Sentencing for harbouring undocumented migrants under the Anti-Trafficking Act should consider individual circumstances, intent, and potential for rehabilitation, balancing public interest against compassionate actions.

Introduction

[1] At the heart of criminal justice lies a fundamental truth that sentencing must be proportionate, thoughtful and humane. It must weigh not only the gravity of the offence but also the offender's intent, circumstances, and potential for rehabilitation. This case presents such a balance. The accused Ignasius Bria, Donatus Klau, and Rina all pleaded guilty to harbouring three undocumented migrants under s 26H of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM Act 2007). However, the facts reveal the accused have no profit motive, no organised smuggling, and no criminal record, only a humanitarian impulse. This judgment explains why a custodial term of one year strikes the correct balance between public interest, fairness to the individual, and the prudent use of public funds through facilitating prompt deportation of the accused.

The Charge

[2] The accused were charged with an offence punishable under s 26H of the ATIPSOM 2007, which states:

"Any person who conceals or harbours, or prevents, hinders or interferes with the arrest of any person knowing or having reason to believe that such person is-

(a) a smuggled migrant; or

(b) a person who has committed or is planning or is likely to commit an act of smuggling of migrants, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years, and shall also be liable to a fine or to both."

[3] The offence is listed in the First Schedule of the Security Offences (Special Measures) Act 2012 (SOSMA), which is indicative of the public interest and seriousness attached to such cases.

Facts Of The Case

[4] On 16 May 2024 at approximately 3:00 am, the complainant Inspector Shahrul Armie, and a team from D3 ATIPSOM Bukit Aman raided a house at No 373, Sungai Batu Parit 8, 34900 Pantai Remis, Perak. At the scene, they apprehended the first accused, Ignasius Bria, outside the house. Upon entering the premises, they found the other two accused, Donatus Klau and Rina, along with four other individuals.

[5] Upon inspection, it was discovered that three of the individuals, Defrosa Sitohang, Erlin, and Ocan, were undocumented migrants from Indonesia. The accused were arrested at first under s 26A of ATIPSOM 2007 for suspicion of smuggling activities, and the migrants were detained under s 6(1)(c) of the Immigration Act 1959/63 without valid documentation.

[6] The investigation revealed that the house had been rented by Donatus Klau since September 2023. He lived there with his wife, Rina (the third accused), and his younger brother. The migrants had contacted a smuggler known as Marcell to facilitate their illegal return to Indonesia, each paying RM1,500.00 to Marcell. Marcell had arranged their transportation to the house via e-hailing services.

[7] The said smuggler known as Marcell, who is still at large, directed the migrants into the house with the assistance of the first accused.

[8] At the Identification parades, the migrant identified and confirmed all 3 accused as persons provided shelter to them.

[9] Regarding the migrants, two of them had arrived only hours before the raid; the third migrant was a pregnant woman in her seventh month and had been living in the house for approximately three weeks.

[10] These were the facts of the case as narrated by the prosecution in the "fakta kes" marked as Exhibit P4 and some were elicited from the court's questioning of the accused before sentencing and the same were confirmed by the prosecution.

Mitigating Circumstances

[11] During