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P 260924Z JUN 06
FM AMCONSUL HONG KONG
TO RUEHC/SECSTATE WASHDCPRIORITY 7464
INFO RUEHOO/CHINA POSTS COLLECTIVE PRIORITY
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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 
------------------- 
 
¶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? 
---------- 
 
¶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