问:
警察是否有权利检查个人手机的内容呢?”
答:
- 一般上，警察是不会无故查阅一个人的手机内容。
- 1998年通讯与多媒体法令 247 条文，指明警察在拥有搜查令的情况下，是有权查阅个人手机。
- 唯在248条文说明，警长 (Inspector) 或者阶级比较高的警察，在有理由认为延迟获得搜查令可能导致犯罪证据被篡改，移走或损坏的情形下，可以在没有搜查令的情况下进行247条文下所提及的搜查。
- 那么，民众是否有权拒绝跟从警察的要求呢？
- 小编建议你可以先询问为何警察要查阅你的手机，以什么理由怀疑你。为了不必要的麻烦，民众最好做个好市民，先给予警察充分的配合，同时保留事后对警方合理的追究和起诉的权力。给予合作，并不代表你放弃了个人隐私的权力。若警方事后发现手机并没有藏有任何违禁内容，你可以起诉警方，再由法官审判，该名警方是否由足够的怀疑理由和权力，来查阅你的手机内容。
- 建议民众拿出手机，依照警察的指示，向警察展示他们要看的内容，而不是将整个手机交给警方。
- 如果民众被警察发现手机藏有色情图片或视频，警方可以引用刑事法典292(a) 条文调查并提控你。
- 收藏色情照片或色情刊物包括网络色情内容，一律被视为抵触法令第292(a) 条文。一旦罪成，你将会面对不超过3年的监禁，或者罚款，或者两者兼施。
- 但是，你不能以警察侵犯了你的隐私权为由来抗辩。
- 若民众事后对于警方搜查方式不满，可以采取法律途径起诉警方。
- 所以，不要把色情或者犯法的内容收藏在手机，你就不需要一直问这个问题。
- 如果你觉得你的手机藏不能没有色情或者犯法内容，你也觉得警察会为难你，建议你被截停时，第一时间先把整个apps删除。
- 内政部副部长拿督阿兹斯查曼在18.11.2019指出，警察是有权检查个人手机，以确保没有任何形式的淫秽、冒犯性或威胁人民和国家安全的讯息。请阅读星洲日报报导：确保无淫秽冒犯内容‧警有权查个人手机
刑事法典292(a) 条文的例子:
手机藏色情照片 (10.11.2018): http://bit.ly/2SKuS70
用手提电脑制作属于受害者的裸照 (02.02.2018)：http://bit.ly/2tO57bM
青年涉嫌传播前女友裸照 (18.05.2017): http://bit.ly/2HhoeD1
拍男游客洗澡 (02.02.2017): http://bit.ly/2XE2QO5
“拿督T三人帮”邀请媒体到国家迎宾馆观看疑是安华的性爱影片 (24.06.2011)：http://bit.ly/2Uk7O0H
录制色情光碟 (06.01.2008): http://bit.ly/2H09o4Q
手机藏有色情图片，孟国男被关一年（22.03.2019）http://www.chinapress.com.my/?p=1544501&fbclid=IwAR1i9Q6FffzK2G_1Eexf552bhyIOXeE5_BLYqc9jeZ-Neva5pycSGEuJT4k
Criminal Procedure Code
116.Search by police officer
(1) Whenever a police officer making a police investigation considers that the production of any document or other thing is necessary to the conduct of an investigation into any offence which he is authorized to investigate and there is reason to believe that the person to whom a summons or order under section 51 has been or might be issued will not or would not produce the document or other thing as directed in the summons or order or when the document or other thing is not known to be in the possession of any person, the officer may search or cause search to be made for the same in any place.
(2) That officer shall, if practicable, conduct the search in person.
(3) If he is unable to conduct the search in person and there is no other person competent to make the search present at the time, he may require any officer subordinate to him to make the search, and he shall deliver to the subordinate officer an order in writing specifying the document or other thing for which search is to be made and the place to be searched, and the subordinate officer may then search for the thing in that place.
(4) The provisions of this Code as to search warrants shall, so far as may be, apply to a search made under this section.
Penal Code
292.Sale, etc., of obscene books, etc.
Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting representation or figure or any other obscene object or document whatsoever;
(b) imports, exports or conveys any obscene object or document for any of the purposes aforesaid, or knowing or having reason to believe that such object or document will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation;
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects or document are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation;
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object or document can be procured from or through any person; or
(e) offers, or attempts to do any act which is an offence under this section,
shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.
