Know your rights: is a warrant needed before the Police can search seized mobile phones?

Case facts

Mr Sham Wing Kan, a participant in the 1 July 2014 procession, was arrested by police for suspected offence of obstructing a police officer in execution of his duty by idling the vehicle during the procession. He was searched by the police and five mobile phones were seized. The arresting officer briefly inspected each of the seized mobile phones and took possession of them, saying that the mobile phones were related to the suspected offence. Mr Sham subsequently applied for leave for judicial review concerning the scope and constitutionality of section 50(6) of the Police Force Ordinance (“PFO”) in relation to the search of the digital contents of seized mobile phones. In late 2017, the Court of First Instance made a declaration that in relation to digital content of a mobile phone section 50(6) of the PFO authorises police officers to search it without warrant only in exigent circumstances.

Section 50(6) of the PFO

Section 50(6) of the PFO 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:

Provided that nothing in this subsection shall be construed in diminution of the powers of search conferred by any particular warrant.”

Decision

The judge was of the view that one must consider the constitutionally protected right to privacy and freedom of private communication against unlawful intrusion under Article 30 of the Basic Law and Article 14 of the Hong Kong Bills of Rights.

The judge went on to say that given the high importance in protecting the massive and extensive personal information and data, it is only proportionate to achieve the objective of effective law enforcement by permitting search for the digital content of mobile phones seized on arrest without warrant only in exigent circumstances.

Examples of exigent circumstances include the protection of the safety of the public and the police officers where the mobile phone is suspected to have been used to generate imminent threat, the preservation of evidence which could be destroyed imminently and the discovery of evidence in extremely urgent and vulnerable situation.

The judge added that searches without warrant that treat a mobile phone merely as a physical object continue to be permissible incident to arrest under section 50(6) of the PFO. Acts such as seizing a cell phone, searching for hidden compartments, testing that cell phone for fingerprints, or reading the identification number physically inscribed on it, do not interfere with the heightened expectation of privacy in the accessible information.

The judge further observed that same protection against warrantless search save in exigent circumstances incident to an arrest under section 50(6) of the PFO also covers other similar devices such as tablets, smart watches and laptop computers.

Conclusion

This brief article merely covers the Police’s warrantless power to search the digital content of seized mobile devices. For other law enforcement agencies, different statutory provisions apply. Many seized mobile devices may contain materials which fall into the ambit of legal professional privilege (“LPP”). In such circumstances, the seized mobile devices should be sealed in tamper-proof bags until the LPP issues are resolved.

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.

If you are arrested and need urgent legal advice, please do not hesitate to contact:

Philip Swainston
Consultant | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

This article is part of the Know Your Rights series, which endeavours to educate readers on their rights in Hong Kong.