The Department of Justice is appealing a court’s ruling 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 department told HKFP on Monday that it had received external legal advice: “The case in question involves important questions of law… the Government has decided to appeal against the Court of First Instance decision regarding the police’s power of search of the digital contents of mobile phones.”
Activist Sham Wing-kan was one of five activists whose phones were taken by the police after being arrested at the July 1 annual pro-democracy march in 2014. He lodged a judicial review, claiming that the police breached the Basic Law and the Hong Kong Bill of Rights Ordinance.
Sham told Apple Daily that the government lodged an appeal on November 24, just before the application deadline.
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.
In October, 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.
Sham said that he, and the other parties involved, are only common citizens, and the court’s ruling protected the privacy and rights of the public. He said Justice Secretary Rimsky Yuen’s appeal disrespected the court’s ruling and criticised him for using public funds.
Sham also said he was disappointed that Yuen made such a decision just before stepping down. Last month, Civic Party lawmaker Dennis Kwok said sources had told him that Yuen will leave his position next January.
Johnson Yeung, another activist whose phone was confiscated on the same occasion in 2014, said they are considering applying for legal aid to fight the appeal. He added that the government’s move was expected.