Wednesday, January 29, 2025

Smartphone and the Police - No need to tell police your smartphone/computer passwords IF ... Know your RIGHTS, and make sure police follow the LAW?

The issue of police taking your Smartphone, Computer became an issue following a statement of the Inspector General of Police on about 14/1/2025 - and there was strong protest about this, and on or about 21/5/2025, the IGP clarified..

Now, even the police take your Smartphone/Computer, do you have to give the police your password to enable police easy access to the contents in your Smartphone/Computers, the answer is NO - if you believe(justified or otherwise) that it may expose you to a criminal charge or penalty or forfeiture. The police took your phone/computer to investigate the crime of having pictures of porn, but then, they may find evidence of breach of copyright(or intellectual property rights like the use software not paid for) - ahhh a tendency that may expose you to a charge for a different crime, or even a legal suit by the person having property rights to the software. Maybe, there may be 'seditious material' that may lead to a SEDITION CHARGE. We do have the right to not 'self-incriminate' by providing police with evidence - police need to investigate on their own, find the needed evidence and charge you..The principle is in our LAW - NO NEED TO ANSWER QUESTIONS ... 

Police are generally not allowed to go on a 'fishing exercise' to find possible crimes, and then charge you. Police investigate suspected crimes committed by you - and to arrest you or take your smartphone, there is a need for REASONABLE SUSPICION - not just simply suspicion and/or belief - the legal requirement is that it must be REASONABLE.

THUS, if the police ask you for your password of your Smartphone, computer...email account,etc.. you have every right to REFUSE to answer - you are exercising your right under Section 112 of the Criminal Procedure Code..

This legal principle is clearly stated in Section 112 of the CRIMINAL PROCEDURE CODE, which states

(2) Such person shall be bound to answer all questions relating to the case put to him by that officer:

Provided that such person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

A perusal of the contents of your smartphone/computer, etc certainly may risk you to a CRIMINAL CHARGE....or penalty or risk the forfeiture of your phone/computer...

In your phone/computer, there may be proof/evidence of some other crime ... maybe SEDITION, maybe some other crime which you may not even be aware of - but there is a TENDENCY to expose him to a criminal charge or penalty or forfeiture.

A smart person will not HELP police to find evidence to arrest, detain or CHARGE him/her in Court for a criminal offence - it is the duty of the police to investigate and find the evidence to prove that you committed a crime.  

POLICE cannot simply arrest anyone - there must be REASONABLE suspicion or belief - not simply suspicion/belief but one that is REASONABLE - which justly should mean that there is some evidence that supports the suspicion/belief.

WHY did the Police ARREST? The Federal Constitution in Article 5(3) states that (3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

This means the POLICE MUST inform you why you are being arrested - for what crime, and you can ask the police officer what is the REASON for the arrest - and the police cannot simply say that believe/suspect that you committed this or that crime - and that is NOT ENOUGH - for the police must explain why his belief/suspicion is REASONABLE.

When, and if arrested, best to keep QUIET - until you are able to consult your lawyer.

Can the police arrest you without a warrant? A police officer can arrest you without a warrant if you are suspected of a seizable offence, i.e. an offence which is punishable with death or imprisonment of 3 years and above. If you are suspected of an offence which is punishable with a fine only or an offence that carries a sentence less than 3 years, i.e. a non-seizable offence,  generally the police cannot arrest you without a warrant.

A police officer on traffic duty thus simply cannot ask for your Smartphone or see the contents in your phone for some other offences OTHER than the traffic offence that they have REASONABLE SUSPICION you committed. 

BE AWARE OF YOUR RIGHTS...

IGP: Police inspectors or above can check phones if crime suspected

Razarudin said that mobile phones may only be seized for relevant investigations or if there is suspicion of an offence.

Updated 2 weeks ago · Published on 14 Jan 2025 11:30AM

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IGP: Police inspectors or above can check phones if crime suspected
He also cited Section 233 of the Communications and Multimedia Act (CMA) 1998 in support of this.- January 14, 2025

THE police have the authority to examine a person's mobile phone if there is suspicion or information suggesting they have committed a crime, reported Bernama.

