Mamat Bin Mulamat v Pendakwa Raya (S-05(SH)-221-06/2023)

In this case, in the High Court, six (6) accused persons were separately charged with the smuggling of migrants under Section 26A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM Act 2007).

Out of six (6), only five (5) accused persons were found guilty and convicted as per the charge, and sentenced accordingly. The second accused person, Alias bin Omar, was, however, acquitted and discharged.

The five (5) accused persons appealed against the decision of the High Court via five (5) separate appeals. Before us, all five (5) appeals were heard together, before we dismissed them all. Only two (2) out of five (5) accused persons, i.e, Borhan bin Tahir （DW4/ 1 $ ^{st} $ Appellant）and Mamat bin Mulamat （DW3/ 2 $ ^{nd} $ Appellant），are appealing against our decision to the Federal Court. This is thus our grounds of judgment, having so decided.

The charges were as follows: - Borhan Bin Tahir (DW4/ $ 1^{\mathrm{st}} $ Appellant) "Bahawa kamu pada 03 haribulan Mac 2022, jam lebih kurang 6.03 pagi, bertempat di RCP Kalabakan, di dalam daerah Tawau, di dalam Negeri Sabah, telah menjalankan penyeludupan terhadap 10 orang migran sepertimana LAMPIRAN A dengan cara bertindak dengan mengangkut migran sebagai pemandu dan pengendali kenderaan jenis Van Fotun berwarna putih bernombor pendaftaran SWA 7297 dan oleh yang demikian, kamu melakukan kesalahan yang boleh dihukum di bawah seksyen 26A Akta Antipemerdagangan Orang dan Anti Penyeludupan Migran 2007 (Akta 670) dan boleh dihukum di bawah seksyen yang sama." Mamat Bin Mulamat (DW3/ $ 2^{\mathrm{nd}} $ Appellant) "Bahawa kamu pada 03 haribulan Mac 2022, jam lebih kurang 6.03 pagi, bertempat di RCP Kalabakan, di dalam daerah Tawau, di dalam Negeri Sabah, telah menjalankan penyeludupan terhadap 4 orang migran sepertimana LAMPIRAN A dengan cara bertindak dengan mengangkut migran sebagai pemandu dan pengendali kenderaan jenis Toyota Hilux berwarna hijau bernombor pendaftaran SU 9291 dan oleh yang demikian, kamu melakukan kesalahan yang boleh dihukum di bawah seksyen 26A Akta Antipemerdagangan Orang dan Anti Penyeludupan Migran 2007 (Akta 670) dan boleh dihukum di bawah seksyen yang sama.

In the High Court, the prosecution called two (2) witnesses to prove its case. They are, Kpl Samsul bin Wahap (PW1) from Batalion 14 Pasukan Gerakan Am Tawau (PGA), and also the Investigating Officer, ASP Maliki bin Majuni (PW2).

On 3 March 2022, at about 6.03 am, PW1, together with Konst. Nabeel, Konst. Asyraf, Konst. Rasydan from the PGA and four (4) RELA personnel were manning a roadblock. They stopped seven (7) vehicles and found 54 persons in them, including the seven (7) drivers. There were 26 passengers without valid identity documents, while six (6) of the drivers were Malaysians, and the remaining driver was an Indonesian citizen.

The seven (7) vehicles were seized, including those bearing registration numbers SU9291 and SWA7297, which were driven by DW3 and DW4 (the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Appellants).

Though seven (7) persons were arrested on suspicion of smuggling migrants as listed in PW1's police reports, which bore the references KALABAKAN/281/2022 and KALABAKAN/283/2022, only six (6) of them were charged.

Based on PW2's Witness Statement (WSPW2), it appears that the arrestees were re-arrested. In this regard, Insp Amir Aiman bin Abu lodged the police report reference number TAWAU/2933/2022.

The drivers of the six (6) vehicles were identified as follows: a. Andis bin Abbas (DW1); b. Alias bin Omar (DW2); c. Mamat bin Mulamat (DW3/ $ 2^{n d} $ Appellant); d. Borhan bin Tahir (DW4/ $ 1^{\mathrm{st}} $ Appellant); e. Royanto bin Goncing (DW5); f. Hasim bin Saini (DW6).

PW2 instructed one Kpl Ahmad to take photographs of the seized vehicles. PW2 prepared a sketch plan of the crime scene. He also obtained the entry and exit records of all the migrants from the Immigration Department of Malaysia (IDM) under the cover of its letter dated 8 March 2022 (Exhibit P27). The letter stated that all the migrants were Indonesian. It identified the migrants with Indonesian passports and those without travel documents.

