Prosecution must establish a prima facie case with credible evidence for each element of smuggling; failure leads to acquittal.

JUDGMENT

Leonard David Shim JC:

[1] Jasnih Bin OT Ali @; Mohd Alli (hereinafter referred to as "the accused") was charged under s 26A of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 ("Act 670"). The original charge (Exh P2) are as follows:

"Bahawa kamu, antara Februari 2017 sehingga 24 Oktober 2018 jam lebih kurang 1715 Hrs bertempat di Lapangan Terbang Antarabangsa Kota Kinabalu ("LTAKK") Sabah, di dalam Daerah Kota Kinabalu, di dalam Negeri Sabah, didapati telah menjalankan penyeludupan migrant iaitu sepertimana Lampiran A dan oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 26A Akta Antipemerdagangan Orang dan Antipenyeludupan Migran 2007 ["Akta 670"]."

Lampiran A reads:

Sentence: Be liable to imprisonment for a term not exceeding fifteen years and shall also be liable to fine, or to both".

[2] During the trial, the following witnesses were called to narrate the prosecution's case against the accused. The witnesses called are as follows:

PW1: ASP Bennard Anak Stephen Sambau (Raiding Officer)

PW2: Haslinda Bt Hassan (the Accused's Wife)

PW3: Neil MC Desuil (Civilian)

PW4: Mohd Redzuanzain bin Talip (Immigration Officer)

PW5: ASP Felix Felicianus (ID Parade Officer)

PW6: ASP Janeve Sindih (Investigation Officer - Principal)

PW7: Rozilah Binti Kadi (Immigration Officer)

PW8: ASP Yau Wai Peng (Investigation Officer - Secondary)

PW9: Inps Yunos Bin Singa (Malaysia Airport Sendirian Berhad (MASB)'s Auxilliary Police)

PW10: Naley Gadius (MASB's Admin Satff)

PW11: ASP Cisco Anak Garing (Accused's Statement's Recording Officer)

PW12: Insp Mohd Shafiq bin Kassim (Migrant's Statement's Recording Officer)]; and

PW13: Insp Pravin A/L Manisegar (Migrant's Statement's Recording Officer)

[3] At the end of Prosecution's case, Exh P2 was amended by two (2) amended charges in Exh P112 (1-2) and Exh P114 (1-2) pursuant to s 158 of the Criminal Procedure Code ("Act 593") whereby they read as follows:

Exh P112 (1-2):

"That you, on the 4th day of February 2017 between 1000 Hrs till 1430 Hrs, located at Domestic Departure Hall "A", Level 3, Kota Kinabalu International Airport ("KKIA"), in the District of Kota Kinabalu, in the State of Sabah, did carry out smuggling of migrant of one JAMILAH BINTI HAJI FAISAL @; JAMIRAH BINTI HAJI FAISAL (FEMALE)(50 YEAR OLD)(PHILIPPINES/UNDOCUMENTED), and that you thereby committed an offence punishable with under s 26A of the Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007 ("Act 670") of the Laws of Malaysia".

Exh P114 (1-2):

"That you, on the 18th day of January 2018 between 1201 Hrs till 2054 Hrs, located at Domestic Departure Hall, Level 3, Kota Kinabalu International Airport ("KKIA"), in the District of Kota Kinabalu, in the State of Sabah, did carry out smuggling of migrant of one FAHAD BIN JAILANI (MALE)(20 YEAR OLD)(PHILIPPINES/UNDOCUMENTED) and that you thereby committed an offence punishable with under s 26A of the Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007 ("Act 670") of the Laws of Malaysia".

The Law

[4] Section 26A of Act 670 reads:

"Offence of smuggling of migrants.

Any person who carries out smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding fifteen years, and shall also be liable to fine, or to both."

[5] Section 2 of Act 670, defines smuggling of migrants as follows:

""smuggling of migrants" means:

(a) arranging, facilitating or organizing, directly or indirectly, a person's unlawful entry into or through, or unlawful exit from, any country of which the person is not a citizen or permanent resident either knowing or having reason to believe that the person's entry or exit is unlawful; and

(b) recruiting, conveying, transferring, concealing, harbouring or providing any other assistance or service for the purpose of carrying out the acts referred to in paragraph (a);"

[6] Section 2 of Act 670, also defines smuggled migrant as follows:

""smuggled migrant"