Pendakwa Raya v ITH EAMY (BL-42H-17-12/2024)

DIONG YEOU CHIN DAN ...RESPONDEN ...PERAYU-PERAYU PENDAKWA RAYA Didengar bersama DALAM MAHKAMAH TINGGI MALAYA DI KLANG DALAM NEGERI SELANGOR DARUL EHSAN (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO.: BL-42S-11-12/2024 RAYUAN JENAYAH NO.: BL-42S-12-12/2024 ANTARA PENDAKWA RAYA ...PERAYU

DIONG YEOU CHIN ...RESPONDEN-RESPONDEN (Dalam Mahkamah Sesyen ATIP Klang Dalam Negeri Selangor Darul Ehsan

Ith Eamy

Diong Yeou Chin) GROUNDS OF JUDGMENT Introduction [1] These appeals filed by the Appellants against the entire decision of the learned Sessions Court Judge ("SCJ") dated 6.12.2024 convicting and sentencing them on 6 charges under s.12 of the AntiTrafficking in Persons and Anti-Smuggling of Migrants Act 2007 ("ATIPSOM Act") read together with s.34 of the Penal Code ("PC"). [2] Concurrently, the learned Deputy Public Prosecutor also has preferred an appeal against the inadequacy of the sentences imposed by the learned SCJ. Brief background [3] On 9.8.2022 at around 6:30 p.m., acting on information regarding forced labour exploitation, ASP Mohd Sabri bin Ahmad (SP11) of the Bukit Aman Criminal Investigation Department (ATIPSOM Division), along with a team of police officers and personnel, went to the roadside of Jalan Yadi, Kampung Sungai Udang, Klang, Selangor. [4] Upon arrival at the scene, SP11 spotted a man and a woman later identified as Chantol Thou (SP6) and Sokhi (SP1) respectively, behaving in a suspicious manner. After introducing him as a police officer, SP11 interviewed both individuals and discovered that they are Cambodian nationals. SP11 also believed that both individuals were victims of human trafficking and forced labour exploitation. [5] Acting on the information gathered from SP6 and SP1, around 6:45 p.m., SP11 and his team proceeded to a house at Lot 586F, Jalan Yadi, Kampung Sungai Udang, Klang, Selangor. [6] Upon arrival at the premises, SP11 knocked on the door, which was subsequently opened by a man identified as Asmy, a Cambodian national. The 1 $ ^{st} $ Appellant, who is Asmy's wife, then appeared but immediately ran back into the house and locked herself inside a room. [7] As the 1 $ ^{st} $ Appellant refused to open the door, SP11 instructed his personnel to force entry. A subsequent search of the room led to the discovery of a red handbag containing fifteen (15) Cambodian passports. Upon further search, SP11 found another red handbag hanging on the wall, which contained four (4) Cambodian passports and one (1) Indonesian passport. Additionally, SP11 recovered cash amounting to RM10,000.00 in various denominations scattered on the floor. In a separate room, SP11 found two women, comprising one Malaysian citizen and one Cambodian national. A few minutes later, Zarinawati binti Ariffin ("SD3") arrived at the scene, identifying herself as the 1 $ ^{st} $ Appellant's friend. [8] On the reasonable belief that Asmy, the $ 1^{\mathrm{st}} $ Appellant, and SD3 were acting as forced labour agents exploiting SP1 and SP6, SP11 arrested them under s. 12 of the ATIPSOM Act. [9] At around 7:15 p.m., SP11 and his team went to an unnumbered house at Jalan Selasih, Batu 8, Kampung Sijangkang, Teluk Panglima Garang, Banting, Selangor. After SP11 knocked on the door, it was opened by Um Samang ("SP5"), a Cambodian national. Three other Cambodian nationals were found inside