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2014 MarsdenLR 276
HIGH COURT MALAYA KUALA LUMPUR
SOO AH LAI & ORS – Appellant
Versus
PP – Respondent
[Criminal Appeal No: 42S-(A)-(29-31)-02/2013]
The court ruled that charges under ATIPSOM 2007 for human trafficking were improperly made where evidence of exploitation was insufficient, suggesting the matter should be addressed under the Penal Code instead.
Headnote:(A) Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Section 13 - Appeal against conviction for trafficking and associated sentences - Charges against defendants alleged trafficking for exploitation through force and coercion. (Paras 1, 22, 45)
(B) Legal Definition of Exploitation - Consideration of whether the complainant's treatment constituted exploitation as defined under section 2 of ATIPSOM 2007. (Paras 25, 29)
Facts of the case:
Three appellants were charged with trafficking a Cambodian national, who alleged exploitation through work conditions, including physical abuse and lack of amenities. (Paras 1-6)
Findings of Court:
The court found that the prosecution failed to establish a prima facie case for trafficking under section 13, indicating that the charges were improperly laid and did not fulfill the statutory requirements of exploitation. (Paras 45, 46)
Issues: The main issues revolved around whether the charges were defective regarding the definition of exploitation and if there was sufficient evidence of trafficking. (Paras 12, 25)
Ratio Decidendi: The court concluded that the complainant was not exploited in the legal sense as outlined by ATIPSOM 2007, hence the charges should not have been made under this act but rather under the Penal Code. (Paras 42, 45)
Result: Appeals allowed; convictions and sentences set aside and replaced with acquittal and discharge of the appellants. (Paras 46)
| Table of Content |
|---|
| 1. factual basis of trafficking allegation (Para 1 , 1 , 4 , 5 , 6 , 7 , 8 , 9) |
| 2. overview of charges and initial proceedings (Para 2 , 3) |
| 3. defects in charges against appellants (Para 10 , 12 , 25) |
| 4. grounds of appeal presented by the appellants (Para 11 , 13 , 14) |
| 5. analysis of legal standards on charge defects (Para 15 , 16 , 17 , 18 , 19 , 20 , 21) |
| 6. court's findings on the charges' validity (Para 22 , 23 , 24) |
| 7. exploitation definitions and arguments presented (Para 26 , 27 , 28) |
| 8. summary of complainant's evidence of working conditions (Para 29 , 31 , 32 , 33 , 34) |
| 9. incidents of alleged abuse described (Para 35 , 36 , 37) |
| 10. court's assessment of contract and complainant's consent (Para 38) |
| 11. legal understanding of consent and employment terms (Para 39 , 40 , 41) |
| 12. court's conclusions on trafficking definitions and relevance (Para 42) |
| 13. ill treatment does not equate to trafficking (Para 43) |
| 14. final decisions and implications of the judgment (Para 44) |
[1] Soo Ah Lai ("the 1st appellant"), Yap Siew Ling ("the 2nd appellant") and Yap Siew Lee ("the 3rd appellant") were charged with three separate charges under s 13 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 ("ATIPSOM 2007") and were jointly tried together. The charges against the appellants were similar and read as follows:
"Bahawa kamu pada 18 February 2012 jam lebih kurang 3.30 petang di No 139, Jalan 2/62, Bandar Menjalara, Kepong di dalam Daerah Sentul, dalam Wilayah Persekutuan, Bandaraya Kuala Lumpur telah memperdagangkan CHHUM POV PP: N0738836 berumur 28 tahun bagi maksud eksploitasi dengan penggunaan kekerasan atau bentuk paksaan yang lain terhadap CHHUM POV PP: N0738836 dan dengan demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 13 Akta Antipermerdagangan Orang dan Antipenyeludupan Migran 2007".
[2] At the end of the prosecution case, the learned Hakim Mahkamah Sesyen ("HMS") had found that a prima facie case had been made out and had called on the three appellants to enter upon their defence. The appellants had elected to give their evidence on oath. At the end of the defence case, the learned HMS found that the appellants had failed to raise any reasonable doubts as to the truth of the prosecution's case. The learned HMS had also found that that the prosecution had proven its case against the appellants beyond all reasonable doubt and had found the appellants guilty on their respective charges and had convicted them accordingly. After hearing and considering the mitigation of the appellants, the learned HMS had sentenced each of the appellants to four years imprisonment.
[3] Being dissatisfied with the decision of the learned HMS, the appellants have appealed against the "keseluruhan keputusan tersebut." The court notes that nowhere in the petition of appeal is there any ground to the effect that the sentence imposed was excessive and should be reduced. From this, the court understands that the appellants' appeals are in fact appeals against their convictions and the sentences that were consequently imposed following their convictions on the charges.
Brief Facts Of The Case
[4] The complainant, Chhum Pov PP: N0738836 (PW1) is a 29 year old Cambodian national. It is not in dispute that she had entered Malaysia legally as a domestic maid on the 23rd although she was uncertain of the month or the year. PW1 was collected from the agent by the 1st and 3rd appellants. According to her Contract of Employment, her employer is Yap Siew Ling, the 2nd appellant. However, from the evidence of the complainant, it would appear that she regarded all three appellants as her employers. She stayed at the employer's house where her daily tasks would include washing the clothes, washing the dishes, cleaning the "cermin", the toilets, mopping the floor and ironing the clothes. She was not required to do any cooking.
[5] Although the complainant was initially treated well, she was later "exploited" by the appella
