Soleh Ahmad Habes Ahmad (DA-45SOM-22-04/2024)

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1 DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU DALAM NEGERI KELANTAN, MALAYSIA PERBICARAAN JENAYAH NO: DA-45SOM-21-04/2024 & ANTARA PENDAKWA RAYA

Lampiran

LAMPIRAN A Bil NAMA Warganegara Jantina Passport 1 Htotsan San Myanmar Lelaki Tiada 2 Pannue Myanmar Perempuan Tiada 3 Heawndtin Myanmar Perempuan Tiada 4 Htoiwein Myanmar Perempuan Tiada 5 Nuhtoi Myanmar Perempuan Tiada Hukuman: Seksyen 26H Akta tersebut Sekiranya disabitkan dengan kesalahan hendaklah dikenakan hukuman penjara selama tempoh tidak melebihi sepuluh tahun, dan boleh juga dikenakan denda, atau kedua-duanya. [2] After the charges were read and explained to both Soleh Ahmad and Dil Muhammod, and after having understood the charges, both pleaded guilty. After they were explained the consequences of their plea and having understood them, both maintained their guilty plea. [3] After the facts of the case were read and explained to the both of them and after having understood them, both admitted to those facts, the court thereafter convicted them. [4] Upon the 2 accused pleading guilty to the charges, and hearing the mitigation submission presented by counsel for both accused, and hearing the aggravating submission presented by the Deputy Public Prosecutor, this Court handed down these sentences: Soleh Ahmad – 3 years imprisonment for each charge with the sentences to run concurrently from the date of arrest (3.12.2023). Dil Muhammod – 30 months imprisonment from the date of arrest (3.12.2023). The UNHCR cards are returned to both accused. Handphones and sim cards are seized. [5] The prosecution being dissatisfied with the sentences handed down by this Court has now lodged appeals to the Court of Appeal against this Court’s decision pertaining to the sentences. Facts of the case DA-45SOM-21-04/2024 [6] On 3.12.2023 at about 1300 hrs, the complainant ASP G/15018 Mohd Said bin Mamat with a team of policemen apprehended 1 male migrant being Soleh Ahmad Habes Ahmad (NO. UNHCR: 354-14C08538) at a grocery shop bearing the address of Maataq Enterprise, Kg Kok Lanas, Ketereh, Kelantan. [7] Soleh Ahmad guided the team to the house No. PT 3027, Tmn SP Mahang, 16450 Ketereh, Kelantan. At this house the complainant discovered 13 male Bangladeshi citizens. Upon an examination of these 13 migrants it was discovered that they do not have valid travelling documents to enter Malaysia. The complainant then arrested all of them as per Kok Lanas Report 1733/23. [8] The case was investigated by ASP Mohd Ridzuan bin Mohammad, the Senior Criminal Investigating Officer of the Criminal Investigation Department at IPD Kota Bharu who discovered that: 8.1 Soleh Ahmad has rented the house PT 3027 with the rental of RM 450 per month. The statement taken from the owner has confirmed that the house was advertised for rent and it has been rented by Soleh Ahmad since February 2021. The owner recognised Soleh Ahmad as the individual being handed the house keys with rental being made online and the owner was not aware of the activities of Soleh Ahmad since he resides in Terengganu. 8.2 Soleh Ahmad stated that he receives instructions from a certain ‘Hamid’, a Bangladeshi citizen unknown to him to prepare a transit site for migrants to be sent to him. 8.3 Upon liasing with the Immigration Department of Malaysia, it was discovered that the 13 Bangladeshi migrants have no travel documents to enter Malaysia and they entered through Sungai Golok via a non gazetted route. 8.4 Soleh Ahmad has knowledge that all the migrants being harboured/concealed in the rented house entered the country via a non gazetted route without any valid travelling pass to avoid being apprehended by the authority and they have come to work. [9] Soleh Ahmad thus has committed an offence under section 26H of the Act and can be sentenced under the same section of the Act. [10] On 3.12.2023 at about 1300 hrs, the complainant ASP G/15018 Mohd Said bin Mamat together with a team of policemen apprehended 1 male migrant being Soleh Ahmad Habes Ahmad (No. UNHCR: 354-14C08538) at a grocery shop bearing the address Maataq Enterprise, Kg Kok Lanas, Ketereh, Kelantan with the arrest being as per Kok Lanas Report 1733/23. [11] On the same day at about 1400 hrs, Soleh Ahmad guided the complainant to a homestay at PT 2965, Tmn SP Mahang, 16450 Ketereh, Kelantan. At this place the complainant found Dil Muhammod Sultan Ammod (No. UNHCR: 354-18C10719) together with 4 female and 1 Myanmar migrants inside the house. An examination of the 5 migrants found that they have no valid travel documents. The complainant arrested all of them as per Kok Lanas report 1735/23. [12] The case was investigated by ASP Mohd Rizuwan bin Mohammad, the Senior Criminal Investigating Officer at IPD Kota Bharu, Kelantan who discovered that: 12.1 The owner of the homestay confirmed that it has been rented by Soleh Ahmad on 2.12.2023 for one night at the rate of RM 200 being a cash payment. After the rental was received the keys were handed over to Soleh Ahmad and the owner did not know what transpired further on at the homestay. 12.2 Soleh Ahmad rented the homestay for harbouring/concealing migrants sent to him for temporary transit before being sent to other destinations. 