the house: Run Sarat ("SP4"), Run Sreymo ("SP3") and Srun Chhaiya ("SP2"). [10] At approximately 10:15 p.m., Ins. Khairul Shahril bin Azman ("SP7") from the Secret Societies, Gambling and Vice Division (D7) of the Klang District Police Headquarters arrested the $ 2^{\mathrm{nd}} $ Appellant along the roadside of Jalan Gedung Raja Abdullah, Klang, pursuant to s. 12 of the ATIPSOM Act. [11] Consequently, the Appellants were preferred with the following six charges: Kes No.: BL-62ATIP-63-09/2022 Bahawa kamu bersama-sama di antara tahun 2020 hingga 09 Ogos 2022 bertempat di tepi Jalan Yadi Kampung Sungai Udang, Klang, Selangor, di dalam negeri Selangor, telah memperdagangkan CHANTOL THOU, No. Passport N01622317, yang bukan merupakan seorang kanak-kanak atau yang bukan seseorang yang tidak dapat menjaga atau melindungi dirinya sendiri sepenuhnya disebabkan kehilangan upaya atau keadaan fizikal atau mental, bagi maksud eksploitasi kerja paksa iaitu dengan cara penyalahgunaan kedudukan orang yang mudah terdedah kepada bahaya perbuatan pemerdagangan orang yang bertujuan untuk pengekalan tenaga kerja. Oleh yang demikian, kamu bersama-sama telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 12 Akta Anti Pemerdagangan Orang Dan Anti Penyeludupan Migran 2007 [Akta 670] dan dibaca bersama seksyen 34 Kanun Keseksaan. Hukuman: Jika disabitkan kesalahan boleh diseksa dengan penjara tidak melebihi dua puluh tahun dan boleh juga didenda. Kes No.: BL-62ATIP-64-09/2022 Bahawa kamu bersama-sama di antara Januari 2022 hingga 09/08/2022 bertempat di rumah tidak bernombor Jalan Selasih BT 8 Kampung Sijangkang Telok Panglima Garang, di dalam daerah Banting, di dalam negeri Selangor, telah memperdagangkan RUN SARAT, No. Passport N01972551, yang bukan merupakan seorang kanak-kanak atau yang bukan seseorang yang tidak dapat menjaga atau melindungi dirinya sendiri sepenuhnya disebabkan kehilangan upaya atau keadaan fizikal atau mental, bagi maksud eksploitasi kerja paksa iaitu dengan cara penyalahgunaan kedudukan orang yang mudah terdedah kepada bahaya perbuatan pemerdagangan orang yang bertujuan untuk pengekalan tenaga kerja. Oleh yang demikian, kamu bersama-sama telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 12 Akta Anti Pemerdagangan Orang Dan Anti Penyeludupan Migran 2007 [Akta 670] dan dibaca bersama seksyen 34 Kanun Keseksaan. Hukuman: Jika disabitkan kesalahan boleh diseksa dengan penjara tidak melebihi dua puluh tahun dan boleh juga didenda. Kes No.: BL-62ATIP-65-09/2022 Bahawa kamu bersama-sama di antara Januari 2022 hingga 09/08/2022 bertempat di rumah tidak bernombor Jalan Selasih BT 8 Kampung Sijangkang Telok Panglima Garang, di dalam daerah Banting, di dalam negeri Selangor, telah memperdagangkan UM SAMANG, No. Pasport N01972554, yang bukan merupakan seorang kanak-kanak atau yang bukan seseorang yang tidak dapat menjaga atau melindungi dirinya sendiri sepenuhnya disebabkan kehilangan upaya atau keadaan fizikal atau mental, bagi maksud eksploitasi kerja paksa iaitu dengan cara penyalahgunaan kedudukan orang yang mudah terdedah kepada bahaya perbuatan pemerdagangan orang yang bertujuan untuk pengekalan tenaga kerja. Oleh yang demikian, kamu bersama-sama telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 12 Akta Anti Pemerdagangan Orang Dan Anti Penyeludupan Migran 2007 [Akta 670] dan dibaca bersama seksyen 34 Kanun Keseksaan. Jika