The prosecution further relied on depositions. In respect of the migrants who had their depositions recorded, the evidence of the IDM was "rekod pergerakan tidak wujud" or "tiada maklumat pergerakan." (Exhibit P27 (1-12)). Findings of the High Court at the end of the Prosecution's Case

At the close of the prosecution's case, the learned High Court Judge (HCJ) found, among others: a. The core characteristic of smuggling or "smuggled migrant" within the context of the ATIPSOM Act 2007 is the illegal conveyance of the migrant into or out of the country without going through the authorised channels. While such illegal conveyance is often carried out secretly, secrecy is not definitive of smuggling. b. The migrants were without travel documents, and their exit from the country was alleged to be facilitated by the Appellants and/or accused persons. c. A perusal of P27(1-12) shows that the deponents were all of Indonesian nationals. They were non-Malaysians and did not have the right of permanent residence in Malaysia or valid work permits. Some of them lacked travel or identification documents, while those who did had either the remark "tiada maklumat pergerakan direkodkan" or "rekod pergerakan tidak wujud." d. The accused persons were actually secretly facilitating the smuggling of the migrants out of the country by attempting to slip them through under the cover of darkness, just before first light, when they were apprehended at around 6.03am. e. The accused persons' mens rea or knowledge of the migrants' illegal status can be inferred from these circumstances. (Parlan bin Dadeh v Public Prosecutor [2009] 1 CLJ 717; [2008] 6 MLJ 19); [2008] 2 MLRA 763). When these facts are taken together with the testimony of PW1 and PW2, as well as the depositions, one would be inclined to think that the prosecution has established a prima facie case against the accused persons. f. The contention that there was no identification of the accused persons by the makers of the depositions is unmeritorious. The persons arrested are the same persons produced in court. It is because there is no question of the wrong arrestee/driver being produced in court. The accused persons were previously arrested and produced in court for mention. When called upon by name to enter their plea, they did not dispute their identity. g. Having subjected the evidence to maximum evaluation, the learned HCJ found that the prosecution had established a prima facie case against all the accused persons in respect of the charges laid against them, for arranging and facilitating the smuggling and exit of the migrants from Malaysia.

For the above reasons, the learned HCJ had ordered the six (6) accused persons (including the Appellants) to enter their defence.

All six (6) accused persons elected to give evidence on oath. There was one other witness for the defence. The defence counsel for DW1, DW3/2 $ ^{nd} $ Appellant), DW4/1 $ ^{st} $ Appellant), DW5, and DW6, Mr. Abdul Gani bin Zelika (DC1), called Mohd Fadhil Zaidi (DW7), who was arrested at the same time as the six (6) accused persons but was later released.

Andis bin Abbas (DW1) testified that one Nordin Musa (who was not called as a witness and whose absence was not accounted for) told him to pick up passengers at Kg Kuala Penyu who wanted to go to Tawau. DW1 was informed by Nordin Musa that all of them wanted to return to Indonesia and they "memiliki dokumen perjalanan yang sah." He was further informed "yang ingin balik ke Tawau adalah lebih kurang 47 orang yang dikatakan memiliki dokumen perjalanan yang sah dan mereka akan bayar kos perjalanan ke Tawau dalam (RM150.00) seorang."

DW1 then got in touch with Borhan bin Tahir (DW4/ $ 1^{\mathrm{st}} $ Appellant), who arranged for two (2) vans. One was to be driven by DW4/ $ 1^{\mathrm{st}} $ Appellant and the other by Royanto bin Gonching (DW5). DW1 gave evidence that he told DW4/ $ 1^{\mathrm{st}} $ Appellant of the payment for taking the passengers to "daerah Tawau."

DW1 gave evidence that, as far as he could recall, there was a report that President Jokowi of Indonesia and the then Prime Minister of Malaysia, Dato' Seri Ismail Sabri, had agreed to the repatriation of Indonesians to their country, but they would have to bear the transportation costs, while the Indonesian Consulate in Malaysia would facilitate the process.

DW1 was referred to Kenyataan Media oleh Jabatan Imigresen Malaysia dated 23 December 2021 (Exhibit D1(1-12)) and Rencana Berkenaan Program Rekalibrasi Pulang PATI bertarikh 30.6.2022 (Exhibit D2(1-2)), which he understood that the Prime Minister of Malaysia would allow Indonesians to return to their country so long as they shouldered the transportation costs.

DW1, however, did not give evidence on his arrangements with DW3/ $ 2^{n d} $ Appellant and Hasim bin Saini (DW6), or how they came to be drivers in the convoy at all.

As for DW2, it was through leading questions by the defence counsel for DW2, Mr. Jhasarry Kang from Messrs Kang Advocates (DC2) in cross-examination that DW1 testified that he had asked DW2 to take passengers from Kuala Penyu to Tawau for RM150.00 each, and he had told DW2 that all the passengers "mempunyai keterangan diri yang sah." DW1 agreed that he was the one who made all the arrangements. He admitted that he had not met any of the passengers until he picked them up at the rubber estate in Kuala Penyu.

