Following is a question by the Hon Charles Peter Mok and a written reply by the Secretary for Security, Mr John Lee, in the Legislative Council today (November 15):
Article 30 of the Basic Law provides that the freedom and privacy of communication of Hong Kong residents shall be protected by law. Article 14 in Part II (The Hong Kong Bill of Rights) of the Hong Kong Bill of Rights Ordinance (Cap 383) provides that no one shall be subjected to arbitrary or unlawful interference with his correspondence. Nowadays, the mobile phones of many members of the public contain private and confidential information that is protected by the aforesaid provisions, including daily schedules, contact lists and personal communication. It has been reported that following the arrest of some persons who had participated in the July 1 procession and the occupation movement in 2014, the Police seized their electronic devices and even demanded them, in a coercive manner, to provide passcodes or finger prints for unlocking those devices so that the Police can inspect the information therein. On the other hand, the High Court ruled recently in a judicial review case that the Police must, except for exigent circumstances, obtain a warrant before they may inspect the information contained in the mobile phones or other electronic devices of arrested persons. In this connection, will the Government inform this Council:
(1) of the respective numbers of occasions in the past five years where police officers (i) seized the electronic devices of arrested persons and (ii) demanded the arrested persons to unlock such electronic devices, together with a breakdown by (a) the category of the cases in which the arrested persons were involved, (b) the scope of the information contained in the electronic devices to be inspected, and (c) the reasons for the police officers taking such actions; if it cannot provide such information, of the reasons for that;
(2) whether it knows the respective numbers of complaints received by the Independent Police Complaints Council in the past five years about police officers taking the actions mentioned in (1), with a breakdown by the outcome of the complaints;
(3) when the various law enforcement agencies respectively formulated procedures and guidelines for their staff to follow when they seize the electronic devices of arrested persons and inspect the information therein;
(4) whether the various law enforcement agencies have provided training for their staff so as to raise their awareness of respecting the privacy of arrested persons; if so, of the details; if not, the reasons for that;
(5) given that section 50(6) of the Police Force Ordinance (Cap 232) (PFO) provides for police officers’ power to inspect any portion from the newspapers, books or other documents found on the persons being searched, but it has not mentioned electronic devices, whether the authorities will, in the light of the aforesaid judgment by the High Court, review if the existing procedures and guidelines concerned have sound legal basis, and revise such procedures and guidelines; if they will, of the details; if not, the reasons for that; and
(6) whether the authorities will, in the light of the aforesaid judgment, review the provisions on seizure of suspected property in PFO with a view to adding restrictions on police officers’ inspection of the information contained in the electronic devices of arrested persons, so as to ensure that PFO is in line with present day circumstances and that the privacy of such persons and the third parties is protected?
Our reply to the various parts of the question is as follows:
(1) to (3) According to section 10 of the Police Force Ordinance (Cap 232) (PFO), the duties of the police force include taking lawful measures for preventing and detecting crimes and offences, and apprehending all persons whom it is lawful to apprehend and for whose apprehension sufficient grounds exists. According to section 50(1) of the PFO, it shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with the offences as stipulated in the section, or whom he reasonably suspects of being guilty of the offences as stipulated in the section, and any person whom he reasonably suspects of being liable to deportation from Hong Kong.
Section 50(6) of the PFO stipulates that where any person is apprehended by a police officer it shall be lawful for such officer to search for and take possession of any newspaper, book or other document or any portion or extract therefrom and any other article or chattel which may be found on his person or in or about the place at which he has been apprehended and which the said officer may reasonably suspect to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed or is reasonably suspected of having committed.
At present, law enforcement agencies will, for the purpose of preventing and detecting crimes, exercise the search and seizure powers conferred by relevant legislation, and, in accordance with established procedures and guidelines, seize and examine various objects, which may include mobile phones and other similar devices, relating to the suspected offence. Law enforcement agencies have made guidelines on the procedures and matters of attention regarding the seizure and search of objects. Law enforcement agencies will, in light of the actual circumstances and needs, review and update the relevant procedures and guidelines from time to time to ensure that their officers’ acts meet operational needs and comply with legal requirements.
The law enforcement agencies do not maintain the figures sought in the question.
(4) Law enforcement agencies attach great importance to the protection of personal data and privacy, and have been providing appropriate training for their staff in this regard. For example, the Police have incorporated topics on personal data and privacy in the foundation training programmes for recruit constables and probationary inspectors and in the promotion courses for junior managers. Regular training and briefings will also be organised to enhance officers’ knowledge of the relevant guidelines. The basic training programmes for inspectors and customs officers of the Customs and Excise Department have also covered contents relating to personal data and privacy. The Department has also invited the Office of the Privacy Commissioner for Personal Data to provide seminars for and conduct exchange with staff. Law enforcement agencies will continue to enhance the sensitivity and vigilance of protecting personal data and privacy among officers though different measures.
(5) and (6) On the case mentioned in the question, according to the judgment handed down by the High Court on October 27 this year, police officers may seize mobile phones found on an apprehended person or in or about the place at which he has been apprehended in accordance with section 50(6) of the PFO, but may examine the content of these mobile phones without obtaining a warrant only in exigent circumstances. The above legal principle also applies to other similar devices. The judgment also points out that, in authorising a warrantless search of the digital content of mobile phones or other similar devices seized on arrest only in exigent circumstances, section 50(6) of the PFO is constitutional and compliant with Article 14 of the Hong Kong Bill of Rights Ordinance and Article 30 of the Basic Law.
The Police and the Department of Justice are studying the relevant judgment to assess its impact and follow-up work.