Can the Police look at your phone?

HKSAR v SHAM Wing Kan
[2020] HKCA 186
Court of Appeal
Civil Appeal No. 270 of 2017
Coram: Hon Poon CJHC, Hon Lam and Macrae VPP
2 April 2020

Facts

The applicant and the 4 interested parties took part in the annual march organized by the Civil Human Rights Front on 1st July 2014. On 4th July 2020, they were arrested by the police for (a) breach of the requirements and conditions applying to public processions (s. 15(4) of Cap. 245) and (b) obstructing a police officer in the due execution of his duty (s. 36 of Cap. 212)).

Upon the arrests of the 5 persons, mobile phones were seized from them by the police. The police asserted that the mobile phones were seized in order to preserve the potential evidence contained in them, which may assist the police investigation by proving any suspected joint enterprise between the 5 persons (and / or with others) to deliberately cause a stoppage of the procession and an outbreak of the procession onto sections of the road outside the permitted areas as stipulated in the police’s Letter of No Objection.

Eventually, the police returned all mobile phones to their owners without inspection because of claims for legal professional privilege over their contents.

Proceedings Below

The applicant sought, by way of judicial review:

  • A declaration that section 50(6) of the Police Force Ordinance (“Section 50(6)”) does not authorize police officers to search without warrant the contents of mobile phones seized on arrest; or alternatively if such search power is so authorized, that Section 50(6) is unconstitutional under Article 14 of the Hong Kong Bill of Rights (“BOR 14”) and Article 30 of the Basic Law (“BL30”).
  • Quashing of the decision of the Commissioner of Police on 4th July 2014 to seize his mobile phones to search their contents (“the Decision”).

The Court granted leave on 8th January 2015. The substantive hearing took place on 4th November 2015 before Au J (later adjourned to 21st December 2015) and by then the police had returned to the applicant his mobile phones.

Au J made a declaration that Section 50(6) on a proper construction authorizes police officers to search the digital contents of a mobile phone (or a similar device) seized on arrest without warrant only in exigent circumstances; and that in so authorizing the warrantless search, Section 50(6) is constitutional and compliant with BOR 14 and BL 30. AU J made no order in respect of the applicant’s relief to quash the Decision as the mobile phones had already been returned without any search of their contents.

In arriving at his judgment, Au J:

    • First reminded himself of the proportionality principles defined by the Court of Appeal in Keen Lloyd v Commissioner of C&E [2016] 2 HKLRD 1372, on protection of privacy against unlawful and arbitrary interference;
    • Noted that the amendment to Section 50(6) (with reference to the relevant Legislative Council Brief) would satisfy the proportionality requirement in conducting a warrantless search by bringing it into line with common law principles;
    • Held that the minority view of the Canadian Supreme Court on the common law power of search incidental to arrest in R v Fearon [2014] 3 SCR 621, is to be preferred over the majority view, in providing the right balance between the protection of privacy rights and the interests of effective law enforcement, in meeting the proportionality test in the Hong Kong context; and
    • Held that exigent circumstances are where, when a person has been lawfully arrested, the police officer may reasonably suspect that such an urgent search may (a) prevent an imminent threat to safety of the public or police officers, (b) prevent imminent loss or destruction of evidence, or (c) lead to the discovery of evidence in extremely urgent and vulnerable situation.

Present Appeal

The Commissioner of Police (the respondent) appeals the judgment of Au J and it is submitted by Counsel on behalf of the respondent that:

  • Au J erred in his ruling as the power in question is a power of search incidental to arrest which is different from the power to search in exigent circumstances.
  • The latter is a doctrine developed in North America where there are constitutional safeguards against unreasonable searches.
  • As there is no such doctrine in the common law in Hong Kong, it is not apposite to apply the same principles here directly.
  • Examining the legality of the power of search against the proportionality analysis as applied here, the majority approach in Fearon is appropriate, that the power of warrantless searches should not be confined to situations of emergency as there are non-emergency situations where the day-to-day operational needs of the police require the search to be conducted immediately.

Held, in Allowing the Appeal, That:

    • The declaration granted by Au J be set aside.
    • The power to conduct a mobile phone search upon arrest can be exercised if:
        (a) A warrant is obtained under Section 50(7) of the Police Force Ordinance (from a Magistrate);
      • (b) When it is not reasonably practicable to obtain such warrant before a search is conducted, the police officer must also have a reasonable basis for having to conduct the search immediately as being necessary (procurement and preservation of information / evidence or the protection of the safety of persons);
        (c) For a warrantless search conducted under (b), other than a cursory examination for filtering purpose, the scope of the detailed examination of the digital contents of a phone should be limited to items relevant to the objectives set out in (b); and
        (d) A police officer should make an adequate written record of the purpose and scope of the warrantless search as soon as reasonably practicable after the performance of the search and a copy of the written record should be supplied forthwith to the arrested person unless doing so would jeopardize the ongoing process of criminal investigation.
    • Whilst the exercise of such power would interfere with the interest of an arrested person under BL 30 and BOR 14, the conferment of such power to the police is proportionate and compatible with BL 30 and BOR 14.

This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: HKSAR v SHAM Wing Kan

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