DW2 testified that, on 1 March 2022, at the Sabindo bus station in Tawau, he was asked by DW1 to take his family members' passengers who had "dokumen yang sah" from Kuala Penyu to Tawau. He testified that he had known DW1 for as long as 20 years, and DW1 was a driver for hire on the Tawau-Keningau route. He was promised RM150 per passenger, and this was the first time he dealt with DW1.

DW2 explained that as the passengers were working in Kuala Penyu, surely, they would have "dokumen diri yang sah." He agreed to transport the passengers because they were relatives of DW1, whom he had known for a long time and trusted.

DW2 was in the convoy on 1 March 2022, as he had never been in Kuala Penyu. He tailed the vehicle DW1 was driving, and eventually arrived at the Keningau terminal, where he spent the night. The next morning (2 March 2022), DW2 drove to Kuala Penyu as instructed by DW1. At about 3 am the next day (3 March 2022), DW2 was asked by DW1 to resume the journey to Tawau.

DW2 had reached the checkpoint at Kalabakan when an enforcement officer instructed him to pull over by the roadside. He was kept waiting for more than an hour, and at that time, he observed DW1 speaking with the enforcement officer. He was subsequently asked for his papers and informed that his passengers' passports had expired, with only one (1) of them holding an identity card. It was then that he discovered the status of his passengers, and he felt DW1 had fooled him. He denied any involvement in any program to smuggle the passengers out of Malaysia.

As for the other four (4) accused persons (including the Appellants), the common denominator in their defence was that DW1 approached them to transport the passengers (who they did not know had no travel/identification papers as they had asked DW1 who told them otherwise) to Tawau for RM150 each, and the passengers were to make their way to the Indonesian Consulate in Tawau after arrival to partake of the repatriation program.

As with DW1, these four (4) accused persons (including the Appellants) relied on (Exhibit D1(1-12)) and (Exhibit D2(1-2)) as the central plank of their defence. Findings of the High Court after the Full Trial

At the conclusion of the trial, the learned HCJ found: a. The defence ran a whole gamut of issues/defences except for the repatriation program during the prosecution's stage, which was sought to be relied upon. b. There was no credible explanation for these accused persons' (including the Appellants') purported intention to drop off the migrants at the Tawau bus terminal for them to proceed to the Indonesian Consulate in Tawau when the Indonesian Consulate in Kota Kinabalu is a considerably shorter distance from Keningau/Kuala Penyu. The considerably longer time for a journey from Kuala Penyu/Keningau to Tawau, as opposed to Kota Kinabalu, may be gleaned from WSDW2. The accused persons would have known or had reason to know that Tawau was the transit for the migrants' unlawful onward journey to Indonesia. c. The only conclusion drawn was that DW1, DW3/ $ 2 ^{n d} $ Appellant, DW4/ $ 1 ^{s t} $ Appellant, DW5, and DW6 knew or had reason to believe that they were, in truth, facilitating the unlawful exit of migrants or PATI out of Malaysia to a foreign country, that is, Indonesia, without going through the official authorised channels and without valid passports/valid stay permits. d. It is implicit in the defence of DW1, DW3/ $ 2 ^{n d} $ Appellant, DW4/ $ 1 ^{s t} $ Appellant, DW5, and DW6 that they knew the passengers were PATI but, for the reasons given, these migrants were not intended to and could not be repatriated through authorised exit points. Instead, they were to be smuggled out of Malaysia, which is consistent with the depositions (though not subjected to cross-examination) and with PW2's investigations.

As a conclusion, abiding by section 182A(1) of the Criminal Procedure Code (CPC) to consider all the evidence adduced, and for the reasons given, the learned HCJ found that the prosecution had proven its case against DW1, DW3/2 $ ^{nd} $ Appellant, DW4/1 $ ^{st} $ Appellant, DW5, and DW6 beyond a reasonable doubt. These accused persons were accordingly found guilty and convicted as per the charges.

As for the sentence, there was no evidence that any of the accused persons had a record of previous conviction. They were first offenders. Therefore, the learned HCJ sentenced DW3 ( $ 2^{\mathrm{nd}} $ Appellant), DW4 ( $ 1^{\mathrm{st}} $ Appellant), DW5, and DW6 to a term of imprisonment of eight (8) years from the date of arrest, i.e., from 3 March 2022.

DW3 ( $ 2^{\mathrm{nd}} $ Appellant) was to be referred to the immigration authorities upon completion of his sentence, as he has only a temporary right of stay (Kad Pengenalan Sementara).

As for DW1, he was sentenced to a term of imprisonment of eight (8) years and six (6) months from the date of his arrest, i.e., on 3 March 2022, as it was clear that DW1 played a larger and organisational role, which calls for a heavier sentence.

DW2 was, however, acquitted and discharged as he had raised reasonable doubts over the prosecution's case against him.

There was no order of forfeiture of the vehicles in respect of which the prosecution acknowledged there was no evidence that they were registered or belonged to the accused persons.

