KUALA LUMPUR: The police have the right to check an individual’s mobile phone should there be a police report lodged against that person, an investigation on the individual, or if they suspect the individual is involved in a crime.
Inspector-General of Police Tan Sri Razarudin Husain said this is in accordance with Section 3(3) of the Police Act, which outlines the role and responsibilities of the police.
“Furthermore, the police have the right to check a person’s mobile phone if they suspect the individual or have received information indicating that the person may have committed an offence, as outlined in Section 23(1) of the Criminal Procedure Code (CPC),” said Razarudin.
He was responding to a recent viral video in which a man complained about the frequency of mobile phone checks by the police.
Razarudin explained that the police are also permitted to check a mobile phone to ensure there is no lewd or threatening content on the device.
“Section 249 of the Communication and Multimedia Act 1998 gives the authorities access to computerised data, including a mobile phone.
“Section 116B of the CPC grants the authorities access to a mobile phone, classified as computerised data, when checking a person who is suspected of committing a crime.
“However, such authority is given to police officers with the rank of Inspector and above,” he said.
Under Section 20(g) of the Police Act, Razarudin said it gives police officers the authority to compel an individual to provide information when asked.
“Therefore, no one can question the police’s authority to check a mobile phone during roadblocks.
“However, these checks must be conducted respectfully and in accordance with existing laws. They should not be carried out randomly or without reasonable cause,” he added.
The IGP said Section 292 of the Penal Code could be used to inspect mobile phones if a person is found with lewd and obscene materials.
“It is an offence that enables an arrest without a warrant.
“Having an online gambling application on a mobile phone is also an offence that enables an arrest to be made without a warrant under the Open Gaming House Act 1953,” he said.
“Checks without a warrant can be conducted if an officer has reason to believe that delaying the search to obtain a warrant could compromise the investigation, such as destruction of evidence.
“In such cases, the police may seize the mobile phone first and inspect it later.
“Refusing to cooperate could result in detention for obstructing the police.”
He also said the act of taking and inspecting a mobile phone belonging to members of the public must be based on a relevant investigation or if the police officer suspects that the individual has committed an offence.
“If the police ask for your mobile phone, you have the right to ask why they are requesting it and under what law you are being investigated.
“It’s also advisable for the phone’s owner to be present when the device is being taken, unless the individual is being detained and the phone is seized,” he added.The IGP also advised the public to file a complaint or a police report if they are the subject of random checks without reasonable grounds.
“We don’t want the public to be subjected to unreasonable checks without any basis or grounds.
“If they encounter such incidents, report it immediately,” Razarudin added.
Rakyat must also know their rights, say criminal law experts
PETALING JAYA: While the police do have the authority to inspect handphones, it cannot be conducted arbitrarily and must be grounded in specific justifications, according to criminal law experts.
Lawyer Syahredzan Johan emphasised that police powers to access personal devices are restricted to certain defined circumstances, ensuring that such checks are not performed without valid reasons.
“The police cannot demand an individual to hand over their handphone simply to browse through it.
“They can only do so if the person is suspected of committing a crime or is under investigation,” he said.
Syahredzan, the Bangi MP, further explained that the police have the authority to examine a person’s handphone only if the individual has been arrested on suspicion of a crime.
“If one is not arrested or under suspicion of committing a crime, the police cannot check the handphone simply because they want to have a look at it. This is not allowed,” he said.
Syahredzan advised individuals stopped by the police and asked to hand over their phones to politely inquire about the specific offense they are suspected of committing.
“However, I advise against resisting if the police insist because it could lead to accusations of interfering with police duties.
“Instead, comply and file a report afterward,” he added.
The question of whether the police can randomly stop someone who has not committed any crime to check their handphone was recently brought to light in a viral video shared by a member of the public.
Following this, several netizens shared their experiences of having their handphones randomly checked at police roadblocks and in public areas.
Some of them reported that their private chats and photo galleries were examined during these checks.
Criminologist Datuk Dr P. Sundramoorthy from Universiti Sains Malaysia stated that the police generally do not have automatic or unrestricted authority to seize or check an individual’s phone without giving reasonable cause.
“The police may request access to a phone only if there is a valid reason, such as suspicion of criminal activity or when conducting an investigation under specific laws, such as the Criminal Procedure Code or the Communications and Multimedia Act,” said Sundramoorthy.
“However, this does not mean that they have carte blanche to search your mobile phone at any time.”
Sundramoorthy explained that the police can request to check a handphone only if they have reasonable suspicion that a crime has been committed or if it is part of a criminal investigation.
“Roadblocks, in themselves, do not grant the police the power to inspect personal items unless there is a justifiable reason tied to law enforcement objectives,” he added.
If a police officer demands access to a phone without a valid reason, Sundramoorthy said the individual can assert their right to remain silent or decline to comply.
“If in doubt, individuals are encouraged to remain calm and request clarification on the legal basis of the search, as well as whether they have the option to refuse,” he added.
Sundramoorthy noted that the random checking of a person’s handphone raises concerns about potential violations of the right to privacy.
Senior criminal lawyer Colin Arvind Andrew echoed this view, stating that the power to check a person’s handphone can only be exercised if there is suspicion of a crime or if the person is under investigation.
“If they are asked to hand over their phones for a check, members of the public can inquire about the reason for the request and whether they are being investigated or suspected of committing any offence,” said Andrew.
In 2019, the Home Ministry clarified that the police are not permitted to randomly check a person’s handphone.
They are only allowed to do so if the person is under investigation or suspected of committing a crime.
No comments:
Post a Comment