Hong Kong police win broader powers to search arrestees’ phones
- Court of Appeal sides with the force, quashing an earlier ruling that declared such searches constitutional only in specific circumstances
- But it affirms that a magistrate cannot force a person to hand over the password to their mobile phone or device over to police
Hong Kong police have won an appeal in court for broader powers to search, without a warrant, electronic devices belonging to people they arrest, including their mobile phones.
Three judges of the Court of Appeal on Thursday sided with the police chief in quashing a lower court’s ruling that declared such searches constitutional only in “exigent circumstances” and laid out the conditions for conducting a search when it is not practical to get a warrant in advance.
But they also made clear that a magistrate, in issuing warrants, cannot force anyone to give police the password to their mobile phone or any other device. Lawyers for the force had accepted that a refusal to provide such a password would not constitute the offence of obstructing police.
The judicial review raised an important question of when it is constitutional to search the contents of an electronic device seized from an arrested person, given that individual privacy is protected by the Hong Kong Bill of Rights and the city’s mini-constitution, the Basic Law.
The judges first acknowledged that mobile phones are “multifunctional minicomputers” capable of providing detailed and accurate profiles of their users, and therefore “vulnerable to unlawful intrusion upon inspection by just a tap on the screen”.