interpretation designed to transfer from the department to the prosecution the responsibility for deciding whether the information should be disclosed.  The remedial interpretation was put forward by the Court of Appeal with the words inserted into section 61(4) italicized, as follows:

“… any information obtained pursuant to a relevant prescribed authorization and continuing to be available to the department concerned shall be provided to the prosecution so that it may consider whether the information might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence. Where, in respect of such information that is disclosed to it, the prosecution is of the view that it might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defenceit shall then disclose the information to the judge in an ex parte hearing that is held in private.

72.  It makes sense since section 61(4) as it stands unrealistically supposes that the investigating officer will be in a position to know what the prosecution and defence cases will consist of and so able sensibly to decide what materials might be capable of undermining the case for the prosecution or assisting the case for the defence.  By giving the vetting task to the department, section 61(4) may therefore be seen to be deleterious to a defendant’s right to a fair trial.  As Sir Anthony Mason NPJ pointed out:

“The prosecution’s duty of disclosure has its foundation in the right of the defendant to a fair trial. The right to a fair trial entails adequate knowledge of the case to be made by the prosecution (R v Brown [1998] AC 367 at p.374G, per Lord Hope of Craighead).”[82]

73.  Mr Bruce SC submitted at the hearing, without much elaboration, that section 61 “was a distraction”.

74.  Mr Chan SC initially submitted that section 61 is engaged because the redacted information was likely to have contained information covered by the section 61(2) prohibition.[83] However, that submission conflates the present with the separate issues dealt with under Question D.  Mr Chan SC subsequently accepted that section 61 was not engaged regarding the product of CS.

C.3   Question C

What are the implications, if any, of the prohibition against disclosure to any party contained in ICSO section 61(2) on the remedial interpretation adopted by the Court of Appeal?

75.  The first implication is that section 61(2) makes the remedial interpretation incomplete.  The restriction in section 61(2) is against making available any TIP and any particulars as to a TI to a party to court proceedings, defining “party” to include the prosecution.  This sits ill with the remedial interpretation which presupposes that the prohibited material has already been made available to the prosecution which then discloses it to the judge.  It obviously makes little sense to provide that the judge should thereafter not make it available to the prosecution.  A consequential remedial interpretation of section 61(2) would have been needed.  This was overlooked by the Court of Appeal.

76.  The second implication is that, operating within the confines of section 61(2), the remedial interpretation has a very narrow effect, leaving the basic restrictions in place.  It does not entail disclosure approximating to disclosure under the common law rule. 

77.  The Court of Appeal pointed out the narrow import of the remedial interpretation stating:

“What we are doing is involving the prosecutor at an earlier stage of the disclosure process and, by so doing, enabling him to have access to more information than he would previously have had.”[84]

78.  Achieving that goal leaves the basic restrictions in place.  Thus, let it be assumed for present purposes that the remedial interpretation is applied in a case where section 61 is engaged and the product is vetted by the prosecution which concludes that it possesses undermining or assisting potential.  The prosecution then discloses this to the judge at an ex parte hearing[85] and the judge agrees that the information has undermining or assisting potential.  Thereafter, section 61(5) empowers the judge to make such orders as he or she thinks fit for the purpose of securing the fairness of the proceedings, but with the crucial qualification under section 61(7) that:

“Notwithstanding subsection (5), no order made under that subsection authorizes or requires anything to be done in contravention of subsections (1), (2) and (3).”

79.  Thus, the defence continues to be deprived of knowledge of that product and of the ability to use it as evidence; or to start a train of inquiry leading to admissible evidence; or for examining witnesses about it.  As previously noted, in seeking to ensure the fairness of the proceedings, the court’s options are limited ultimately to the grant of a permanent stay of the proceedings.  

80.  That is, however, not to suggest that the restrictions laid down by section 61(7) are necessarily disproportionate.  They were not subject to constitutional challenge below.  And if such a challenge were to arise in a future case, the potential availability of an order for a permanent stay as the ultimate safeguard for the fairness of the proceedings might arguably be sufficient to sustain those restrictions as proportionate. But these are obviously points which must be left open for consideration should they arise in a future case.  It suffices for now to recognize the limited impact of the remedial interpretation.

