JUDGMENT

Mohd Firuz Jaffril JCA:

Introduction

[1] The appellant in this case was charged for the act of smuggling 10 migrants under s 26A of the ATIPSOM 2007.

[2] The charge preferred against him (as subsequently amended by the prosecution in the High Court ) read as follows:

Charge

[3] That you, on the 8th day of April 2021, at about 6.37pm, at Simpang Amir Lachau, in the district of Sri Aman, in the state of Sarawak, had carried out smuggling of migrants towards:

(1) Hermanan Hardi (25) (Passport No.: NIL) (Indonesia);

(2) Jama Ismail (39) (Passport No.: NIL) (Indonesia);

(3) Jumardi Silan (42) (Passport No.: NIL) (Indonesia);

(4) Nunung Haji Subari (45) (Passport No.: NIL) (Indonesia);

(5) Elmi Siun (31) (Passport No.: NIL) (Indonesia);

(6) Teddi Tebin (20) (Passport No.: NIL) (Indonesia);

(7) Sunil Saina (25) (Passport No.: NIL) (Indonesia);

(8) Rofiih Nasrudin (20) (Passport No.: NIL) (Indonesia);

(9) Herman Umar (28) (Passport No.: NIL) (Indonesia);

(10) Yahya Zikrullah Samsul (30) (Passport No.: NIL) (Indonesia);

and that you have thereby committed an offence punishable under s 26A Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 ("the ATIPSOM Act").

[4] At the end of the trial, the High Court found the appellant guilty as charged, whereby he was then duly convicted and sentenced to six (6) years imprisonment.

[5] Upon review of the Record of Appeal and having heard counsel for both parties on 21 April 2025, we unanimously found that there are no merits in this appeal for us to intervene on the conviction and sentenced by the learned High Court Judge ("HCJ"). We therefore dismissed the appeal and affirmed the decision of the learned HCJ for reasons set out in this judgment.

Background

[6] On 8 April 2021, a team of police personnel from the Pasukan Gerakan Am (PGA) was conducting patrol and observation duties in an operation called Op Benteng Sektor C Sri Aman. In the course of patrol, PW3 who was leading the police team saw a suspicious-looking bonded truck at Simpang Amir, Lachau bearing registration number QBE 2236 bearing the logo of KFF LOGISTIC SDN BHD. Upon inspection, PW3 found two (2) men in the driver's cabin namely Mohd Arizan bin Abdullah (the driver of the bonded truck) and Duffson Anak Jeffryfin. Both men are Malaysians. Upon inspection on the cargo section of the lorry, PW3 found eleven (11) Indonesians (10 males and 1 female) without any travelling documents. Both the two (2) Malaysians and eleven (11) Indonesians were arrested and brought back to Sri Aman police station.

[7] Investigation was duly carried out resulting in the ten (10) Indonesians (as named in para [3] above) being charged under s 6(1)(c) of the Immigration Act 1959/63. Nine (9) of them were sentenced to three (3) months imprisonment while another Indonesian was sentenced to seven (7) months imprisonment. Their depositions under s 61A of the ATIPSOM Act were also taken before a Sessions Court Judge at Sri Aman before being deported back to their country of origin. As for the two (2) Malaysians involved, they were charged under s 55E of the Immigration Act 1959/63 and sentenced to sixty (60) months imprisonment. The results of the investigation also led to the arrest of the appellant on 22 April 2021 and arraignment in the High Court . During the trial, it was revealed that the accused had contacted Mohd Arizan bin Abdullah (PW5) to pick up the migrants from Bintulu to be sent to Serian. Further investigation also revealed that the accused was having contact with a person named Hadi in the arrangement for the migrants to be brought. The evidence tendered by the prosecution showed that the accused had carried out smuggling activity by providing assistance or other service for the purpose of arranging and facilitating the exit of the illegal immigrants from Malaysia.

Ingredients For Purposes Of Proving The Offence Of 'Smuggling' Under The ATIPSOM Act

[8] From the definition of "smuggling of migrants" under s 2 of the ATIPSOM Act, the pro