LETTER | I partly agree with former inspector-general of police Musa Hassan that there are no laws prohibiting the public from recording police raids.

It should be added that there are no laws prohibiting the public from recording police raids while in public places.

Musa was commenting on the arrest of three individuals for recording a police raid on a music gig at a record store in Georgetown, Penang on Jan 28.

A co-owner of the store was also held for more than 12 hours for not possessing an entertainment licence following the raid.

If the store was operating without an entertainment licence, then it has committed an offence under section 6(1) of Penang’s Entertainment and Places of Entertainment Enactment 1998 (En 1/1998).

The offence carries a punishment, upon conviction, of a fine not exceeding RM20,000 or to imprisonment not exceeding three years, or both, for a first offence.

It is also mindful to note that Part IV of the Enactment provides for powers of investigation, arrest, seizure, and forfeiture.

Under section 18, any police officer not below the rank of inspector may, without warrant and for the purpose of ascertaining whether the conditions or restrictions of a licence or the provisions of the Enactment or any regulations are being complied with:

(a) enter any place of entertainment; and

(b) carry out any investigation at such place of entertainment.

For the purpose of an investigation under the section, the police officer may:

(a) inspect the place of entertainment; and

(b) require any person to produce such articles, books, accounts, tickets, or other documents or things or to furnish such information as that police officer or authorised person may consider necessary.

Under section 22, the police officer is also empowered to enter a place and may search such place and any person whom he reasonably believes to be concerned in the management or promotion of any entertainment if he has reasonable ground to believe that:

(a) an offence under the Enactment or any regulations has or is being committed at any place; and

(b) by reason of any delay in obtaining a search warrant the purpose of the search is likely to be frustrated.

The above is what is known as the power to search without warrant.

The power of investigation is further aided by the power to arrest. Section 21 empowers the police officer to arrest without warrant any person whom he reasonably believes to have committed an offence under section 6, among others.

Any person arrested under the section “shall be taken to the nearest police station and shall be brought before the court within 24 hours of the arrest.”

Pursuant to sections 18 and 22, the police are empowered to seize any document or thing which they reasonably believes to have a bearing on, or can furnish evidence of, the commission of an offence under the enactment or any regulations.

So it looks like the police raid on the music store resulting in the arrest of the four individuals is in accordance with the enactment.

https://www.malaysiakini.com/news/653977

As for the detained trio for alleged filming of the raid, let’s first be mindful that the store couldn’t be said to be a public place. Secondly, it was a crime scene.

Let’s look at section 20 of the enactment on obstruction. It states as follow:

Any person who-

(a) obstructs any police officer or authorised person who is lawfully exercising any powers conferred on him by or under this Enactment or any regulations;

(b) upon being required by such police officer or authorised person to produce any articles, books, accounts, tickets, or other documents or things which are or ought to be in the ordinary course of business in his power to produce, delays in producing them to such police officer or authorised person;

(c) upon being required by such police officer or authorised person to furnish any information, refuses to furnish such information or furnishes false or misleading information; or

(d) obstructs the seizure of any document or other thing under Section 23, or the closure of any place of entertainment under Section 19, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding RM10,000 or to imprisonment not exceeding three years, or both.

Obstruction is therefore an offence under the enactment. It is also an offence under Section 186 of the Penal Code.

In the case of Tan Teck Yam v PP [1968] 1 MLJ 57, Raja Azlan Shah J (as HRH then was) explained the offence under section 186 as follow:

“For an offence under [the section] the prosecution has to prove the following: (1) that there was obstructing of a public servant, (2) that the public servant was at that time discharging his public function, and (3) that the person obstructing did so voluntarily.

“It is in my view clear that to obstruct under Section 186 of the Penal Code is to do an act which makes it more difficult for a public servant to carry out his duties. I take that definition of ‘obstruction’ from the [English] case of Hinchliffe v Sheldon.”

As a matter of fact, more than twenty years earlier in 1940, the word “obstruction” had been decided to mean “some interruption or hindrance to the progress of work being carried out by a public servant in the discharge of his public duties, and such public servant may be directly or indirectly obstructed.” (see PP v Bahadar Khan [1940] 1 MLJ 180)

Based on the above, it is a question of fact whether an act or acts amount to an obstruction. To borrow the words of Justice James in the English case of Rice v Connolly [1966], there may be circumstances in which the manner of a person together with his handphone recording the police conducting a raid could amount to an obstruction.

Whether they do is a question of fact and remains to be decided.

I, however, wholeheartedly agree with Musa that the police should clarify the raid and any related arrests made to counter any negative public perception.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.