Kogila A/p Krishnan v Pendakwa Raya (B-05(SH)-272-08/2023)

This is an appeal against the conviction and sentence imposed by the High Court at Shah Alam on 14 July 2023. The appellant was convicted under Section 26C of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (‘ATIPSOM 2007’) and sentenced to four years’ imprisonment from the decision date.

We had at the conclusion of the appeal, affirmed the High Court’s conviction and sentence. Background facts

The charge against the appellant was as follows: "Bahawa kamu pada 25.9.2019 di antara jam 08.30 pagi sehingga jam 09.00 pagi di Pintu Pelepasan C3, Lapangan Terbang Antarabangsa (KLIA) di dalam Daerah Sepang, dalam Negeri Selangor Darul Ehsan, telah membawa dalam transit seorang migran yang diseludup, iaitu: JEYARAJASINGAM PIRAMILAN (KKL/LKA/12.04.2006/NO. PASPORT: TIADA) menerusi Malaysia melalui udara, dan dengan yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 26C Akta Antipemerdangangan Orang dan

The prosecution had called fifteen witnesses to testify, whereas the appellant was the sole witness for the defence.

A Sri Lankan minor, Jeyarajasingam Piramilan (‘JP’), aged 13, travelled from Sri Lanka to Kuala Lumpur International Airport (‘KLIA’) on 24 September 2019 using his own passport. His travel plans included a transit in Malaysia followed by flights to Muscat and Paris. JP claimed that his father wanted him to stay with his uncle in Paris to continue his studies. He was accompanied by a woman named Selvarajani from Sri Lanka to KLIA.

JP and Selvarajani arrived at KLIA and were introduced to the appellant, who was assigned to accompany JP from KLIA to Paris. The appellant and JP took an Oman Air flight and arrived in Muscat, Oman, on 25 September 2019. They were scheduled to transit in Muscat before continuing their flight to Paris. Unfortunately, JP was denied entry in Muscat after officials there discovered that he did not match the Malaysian passport he was carrying. Both the appellant and JP were refused entry in Muscat and deported back to Kuala Lumpur. They were detained by Malaysian Immigration officials upon their arrival at KLIA.

The Malaysian Immigration officials discovered that JP had used the Malaysian passport belonging to a Malaysian boy named Diviyan A/L Magendaran (SP3). The prosecution produced a CCTV recording showing the appellant and SP3 registering for the flight to Muscat at KLIA. The accused then went into the departure hall alone. SP3 had returned home with the appellant’s friend, named Meera. The appellant met JP at Gate 2 of the Departure Hall and handed him a T-shirt that was similar to the one worn by SP3 to wear. JP then boarded the flight using SP3’s boarding pass and passport.

The High Court, in holding that the prosecution had proven a prima facie case against the appellant under Section 26C of ATIPSOM 2007, was satisfied that the appellant had smuggled JP, a migrant, by air. The appellant’s defence

The appellant claimed that she was in a state of emotional and psychological vulnerability at the relevant time because she had endured prolonged physical abuse from her then-boyfriend, Suresh Kumar, and previously from her former husband. She was easily influenced and susceptible to manipulation, owing to her limited education, having only completed Standard Six, and her modest work experience as a machine operator. It was within this context of personal instability that she accepted a free trip to Paris from a woman named CK Akka (‘CK’).

The appellant also claimed that all arrangements for the trip, including purchasing her flight ticket and booking accommodation, were made by CK. However, CK wanted the appellant to bring JP with her to Paris. She was told that JP had been abused by the relatives he was staying with, and that his parents, who lived in Paris, wished to be reunited with him. The appellant stated that she agreed to travel with the child solely out of sympathy, having experienced abuse and hardship herself.

The appellant was driven to KLIA by an associate of CK, Meera. SP3, her mother, and another child were also in the car. Meera told her that they were her relatives. Meera handled the check-in process and handed over the appellant’s passport and boarding passes. She also gave the appellant SP3’s passport and boarding pass. The appellant did not check SP3’s passport, as she believed it belonged to the boy she was supposed to travel with to Paris. Meera told the appellant that the boy she would be travelling with would be waiting for her at the departure gate.

The appellant first met JP at Gate 2, who was accompanied by a woman named Selvaranjani. At that time, she believed the child’s name was Diviyan A/L Magendaran, as shown in the passport she was given. She denies any knowledge that the child was actually JP. The accused then provided JP with a T-shirt to change into, as CK had advised her to keep JP warm during the flight.