As mentioned earlier, all five (5) accused persons who were convicted of the charge had lodged a separate appeal to the Court of Appeal. After we heard and dismissed all appeals, only two (2) of them, i.e., DW3/ $ 2^{nd} $ Appellant, and DW4/ $ 1^{st} $ Appellant, are pursuing their appeals to the Federal Court (after another two (2) withdrew their Notices of Appeal). Therefore, for the purpose of this Grounds of Judgment (GOJ), we will only deal with the Appeal by DW3/ $ 2^{nd} $ Appellant vide Appeal S-05(SH)-221-06/2023 (Appeal 221) and Appeal by DW4/ $ 1^{st} $ Appellant, i.e., Appeal S-05(SH)-219-06/2023 (Appeal 219). DW3 and DW4, hereinafter, will be referred to as the Appellants.

In both Appeals 221 and 219, the common issues raised by learned Defence Counsel as per the Written Submission are: a. The Press Statement dated 23 December 2021 (Exhibit D1(1- 12)) and a news report made by the former Home Minister, on 30 June 2022 (Exhibit D2(1-2)) indicate that the illegal and legal Immigrants were allowed to return to their home country voluntarily and at their own costs, and such statements are applicable to Sabah State. b. The migrants were not being charged under the Immigration Act 1959/63. c. The Appellants did not arrange, facilitate, or organize directly or indirectly for the alleged illegal immigrants' entry into or out of Malaysia. d. The Appellants were only intended to transport the alleged illegal immigrant to the bus station at Fajar Area, Tawau. The Press Statement dated 23 December 2021 (Exhibit D1(1-12)) and a news report made by the former Home Minister, on 30 June 2022 (Exhibit D2(1-2)), indicate that the illegal and legal Immigrants were allowed to return to their home country voluntarily and at their own costs, and such statements are applicable to Sabah State.

Counsel for the Appellants argued that the learned HCJ erred when His Lordship failed to consider the press statement dated 23 December 2021 (Exhibit D1 (1-12)) and a news report made by the former Home Minister on $ 3 0 ^{th} $ June 2022 (Exhibit D2 (1-2)) that the illegal and legal migrants were allowed to return to their home country voluntarily and at their own costs and such statements are applicable to Sabah state.

We find no merit in the argument. The learned HCJ had considered the repatriation program raised by the Appellants when His Lordship said that this defence were never raised and/or produced by the defence to substantiate this allegation nor was there any evidence whatsoever elicited through the prosecution's witnesses to corroborate the allegation.

The defence was never put to either of the prosecution's witnesses when they were giving evidence. The prosecution's witnesses were accordingly deprived of the opportunity to give explanatory or rebuttal evidence.

The learned HCJ in his GOJ had stated as follows: - "71. At the outset of its closing submission, the prosecution took issue with the defence pitched on the repatriation program vide D1(1-12) and D2(1-2) which would allow unauthorised migrants to return to their country of origin.

The prosecution submitted that the defence which was only raised at the defence stage by Andis bin Abbas (DW1), Mamat bin Mulamat (DW3), Borhan bin Tahir (DW4), Royanto bin Goncing (DW5) and Hasim bin Saini (DW6) was a fabrication, recent invention and an afterthought.

The defence was never put to either of the prosecution witness when they were giving evidence. These prosecution witnesses were accordingly deprived of the opportunity to give explanatory or rebuttal evidence. There is therefore merit in the prosecution's contention.

In fact, the defence ran a whole gamut of issues/defences except for the repatriation program during the prosecution's stage which was sought to be relied upon.

Now, DC1 sought to rely on the repatriation program which essentially carries the implication that DW1, DW3, DW4, DW5 and DW6 knew the passengers' ultimate destination was Indonesia, whereas during the prosecution stage, the position of these accused as put across to PW1 and PW2 was that the Tawau bus terminal was the end destination and there was no mention of the Indonesian consulate in Tawau then.

Further, the repatriation program was only applicable to KLIA, Stulang Laut and Pasir Gudang as exit points. See D1(1-12). It was not applicable to Sabah.

Furthermore, the repatriation program involved the Immigration Department and the Manpower Department in Peninsular Malaysia "tanpa penglibatan vendor atau pihak ketiga" and the migrants were to make arrangements with these authorities. The migrants were also to present negative Covid-19 test results. There was no evidence of any such compliance by any of the migrants.

Those migrants travelling in the vehicles of DW1, DW3, DW4, DW5 and DW6 who were without valid passports or travel documents and tickets as well as negative Covid-19 test results (as required under the repatriation program) would be expected to pass through the official exit points even if such exit points were in Sabah. It is incredulous that they could do so without proof of compliance with the various requirements such as negative Covid test results, or payment when there was no evidence that they had the means." (emphasis added)

Given the above, we are of the view that the learned HCJ had considered the repatriation program raised by the Appellants. Therefore, the contention of the Appellants that the learned HCJ did not give proper treatment to the issue of the repatriation program cannot be true. The migrants were not being charged under the Immigration Act 1959/63

The Appellants further complained that ten (10) migrants who were allegedly smuggled by the Appellants and/or accused persons were deported back to their home country, Indonesia, without having been charged under the Immigration Act 1959/63.

