HO BENG HOCK v Pendakwa Raya (Q-05(SH)-61-02/2023)

Ramly (Passport No: C0695733) Indonesia;

Muhamad Subhan (Passport No: AT449662) Indonesia;

Mat Suri (Passport No: B1814131) Indonesia;

Abdul Rauf (Passport No: Nil);

Samsudin (Passport No. Nil);

Sarjan (Passport No. Nil) And that you have thereby committed an offence punishable under section 26J of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007.” Facts [4] The facts of the prosecution’s case as found by the learned High Court Judge are reproduced as follows: “The case for the prosecution [3] On 20.3.2021, PW2 (ASP Mohd Zaimi bin Ismail) and his team was conducting patrolling and observation duty in OP Benteng Covid at Simpang Kampung Dalia Mawang. At about 12.00 midnight he saw a car, a blue Aruz car with registration no. QCJ 7222, exiting from the dead end (jalan mati) heading towards an illegal road heading to Malaysian/Indonesian border. PW2 and his team followed the car until PW2 stopped the car about 100-200 meters from Simpang Kampung Daha Mawang, Jalan Mapu Tebedu, Serian. The driver of the car was later identified as the accused person. Upon inspection, PW2 found six Indonesian man, whose identities were particularized in the charge. Three of the Indonesians travelling in the Aruz car (namely Ramli, Muhamad Subhan and Mat Suri) had in their possession, expired Indonesian passport with them, whereas the three others (Abdul Rauf, Samsudin and Sarjan) did not have any valid travelling document. The six Indonesian passport were travelling towards the Malaysian/Indonesian border. During the investigation, it was revealed that there was no record of movement of the six Indonesian into Malaysia. This fact was confirmed by PW1 (Immigration Officer Bujang Brory bin Rosli). In the course of investigation, the six Indonesian men gave their deposition before a Session Court Judge on 20.10.2021 and revealed that, on the date of incident, they were not in possession of a valid travelling document and were on their way to the border town of Tebedu en route to Indonesia using illegal exit road. Three of the six Indonesian had been charged under section 6 (1) (c) of and the other three were charged under section 15 (1) (c) of the Immigration Act 1959/63. They were sentenced to four months imprisonment and had since been deported back to Indonesia. It is the prosecution’s case that, on the date of the incident, the accused was arranging and sending the six Indonesians to return to Indonesia.” Summary of the Appellant’s Contentions [5] Summarily, two main issues were raised and canvassed by the Appellant via his Petition of Appeal and submissions by the learned counsel. The two main issues were:

that the six (6) Indonesians are not “smuggled migrants”; and

that the Appellant was misled by the charge. Evaluation and Findings 1.Whether the six (6) Indonesians are “smuggled migrants” [6] Section 2 of ATIPSOM defines “smuggled migrant” as: “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” [7] Section 2 of ATIPSOM further defines “smuggling of migrants” to mean- ‘’(a) arranging, facilitating or organizing, directly or indirectly, a person’s unlawful entry into or through, or unlawful exit from, any country of which the person is not a citizen or permanent resident either knowing or having reason to believe that the person’s entry or exit is unlawful; and