disabitkan kesalahan boleh diseksa dengan penjara tidak melebihi dua puluh tahun dan boleh juga didenda. Hukuman: Kes No.: BL-62ATIP-66-09/2022 Bahawa kamu bersama-sama di antara tahun 2020 hingga 09 Ogos 2022 bertempat di tepi Jalan Yadi Kampung Sungai Udang, Klang, Selangor, di dalam negeri Selangor, telah memperdagangkan SOKHI, No. Pasport: N00677807, yang bukan merupakan seorang kanak-kanak atau yang bukan seseorang yang tidak dapat menjaga atau melindungi dirinya sendiri sepenuhnya disebabkan kehilangan upaya atau keadaan fizikal atau mental, bagi maksud eksploitasi kerja paksa iaitu dengan cara penyalahgunaan kedudukan orang yang mudah terdedah kepada bahaya perbuatan pemerdagangan orang yang bertujuan untuk pengekalan tenaga kerja. Oleh yang demikian, kamu bersama-sama telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 12 Akta Anti Pemerdagangan Orang Dan Anti Penyeludupan Migran 2007 [Akta 670] dan dibaca bersama seksyen 34 Kanun Keseksaan. Hukuman: Jika disabitkan kesalahan boleh diseksa dengan penjara tidak melebihi dua puluh tahun dan boleh juga didenda. Kes No.: BL-62ATIP-67-09/2022 Bahawa kamu bersama-sama di antara Januari 2022 hingga 09/08/2022 bertempat di rumah tidak bernombor Jalan Selasih BT 8 Kampung Sijangkang Telok Panglima Garang, di dalam daerah Banting, di dalam negeri Selangor, telah memperdagangkan RUN SREYMO, NO. Pasport: N01973226, yang bukan merupakan seorang kanak-kanak atau yang bukan seseorang yang tidak dapat menjaga atau melindungi dirinya sendiri sepenuhnya disebabkan kehilangan upaya atau keadaan fizikal atau mental, bagi maksud eksploitasi kerja paksa iaitu dengan cara penyalahgunaan kedudukan orang yang mudah terdedah kepada bahaya perbuatan pemerdagangan orang yang bertujuan untuk pengekalan tenaga kerja. Oleh yang demikian, kamu bersama-sama telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 12 Akta Anti Pemerdagangan Orang Dan Anti Penyeludupan Migran 2007 [Akta 670] dan dibaca bersama seksyen 34 Kanun Keseksaan. Hukuman: Jika disabitkan kesalahan boleh diseksa dengan penjara tidak melebihi dua puluh tahun dan boleh juga didenda. Kes No.: BL-62ATIP-68-09/2022 Bahawa kamu bersama-sama di antara Januari 2022 hingga 09/08/2022 bertempat di rumah tidak bernombor Jalan Selasih BT 8 Kampung Sijangkang Telok Panglima Garang, di dalam daerah Banting, di dalam negeri Selangor, telah memperdagangkan SRUN CHHAIYA, No. Pasport: N01973772, yang bukan merupakan seorang kanak-kanak atau yang bukan seseorang yang tidak dapat menjaga atau melindungi dirinya sendiri sepenuhnya disebabkan kehilangan upaya atau keadaan fizikal atau mental, bagi maksud eksploitasi kerja paksa iaitu dengan cara penyalahgunaan kedudukan orang yang mudah terdedah kepada bahaya perbuatan pemerdagangan orang yang bertujuan untuk pengekalan tenaga kerja. Oleh yang demikian, kamu bersama-sama telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 12 Akta Anti Pemerdagangan Orang Dan Anti Penyeludupan Migran 2007 [Akta 670] dan dibaca bersama seksyen 34 Kanun Keseksaan. Hukuman: Jika disabitkan kesalahan boleh diseksa dengan penjara tidak melebihi dua puluh tahun dan boleh juga didenda. [12] The charges were tried together, with the Appellants pleading not guilty to all counts. [13] At the conclusion of a full trial, on 6.12.2024, the learned SCJ convicted the Appellants on all counts and imposed the following sentences:

