The prosecution must demonstrate all elements of a charge beyond a reasonable doubt, particularly in cases involving common intention.

Introduction

[1] All the above 3 accused persons are charged under s 26A of the Anti-Trafficking and Anti-Smuggling of Migrants Act 2007 ("ATIPSOM 2007") read together with s 34 of the Penal Code and the Amended Charge read as follows:-

AMENDED CHARGE

"That you together with another person at large on 20 August 2016 at Bintulu Airport, in the district of Bintulu, in the state of Sarawak in furtherance of common intention, carried out smuggling of migrants listed as follows:-

1. Eliyas Miah (Male) Passport No: BKU926592 Bangladeshi

2. Sabbir Buruj Ali (Male) Passport No: BF0304543 Bangladeshi

3. Shohag Sikder (Male) Passport No: BK0710302 Bangladeshi

4. Ripon Hossen (Male) Passport No: BK0710302 Bangladeshi

5. Tajiul Islam (Male) Passport No: BK0721587 Bangladeshi

by way of arranging, facilitating, or organizing, directly or indirectly their unlawful entry into Sarawak in order to bring the persons to Kuala Lumpur in which the persons are not citizens of Malaysia either knowing, or having reason to believe that the persons' entry is unlawful and providing any other assistance or service for the purpose of carrying out the acts and therefore you have committed an offence punishable under s 26A of the Anti-Trafficking and Anti-Smuggling of Migrants Act 2007 read together with s 34 of the Penal Code ."

[2] At the end of the Prosecution's case, this Court found that the Prosecution has proven a prima facie case against the 3 Accused persons after having subjected the Prosecution's case to a maximum evaluation and ordered the 3 Accused persons to enter their defences. All the 3 Accused persons gave sworn testimonies.

Brief Facts

[3] On 20 August 2016 the five (5) alleged smuggled migrants as named in the Amended Charge were arrested by the PW4 and his personnel inside the van at the parking place at Bintulu Airport together with the 1st Accused and PW3.

[4] The Prosecution contended that the five (5) alleged smuggled migrants which are the subject matter of the Amended Charge 1st (collectively "the 5 Bangladeshis") were being transported by the 1 Accused from Sibu to Bintulu and thereafter to Kuala Lumpur and that the 5 Bangladeshis with the assistance of the 2nd and 3rd Accused persons, without having valid travelling passes have entered into Sarawak in order to bring the persons to Kuala Lumpur either knowing or having reason to believe that the 5 Bangladeshis' entries into Sarawak are unlawful.

[5] The Prosecution also contended that the 3rd Accused person is the mastermind and i n the furtherance of a common intention with the 1st and 2nd Accused persons, arranged, facilitated, or organized, directly or indirectly, the 5 Bangladeshis' unlawful entries into Sarawak, in order to bring them to Kuala Lumpur.

[6] The 5 Bangladeshis' deposition statements have been produced before this Court and admitted as exhibits as they have been deported to their own country at the commencement of the trial, after having pleaded guilty and served their sentences for an offence under s 6(1) of Immigration Act 1959/63.

The Offence Under Section 26A Of Anti-Trafficking and Anti-Smuggling of Migrants Act 2007 ("ATIPSOM 2007")

[7] Section 26A of ATIPSOM 2007 dealt with the offence of smuggling of migrants and 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 to both."

Essential Elements Of The Amended Charge

[8] The followings are the essential elements of the Amended Charge that are required to be proved by the Prosecution under s 26A of ATIPSOM 2007