### Interception of Communications and Surveillance Ordinance 《截取通訊及監察條例》

40. Functions of Commissioner
The functions of the Commissioner are—
(a) to oversee the compliance by departments and their officers with the relevant requirements; and
(b) without limiting the generality of paragraph (a), to—
(i) conduct reviews under Division 2;
(ii) carry out examinations under Division 3;
(iii) give notifications to relevant persons under Division 4;
(iv) submit reports to the Chief Executive and make recommendations to the Secretary for Security and heads of departments under Division 5;
(v) perform any further functions prescribed by regulation made under section 66 for the purposes of this subparagraph; and
(vi) perform such other functions as are imposed or conferred on him under this Ordinance or any other enactment.

41. Reviews on compliance with relevant requirements
(1) The Commissioner shall conduct such reviews as he considers necessary on compliance by departments and their officers with the relevant requirements.
(2) Without limiting the generality of subsection (1), the Commissioner shall conduct reviews on cases in respect of which a report has been submitted to him under section 23(3)(b), 26(3)(b)(ii) or 54.
(3) Upon the conduct of any review under subsection (1) or (2), the Commissioner shall record in writing—
(a) details, as identified in the review, of any case of failure by any department or any of its officers to comply with any relevant requirement; and
(b) any other finding he has made in the review.

42. Notifications to departments concerned, etc.
(1) The Commissioner shall notify the head of any department concerned of his findings in a review under section 41(3).
(2) On being notified of the findings of the Commissioner under subsection (1), the head of the department shall submit to the Commissioner a report with details of any measures taken by the department (including any disciplinary action taken in respect of any officer) to address any issues identified in the findings, as soon as reasonably practicable after the notification or, where the Commissioner has specified any period for submission of the report when giving the notification, within that period.
(3) Without prejudice to sections 49 and 50, the Commissioner may, whether before or after the head of the department has submitted a report to him under subsection (2), refer the findings and any other matters he thinks fit to the Chief Executive, the Secretary for Justice or any panel judge or any or all of them.

43. Application for examination
(1) A person may apply to the Commissioner for an examination under this Division, if he suspects—
(a) that any communication transmitted to or by him has been intercepted by an officer of a department; or
(b) that he is the subject of any covert surveillance that has been carried out by an officer of a department.
(2) The application is to be made in writing.

### Interception of Communications and Surveillance Ordinance 《截取通訊及監察條例》

44. Examination by Commissioner
(1) Where the Commissioner receives an application under section 43, he shall, subject to section 45, carry out an examination to determine—
(a) whether or not the interception or covert surveillance alleged has taken place; and
(b) if so, whether or not the interception or covert surveillance alleged has been carried out by an officer of a department without the authority of a prescribed authorization.
(2) If, on an examination, the Commissioner, having regard to section 46(1), determines that the interception or covert surveillance alleged has been carried out by an officer of a department without the authority of a prescribed authorization, he shall as soon as reasonably practicable give notice to the applicant—
(a) stating that he has found the case in the applicant’s favour and indicating whether the case is one of interception or covert surveillance, the date on which the interception or covert surveillance began and the duration of the interception or covert surveillance; and (Amended 21 of 2016 s. 10)
(b) inviting the applicant to confirm whether the applicant wishes to seek an order for the payment of compensation under the application, and if so, to make written submissions to him for that purpose.
(3) Upon receiving confirmation from the applicant that an order for the payment of compensation is sought, the Commissioner, upon taking into account any written submissions made to him for that purpose, may make any order for the payment of compensation by the Government to the applicant.
(4) The compensation ordered to be paid under subsection (3) may include compensation for injury of feelings.
(5) If, on an examination, the Commissioner makes a determination other than that referred to in subsection (2), he shall as soon as reasonably practicable give notice to the applicant stating that he has not found the case in the applicant’s favour.
(6) Notwithstanding subsections (2), (3) and (5), the Commissioner shall only give a notice or make an order under those subsections when he considers that the giving of the notice or the making of the order (as the case may be) would not be prejudicial to the prevention or detection of crime or the protection of public security.
(7) The Commissioner shall not make a determination referred to in subsection (2) in respect of an interception if the interception is within the description of section 4(2)(b) or (c).

### Interception of Communications and Surveillance Ordinance 《截取通訊及監察條例》

45. Grounds for not carrying out examination, etc.
(1) Where, before or in the course of an examination, the Commissioner considers—
(a) that the application for the examination is received by the Commissioner more than 1 year after the day on which the interception or covert surveillance is alleged to have taken place or, where the interception or covert surveillance is alleged to have taken place on more than 1 day, the last occasion on which it is alleged to have taken place, and that it is not unfair for him not to carry out the examination;
(b) that the application is made anonymously;
(c) that the applicant cannot, after the use of reasonable efforts, be identified or traced; or
(d) that, having regard to all the circumstances of the case, the application is frivolous or vexatious or is not made in good faith,
the Commissioner may refuse to carry out the examination or, where the examination has been commenced, to proceed with the carrying out of the examination (including the making of any determination further to the examination).
(2) Where, before or in the course of an examination, the Commissioner is satisfied that any relevant criminal proceedings are pending or are likely to be instituted, the Commissioner shall not carry out the examination or, where the examination has been commenced, proceed with the carrying out of the examination (including the making of any determination further to the examination)—
(a) in the case of any pending criminal proceedings, until they have been finally determined or finally disposed of; or
(b) in the case of any criminal proceedings which are likely to be instituted, until they have been finally determined or finally disposed of or, if applicable, until they are no longer likely to be instituted.
(3) For the purposes of subsection (2), criminal proceedings are, in relation to an examination, regarded as relevant if, but only if, the interception or covert surveillance alleged in the application for the examination is or may be relevant to the determination of any question concerning any evidence which has been or may be adduced in those proceedings.