for Case No. BL-62ATIP-63-09/2022, the Appellants were sentenced to five (5) years' imprisonment and a fine of RM4,000.00, in default six (6) months' imprisonment. Additionally, each Appellant was also ordered to pay compensation amounting to RM12,500.00 within one month from the date of the order;

for case BL-62ATIP-64-09/2022, the Appellants were sentenced to five (5) years' imprisonment and a fine of RM4,000.00, in default six (6) months' imprisonment. Additionally, each Appellant was also ordered to pay compensation amounting to RM12,500.00 within one month from the date of the order;

for Case BL-62ATIP-65-09/2022, the Appellants were sentenced to five (5) years' imprisonment and a fine of RM4,000.00, in default six (6) months' imprisonment. Additionally, each Appellant was also ordered to pay compensation amounting to RM12,500.00 within one month from the date of the order;

for Case BL-62ATIP-66-09/2022, the Appellants were sentenced to five (5) years' imprisonment and a fine of RM5,000.00, in default six (6) months' imprisonment. Additionally, each Appellant was also ordered to pay compensation amounting to RM15,000.00 within one month from the date of the order;

for Case BL-62ATIP-67-09/2022, the Appellants were sentenced to five (5) years' imprisonment and a fine of RM4,000.00, in default six (6) months' imprisonment. Additionally, each Appellant was also ordered to pay compensation amounting to RM12,500.00 within one month from the date of the order;

for Case BL-62ATIP-68-09/2022, the Appellants were sentenced to five (5) years' imprisonment and a fine of RM4,000.00, in default six (6) months' imprisonment. Additionally, each Appellant was also ordered to pay compensation amounting to RM12,500.00 within one month from the date of the order; and

all terms of imprisonment were ordered to run concurrently. [14] Dissatisfied with the decision, the Appellants appealed against their conviction and sentences. Subsequently, the learned DPP also filed an appeal contending that the sentences imposed on the Appellants were inadequate and did not reflect the seriousness of the offences. [15] Nevertheless, during the hearing of these appeals, the Court was informed that the $ 1^{\mathrm{st}} $ Appellant had jumped bail. As a result, the $ 1^{\mathrm{st}} $ Appellant's appeal was struck off, leaving this Court to hear arguments only from the $ 2^{\mathrm{nd}} $ Appellant and the learned DPP. The role of the appellate court [16] In the oft-quoted case of Herchun Singh v. PP [1969] CLJU 52; [1969] 2 MLJ 209, Ong Hock Thye CJM speaking for the Federal Court held that an appellate court should be slow in disturbing such finding of fact arrived at by the judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding. [17] Gopal Sri Ram HMR (as he then was) when delivering the judgment of the Court of Appeal in Mohd Johi Said v. PP [2005] 1 CLJ 389 said that the duty of the appellate court extends beyond merely evaluating whether the trial judge was plainly wrong in arriving at his decision but the court must satisfy itself that the conviction remains safe. The Lordship added-Unlike civil appeals, where the appellant carries the burden of showing that the judge at first instance went wrong, in a criminal case the duty of the court is to consider whether the conviction is right. The correct approach is therefore not whether the decision is wrong but whether the conviction is safe. See, Mohammad Husain v. Emperor AIR [1945] Nag 441; Zahari bin Yeop Baai v. PP [1977] 1 LNS 162; [1980] 1 MLJ 160. That question, on the present facts, must receive a negative response." [18] In light of the above, it is incumbent upon this Court, as an appellate court to determine whether the conviction of the $ 2^{\mathrm{nd}} $ Appellant is safe. Merits of the $ 2^{\mathrm{n d}} $ Appellant's appeal [19] As the $ 2^{\mathrm{n d}} $ Appellant was preferred with six (6) charges under s.12 of the ATIPSOM Act, it is pertinent to examine the exact wording of the statutory provision, which reads as follows: Offence of trafficking in persons

Any person, who traffics in persons not being a child, for the purpose of exploitation, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding fifteen years, and shall also be liable to fine. [20] S.2 of the ATIPSOM Act defines "trafficking in persons", "exploitation" and "coercion" as follows: "trafficking in persons" means all actions involved in acquiring or maintaining the labour or services of a person through coercion, and includes the act of recruiting, conveying, transferring, harbouring, providing or receiving a person for the purposes of this Act; "exploitation" means all forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, any illegal activity or the removal of human organs; "coercion" means —

threat of serious harm to or physical restraint against any person;