Therefore, the Appellants submit that since there was no prosecution ever made against those migrants, it means the Appellants were not charged for trafficking against the illegal immigrants/Pendatang Asing Tanpa Izin (PATI) in Malaysia at all.

According to the Appellants, all of the migrants were actually already working in Sabah at Kuala Penyu specifically. At the end of their employment contracts, their employers do not renew their work permits, and that is the only reason all of the migrants want to return to Indonesia. Thus, the Appellant could not be held accountable or responsible for the offence of trafficking against the alleged illegal immigrants out of the territory of Malaysia.

On this issue, we are of the view that the constitutional prosecutorial discretion under Article 145(3) of the Federal Constitution (FC) belongs to the Attorney General (AG)/Public Prosecutor (PP) and the AG/PP has sole and exclusive discretion in that only he can exercise such power.

In the instant case, the AG/PP had exercised its constitutional prosecutorial discretion under Article 145(3) of the FC and decided not to prefer a charge against the 10 migrants under the Immigration Act 1959/63.

However, the prosecution has recorded depositions of the migrants, and the said depositions were duly made before a Magistrate at Tawau Magistrate's Court and duly translated to the respective deponents by a court interpreter.

There were also orders for removal obtained for all the migrants pursuant to section 61A of the ATIPSOM Act 2007, and these were produced and marked as Exhibits P35-P40.

In fact, counsel for all the Appellants also has no objection to the marking and reception of these removal orders as evidence.

Having regard to the foregoing, it is our considered view that the prosecution's decision not to prefer charges against the 10 migrants, and their subsequent repatriation to Indonesia, does not preclude or otherwise fetter the prosecution from proceeding against the Appellants. The depositions of the migrants were recorded precisely for the purpose of eliciting evidence of the Appellants' alleged culpability. In the circumstances, we find that the Appellants' complaint on this issue is untenable and wholly devoid of merit. The Appellants did not arrange, facilitate, or organize directly or indirectly for the alleged illegal immigrants' entry into or out of Malaysia

The prosecution's case against the Appellants and/or accused persons was that they had indirectly arranged for and were facilitating the exit of the migrants (who were neither citizens nor permanent residents of Malaysia), who were about to exit Malaysia for Indonesia unlawfully, and these Appellants and/or accused persons knew or had reason to believe that the exit would be unlawful.

Section 2 of the ATIPSOM Act 2007 defines "smuggling of migrants" as “(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);"

As for the scope of application of the ATIPSOM Act 2007, section 3 of the Act provides that: "3 Scope of application The offences under this Act apply, regardless of whether the conduct constituting the offence took place inside or outside Malaysia and whatever the nationality or citizenship of the offender, in the following circumstances:

If Malaysia is the receiving country or transit country or the exploitation occurs in Malaysia; or

If the receiving country or transit country is a foreign country but the trafficking in persons or smuggling of migrants starts in Malaysia or transits Malaysia."

Therefore, the elements that need to be proved for an offence under section 26A of the ATIPSOM Act 2007 are as follows: i. The Appellants have indirectly arranged and facilitated the exit of migrants from Malaysia to Indonesia. ii. The migrants who are not citizens or permanent residents are about to exit from Malaysia unlawfully. iii. The Appellants had provided any other assistance or service for the purpose of arranging and facilitating the exit of the migrants from Malaysia. The Appellants have indirectly arranged and facilitated the exit of migrants from Malaysia to Indonesia.

Based on the evidence presented before the Court, we find that all the immigrants stated in their depositions that they wish to go back to Indonesia and confirmed that they were picked up by all the Appellants and/or accused persons, respectively.

Further, it is pertinent to note that, though the Prosecution need not prove any payment was involved, but it is important to note that in the instant case, there has been payment made to the Appellants and/or accused persons for arranging the service for the migrants in this case, which is RM1,100.00 for each adult, as stated in migrants' depositions.

Evidence also shows that the Appellants and/or accused persons had picked up all the migrants using the vehicle seized in Ex. P15-P20, as stated below: i. Andis Bin Abbas (DW1) from Kg. Kuala Penyu, Beaufort. ii. Mamat Bin Mulamat (DW3/ $ 2^{\mathrm{nd}} $ Appellant) from Keningau. iii. Borhan Bin Tahir (DW4/ $ 1^{\mathrm{st}} $ Appellant) from Kg. Kuala Penyu, Beaufort.

It is to be noted that all the migrants had no travel documents. Accordingly, it is impossible to exit Malaysia lawfully. Based on the evidence presented, it is clear that the Appellants have successfully arranged and facilitated their exit from Malaysia.

