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.
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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”.
“The privacy interest engaged in such a search is potentially higher than a search conducted of private premises,” according to the 81-page judgment from the chief judge of the High Court, Mr Justice Jeremy Poon Shiu-chor, and Court of Appeal vice-presidents Johnson Lam Man-hon and Andrew Macrae.
But the judges also noted that the devices may sometimes be used as instruments of crime and there was a legitimate need for law enforcement officers to “act prudently and promptly in appropriate circumstances which may not strictly be characterised as an emergency”.
They concluded that the officers are empowered under the common law to search the digital contents of a mobile phone, saying the devices should not become “a black hole” for criminals to hide evidence in.
We do not and need not have the doctrine of exigent circumstances under our common law in Hong Kong. The reasonable basis test strikes a fair balance
They said that, if officers have reasonable suspicion that an arrestee has committed a crime, they need only a “reasonable basis” that an immediate search is necessary in two circumstances: for investigating the offence the person was arrested for; or for the protection of the victims, the public, police, or the arrested individual.
“We do not and need not have the doctrine of exigent circumstances under our common law in Hong Kong,” they continued. “The reasonable basis test strikes a fair balance.”
The examination should be limited to contents relating to those two scenarios, and officers are required to provide an adequate written record of the purpose and scope of a search as soon as reasonably practicable, without jeopardising ongoing investigations.
The case was first brought to court in 2014, after police seized five mobile phones from protester Sham Wing-kan following the annual July 1 pro-democracy march organised by the Civil Human Rights Front, which was disrupted when Sham, who was driving the head vehicle, suddenly stopped. The procession then spilled out of the approved lanes.
Police had justified the seizure of the phones by saying the devices might help prove there was a plan to disrupt the march.
But they returned all of the devices without inspection after Sham’s lawyers claimed the phones contained confidential correspondence between themselves and their client.
In October 2017, the Court of First Instance declared that a warrant is needed except in “exigent circumstances”, where there is a reasonable basis to suspect that a search may prevent an imminent threat to safety of the public or police officers, prevent imminent loss or destruction of evidence, or lead to the discovery of evidence in extremely urgent situations.
But on appeal, lawyers for the police commissioner argued the approach was problematic because it was often impossible for an officer to predict whether someone’s safety or the evidence stored would be at risk, and police could not obtain a warrant as quickly as the court had envisaged.
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A police spokesman said on Thursday the force would strictly follow the rules set out by the court.
Police monitoring group Civil Rights Observer said it was disappointed with the ruling, saying the scope of an officer’s power to conduct a warrantless search on the mobile device of an arrested suspect was ill-defined, making such power susceptible to abuse.
“Even if an arrested person feels they have been treated unfairly in a search, few judicial remedies are available because the privacy of the person concerned has already been infringed,” the group said.
It urged the police force to strictly abide by the rules listed in the judgment and require officers to provide detailed reasonings for their actions whenever they examine the contents of a seized mobile phone without a warrant.
Legal experts said the power to search a phone without a warrant was, in practice, still limited.
Stuart Hargreaves, a law professor at Chinese University, said the power could only be exercised in a very narrow time frame, given that officers cannot compel a detainee to unlock their phone.
“The power to search a phone without a warrant in order to preserve evidence is only meaningful ... between the arrest of someone with an already unlocked phone and the time it auto-locks,” he said.
University of Hong Kong law professor Simon Young Ngai-man said that, while he thought the judgment did not give enough weight to individual privacy rights, its potential impact would be reduced as long as officers do not have the key to unlock a phone.
“If anyone is concerned about this judgment, they would be well minded to add a password to access their mobile phone,” he added.