any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or

the abuse or threatened abuse of the legal process; [21] In Hang Siew Heok (F) v. PP [2023] CLJU 361; [2023] 1 LNS 361 Chan Jit Li J held that in order to establish the act of trafficking in persons, the prosecution must establish the element of coercion. [22] On the issue of coercion, in PP v. Mong Soon Tat [2019] CLJU 726; [2019] 1 LNS 726 Anselm Charles Fernandis JC (as he then was) opined as follows: [27] The definition of "coercion" is indeed wide. Paragraph (a) of the definition does not require actual serious harm or actual physical restraint to take place. The threat of such harm or physical restraint to the trafficked person or any other person would suffice to constitute coercion. As to paragraph (b) it is the belief of the person trafficked that matters. There is therefore a subjective element to this part. If there is a "scheme, plan, or pattern" perpetrated or caused by the trafficker that results in the person trafficked to believe that failure to perform any act would result in serious harm to the person trafficked or to any person for that matter, that by itself would constitute coercion. In my view paragraph (a) is a more direct form of coercion than that in paragraph (b). As for paragraph (c) it is self-evident that the mere threat of abuse of the legal process would suffice. The abuse of the legal process could, for example, take the form of an arrest, detention or deportation or a threat thereof against the trafficked person or any other person. [23] Some examples of "coercion" have been compiled by Aslam Zainuddin JC (as he then was) in PP v. Caryn Lim Bak Hiang [2020] CLJU 756 [2020] 1 LNS 756 as follows: [31] Exploitation is however only one of the elements of the offence of trafficking in persons. As stated earlier the element of coercion is essential in the definition of trafficking in persons. The burden is on the prosecution to prove coercion. See Siow Hee Liong & Satu Lagi Iwn. PP [2017] CLJU 348; [2017] 1 LNS 348. [32] Whether coercion exists is a question of fact. In Mohamad Abdullah v. PP [2017] CLJU 1978; [2017] 1 LNS 1978 the fact that the person trafficked was accompanied by the trafficker whenever she went out was regarded as indicative of coercion. In those circumstances it did not matter that the person trafficked had her passport and telephone with her. In that case it was held that there was coercion where the persons trafficked were locked in a room from outside and only the trafficker held the keys. Escaping from the clutches of the trafficker or contemplating to do so was also held to be indicative of coercion. In Chang Kar Fei lwn. PP [2018] CLJU 1777; [2018] 1 LNS 1777 the person trafficked owed a debt for the expenses incurred in bringing her to Malaysia and was compelled to repay the debt by providing sexual services. This was found to be a form of coercion. Control over the trafficked person by the trafficker is also a consideration in determining whether there was coercion. In PP v. Latif Sabang [2016] CLJU 1018; [2016] 1 LNS 1018 one of the reasons the accused was acquitted was because there was no credible evidence he "had control over the movements of the 4 Indonesian women. [24] The question is whether the prosecution had successfully established that the element of coercion done by the $ 2^{\mathrm{n d}} $ Appellant on all the above victims. [25] The learned SCJ in his judgment wrote that the elements of coercion and forced labour have been proved against the Appellants based on the following facts:

the victims were smuggled illegally into this country;

the victims (SP1, SP2, SP3, SP4, SP5 and SP6) had no work permits as promised;

the victims' passports kept by the $ 1^{\mathrm{st}} $ Appellant;

the victims were paid only RM65.00 per day rather than RM75.00 per day as promised;

there were no employment agreements between the aluminium factory company and the victims;

the victims' accomodation was in very bad condition;

