Smartphone data stored in Cloud is beyond reach of Hong Kong law, lawyer argues in July 1 protester case
Law drafted 20 years ago not relevant in the era of smartphones, High Court hears
Police had no right to search the content of a mobile phone seized from a person arrested following last year’s July 1 march as data stored in the Cloud was not covered by a law drafted more than 20 years ago, the High Court heard yesterday.
Barrister Hectar Pun SC, representing protester Sham Wing-kan said: “All information stored on a smartphone is not subject to be searched because the information was stored [in the Cloud].”
He suggested the police read the Police Ordinance “too widely” and asked the court to declare the ordinance “unconstitutional”.
He urged the court to review section 50 (6) of the Police Ordinance – which says officers can search for and take possession of any document found on anyone apprehended, if a police officer “may reasonably suspect [it] to be of value to the investigation”.
Pun argued the ordinance was drafted in 1992 when there were no smartphones. He asked if it authorised police to access everything from a device that could access data from outside storage.
“[The ordinance] is too wide to catch everything,” Pun said. “It is a matter to be legislated.”
Barrister Gerard McCoy SC, representing another protester Chan Sin-ying, said his client was arrested three days after the march and her phone was seized after she was arrested.
He asked why Chan’s phone had to be seized over such a minor offence particularly when her arrest was 72 hours after the event.
He said a proper policy should be imposed, but that it would be better if it came from an external party rather than the police’s internal policy.
Barrister Johnny Mok SC, representing the Commissioner of Police, said it was necessary for the police to access information from the phone of arrested persons during investigations.
He said article 30 of the Basic Law already protected Hong Kong residents’ freedom and privacy of communication. According to the ordinance, relevant authorities could only inspect communication “in accordance with legal procedures to meet the needs of public security or investigation into criminal offences”.
He argued it had already given enough protection to the public.
Mr Justice Thomas Au Hing-cheung said he would give his decision at a later date.
