Police abuse of power to use search warrants to search Police Headquarters and Facebook Headquarters for personal data of subscribers of Agnes Chow Page
Joshua Wong Chi-fung and Agnes Chow Ting of Demosistō filed an application for judicial review challenging the Commissioner of Police and three magistrates in Kwun Tong Magistrates’ Court and Eastern Magistrates’ Court for granting four ex parte search warrants to the Police on 3 September, 2 October, 31 October and 6 November 2019 respectively, three of which allowed the Police to access electronic devices in the Cyber Security and Technology Crime Bureau of the Police Headquarters, including mobile phone data of the arrested persons; and one of which allowed the police access to Facebook’s office in Island East Centre, TaiKoo Place, to access subscriber details, IP addresses and log records of account activity on Chow’s Facebook page.
The Applicants sought a finding by the High Court that the above conduct was in breach of Article 14 of the Hong Kong Bill of Rights and Articles 29 and 30 of the Basic Law, that the four search warrants previously issued by the Magistrates’ Court were unlawful, and were to be revoked. They also sought an order from the High Court ordering the police to return the electronic devices of both individuals and an order prohibiting the police from accessing, copying or retaining the information obtained through the four search warrants mentioned above.
The applicants for the judicial review are Joshua Wong Chi-fung and Agnes Chow Ting, and the four respondents are two Permanent Magistrates of Kwun Tong Magistrates’ Court (unnamed), one Permanent Magistrate of Eastern Magistrates’ Court (unnamed), and the Commissioner of Police.
The application alleged that two permanent magistrates of the Kwun Tong Magistrates’ Court and one permanent magistrate of the Eastern Magistrates’ Court granted search warrants to the police ex parte under section 50(7) of the Police Force Ordinance on three occasions on 3 September, 2 October and 31 October last year respectively, allowing any one officer to enter the Cyber Security and Technology Crime Bureau on the 22nd floor of the Police Headquarters to inspect the information of all electronic devices therein, and that the search warrants did not impose any conditions or restrictions; and that the applicants in this case were not aware of the existence of these three search warrants until February this year.
The application went on to state that on 6 November last year, a permanent magistrate of the Eastern Magistracy granted a search warrant to the Police under section 50(7) of the Police Force Ordinance ex parte to allow any one police officer to enter Facebook’s office at 66/F, Island East Centre, TaiKoo Place, to inspect and access Chow’s personal Facebook page (Facebook ID: 622506141223354) and a post made on the page on 21 June last year, the day the Police Headquarters was surrounded, together with its subscriber details, IP address and log record of account activity, again without any conditions or restrictions imposed.
A Facebook spokesperson said Facebook did not provide the police with any information about Chow and “to the best of our knowledge, the Hong Kong police have never visited the Facebook Hong Kong office in relation to the incident and the Facebook Hong Kong office is not located at the location mentioned in the testimony”. George Chen, Facebook’s director of public policy for Hong Kong and Taiwan, also posted that Facebook’s Hong Kong office has never held or stored any user data.
According to the relevant court warrant issued in November last year, police asked to search Facebook’s office at 66/F, Island East Centre, 18 Warren Road, Pacific Place. However, in May last year, Facebook’s Hong Kong office had actually moved to the 47th floor of a building in TaiKoo Place, 979 King’s Road, Quarry Bay, and it was widely reported in the media at the time.
It is understood that Facebook Hong Kong does not have the right to process, possess, store, use or disclose any Facebook Hong Kong or overseas user information, and Facebook will rigorously assess requests for user information from the Government to determine whether they comply with valid legal process and will refuse to provide such information on grounds of insufficient justification.
Police General Orders Chapter 44 Section 44-03:
2.11. Notwithstanding the lawful exercise of statutory powers, officers shall comply with the requirements under the Personal Data (Privacy) Ordinance [PD(P)O] when requesting or requiring data from a subject, and subsequently the handling of the data (including the recording, security and disposal of data). For further information on the PD(P)O, please refer to PGO/FPM Chapter 12, PGO/FPM Chapter 76 and the Data Privacy Web Site on POINT.
Related incident: June 21 surrounding the police headquarters