Exception—This section does not extend to any book, pamphlet, writing, drawing, or painting kept or used bona fide for religious purposes or any representation sculptured, engraved, painted or otherwise represented on or in any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.
Communication and Multimedia Act 1998
243.Compounding of offences
(1) The Chairman of the Commission may, with the consent in writing of the Public Prosecutor, compound any offence committed by any person under this Act or its subsidiary legislation and determined by the Minister to be a compoundable offence by regulations made under this Act by making a written offer to the person suspected to have committed the offence to compound the offence upon payment to the Chairman of an amount of money not exceeding fifty per cent of the amount of maximum fine for that offence within the time specified in the offer.
(2) An offer under subsection (1) may be made at any time after the offence has been committed, but before any prosecution for it has been instituted, and if the amount specified in the offer is not paid within the time specified in the offer or within such extended period as the Chairman may grant, prosecution for the offence may be instituted at any time after that against the person to whom the offer was made.
(3) If an offence has been compounded under subsection (1), no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made and any thing seized in connection with the offence may be released or forfeited by the Chairman, subject to such terms and conditions as he thinks fit.
(4) All sums of money received by the Chairman under this section shall be paid into and form part of the Federal Consolidated Fund.
247.Search by warrant
(1) If it appears to a Magistrate, upon written information on oath and after such inquiry as he considers necessary, that there is reasonable cause to believe that an offence under this Act or its subsidiary legislation is being or has been committed on any premises, or that any evidence or thing which is necessary to the conduct of an investigation into an offence may be found in any premises, the Magistrate may issue a warrant authorizing any police officer not below the rank of Inspector, or any authorized officer named in it, to enter the premises at any reasonable time by day or by night, with or without assistance and if need be by force, and there to search for and seize any such evidence or thing.
(2) Without affecting the generality of subsection (1), the warrant issued by the Magistrate may authorize the search and seizure of—
(a) copies of any books, accounts or other documents, including computerized data, which contain or are reasonably suspected to contain information as to any offence so suspected to have been committed;
(b) any signboard, card, letter, pamphlet, leaflet or notice representing or implying that the person has a licence granted or assignment issued under this Act; or
(c) any other document, facility, apparatus, equipment, device or matter that is reasonably believed to furnish evidence of the commission of the offence.
(3) A police officer or an authorized officer conducting a search under subsection (1) may, for the purpose of investigating into the offence, search any person who is in or on the premises.
(4) A police officer or an authorized officer making a search of a person under subsection (3) may seize, or take possession of, and place in safe custody all things, other than the necessary clothing, found upon the person, and any other things, for which there is reason to believe that they are the instruments or other evidence of the crime, and they may be detained until the discharge or acquittal of the person.
(5) Whenever it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.
(6) If, by reason of its nature, size or amount, it is not practicable to remove any book, accounts, document, computerized data, signboard, card, letter, pamphlet, leaflet, notice, facility, apparatus, equipment, device, thing or matter seized under this section, the seizing officer shall, by any means, seal such book, accounts, document, computerized data, signboard, card, letter, pamphlet, leaflet, notice, facility, apparatus, equipment, device, thing or matter in the premises or container in which it is found.
(7) A person who, without lawful authority, breaks, tampers with or damages the seal referred to in subsection (6) or removes any book, accounts, document, computerized data, signboard, card, letter, pamphlet, leaflet, notice, facility, apparatus, equipment, device, thing or matter under seal or attempts to do so commits an offence.
(8) If a search under this section indicates that there is any interference-causing equipment, radio apparatus or radio-sensitive equipment, the authorized officer may direct that necessary steps be taken to ensure an interference-free environment.
248.Search and seizure without warrant
If a police officer not below the rank of Inspector in any of the circumstances referred to in section 247 has reasonable cause to believe that by reason of delay in obtaining a search warrant under that section the investigation would be adversely affected or evidence of the commission of an offence is likely to be tampered with, removed, damaged or destroyed, the officer may enter the premises and exercise in, upon and in respect of the premises all the powers referred to in section 247 in as full and ample a manner as if he were authorized to do so by a warrant issued under that section.
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