Introduction

Mobile phone privacy is always a concern for the public.  With the advancement of technologies, mobile phones have become a convenient work tool for us and we rely on various smartphone features such as internet, instant messenger, email, etc. to communicate, share digital files and photos, and complete work tasks.  

In a recent judicial review before the Court of First Instance (“CFI”), Sham Wing Kan v Commissioner of Police [2017] HKCU 2725, an important question of whether the police has power to search and examine without warrant the digital content of mobile phones and other personal digital communications devices found on the person arrested was raised.

Law

Basic Law

Article 30 of the Basic Law provides that the freedom and privacy of communication of Hong Kong residents shall be protected by law.  No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences. 

Hong Kong Bill of Rights Ordinance

Article 14 of the Hong Kong Bill of Rights Ordinance (Cap. 383) also provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.  Everyone has the right to the protection of the law against such interference or attacks.

Police Force Ordinance

Section 50(1) of the Police Force Ordinance (Cap. 232) provides that it shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of an offence defined therein.

Section 50(6) of the Police Force Ordinance further provides that where any person is apprehended by a police officer, it shall be lawful for such officer 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 may be found on his person or in or about the place at which he has been apprehended and which the said officer may reasonably suspect to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed or is reasonably suspected of having committed.

Decision

The CFI held that section 50(6) of the Police Force Ordinance is constitutional and compliant with Article 14 of the Hong Kong Bill of Rights Ordinance and Article 30 of the Basic Law in authorizing a warrantless search of the digital content of mobile phones seized on arrest only under exigent circumstances where it is necessary to do so.

Under section 50(6) of the Police Force Ordinance, it is lawful for a police officer to search without warrant “any other article or chattel” which is found on an arrested person or at or about the place of the arrest and which the officer may “reasonably suspect” to be of value to the investigation of any offence that the person has been committed or is reasonably suspected of having committed.

However, 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, and a proper construction of the relevant laws, the CFI considered that it is only proportionate to achieve the objective of effective law enforcement by permitting a warrantless search for the digital content of mobile phones and other personal digital communications devices seized on arrest only under circumstances where it is necessary to do so to (1) prevent an imminent threat to the public or police officers, (2) to prevent imminent loss or possible destruction of evidence and (3) lead to the discovery of evidence in extremely urgent and vulnerable situation (“Exigent Circumstances”).  Such protection also covers warrantless searches against other similar devices such as tablets, smart watches and laptop computers.

Implication

Nowadays a mobile phone is akin to a personal computer, where massive and extensive personal data and information can be stored in and accessed through it.  The CFI recognised this and, save for the Exigent Circumstances, we can now reasonably expect the Police to apply for a warrant before reading the digital content of our mobile phones and other personal digital communications devices.

For further development of the case, please refer to this article.