Section 2 of the ATIPSOM Act 2007 provides that the act of regulating or facilitating directly or indirectly is sufficient to prove the act of smuggling of immigrants.

Based on the evidence before the court, we find that the Prosecution had successfully proved the act of smuggling by the Appellants when they indirectly arranged and facilitated the exit of the migrants from Malaysia. The migrants who are not citizens or permanent residents are about to unlawfully exit from Malaysia

Based on Exhibit P27(1-12), we find that the migrants were all of Indonesian nationality. There were no records of their movement of lawful entry into Malaysia or lawful exit from Indonesia, as the documents stated that 'rekod pergerakan tidak wujud' and/or 'tiada maklumat pergerakan direkodkan'.

Given the above, it is clear that the migrants are not citizens or permanent residents and had unlawfully entered into and/or illegally exited Malaysia. Knowledge (mens rea)

The Appellants' knowledge or 'mens rea' of the migrants' illegal status can be inferred from the facts and circumstances of the case.

The Federal Court in the case of Parlan bin Dadeh (supra) explained the meaning of knowledge as follows: - [25] The law is clear and well settled. Proof of knowledge is very often a matter of inference. The material from which the inference of knowledge can be drawn varies from case to case. It would be sufficient for the prosecution to prove facts from which it could properly be inferred that the accused has the necessary knowledge ...” (emphasis added)

In the instant case, we find that the action of Andis bin Abbas (DW1), in offering RM1,650.00 to the Complainant (PW1), as consideration to let all of them go, shows that DW1 and his allied (the Appellants and/or the accused persons) knew that they are facilitating and/or providing assistance to unlawful exit of the migrants from Malaysia.

It also goes to show that the Appellants and/or the accused persons have knowledge, as they knew and had reason to believe that the migrants' exit was unlawful.

This can be gleaned from PW1's testimony as follows: - "Q28. Rujuk kepada laporan polis kamu KALABAKAN/281/22(13(1-3 9)). Boleh kamu jelaskan berkenaan penawaran wang yang diberikan oleh penama Andis Bin Abbas sebanyak RM1,650 kepada kamu? A: Penama Andis bin Abbas telah menawarkan wang sebanyak RM1,650 untuk saya membebaskan kesemua kenderaan tersebut. Q29. Bagaimana dengan duit yang dirampas oleh kamu seperti yang tercatat pada P13 (1-9) itu? Apa yang kamu boleh terangkan? A: Duit berkenaan telah saya serahkan kepada pihak SPRM Tawau. Q30. Adakah kamu tahu status semasa siasatan SPRM tersebut? A: Statusnya masih dalam siasatan. Q75. Kalau berdasarkan laporan kamu, kamu tidak mengambil wang daripada penama yang kamu sebut iaitu Andis Bin Abbas. A: Ya betul, saya menolak cubaan rasuah dan telah memberi amaran lebih dari 3 kali tapi penama Andis tetap merayu dan memujuk. Q76. Bermakna wang tersebut kamu tidak terima langsung? A: Selepas amaran melebihi 3 kali, saya merampas wang tersebut untuk tindakan lanjut." (emphasis added)

Further, PW2, the Investigating Officer gave evidence vide WSPW2, Q&A 4 as follows: - "Hasil siasatan terhadap tangkapan mendapati kesemua penumpang dibawa daripada arah Keningau menuju ke perkampungan di Kawasan Tanjung Batu. Mengikut perancangan awal, kesemua penumpang akan diserahkan kepada seorang pengurus di Kampung Tanjung Baru dan dihantar pulang ke Negara Indonesia melalui jalan yang tidak sah iaitu mengikut bot laju daripada Tanjung Batu ke (Pulau) Sebatik, Indonesia pada keesokan harinya iaitu 04/03/2022. Hasil siasatan lanjut mendapati Andis Bin Abbas bertanggungjawab menguruskan penumpang dan kenderaan yang diperlukan untuk mengangkut migran yang hendak pulang ke Indonesia menggunakan jalan yang tidak sah, manakala 06 pemandu kenderaan yang lain telah dihubungi oleh Andis Bin Abbas untuk membantunya mengangkat penumpang-penumpang yang lain dibawa ke Tawau sahaja. Andis Bin Abbas telah mengenakan bayaran sebanyak (RM1,100.00) secara tunai untuk setiap orang dewasa pergerakan balik ke Indonesia. Manakala pemandu kenderaan yang lain belum mendapat pembayaran daripada Andis Bin Abbas." (emphasis added)

Given the above, we find that the Appellants and/or accused persons knew and had reason to believe that all of the migrants were about to exit Malaysia by an unlawful/illegal route and not by using a legal route through the Immigration. Furthermore, we find that the payment of RM1,100.00 received from each migrant was also too unreasonable to be the fare for normal land transportation for domestic travel (within Sabah) (as per the Appellants' allegation). In the absence of any flight ticket or any receipt showing the destination, it amounts to a mere baseless assertion.

