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Search warrant required to access mobile phones

The Court of Appeal upholds the principle of requiring a warrant to access contents of a mobile phone whilst clarifying warrantless searches can only be conducted with reference to the concept of “reasonable practicability” as submitted by Dr Gerard McCoy QC, SC, and Albert N B Wong (for the 2nd Interested Party).

In Sham Wing Kan v Commissioner of Police & ors [2020] HKCA 186 (2 April 2020)), the Court of Appeal unanimously upheld the submissions of Dr McCoy as to the proper formulation of new guidance regarding police searches of mobile phones:

“182.  As stated above, though Mr Mok invited us to adopt the majority approach in Fearon[1] and Mr Pun supported the judge’s adoption of the minority approach in that case, we are of the view that Dr McCoy is correct in his submission that the common law in Hong Kong on mobile phone search upon arrest should develop by reference to the concept of reasonable practicability in which due regard is paid to the proportionality requirement in terms of intrusion into privacy interest by a search for law enforcement purposes.

184. In other words, a police officer cannot search the contents of a mobile phone of an arrested person without warrant unless it is not reasonably practicable to obtain a warrant under Section 50(7) [Police Force Ordinance, Cap.232] before doing so.”

The concept of reasonable practicability of obtaining search warrants was articulated by Andrew Bruce SC sitting as Deputy High Court Judge in HKSAR v Indra Agus Setiawati [2018] 3 HKC 394[2], and HKSAR v McCall HCCC 446/2016, 25 September 2017, as recognised by the Court of Appeal at §75 in this judgment.

The Court therefore set down the following guiding principles for searches of mobile phones:

  • a warrant is obtained under Section 50(7); or
  • when it is not reasonably practicable to obtain such warrant before a search is conducted, the police officer must also have a reasonable basis for having to conduct the search immediately as being necessary (i) for the investigation of the offence(s) for which the person was suspected to be involved, including the procurement and preservation of information or evidence connected with such offences; or (ii) 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);
  • for a warrantless search conducted under (b) above, other than a cursory examination for filtering purpose, the scope of the detail examination of the digital contents of a phone should be limited to items relevant to objectives set out in sub-paragraph (b);
  • in addition, a police officer should make an adequate written record of the purpose and scope of the warrantless search as soon as reasonably practicable after the performance of the search and a copy of the written record should be supplied forthwith to the arrested person unless doing so would jeopardize the ongoing process of criminal investigation.

[1] A Canadian Supreme Court case
[2] Where there was also discussion of the CFI judgment of Sham Wing Kan

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