81.  The premise of Mr Bruce SC’s response to Question C in his Written Case is that “[prior] to the remedial interpretation, the original ICSO, s.61(4) overrode s.61(2)” and that “... the remedial interpretation ... also overrode s.61(2)”.[86] However, that entirely overlooks the effect of section 61(7) which preserves the restrictions of section 61(2).

82.  Mr Chan SC submitted that the remedial interpretation is “fundamentally inconsistent with the prohibition under s.61(2) and the scheme of the ICSO”[87] and that section 61(4) should be left alone as representing the desired legislative balance between desirable secrecy and privacy rights.  He suggested that section 61(5) enables the judge to order “the prosecution (1) to put its case in a certain way, (2) to refrain from relying on certain evidence, and/or (3) to make admissions of fact.”[88] Taken together, he submitted, those features of the scheme carry out the policy objectives of preserving secrecy and minimizing access to TIP while safeguarding the right to privacy of those whose communications have been intercepted.  He submitted that this balance should not be upset by a remedial interpretation of the kind adopted by the Court of Appeal. 

83.  With respect, I do not agree with that reasoning.  As previously noted,[89] the respondent’s suggestion that section 61(5) enables the court to make the types of order mentioned is untenable in the light of Article 63 of the Basic Law.  More importantly, the remedial interpretation has a narrow remit and does not alter the basic restrictions in the ICSO’s scheme.  All it does is to assign to the prosecution in place of the department the task of vetting the TIP for information having undermining or assisting potential.  Thereafter, the restrictive scheme of section 61 remains unchanged.[90] I therefore do not accept that if a case should arise where the appropriateness of a similar remedial interpretation falls to be considered, adoption of such a remedial interpretation would be disruptive of the ICSO scheme.

C.4   Question D

On the true construction of the ICSO, what is the scope of the restrictions on disclosure regarding the contents of applications for prescribed authorizations (as opposed to the product of Type 1 or Type 2 surveillance) such as to justify the withholding or redaction of such materials?  

84.  It has been noted that since the present case does not involve any TIP but only the product of CS, section 61 has no application so far as the product of that surveillance is concerned. However, section 61 may be engaged even where disclosure of protected product is not in issue.  This is because section 61(2) materially provides:

“Any telecommunications interception product, and any particulars as to a telecommunications interception carried out pursuant to a relevant prescribed authorization, shall not be made available to any party to any proceedings before any court...”

85.  The italicized words restrict disclosure, not of the product of TI, but of “any particulars as to a [TI]”, thus prohibiting disclosure to any party to court proceedings of the fact of, or any details relating to, the carrying out of such TI.  The issue arises in the present case as to whether this provision was engaged in connection with redactions made to documents relied on in applying for prescribed authorizations for CS.

86.  The Judge explains that the matter arose when the prosecution served on the defence as unused material, three statements and two affirmations relied on by the ICAC in support of applications respectively for three executive authorizations and two judges’ authorizations for CS relating to the five meetings with the appellants.  Parts of those documents were redacted.[91] When asked by the Judge, prosecution counsel “confirmed that the requested protected information went beyond mere covert surveillance” [92] and that the information was “not disclosable to the defendants by virtue of section 61(2)”.[93] While not spelt out, this suggested that the redactions concerned “particulars as to a telecommunications interception carried out pursuant to a relevant prescribed authorization”.  That might arise, for instance, where an application for authorization to conduct CS refers to a prior TI operation.

87.  The prosecution initially sought to disclose the redacted material to the judge at an ex parte hearing but then withdrew from that initiative as it was considered legally inappropriate.[94] As I point out below, this might have involved a misplaced concern.

88.  There was no constitutional challenge to the basic restrictions in section 61.[95] However, the question arose as to whether the Judge had a discretion to review whether the material ought to be disclosed.[96] His Honour held that he did have such a discretion provided that any orders made were not inconsistent with section 61.[97] In this connection the Judge held that section 61(2) does not prohibit disclosure to the judge, as opposed to “the parties”[98] and that the prosecution’s decision not to disclose is reviewable.[99]

89.  On such review, the prosecution’s case was that the redacted material was not relevant to the issues in the case, which the Judge accepted, dismissing the application for disclosure.[100]

90.  I would endorse the Judge’s decision that section 61(2) does not prohibit disclosure of the information ex parte to the judge and that, having seen the withheld material, the Judge was entitled to review the decision as to its non-disclosure.  I might add that the prosecution’s evident wariness against disclosing the contents of the redactions to the Judge at the ex parte hearing (later abandoned) appears to have been misplaced.  Section 61(2) only excludes disclosure of particulars of a TI to “any party”.  Plainly, disclosure to the Judge is not excluded.