It is the findings of this Court that the payments received from the migrants who had no valid travel documents with them, nor any transportation tickets (flight or bus), were for the purpose of securing their movement back to Indonesia through an illegal channel. The Appellants had provided any other assistance or service for the purpose of arranging and facilitating the exit of the migrants from Malaysia.

The evidence presented before the Court shows that the Appellants and/or accused persons had their roles in providing assistance or service for the purpose of indirectly arranging and facilitating the exit of the migrants from Malaysia.

We find that each of the Appellants and/or accused persons played their role as the driver of their respective vehicle. The act of the Appellants as drivers was sufficient to establish that they had provided assistance or services for the purpose of arranging and facilitating the exit of migrants to Indonesia.

We are of the view that when these facts are taken together with the testimony of PW1 and PW2, as well as the depositions of the migrants, the prosecution has established a prima facie case against the Appellants and/or accused persons. The Appellants were only intended to transport the alleged illegal Immigrant to the bus station in Fajar area at Tawau

Counsel for the Appellants refer to this court to the Witness Statement of DW3 and DW4 (the Appellants), which indicates that the Appellants and the other accused persons were only intended to transport the alleged immigrants to the bus station at Fajar area at Tawau, Sabah, before they need to manage their own transportation to the Consulate of Indonesia located in Tawau.

The Appellants further submit that since it is a fact that the Appellants were only responsible for transporting the alleged PATI from the Station Bus of Keningau to Tawau, this also means that the Appellants did not know how the alleged PATI could enter or stay in Sabah and whether they had legal documentation or not while staying in Sabah.

Therefore, the Appellants submit that they cannot be held responsible for any issue of legal documentation for the alleged PATI.

We find no merit in the argument. We found that there was no credible explanation for these Appellants and/or accused persons' purported intention to drop off the migrants at the Tawau bus terminal for them to proceed to the Indonesian Consulate in Tawau when the Indonesian Consulate in Kota Kinabalu is a considerably shorter distance from Keningau/Kuala Penyu. The considerably longer time for a journey from Keningau/ Kuala Penyu to Tawau, as opposed to Kota Kinabalu, may be gleaned from WSDW2. The Appellants and/or the accused persons would have known or had reason to know that Tawau was the transit for the migrants' unlawful onward journey to Indonesia.

Further, we find that in each of the depositions marked as exhibits P29-P34, the deponent stated that he/she was a passenger in the vehicle driven by the Appellants and/or accused persons from Keningau/Kuala Penyu/Beaufort, taken with other passengers by the accused persons to go back to Indonesia for a fare of RM1,100.00 for each passenger.

In P31(1) which concerned Mamat Bin Mulamat (DW3/ the $ 2^{\mathrm{nd}} $ Appellant), one Muhd Bin Yunus stated: "Pada 03/03/2022 jam lebih kurang 2.00 pagi bertempat di Daerah Keningau, Sabah, saya bersama 03 orang penumpang yang lain telah diambil oleh Mamat Bin Mulamat untuk bergerak balik ke INDONESIA dengan tambang perjalanan RM1100.00 setiap seorang penumpang dewasa dengan menaiki kenderaan yang dipandu oleh Mamat Bin Mulamat melalui jalan Kalabakan ke Tawau." (emphasis added)

P31(2) and P31(3) by Nordin Mosa and Yunus Bin Bacho also had the same material facts recorded in their depositions that the migrants were to travel by sea from Tawau to Sulawesi/Indonesia.

In P32(3) which concerned Borhan Bin Tahir (DW4/ the $ 1^{\mathrm{st}} $ Appellant), one Rahman Buhari similarly stated: "Pada 02/03/2022 jam lebih kurang 0500 petang bertempat di Kampung Kuala Penyu, Beaufort, Sabah, saya bersama 10 orang penumpang yang lain telah diambil oleh Borhan Bin Tahir untuk bergerak balik ke Indonesia dengan tambang perjalanan RM1100.00 setiap seorang penumpang dewasa dengan menaiki kenderaan yang dipandu oleh Borhan Bin Tahir melalui jalan Kalabakan ke Tawau." (emphasis added)

P32(4), by Norkayah Tahang, recorded the same material facts.

Section 61A of the ATIPSOM Act 2007 allows for the deposition of a person - in respect of whom an order of removal from Malaysia has been made by the Director General of the Immigration - "without further proof, (to) be admitted as prima facie evidence of any fact stated in the deposition".

In the instant case, we find that the said depositions were duly made before a Magistrate at Tawau Magistrate's Court and duly translated to the respective deponents by a Court Interpreter.

The deposition of the migrants was legally recorded, and the orders for removal were produced and marked without any objection by the counsels representing the Appellants. Accordingly, the said depositions were duly admitted into evidence during the proceedings.

