The prosecution failed to establish that the accused knowingly conveyed undocumented migrants, leading to their acquittal.

JUDGMENT

Alwi Abdul Wahab J:

Introduction

[1] The Charge against the 1st and 2nd accused persons are as follows:

"That you, together, on the 14th day of June 2020, at about 2000 hours, at Kampung Mapu Kijabu, in the district of Serian, in the state of Sarawak, in furtherance of common intention as an operator or a driver of the vehicle Toyota Hilux Double Cab with registration number QAA8318S that involved in the transportation of smuggled migrants namely;

1. PETRUS TERA (INDONESIA));

2. SERTINUS SUGINO (INDONESIA);

3. PETRUS ADUS (INDONESIA)

4. SUDIR (INDONESIA);

and vehicle Perodua Viva with registration number QRF4248 that involved in transportation of smuggled migrants namely;

1. SERFASIUS OCEL (INDONESIA)

2. SONIA (INDONESIA)

3. JELANI (INDONESIA)

4. BERNABAS LANG (INDONESIA)

And that you have thereby committed an offence punishable under s 26J of Anti-Trafficking in Person and Anti-Smuggling of Migrants Act 2017 read with s 34 of the Penal Code."

[2] Section 26J of Anti-Trafficking in Person and Anti-Smuggling of Migrants Act 2017 (ATIPSOM) provides as follows:

Offence of conveyance of smuggled migrants

"Any person being the owner, operator or master of any conveyance who engages in the conveyance of smuggled migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding five years and shall also be liable to a fine not exceeding two hundred and fifty thousand ringgit, or to both".

The Brief Background Facts Of The Case

[3] On 14 June 2020 at about 1900 to 1930 hours, the complainant ie Inspector Ricky Anak Junim (PW3) together with his team of police personnel from Pasukan Gerak Am were doing their patrol duties at the Post at Kampung Mapu Kijapu, Serian.

[4] At about 2000 hours on the same day, at the junction in front of Kampung Mapu Kijapu, they spotted two vehicles Toyota Hilux Double Cab with registration number QAA8318S ("Hilux") and Perodua Viva with registration number QRF4248 ("Viva") which PW3 and his team suspected to carry PATI. They stopped the two vehicles and conducted inspection on them when they found 5 males in each vehicle. Of all the 10 males, 2 were local and the other 8 persons were without valid travelling documents. The 10 males were subsequently arrested.

[5] The 2 local males were identified as Chom Anak Ati (the 1st accused) and his son Assun Anak Chom (the 2nd accused).

The Court's Analysis Of The Evidence And Findings

[6] For the offence with which both the accused were charged under s 26J of ATIPSOM, there are two essential elements to be proven:

(i) Both the 1st and the 2nd accused were the operators of Toyota Hilux Double Cab and Perodua Viva respectively.

(ii) Both the 1st and the 2nd accused engaged in the conveyance of smuggled migrants ie the 8 Indonesian as per the charge in furtherance of their common intention.

[7] For the first element, both PW3 and PW4 (Sarjan Mack Clainte Anak Richard Broudy) have given the evidence that both the accused were the drivers of each of the vehicles Toyota Hilux and Perodua Viva respectively. Thus, the first element is proven.

[8] For the second element, were the 8 passengers Indonesian and if yes, were they smuggled migrants? The Immigration Officer, Christina Anak Thomson Guran (PW2) gave evidence that based on Exh. P7, there were no records of any movement of lawful entry or lawful exit of the 8 passengers of the vehicles. PW2 agreed that she was only assuming that the 8 named passengers were Indonesian based on the information given by the police. He also agreed that it would require a similar authority to our Malaysian National Registration Department to determine whether the 8 persons were Indonesian. PW2 also agreed that the Immigration Department could not independently determine whether the 8 passengers were Indonesian.

[9] PW3 testified that he had enquired from the passengers of the vehicles who responded that they were exiting Malaysia to Indonesia. As for the 2 accused persons, they responded that they were ferrying th