VZCZCXRO6320
PP RUEHCN RUEHGH
DE RUEHHK #2850/01 1930935
ZNR UUUUU ZZH
P 120935Z JUL 06
FM AMCONSUL HONG KONG
TO RUEHC/SECSTATE WASHDC PRIORITY 7718
INFO RUEHOO/CHINA POSTS COLLECTIVE PRIORITY
RUEAWJA/DEPT OF JUSTICE WASHINGTON DC PRIORITY
RHEHNSC/NSC WASHDC PRIORITY

UNCLAS SECTION 01 OF 02 HONG KONG 002850 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
NSC FOR DENNIS WILDER 
DEPT FOR EAP/CM 
 
E.O. 12958: N/A 
 
TAGS: PGOV PHUM PREL HK CH PINR MC
SUBJECT: HIGH COURT RULES ON COVERT SURVEILLANCE CASE 
 
REF: HONG KONG 0523 
 
¶1. (SBU) Summary:  On July 12, the Hong Kong Court of Final 
Appeal (CFA) struck down a February lower court ruling that 
had granted six-month "temporary validity" to the 
Government's covert surveillance and wiretapping operations, 
despite the lower court's finding that such operations were 
unconstitutional.  The six-month grace period was meant to 
give the Government an opportunity to enact corrective 
legislation without disrupting normal investigative 
operations, but the CFA found that the lower court had gone 
too far in granting "temporary validity."  Recognizing the 
need to avoid a legal vacuum, the CFA instead substituted a 
"suspension" of the declarations of unconstitutionality for a 
period of six months from the date of the lower court's 
original ruling.  The practical effect of this is that the 
Government will still have until August 8 to enact corrective 
legislation but, importantly, will not be shielded from legal 
liability for its unconstitutional surveillance operations, 
as had been the case under the lower court's "temporary 
validity" order.  End Summary. 
 
¶2. (SBU) The CFA on July 12 overturned a lower court decision 
granting "temporary validity" to the Government's covert 
surveillance and wiretapping operations for a period of six 
months.  In that earlier decision, issued on February 9, 
2006, High Court Justice Michael Hartman ruled that Chief 
Executive Donald Tsang's August 2005 executive order 
authorizing covert surveillance was "an administrative order 
having no legislative effect" (see ref).  Hartman also ruled 
that Section 33 of the decades-old Telecommunications 
Ordinance was unconstitutional because it authorized access 
to, or the disclosure of, the contents of intercepted 
communications in violation of Articles 30 and 39 of the 
Basic Law, which guarantee the right to free and private 
communications.  Hartman accepted, however, the Government's 
petition to grant "temporary validity" to both the executive 
order and the Telecommunications Ordinance for a period of 
six months to allow the Government time to enact corrective 
legislation.  Hartman admitted that his ruling was "unusual" 
and "exceptional" but justified it by arguing that the 
prospect of a legal vacuum constituted "a real threat to the 
rule of law."  As precedent for his decision, Hartman relied 
heavily on a Canadian decision in which the court granted 
"temporary validity" to nearly all of the laws on the books 
in Manitoba Province, despite having declared those laws 
unconstitutional because they were not written in both French 
and English. 
 
A Victory for Long Hair, But Little Practical Effect 
--------------------------------------------- ------- 
 
¶3. (SBU) The plaintiffs in that case, legislator "Long Hair" 
Leung Kwok-hung and fellow activist Koo Sze-Yiu, appealed 
Hartman's "temporary validity" ruling to the CFA.  In its 
unanimous decision, CFA Justice Kemal Bokhary said "The 
scenario in the present case is nothing like a virtual legal 
vacuum or a virtually blank statute book (referring to the 
Canadian case).  It is by no means as serious as that.  I see 
nothing to justify temporary validity in the present case." 
Bokhary added, however, that "All things considered, I am of 
the view that the danger to be averted in the present case is 
of a sufficient magnitude to justify suspension."  Bokhary 
concluded that "I would allow the appeal to set aside the 
temporary validity order.  In its place I would, to afford an 
opportunity for the enactment of corrective legislation, 
substitute suspension of the declarations of 
unconstitutionality so as to postpone their coming into 
operation, such postponement to be for six months from the 
date of Hartman's judgment of 9 February 2006." 
 
¶4. (SBU) The practical effect of the CFA's ruling is that the 
Government will still have until August 8 to enact corrective 
legislation.  However, it will not be shielded from legal 
liability for its unconstitutional surveillance operations, 
as had been the case under Hartman's "temporary validity" 
ruling.  Bokhary made this point explicit by saying "The 
Government can, during that period of suspension, function 
pursuant to what has been declared unconstitutional, doing so 
without acting contrary to any declaration in operation. 
But, despite such suspension, the Government is not shielded 
from legal liability for functioning pursuant to what has 
been declared unconstitutional." 
 
¶5. (SBU) Outside the court, Leung and Koo opened a bottle of 
champagne in front of television cameras to celebrate their 
victory.  They called on Donald Tsang to make a public 
 
HONG KONG 00002850  002 OF 002 
 
 
apology for his unconstitutional act, and to promise not to 
do it again.  The Government has not yet reacted to the 
ruling.  Leung and Koo, both of whom claim to be targets of 
covert surveillance and wiretapping, say they intend to file 
a lawsuit against the Government for unconstitutional 
surveillance. 
Sakaue