91.  In the Court of Appeal, it was a ground of appeal that the Judge had erred in refusing to order disclosure of the redacted parts.[101] This was rejected, the Court of Appeal holding that the common law rule did not preclude such redactions. Their Lordships held that:

“Only parts of each document were redacted and the rest of the document contained sufficient information to justify the issue of the covert surveillance authorizations. Furthermore, there was nothing on the face of the documents which showed that they had a relevance beyond providing the evidential basis for the granting of the application for an authorization to conduct covert surveillance. Nor was there any reason to believe that the redacted parts would call into question the propriety of the application, the sufficiency of the evidence to support it or the legality of the decision to grant it.”[102]

92.  The Court of Appeal considered the defence request for disclosure as having “all the hallmarks of a fishing expedition of the kind that has long been regarded as inimical to the interests of justice”.[103]

93.  As mentioned above, the Court of Appeal noted that at the ex parte hearing, the Judge was told that:

“... the ICAC and the Prosecution both hold the view that the material requested to be disclosed, being information subject to the provision under S.61, might not reasonably be considered capable of undermining the prosecution case or assisting the defence case.”[104]

94.  This indicated that the prosecution had in fact vetted the information in question, employing the common law test.  The Court of Appeal accordingly dismissed the appellants’ application for disclosure as wholly speculative.[105]

95.  On the footing that the redactions did in fact engage section 61(2)’s prohibition against disclosure of “particulars as to a telecommunications interception carried out”, disclosure was correctly refused by the Courts below.  The answer to Question D is that in the present case, such restrictions on disclosure justify the withholding or redaction of materials forming part of applications for prescribed authorizations which come within section 61(2).

96.  Mr Chan SC’s response to Question D accords with the foregoing analysis.  Referring to the assurances given by the prosecution that there was good reason to believe that the subject-matter of the redactions engaged section 61, and the Judge’s notes of the ex parte hearing which stated that the redactions were pursuant to section 61(2),[106] the respondent submits that it was to be inferred that “the Redacted Portions contain information derived from or relating to TI” so that non-disclosure of the redacted materials was justified.[107]

97.  In their Supplemental Case, the appellants recognize that “[disclosure] of the particulars of telecommunications interception is not permitted under s.61”[108] and accordingly that disclosure of the redacted material was correctly withheld:

“... if it is the case that the uncovering of the redactions in prescribed authorisation [sic] would have revealed the details of a telecommunication interception that was obtain pursuant to a prescribed authorisation for a telecommunications interception...”[109]

98.  However, the appellants go on to submit, without any discernible foundation, that:

“... an accused person may challenge an application for a prescribed authorisation indirectly by challenging the lawfulness of resulting evidence obtained by a prescribed authorisation”.[110]

C.5   Question E

As an adjunct to each of Questions A to D inclusive, to what extent if any, does the answer have an impact on the applicants’ convictions? 

99.  For the reasons which follow, it is my view that the answers set out above do not affect the appellants’ convictions which must accordingly be sustained.

100.  As to Question A: The Court of Appeal was not justified in applying the manifest standard in holding that the ICSO’s assigning of Type 2 surveillance to executive rather than judicial authorization was proportionate.  However, objectively and on the Court of Appeal’s own reasoning, it would have been entirely proper to conclude that use of executive authorization was proportionate, applying the standard of reasonable necessity.

101.  As to Question B: The Court of Appeal erroneously held that section 61 was engaged so as to impose restrictions on disclosure of the product of the CS undertaken by the ICAC officers.  It proceeded to consider the proportionality of section 61(4)’s exception permitting disclosures and held that a remedial interpretation of that provision was required.  But as far as product is concerned, section 61 only imposes limitations regarding TIP and not the product of CS.  Thus, neither the basic restrictions imposed by sections 61(1) to 61(3), nor the exception in section 61(4) were engaged in respect of the surveillance product in the present case.  The correct approach would have been to apply the common law rules regarding disclosure of unused material.  Thus, the Court of Appeal’s proportionality analysis of section 61(4) and the remedial interpretation were not called for and should be disregarded.  However, the Court of Appeal found that on the facts, the common law disclosure rules, involving the prosecution’s assessment of the undermining or assisting potential of the information obtained, had in fact been applied.   The validity of the convictions was not affected.