the victims were threatened to pay the debt by the $ 1^{\mathrm{st}} $ Appellant. [26] A review of the notes of evidence reveals that the $ 2 ^{n d} $ Appellant is a sole owner of a company known as D&L Vista Resources Sdn Bhd ("D&L Vista"). On 12.1.2021, D&L Vista entered into a Manpower Agreement with Impact Metal Resources Sdn Bhd ("Impact Metal"). The $ 2 ^{n d} $ Appellant testified that the principal purpose of this agreement was to facilitate the payment of wages to undocumented foreign workers through D&L Vista's bank account, as these workers did not possess Malaysian bank accounts. Subsequently, D&L Vista would disburse the wages directly to the respective workers. [27] It is observed that the $ 2^{n d} $ Appellant was neither the agent nor the employer of the victims. The record clearly demonstrates that the $ 2^{n d} $ Appellant exercised no supervisory control, dominion or authority whatsoever over the victims at any material time. The sole connection between the victims and the $ 2^{n d} $ Appellant was that the latter paid their monthly wages directly, notwithstanding the fact that the victims were employed by Impact Metal. [28] It is admitted by the victims that they entered this country voluntarily to improve their standard of living, facilitated solely by the $ 1^{\mathrm{st}} $ Appellant and her sister in Cambodia. There was no involvement on the part of the $ 2^{\mathrm{nd}} $ Appellant regarding their entry into this country. Their passports also were retained exclusively by the $ 1^{\mathrm{st}} $ Appellant, rather than the $ 2^{\mathrm{nd}} $ Appellant. Further, it was also admitted by the victims that the $ 2^{\mathrm{nd}} $ Appellant had never promised them with work permits prior to their arrival in Malaysia nor employment agreement with the company. The $ 2^{\mathrm{nd}} $ Appellant also was not involved in providing accommodation to the victims. Instead, it was arranged solely by the $ 1^{\mathrm{st}} $ Appellant and her husband. [29] Regarding the debt which was highlighted by the learned SCJ, the victims admitted it consisted of their travel expenses from Cambodia to Malaysia, paid upfront by the 1 $ ^{st} $ Appellant. They had consented to repay it through salary deductions. Six months into their deployment at the aluminium factory, the victims realized they had been misled, having expected wiring factory work. Their subsequent attempt to leave the premises to find alternative jobs failed. Crucially, it was the 1 $ ^{st} $ Appellant who later threatened them, demanding full settlement of the debt before allowing them to move to a new factory. Undoubtedly, the alleged debt had no connection whatsoever to the 2 $ ^{nd} $ Appellant. [30] The above facts demonstrate that there was no element of coercion nor forced labour done by the 2 $ ^{nd} $ Appellant. In fact, there was no evidence to suggest that the victims' wages were withheld or kept by the 2 $ ^{nd} $ Appellant. The victims enjoyed freedom of movement and could freely enter or exit both the factory and their residence. Their failure to leave the premises was attributed solely to their apprehension of being apprehended by the enforcement authorities, given that they did not possess valid work permits. The victims also had their hand phones with them at all times. There was no evidence also that the victims were being held against their will or they were threatened with physical harm. There was no evidence of "any scheme, plan, or pattern intended to cause" either of them to believe that failure to provide sexual services during their work would result in serious harm to or physical restraint against them by the $ 2^{n d} $ Appellant. I am therefore of the opinion that the essential elements of coercion and forced labour had not been proven by the prosecution against the $ 2^{n d} $ Appellant. [31] In view of the foregoing, I find that the conviction of the $ 2^{\mathrm{nd}} $ Appellant on all charges is manifestly unsafe. The learned SCJ erred in finding the $ 2^{\mathrm{nd}} $ Appellant guilty merely because of his involvement in processing the victims' wages. Such an administrative payroll function is factually and legally insufficient to satisfy the elements of the offences, particularly when the evidence demonstrates that the payments were made solely on behalf of Impact Metal. [32] Therefore based on the matters discussed above, I allow the $ 2^{\mathrm{nd}} $ Appellant's appeal and the learned SCJ's decision is set aside. The $ 2^{\mathrm{nd}} $ Appellant is hereby acquitted and discharged, and his bail bond and surety are released. The Prosecution's appeal against sentence [33] In the Memorandum of Appeal, the Prosecution states that the sentences imposed on the $ 2^{\mathrm{n d}} $ Appellant were inadequate and did not reflect the seriousness of the offences. Thus, Prosecution urges that the sentences must be increased on the following grounds:

trafficking in persons is a serious offence that carries severe impacts;

the sentences handed down to the $ 2^{\mathrm{n d}} $ Appellant are highly inadequate and fail to reflect the principles of deterrence;

the learned SCJ erred in law and in fact by failing to consider the high prevalence and rampant frequency of human trafficking offences across Malaysia, which necessitates a harsher, exemplary sentence; and

the learned SCJ erred in law and/or in fact in directing that the sentences of imprisonment to run concurrently, ignoring the established legal principle that consecutive sentences should be imposed where distinct offences are committed against different victims. [34] Before examining the prosecution's appeal against sentence in detail, it is pertinent to note that the principles governing the appellate court's power when hearing appeals on sentence are well-established. In Mansor Endut v. PP [2024] CLJU 346, the Court of Appeal through Azmi Ariffin JCA held- [14] The appellate court can and will interfere in the sentence imposed by the lower court if it is satisfied that any of the following four grounds are made out:

the sentencing judge had made a wrong decision as to the proper factual basis for the sentence;

there had been an error on the part of the trial judge in appreciating the material facts placed before him;

the sentence was wrong in principle; or

The sentence imposed was manifestly excessive or inadequate. (See R v. Ball [1951] 35 Cr App. R 164; Loo Weng Fatt v. Public Prosecutor [2001] 3 SLR 313 at para [65]; Public Prosecutor v. UI [2008] 4 SLR (R) 5 [35] The Court of Appeal speaking through Siti Norma Yaakob JCA (as she then was) in Yusmarin Samsudin v. PP [1999] 4 CLJ 391 held that-The principles of sentencing have long been entrenched and well settled in our criminal law jurisprudence and a court seized with such a jurisdiction is empowered to take into account the following considerations;

