The court affirmed the conviction of the appellants for smuggling migrants, establishing that their actions constituted a violation of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007.

JUDGMENT

Azmi Ariffin JCA:

Introduction

[1] The appellants were jointly tried in the High Court at Kuching, Sarawak with a charge under s 26J Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 , read together with s 34 of the Penal Code .

The Charge

[2] The charge preferred against the appellants reads as follows:

That you, jointly, on 21 July 2019, at about 1730 hours, at Jalan John, Batu Kaya, in the district of Lubok Antu, in the state of Sarawak, in furtherance of common intention, as the operators of the vehicle Toyota Hilux Double Cab with the registration number QRD 8533, that involved in the transportation of smuggling the following migrants;

(i) Salbiah (Female, Age: 32 years old), Indonesian (Passport No.);

(ii) Karwono (Male, 26 years old), Indonesian (Passport No.); and,

(iii) Nani Setiawati (Female, 15 years old), Indonesian (Passport No.);

and that you have thereby committed an offence punishable under s 26J Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 , read together with s 34 of the Penal Code .

[3] The appellants claimed trial to the charge.

[4] In support of its case, the prosecution called four (4) witnesses.

[5] At the end of the prosecution's case, the learned High Court Judge found that the prosecution had succeeded in establishing a prima facie against the appellants and called upon them to enter their defence on the charge. They elected to give evidence on oath.

[6] At the end of the trial, the learned High Court Judge found the two appellants guilty on the charge. Both the appellants were sentenced to three (3) years' imprisonment and the sentences were ordered to run with immediate effect.

[7] Aggrieved by the said decision, on 3 January 2023, the appellants mounted this appeal against both the convictions and sentences.

[8] We will for convenience in this appeal, refer the two appellants in the manner they were referred to in the High Court.

The Prosecution's Case

[9] We shall now briefly lay out the background facts leading to the charge.

[10] On 21 July 2019, at about 5.30pm while manning a roadblock at Jalan John, Batu Kaya, Lubok Antu, PW2 (Mohamad Hasbullah Bin Ramli), ie the complainant together with his team had stopped and conducted a search towards a vehicle Toyota Hilux registration No QRD 8533 at an illegal route at Jalan John, Lubov Antu, Sarawak. It was found that both the accused were conveying three smuggled migrants from Indonesia namely, Salbiah, Karwono and Nani Setiawati.

[11] The three migrants walked on foot from the Indonesia border entering into Malaysia border through Lubok Antu, Sarawak vide the illegal and ungazetted route ("jalan tikus") and met both the accused at an oil palm estate allegedly owned by the accused(s).

[12] Based on the depositions taken from the migrants, the reason they entered Sarawak was in search of the employment opportunity offered by the accused(s) in the said oil palm estate. Hence, they met the accused(s) there to view the said oil palm estate.

[13] Later in the day, both the accused conveyed them in the Toyota Hilux belonged to PW1 (brother-in-law of the 1st accused and son-in-law of the 2nd accused) and all of them were arrested at an illegal route at Jalan John, Batu Kaya, Lubok Antu when they were about to exit from Malaysia to Indonesia. The said route is only about 400-500 metres from the Malaysia-Indonesia border.

The Defence's Case

[14] Both accused were already at the oil palm estate when the migrants arrived.

[15] The 2nd accused (DW2) knew one of the migrants by the name of Salbiah.

[16] It was Salbiah and her husband who were interested to work at the estate and asked DW2 if she needs workers. DW2 told the migrants that if they have a passport, she would apply for their work permits.

[17] Salbiah told DW2 that she wanted to go shopping at Lubok Antu and since both accused were also heading to Lubok Antu for their lunch, they agreed to give the migrants a lift.

[18] It was by way of coincidence that both accused met the m