102.  As to Question C: If the remedial interpretation was justified, the need for consequential changes to section 61(2) was overlooked.  Moreover, the remedial interpretation had a limited effect.  The combined effect of sections 61(7) and 61(2) was to limit the orders that a judge can make after receiving disclosure of information which is seen to have undermining or assisting potential.  Those restrictions prevent the information being transmitted to the defence to enable it to act thereon in the various ways envisaged under the common law rule.  But as the remedial interpretation was not called for, and in the light of the Court of Appeal’s finding that the common law rule had effectively been applied, the answers to Question C have no impact on the convictions.

103.  As to Question D: On the assumption, based on representations made to the Court by prosecution counsel that the redactions in the documents relied on in support of the applications for prescribed authorizations did involve references to TI which engaged section 61(2), the redactions were justified and did not affect the convictions.

104.  I would accordingly dismiss this appeal.

Mr Justice Fok PJ:

105.  I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Lam PJ:

106.  I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Gummow NPJ:

107.  I agree with the judgment of Mr Justice Ribeiro PJ.

Chief Justice Cheung:

108.  Accordingly, the Court unanimously dismisses the appellants’ appeal.

APPENDIX 1

Questions on which leave to appeal was granted

Question A

In the light of ICSO section 3(c), was the Court of Appeal correct to adopt the “manifestly without reasonable justification” standard in holding that the ICSO’s scheme for executive authorizations is proportionate and constitutionally unobjectionable?

Question B

On the true construction of the relevant provisions of the ICSO, is section 61 engaged in the present case?

Question C

What are the implications, if any, of the prohibition against disclosure to any party contained in ICSO section 61(2) on the remedial interpretation adopted by the Court of Appeal?

Question D

On the true construction of the ICSO, what is the scope of the restrictions on disclosure regarding the contents of applications for prescribed authorizations (as opposed to the product of Type 1 or Type 2 surveillance) such as to justify the withholding or redaction of such materials?

Question E

As an adjunct to each of Questions A to D inclusive, to what extent if any, does the answer have an impact on the applicants’ convictions? 

APPENDIX 2

The main provisions of the ICSO discussed in the Judgment

Section 2

“covert surveillance”

(a) means any surveillance carried out with the use of any surveillance device for the purposes of a specific investigation or operation, if the surveillance—

(i) is carried out in circumstances where any person who is the subject of the surveillance is entitled to a reasonable expectation of privacy;

(ii) is carried out in a manner calculated to ensure that the person is unaware that the surveillance is or may be taking place; and

(iii) is likely to result in the obtaining of any private information about the person; but

(b) does not include—

(i) any spontaneous reaction to unforeseen events or circumstances; and

(ii) any such surveillance that constitutes interception under this Ordinance;

“executive authorization”

means an executive authorization issued or renewed under Division 3 of Part 3[...];

“intercepting act”

in relation to any communication, means the inspection of some or all of the contents of the communication, in the course of its transmission by a postal service or by a telecommunications system, by a person other than its sender or intended recipient;

“interception”

(a) in relation to any communication, means the carrying out of any intercepting act in respect of that communication; or     

(b) when appearing in a context with no specific reference to any communication, means the carrying out of any intercepting act in respect of any communication;

“interception product”

means any contents of a communication that have been obtained pursuant to a prescribed authorization for interception, and includes a copy of such contents;

“judge’s authorization”

means a judge’s authorization issued or renewed under Division 2 of Part 3[...];

“prescribed authorization”

means a judge’s authorization, an executive authorization or an emergency authorization;

“protected product”

means any interception product or surveillance product;

 “relevant purpose”

in relation to a prescribed authorization, means the purpose sought to be furthered by carrying out the interception or covert surveillance concerned as described in section 3 for the purpose of the issue or renewal, or the continuance, of the prescribed authorization;

“surveillance product”

means any material obtained pursuant to a prescribed authorization for covert surveillance, and includes a copy of the material;

