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2012 MarsdenLR 1644
HIGH COURT SABAH & SARAWAK SIBU
PP (IMMIGRATION) – Appellant
Versus
ANA EKANG & ANOR – Respondent
[Criminal Appeal No: SBW-42A-4-7-2012]
The court clarified that 'employment' of illegal immigrants under the Immigration Act does not require premise ownership, emphasizing the relationship between employer and worker regardless of occupancy status.
Headnote:(A) Immigration Act 1959/1963 - Sections 55B(1) and 55E(1) - Appeal against acquittal - Respondents were charged with employing illegal immigrants and permitting their entry and stay. Respondents acquitted by the trial judge on grounds of non-ownership and non-occupancy of the cafe; trial judge's reasoning deemed erroneous. (Paras 3, 16-17, 23, 32).
(B) Employment of illegal immigrants - The prosecution must only establish that the respondents knowingly employed illegal immigrants irrespective of premise ownership. Past cases cited affirm that physical possession is irrelevant to establishing guilt. (Paras 18, 20, 23).
(C) Definition of 'occupier' - Interpretation of 'occupier' under Section 55E(1) does not necessitate ownership, broader definitions apply. (Paras 28-31).
(D) Miscarriage of justice - Court found that the trial judge disregarded crucial evidence leading to misdirection. (Paras 75).
Findings of Court:
The court set aside the acquittal, finding sufficient evidence that respondents employed and permitted illegal immigrants to remain, allowing prosecution evidence was credible and established their guilt. (Paras 75).
Issues: The key issues addressed were whether the trial judge correctly interpreted the legal definitions of employment and occupancy and whether the prosecution sufficiently proved the common intention between the respondents.
Ratio Decidendi: The court ruled that the essential element of 'employment' does not hinge on the registered ownership of the premises, thus finding the respondents guilty of the charges. (Paras 23, 30, 75).
Result: Appeal allowed in part; convictions ordered against one respondent with the case remitted for sentencing. (Paras 75).
| Table of Content |
|---|
| 1. illegal employment and immigration violations. (Para 1 , 4 , 5 , 6) |
| 2. employment and tenancy agreements as evidence. (Para 7 , 8 , 12) |
| 3. respondents' denial and claims of non-ownership. (Para 13 , 14) |
| 4. appeal on grounds of legal misinterpretations. (Para 15 , 16 , 17) |
| 5. applicability of employing and harboring definitions. (Para 18 , 19 , 20) |
| 6. court's evaluation of trial judge's decisions. (Para 31 , 32 , 33 , 34 , 36 , 37 , 40) |
| 7. tenancy conditions relating to illegal immigrants. (Para 50 , 51 , 52) |
| 8. identification of the respondent as the employer. (Para 57 , 58 , 60 , 61) |
| 9. common intention and shared responsibilities in employment. (Para 63 , 64 , 65) |
| 10. outcome of the appeal and decision on convictions. (Para 70 , 72 , 74 , 75) |
[1] The respondents, husband and wife, were jointly charged on two charges. The first charge is in respect of an offence under s 55B(1) of the Immigration Act 1959/1963 for employing ten illegal Indonesian workers without valid work pass at Masam Masam Manis Cafe located at Lot 1196, S/L 31, Tingkat Bawah, Sibu Jaya Commercial Center, Sibu. The second charge is in respect of an offence under s 55E(1) of the same Act for allowing nine illegal Indonesian immigrants to enter and remain at Masam Masam Manis Cafe at the same address.
[2] The respondents were, after a full trial, acquitted and discharged from both charges.
[3] The appellant now appeals against the order of acquittal and discharge.
[4] The facts of the case show that on 3 August 2010 at about 8.20pm, a raiding team comprising of Immigration Officers and Malaysian Anti Corruption Commission ('SPRM') officers led by PW1 Billawati Annuar raided a cafe named Masam Masam Manis Cafe located at Sibu Jaya Commercial Centre at Sibu Division, after an hour of close observation on the shop.
[5] During the raid ten illegal Indonesians who were working as cooks, waitress, servers, dish washers and cashier were arrested. These ten arrested persons named in the first charge are foreigners who did not possess valid pass. All of these illegal immigrants, except Sonia Misrodi, were also named in the second charge as being allowed to enter and live on the premise of Masam Masam Manis Cafe.
[6] During the raid both the 1st and 2nd respondents came to the Cafe and the 1st respondent, Ana Anak Ekang, handed over to PW1 the passports of the arrested illegal immigrants. A seizure list (exh. P2 (1-9), was prepared by PW12 and signed by the 1st respondent.
[7] In respect of the first charge under s 55B(1) of the Act, the appellant relied on the memorandum of transfer (exh. P14) to prove that the 1st respondent Ana Ekang is the owner of Masam Masam Manis Cafe since 3 April 2009 and that both respondents have common intention to employ the ten illegal immigrants.
[8] In respect of the second charge under s 55E(1) of the Act, the appellant adduced the tenancy agreement (exh. P12) to show that the 2nd respondent Boniface Toke rented from Mr Yong Ling Chiing @ Ching Hong (PW5) a two storey shop lot at Sublot No. 31, Lot 3304 Block 1, Menyan Land District, Sibu (as also known as Lot 1196, S/L 31, Sibu Jaya Commercial Center, Sibu) where Masam Masam Manis Cafe was located on the ground floor, for the period from 19 November 2007 for five years. The appellant relied on exh. P12 to prove that the 1st respondent was the occupier of the premise and that the 1st and 2nd respondents have common intention to permit the illegal immigrants named in the second charge to enter and stay on the premise.
[9] The prosecution also adduced two other documents, namely, the tenancy agreement (exh. P15) and the memorandum of transfer (exh. 14) (MOT).
[10] The MOT dated 3 April 2009 was executed by Hunter Anak Baharudin (PW9) and the 1st respondent Ana Anak Ekang whereby PW9 transferred all his rights shares and interest in Masam Masam Manis Cafe to 1st respondent in consideration of RM1 paid to him by the 1st respondent.
[11] Exhibit P15 dated 12 February 2008 is a