The appellant relies on the fact that the airline staff at KLIA examined the passport bearing Diviyan’s name and allowed the child to board. She contended that this reinforced her belief that the documentation was legitimate and that she was not involved in any illegality.

The appellant admitted telling the airport officials at Muscat that JP was her stepson when questioned, but she claimed she did so under instructions. She was willing to lie to ensure that JP would reunite with his parents in Paris. However, the whole charade was discovered by the Muscat airport officials when they examined the passport presented by JP and found that the passport was not JP’s. The appellant and JP were instructed to sit and wait.

The appellant then called CK, who told her that a man named Ramesh would contact her. Soon after, Ramesh called the appellant and assured her that there would be no problem. The appellant only realised that the passport did not belong to JP when the officials at Muscat airport asked her to look at the passport held by JP. Apparently, JP relented and told the airport officials that he was actually from Sri Lanka. During this time, the appellant called Ramesh again, who finally confirmed that JP was indeed a Sri Lankan. However, he instructed the appellant to lie by saying that JP was her Facebook friend, and threatened to harm her children in Malaysia if she refused. An officer spoke to Ramesh using the appellant’s phone. Apparently, Ramesh tried to convince the officer that JP was his son, but the officer was unconvinced. Both the appellant and JP were then deported back to Malaysia. Malaysian immigration officials detained them upon their arrival at KLIA. The appellant claimed she was deceived and manipulated. The appeal

Only one issue was raised by the appellant in this appeal. The appellant contended that she was deprived of her constitutional rights under Article 5(1) and 8(1) of the Federal Constitution as the High Court did not allow her counsel to make submissions on the admissibility of her statement to an Immigration officer.

The appellant referred to her statement given to an Immigration officer, Nik Bakri bin Nik Musa, during the investigation. This statement was marked as exhibit P77. The appellant’s complaint concerns the alleged procedural and substantive unfairness regarding the admissibility of P77.

The respondent attempted to tender P77 during the examination-in-chief of SP15, the Investigating Officer. The appellant’s counsel objected to the admission of P77, relying on Section 113 of the Criminal Procedure Code (‘CPC’), and reserved her cross-examination of SP15. The learned Deputy Public Prosecutor (‘DPP’), however, argued that the statement was tendered under Section 18A of the Security Offences (Special Measures) Act 2012 (‘SOSMA 2012’). The appellant’s counsel maintained her objection based on Section 113 CPC. The learned judge was of the view that any statement made by the appellant is admissible under Section 18A of SOSMA 2012. The appellant contended that the learned judge reserved her ruling on the admissibility of P77 and instructed her counsel to address this matter later. The appellant claimed that the learned judge agreed with her counsel’s request that P77 be marked as ID77 first, pending the determination of its admissibility as an exhibit.

At the subsequent trial date, the DPP informed the court that the enclosures referred to in P77 had been inadvertently omitted, which led the learned judge to enquire with the appellant’s counsel whether she had any objections. The appellant claimed that her counsel decided to withdraw her objection to P77 but maintained her objections regarding its enclosures, which led the learned judge to admit P77. The appellant’s counsel also complained to the court that the enclosures had not been served in accordance with Section 51A CPC. However, the learned judge allowed the enclosures to be admitted, provided the appellant’s counsel was given time to study them before crossing SP15.

The appellant argued that the learned judge failed to invite parties to submit on the admissibility of P77. She also contended that the judge should have invited submissions on whether Section 18A of the SOSMA 2012 applies in light of a specific law in Section 35 of ATIPSOM 2007, which states that no statement made to an enforcement officer during an investigation shall be used as evidence, except by an accused in support of their defence. The appellant argued that, since she was charged under Section 26C of ATIPSOM 2007, Section 35 of the Act should take precedence over Section 18A of SOSMA 2012. She submitted that she suffered a serious miscarriage of justice and was denied a fair trial, as the learned judge should have invited both parties to submit on the admissibility of P77.

