- 22 A B A analysis of the minority judgment in Fearon is more in line and consistent B with the approach to proportionality in the context of a search power as C C laid down in Keen Lloyd.6 D D 56. E F As explained in the minority judgment in Fearon at paragraphs 140 - 150, only the three purposes underlying exigent circumstances (that is, the protection of the safety of the public and the E F police officers which is subject imminent threat, the preservation of G H evidence which could be destroyed imminently, and the discovery of evidence in extremely urgent and vulnerable situation) fairly and rightly G H justify the intrusion of privacy without prior authorization. This is so I J because other than in exigent circumstances, there are effective and efficient alternative avenues to address these concerns without any urgent I J need to carry out an immediate warrantless search of the phone for its K L digital content, thereby infringing the arrested person’s protected privacy. As observed by Karakatsanis J, in relation to: (1) M K L Safety: “Clearly a cell phone (or any other digital M communication device) is not a physically dangerous N weapon and, unlike a physical receptacle like a briefcase, cannot conceal such a weapon” (paragraph 140). O “The N O mere possibility that a phone could have been used to summon backup does not justify a search incident to arrest P P any more than the theoretical possibility that the suspect’s Q R S T home could contain accomplices justifies a search of the 6 The Court of Appeal in Keen Lloyd at paragraphs 63 - 68 notes that the wordings of section 8 of the Canadian Charter concerns with the reasonableness of a search or seizure, which are different from BOR14, and cautions against a direct transplant of the reasoning in those cases to the Hong Kong context. However, it has still found the approach in those cases to be “enlightening in the application of [HK’s] proportionality test”. See also paragraphs 69 - 70 where the Court of Appeal similarly adopts the approach in authorities of the European Court of Human Rights concerning article 8 of the European Convention for considering whether a statutory power of search is consistent with BOR14’s protection of privacy right. Q R S T U U V V