01 Investigation
Written by: Li Yinglin, Chen Jingqi
2020-11-06 07:00
Last update date: 2020-11-06 07:00
Cai Yuling, the director responsible for investigating and reporting on the 7.21 incident of the Hong Kong and Taiwan program "Clang Collection", was arrested for making false statements when involved in the investigation of license plates.
It was subsequently revealed that the “Reason for Application” option in the license plate search application form was revised in October last year, which is suspected of conflicting with the document of the Transportation and Housing Bureau in the Legislative Council that the Commissioner of Transport has no right to require applicants to provide reasons for requesting license plate searches. statement.
In addition to license plate searches, the Immigration Department also tightened the birth and marriage registration searches in the same period last year, requiring the searchers to obtain prior authorization from the parties concerned or provide reasons for the searches for prescription approval. However, the measures are also inconsistent with the provisions of the Births and Deaths Registration Ordinance.
Lawyer Wen Hao, a member of the Law and Political Consultative Conference, is questioning that the tightened search measures of the Immigration Department are inconsistent with the "Ordinance". He believes that even if the prescription is modified for the purpose of protecting privacy, the administrative measures added must be proved to be reasonable and constitutional.
He also emphasized that the Basic Law guarantees freedom of the press and the government should not refuse the reasons for the search.
It was revealed in October last year that the Immigration Department tightened the search arrangements for "Birth Registration Records" and "Hong Kong Marriage Records" without notice, requiring searchers to obtain authorization from the parties concerned, or to provide reasonable search purposes and purposes. Prescription approval.
(Photo/Photo by Luo Guohui)
The search of birth and marriage records must be authorized by the parties
It was revealed in October last year that the Immigration Department tightened the search arrangements for "Birth Registration Records" and "Hong Kong Marriage Records" without notice, requiring searchers to obtain authorization from the parties concerned, or to provide reasonable search purposes and purposes. Prescription approval.
At present, without authorization, searchers are not allowed to submit applications online. They can only mail the form or go to the registries in person to complete the application. The purpose and purpose of the search must also be stated on the form, as well as documentary proof and The relationship between the parties.
▼The Immigration Department has tightened the search arrangements▼
However, according to Article 22 of the "Regulations on the Registration of Births and Deaths", anyone has the right to request inspection of birth and death records. After payment of the relevant payment, the registration officer must arrange the inspection and index and register in the register as deemed appropriate by the officer. Records or computer records.
The Immigration Department’s reply to "Hong Kong 01" stated that the original intent of the search was to allow applicants to find information about separated relatives, to trace their own family history, or to prevent bigamy, emphasizing that the relevant regulations are not intended to publicly disclose such personal information, nor do they allow applicants to arbitrarily Set up to check the personal information of others.
The Immigration Department also criticized the media for reviewing the birth registration and marriage records of social celebrities, artists or their family members, and disclosing relevant information, describing the situation as extremely unsatisfactory.
Prescription refers to the introduction of new arrangements after consulting the Department of Justice.
(See separate draft for details)
Lawyer Wen Hao, a member of Fazheng Huisi, pointed out that the "Regulations on the Registration of Births and Deaths" clearly stated that the Department must provide relevant information to the payment searchers. There was no explicit statement that applications must be approved. Therefore, the new measures are in conflict with the provisions.
(Photo/Photo by Luo Guohui)
Wen Haozheng: New measures or contradictory provisions and restrictions need to be reasonable
Lawyer Wen Hao, a member of Fazheng Huisi, pointed out that the "Regulations on the Registration of Births and Deaths" have clearly stated that the Department must provide relevant information to the payment searchers. There is no explicit statement that applications must be approved. Therefore, the new measures are in conflict with the provisions: "The law is so stipulated that the administrative measures added after the prescription must be proved to be legitimate."
Wen Haozheng said that even if the Immigration Department imposes restrictions on search arrangements on the grounds of protecting privacy, it still depends on whether the restrictions are reasonable: "It is unreasonable for him to prohibit all searches for the sake of privacy." It is emphasized that the "Personal Data (Privacy) Ordinance" will not overturn the original provisions, and there are exceptions to its scope of protection. News investigation is one of the exemptions of the Ordinance.
