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HONG KONG: HK's top court strikes down snooping law

Court decision strikes down ruling that would have allowed police to carry out wiretaps

South China Morning Post
Wednesday, July 12, 2006

Hong Kong's top court on Wednesday struck down a ruling that allowed police to carry out controversial government wiretaps, a move activists hailed as a victory for freedoms in the territory.

The Court of Final Appeal found the ruling, which gave a six-month breather to disputed surveillance rules currently being redrawn by lawmakers, should be scrapped.

However, the court stopped short of censuring the government, suspending for six months a declaration that it acted unconstitutionally.

The action stemmed from rights activists' opposition to the enactment last year of a so-called Executive Order, which steamrollered temporary covert surveillance law onto the statute books.

They attacked the move as an affront to freedoms and rights.

Outspoken lawmaker Leung Kwok-hung and fellow radical rights campaigner Koo Sze-yiu challenged the move and a lower court declared the temporary laws unconstitutional, but allowed them to remain in force for six months while the government drew up new legislation.

Mr Leung and Mr Koo said the decision, though a victory for their cause, had let the government off the hook and they appealed on the grounds that the ruling contravened Hong Kong's post-colonial mini-constitution, the Basic Law.

Upholding the appeal, Justice Kemal Bokhary said freedom of communication was essential in a free society but stressed some provisions for covert surveillance were needed.

"The position reached upon a proper balance of the rival considerations is that covert surveillance is not to be prohibited but is to be controlled," Justice Bokhary said.

The wide-ranging wire-tapping rules were pushed past the city's legislature by Chief Executive Donald Tsang Yam-kuen, who invoked rarely used emergency powers.

The move was prompted by the collapse of several high-profile corruption cases after the courts ruled evidence obtained by secret eavesdropping was illegal.

Mr Leung and Mr Koo celebrated on the court steps by waving a huge victory banner and popping a bottle of champagne.

"Donald Tsang should now apologise to the people of Hong Kong for having acted unconstitutionally," Mr Leung said. "He should now move to enact proper legislation."

Barrister and opposition lawmaker Ronny Tong welcomed the court's decision but queried why the court had suspended censure of the government.

"It means the government cannot be held responsible for any infringement of rights through covert surveillance in the six-month period," Mr Tong said.