Cops can’t simply check your phones, says ex-IGP

Former IGP Musa Hassan says the police cannot stop ‘any Tom, Dick and Harry’ and ask to check their phones.

PETALING JAYA: Former top cop Musa Hassan has downplayed the likelihood of the police conducting random checks on mobile phones, following a deputy minister’s remark in the Dewan Rakyat that they are allowed to conduct inspections under the Communications and Multimedia Act (CMA) 1998.

He told FMT that the police can only check phones if the request is linked to an investigation.

“It has to be that there is a police report lodged against a person, and they are investigating that person, or the police suspect someone of being involved in a crime and are investigating him,” he said, adding that they could not stop “any Tom, Dick or Harry” and ask to see their phones.

Deputy Home Minister Azis Jamman had said that police personnel are allowed to inspect mobile phones under Section 233 of the CMA to ensure that there is no obscene or offensive content, or content that is a threat to the people and security of the country.

But Musa said even tapping a person’s phone would require permission from a deputy public prosecutor, which could only be done within the confines of an investigation.

He said many people store personal data such as bank account numbers on their phones, which is protected under the Personal Data Protection Act 2010.

“No person should have access to this data as it is protected by the law,” he said.

Lawyer Foong Cheng Leong acknowledged that the CMA allows for searches without warrants, but said this can only be done by an officer above the rank of inspector.

He said a search without a warrant could be done if the officer had reasonable cause to believe that a delay in obtaining a search warrant would adversely affect the investigation or that evidence would be tampered with, removed, damaged or destroyed.

In such cases, he said, the police could have the phone taken away and inspected later, and refusal to cooperate could see a person being charged with obstruction.

“A person found guilty is liable to a fine not exceeding RM20,000, imprisonment for a term not exceeding six months or both.”

But he, too, said the power to confiscate or check a person’s phone must be tied to an investigation, and that the police cannot randomly ask for an individual’s phone and check it.

Suhakam commissioner Jerald Joseph said the police could ask for or even take a phone, but only if it is linked to a relevant investigation.

“Say you are accused of punching someone, then your phone would not be relevant to the case.

“If the police call you and ask for your phone, you should ask their grounds for doing so and what law you are being investigated under,” he said, adding it was also best to call a lawyer.

Ideally, he said, the person should be allowed to be present when his or her phone is taken, unless they are arrested at the time and have had their phones confiscated.

Jerald also said it would be better if court orders are made mandatory for the inspection of phones but acknowledged that this might take too long.

“So there has to be a strong reason in the police’s internal procedure for a phone to be checked.”

Suara Rakyat Malaysia executive director Sevan Doraisamy spoke of concerns over privacy as there would be no limit to what the authorities can access, including private photos or messages which may not be linked to a police investigation.

He also called for a review of the law’s provision.

“The refusal to reveal the contents of a phone should be treated as the right to maintain silence when being questioned by the authorities,” he said.