recruiting, conveying, transferring, concealing, harbouring or providing any other assistance or service for the purpose of carrying out the acts referred to in paragraph (a);” [8] “Conveyance” is defined in section 2 of ATIPSOM to mean- “…any vehicle, vessel, ship, aircraft, or any other mode of transport whether by air, sea or land.” [9] Section 26J of ATIPSOM states: “Offence of conveyance of smuggled migrants 26J. Any person being the owner, operator or master of any conveyance who engages in the conveyance of smuggled migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding five years and shall also be liable to a fine not exceeding two hundred and fifty thousand ringgit, or to both.” [10] In accordance with the above definitions it was the prosecution’s case that the Appellant being the operator of the Perodua Aruz bearing registration number QCJ 7222 (“Perodua Aruz”) was engaged in the conveyance of the 6 Indonesians who were smuggled migrants. [11] It was the Appellant’s contention that the 6 Indonesians were not the object of the act of smuggling of migrants because they have entered Malaysia voluntarily regardless of whether they have entered with or without a valid pass and they cannot be said to have been smuggled by the Appellant as their entry into Malaysia was without the Appellant’s involvement. Learned counsel for the Appellant further cited Article 3(a) of the United Nations “Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime [2000]” where for the purpose of the Protocol, the 6 Indonesians cannot be said to be “smuggled migrant” into their home country, [12] We find that the interpretations of “smuggled migrant” and the act of “smuggling of migrants” in section 2 of ATIPSOM are self-explanatory. The inclusion of the word “or” in the definition of “smuggling of migrants” clearly demonstrate that there are two scenarios where migrants are said to be smuggled migrants; the first is when they illegally enter into or through any country of which they are not citizen or permanent resident and the second scenario is when they unlawfully exit from any country of which they are not citizen or permanent resident. The two acts, unlawful entry and unlawful exit, exist independently. [13] We are satisfied that from the facts and evidence presented by the prosecution at the trial, the 6 Indonesians not being citizen of Malaysia unlawfully exiting from Malaysia comes within the definition of “smuggled migrants” as defined under section 2 ATIPSOM. Evidence was adduced showing that at the time of arrest the 6 Indonesian migrants initially told the arresting officer that they had just entered Sarawak but later admitted that they wanted to return to Indonesia. The Immigration Department confirmed that from their data system (MyImms), there were no record on the movements of the 6 Indonesian migrants. It was further confirmed that at the time of arrest, three out of the 6 Indonesian migrants were in possession of valid passports but they overstayed in Malaysia after the expiry of their social visit pass. They were charged under section 15 (1) of the Immigration Act 1959/63 and were sentenced to four (4) months imprisonment and had since been ordered to be removed pursuant to an Order of Removal under section 33 (1) of the same Act. The other three Indonesian migrants did not have valid travelling document and were charged under section 6 (1) of the Immigration Act 1959/63 and were sentenced to four (4) months imprisonment and four (4) strokes of whipping. They had also been ordered to be removed from Malaysia pursuant to section 33 (1) of the same Act. It can therefore be inferred that all the 6 Indonesian migrants were staying in Malaysia illegally at the time of their arrest. [14] We find that the learned High Court Judge did not err in his findings of fact that all the 6 Indonesian migrants were staying in Malaysia illegally and were exiting Malaysia through the Malaysian/Indonesian border via an illegal road at the time when the Immigration checkpoint was closed. The Appellant was arrested while driving the Perodua Aruz with the 6 Indonesian migrants in the same car at about 12 midnight. The evidence disclosed that the enforcement officers tailed the Perodua Aruz driven by the Appellant for 10km towards the Malaysian/Indonesian border. The Perodua Aruz was seen to be exiting from the dead end of Kampung Mapu Kijabu and heading towards an illegal road (jalan tikus) towards the Malaysian/Indonesian border. [15] We find no error on the part of the learned High Court Judge who had rightly directed his mind to the interpretation of “smuggling of migrant” which can be gleaned from the following excerpts of His Lordship’s judgment: “[31] Secondly, the term “smuggling of migrant” has been comprehensively defined by section 2 of the ATIPSOM. In the context of this trial, there must be evidence of arranging, facilitating or organizing, directly or indirectly a person’s unlawful entry or unlawful exit from Malaysia by the accused. The act of illegal entry is independent of that act of illegal exit. In my opinion, notwithstanding the Learned Counsel’s submission on his interpretation of smuggling of migrant under Article 3 (a) of the United Nations Protocol Against the Smuggling of Migrants by Land, Sea, and Air, Supplementing the United Nations Convention Against Transnational Organized Crime [2000], this court should follow the clear statutory interpretation of the term smuggling of migrant in the light of section 2 ATIPSOM. [32] In my opinion, the act of conveyance of smuggled migrants under ATIPSOM is not dependent on any act of a third party before the accused can be said to have knowledge or reason to believe that the entry or exit is unlawful. In other words, the prosecution need not prove that there must be an act of smuggling of migrant first before the act of conveyance of smuggled migrant can be established. The act of arranging, facilitating or organizing of a person’s unlawful exit is independent of the act of arranging, facilitating or organizing of a person’s unlawful entry. Either one of the acts may constitute the act of smuggling of migrant. Hence, if a foreign national has legally entered Malaysia, his exit may fall under the definition of smuggling of migrant if his exit is by way of illegal means. In short, for the offence under section 26J, the prosecution need not show that the accused had also participated in the illegal entry of the migrant or had engaged some third party to arrange, facilitate or organize a person’s unlawful exit from any country. His single act of arranging, facilitating or organizing of a person’s unlawful end is sufficient to attract the application of section 26J of ATIPSOM. [33] Be that as it may, I am also of the opinion that the definition of smuggled migrants and smuggling of migrants under ATIPSOM do not contravene the definition of smuggling of migrant found in Article 3 (a) and 3 (b) of United Nations Protocol Against the Smuggling of Migrants by Land, Sea, and Air, Supplementing the United Nations Convention Against Transnational Organized Crime. In fact, the definition under section 2 of ATIPSOM covers a wider scenario i.e. it makes an act of assisting etc. of a person’s unlawful exit from a country an act of smuggling of migrants even without financial or other material benefit. The definition under section 2 is an extension of and is consistent with the said convention.” [16] It was further argued that the Appellant cannot reasonably be deemed to know that the 6 Indonesians were without passports or legal document as the prosecution did not challenge that the Appellant was under the impression the 6 Indonesians were local bumiputera natives from their appearances and the way they spoke. It can be understood from the Appellant’s contention that there was absent of knowledge on his part that the 6 Indonesians are smuggled migrants. We agree with the findings made by the learned High Court Judge in so far as the element of knowledge is concerned. The learned High Court Judge stated: “[38] In so far as the element of knowledge is concerned, I am of the opinion that it can be proven by examining the circumstances of the case. The element of knowledge can be inferred from surrounding facts and circumstances of this case. In the present case, the Court can take into account the fact that the accused was first seen exiting a dead end at Kampung Mapu Kijabu and was stopped by the police team on road leading towards Tebedu checkpoint at about 12.30 a.m. i.e. at the wee hour on 20.32021 to infer that the accused know or have reasons to believe that the six Indonesians were attempting to exit Malaysia illegally.” [17] It is our finding that the Appellant knew and had reason to believe that all the 6 Indonesian migrants were about to exit Malaysia by driving them via the unlawful/illegal route and not by using the Immigration, Customs, Quarantine and Security (ICQS) check point. [18] The defence raised by the Appellant was that being a part time Grab or taxi driver, he has no knowledge that the 6 Indonesians migrant who were passengers in his car are Indonesians. We find that the learned High Court Judge was right in concluding that the Appellant was involved in conveying the 6 Indonesians migrants to exit Sarawak, Malaysia. In assessing the Appellant’s defence, the learned High Court Judge stated: “[41] The crux of the accused’s defence is premised on the alleged facts that being a part time Grab or taxi driver, he has no knowledge that the 6 passengers/persons in this case are Indonesians and that the accused was not involved in conveying in smuggled migrant to exit Sarawak. [42] Firstly, it must be noted that the accused did raise the issue during prosecution’s case. PW4 was asked in cross-examination whether she investigated the fat that the accused was involved in a taxi business or Grab business. Hence, the accused is perfectly entitled to give evidence pertaining to the events purportedly took place at Serian bus station which eventually resulted in him transporting the 6 Indonesians. [43] Be that as it may, I find that the accused’s testimony/evidence is improbable. Firstly, it was revealed during cross-examination of the accused that his Grab licence had expired at the date of the commission of the offence. Further, it was also revealed during cross-examination that the accused did not possess a taxi licence and did not apply for a taxi licence since

