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Sham Wing Kan v Commissioner Of Police

Judgment Cited authorities 23 Cited in Precedent Map Related
Vincent
Judgment Date02 April 2020
Neutral Citation[2020] HKCA 186
Year2020
Judgement NumberCACV270/2017
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV270/2017 SHAM WING KAN v. COMMISSIONER OF POLICE

CACV 270/2017

[2020] HKCA 186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2017

(ON APPEAL FROM HCAL 122/2014)

________________

BETWEEN
SHAM WING KAN (岑永根) Applicant
and
COMMISSIONER OF POLICE Respondent
and
YEUNG CHING YIN (楊政賢) 1st Interested Party
CHAN SIN YING (陳倩瑩) 2nd Interested Party
HUNG HIU HAN (洪曉嫻) 3rd Interested Party
CHAN SIU PING (陳小萍) 4th Interested Party

________________
Before: Hon Poon CJHC, Hon Lam and Macrae VPP in Court
Dates of Hearing: 25, 26 and 27 June 2019
Date of Judgment: 2 April 2020

_________________

J U D G M E N T

_________________

The Court:

1. This is an appeal from the judgment of Au J[1] (“the Judge”) dated 27 October 2017 whereby he held that section 50(6) of the Police Force Ordinance[2] (“Section 50(6)”) authorizes police officers to search the digital contents of a mobile phone or a similar device seized from an arrestee without warrant in exigent circumstances only; and that in so authorizing the warrantless search, Section 50(6) is constitutional and compliant with article 14 of the Hong Kong Bill of Rights[3] (“BOR 14”) and article 30 of the Basic Law (“BL 30”).

A. Background facts

2. The Civil Human Rights Front has been organizing an annual march on 1 July on Hong Kong Island for many years. The applicant and the 4 interested parties took part in the one held on 1 July 2014 (“the March”). On 4 July 2014, they were all arrested for alleged offences committed in connection with the March. Their mobile phones were seized upon arrest, which led to the proceedings below.

3. The Judge only briefly summarized the facts in connection with the applicant and regarded the facts concerning the interested parties irrelevant for the purpose of the proceedings before him. Apparently, that was because by the time when the Judge heard the application substantively, all the seized mobile phones had already been returned to the applicant and the interested parties without inspection. However, for the purpose of this appeal, we consider it necessary to set out the facts giving rise to the proceedings below in greater detail[4]. The reasons will become apparent shortly.

A1. Circumstances leading to the arrest

4. On 13 June 2014, the police issued a letter of no objection to the responsible person of the Civil Human Rights Front under sections 11(2) and 15(2) of the Public Order Ordinance[5] for holding the March (“the Letter of No Objection”). Various conditions were imposed, including the time to start (3 pm) and the time to finish (8 pm); and the route designated for the March. In particular, condition (c) stipulated that in light of safety concerns, the police would only allow the March to take place along the westbound carriageways of the route, eastbound and westbound of Des Voeux Road Central and also eastbound and westbound of the tramways as defined. The eastbound carriageways of Causeway Road, Yee Wo Street, Hennessy Road and Queensway were explicitly reserved for emergency vehicles and other road users.

5. On 1 July 2014, the applicant was responsible for driving the head vehicle LM8399 (“the Vehicle”) leading the March. The 2nd interested party was one of the three chief marshals responsible for monitoring the whole line of the procession. She was also responsible for leading the head of the procession and had remained at that position throughout the March.

6. At about 2:33 pm, the applicant drove the Vehicle arriving at Moreton Terrace for police inspection. At about 3:26 pm, the March commenced when the participants started leaving Victoria Park. It was already 26 minutes behind the commencement time stipulated in the Letter of No Objection. A large banner was held by the marshals at the head of the procession. In front of the banner the marshals held a black belt stretching across the carriageway.

7. The head of the procession later joined the Vehicle at Moreton Terrace near Hong Kong Central Library. According to the police, the Vehicle was then driven at a speed of about 5 km per hour. The applicant and the 4 interested parties were closely coordinating with the marshals who were holding the black belt. When the applicant and the 4 interested parties stopped, the black belt carriers also stopped.

