3 December 2021
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Authored by: Peter So and Victor Wong
On 8 October 2021, Hong Kong’s privacy law heralded a new era in the protection of personal data, by the introduction of doxxing-related offences in the Personal Data (Privacy) (Amendment) Ordinance 2021 (Amendment Ordinance). For the purpose of combatting doxxing behaviour in Hong Kong more effectively, the Privacy Commissioner for Personal Data (Commissioner) is empowered to carry out criminal investigations, institute prosecutions for doxxing-related offences and order the removal of doxxing messages. In this article, we set out the new investigatory powers of the Commissioner.
Investigatory Powers of the Commissioner in respect of Doxxing Offences
The Commissioner’s criminal investigatory powers are provided for under Part 9A of the Amendment Ordinance with regard to certain offences under sections 64(1), 64(3A), 64(3C) (broadly the doxxing offences), 66E(1) (failure to comply with an investigation notice), 66E(5) (provision of false/misleading information), 66I(1) (offence of obstruction) and 66O(1) (contravention of cessation notice).
The Commissioner’s broad investigatory powers are in line with those that are available to other regulatory authorities such as the Hong Kong Securities and Futures Commission, the Hong Kong Monetary Authority, and the Hong Kong Competition Commission. In particular, the interviewee has no right to silence and the interviewee’s protection is that the evidence cannot be used in subsequent criminal proceedings against him/her (except for those relating to provision of false/misleading information or perjury type of offences).
Powers to require materials and assistance by issuing a written notice to the person
Pursuant to section 66D(2)(a), the Commissioner may require a person to provide documents, information or thing in the person’s possession or control relevant to the investigation. This is the Commissioner’s power to request production of documents.
Pursuant to section 66D(2)(b), the Commissioner may require a person to attend before the Commissioner at a specified time and place and answer questions relevant to the investigation. This is essentially the Commissioner’s power to interview the interviewees.
Pursuant to section 66D(2)(c), the Commissioner may require a person to answer written questions relevant to the investigation. Pursuant to section 66D(2)(d), the Commissioner may require a person to make a statement relevant to the investigation.
Pursuant to section 66D(2)(e), the Commissioner may require a person to give the Commissioner all the assistance that the Commissioner reasonably requires for the investigation.
Powers exercisable in relation to premises, electronic devices and suspected offenders
Power to Search Premises and Access Electronic Devices with a Court Warrant
Pursuant to sections 66G(1)(b)(i) and (2), the Commissioner may apply for a warrant from the Magistrate to (i) enter and search the premises; (ii) carry out the investigation in the premises; and (iii) seize, remove and detain any material in the premises that is or contains evidence relating to the investigation.
Pursuant to sections 66G(1)(b)(ii) and (3), the Commissioner may apply for a warrant from the Magistrate to (i) access, seize and detain the electronic device (including mobile phones and computers, etc); (ii) decrypt any material stored in the electronic device; (iii) search for any material or evidence relevant to the investigation in the electronic device; and (iv) reproduce the relevant material stored in the electronic device in other forms, such as written forms on paper, copies of extracts etc.
When powers are exercised under the warrant, all persons situated in the premises or who are in possession or control of the relevant electronic devices must, without charge, afford facilities and assistance reasonably required by the Commissioner or any prescribed officer, such as directing the prescribed officers to the place where the material required is stored.
Power to Access Electronic Devices without a Court Warrant
Pursuant to section 66G(8), when the Commissioner is satisfied that a delay caused by an application for a warrant is likely to defeat the purpose of accessing the device, or for any reason it is not reasonably practicable to make the application, the Commissioner may, without warrant, access the electronic device that is suspected to contain material related to doxxing or its related offence. While the Commissioner has the power to access the electronic devices without a warrant, the Commissioner would not decrypt an electronic device without the authority of a warrant (see paragraph 3.4.3 of the Amendment Ordinance Implementation Guideline).
Suspected Offenders
Pursuant to section 66H, an authorized officer may stop, search and arrest without warrant any person reasonably suspected of committing certain doxxing offences. The “authorized officer” includes any officer at the rank of Personal Data Assistant or above; or a “police officer” as defined under section 3 of the Police Force Ordinance (Cap. 232).
Offences in relation to the Commissioner’s Investigatory Powers
A person commits an offence under section 66E(1) if the person fails to comply with a requirement of a notice given to the person under section 66D(2). The maximum penalty for summary conviction is a fine at level 5 (i.e. HK$50,000) and imprisonment of 6 months. The maximum penalty for conviction on indictment is a fine of HK$200,000 and imprisonment for 1 year.
If a person, with an intent to defraud, fails to comply with a requirement of a notice given to the person under section 66D(2), the maximum penalty for summary conviction is a fine at level 6 (i.e. HK$100,000) and imprisonment of 6 months, while the maximum penalty for conviction on indictment is a fine of HK$1,000,000 and imprisonment for 2 years.
A person commits an offence under section 66I(1) if, when any power is being exercised under section 66G or 66H, the person, without lawful excuse, obstructs, hinders or resists the Commissioner, a prescribed officer, or a person authorized by the Commissioner for the purposes of section 66H or a person assisting the Commissioner or a prescribed officer. The maximum penalty is a fine at level 3 (i.e. HK$10,000) and imprisonment for 6 months.
Rights of a Person
Privilege against self-incrimination. Section 66E(7) provides that a person is not excused from complying with a requirement of a notice given to the person under section 66D(2) only on the ground that to do so might tend to incriminate the person. In other words, there is no right to silence. However, pursuant to section 66F, if (i) the answer, directions, explanation, particulars or statement (required matter) might tend to incriminate the person, and (ii) the person claims, before giving or making the required matter, that it might so tend, the requirement, question and required matter are not admissible in evidence against the person in criminal proceedings other than those in which the person is charged in respect of the required matter with (i) an offence under section 66E(2), i.e. with an intent to defraud, provide false and misleading material, answer, direction, explanation or particulars to the Commissioner or (ii) an offence in relation to “perjury” under Part V of the Crimes Ordinance (Cap. 200).
Legal professional privilege (LPP). A person may make a claim of LPP in the course of investigation. If any prescribed officer executing a warrant considers that a valid claim of LPP exists, he shall (i) not examine the materials in respect of which LPP is claimed; (ii) seize those materials and seal them in an envelope or other suitable container; and (iii) deposit the sealed materials in the premises, and seek further legal advice on the matter at the earliest opportunity.
Implications
The Commissioner is empowered with extensive investigatory powers with regard to doxxing offences. The Commissioner may even access electronic devices without warrant in certain circumstances. The Amendment Ordinance demonstrates the Government’s determination to combat doxxing acts. Businesses should be prepared to facilitate the Commissioner’s investigation whenever a written notice under section 66D(2) is issued or whenever the Commissioner exercises its power to search premises and access electronic devices under section 66G.
For further information, please contact:
Peter So, Partner, Deacons
peter.so@deacons.com.hk
