The Malaysian court retains jurisdiction over acts committed within its territory, regardless of the status of a passport.

Introduction

[1] This is an appeal from the Sessions Court, Alor Setar. Where the Sessions Court Judge (SCJ) had on 1 July 2014 convicted the appellant of the offence under s 26A of the Anti-Trafficking In Person And Anti-Smuggling of Migrants Act 2007 (ATIPSOM) and sentenced the appellant to eight years imprisonment.

[2] The appellant was not satisfied with the whole of the SCJ's decision and filed this appeal. The appeal came before me. I considered the oral submissions and written submissions from both sides. On 27 October 2015, I disallowed the appellant's appeal and affirmed the SCJ's decision. The appellant was not satisfied with my decision and subsequently filed an appeal to the Court of Appeal. This judgment serves as my reasons for the decision in dismissing the appellant's appeal.

The Charge

[3] The charge reads as follows:

BAHAWA kamu, pada 23 January 2012 jam lebih kurang 2.00 petang, di Laluan Kereta Keluar, Kompleks Imigresen, Kastam dan Kuarantin Bukit Kayu Hitam dalam Daerah Kubang Pasu di dalam Negeri Kedah Darul Aman, telah menjalankan penyeludupan migran berikut:

1. U KHAING KYAW (LELAKI - 30 THN) W/N : MYANMAR

2. SEIN MYINT (LELAKI - 30 THN) W/N : MYANMAR

3. SET TUN (LELAKI - 30 THN) W/N : MYANMAR

4. NAI ZAW (LELAKI - 30 THN) W/N : MYANMAR

Dengan menggunakan sebuah motorkar jenis Iswara Aeroback 1.3S berwarna hijau No Pendaftaran KBF 7396. Dengan itu, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 26A Antipemerdagangan Orang dan Antipenyeludupan Migran 2007 dan boleh di hukum di bawah Seskyen dan Akta yang sama.

The Offence Section

[4] Section 26A of ATIPSOM reads as follows:

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 both.

The Prosecution's Case

[5] The prosecution called two witnesses during the trial at the Sessions Court. The first witness (SP1) was the Ketua Siasatan officer from the Immigration Department, Alor Setar. The second witness (SP2) was the Pegawai Imigresen Tinggi from Immigration Department, Bukit Kayu Hitam.

[6] SP1 recounted the events leading to the arrest of the appellant. He told the Court that on 23 January 2012, he was on duty and stationed at the inspection checkpoint where vehicles were exiting the Immigration Complex at Bukit Kayu Hitam. He was charged to lead the inspection on random vehicles leaving the immigration complex heading to Thailand. The immigration officers on duty with him that day were Nor Azhar, Isa and Shahrizat, SP1 told the Court.

[7] SP1 stopped a green Iswara Aeroback bearing registration number KBF 7396 on that day. He requested the driver, who was the appellant, to produce his national registration identity card, which the appellant did. SP1 also requested the appellant to alight from his vehicle for an inspection of his car boot. SP1 instructed officer Shahrizat to conduct the inspection. When the car boot was opened, SP1 asked officer Shahrizat "Is anyone there?" He nodded his head. SP1 immediately seized the car keys and instructed officer Azhar to hand-cuff the appellant.

[8] SP1 and his officers found three persons in the car boot. They were believed to be foreigners. SP1 and his officers believed these persons in the car boot were being smuggled out from the country to the neighbouring country Thailand. SP1 also found another person seated at the front seat, ie next to the driver. He described this person as a bald man with no moustache or beard, and wearing a pair of spectacles. Upon checking with these four person