Hong Kong Police power to search arrestee mobile phones

The Hong Kong Court of Appeal held last week that, in certain circumstances, the police have the power to search and examine the digital content on electronic devices such as mobile phones seized on arrest without a warrant, if it is not reasonably practicable to obtain one - Sham Wing Kan v Commissioner of Police [2020] HKCA 186.

The lower court decision

In 2017, the Court of First Instance found that section 50(6) of the Police Force Ordinance authorised police officers to search the digital contents of a mobile phone or a similar device seized on arrest without warrant, only in exigent circumstances; and that in authorising the warrantless search, section 50(6) was constitutional and compliant with Article 14 of the Hong Kong Bill of Rights and Article 30 of the Basic Law. The Court of First Instance held that exigent circumstances would exist where a person had been lawfully arrested under section 50 of the Police Force Ordinance, and the officer reasonably suspected that an urgent search of the phone or other device might:

• Prevent an imminent threat to safety of the public or police officers;
• Prevent imminent loss or destruction of evidence; or
• Lead to the discovery of evidence in an extremely urgent and vulnerable situation.

The current position: last week’s Court of Appeal ruling

The Court of Appeal has widened the power of search, holding that a search of a mobile phone upon arrest can be exercised as follows:

• A warrant should be obtained before a search, unless it is not reasonably practicable to do so.

• When it is not reasonably practicable to obtain a warrant before a search, the police officer must have a reasonable basis for having to conduct the search immediately as being necessary for one of two objectives:

  • for the investigation of the offence(s) in which the person is suspected to be involved (including the procurement and preservation of information or evidence connected with such offences); or
  • for the protection of the safety of persons (including the victim(s) of the crime, members of the public in the vicinity, the arrested person and the police officers at the scene).

• If the search is conducted without a warrant, the detailed examination of the phone should be limited in scope to items relevant to objectives described above (other than a cursory examination for filtering purposes).

• The police officer should make a written record of the purpose and scope of the warrantless search, as soon as reasonably practicable after the search, and a copy of that record should be supplied ‘forthwith’ to the arrested person (unless doing so would jeopardise the criminal investigation).

What does this mean for you?

The Court of Appeal recognises that ‘[w]e no longer use mobile phones simply as telephones …. mobile phones are now such a pervasive and insistent part of daily life that “the proverbial visitor from Mars might conclude that they were an important feature of human anatomy”’.

As to the implications for businesses:

• Power to search upon arrest widened. The Court of Appeal decision is of concern because it relaxes the conditions upon which the police may conduct a mobile phone search without a warrant.

• Decision does not apply where no arrest. However, it is important to note that this relaxation only applies to mobile phones seized upon arrest. Police officers will still require a warrant to search for, and take possession of, devices in a dawn raid, where the devices are not seized upon arrest.

• Passwords. The Court of Appeal also makes it clear that neither a magistrate’s warrant, nor the police, can compel an arrested person to provide the password to access a device. In practice, this would mean the police’s power to search a device without a warrant can only be exercised on a device which is not password-protected, or when the device is unlocked.