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2021 MarsdenLR 2546
HIGH COURT MALAYA KLANG
KETHEESWARAN KANAGARATNAM & ANOR – Appellant
Versus
PP – Respondent
[Notice Of Motion No: BL-44-6-09-2020]
Section 61A of Atipsom does not infringe Articles 121(1), 8(1), or 5(1) of the Federal Constitution and is thus constitutional.
Headnote:(A) Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 – Section 61A – Federal Constitution – Articles 121(1), 8(1), and 5(1) – Constitutionality challenge against s 61A for excluding cross-examination of depositions from trafficked persons and migrants – Court rules that s 61A does not infringe judicial powers and remains constitutional as it does not exclude juristic roles or deny fair trial rights. (Paras 2, 6, 40, 42)
(B) Federal Constitution - Article 5(1) – Interpretation ensures depriving personal liberty only as per law; s 61A is explicit and founded in law. (Paras 23, 28)
(C) Federal Constitution - Article 8(1) – Equality before law is not absolute; s 61A retains procedural fairness with appellate review. (Paras 31, 34)
Facts of the case: Applicants challenged the constitutionality of s 61A of Atipsom which allowed depositions as prima facie evidence without cross-examination due to the impossibility of locating the witnesses.
Findings of Court: Court concluded that s 61A retains judicial authority, does not contravene federal constitutional provisions, and is essential to avoid lengthy detentions of witnesses.
Issues: Did s 61A infringe judicial powers under Article 121(1) of the FC and did it deny the applicants a fair trial under Articles 5(1) and 8(1)?
Ratio Decidendi: The court held the interpretation of s 61A aligns with legislative intent and preserves judicial overreach limits, affirming the balance of powers among branches of government.
Result: Motion dismissed.
JUDGMENT
[1] The applicants are facing 3 charges at the Klang Sessions Court under s 12 of Atipsom. The prosecution delivered on the applicants as part of the evidence for the prosecution pursuant to s 51A of the Criminal Procedure Code (CPC) the depositions made by three persons mentioned as the victims in the 3 charges being Anmuni Maria, Yani Tri Anda and Fransisaka.
[2] The challenge mounted in this Motion is against the constitutionality of s 61A of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (Atipsom) with the impugned provision being argued to be against arts 121(1), 8(1) and 5(1) of the Federal Constitution ( FC ). The learned Sessions Court Judge exercising the provision of s 30(1) of the Courts of Judicature Act 1964, stayed the proceedings and transmitted the matter to the High Court to determine the constitutional challenge against s 61A of Atipsom.
[3] Section 61A of Atipsom essentially provides that the deposition of trafficked persons or smuggled migrants who cannot be found would be accepted as prima facie evidence without the evidence being tested under cross-examination at the trial for the charges under s 12 of Atipsom being levelled against the applicants in this instance.
[4] Section 61A of Atipsom states:
61A. Admissibility of deposition of trafficked person or smuggled migrant who cannot be found
(1) Notwithstanding anything contained in this Act and any written law to the contrary, where in any proceeding for an offence under this Act a testimony of any person in respect of whom an order of removal from Malaysia has been made by the Director General under s 32 or 33 or subsection 56(2) of the Immigration Act 1959/63 is required by the Court, there shall be admissible in evidence before that Court any deposition relating to the subject matter of that proceeding made by that person:
(a) in Malaysia before a Sessions Court Judge or a Magistrate in the presence or absence of the person charged with the offence; or
(b) outside Malaysia before a consular officer or a judicial officer of a foreign country in the presence or absence of the person charged with the offence,
and any such deposition shall, without further proof, be admitted as prima facie evidence of any fact stated in the deposition.
(2) It shall not be necessary for any party in any proceeding to prove the signature or official character of the Sessions Court Judge, Magistrate, consular officer or judicial officer before whom the deposition under subsection (1) was made.
(3) For the purposes of this section, a reference to:
(a) A "deposition" includes any written statement made upon oath; and
(b) An "oath" includes an affirmation or declaration in the case of persons allowed bylaw to affirm or declare instead of swear.
(4) Nothing in this section shall prejudice the admission as evidence of any other depositions.
Article 121(1) Of Federal Constitution
[5] Article 121(1) states:
"Judicial power of the Federation
121. (1) There shall be two High Courts of co-ordinate jurisdiction and status, namely:
(a) One in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di Pertuan Agong may determine; and
(b) One in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di Pertuan Agong may determine;
(c) (Repealed)
And such inferior courts as may be provided by federal law; and the High Courts and the inferior courts shall have jurisdiction and powers as may be conferred by or under federal law. "
[6] The argument of the applicants is that the act of determining whether there is a prima facie evidence involves judicial assessment hence the power to decide a prima facie case is a judicial power that should rightly be exercised by a Judge and no other. By virtue of art 121(1) of the Federal Constituti
