Most times, when we want to prove something or use something as evidence, the first thing we would do is to take out our phones and start recording or snapping pictures. Obviously, this would be the easiest way to obtain evidence to back up our claims. If you feel you might be in trouble or danger, you might also want to record the incident so you can make a report later.
For quite some time, we have received questions asking if it’s illegal to record a policeman if he stops you at a highway or a roadblock. We’ve also been asked whether a PDRM officer is allowed to demand for you to stop recording them. But before we get to the crux of the issue, it might be useful for you to know that…
There’s no law that prevents you from recording someone in public
There are actually no laws in Malaysia that prevent anyone from taking pictures or video recordings of another person in public. Obviously, you cannot take pictures of people that are obscene or ones that may damage their reputation. But besides that, the law is silent as to whether one can record another in public. Since there is no prohibition, in other words, you can record someone as long as you are within your limits.
Section 509 of the Penal Code states:
The police aren’t exempted from this
While the police are seen as a higher authority, there is also no law that prevents you from recording them. So if you are stopped at a roadblock or anywhere else by them and you feel it’s not justifiable, you are allowed to record the whole exchange between you and the police officer. However, this is subject to three conditions:
If the police officer is conducting an investigation or is in the middle of something crucial, you should not record them if it can temper with the whole investigation. If your recording may distract or disrupt the officer from performing his duties, he has the right to ask you to stop recording.
So for example, if you are stopped late at night by an officer and he wants to check your car, you cannot prevent him from doing so and the act of recording the officer shouldn’t get in the way of the inspection. If you do disrupt the police officer from discharging his duties, he has the right to stop you from recording.
Instead of just taking out your phone and recording the police officer immediately, it’s best to let him know that you will be recording the conversation between him and you. This is more of something done out of courtesy. You don’t need to expressly get their permission, but it’s always best to be polite.
Most of these recordings of police officers do end up on social media and that’s how we come to know about them in the first place. You may want to share your recording on your social media accounts, too. But if you do decide to share it, it’s best to do so just as it is without any comments. Adding any other commentary and inferences might just land you in trouble and you may be said to have defamed the police. So if you share, make sure to share the facts of what happened only.
So let’s say you did get pulled over and felt it was unwarranted, and so you recorded whole incident, you might now ask...
Can the recording be used as evidence in court?
Let’s say, in that scenario, the officer asked you to pay a bribe or wrongly accused you of something. In instances like this, you may want to report the matter to the higher authorities. Obviously, you will need some sort of evidence to have a strong case against the cop in question.
So the question is, if you had recorded the police officer asking for a bribe, can this be used in court? To answer this question, we look at the Evidence Act 1950.
Section 3 of the Act states that anything that is a “document” can be used as evidence in court.