Regarding Article 26 of the Marriage Ordinance, “The Registrar may allow a search of all certificates in his possession.” Wen Hao believes that the relevant statement is that the Registrar has the right to object to some search applications, but emphasizes that the Immigration Department should also give reasonable Reason for rejection.
Cai Yuling, the director responsible for investigating and reporting on the 7.21 incident of the Hong Kong and Taiwan program "Clang Collection", was arrested for making false statements when involved in the investigation of license plates.
(Profile picture/Photo by Golden Chess)
The media's application for "news activity" to check marriage records was rejected
Birth, marriage and vehicle registration searches have always been important tools used by the media to verify incidents when conducting investigations and reports.
After the Immigration Department’s new arrangement was questioned, although the prescription once stated that the media could apply for a search for public interest, the Apple Daily in August used "verification of the relationship between husband and wife" as the reason to apply for the inspection of marriage records and specified that the result would be It was used for "news activities" and was still rejected on the grounds that "the search request was not satisfied with the purpose of setting up the marriage record".
After the media complained to the Office of The Ombudsman, the Office replied the day before (4 days) that it would conduct a full investigation.
In October last year, it was reported that after the outbreak of the anti-amendment campaign, the vehicle search system failed to check the purpose of obtaining relevant information. Whether it was indeed related to the sale of registered cars or transportation-related matters, it had expressed concern to the Transport Department.
During the same period when the Immigration Department tightened its search, the Transport Department also changed the "Reasons for Application" option in the license plate search application form from "Other" to "Other traffic and transportation matters."
The Office of the Privacy Commissioner for Personal Data of Hong Kong responded to "Hong Kong 01" stating that it did not comment on individual incidents, but emphasized that the department did not participate in the decision to change the vehicle search application form.
▼Clang episode: 7.21 Who controls the truth▼
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Regulation does not authorize the Commissioner for Transport to refuse to issue certificates
According to the investigation report of the Office of The Ombudsman in the middle of this year, the Road Traffic (Vehicle Registration and Licensing) Regulation does not authorize the Commissioner of Transport to refuse to issue certificates to applicants for any reason, and the Department does not have the power to require applicants under the law Proof of the stated use must be provided.
The document submitted by the Transport and Housing Bureau to the Legislative Council's Panel on Transport in 2011 also stated that the Commissioner of Transport has no right to require applicants to provide reasons for obtaining certificates.
Senior Counsel Tong Jiahua pointed out that the case involved the main law, the "Road Traffic Ordinance," and believed that subsidiary legislation should not override the criminal provisions of the main law.
(Information Picture/Photo by Lu Yiming)
However, Senior Counsel Tom Ka-wah pointed out that the above-mentioned regulations are by-laws. This case involved the main law of the "Road Traffic Ordinance". It pointed out that anyone who knowingly made false statements on important items in order to obtain a license plate certificate is considered to be crime.
Tang believes that subsidiary legislation cannot override the main law, especially the criminal clause of the main law.
He also said that although the law does not specify that an application form is required to obtain a certificate, he believes that the above criminal liability clause can be understood as the director has the right to give the applicant a document, and the applicant has to state why he needs to apply for a certificate The director has the responsibility to examine that the applicant has not made a false statement, "If it is not (understandable), the law (the criminal clause) has passed since it was passed!".
Regarding whether the government can set administrative examination and approval barriers without restrictions, Tang said that the examination and approval procedures established must be reasonable.
Wen Haozheng: It is necessary to prove that the newly added administrative measures are reasonable and constitutional
Lawyer Wen Haozheng believes that the main law overrides the non-focus of the supplementary regulations. It is important that the reason for joining the restriction is reasonable and constitutional: "If there is no news investigation in the reason option, or the search is not approved, there will be a problem, because it is The rights conferred by the Basic Law.” He also pointed out that the document submitted by the Transport and Housing Bureau to the Legislative Council in 2011 was not illegal, but it has reference value: “This is even more self-defeating.”
Cai Yuling, the director of "Clang Collection: 7.21 Who Controls the Truth", was accused of making false statements when checking the license plate. Recently (3 days), she was arrested by the police and charged with two "false statements to obtain a certificate under the Road Traffic Ordinance." The crime will appear in Fanling Magistracy next Tuesday (10th).
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