The High Court has ruled that police are required to obtain a court warrant if they wish to inspect the electronic devices of people they arrest, except in exigent circumstances.
The ruling came after phones belonging to five pro-democracy activists were taken by the police following their arrests at the July 1 annual march in 2014. The police requested access their phones. One of the five activists, Sham Wing-kan, accused the police of breaching the Basic Law and the Hong Kong Bill of Rights Ordinance. He lodged a judicial review that year.
The four others, including Johnson Yeung and Daisy Chan – two former conveners of the rally organisers the Civil Human Rights Front – were included in the case as interested parties. They claimed that the Police Force Ordinance did not give officers the right to collect the digital content of citizens’ electronic devices without a court’s approval.
Section 50(6) of the ordinance states that it is lawful for officers to search for, and take possession of, “any newspaper, book or other document or any portion or extract therefrom and any other article or chattel” which they may reasonably suspect to be of value to the investigation of any offence the person apprehended has committed – or is reasonably suspected of – having committed.
The High Court heard the case in 2015 and handed down the ruling on Friday. Mr Justice Thomas Au ruled that the section of the Police Force Ordinance itself was not unconstitutional, but said that – without a search warrant – the police have no right to access electronic devices of those arrested. This includes mobile phones, laptops, tablets, and smart watches.
“In my view, 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, 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,” Au wrote in the judgment.
“[A]dopting the exception of exigent circumstances for warrantless search in law provides a clearer, more certain and practicable guidance on the circumstances as to when the police are empowered and entitled to search the digital content of a seized mobile phone upon arrest under section 50(6).”
“The exigent circumstances are where, when a person has been lawfully arrested under section 50, the police officer ‘may reasonably suspect’… such an urgent search may (a) prevent an imminent threat to safety of the public or police officers, (b) prevent imminent loss or a destruction of evidence, and (c) lead to the discovery of evidence in extremely urgent and vulnerable situation.”
Johnson Yeung said the section 50(6), written in 1992, was outdated.
“Are phones newspapers? Are tablets books? Over the past ten years, the European Court of Human Rights, the highest courts of the US and Canada have ruled on the issue of police power and phone access – they all ruled that electronic devices contain a large amount of personal information, and it would be a huge and disproportional breach to human rights to access without court approval.”
Yeung said that citizens can now reasonably reject officers’ requests to let them access their phones, if they do not have a warrant.
He added that the police should publicly modify their guidelines.
“We will ask the privacy commissioner to monitor the progress of amendments by the police, and we will bring the relevant information to the United Nations Human Rights Committee, so that the international community can monitor it together.”
The police will have to pay two-thirds of the legal fees.