“telecommunications interception”

means interception of any communication transmitted by a telecommunications system;

“Type 1 surveillance”

means any covert surveillance other than Type 2 surveillance;

“Type 2 surveillance”

subject to subsections (3) and (4), means any covert surveillance that—

(a) is carried out with the use of a listening device or an optical surveillance device by any person for the purpose of listening to, monitoring or recording words spoken or activity carried out by any other person, if the person using the device—

(i) is a person by whom the other person intends, or should reasonably expect, the words or activity to be heard or seen; or

(ii) listens to, monitors or records the words or activity with the consent, express or implied, of a person described in subparagraph (i); or

(b) is carried out with the use of an optical surveillance device or a tracking device, if the use of the device does not involve—

(i) entry onto any premises without permission; or

(ii) interference with the interior of any conveyance or object, or electronic interference with the device, without permission.

Section 2(2)

For the purposes of this Ordinance, a person is not regarded as being entitled to a reasonable expectation of privacy within the meaning of paragraph (a)(i) of the definition of covert surveillance in subsection (1) in relation to any activity carried out by him in a public place, but nothing in this subsection affects any such entitlement of the person in relation to words spoken, written or read by him in a public place.

Section 2(3)

For the purposes of this Ordinance, any covert surveillance which is Type 2 surveillance under the definition of Type 2 surveillance in subsection (1) is regarded as Type 1 surveillance if it is likely that any information which may be subject to legal professional privilege will be obtained by carrying it out.

Section 3

(1) In this Ordinance, the conditions for the issue or renewal of a prescribed authorization, or the continuance of a prescribed authorization or a part of a prescribed authorization, are that, in the circumstances of the particular case—

(a) the purpose sought to be furthered by carrying out the interception or covert surveillance concerned is that of—

(i) preventing or detecting serious crime; or

(ii) protecting public security;

(b) there is reasonable suspicion that any person has been, is, or is likely to be, involved in—

(i) where the purpose sought to be furthered by carrying out the interception or covert surveillance is that specified in paragraph (a)(i), the particular serious crime to be prevented or detected; or

(ii) where the purpose sought to be furthered by carrying out the interception or covert surveillance is that specified in paragraph (a)(ii), any activity which constitutes or would constitute the particular threat to public security; and

(c) the interception or covert surveillance is necessary for, and proportionate to, the purpose sought to be furthered by carrying it out, upon—

(i) balancing the relevant factors against the intrusiveness of the interception or covert surveillance on any person who is to be the subject of or may be affected by the interception or covert surveillance;

(ii) considering whether the purpose sought to be furthered by carrying out the interception or covert surveillance can reasonably be furthered by other less intrusive means; and

(iii) considering such other matters that are relevant in the circumstances.

(2) In this section, relevant factors means—

(a) the immediacy and gravity of—

(i) where the purpose sought to be furthered by carrying out the interception or covert surveillance concerned is that specified in subsection (1)(a)(i), the particular serious crime to be prevented or detected; or

(ii) where the purpose sought to be furthered by carrying out the interception or covert surveillance concerned is that specified in subsection (1)(a)(ii), the particular threat to public security; and

(b) the likely value and relevance, in relation to the purpose sought to be furthered by carrying out the interception or covert surveillance, of the information likely to be obtained by carrying it out.

Section 4

(1) Subject to subsection (2), no public officer shall, directly or indirectly (whether through any other person or otherwise), carry out any interception.

(2) Subsection (1) does not apply to—

(a) any interception carried out pursuant to a prescribed authorization; [...]

Section 5

(1) Subject to subsection (2), no public officer shall, directly or indirectly (whether through any other person or otherwise), carry out any covert surveillance.

(2) Subsection (1) does not apply to any covert surveillance carried out pursuant to a prescribed authorization.

Section 6

(1) The Chief Executive shall, on the recommendation of the Chief Justice, appoint 3 to 6 eligible judges to be panel judges for the purposes of this Ordinance.

(4) In performing any of his functions under this Ordinance, a panel judge—

(a) is not regarded as a court or a member of a court; but

(b) has the same powers, protection and immunities as a judge of the Court of First Instance has in relation to proceedings in that Court.

(7) In this section, eligible judge means a judge of the Court of First Instance.