8. As it happened, the March progressed quite slowly. At about 4:43 pm, at the junction of Hennessy Road and Tin Lok Lane, the police gave a verbal advice to the 2nd interested party for being slow in leading the procession forward. She replied that there was a big crowd and the procession was moving on.

9. When the head of the procession reached Fenwick Street, it was about 5:10 pm[6]. The 4 interested parties kept discussing with the marshals in the vicinity. The Vehicle stopped at the third lane of Hennessy Road westbound just past the junction with Fenwick Street outside Chinese Methodist Church. The applicant left the driver’s seat of the Vehicle while the engine was still running. The marshals carrying the black belt stopped. The large banner was laid on the ground. The procession came to a standstill.

10. At about 5:12 pm, the applicant returned to the driver’s seat of the Vehicle. The 4 interested parties were broadcasting slogans and messages through microphones and a public announcement system on the Vehicle to demand the police to open up all six carriageways of Hennessy Road for the March. The 2nd interested party said that they made the request because her fellow marshals further down the line of the procession informed her that the crowd had become very congested. The police advised the 2nd interested party that it was not a time to consider opening up the carriageways. She replied that if the police did not open up the carriageways, the procession could not finish before 10 pm. She so estimated because at the time there were still people covering 6 football courts waiting to leave Victoria Park, which meant that it would take an even longer time for the March to finish.

11. At about 5:17 pm, the 2nd to 4th interested parties told the head of the procession that they would wait at Fenwick Street for others from Causeway Bay to arrive.

12. While the head of the procession came to a standstill at Fenwick Street, participants who had been building up in the Causeway Bay area also chanted at the police demanding to open up all the carriageways. Some individuals even charged at the police cordon line and mills barriers. At about 5:20 pm, the participants rushed through the police cordon line and spilled out into Sugar Street, Yee Wo Street eastbound and the crossing outside SOGO Department Store. The police set up a check-line at the crossing to direct the participants back to the westbound carriageways. The traffic flow along the eastbound carriageways was seriously obstructed and much inconvenience was caused to other road users.

13. At about 5:21 pm, the police gave a formal verbal warning to the 1st interested party to move forward and proceed with the procession according to the conditions in the Letter of No Objection. The 1st interested party then raised his voice and told the participants through a microphone that he had just received a warning from the police and the police would not open up all the six carriageways. The crowd continued to chant and the 1st interested party did not follow the police’s instructions to move forward with the procession.

14. At about 5:30 pm, the applicant walked around the Vehicle and returned to the driver’s seat. About 5 minutes later, the 2nd interested party urged the participants through the public announcement system to walk slowly because of the heavy rain and to wait for other participants approaching from Causeway Bay. The Vehicle and the marshals then continued to move towards the direction of Admiralty. By then, the Vehicle had remained in a standstill position near Fenwick Street for 25 minutes.

A2. Arrest and seizure of mobile phones

15. After the March, the police gathered evidence including downloading a number of video footages from open sources on the internet. After reviewing the evidence, the police on 4 July 2014 arrested the applicant and the 4 interested parties.

16. The applicant, the 1st and 3rd interested parties surrendered to the police and were arrested at the police station at around noontime on 4 July 2014. They were all arrested for (a) breach of the requirements and conditions applying to public processions under section 15(4) of the Public Order Ordinance, and (b) obstructing a police officer in the due execution of his duty under section 36 of the Offences Against the Person Ordinance[7]. The applicant was also arrested for leaving the Vehicle unattended whilst the ignition was on at Hennessy Road just past the junction with Fenwick Street under regulation 61 of the Road Traffic (Traffic Control) Regulations[8].

17. Upon arrest, the police searched the applicant and seized from him five mobile phones. After briefly inspecting each of the mobile phones, the arresting officer took possession of them on the ground that they were suspected to be related to the offence for which the applicant was arrested. Later, the police allowed the applicant to choose which two of the five mobile phones were to be returned to him. The police retained the remaining three (“the Subject Mobile Phones”), one of which was an iPhone, and in the presence of the applicant and his lawyers, put them in separate sealed tamper-proof bags. The applicant’s lawyers claimed legal professional privilege in respect of the Subject Mobile Phones.

18. Likewise, upon arrest of the 1st and 3rd interested parties, their respective mobile phones were seized by the...

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