July 1 march

Hong Kong’s High Court rules police need a warrant to search mobile phones

PUBLISHED : Friday, 27 October, 2017, 7:46pm
UPDATED : Friday, 27 October, 2017, 11:31pm

The High Court on Friday declared that Hong Kong police must have a warrant to search the digital content of seized personal technology items, unless it is to prevent imminent danger to the public, the possible destruction of evidence or if the discovery of evidence is “extremely urgent”.

Activists lauded the outcome of the judicial review, saying it was a “remarkable day” for efforts to protect human rights and personal privacy.

The review of a law that has existed for 25 years came about after democracy protester Sham Wing-kan sued police, questioning the police commissioner’s decision to seize three mobile phones from him for search without warrant, during the annual July 1 march organised by the Civil Human Rights Front in 2014.

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The case raised important questions of whether this practice is allowed under the Police Force Ordinance and whether it is constitutional, given that individual privacy is protected by the Hong Kong Bill of Rights and the city’s mini-constitution, the Basic Law.

The court ruled partly in Sham’s favour as Mr Justice Thomas Au Hing-cheung found the ordinance only empowers a search in “exigent circumstances”.

Most times, police have efficient and effective access to obtain a search warrant from a magistrate, he said.

But there may be scenarios 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, and lead to the discovery of evidence in extremely urgent and vulnerable situations.

“Given the high importance in protecting the massive and extensive personal information and data, and to give meaningful effect to the constitutionally protected right to privacy and freedom of private communication against unlawful intrusion,” Au wrote, “it is only proportionate to achieve the objective of effective law enforcement by permitting warrantless search for the digital content of mobile phones seized on arrest only in exigent circumstances.”

The ruling, according to the 41-page judgment, would in addition to mobile phones, cover other similar devices such as tablets, smartwatches and laptop computers.

The judge, however, rejected Sham’s argument that the digital content is excluded from the ordinance as it was not found “on the apprehended person or in or about the place at which he has been apprehended” as stipulated.

Au found it was clear that the stipulation refers to where the seized object is located, but not to qualify where the actual inspection of the object must be conducted.

The Hong Kong court’s position falls in line with the unanimous view of the US Supreme Court and the minority view of the Canadian Supreme Court.

In recent rulings, they emphasised the great importance of the legal protection of individual privacy, which should extend to mobile phones, given that they contain huge amounts of private personal information and data.

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Johnson Yeung Ching-yin, of the Civil Human Rights Front, said: “I think this is a remarkable day [for efforts to protect] Hong Kong’s human rights and the privacy rights of Hong Kong citizens.”

He called on the police force to stop searches not backed by warrants, and to set transparent guidelines so that they could educate officers and the general public.

Another member, Carlos Hung, convenor of the front’s Police Monitoring Group, said he hopes to meet the force and Office of the Privacy Commissioner for Personal Data to review existing police guidelines.

A police spokesman said they would study the judgment and consult the Department of Justice on follow up actions, including examining the impact of the ruling on existing collection and search practices for mobile phones during criminal investigations.

“The police respect the court judgment,” he said.