Under section 43 of the Interception of Communications and Surveillance Ordinance, Cap 589 (the Ordinance), a person may apply in writing to the Commissioner on Interception of Communications and Surveillance (the Commissioner) for an examination if he suspects that he is the subject of any interception or covert surveillance activity carried out by officers of the law enforcement agencies (LEAs). The LEAs under the Ordinance are set out in Schedule 1 of the Ordinance, namely, Customs and Excise Department, Hong Kong Police Force, and Independent Commission Against Corruption regarding interception, and the same departments plus Immigration Department regarding covert surveillance.
Pursuant to section 44, upon receiving an application, the Commissioner shall carry out an examination to determine:
Under section 45(1) of the Ordinance, the Commissioner may refuse to carry out an examination if he considers that:
Section 45(2) mandates the Commissioner not to carry out an examination or proceed with the examination where, before or in the course of the examination, he is satisfied that any relevant criminal proceedings are pending or are likely to be instituted, until the criminal proceedings have been finally determined or finally disposed of or until they are no longer likely to be instituted. Section 45(3) defines relevant criminal proceedings as those where the interception or covert surveillance alleged in the application for examination is or may be relevant to the determination of any question concerning any evidence which has been or may be adduced in those proceedings.
If, on an examination, the Commissioner finds the case in the applicant’s favour, he shall notify the applicant in accordance with section 44.
Section 46(4) of the Ordinance expressly provides that in relation to an application for examination, the Commissioner is not allowed to provide reasons for his determination, or give details of any interception or covert surveillance concerned, or in a case where he has not found in the applicant’s favour, indicate whether or not the suspected interception or covert surveillance has taken place.
This statutory prohibition is designed to forbid the disclosure of any sensitive and secret information as mentioned above, thus preventing the provision of an advantage to criminals or possible criminals over the LEAs in the latter’s efforts in fighting crimes and in protecting the safety of the community in Hong Kong.
If you suspect that you are the subject of any interception or covert surveillance activity that has been carried out by officers of one or more of the LEAs under the Ordinance, you may apply to the Commissioner for an examination. Your application is to be made in writing. In so doing, you should give a full account of your case and send your application letter together with the duly completed Consent Form on the use of personal data either in hard copy (download Consent Form) to the Commissioner’s office at Units 1501 - 1504, 15/F, Dah Sing Financial Centre, 248 Queen’s Road East, Wanchai, Hong Kong or in electronic copy with digital signing at iAM Smart platform. When sending the application in hard copy, please ensure that the correct address is clearly printed or written on the envelope and sufficient postage is affixed before posting. Mail items bearing insufficient postage will not be delivered to the Commissioner’s office and will be returned to the sender or disposed of by the Hongkong Post, where appropriate.