Although the appellant’s counsel initially objected to the admissibility of P77, the objection was later withdrawn, leading the learned judge to mark the statement as exhibit P77. The appellant’s counsel then objected to the enclosures attached to P77 on the grounds that they were not served in accordance with Section 51A of the CPC, which requires the respondent to serve the document before trial. The learned judge was justified in permitting the enclosures’ admission, as this was subject to the condition that the appellant’s counsel be given time to review the enclosures before cross-examining SP15. Moreover, our review of the Notes of Proceedings shows that the appellant’s counsel was able to cross-examine SP15 on P77. The appellant did not suffer any prejudice.

Furthermore, Section 51A(3) of the CPC states that a document shall not be admissible as evidence solely due to non-compliance with Section 51A(1). The Federal Court in Benjamin William Hawkes v PP [2020] 8 CLJ 267 held as follows: [67] The other issue is with regards to the distinction between the provisions which prescribed the manner of the trial, such as ss. 399 and 402A of the CPC and the provisions which facilitate the conduct of the trial such as s. 51A of the CPC. Disregard of the former is fatal to the trial and would at once invalidate the conviction. However, disregard of the latter is not fatal unless the court is satisfied that the accused had been prejudiced. The non-compliance with s. 51A of the CPC would not statutorily prevent the prosecution from tendering the documents which were not delivered to the accused person before trial as evidence in the course of the trial. Hence it is only procedural and not evidential. It is trite law that even in cases of evidence obtained illegally, its admissibility is unaffected as the issue is actually relevancy……

The appellant’s claim that the learned judge failed to invite parties to submit on the admissibility of P77 is, in our view, unmeritorious. The appellant’s counsel was free to raise his objection regarding the admissibility of P77 during submissions at the end of the prosecution’s case. There is also nothing stopping her counsel from addressing it at the conclusion of the defence’s case. The appellant’s concerns would have been valid if the learned judge had prevented her counsel from submitting on the admissibility of P77. It is not the role of the learned judge to invite counsel to submit on any issue, especially in our adversarial system.

The appellant also argued that the learned judge erred in admitting P77 in light of Section 35 of ATIPSOM 2007, which states that no statement made to an enforcement officer during an investigation shall be used as evidence except by an accused to support their defence. The appellant contended that since she was charged under Section 26C of ATIPSOM 2007, Section 35 of the Act must take precedence over Section 18A of SOSMA 2012.

We are also of the view that the learned Judge had correctly admitted P77 under Section 18A of SOSMA 2012, as any statements made during the course of investigation are admissible. Section 18A states as follows: 18A Statement by accused Any statement by an accused whether orally or in writing, to any person at any time shall be admissible in evidence.

We agree with the submissions made by the learned counsel for the respondent that the offence committed by the appellant falls within the scope of SOSMA 2012. Section 3 of the Act defines “security offences” as offences specified in the First Schedule, which includes

In any event, any statements made under Section 18A SOSMA 2012 must not be viewed in isolation. It is insufficient for the court to merely rely on the statement made by an accused without evaluating the other evidence; PP v Jafperi Noor & Anor [2024] 7 CLJ 827. Having perused the learned judge’s Grounds of Judgment, we find that the learned judge did not solely rely on the appellant’s statement under P77 in finding the appellant guilty of the offence charged.

As for the sentence, the appellant argued that four years of imprisonment was excessive, as the aggravated offence of smuggling under Section 26B ATIPSOM 2007 prescribes a minimum sentence of no less than three years but not exceeding twenty years. The appellant also argued that she was not the mastermind and was merely a transport operator who did not profit financially. She urged the court to consider that she did not physically harm JP, which is regarded as a more serious offence under Section 26B with a heavier sentence of imprisonment. Finally, the appellant pointed out that she was a first-time offender and requested her sentence be reduced to two years, citing her emotional and financial suffering.

We are disinclined to interfere with the sentence passed by the High Court. The appellant had played an active role in smuggling JP. We are of the view that the sentence passed by the High Court was neither excessive nor disproportionate to the crime committed.

We find no credible reasons to interfere with the findings and sentence passed by the High Court. The appellant’s appeal on conviction and sentence is therefore dismissed. Dated: 24 November 2025 -sgd- (MOHAMED ZAINI MAZLAN) (JUDGE) (COURT OF APPEAL MALAYSIA) Counsel for the Appellant : G.K Sritharan, P. Rajagunaseelan & Tan Meng Khong Messrs G.K Sritharan & Co Counsel for the Respondent : Norzilati Izhani binti Zainal @ Zainol