Police seek power to search phones

Local | Jane Cheung 26 Jun 2019

Police officers need to have the power to immediately seize and search a suspect's phone before obtaining a search warrant to ensure that valuable information is not destroyed, the Court of Appeal heard yesterday.

A lawyer for the police commissioner also told a three-judge panel that the main purpose of such a provision would be to make sure information on the phone won't disappear after a suspect is arrested.

The argument was presented before court vice presidents Johnson Lam Man-hon and Andrew Macrae and judge Jeremy Poon Shiu-chor during a hearing of an appeal that the police filed after the Court of First Instance ruled in 2017 that officers need a warrant to search a suspect's phone in non-emergency situations.

The case stems from the arrest of Sham Wing-kan, a truck driver for the Civil Human Rights Front, who was held for not following police instructions when he was leading the annual July 1 rally in 2014.

Police confiscated three mobile phones from Sham after his arrest and he subsequently filed a judicial review application with the High Court, claiming that the police had infringed on his privacy by going through his phone without a warrant.

Senior counsel Johnny Mok Shiu-luen said the police have the responsibility and power to secure evidence after an arrest.

Mok said after the police confirm a person as a suspect and apprehend him, these suspects are no longer entitled to the same rights of privacy as an ordinary person.

However, Lam said: "What you said was very dangerous," adding that it would mean arrested people don't have privacy.

Mok said police officers don't have the right to look through everything on a suspect's phone, but should be able to check certain things, such as their recent calls and chat histories.

But Lam asked how an officer would know if certain information is related to the offense until they go through everything on the phone.

He also asked whether officers have the right to ask an arrested person to unlock their phone.

In October 2017, then High Court Justice Thomas Au Hing-cheung ruled that in non-emergency situations, the police must apply for a search warrant before looking through an arrested person's mobile phone in order to protect their privacy.

The hearing continues today.

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