Therefore, the contention by the Appellants that they intended to transport the alleged illegal immigrants to the bus station at Fajar area at Tawau could not stand in view of the depositions, which are prima facie evidence of the arrangements for the ongoing boat journey to Indonesia.

On this issue, the learned HCJ had also highlighted in his GOJ when His Lordship made the following findings of fact when he held as follows: - "82. There was no credible explanation for these accused's purported intention to drop off the migrants at the Tawau bus terminal for them to proceed to the Indonesian Consulate in Tawau when the Indonesian Consulate in Kota Kinabalu is a considerably shorter distance from Keningau/Kuala Penyu. The considerably longer time for a journey from Kuala Penyu/Keningau to Tawau, as opposed to Kota Kinabalu, may be gleaned from WSDW2. The accused persons would have known or had reason to know that Tawau was the transit for the migrants' unlawful onward journey to Indonesia.

The explanation by Andis that the passengers did not know (mereka tidak tahu"- NOP, Q & A 197) of the far longer distance to go to Tawau is incredulous as the drivers would know.

Only in re-examination did Andis try to explain: "Setelah sampai di stesen Tawau, ada yang bernama Mail akan menjemput penumpang untuk tujuan ke consulate Indonesia yang ada di Tawau." See NOP, Q & A 208. The person named Mail only surfaced belatedly in re-examination and cannot be said to be a sufficient Alcontara notice. See Alcontara a/I Ambross Anthony v. Public Prosecutor [1996] 1 CLJ 705; [1996] 1 MLJ 209. There is no evidence that Mail even exists.

The only conclusion to be drawn is that DW1, DW3, DW4, DW5 and DW6 knew or had reason to believe that they were in truth facilitating the unlawful exit of migrants or PATI out of Malaysia to a foreign country, that is, Indonesia, without going through the official authorised channels and without valid passports/valid stay permits.

It is implicit in the defence of DW1, DW3, DW4, DW5 and DW6 that they knew the passengers were PATI but, for the reasons given, these migrants were not intended to and could not be repatriated through authorised exit points. Rather, they were to be smuggled out of Malaysia, which is consistent with the depositions (though not subjected to cross-examination) and with PW6's (sic) investigations. (emphasis added)

Given the above, we are of the view that the submission of the Appellants on this issue is also without merit.

Having considered the parties' submissions and aggravating circumstances respectively and the offence involved national security concerns, and that the Appellants and/or accused persons had claimed trial, the learned HCJ imposed a term of imprisonment of 8 years from the date of arrest, that is, from 3 March 2022.

The learned HCJ in his GOJ had stated as follows: - "98. Turning now to sentencing, the court takes note that in PP v Kok Chin Wah & Anor [2022] 1 LNS 1877, the High Court of Malaya had imposed a term of imprisonment of 8 years from the date of sentence on both accused for a conviction under section 26A of ATIPSOM 2007. In imposing that sentence which was expressed to be deterrent, Collin Sequerah J (as His Lordship then was) took into consideration "the public interest element combined with the fact that the offence involved national security concerns and given the fact that both Accused had claimed trial." The prosecution highlighted these factors, and the rampancy of the offence in Tawau.

In mitigation, DC1, submitted that his clients had been in detention since they were arrested almost 2 years ago which is exaggerated as they were arrested on 3 March 2022 and contended that any sentence of imprisonment in this case should run from the date of arrest/detention. There is merit in the contention of learned counsel for the accused. In Kok Chin Wah (supra), the sentence of imprisonment was ordered to run from the date of sentencing as the accused had been out on bail.

There was no evidence any of the accused had a record of previous conviction. They were first offenders.

All the factors in sentencing as set out above having been considered, the court sentenced Mamat Bin Mulamat, Borhan Bin Tahir, Royanto Bin Goncing, and Hasim Bin Saini to a term of imprisonment of 8 years from the date of arrest, that is, from 3 March 2022.

Mamat bin Mulamat is to be referred to the immigration authorities upon completion of his sentence as he only has a temporary right of stay (Kad Pengenalan Sementara)."

Based on the reasons given above, we find that the learned HCJ has considered proper principles of sentencing in coming to the sentence of eight (8) years for both of the Appellants. We see no reason to disturb the exercise of the discretion of the learned HCJ.

As a conclusion, we found that there is no merit in all of the grounds of appeal raised by the Defence Counsel for the Appellants. We therefore dismiss both appeals. The conviction and sentence imposed by the learned HCJ are hereby affirmed. Dated: 23 January 2026 Ahmad Kamal Bin Md Shahid Judge Court of Appeal Malaysia Counsel appearing: For both Appellants (DW3 and DW4): Mr. Abdul Gani Zelika (together with Mr. Mohd Ridwan b. Usman) [Messrs Johari, Zelika & Amin] For the Respondent: Mr. Mohd Asnawi Abu Hanipah [Deputy Public Prosecutor, Attorney General's Chambers]