Following the comments by the Inspector-General of Police, Tan Sri Razarudin Husain, there has been an uproar and discourse about the police’s right to search a person’s phone. For an average person, the police’s right to search a person’s phone, almost always manifests at a roadblock, and the words “Sir, please pass your phone to us, we need to take a look” brings confusion, especially in light of conflicting narratives from various sources, including the police themselves.
In this instance, to clarify the position, it is apt for us to review the following questions:
- Can the police check a person’s phone;
- What is the consequence if one doesn’t hand one’s phone over to the police.
We conclude with a quick “to-do” list for your reference at the end of the article.
1. Can the police check a person’s phone?
In brief, yes, but these grounds are extremely limited, and generally, there must be a valid and reasonable cause for the search of the phone.
In the instance where the police checks a person’s phone, this is done on the following basis:
- the police suspect the person has done something illegal;
- the police are investigating that person for a crime; or
- the police have arrested that person on suspicion for committing a crime.
a. When can the police check a person’s phone – Suspicion of doing something illegal
In the instance that a police officer ranked Inspector or above suspects that a person is involved in organized crime or security offences (e.g. terrorism), under Section 116(A) of the Criminal Procedure Code (the “CPC”), they can confiscate and search their mobile phone without a warrant. Such searches are conducted in line with Section 116B of the CPC, which governs the right of access to computerized data for all searches done under the CPC, including the search of arrested persons under Section 20 of the CPC.
Under Section 116B of the CPC, a police officer ranked Inspector or above may be given access to computerized data, which includes a mobile phone’s contents, and this applies to all searches under the CPC, including the search of persons in a place searched under warrant, by way of Section 17 of the CPC.
In a general instance, if a police officer suspects a person is involved in a seizable offence (i.e. an offence where a police officer may arrest without warrant), they are allowed to use lawful means to prevent the commission of such offences under Section 103 of the CPC, and they may arrest and search a mobile device as part of those lawful means to prevent a seizable offence.
A seizable offence generally has an imprisonment term longer than 3 years, and would include offences such as murder and drug trafficking under the Dangerous Drugs Act 1952. Interestingly, online gambling under the Section 7 of the Common Gaming Houses Act 1953 is a seizable offence, despite its shorter imprisonment term, and so, the police would have the right to search a mobile phone to prevent online gambling, under the maxim “generalia specialibus non derogant”.
In other cases, such as offences under the Communications and Multimedia Act 1998 (the “CMA”), if a Magistrate has a reasonable cause to believe an offence under the CMA is committed (i.e. the improper use of network facilities under Section 233 of the CMA), they may issue a warrant under Section 247 of the CMA, and a police officer ranked Inspector or above may seize and search a person’s mobile phone.
However, under Section 248 of the CMA, if a police officer above the rank of Inspector or above has reasonable cause to believe that delay would affect the investigation of a crime under the CMA or that evidence would be tampered with, they may seize and search a mobile phone without a warrant. This section only applies to the CMA.
b. When can the police check your phone – Investigation of a crime
Generally, if a police officer making an investigation considers a thing necessary to the conduct of an investigation of an offence, and they have a reason to believe that a Section 51 of the CPC order or summons would not compel the production of the thing, they can search for the same.
This is elucidated in Section 116 of the CPC, and by way of illustration, would look like a police officer suspecting that a person is the mastermind behind an online scam. The police officers would be able to search that person’s phone as part of their investigations, to inspect and investigate the relevant conversations and transactions related to the scam proceedings. In this instance, they would likely have grounds to believe that the person would not bring forth the phone to the court or to the police station despite an order or summons to produce it under Section 51 of the CPC.
The safeguards applicable to searches under warrants apply to searches under Section 116 of the CPC, which includes the limiting of the scope of such searches by the court under Section 55 of the CPC. Furthermore, such searches are limited to the investigating officer, and not the arresting officer, as per Mohammad Shafiq Dollah v. Sarjan Mejar Abdul Manaf Jusoh & yang lain dan satu kes lagi [2012] 2 CLJ 1096.
Adding on the analysis surrounding Section 51 of the CPC, the court or a police officer during investigations may consider the production of a mobile phone and its contents necessary as part of the investigations, and under Section 51 of the CPC, the court may issue a summons or the police may obtain an order requiring the person possessing the mobile phone to produce the aforesaid mobile phone. This is another instance where the police may check someone’s mobile phone. However, this would be subject to the written order or summons under Section 51 of the CPC.
The analysis above applies to Section 54 of the CPC as well, where the court can issue a search warrant where they either believe a person would not produce a document under a Section 51 of the CPC summons, or where they believe the search would be in the purposes of justice. There are procedural guidelines for such warrants, including the creation of a search list. In that instance, if a search warrant is produced, one has to comply with the warrant.
c. When can the police check your phone – When you are under arrest
In brief, persons arrested under Section 15 of the CPC, can have their mobile phones searched, as persons arrested can be searched under Section 20 of the CPC, and Section 116B of the CPC, as discussed above, applies to the computerized data and mobile phones under such searches.
In this instance, only a police officer ranked Inspector or above may proceed with the search of such mobile phones.
The law on arrest is an entirely different discussion beyond this article’s scope, but for ease of reference, under Section 23(1) of the CPC, there are circumstances outlined where a police officer may arrest without warrant, which includes a case where they have a reasonable complaint, a reasonable suspicion, or credible information that a seizable offence has occurred wherein the arrested person is involved. Whilst they are arrested, their mobile phones can be searched under Section 20 of the CPC, in line with Section 116B of the CPC.
