Court Rejects Activists' Challenge Over Phone Access

The High Court on Thursday dismissed a judicial review filed by five pro-democracy figures to challenge the power of the police to access their phones with court warrants.

Martin Lee, Albert Ho, Au Nok-hin, Sin Chung-kai and Yeung Sum had argued in the High Court that the warrants allowing officers to seize and search their digital phones are too wide.

Their phones were seized by the police in April when they were among 15 people arrested in connection with a number of anti-government demonstrations last year.

But it was only about two months later – in late June – when a magistrate issued search warrants in respect of the mobile phones and other electronic devices owned by the five.

Lawyers for the five had argued that the police had retained the phones seized without warrants and beyond a reasonable time, and the order they obtained later provided a blanket permission to extract information.

But in dismissing their judicial challenge, a two-judge panel at the High Court believes the warrants do not mean the police are "given a licence to scour the devices indiscriminately".

While the judges agreed that some intrusion of privacy arising from a cursory inspection by officers can happen, responsible officers "are bound, in their search, to adhere to the rule that the manner of the search must be reasonable".

They also said because the search warrants in this case have set out the device, content and potential offences involved, the officers should be able to understand what's permitted.

The court said it is also aware that digital data stored in mobile phones can be of high value in the proof of crimes because possible illicit communications are now often done electronically.

The ruling also didn’t agree that there was unreasonable delay between the date of the phones' seizure and the date of obtaining the warrants, after lawyers for the police explained that they need time to seek specific legal advice from the Department of Justice.

The judges said they believe that the search warrants have not yet been executed by the police due to an interim injunction that had been imposed in the course of the judicial review.

But the devices can now be unlocked and searched by the officers.

Au Nok-hin expressed disappointment at the verdict and said he is not sure if they will go for an appeal.

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