July 1 protester sues police for searching phones without permission
PUBLISHED : Sunday, 05 October, 2014, 5:30am
UPDATED : Sunday, 05 October, 2014, 5:30am
Julie Chu [email protected]
Sham Wing-kan
A pro-democracy protester is suing police for allegedly infringing on his privacy by searching his mobile phones without consent after he was arrested during this year's July 1 march.
In a High Court writ, Sham Wing-kan, 60, asked the court to review a police decision to search three of his mobile phones without authorisation.
Sham claims there was no reasonable justification to conduct the search based on the offence he was arrested for: obstructing police officers in the execution of their duties.
He says it is unconstitutional for police to seize and search the phone of someone who has been arrested without the authorisation of a neutral party.
"This constitutes interference with the arrested person's right to privacy - in particular, the right to feel safe from unreasonable searches and the right to privacy of communication," he says.
Sham drove a truck leading the march on July 1, which was organised by the Civil Human Rights Front. He was accused, together with four others, of ignoring verbal warnings by police officers to drive faster, and of slowing the vehicle to a crawl on Hennessy Road, Wan Chai, during the rally, the writ says.
Police claimed the road was blocked as a result, and public order was affected.
Sham and the four others were arrested on July 4, and later released without charge. Their mobile phones were seized and have not been returned. He says all five of his phones were initially confiscated, including two smartphones, but he has since been allowed to retrieve two phones of his choice.
All the phones contained personal information such as text messages and photos. He used his smartphones to access email and social networks, meaning police had access to sensitive information including his internet browsing and location history, the writ says.
Sham cites Article 30 of the Basic Law, protecting the freedom and privacy of communication of Hong Kong residents. The right to privacy is also constitutionally guaranteed under the Hong Kong Bill of Rights Ordinance, he says in the writ.
"It is well established in our jurisprudence that the court must give such a fundamental right a generous interpretation so as to give individuals its full measure," the writ says.
It states that if police need to infringe on an arrested person's privacy, they must show that it is "lawful" and "reasonable".
Sham also says that the fact the police allowed him to take back any two of his phones shows they had no idea which ones were needed for an investigation.
The writ also cites overseas laws protecting information stored on mobiles. In the United States and Canada, police need a warrant to search a suspect's phone, Sham says.