While I may take judicial notice that there are many people operating illegal taxi (taxi sapu) business, it is not the defence case that he was operating a taxi sapu business at that material time. [44] Further, I am of the opinion that the accused’s defence is inconsistent with his cross-examination of the prosecution’s witness. In his evidence, the accused claimed that when he was driving the 6 people, they told him that they wanted to go to Tebedu town (Q&A 218). He also claimed that the 6 people wanted to go back to kampong in Tebedu (Q&A220), but later, he testified that the 6 people wanted to go to Tebedu because they wanted to drink and eat there like people usually go there to do so (Q&A228). It must also be noted that in his defence, the accused did not say anything about the fact that he was seen exiting the dead end at Kampung Mapu Kijabu. [45] The evidence/line of defence is obviously inconsistent with the evidence of the prosecution’s witness during their cross-examination. In her cross-examination, PW4 agreed with the suggestion that when they were arrested, the 6 Indonesians just wanted to go back home to their own country, Indonesia (Q&A170). Further, PW2 in his cross-examination also agree that the 6 Indonesian wanted to go home to Indonesia(Q&A99). [46] In my opinion, the above inconsistencies show that the accused was manufacturing his evidence to suit his defence and ought to be disregarded. [47] In so far as the accused’s knowledge is concerned, the accused’s evidence must be considered in the light of the judicial pronouncement in decided case. In Parlan bin Dadeh v PP [2008] 6 MLJ 19, the Federal Court held that: “Proof of knowledge is very often a matter of inference….it would be sufficient for the prosecution to prove facts from which it could properly be inferred that the accused that the necessary knowledge.” …. [49] As stated by PW2, the accused was arrested at the illegal (jalan tikus) leading to Tebedu at about 12.30 a.m. whereas the Immigration check point at Tebedu closes at 5 p.m. In my opinion, this evidence is relevant to infer that the accused had knowledge or reason to believe that the 6 Indonesians are smuggled migrant and planned to go back to Indonesia illegally.” [19] Again, we find no error on the part of the learned High Court Judge in his findings as stated in the above. We are of the view that the High Court Judge drew the correct inferences from the primary facts.

