What Rights do Citizens Have When it Comes to the Police in Hong Kong?
07/05/2020 — by Will Elton
In early April 2020, the Hong Kong Court of Appeal ruled that Hong Kong police have the power to search mobile phones during arrests without a warrant. Let’s take a look at that decision as well as a recap of the various police powers and citizen responsibilities in these occasions.
Sham Wing Kan v Commissioner of Police  HKCA 186
Overturning an earlier judgement from 2017 that officers can only search a mobile phone without a warrant in “exigent circumstances”, the Court of Appeal’s judgement has established a more flexible protocol when it is not reasonably practical to obtain a warrant.
The key elements of the ruling are that for a warrantless search can be undertaken if:
- The police have reasonable suspicion that the person arrested has committed an offence; and
- The purpose of the search must be limited to (1) the investigation of the offence, or (2) the protection of the safety of persons; and
- The scope of the examination should be limited to items pertaining to the above; and
- The office should make an adequate written record of the purpose and scope of the search as soon as practicable.
The court did however re-iterate that apart from the exception defined, a search can only be performed with a warrant and that a person cannot be compelled to give the password to unlock a mobile phone or other electronic device. Finally, a warrantless search could be subject to effective supervision by way of after-the-event judicial review.
For a more in-depth analysis of the case, have a read of the case commentary by Denis Chang’s Chambers.
Here’s a quick-recap of the various powers of the police in Hong Kong and the responsibilities of the city’s citizens:
1) Powers to stop, question and search
The police are empowered by section 54(1) and 54(2) of the Police Force Ordinance (“PFO”) to stop a person who is acting suspiciously. The police may ask for his HKID and detain him for any questions. The law also gives police officers the right to search that person for anything likely to be of value to the investigation of the suspected offence. What constitutes “suspicious” is a subjective assessment but the police ought to have genuine suspicion that the person has committed an illegal act.
The police are also granted the right under section 49 of the PFO to ask any person to produce proof of identity for preventing and investigating any offence.
Failure to produce identification documents upon police request constitutes an offence, the maximum penalty being a fine of $5,000 (section 17C of the Immigration Ordinance).
It is also an offence to assault, resist or deliberately obstruct the police in the execution of their lawful duties, with the maximum penalty of 2 years (section 36 of the Offences Against The Person Ordinance and section 63 of the PFO).
Searches must only be performed by a police officer of the same sex. If a person does not want to be searched in the public, they may ask for the search to be carried out at a more discreet location or at the nearest police station. However, police officers enjoy the discretion to decide where to conduct the search and may insist on a public space despite your plea.
While the police have the power to question anyone in accordance with the law, citizens are protected by common law and the Hong Kong Bill of Rights Ordinance to remain silent when questioned by the police. Citizens are not compelled to testify against themselves and can refuse to answer any questions. The only exception is when a driver of a vehicle is required to give his name, address and driving licence number when suspected of committing a road traffic offence or accident (section 63 of the Road Traffic Ordinance).
2) Power to search and examine a mobile phone
Before the Court of Appeal’s recent decision in April 2020, a police officer only has the power to search and examine content of your digital device if he has obtained a warrant. The Court of Appeal quashed the earlier ruling that declared searches are only constitutional in exigent circumstances. The current law allows an immediate search without a warrant if a police officer has reasonable suspicion that an arrestee has committed a crime and such is necessary for investigating the offence itself or for protecting potential victims.
However, an arrested person cannot be compelled to disclose the password to their mobile phone. Not disclosing so would not constitute the offence of obstructing police. If one is concerned about this new court decision, adding a password to your phone is a good safeguard of personal privacy.
3) Power to enter and search your home
Police officers may enter and search any premises with a warrant issued by a Magistrate. A warrant will generally be issued if the police provide evidence showing there may be articles in the premise that is of value to the investigation. With a warrant, police officers may break into the premise if necessary.
If the police have not obtained a warrant from the Magistrate, they can still enter and search any premise if they have reason to think that the person to be arrested is in there.
Citizens’ responsibilities and rights
Under the above scenarios, citizens must cooperate or they will be guilty of the offence of resisting or obstructing the police officers in the due execution of their duties. In such case, police officers may break open the door for their entry. However, if it does not fall into either of the above situations and the police officer simply ask for your consent to enter your premise, you may lawfully refuse their entry.
4) Power to arrest
An arrest warrant is not necessary. According to section 50(1) of the PFO, police officers can arrest a person if he reasonably suspects him being guilty of an offence. Unlike the right to stop and search, police officers need to have an objective basis to properly exercise this power. They shall have regards to the available facts and information and form a reasonable suspicion that the person has committed an offence.
Under section 101A of the Criminal Procedure Ordinance, the police can effect an arrest with reasonable force. Taking into account of the actual situation, the using of handcuffs or other means of constraints are generally permissible. The police can increase the level of force if the person attempts to evade arrest.
The police should inform the person the offence he is suspected to have committed when he is arrested and provide him with the factual and legal grounds for his arrest. The language used should be simple and understood by a layman. If the police failed to convey the cause and reason for arresting you, the arrest is generally unlawful.
Any arrested person also enjoys the right to silence, except your basic information such as name and address. The police should also inform you of this right and caution you that anything said will be put into writing and may be given as evidence.
5) Power to use tear gas
The Public Order Ordinance provides that the police may disperse any public gathering with or without prior approval if it is reasonably believed that the gathering is likely to cause or lead to a breach of the peace. In the course of doing so, the police may “use such force as may be reasonably necessary”. The law requires that such force should not be greater than is necessary for the purpose of dispersing the crowd. In short, the central issue is whether the use of the tear gas was a necessary and proportionate response in the circumstances at the time.
According to internal guidelines regarding the use of tear gas issued in 1996, it is paramount of the police to appreciate that: (a) only the minimum level of force should be applied; (b) the use of force is to restore order quickly; (c) whenever possible, a warning will be given; (d) force will not be used as a punitive measure; (e) force will cease immediately when the objective has been achieved. In all situations, the police must justify their use of force on protestors with regards to the actual circumstances.
If the police failed to comply with the rules restraining their exercise of powers, you can lodge a complaint with the Complaints Against Police Office where any police in breach would be subject to disciplinary actions. Alternatively, you may also sue the police force for compensation. In terms of the admissibility of evidence, evidence that is obtained in violation of police rules would likely be rejected in the court when the case goes to trial.
This article does not constitute legal advice.
The opinions expressed in the column above represent the author’s own.