- 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
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