The Accused was found guilty of smuggling migrants under Section 26A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 despite prosecution shortcomings, as his actions contributed to the illegal entry.

JUDGMENT

Christopher Chin Soo Yin JC:

The Charge

[1] Suhaini bin Toni (hereinafter referred to as "the Accused") was charged under s 26A of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (hereinafter referred to as "ATIPSOM").

[2] The charge reads as follows:

"That you on 4 May 2019 at about 2000hrs at the Departure Hall, Gate 9, Kuching International Airport, in the district of Kuching in the State of Sarawak had carried out smuggling of migrants towards:

1) Sumon Khan/M/BGD/32 yrs/BX0676546

2) Atikur Rahman/M/BGD/22 yrs/BY0239882

3) Mohammad Faruk Hossain/M/BGD/29yrs/BN 0261808

and therefore you have committed an offence under s 26A of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 and shall, on conviction, be punished under the same Section and the same Act. Sentence: Be liable to imprisonment for a term not exceeding fifteen years and shall also be liable to fine, or to both".

[3] On the 9 March 2021 I ruled that the Prosecution had made out a prima facie case against the Accused and call upon him to enter upon his defence. The Accused chose, on the 5 May 2021, to give evidence under oath. My ruling on the prima facie case under s 180 of the Criminal Procedure Code on the 9 March 2021 is as follows:

"I have studied in some detail the Charge framed against the Accused, the broad wording of s 26A of ATIPSOM 2007 as well as the definition of "smuggling of migrants".

I then reviewed the evidence before me. In such review I have considered:

(a) the unreliability of the evidence relating to the Accused's handphone;

(b) the cancellation of the Accused's handphone number by the service provider well before the date of the incident;

(c) the failure to attach "Gambar 1" to the tendered Deposition of the 3 migrants. By Gambar 1, the 3 migrants identified the Accused; and

(d) Gambar 1 was also not tendered in Court.

I then took into account the residue of the Prosecution's evidence principally relating to the CCTV footage at the Kuching International Airport, the testimonies of the Migrants, the Accused's statement and P3 - Statement Form by the Accused.

I applied the well-established test of maximum evaluation of all the evidence adduced by the prosecution. Further that a prima facie case is one that is sufficient for the Accused to answer, and the evidence adduced must be such that it can only be surmounted by evidence in rebuttal.

I see that Section 26A of ATIPSOM 2007 and the definition of "smuggling of migrants" therein is a net cast very wide and far. Hence despite the obvious and somewhat surprising shortcomings in the Prosecution's case I am of the view that the residual evidence is sufficient to convict the Accused unless such residual evidence is rebutted by the Accused."

[4] For ease of reference the three Bangladeshi migrants are referred to as "the Migrants".

Anti-Trafficking In Persons and Anti-Smuggling Of Migrants Act 2007 (ATIPSOM)

[5] The Accused is charged under s 26A of ATIPSOM which provides:

Offence of smuggling of migrants

26A. 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.

[6] The definition of "smuggling of migrants" can be found in s 2 of ATIPSOM 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);

[7] It can immediately be seen that the Legislature has stipulated a very broad definition of "smuggling of migrants" which was drafted to cast a wide net to snare anyone howsoever inv