the extent and seriousness of the offence committed;

the guilty person's antecedents; and

the public interest factor. See the judgment of this court in Lim Guan Eng v. Public Prosecutor [1998] 3 CLJ 769; [1998] 3 MLJ 34. [36] A careful perusal of the learned SCJ's GOJ, I find that he observed that trafficking in persons is a severe, high-magnitude offence and cannot be treated lightly. The learned SCJ also recognised that the offence is an organised crime that directly impacts national sovereignty, compromises border security, undermines public order and prejudices international relations. Thus, I find that the learned SCJ had duly taken into consideration all material facts presented before him. [37] Regarding the sentence of five (5) years' imprisonment imposed by the learned SCJ on each count, I am of the view that the punishment is adequate. Regard must be had to the mitigating factor that this is the 2 $ ^{nd} $ Appellant's first offence, coupled with the fact that there was an absolute absence of violence or physical harm inflicted upon the victims. Furthermore, it remains axiomatic from the record that all logistics and arrangements to traffic the victims into this jurisdiction were orchestrated solely by the 1 $ ^{st} $ Appellant. [38] On the Prosecution's argument that all sentences of imprisonment must run consecutively, I find instructive the Court of Appeal case of Bachik Abdul Rahman v. Public Prosecutor [2004] 2 CLJ 572; [2004] 2 MLJ 534 where it was stated by Augustine Paul JCA (as he then was) in the following passage: ...In deciding whether the terms of imprisonment should be consecutive or commence at another date the court will 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 (see R v. Saleem [1964] Crim LR 482; R v. Walsh [1965] Crim LR 248). 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 (see Jayaraman & Ors v. PP [1979] CLJU 36; [1979] 1 LNS 36; [1979] 2 MLJ 88; Amrita Lal Hazra v. Emperor 42 Cal 957; Chin Choy v. PP [1955] 1 LNS 17; [1955] MLJ 236). The rule, however, is not absolute. As Yong Pung How CJ said in Kanagasuntharam v. PP [1992] 1 SLR 81 at p. 83: The English courts have recognised that there are situations where consecutive sentences are necessary to discourage the type of criminal conduct being punished: see R v. Faulkner [1972] 56 Cr App R 594,R v. Wheatley [1983] 5 Cr App R (S) 417 and R v. Skinner (1986) 8 Cr App R (S) 166. The applicability of the exception is said to depend on the facts of the case and the circumstances of the offence. It is stated in broad and general terms and although it may be criticised as vague, it is necessarily in such terms in order that the sentencer may impose an appropriate sentence in each particular case upon each particular offender at the particular time the case is heard. [39] Based on the facts of the present appeals, it is beyond doubt that although the charges involve different victims, all offences were committed with proximity of time, proximity of place, continuity of action and continuity of purpose or design, thereby justifying the order for the terms of imprisonment to run concurrently. [40] In conclusion, this judgment would be incomplete without drawing guidance from the celebrated dictum of Raja Azlan Shah Ag LP (as His Royal Highness then was) in Bhandulananda Jayatilake v. PP [1981] CLJU 139; [1981] 1 LNS 139; [1982] 1 MLJ 83 where His Royal Highness observed as follows: Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525, 549). It is for that reason that some very conscientious judges have thought it their duty to visit particular crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to view the same crimes with leniency. Therefore, sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court's interference. [41] In light of the above, I dismiss the Prosecution's appeal against sentences and subject to my earlier decision allowing the $ 2^{\mathrm{nd}} $ Appellant's appeal to set aside the conviction, the learned SCJ's decision on sentences is upheld. Dated: 11.6.2026 (SHAMSULBAHRI BIN HAJI IBRAHIM) JUDGE, HIGH COURT OF MALAYA, KLANG For the 2 $ ^{n d} $ Appellant: Rasshidi bin Syed Yung Azwaire bin Mohamad Dahlan Messrs. Rasshidi Ema & Yung For the Prosecution: DPP Fatin Hosna binti Muhammad Zikri Pejabat Pengarah Pendakwaan Negeri Selangor Watching brief for Persatuan Sahabat Wanita Selangor Amelia Ong Siew Ling Messrs. Khuderi & Co