12.3 All the migrants recognised Dil Muhammod as the person who was waiting for them upon their arrival at the homestay and provided them with food. 12.4 An inquiry at the Immigration Department of Malaysia discovered that all 5 migrants have no travel documents for entry into the country and from the statement taken it was found that they entered through a non gazetted route. 12.5 Both Soleh Ahmad and Dil Muhammod have knowledge that all 5 Myanmar migrants being harboured/concealed at the homestay have entered via a non gazetted route without any valid travel pass to avoid being apprehended by the authority and they have come for the purpose of working. [13] Soleh Ahmad and Dil Muhammod have thus committed an offence under section 26H of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007. Mitigation plea Soleh Ahmad [14] The accused is 34 years of age being of Rohingya/Myanmar descent. He possesses a valid UNHCR card, married with a wife and 1 child. He works as an assistant in a grocery shop and earns the sum of RM 1,200.00 per month. [15] The accused has no previous criminal record and feels very remorseful of the offence that he has committed. The guilty plea has saved the time of the stakeholders involved and the accused prays for a minimal sentence to run concurrently for the charges that he faces, to take effect from the date of arrest. Dil Muhammod [16] The accused is 27 years of age being of Rohingya/Myanmar descent. He possesses a valid UNHCR card, is a labourer who earns RM 1,000 per month. He has no previous criminal record and feels very remorseful of the offence that has been committed. [17] The guilty plea has saved the time of the stakeholders involved, the accused prays for a minimal sentence and a return of the UNHCR card. Prosecution’s aggaravating submission [18] The number of migrants involved are to be of consideration in handing down the sentence with the charge in case no. 21 involving 13 migrants and case no. 22 involving 5 migrants. [19] The offences pertain to endangerment of national security which is under the 1st Schedule of SOSMA and the Court should take into consideration the seriousness of the offences. The prosecution does not object to the plea for a return of the UNHCR cards but insists on the handphones being seized. Authorities on sentencing [20] The issue of public interest is of consideration in handing out an appropriate sentence. The precedent of Public Prosecutor v Loo Choon Fatt [1976] 2 MLJ 256 states: One of the main considerations in the assessment of sentence is of course the question of public interest. On this point I need only quote a passage from the judgment of Hilbery J. In Rex v Kenneth John Ball 35 CrAppR 164 as follows:- “In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." [21] The interest of the appellant being an individual and of the minority should not override the interest of the public as decided in Bhanulananda v PP [1985] 1 MLJ 83, wherein the Federal Court ruled: “Held (2): the learned trial judge in outweighing the plea of mitigation in favour of the public interest with a desire to uphold the dignity and authority of the law in this country.” [22] The fact that he has pleaded guilty would still subject the accused to the discretion of the court in the sentencing and should still not outweigh the consideration of public interest. A plea of guilt does not work to automatically reduce a sentence when public interest requires a deterrent sentence and public interest should be of primary consideration in the passing of a sentence as decided in Public Prosecutor v Leonard Glenn Francis [1989] 2 CLJ (Rep) 320 wherein it was stated: “The first and foremost consideration of punishment is the public interest. The object of punishing crime is not only to punish the offender but also to deter others. Public interest is best served if the offender is induced to turn from criminal ways to honest living. The law does not, therefore, fix the sentence for a particular crime but fixes a maximum sentence and leaves it to the court to decide what is the appropriate sentence in the particular circumstances of the case. It is for these reasons that evidence of antecedents and character should be taken before sentence in respect of each convicted person. The fact that the accused may be a youth, a first offender and has pleaded guilty, whilst relevant in considering the sentence to be imposed, must perforce yield to the public interest in ensuring deterrence and prevention.” [23] The mitigation of the appellant should also be weighed according to other relevant considerations. The precedent of Bachik Abdul Rahman v Public Prosecutor [2004] 2 CLJ 572 is referred: “One of the principles in sentencing is that a convicted person should be given a discount for pleading guilty. A reduction of about one third of the sentence would otherwise have been imposed is normally given. This, however, is not a strict rule and the court may, in the exercise of its discretion, refuse to grant any discount. The severity of the offence or the existence of a previous conviction may outweigh the mitigating effect of the guilty plea; so may the demands of public interest for a deterrent sentence