Police Don't Need Warrants To Search Phones: Court

The Court of Appeal on Thursday ruled that the police have the power to go through an arrested person's mobile phone without a warrant, overturning an earlier judgement in a case involving pro-democracy activists.

The police brought a challenge over a lower court's ruling in October 2017 that officers can only search an arrestee's mobile in "exigent circumstances".

Such emergency situations were taken to mean, for example, when there was a need to prevent an imminent threat to the public or police, to prevent the imminent loss or destruction of evidence, or to look for evidence in "extremely urgent and vulnerable" situations.

But in a judgement published on Thursday afternoon, three judges sided with the police that a warrant should not be required to search phones in all other situations.

The judgement says that in circumstances when it is not "reasonably practicable" to obtain a warrant, officers can search the contents of a suspect's mobile phone if they have "a reasonable basis for having to conduct the search immediately", either to investigate an offence the suspect is believed to be involved with, or for obtaining and preserving information or evidence connected to such offences; or for the safety of others.

The judgement adds that when a warrantless search of a phone is carried out, officers should make "an adequate written record of the purpose and scope" of the search as soon as possible, and provide a copy of the records to the arrested person, except in circumstances where doing so would jeopardise an ongoing criminal investigation.

The judgement acknowledged concerns about privacy, but said there are "adequate and effective safeguards" to prevent abuse, with "strict limits on such power of search".

The judges said that authorising a warrantless search of an arrested person's mobile phone would be "constitutional and compliant" with article 14 of the Hong Kong Bill of Rights and article 30 of the Basic Law, as long as the data being searched for is relevant to the investigation of the criminal offence for which someone has been arrested.

The issue was first brought to court in 2014, after police seized five mobile phones from protesters during the annual July 1 pro-democracy rally organised by the Civil Human Rights Front.