Section 7

The head of a department may designate any officer not below a rank equivalent to that of senior superintendent of police to be an authorizing officer for the purposes of this Ordinance.

Section 8

(1) An officer of a department may apply to a panel judge for the issue of a judge’s authorization for any interception or Type 1 surveillance to be carried out by or on behalf of any of the officers of the department.

(2) The application is—

(a) to be made in writing; and

(b) to be supported by an affidavit of the applicant which is to comply with the requirements specified in Part 1 or 2 of Schedule 3 (as may be applicable).

(3) An application may not be made under subsection (1) unless the making of the application has been approved by a directorate officer of the department concerned.

Section 9(2)

(2) The panel judge shall not issue the judge’s authorization unless he is satisfied that the conditions for its issue under section 3 have been met.

Section 15(2)

(2) The authorizing officer shall not issue the executive authorization unless he is satisfied that the conditions for its issue under section 3 have been met.

Section 59(1)(a), (b), (c)(i)

(1) Where any protected product has been obtained pursuant to any prescribed authorization issued or renewed under this Ordinance on an application by any officer of a department, the head of the department shall make arrangements to ensure—

(a) that the following are limited to the minimum that is necessary for the relevant purpose of the prescribed authorization—

(i) the extent to which the protected product is disclosed;

(ii) the number of persons to whom any of the protected product is disclosed;

(iii) the extent to which the protected product is copied; and

(iv) the number of copies made of any of the protected product;

(b) that all practicable steps are taken to ensure that the protected product is protected against unauthorized or accidental access, processing, erasure or other use; and

(c) that, except as otherwise provided in subsection (1A), the protected product—

(i) is destroyed as soon as its retention is not necessary for the relevant purpose of the prescribed authorization, unless it is to be or has been provided to the Commissioner in compliance with a requirement imposed under section 53(1)(a) before it is so destroyed

Section 59(3)

(3) For the purposes of this section, something is necessary for the relevant purpose of a      prescribed authorization—

(a) in the case of subsection (1)(a), if—

(i) it continues to be, or is likely to become, necessary for the relevant purpose; or

(ii) except in the case of a prescribed authorization for a telecommunications interception, it is necessary for the purposes of any civil or criminal proceedings before any court that are pending or are likely to be instituted; or

(b) in the case of subsection (1)(c)—

(i) when it continues to be, or is likely to become, necessary for the relevant purpose; or

(ii) except in the case of a prescribed authorization for a telecommunications interception, at any time before the expiration of 1 year after it ceases to be necessary for the purposes of any civil or criminal proceedings before any court that are pending or are likely to be instituted.

Section 60(1)(a)

(1) Without prejudice to section 59, each department shall keep a record which is to contain—

(a) in respect of each application for the issue or renewal of a prescribed authorization under this Ordinance by any officer of the department, a record of—     

(i) the application (including a copy of any affidavit or statement provided under Part 3 for the purposes of the application); and

(ii) the determination in respect of the application by the relevant authority (including a copy of any prescribed authorization issued or renewed under Part 3 as a result of the application);

Section 61

(1) Any telecommunications interception product shall not be admissible in evidence in any proceedings before any court other than to prove that a relevant offence has been committed.

(2) Any telecommunications interception product, and any particulars as to a telecommunications interception carried out pursuant to a relevant prescribed authorization, shall not be made available to any party to any proceedings before any court (other than any such proceedings instituted for a relevant offence).

(3) In any proceedings before any court (other than any such proceedings instituted for a relevant offence), any evidence or question which tends to suggest any of the following matters shall not be adduced or asked—

(a) that an application has been made for the issue or renewal of a relevant prescribed authorization, or the issue of a relevant device retrieval warrant, under this Ordinance;

(b) that a relevant prescribed authorization has been issued or renewed, or a relevant device retrieval warrant has been issued, under this Ordinance;

(c) that any requirement has been imposed on any person to provide assistance for the execution of a relevant prescribed authorization or a relevant device retrieval warrant;

(d) that any information has been obtained pursuant to a relevant prescribed authorization.

(4)     Notwithstanding subsection (2) or any other provision of this Ordinance, where, for the purposes of any criminal proceedings (whether being criminal proceedings instituted for an offence or any related proceedings), any information obtained pursuant to a relevant prescribed authorization and continuing to be available to the department concerned might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence—

(a) the department shall disclose the information to the prosecution; and

(b) the prosecution shall then disclose the information to the judge in an ex parte hearing that is held in private.