as well as the absence of a good defence or of other mitigating factors. The guilty plea does not automatically entitle the convict to a lesser punishment... [24] As regards the consecutive or concurrent nature of the sentences, this Court has perused section 282(d) of the CPC which states: Every sentence of imprisonment shall take effect from the date on which it was passed unless the court passing the sentence otherwise directs. Section 292(1) of the CPC is also applicable in stating: “When a person who is an escaped convict or is undergoing a sentence of imprisonment is sentenced to imprisonment, such imprisonment shall commence either immediately or at the expiration of the imprisonment to whch he has been previously sentenced, as the court awarding may direct.” [25] On the issue of whether the sentences are to run consecutively or concurrently is discussed in the precedent of Bachik Abdul Rahman v Public Prosecutor [2004] 2 CLJ 572 is again referred: “One of the principles in sentencing is that a convicted person should be given a discount for pleading guilty. A reduction of about one third of the sentence would otherwise have been imposed is normally given. This, however, is not a strict rule and the court may, in the exercise of its discretion, refuse to grant any discount. The severity of the offence or the existence of a previous conviction may outweigh the mitigating effect of the guilty plea; so may the demands of public interest for a deterrent sentence as well as the absence of a good defence or of other mitigating factors. The guilty plea does not automatically entitle the convict to a lesser punishment... ...In deciding whether the terms of imprisonment should be concurrent or consecutive, the court should be guided by the one transaction rule and the totality principle; Pursuant to the one transaction rule, where two or more offences are committed in the course of a single transaction all sentences in respect of these offences should be concurrent rather than consecutive... For there to be one transaction four elements must be present, that is to say, proximity of time, proximity of place, continuity of action and continuity of purpose or design... The one transaction rule is, however, not absolute, as there are situations where consecutive sentences are necessary to discourage the type of criminal conduct being punished...The applicability of the exception is said to depend on the facts of the case and the circumstances of the offence;... A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” not in keeping with this records and prospects: DA Thomas in “Principles of Sentencing” (2nd edn) pp 57-58; Wong Kai Chuen Philip v. PP, supra; and Kanagasuntharam, supra; and Maideen Pillai v. PP [1996] 1 SLR 161; Sentences must have regard to the total lengths of sentence passed, particularly where consecutive sentences have been imposed, to ensure that the sentence properly reflects the overall seriousness of the behaviour: Emmins on Sentencing, 2nd edn. p. 151; There will be cases properly described as crushing the hope in the offender of reformation and a return to a desirable life but in which the offender has, by his criminal acts, forfeited any right to have his sentence reduced on that account: Crowley and Garner v. R [1991] 55 A Crim. R 201; A richly deserved sentence, not manifestly excessive, should not be disturbed just because the person upon whom the sentence is imposed may feel crushed by it: per O’ Bryan J in Crowley and Garner v. R, supra, at p. 301; To the above principles, the following may be added: The question whether the sentenced should run consecutively or concurrently must depend upon the particular circumstances of the case: Sau Soo Kim v. PP [1975] 1 LNS 158 [1975] 2 MLJ 134, per Lee Hun Hoe CJ (Borneo) (as he then was) whose judgement was read by Suffian LP (as he then was); The totality principle requires the court to consider whether the aggregate is just and appropriate and to ensure that the sentence is not excessive: R v. Faulkner [1972] 56 Cr. App R. 594; PP v. Teoh Heng Chye [1990] 1 CLJ 194; [1989] 3 MLJ 205; PP v. Chot Saik Kam [1990] 1 LNS 137 [1991] 1 MLJ 193; Marimuthu Balakrisnan v. PP [1974] 1 LNS 88 [1974] 2 MLJ 145.’’ Analysis and finding of the Court [26] The offending and the sentencing provision is fused in a single provision and is reproduced below which reads: Concealing or harbouring smuggled migrants and migrant smugglers “26h.(1) 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 fine, or to both. (2) In this section, “harbour” includes supplying a person with shelter, food, drink, money or clothes, arms, ammunition or means of conveyance, or assisting a person in any way to evade apprehension. [27] It is patently clear from the provision, that the maximum sentence that this court can impose will be 10 years imprisonment. In so far as “fine” is concerned, it is not mandatory, because of the word “shall also be liable” as interpreted in the Federal Court case of Jayanathan v. PP (infra); Goh Kheng Seong v. PP (infra) and PP v. Man Bin Ismail [1939] MLJ 207. [28] It is trite that whilst the court has a wide discretion in imposing sentence, the court is guided by certain sentencing principles of which public interest