Hong Kong Human Rights Monitor

Adaptation of Law

Shortly after the Personal Data (Privacy) Ordinance came into force on 20 December 1996 making it illegal for any agency, or any person, to collect and keep secret information on any citizen of Hong Kong, the well-known pro-democracy politician Emily Lau applied to China's de facto embassy in the territory, the New China News Agency "Xinhua" to disclose any file they had pertaining to her.

Like every other activist and high-profile democrat, Ms Lau had strong reason to believe that such a file existed. Now that it had been made illegal to hold personal data without informing the person involved, she was naturally concerned to know what it contained.

The new law allowed 40 days for a reply to be made, but these passed without any acknowledgement from Xinhua. Another month passed. Finally, after 10 months, the agency responded. They claimed not to hold any files.

This flagrant breach of the law was referred to the Privacy Commissioner, whose job it is to see that the data protection ordinance is enforced. He referred the case to the Department of Justice, but after due consideration the Department announced its verdict. Xinhua would not be prosecuted. In the outcry which followed, the Chief Executive Tung Chee-hwa was questioned in public about the decision. He described Xinhua's failure to meet the legal deadline by eight months as "technical breach, not a substantive breach" of the law.

This was the first indication the people had, that the solemn pledge which had been so often repeated in the months leading to transition would not be kept. The rule of law, the greatest single assurance that life would continue in Hong Kong as it had before, and that Hong Kong people would rule Hong Kong, was no longer sacrosanct.

Since then, a new development has undermined the safeguards of the system. In its final act, the provisional legislature (the unelected body brought in to do the new SAR Government’s bidding after the legitimate council was ousted) endorsed a bill on the Adaptation of Laws, which has the effect of exempting all mainland bodies from the scrutiny of at least 500 Hong Kong statutes.

As the law presently stands, the central authorities are not bound by any of the ordinances of Hong Kong, unless the statute expressly states that they are bound by it. Because the Privacy Ordinance applies to the private sector and "The Government" now defined as the HKSAR Government the central authorities are not required to observe it.

In reality, the privacy ordinance offered only limited protection to the public. It covers only the collection, storage, use and disclosure of personal information. It does not prohibit stalking or surveillance. Before re-unification, a very moderate law was enacted which would have required a warrant signed by a judge before phone-bugging was carried out, but it has never been put into effect. It is, in effect, repealed.

Activists complain that their phones are tapped by the police. Hong Kong law allows the Government to intercept telecommunications "in the public interest" and virtually anyone is free to eavesdrop on other telephone conversations, providing they do not trespass in placing a listening device in the system. Nobody need be informed when this is being done, not even the Privacy Commissioner, making it virtually impossible for a victim of this practice to challenge the police in the courts. Despite pressure, the Government has resisted calls to reform the system. The official view is that the ordinance, with its codes of practice on personal identifiers and guide for internet data users, is sufficient, and does not require further strengthening.

The over-riding concern of the legal profession, human rights organisation and many other people in Hong Kong, however, is whether the HKSAR Government is committed to even rule by law, not to mention rule of law. Following the Xinhua exemption, another incident reinforced the strong suspicion among the public that important political figures with close ties to the Chinese authorities are immune from the enforcement of the law.

Three Sing Tao employees are alleged to have conspired with Sally Aw Sian, a Hong Kong newspaper tycoon, to inflate the circulation of their newspaper. Although she is named in the charge sheets, Ms Aw, a member of the Chinese People Political Consultative Committee has not been prosecuted. Only the other three people named face trial.

The non-prosecution of Xinhua and of Sally Aw Sian casts doubt on whether Mr Tung's Government is prepared to enforce Hong Kong laws fairly with respect to mainland bodies in Hong Kong, or people with close ties to those bodies.

Article 22 of the Basic Law provides: "All offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region."

Legislative history reveals that this article was deliberately included in the Basic Law to ensure that no mainland bodies would be immune from local legal restraints, but it has been rendered inoperative by the Adaptation of Laws Bill. The pledge that retained the confidence of the Hong Kong people in the approach to the handover, that no-one in the SAR would be above the law, no longer applies. The action is inconsistent with the Basic Law, and damaging to Hong Kong's autonomy. There is no longer equality under the law. Justice has been betrayed.

1998 (c) Hong Kong Human Rights Monitor