Read the full judgment text of CACV 270/2017 on BabelCite. This Court of Appeal judgment was delivered on 2 April 2020 before Poon CJHC, Lam VP, Macrae VP.
Constitutional law – right to privacy – search and seizure – Police Force Ordinance (Cap 232) s.50(6) – search of digital contents of mobile phone incidental to arrest – Hong Kong Bill of Rights Ordinance (Cap 383) BOR 14 – Basic Law article 30 – proportionality – judicial warrant – reasonable practicability – common law power of search incidental to arrest. On 1 July 2014, applicant and four interested parties participated in the annual march on Hong Kong Island organized by the Civil Human Rights Front, conducted under a Letter of No Objection imposing conditions on route and timing. The head of procession stopped for 25 minutes at Fenwick Street while the applicant drove the head vehicle. On 4 July 2014, all five were arrested for offences including breach of conditions under the Public Order Ordinance (Cap 245) and obstructing police officer. Their mobile phones were seized and placed in sealed tamper-proof bags due to claims of legal professional privilege, and ultimately returned without inspection. Applicant commenced judicial review seeking declaration that Section 50(6) does not authorize warrantless search of mobile phone contents or that it is unconstitutional. First issue: whether Section 50(6) governs search of digital contents of mobile phone or whether common law power of search incidental to arrest applies. Held: common law governs. Section 50(6) is concerned only with procuring evidence in the vicinity of an arrested person and does not address the wider common law purposes of preventing destruction of evidence, protecting law enforcement officers and public, and other objectives of search incidental to arrest. Second issue: whether a warrant is always required. Held: a warrant should be obtained before search unless it is not reasonably practicable to do so. Court rejected Riley v California's categorical approach requiring warrants in all cases, and also rejected adoption of the North American doctrine of exigent circumstances, preferring the concept of reasonable practicability already familiar in Hong Kong law. Court adopted Keen Lloyd proportionality approach. Third issue: conditions for warrantless search. Court set out conditions: warrant under Section 50(7) should be obtained if practicable; if not, officer must have reasonable basis for conducting search immediately as necessary for the investigation of the offence for which the person was arrested or for the protection of safety of persons; scope of detail examination should be limited to items relevant to those objectives; officer should make adequate written record of the purpose and scope of the search as soon as reasonably practicable, and a copy should be supplied forthwith to the arrested person unless doing so would jeopardize ongoing investigation. Mobile phones contain vast amounts of personal information, use cloud storage, and are highly portable, engaging a privacy interest as intense as or more intense than search of private premises. The court acknowledged the real risk of destruction of digital evidence due to strong encryption, cloud storage access, volatile memory, and automatic deletion. Appeal allowed; Au J's declaration set aside; modified declaration granted; written submissions on costs invited.
Legal issues: Whether Section 50(6) PFO governs search of digital contents of mobile phones · Whether a warrant is always required for search of digital contents of mobile phones · Conditions for warrantless search of digital contents of mobile phones
Outcome: Appeal allowed; declaration granted in modified form holding that the power to search the digital contents of a mobile phone is governed by the common law power of search incidental to arrest, and a warrant is required unless it is not reasonably practicable to obtain one
Cites 6 cases