- 32 A
B
A
72.
The reliance on PGO 44-05(6) is similarly misplaced as that
is concerned with the search of “persons”
C
14
but not searches of mobile
C
phones.
D
D
73.
E
F
G
H
B
Finally, the FPM are internal guidelines not accessible or
known to the public, which therefore do not satisfy the “prescribed by
law” requirement.
74.
E
F
In response, Mr Mok submits that the Commissioner would
undertake to publish the FPM if the court regards that as necessary.
G
H
However, this readiness to publish the guidelines later if so required
I
cannot assist the submissions as to whether, as a matter of proper
J
construction, the warrantless search power provided under section 50(6)
I
J
in relation to the digital content of mobile phones satisfy the requirements
K
K
of BL30.
L
M
L
75.
In any event FPM 21 - 51 properly read as a whole is in
M
substance concerned with how to properly preserve the digital evidence
N
O
stored in a seized mobile phone as evidence, but not prescribing
procedures that would take into account and safeguard the privacy right
N
O
of the person that the phone belongs to against abuse. It therefore would
P
Q
not render the warrantless search power (if for circumstances other than
exigent ones) proportionate.
See: Keen Lloyd, paragraphs 62 and 69 (as
P
Q
summarized at paragraph 22(3) above).
R
S
R
76.
In the premises, I reject Mr Mok’s submissions that
S
section 50(6) provides a power for the police officer to conduct
T
T
14
PGO 44-05 is entitled “Search of Persons”.
U
U
V
V
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