(5) The judge may, further to the disclosure to him of the information under subsection (4)(b), make such orders as he thinks fit for the purpose of securing the fairness of the proceedings.

(6) Where any order is made under subsection (5) in any criminal proceedings, the prosecution shall disclose to the judge for any related proceedings the terms of the order and the information concerned in an ex parte hearing that is held in private.

(7) Notwithstanding subsection (5), no order made under that subsection authorizes or requires anything to be done in contravention of subsections (1), (2) and (3).

(8) In this section—

judge, in relation to any proceedings, means the judge or magistrate before whom those proceedings are or are to be heard, or any other judge or magistrate having jurisdiction to deal with the matter concerned;

party, in relation to any criminal proceedings, includes the prosecution;

related proceedings, in relation to any criminal proceedings, means any further proceedings (including appeal proceedings) arising from, or any proceedings preliminary or incidental to, those proceedings;

relevant device retrieval warrant means a device retrieval warrant for the retrieval of any of the devices authorized to be used under a relevant prescribed authorization;

relevant offence means any offence constituted by the disclosure of any telecommunications interception product or of any information relating to the obtaining of any telecommunications interception product (whether or not there are other constituent elements of the offence);

relevant prescribed authorization means a prescribed authorization for a telecommunications interception;

telecommunications interception product means any interception product to the extent that it is—

(a) any contents of a communication that have been obtained pursuant to a relevant prescribed authorization; or

(b) a copy of such contents.

Schedule 1, Part 1

1. Customs and Excise Department

2. Hong Kong Police Force

3. Independent Commission Against Corruption

Schedule 1, Part 2

1. Customs and Excise Department

2. Hong Kong Police Force

3. Immigration Department

4. Independent Commission Against Corruption

Schedule 3, Part 3

A statement supporting an application for the issue of an executive authorization for Type 2 surveillance is to—

(a) state which of the purposes specified in section 3(1)(a)(i) and (ii) of this Ordinance is sought to be furthered by carrying out the Type 2 surveillance;

(b) set out—

(i) the form of the Type 2 surveillance (including the kind or kinds of any devices to be used) and the information sought to be obtained by carrying out the Type 2 surveillance;

(ii) if known, the identity of any person who is to be the subject of the Type 2 surveillance;

(iii) the identity of any person, other than that referred to in subparagraph (ii), who may be affected by the Type 2 surveillance or, if the identity of such person is not known, the description of any such person or class of such persons who may be affected by the Type 2 surveillance;

(iv) if known, particulars of any premises or any object or class of objects in or on which the Type 2 surveillance is to be carried out;

(v) the proposed duration of the Type 2 surveillance;

(vi) the grounds for the reasonable suspicion specified in section 3(1)(b) of this Ordinance;

(vii) the following information—

(A)  where the purpose sought to be furthered by carrying out the Type 2 surveillance is that specified in section 3(1)(a)(i) of this Ordinance, the particular serious crime to be prevented or detected and an assessment of its immediacy and gravity; or

(B)  where the purpose sought to be furthered by carrying out the Type 2 surveillance is that specified in section 3(1)(a)(ii) of this Ordinance, the particular threat to public security, an assessment of its immediacy and gravity, and an assessment of its impact, both direct and indirect, on the security of Hong Kong, the residents of Hong Kong, or other persons in Hong Kong;

(viii) the benefits likely to be obtained by carrying out the Type 2 surveillance;

(ix) an assessment of the impact (if any) of the Type 2 surveillance on any person referred to in subparagraph (iii);

(x) the likelihood that any information which may be subject to legal professional privilege, or may be the contents of any journalistic material, will be obtained by carrying out the Type 2 surveillance;

(xi) the reason why the purpose sought to be furthered by carrying out the Type 2 surveillance cannot reasonably be furthered by other less intrusive means; and

(xii) if known, whether, during the preceding 2 years, there has been any application for the issue or renewal of a prescribed authorization in which any person set out in the statement under subparagraph (ii) has also been identified as the subject of the interception or covert surveillance concerned, and if so, particulars of such application; and

(c) identify by name, rank and post the applicant.