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A.
INTRODUCTION
1.
This judicial review raises the important questions of
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(a) whether under section 50(6) of the Police Force Ordinance (Cap 232)
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(“PFO”), the police has power to search and examine without warrant the
digital content of a mobile phone found on the person the police has
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arrested, and if so, (b) whether that section in so authorizing such a
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warrantless search is unconstitutional being contrary to the protection of a
person’s privacy under Article 14 of the Hong Kong Bill of Rights
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Ordinance (Cap 383) (“BOR14”) and Article 30 of the Basic Law
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(“BL30”).
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2.
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The facts giving rise to this judicial review, as the matters
developed, are indeed no longer material, but it provides a factual context
to highlight the arguments raised under these questions. I will therefore
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give a brief summary of the background facts as an introduction.
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3.
The applicant participated in the 1 July 2014 procession.
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He drove the leading motor vehicle of the procession. He was arrested
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by police on 4 July 2014 for suspected offence of obstructing a police
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officer in the execution of his duty by idling the vehicle during the
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procession. It was alleged that he did not follow the directions and
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verbal warnings given by the police officers at that time to continue to
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lead the public procession and hence causing the procession to block the
road, and thereby affecting public order. This was said to be contrary to
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the notice of no objection to organising the public possession issued by
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the police.
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