Inspector-General of Police Tan Sri Razarudin Husain said this is permitted under Section 23(1) of the Criminal Procedure Code to ensure there is no obscene, offensive content or threatening communication.

He also cited Section 233 of the Communications and Multimedia Act (CMA) 1998 in support of this.

"Section 249 of the CMA 1998 authorises access to computerised data, including mobile phones, while Section 116B of the Criminal Procedure Code grants access to mobile phones when a person is suspected of committing a crime," he told Bernama.

Razarudin, however, said that only police officers with the rank of inspector or higher are authorised to conduct mobile phone checks.

He made these remarks in response to a viral video questioning the police's actions in arresting someone and inspecting their phone.

Razarudin also said that Section 292 of the Penal Code permits mobile phone checks, and if obscene material is found, it constitutes an offence and may lead to arrest without a warrant.

"Therefore, no one can question the authority to check mobile phones at roadblocks, but it must be done prudently and under the law, not arbitrarily or without reasonable cause," he said.

He also said that a search without a warrant could be conducted if the officer has reasonable grounds to believe delaying the acquisition of a warrant could compromise the investigation, such as by allowing evidence to be destroyed.

"In such cases, the police can seize the phone for later inspection, and failure to cooperate may result in arrest for obstructing the police," he added.

Razarudin said that mobile phones may only be seized for relevant investigations or if there is suspicion of an offence.

Police are authorised to check a person's mobile phone if there is a police report filed against them, if they are under investigation, or if there are suspicions of their involvement in criminal activities, he said. - January 14, 2025, Vibes

 

Lawyers school IGP for saying police can pry into people's phones, tell govt to speak up

Lawyers for Liberty says Razarudin Husain's statement is not only legally untenable, but also a threat to civil liberties.

MalaysiaNow
Inspector-General of Police Razarudin Husain.

The government has been urged to speak up after Inspector- General of Police, Razarudin Husain, said his men were authorised to check the public's mobile phones, a statement which a lawyers group say is not only "legally untenable, but also poses a threat to civil liberties.

Lawyers for Liberty (LFL) reminded Razarudin that the police should only act within the powers conferred on them by law, adding that the public can refuse to comply with unlawful demands, including the random checking of their electronic devices.

"Otherwise their actions will be unlawful and subject to legal action or a claim in court for damages. The government cannot remain silent and must ensure the police act within the law," said LFL spokesperson Yu Ying Ying.

Razarudin was responding to a viral video criticising the police for checking a person's mobile phone and cited various laws to justify the action.

Citing the Penal Code, Criminal Procedure Code (CPC), Communications and Multimedia Act (CMA) and Police Act, Razarudin said that any officer with the rank of inspector or higher was authorised to inspect a person’s phone if they suspected an offence had been committed, including whether there was "obscene or offensive" content.

However, LFL said none of the provisions cited by Razarudin empower the police to check the mobile phones of "whomever they please at roadblocks or elsewhere".

It said routine checks of mobile phones are illegal, adding that police cannot check the phones of the public "except in the course of an ongoing investigation or search". 

"Checks must be targeted at specific individuals connected or sought for within the ambit of a criminal investigation and there must be reasonable suspicion of their involvement," said Yu.

She said that Section 116B of CPC stipulates that an officer ranked inspector or higher may only access digital devices as part of a legitimate search, adding that this is subject to "reasonable grounds to suspect criminal activity".

"The power is specific and very limited," she added.

She said sections 247 and 248 of CMA allow police to inspect a person’s mobile phone "only during a search and only when there is a reasonable cause to believe" that an offence has been committed.

"Therefore, mobile phone checks by the police unconnected with an ongoing search are not justified."

Meanwhile, Yu said provisions of the Police Act, such as under Section 3(3) and Section 20(3)(g), merely list general duties and responsibilities.

"The powers conferred upon the police under these sections should not be abused or used indiscriminately against the general public," she said.

