Accused operators found guilty under ATIPSOM 2007 for transporting smuggled migrants, highlighting the necessity of proving common intention and knowledge of unlawful status.

JUDGMENT

Alwi Abdul Wahab J:

Introduction

[1] Both the 1st and 2nd accused persons were charged in furtherance of common intention as the operators of Toyota Hillux registration No QRD 8533 ("Toyota Hillux") which involved in the transportation of smuggling migrants, an offence punishable under s 26J of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 ("ATIPSOM 2007"), read together with s 34 of the Penal Code.

[2] The charge reads as follows:

"That you, jointly, on the 21st of July 2019, at about 1730 hours, at Jalan John, Batu Kaya, in the district of Lubok Antu, in the state of Sarawak, in furtherance of common intention, as the operators of the vehicle Toyota Hillux Double Cab with the registration number QRD 8533, that involved in the transportation of smuggling the following migrants;

(i) Salbiah (Female, Age: 32 years old), Indonesian (Passport No.-);

(ii) Karwono (Male, 26 years old), Indonesian (Passport No.-); and,

(iii) Nani Setiawati (Female, 15 years old), Indonesian (Passport No.-);

and that you have thereby committed an offence punishable under s 26J Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 , read together with s 34 of the Penal Code.

[3] Both the accused pleaded not guilty to the charge and claimed trial. The prosecution called upon 4 witnesses to prove its case as follows:

(i) Unya Anak Ngali - PW1

(ii) Mohamad Hasbullah Bin Ramli - PW2

(iii) Ahmad Riduan Bin Abdullah - PW3

(iv) Insp Sudiman Bin Sakuot - PW4

The Prosecution's Case

[4] On 21 July 2019, at about 1730 hours, while manning a roadblock at Jalan John, Batu Kaya, Lubok Antu, PW2 ie the complainant together with his team had stopped and conducted a search towards a vehicle Toyota Hillux travelling on the said road. It was found inside the said vehicle, the 1st and 2nd accused who were conveying three smuggled migrants from Indonesia namely: Salbiah, Karwono and Nani Setiawati.

[5] The three migrants walked on foot from the Indonesian border entering into Malaysian border through Lubok Antu, Sarawak via the illegal and ungazetted route ("jalan tikus") and met up with both the accused at an oil palm estate allegedly owned by the 2nd accused. Based on the depositions taken from the migrants, the reason why they entered Sarawak was to search for an employment opportunity offered by the 2nd accused in the said oil palm estate. Hence, they met the 2nd accused there to view the said oil palm estate. Later in the day, both the accused conveyed them in the Toyota Hillux belonged to PW1 and all of them were arrested at an illegal route at Jalan John, Batu Kaya, Lubok Antu when they were about to exit from Malaysia to Indonesia. The said route is only about 400-500 meters from the Malaysian-Indonesian border.

[6] PW1 is the brother-in-law of the 1st accused and the son-in-law of the 2nd accused. The 2nd accused is the mother of the 1st accused.

The Elements To Be Proven By The Prosecution

[7] There are two essential elements to be proven by the prosecution namely:

(i) that both the accused being the operator of Toyota Hillux with registration No QRD 8533; and,

(ii) that both the accused in furtherance of common intention engaged in the conveyance of smuggled migrants namely Salbiah, Karwono and Nani Setiawati by using the said vehicle.

Both the accused being the operator of Toyota Hillux with registration No QRD 8533.

[8] For the first element, PW1 has given evidence that the said Toyota Hillux is registered under his name. He was able to identify the said vehicle through the photographs Exh. P2 (1-3) and he was also able to furnish evidence of ownership in the form of the vehicle registration card Exh. P1. PW1 had elucidated evidence that on the day in question ie 21 July 2019, the 1st accused came to see him to borrow PW1's Toyota Hillux to be used and driven by the 1st accused to the oil palm estate. The 1st accused came with his own car brand ATOS registration No QKU 1703 and left it with PW1 in exchange for Toyota Hillux. It was PW