Hong Kong police urge Court of Appeal to relax warrant requirement for mobile phone searches in hearing that has implications for extradition bill protesters and criminal suspects

Chris Lau

Police lawyers have said requiring officers to obtain a warrant every time they wanted to access a suspect’s phone was “unworkable”, as the force’s chief sought to overturn a court ruling he warned hindered investigations.

Barrister Johnny Mok Shiu-luen SC, for Commissioner of Police Stephen Lo Wai-chung, told the Court of Appeal on Tuesday that technology had evolved to enable suspects to remotely delete evidence from devices and online storage services, if investigators failed to act promptly.

The appeal could have far-reaching implications for protesters amid the extradition bill unrest in Hong Kong, as well for criminal suspects.

Speaking on the first day of what is expected to be a three-day hearing, Mok stressed the need for police searches without a warrant, adding: “It is really to ensure that evidence and valuable information would not be lost.”

Johnny Mok SC, for police, says the warrant system as it stands allows suspects to get rid of evidence from their phones and other devices. Photo: David Wong

But Mok’s argument that police should be given that power because a suspect, who has attracted attention from his own conduct, should expect less privacy, was met with raised eyebrows from Mr Justice Johnson Lam Man-hon, one of the three presiding judges.

“It is a dangerous proposition,” Lam hit back.

Finding in favour of a pro-democracy activist in 2017, the Court of First Instance ruled police must have a warrant to search the digital content of seized gadgets unless there were “exigent circumstances”.

This week’s appeal was set against the backdrop of a series of mass protests and civil disobedience campaigns against the government’s now-suspended proposal to amend the city’s extradition laws. A handful of protesters have been arrested.

The protests by and large have been mobilised through online forums and instant messaging chat groups.

They were expected to continue as demonstrators put pressure on the government to completely withdraw the proposed rendition arrangement, which, if passed, would allow Hong Kong to send fugitives for trial in mainland China and other jurisdictions with which the city has no existing deal.

Hong Kong's High Court to rule on whether police can seize mobile phones

The present case was filed by Sham Wing-kan, a member of the Civil Human Rights Front, the group responsible for holding some of the protests in the past few weeks. Three of his mobile phones were seized during the annual anti-government march on July 1, 2014, for search without warrant.

He argued at the High Court in 2017 that police had violated his rights to privacy protected by the Bill of Rights and Basic Law, the city’s mini-constitution.

At the appeal on Tuesday, Mok conceded police in Hong Kong did not have the legal power to compel a suspect to provide the password to his or her mobile phone if it was locked, meaning the present case targets only a very specific circumstance.

Nonetheless, there would be occasions when officers managed to get hold of unlocked phones.

He said safeguards were already in place given police would only search people where there is reasonable suspicion they have committed a crime.

Requiring officers to have a warrant is “unworkable in many cases”, Mok said, adding without the power a third party, such as a suspect’s accomplice, could delete information remotely from the phone or internet storage, he added.

He urged the court to at least allow police to search information, without a warrant, that is directly related to the crime. Mok also suggested guidelines could be published.

But Lam questioned where the line would be drawn. He also said the phone could be put in a Faraday bag, which prevents electronic devices sending or receiving signals, or disconnected to prevent any loss of evidence while a warrant was pending.

Mok continued to present the police’s case on Tuesday before Lam, Mr Justice Jeremy Poon Shiu-chor and Mr Justice Andrew Macrae.

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