2. What is the consequence if a person does not hand the phone over?
In the instance where a person does not hand the phone over, they may be liable to the following offences which covers:
a.“Voluntarily obstructing a public servant in the discharge of their public functions” under Section 186 of the Penal Code. The punishment for committing a Section 186 offence is imprisonment for a term which may extend to two years or with a fine which may extend to RM10,000 or with both;
b. “Omission to assist public servant when bound by law to give assistance” under Section 187 of the Penal Code. The punishment for committing a Section 187 offence is imprisonment for a term which may extend to six months or with a fine which may extend to RM 1,000 or with both; and
c. “Disobedience to an order duly promulgated by a public servant” under Section 188 of the Penal Code. The punishment for committing a Section 188 offence is imprisonment for a term which may extend to six months or with a fine which may extend to RM 2,000 or with both.
In terms of Section 186, the seminal case of Tan Teck Yam v. PP [1967] 1 LNS 186 clarifies that this offence has 3 ingredients, which includes (1) obstructing a public servant (2) at the time, the public servant was discharging his public function and (3) that the person obstructing did so voluntarily. Raja Azlan Shah J (as he then was) had noted that obstruction meant “making it more difficult for the officer to carry out their duties”.
The point on obstruction has been further clarified by more recent case law, which is the case of PP v. Ravichanthiran Ganesan [2022] 1 CLJ 804, where such obstruction is “actual obstruction”. In essence, criminal force or actual physical obstruction of a police officer’s duty must occur. On the facts of that case, there was investigation of a forged email, where the police officer was recording the accused’s Section 112 of the CPC’s witness statement. The police officer requested for his email password, and the accused refused to hand the information over, citing that it contained confidential and privileged information.
The High Court upheld the Magistrate’s decision that no prima facie case was made out, wherein the accused did not commit an offence under Section 186 of the Penal Code, as the accused was well within his right to refuse to answer the police officer’s question as to the email password, and such refusal was not tantamount to criminal force. Applying this analysis to the confiscation of mobile phones for inspections, if someone refuses to hand their mobile phone over to a police officer, in the course of recording a witness statement under Section 112 of the CPC, without using any physical force, they would not be liable under Section 186 of the Penal Code, as they did not voluntarily obstruct a police officer in the discharge of their duties.
In an instance where someone has handed over the mobile phone, but does not provide a password, this may be sufficient to trigger the “obstruction” point as defined by Raja Azlan Shah J, because it would be more difficult for an officer to carry out their duties, even if it does not amount to criminal force. Thus, a person may argue that they are not necessarily liable for a breach of Section 186 of the Penal Code. However, the police may note that Section 116B(3) of the CPC applies to such searches, wherein “access” includes the provision of the necessary passwords to the police. To that end, to fully comply with Section 116B, when a mobile phone is passed to the police for searches, its password has to be provided as well, or at least means to enable comprehension of the computerized data (i.e. an unlocked phone).
There has been no case law testing Section 187 of the Penal Code, but if someone is obligated to assist an investigation by way of Section 51 of the CPC (i.e. by providing a mobile phone for investigation purposes), and they refuse, they may be liable under the aforesaid Section of the Penal Code, as alongside Section 188 of the Penal Code, which is discussed beneath. It is possible that Section 187 of the Penal Code may extend to the non-provision of handphones in the search in the course of an investigation but that point of law has not been tested in Malaysia thus far.
In terms of Section 188 of the Penal Code, this applies to court orders, as illustrated by PP v. Kohila Yanasekaran & yang lain [2015] 1 SMC 31. Such orders includes orders under Section 51 of the CPC, and for ease of reference, we reiterate the discussion above for Section 187 of the Penal Code.
In a general context, if someone does not hand over a mobile phone to a police officer for the purposes of a search, where:
- they are not under arrest;
- there is no reasonable suspicion of their involvement in a seizable offence; or
- there is no search warrant or ongoing investigation,
there would be no offence.
There are additional offences related to investigations, such as:
- Section 201 of the Penal Code (causing disappearance of evidence or giving false information);
- Section 202 of the Penal Code (intentional omission to give information of an offence);
- Section 203 of the Penal Code (giving false information respecting an offence committed)
which are ancillary offences that may occur where the mobile phone is not passed over to the police in the course of investigation.
If the investigations involve an offence under the CMA, Section 253(b) of the CMA applies, where the obstruction of the execution of any duty imposed on an authorized officer (i.e. a public officer) may expose one to a fine not exceeding RM 1 million or to imprisonment for a term not exceeding 10 years or to both. In this case, there would be a high cost for the refusal to hand over a mobile phone for investigations
Conclusion – Do’s and Don’ts
The above-mentioned information should instill confidence in dealing with the police, wherein such searches of mobile phones are not meant to be abused.As outlined above, such searches are limited by law to circumstances where either an investigation is ongoing, an arrest is made, or where a seizable offence has occurred or is about to occur.
To that end, if a police officer asks to search your phone, and you are unsure if you are arrested, you may request for a lawyer’s advice, so as to clarify the next steps to take.
The following do’s and don’ts would assist you in the search process.
Do’s
- Request to see the police officer’s authority card/kad kuasa;
- Take note of the police officer’s name, rank and service ID number;
- Take note of the relevant police vehicle registration’s number;
- Ask for reasons as to why they want to check your phone;
- Ask if you are being investigated or suspected of committing any crimes; and
- Contact a lawyer for legal advice if you are unsure of what to do.
Don’ts
- Panic. A search does not mean you committed a crime, but it is merely part of the investigative process if a crime is committed;
- Attempt to escalate the scenario; or
- Attempt to flee from the police officer, as it may lead to further complications.
Edwin Tan is a columnist covering business and economic news in Malaysia, providing insights on market trends, corporate developments, and financial policies. More about Edwin Tan
