No trespassing: Law Reform Commission members Prof Johannes Chan, Dr John Bacon-Shone and Stuart Stoker present highlights of their report to the media.

The Law Reform Commission has announced its proposals for regulating covert surveillance in Hong Kong. Chief among them is a call to set up a legislative framework to regulate surveillance and personal information obtained by intruding into private premises.

The commission's Privacy Sub-committee Chairman Dr John Bacon-Shone said the report's recommendations aim to provide adequate and effective protection and remedies against arbitrary or unlawful intrusion into an individual's privacy - a guarantee under the Basic Law.

The report recommends two new criminal offences be created:

* to enter or remain on private premises as a trespasser to observe, overhear or obtain personal information;

* to place, use, service or remove a sense-enhancing, transmitting or recording device - inside or outside private premises - to get personal information about people inside who would have a reasonable expectation of privacy.

'Private premises' are fairly narrowly defined and include such places as a home, hotel room, and sleeping accommodations in nursing homes and hospitals.

The commission recommends these two offences apply to all people, although a law-enforcement agency would not be liable if it had first obtained a warrant or internal authorisation.

Anyone accused of these offences could defend himself on the grounds that he had an honest belief that:

* a serious offence had been, or was being committed;

* the law-enforcement agencies would not investigate or prosecute that offence;

* evidence showing that serious offence was being committed could be obtained through surveillance and not by less instrusive means; and

* the surveillance' purpose was to prevent or detect a serious offence.

The commission proposes requiring law-enforcement agencies to get a court warrant before starting covert surveillance if:

* it would otherwise constitute one of the proposed criminal offences;

* is to be carried out on certain specified premises from which the public are excluded, such as schools or commercial premises; or

* the surveillance is likely to acquire material subject to legal privilege, confidential journalistic material or highly sensitive personal information.

Less intrusive cases would require an internal authorisation from a senior officer of a law-enforcement agency, where covert surveillance is to be carried out in circumstances where the person in question would have a reasonable expectation of privacy.

The commission recommends the Administration have the sole right to apply for a warrant to conduct covert surveillance since it is entrusted with the responsibility to maintain law and order and is accountable to the public.

Only an authorised officer of a Government department or law-enforcement agency would be able to apply for a warrant or internal authorisation. If a law-enforcement agency wants to use an informer or undercover agent to conduct covert surveillance on its behalf, the agency would have to obtain the same level of authorisation which would have been necessary if the law-enforcement agency carried out the surveillance itself.

All warrant applications should be made to a judge of the Court of First Instance, the commission recommends. Internal authorisations for covert surveillance should be issued by an officer who has achieved no less than the rank of Senior Superintendent of Police or equivalent in the law-enforcement agency concerned.

A warrant must be granted only where the covert surveillance is to prevent or detect serious crime, or to protect public security - and the party seeking it must have reasonable suspicions. Before granting approval, the court or authorising officer must be satisfied the information cannot reasonably be obtained through less intrusive means.

The commission recommends material obtained through covert surveillance be admissible as evidence, although a court has the power to exclude it if its admission would have adversely affect the proceedings' fairness.

A supervisory authority - a serving or retired judge of the Court of First Instance, or a higher court, or someone eligible for appointment to the Court of First Instance - should be set up to keep the proposed warrant and authorisation system under review, the report suggests.

The supervisory authority would review cases on a sample audit basis as it would not be  practicable to look at every one. It would also consider complaints from the public, and award compensation in appropriate cases.

Its approval would be needed for internal guidelines the law-enforcement agencies draw up for granting internal authorisations and guidelines regarding the handling, storage, disclosure or destruction of materials obtained through covert surveillance or by covert means.

Not every covert surveillance target need be notified, the commission suggests. If there is a problem with the warrant, or some contravention of statutory requirements, the subject would need to be told.

"There may be a need to delay notification if there is an ongoing investigation," Dr Bacon-Shone said, adding the delay "must be no longer than necessary".

To enhance the system's transparency and public accountability, the commission recommends the supervisory authority submit a public annual report to the Legislative Council. It should include such statistics as the number of warrants and internal authorisations applied for, withdrawn and granted.

The authority should also submit a confidential report to the Chief Executive with details of any cases which contravened statutory requirement.

"The Commission's proposals go further than those in the Government's Bill now before the Legislative Council in that they are intended to regulate all covert surveillance, not just where surveillance is carried out by the law-enforcement agencies," said Dr Bacon-Shone.

"The Basic Law gives a person the right to privacy in his home, and that requires broader protections than just dealing with law enforcement."

The report is now available on the Commission's website. A printed version of the report is expected to be available in two or three weeks' time from the Commission's Secretariat at 20/F, Harcourt House, 39 Gloucester Road, Wan Chai.