2.Whether the Appellant was misled by the charge preferred against him [20] Before this Court, the Appellant repeated his contention raised at the High Court that the charge against him was defective by the fact that the word “involved” was stated in the charge instead of the word “engages” as per section 26J of ATIPSOM. It was argued that by the use of the word “involved”, no offence under the law was therefore disclosed. We find that the learned High Court Judge had rightly addressed this issue in the following paragraphs of His Lordship’s judgment: “[16] In this respect, it was submitted on behalf of the accused that the charge against the accused is defective in that the word “involved” was used instead of the word “engages”. The use of the word “involved” is bad in law and discloses on offence known to law. It is submitted that it is not right of the prosecution to change anyhow as and when they like the specific wordings any Penal provisions. The case of Shawal bin Yassin v PP [2006] was cited in support of this contention. [17] In response, the learned Deputy Public Prosecutor (DPP) submitted that the charge is not defective and the court was invited to examine the Bahasa Malaysia version of section 26J and submitted that the accused was not misled by the word “involved” which appeared in the charge. [18] The Bahasa Malaysia version of section 27J reads as follows: “Mana-mana orang yang merupakan pemunya, operator atau nakhoda mana-mana pengangkutan yagn terlibat dalam pengangkutan migran yang diseludup melakukan satu kesalahan dan hendaklah apabila disabitkan, dihukum dengan pemenjaraan selama tempoh tidak melebihi lima tahu, dan juga boleh dikenakan denda tidak melebihi dua ratus lima puluh ribu ringgit, atau kedua-duanya.” [19] The Bahasa Malaysia version above used the word “terlibat” which, when translated in English means “involve”. It is not unreasonable to infer that the charge in this case was prepared based on the Bahasa Malaysia version of section 26J and the word “terlibat” was translated as “involved”. Be that as it may, the English version of section used the word “engaged” and as stated earlier, the accused contended that since the charge used the word “involved” the charge is defective as it does not disclose any offence known to law. [20] It is settled law that section 152 (1) Criminal Procedure Code requires every charge to state the offence with which the accused is charged. The prosecution has the duty to particularise the charge sufficiently so as to give adequate notice to the accused (see Public Prosecutor v Raymond Chua Kim Chwee & Anor [1985] 2 MLJ 436). In the case of Lim Beh & Ors v Opium Farmer