She said the Penal Code defines the offence and prescribes punishment for possession of obscene material, while CPC outlines circumstances under which police may arrest a person without warrant.

"However, neither Section 292 of the Penal Code nor Section 23(1) of CPC makes any reference to the police’s authority to search an individual’s mobile phone, as wrongly suggested by the IGP." - Malaysia Now, 15/1/2025

Rights group rejects IGP’s stand on mobile phone checks

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LFL says the public can refuse to comply with unlawful demands by the police.


HANDPHONE MEN FREEPIK
Rights group Lawyers for Liberty said the police cannot check the mobile phones of members of the public except in the course of an ongoing investigation or search. (Freepik pic)

PETALING JAYA: Rights group Lawyers for Liberty (LFL) has rejected a statement by Inspector-General of Police Razarudin Husain that the police are authorised to check a person’s mobile phone if there is suspicion or information suggesting that they have committed a crime.

In a statement, LFL’s public defence coordinator Yu Ying Ying said the police cannot check people’s mobile phones except in the course of an ongoing investigation or search.

Yu also said such checks must be targeted at specific individuals connected with or sought for within the ambit of a criminal investigation, with reasonable suspicion of their involvement.

She added that Razarudin’s statement was “legally untenable”, encouraged unlawful acts by police personnel, and posed a threat to civil liberties.

“The laws cited by the IGP do not in any way support his claim that ‘no one can question the police’s authority to check mobile phones at roadblocks’,” said Yu.

“The police must act only within the powers granted to them by law. Otherwise their actions will be unlawful and subject to legal action or a claim in court for damages.

“The government cannot remain silent and must ensure that the police act within the law.”

She also advised the public to be aware of their rights, saying they are entitled to refuse to comply with unlawful demands by police personnel.

On Monday, Razarudin cited Section 3(3) of the Police Act, Section 23(1) of the Criminal Procedure Code, Section 249 of the Communications and Multimedia Act 1998, Section 116B of the Criminal Procedure Code, Section 20(g) of the Police Act and Section 292 of the Penal Code to justify the police’s right to check a person’s mobile phone.

However, Yu said none of these provisions grant the police the right to check people’s mobile phones, save within the parameters of an ongoing investigation and where there is reasonable suspicion.

“In other words, these sections do not authorise the police to check the mobile phones of whomever they please at roadblocks or elsewhere,” she said.

“Routine checks of mobile phones are prohibited by law. The powers conferred upon the police… should not be abused or used indiscriminately against the general public.” - FMT, 15/1/2025

 

IGP clarifies: No random mobile phone checks by police [WATCH]

KUALA LUMPUR: Police personnel will not conduct random mobile phone checks on people in public, says Inspector-General of Police Tan Sri Razarudin Husain.

Addressing growing concerns over the police's authority to inspect mobile phones, he said that such actions would only occur when there was reasonable suspicion.

"The key point to understand is that we will only inspect the mobile phones of individuals under reasonable suspicion.

"This means there must be credible information, intelligence, or reasonable suspicion suggesting that an individual has committed an offense or crime, placing them under suspicion," he told the New Straits Times.

Razarudin assured the public that officers would not be conducting arbitrary or random checks in public spaces.

"Our personnel will act strictly in accordance with applicable laws and constitutional provisions," he said.

He also highlighted the importance of balancing law enforcement duties with respect for individual rights to ensure public trust in the police force.

For legal clarity, Razarudin said that the authority to inspect mobile phones was firmly grounded in existing legal provisions, including Section 23(1) of the Criminal Procedure Code (CPC), Sections 233 and 249 of the Communications and Multimedia Act (CMA) 1998, and Section 292 of the Penal Code.

These provisions establish the legitimacy of such actions.

"We want to emphasise again that inspections will only be carried out based on reasonable suspicion or credible intelligence, to ensure the public understands that this is not a random or arbitrary exercise.

"This will foster trust in the police force," he said.

Razarudin said that to safeguard against abuse, only officers with the rank of Inspector or higher were authorised to carry out such inspections.

"This ensures accountability and professionalism," he said. - NST, 21/1/2025

 

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