HKSAR v. INDRA AGUS SETIAWATI

HKSAR v. INDRA AGUS SETIAWATI

Section 17A(3) is, in substance, indistinguishable from section 50(6) of the Police Force Ordinance and therefore the implied limitation identified in Sham Wing Kan applies: examination of the contents of a seized mobile phone without a warrant violates constitutional privacy rights unless exigent circumstances (or...

Source-derived case information.

Citation
[2018] HKCFI 79
Parties
Prosecution: HKSAR; Accused: Indra Agus Setiawati
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 January 2018
Case Number
HCCC318/2017
Procedural Posture
Criminal Indictment for Trafficking in a Dangerous Drug / Ruling on Admissibility (pre Trial)
Outcome
Evidence admitted
Legal Topics
Admissibility of Evidence, Mobile Phone Search, Warrant Requirement, Exigent Circumstances, Waiver of Rights, Controlled Delivery, Customs Powers
Source Language
en
Criminal Law Evidence Constitutional Law Search and Seizure Privacy Law Admissibility of Evidence Mobile Phone Search Warrant Requirement +4 more

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Parties

HKSAR

Prosecution

Indra Agus Setiawati

Accused

Procedural Posture

Criminal Indictment for Trafficking in a Dangerous Drug / Ruling on Admissibility (pre Trial)

Legal Issues

  1. 1 Whether examination of data on a seized mobile phone without a warrant was lawful
  2. 2 Whether section 17A(3) Customs and Excise Service Ordinance permits warrantless examination of phone contents or contains an implied limitation requiring a warrant or exigent circumstances
  3. 3 Whether the accused waived privacy rights or gave permission for examination

Ratio Decidendi

Section 17A(3) is, in substance, indistinguishable from section 50(6) of the Police Force Ordinance and therefore the implied limitation identified in Sham Wing Kan applies: examination of the contents of a seized mobile phone without a warrant violates constitutional privacy rights unless exigent circumstances (or equivalent impracticability of obtaining a warrant) exist. The examination in this case, conducted several hours after arrest without a warrant and without exigent circumstances, was a breach of privacy. Nonetheless, applying the Chan Kau Tai/Riaz Khan discretionary test, the breach was not in bad faith, the evidence is important and its reception will not likely encourage...

Court Disposition

Evidence admitted

Orders

  • Admit into evidence the product of the examination of the accused's mobile phone (images, call logs, WhatsApp records and related printouts)