Explained: police powers to search your phone

The Court of Appeal has given police greater authority to search an arrested person’s mobile phone without a warrant, but its practical use is limited without password access. Boase Cohen & Collins Associate Stephanie Lai and Trainee Mandy Tsang examine the landmark judgment.

Hong Kong, 28 April 2020: The Court of Appeal in the recent judgment of Sham Wing Kan v Commissioner of Police & Others [2020] HKCA 186 has reviewed the power of police to search and examine without a warrant the digital content of an arrested person’s mobile phone. The ruling comes at a time of heightened tensions between police and some members of the public amid Hong Kong’s ongoing civil unrest.

Background

In 2014, the police arrested five protesters after the annual march on 1 July and seized their mobile phones on the grounds that the devices might be of value to their investigation of an alleged offence. The police suspected that those detained had colluded to cause a stoppage of the march, against police instructions. The arrested persons filed a judicial review of this decision, stating that this was either outside of the police’s powers under section 50(6) the Police Force Ordinance (Cap. 232) (“PFO”) or, alternatively, if such powers were within the ambit of section 50(6) of the PFO, then that section was unconstitutional.

The decision of the Court of First Instance

By the time of the substantive hearing, the police had already returned the phones to their owners without inspection because of claims of legal professional privilege. The Judge instead made his determination on the issue of the scope and constitutionality of section 50(6) of the PFO.

The Court of First Instance identified two issues in coming to its findings. Firstly, whether section 50(6) of the PFO permits a warrantless search of the digital contents of a mobile phone found on the arrested person and, secondly, if such powers are indeed found under that section, whether section 50(6) of the PFO is constitutional, since it may infringe on the right to privacy under the Bill of Rights and the Basic Law.

The Court of First Instance held that a police officer under section 50(6) of the PFO is only authorized to search the contents of a mobile phone seized upon arrest in “exigent circumstances”, such circumstances being where a person has been lawfully arrested and 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 destruction of evidence, or (c) lead to the discovery of evidence in extremely urgent and vulnerable situation”.

In coming to this decision, the Court of First Instance followed the minority decision in the Canadian Supreme Court case of R v Fearon [2014] 3 SCR 621, stressing the importance of protecting the right to privacy and freedom of private communication against unlawful intrusion and being proportionate to achieving the objective of effective law enforcement.

The decision of the Court of Appeal

The decision at the Court of First Instance was set aside by the Court of Appeal. In coming to its decision, the Court of Appeal went into a detailed exploration of cases from other jurisdictions, as well as various factors and considerations in relation to privacy, the technology in question, and the powers of the police. It eventually came to the view that there are wider circumstances than those contemplated by the Court of First Instance where the police may exercise the power to search an arrested person’s mobile phone.

However, the Court of Appeal judges also affirmed that a magistrate, when issuing warrants, cannot force anyone to give police the password to their phone. Counsel for the Commissioner of Police also accepted that refusal to reveal the password would not constitute an offence of obstructing police. The judges noted: “In light of the prevalence of mobile phones with an automatic lock, the utility of the power to conduct warrantless search of mobile phone is very limited as it is unlikely that an arrested person will provide his/her password voluntarily.”

To summarize, the police may exercise such powers of search where they have obtained a warrant from a Magistrate’s Court or, where it is not reasonably practicable to obtain such a warrant, they must have a reasonable basis to conduct such search immediately as it is necessary for (i) the investigation of the offences allegedly committed by the arrested person and the procurement and preservation of evidence, or (ii) the protection of the safety of the general public.

The Court of Appeal set boundaries on the powers to conduct such searches without a warrant based on proportionality analysis and, more importantly, police officers who conduct such a search should make adequate written records of the purpose and scope of the warrantless search as soon as reasonably practicable, with such records being provided to the arrested person (unless such provision would put the investigation at risk).

The rationale behind the ruling of the Court of Appeal was to strike a balance between the power of the police and the privacy of the arrested person. It has made it very clear that the right of privacy does not operate to shield incriminating evidence from legitimate criminal investigation process. At the same time, the privacy interest of an arrested person in the digital data stored on his mobile phone and the prevention of its use outside of the proper and legitimate scope of such search must remain intact. The law must therefore protect him or her against the disproportionate intrusion into his or her privacy in such other data.

Implications of this decision

The decision of the Court of Appeal comes at a sensitive time. Recent events surrounding the withdrawn extradition bill and subsequent police actions will certainly give rise to concerns about the overuse or overreach of such powers.

Whilst the protection of a person’s privacy and information is an important right enshrined in the Bill of Rights and the Basic Law in Hong Kong, the Court of Appeal has clearly stated that it is not an entirely unfettered right. Such a right to privacy must by necessity be proportionally balanced against the police’s basic functions of law enforcement in our society, as well as their powers to investigate offences and offenders in the exercise of this function. It remains to be seen what the police will do with this power in future arrests.

The Court of Appeal ruling about police powers and mobile phone privacy comes at a sensitive time.