The failure of the prosecution to establish the identity of the speedboat precludes a prima facie case against the accused under the Anti-Trafficking Act.

[1] The accused Ansar Sakka was charged under s 26I of the Anti- Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 ("ATIPSOM") for providing material support or resources ie a dark blue speedboat with Lamborghini sticker and the wordings 'Merecik Hawau' at the front part of the boat to aid the receiver or any other person to engage in conduct constituting the offence of smuggling of migrants.

[2] Based on the evidence adduced by the prosecution, it was the prosecution's case that the accused had provided the speedboat to Adriansyah Abbas ("PW3") and Mansur Umar ("PW4") for the purpose of transporting illegal immigrants from a place called Ice Box to Sungai Nyamuk within the territory of Indonesian waters. Both PW3 and PW4 were earlier jointly charged under s 26A of the ATIPSOM for the smuggling of the migrants and each of them pleaded guilty to the same. They were handed down with 5 years' imprisonment each by this Court. Both the convicts are now called as witnesses in the present case against Sahar Sakka as the receiver of the aid to carry out or engage in conduct constituting the offence of smuggling of migrants.

[3] All the passengers listed in the "Lampiran A" as attached to the present charge are the same migrants who were smuggled by PW3 and PW4 in the previous case. It must be noted that in the previous charge against PW3 and PW4, the mode of transportation to carry the migrants was not clearly spelt out although it was mentioned in the charge that the smuggling of the migrants was carried out through the sea waters of Tawau.

[4] It was very unfortunate that the speedboat which carried the migrants in the present case did not reach its destination ie Sungai Nyamuk as it was sunken into the sea resulting in the death of a total of 10 migrants. Due to this misfortune event and the loss of human life, the police investigation initially was more inclined to an offence under s 304A of the Penal Code which led to the arrest of PW3 and PW4 before they were again re- arrested on the 15 February 2017 for the offence of smuggling of migrants under s 26A of the ATIPSOM.

[5] In the light of the above set of facts, the issue of the identity of the speedboat as the mode of transportation of the migrants in the present case became very relevant and has to be proven by the prosecution. Before I go into the issue of the identity of the speedboat, let me first examined and analyzed the evidence of PW3 and PW4 who are the material witnesses in the present case against the accused.

[6] On the 1 August 2018, PW3 testified in Court that he received a call from the accused on the 7 February 2017 to ask him whether he was willing to provide transportation for passengers from the place of boarding ie Ice Box to the place of disembark ie Sungai Nyamuk which he agreed as he needed money.

[7] In his evidence, he further stated that he was at Sungai Nyamuk when he received the call from Ansar and that he had the boat kept at Sungai Nyamuk. When PW3 went to Ice Box with PW4, he met Taufik and another individual by the name of Kacuk who were both involved in arranging and managing these passengers. At one instance, he said he was directed by Kacuk to transport the passengers to Sungai Nyamuk and at the same time he also said that he received the passengers from Taufik who instructed them to board the speedboat. PW4 was not directly involved as he was merely accompanying PW3 to carry out the work of providing the transportation.

[8] PW3 related the event that took place on the 7 February 2017 from the time he received the call from Ansar, then fetched the passengers includin