3 Ky 110 it was held: “If there be one principle of criminal law and justice clearer and more obvious than all others, it is that the offence imputed must be positively stated, so that the accused may certainly know with what he is charged and may be prepared to answer the charge in the best way.” [21] The law requires the prosecution to state precisely the offence said to be committed by the accused in the charge. In determining the offence, reference should be made to the specific name of the offence or the definition of the offence as specified by the law which creates the offence (see section 152 (3) of CPC). In this case, I agree with the submission by the DPP that the offence under section 26J relates to the act of conveying of smuggled migrant. Hence, the word “engaged” or “involved” does not change the nature of the offence the accused is charged with. Further, one of the meaning of the word “engage” is “involve” (see: Cambrigde Dictionary at http://dictionary.cambridge.org/dictionary/engage). Hence, in the context of the instant case, the use of the word “involved” in the charge does not make the charge defective as it would carry the same meaning as “engaged” [22] Be that as it may, I am of the opinion that, pursuant to section 156 of the CPC, the error in using the word “involve” in the charge shall not be regarded as material because, from the conduct of the defence throughout the trial, I find that the accused was not misled by the error and may be cured by this section as illustrated in the case of Saw Tuan Cheng v Public Prosecutor [1946] MLJ 143 and Haji Abdul Ghani bin Ishak & Anor v Public Prosecutor [1981] 2 MLJ 230. Furthermore, this error has not occasioned any miscarriage of justice and is curable under section 422 of the CPC (see Low Seng Wah v Public Prosecutor [1962] MLJ 107. In the circumstances, I am of the opinion that the charge is not defective.” [21] We agree with the learned High Court Judge’s findings and considered view. We find that the charge against the Appellant was framed or drafted with sufficient clearness and certainty wherein the Appellant was said to have committed the offence of conveyance of smuggled migrants under section 26J of ATIPSOM. It all goes back to the element of the offence to be proven and the used of the word “involved” instead of the word “engages” did not cause any ambiguity or prejudice to the Appellant. It must be noted that the burden is on the Appellant to establish that he was misled by the error (see Zulkiflee Mohd Dom v PP [1997] 3 CLJ Supp 290) and we find that the Appellant has failed to discharge the burden. Conclusion [22] We are mindful of the trite law and oft-quoted principle that a finding of fact by a trial judge will only be set aside upon appeal where incontrovertible facts or testimony which are uncontested show that the trial judge’s conclusions are plainly wrong. This is certainly not the case here. We find that the learned High Court Judge had properly considered and evaluated the evidence adduced both at the prosecution and defence stages. We are satisfied that the prosecution had proven beyond reasonable doubt the offence of conveyance of smuggled migrants under section 26J of ATIPSOM. [23] We find no appealable error on the part of the learned High Court Judge in convicting the Appellant. We are of the view that the conviction of the Appellant is safe. The appeal was therefore dismissed. The conviction and sentence passed by the High Court, upheld. Dated: 17th September 2025 Sgd [Noorin Binti Badaruddin] Judge Court of Appeal Malaysia LIST OF COUNSELS: Counsels for Appellant

Dato’ Shankar Ram Asnani

Shemira Binti Adzhar

Liu Wan Ping [Thomas, Shankar Ram & Co. Adv. (Kuching)] Counsel for Respondent DPP Mohamad Arif Aizuddin Masrom [Deputy Public Prosecutor Attorney