Police win appeal to search phones

Top News | Amy Nip and Justin Tong 3 Apr 2020

The police force has won an appeal giving officers the power to search suspects' mobile phones without a warrant if they have a reasonable basis that an immediate search is necessary.

"The digital world should not become a haven for criminals where a black hole is created so that crucial evidence of their unlawful activities could become out of reach for law enforcement officers," the three-panel Court of Appeal ruled yesterday.

The written judgment was handed down by High Court Chief Judge Jeremy Poon Shiu-chor and vice presidents Johnson Lam Man-hon and Andrew Macrae.

Sham Wing-kan, a truck driver for the Civil Human Rights Front during the annual July 1 march in 2014, filed a judicial review against the police commissioner taking his three phones without a warrant.

In October 2017, the High Court ruled that police require a warrant to search phones unless there is an imminent danger posed to the public, evidence could be destroyed or if the collection of evidence is deemed extremely urgent. Police appealed that decision.

The judges stated that police can conduct a phone search upon arrest "when it is not reasonably practicable to obtain such warrant before a search is conducted" and an officer has a reasonable basis for having to conduct the search immediately.

Such reasons include gathering evidence connected to offenses a person is suspected of and protecting people, including victims of a crime and members of the public in the vicinity.

However, several rules have to be observed during a warrantless search.

Other than a cursory examination for filtering purposes, the scope of detailed examination of a phone's contents should be limited to related offenses and protecting the public.

"In addition, 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," the appeal court ruled.

While the exercise of such power would interfere with the interest of an arrested person under Basic Law Article 30 and Bill of Rights Article 14, which protect the freedom and privacy of Hong Kong residents, the judges ruled that the conferment of such power to the police is proportionate.

The law should recognize the new challenges presented by the use of phones as instruments of crime, they said.

While police have the power to check phones, the judges acknowledged that a magistrate does not have the power to compel any person to give officers the password to their mobile phone or other electronic devices.

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