the said person shall be examined in accordance with the provisions of the Evidence Act 1950. Section 52 therefore has got nothing to do with the taking of depositions of any person. It is concerned with the recording of a trafficked persons evidence on oath. [17] A plain reading of section 61A on the other hand, relates to a situation where the deposition taken of a person who is both a smuggled migrant or a trafficked person and whom in respect of which an order of removal from Malaysia has been made by the Director General of Immigration, becomes admissible as prima facie evidence of any fact stated therein. In this case, the Respondent 7 contended that the persons from whom the depositions were taken were smuggled migrants. [18] In order therefore to determine whether learned counsel for the Applicant has merits in his complaint that he ought to have been accorded the right to cross examination during the course of the taking of the depositions of the witnesses, it is necessary to first determine whether the witnesses were trafficked persons. [19] Section 2 ATIPSOM contains the following definitions : "smuggled migrant" means a person who is the object of the act of smuggling of migrants, regardless of whether that person participated in the act of smuggling of migrants; "trafficked person" means any person who is the victim or object of an act of trafficking in persons; [20] The Applicant submitted that the witnesses were in fact trafficked persons and alluded to the admission made by the Respondent’s themselves in their affidavit in reply in paragraph 13. [21] The Respondent however, referred to their affidavit in reply affirmed on 18.7.2017 where it was clarified that the phrase of trafficking that was previously used was a mere typographical error and confirmed that the deponents were in fact smuggled migrants. [22] The learned Deputy Public Prosecutor (“DPP”) representing the Respondent’s, cited the following cases, inter alia, Mohd Faudzi Othman v PP [2015] 1 LNS 1019, PP v Shahrulnizam Othman & Ors [2011] 5 CLJ 674 and Gakyah Buyong v PP [2015] 3 CLJ 919 respectively. With the exception of Gakyah Buyong v PP, it was submitted that the other two cases supported their stand that counsel for the Applicant had no right to cross examine the witnesses who gave the depositions. 8 [23] In Mohd Faudzi Othman v PP (supra), the issue was whether the wording in section 61A (4) ATIPSOM allowed the admission of depositions recorded under any other section of the Act or any other acts. The court there held that a deposition recorded under section 40A of the Immigration Act 1959/1963 is admissible in evidence in a criminal proceeding under ATIPSOM. [24] The court there went on to hold as follows : “I observe that a deposition is required to be made before a Session Court judge or a Magistrate if made in Malaysia. I am of the view that such requirement is clearly intended to prevent a deponent from being subjected to harassment or duress when making a deposition. The reason a deposition has to be made before a Session Court Judge or a Magistrate is to ensure that justice is administered and accorded to the deponent when making the deposition. Similar considerations apply to depositions made before a consular officer or a judicial officer of a foreign country.” [25] In PP v Shahrulnizam Othman & Ors and Gakyah Buyong v PP, the issue was whether section 40A of the Immigration Act 1959/1963 which is in para materia with section 61A of ATIPSOM, allowed deponents to be cross examined in line with the provisions of the Evidence Act 1950. [26] In PP v Shahrulnizam Othman & Ors it was held that section 40A of the Immigration Act 1959/1963 expressly excluded the operation of both the Evidence Act 1950 and the then Rules of the High Court 1980. [27] In Gakyah Buyong v PP, it was held the said section 40A of the Immigration Act 1959/1963 did not exclude the operation of the Evidence Act 1950 and therefore the deponents could be subject to cross examination. This case was however, overruled by the Court of Appeal albeit without the benefit of a written judgement. 9 [28] It is my observation that the provisions of section 40A of the Immigration Act 1959/1963 is in para materia with section 61A of ATIPSOM. [29] As alluded to earlier, section 52 and section 61A ATIPSOM deal with two very different situations. Section 52 deals with the recording of evidence of trafficked persons. To that end, Section 52(4) clearly states that in the course of the recording of evidence of such trafficked person, he shall be examined in accordance with the provisions of the Evidence Act 1950. [30] This is a clear intention of the Legislature to subject the manner of the recording of the evidence of such person to the provisions of the Evidence Act 1950 and accordingly to accord the right to counsel to cross examine the said trafficked persons. [31] Section 61A on the other hand, deals with the admissibility of depositions and not with recording of evidence on oath as is the case under section 52. [32] The opening words of section 61A namely “Notwithstanding anything contained in this Act and any written law to the contrary”, indicates the exclusion of the provisions of the Evidence Act 1950 and hence the right to cross examine. [33] In that regard I gratefully adopt the following passage in the judgement of Sofian Abd Razak J in PP v Shahrulnizam Othman & Ors (supra) : Upon the reading of s. 40A of the Act, the court was of the view that there is no lacuna in the section as it is quite clear that the words "Notwithstanding anything contained in this Act and any written law to the contrary" explicitly excludes any other written laws that is the Evidence Act 1950 and the Rules of High Court 1980 in the application of s. 40A. If Parliament had intended that any other provisions in any other written law to the contrary applies to s. 40A of the Act, then it would have clearly stated so as it did in s. 52(4) of the Anti-Trafficking in Persons Act 2007 where Parliament had intended 10 that in the course of the recording of evidence of the trafficked person, he shall be examined in accordance with the provisions of the Evidence Act 1950. I am not prepared to read words into s. 40A and interpret it the way learned counsel for the respondents had submitted. [34] It had earlier been seen that the provision in section 40A of the Immigration Act 1959/63 and that in section 61A are in pari materia with each other. [35] The other material distinction is that section 52 relates to a situation where a criminal prosecution has already been instituted meaning that a person is already charged. Section 61A on the other hand, relates to the taking of a deposition that can be taken at any time and even before a charge has been instituted. [36] It is obvious that the intent of section 61A is to pre-empt a situation where the smuggled or trafficked person may be subject to deportation by virtue of an order made by the Director General under the relevant provisions of the Immigration Act 1959/63. [37] Section 61A (1) (a) and (b) also allows such a deposition to be taken in the presence or absence of the person charged with the offence. [38] The other distinction is that pursuant to section 41A, section 52 does not apply unless the person is a trafficked person. Now, section 52 is contained in the same part as section 41A which is Part V of ATIPSOM. Section 41A is reproduced hereunder as follows :