Report No. 198

7.3 Hong Kong

In Hong Kong, the Witness Protection Programme is established under WitnessProtection Ordinance (67 of 2000). As per the Ordinance, the approving authority is required to establish and maintain the Witness Protection Programme. The approving authority arranges or provides protection and other assistance for witness's personal safety or well being that may be at risk as a result of being a witness. 'Approving Authority' means a person designated in writing by the Commissioner of Police or the Commissioner of the Independent Commission against Corruption.

The approving authority, as per section 4, has the sole responsibility of deciding whether or not to include a witness in the Witness Protection Programme. A witness may be included in the Witness Protection Programme only if (a) the authority has decided that the witness be included; (b) the witness agrees to be included; and (c) the witness signs a memorandum of understanding. Apart from the nature of the perceived danger to the witness, the approving authority should, in deciding whether or not to include a witness in the Witness Protection Programme, have regard to the factors mentioned in sub section (3) of section 4.

The approving authority may also require a witness to undergo psychological, psychiatrist, or other medical tests or examination and make the results available to the authority for the purpose of assessing whether the witness shall be included in the programme or not. The authority may also make other inquires and investigations. The witness is required to provide the authority with all necessary information as per section 5. The contents of the memorandum of understanding are set out in section 6.

When a witness is included in the Witness Protection Programme, the approving authority shall take all necessary and reasonable actions which are required to protect the witness's safety and welfare. The approving authority as per section 8 may establish a new identity for a participant in Witness Protection Programme. Necessary documents shall be issued for the purpose of establishing the new identity.

If a participant has legal rights or obligations which are outstanding or is subjected to legal restrictions, the authority shall take reasonable and practicable steps to ensure that those rights and obligations are dealt with according to law and that those restrictions are complied with. Section 10 permits non-disclosure of original identity.

Where a participant who has been provided with a new identity, would be required by or under a law of Hong Kong to disclose his original identity for a particular purpose, and the approving authority has given him written permission not to disclose his original identity for that purpose, the participant is not required to disclose his original identity to any person for that purpose. He may claim that his new identity is his only identity.

Under section 11, the approving authority may terminate the protection of a participant. Where a new identity is issued under the protection programme and if that protection is terminated as per section 11, the original identity of the participant shall be restored.

A Board is established to review certain decisions of approving authority. The Board is to consist of (i) an officer who is more senior than the approving authority designated by the Commissioner of Police, and (ii) two persons who are not public officers. The Board may also consist of additional members who may or may not be public officers (section 14).

A person who is aggrieved by a decision of the approving authority (a) not to include him; (b) to terminate his protection as a participant; or (c) not to establish a new identity for him as a participant, in the Witness Protection Programme, may request in writing that the approving authority's decision be reviewed by the Board.

If a participant has been with a new identify or has been relocated under the Witness Protection Programme and is notified to the appropriate authority that the participant has been arrested or is liable to arrest for an arrestable offence, then the approving authority may

(i) release the new identity or new location of the participant;

(ii) provide the criminal record and the finger prints of the participant;

(iii) release other information; and

(iv) allow officers of the law enforcement agency to interview him.

Section 17 prescribes offences. A person is not allowed to disclose information about the identity or location of a participant or such information that compromises the security of such a person. Similarly, a person who is or has been a participant shall not disclose:-

(a) the fact that he is or has been a participant;

(b) information as to the way in which the witness protection programme operates;

(c) information about any officer who is or has been involved in the witness protection programme

(d) the fact that he has signed memorandum of understanding;

(e) any details of such a memorandum of understanding.

Contravention of these conditions are punishable offences. As per section 18, the approving authority, officers working with such authority or other public officers performing functions in relation to the Witness Protection Programme, shall not be required:-

(a) to produce in a court, tribunal, commission or inquiry any document that has come into the custody or control in the course of his duties in relation to the Witness Protection Programme;

(b) to disclose or communicate to such body any matter or thing that has come to his notice;

Where a participant has to give evidence for the HKSAR in legal proceedings, the Judge or Magistrate may, upon an ex-parte application by the prosecution, authorise a police officer to require all members of the public wishing to enter the court room to

(a) identify themselves to the satisfaction of the officer; and

(b) undergo such search as the officer may require to ensure that they are not carrying into the court room anything which would pose a threat to the security or well being of the participant.