Remedies Against Telephone Tapping by the Government

Abstract

Telephone tapping, a measure adopted by law enforcement agencies for the prevention and detection of crime, is carried out under section 33 of the Telecommunications Ordinance. However, the section does not pass the forseeability test required for it to be regarded as 'law'. The present practice of telephone tapping violates the right to privacy and to freedom of expression guaranteed by the Basic Law. The Personal Data (Privacy) Ordinance, which may be invoked by persons suspecting their telephones to have been tapped, has limitations. These people stand a better chance by relying on the Hong Kong Bill of Rights Ordinance. Accordingly, to avoid the courts being landed with the invidious task of either rendering the rights in question a nullity or denying law enforcement agencies a necessary tool, the Hong Kong Special Administrative Region (HKSAR) Government should take immediate action to enact legislation along the lines recommended by the Law Reform Commission in 1996.