is of paramount importance and should supersede the personal interest of the accused. [see R v. Ball (25 CR) APPR 164] and [PP v. Loo Choon Fatt [1976] 2 MLJ 256]. Hence the court cannot nonchalantly embark on some unauthorised or extraneous exercise of discretion before meting out the sentence. [29] This court had considered the public interest element in this case in the sense that the sentence imposed should be deterrent in nature as this offence involved the security and also the reputation of the country as Malaysia is now ranked in Tier 2 of the United Nations Watch List on human trafficking. [30] This court on the other hand, did not disregard the rights of the accused i.e. to have his personal interest considered by this court as well (see Tan Sri Abdul Rahim bin Mohd Noor v. PP [2001] 1 MLJ 193. There are circumstances in which public interest itself warrants that the accused should not be put behind bars for far too long as that will do more harm than good as it might cause a crushing effect on him, and could turn him into a hardened criminal. [31] Hence a sentence to be imposed should be one that could induce him to turn from a criminal to an honest life, In the words of Hashim Yeop Sani, High Court Judge Malaya as he then was in the case of Loo Choo Fatt (supra) who said: “The public interest in indeed served, and best served, if the offender is induced to turn from criminal ways to honest living”. [32] Thus, this court needs to strike a balance in order to do justice to the accused and to the public. Towards that end, this court had embarked on a balancing exercise, weighing the public interest with that of the fact amongst others that the 2 accused persons had repented and feel remorseful, and had pleaded guilty thus saving the court’s time. [33] This court had also considered that both the accused persons had pleaded guilty immediately upon the charges being read to them. There are a plethora of authorities to suggest that this factor should also be considered as much public time and money will be spared if an accused person admits his guilt, thus avoiding a prolonged and an unnecessary trial [PP vs, Ravindran and Others [1992] 1LNS 47] and Sau Soon Kim vs. PP [1975] 2 MLJ 134]. [34] The accused persons are not habitual criminals but first time offenders for the offence under this Act. It is an established principle of law of sentencing that a first offender should be given some leniency, save where the offence committed, even though for the first time, were so serious that there was no reason or basis to give concession to this fact. Cases that fall into this category are for example, heinous crimes like taking away one’s life, armed robbery whereby the victim was shot, grievous hurt or having in possession dangerous drugs in extraordinarily large quantity [see PP vs.Tia Ah Leng (infra)]. [35] Nothing of this nature happened in this case. [36] This court also had followed the sentencing trend of this type of offence under the Act. However, for the more serious case of trafficking in persons by means of force or threat pursuant to section 13 this Act, the courts had sentenced offenders between 7 and 8 years imprisonment after a full trial as can be seen in the case of Kwong Tuck Choy & Anor v.PP [2013] 1 LNS 1440 and Chang Choi v. PP [2013] 7 CLJ 166 respectively. The offence under section 13 carries the maximum prison sentence of 20 years with a minimum imprisonment of 3 years. Whereas the prison sentence for the offence at hand (i.e. s.26H) is a maximum of 10 years only. [37] In the case of PP v. Rahman Mojibur [2016] 1 LNS 290 where the accused was charged under section 26H of the Act (concealing or harboring smuggled migrants) which is similar to the case at hand, which carries a maximum prison sentence of 10 years, the High Court imposed a prison sentence of only 2 years. [38] Further it is not uncommon for the court to use a mechanism or a formula of giving half of the maximum prison sentence allowed or a discount of about 1/4 or 1/3 of the imprisonment sentence that would have been imposed had the accused been found guilty and convicted after a full trial. (see Mohamad Abdullah Ang Swee Kang v. PP [1998] 1 MLJ 168. Conclusion [39] Hence, based on the reasonings above, this court finds that the appropriate sentence should be 3 years imprisonment for each charge with the sentences to run concurrently from the date of arrest (3.12.2023) for Soleh Ahmad and for Dil Muhammod, 30 months imprisonment from the date of arrest (3.12.2023) which are neither manifestly excessive nor manifestly inadequate. [40] The one transaction rule is prevalent herein pertaining to the charges against Soleh Ahmad and the totality principle should be utilised since the 4 elements mentioned in Bachik Abdul Rahman(supra) are present herein. Dated: 18th February 2025. AZMI BIN ABDULLAH High Court Judge High Court Kota Bharu COUNSELS Prosecution: Nor Kamilah binti Che Ibrahim Deputy Public Prosecutor Pejabat Pendakwaan Negeri Kelantan AG-3-03-06, Al-Waqah @ Tunjong, Tingkat 3, Bangunan H Elite Design 16010 Kota Bharu, Kelantan. Counsel for accused: Muhammad Khairul Azwan bin Azhan M/s Afiq Aziz & Co Advocates & Solicitors PT 2053, Desa Darul Naim 2, Pasir Tumboh, 16150 Kota Bharu, Kelantan.