Pendakwa Raya v Mohammad Anwar Hossain Kha (BA-42LB-7-11/2024)

The prosecution is appealing against the learned Session Court's Judge (LSC) decision delivered on 30 October 2024, which essentially decided that the prosecution had failed to prove a prima facie case against the Accused. Consequently, the Accused was acquitted and discharged by the LSC.

For ease of reference, this Court refers to the parties in this case according to the reference made in the trial before the Session's Court.

The accused was charged under section 12(1)(f) Passport Act 1966, which is punishable under section 12(2) of the same Act, and the charge in its original text states as follows: BAHAWA KAMU, pada 12.03.2022 jam lebih kurang 0057 hrs, di Lot 1C, Jalan Perkhidmatan, Kg Baru Sg Buloh, Seksyen U19, 40160 Shah Alam dalam daerah Petaling dalam negeri Selangor, sebagai seorang warganegara Bangladesh, tanpa kuasa yang sah ada dalam milikan kamu senaskah pasport Bangladesh no. BX0700440 yang telah dikeluarkan untuk Amir Hossaen. Dengan itu, kamu didapati telah melakukan kesalahan dibawah seksyen 12(1)(f) Akta Pasport 1966 Pind. 1997 yang mana sekiranya disabitkan boleh dihukum di bawah Seksyen 12(1) dari Akta yang sama. Hukuman: Denda tidak melebihi RM10,000.00 atau penjara tidak lebih lima (5) tahun atau kedua duanya sekali.

The prosecution was aggrieved by the LSC's decision and filed an appeal to the High Court.

Hence the appeal.

On 12.3.2022 at approximately 0057hrs, the Intelligence and Special Operations Division, Malaysian Immigration Department (JIM), Putrajaya, conducted an operation led by Deputy Assistant Director of Immigration (TPPI) Mohamad Tarmizi bin Abdullah as Head of Operations (SP1) at a residential house located at F-1-6 Block F (Melati), Psrn Surian PJU 6, Pelangi, Damansara, 47810 Petaling Jaya, Selangor (hereinafter referred to as the "first premise").

A thorough inspection of the first premise found RM1,140 in cash and a set of keys in the accused's possession, and the accused was arrested on suspicion of committing an offence under the Immigration Act 1959/63 [Act 155].

As a result of further questioning of the accused, the accused led the Immigration team to a single-storey shop lot premises located at Lot 1C, Jalan Perkhidmatan, Kg. Baru Sungai Buloh, Section U19, 40160 Shah Alam, Selangor (hereinafter referred to as the "second premise"). Upon arrival at the second premise, the Accused opened it using the key in his possession.

An inspection of the second premise found thirty-seven (37) passports that were suspected of not belonging to the accused, and the Accused was arrested on suspicion of committing an offence under Act 150. The Accused was then arrested, and SP1 made a police report - Damansara/003231/22 dated 12.3.2022.

Surveillance was conducted at the first and second premises. From the surveillance, it was found that there were elements of fraud and exploitation for the Recalibration Program. The Accused had kept a passport that did not belong to him, and the Accused also requested a sum of cash as an advance for the Pass or Permit registration process.

After the investigation conducted by the Investigating Officer (IO), Senior Deputy Assistant Director (TPPK) Mazlan bin Saaizan was completed, the Accused was charged under section 12(1)(f) of Act 150.

Chief Deputy Assistant Director (KTPP) Roslan bin Mat Sahad (SP11) has provided an Inspection Report confirming the genuineness of the inspection findings of Passport No: BX0700440. At the same time, the Visit Pass (Social Work) (PLKS) sticker PC7511980 is counterfeit [Appeal Record Volume 3D p/s 903-907].

The appeal before this Court is mainly concerning the decision of the LSC which ordered that the Accused be discharged and acquitted without being called to enter his defence for the charge under section 12(1)(f) of Act 150 in respect of a copy of Bangladeshi passport No: BX0700440 which was issued for the use of Amer Hossaen only.

The Court is mindful of its duty regarding criminal appeals. The Federal Court in Herchun Singh v. Public Prosecutor [1969] 2 MLJ 209, where Ong Hock Thye C.J decided: "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."

The same principle has been enunciated in LCY v. TWY [2019] 7 CLJ 158, where YAA Tengku Maimun Tuan Mat HMR (former Chief Judge) said as follows: "[26] The principle of law on appellate intervention is settled. In Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453, the Federal Court reiterated the principle as follows at p.476: [60] It is now established that the principle on which an appellate court interferes with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor (P) v. Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 1 MLJ 1 (at p. 10) per Steve Shim CJ SS. More recently, this principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v. Genisys lntergrated Engineers Pte Ltd [2010] 9 CLJ 785 where it was held at p. 800: It is well settled law that an appellate court will not generally speaking intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of the evidence (See Chew Yee Wah & Anor v. Choo Ah Pat [1978]1 LNS 32; Watt v. Thomas [1947] AC 484; and Chin v. Lee

The Federal Court further emphasised that the Court hearing an appeal from the decision of a trial court must examine the evidence and circumstances in which the findings of the trial court was made. It further warrants the appellate court intervention if the findings of the trial court was plainly wrong. The principle of law is propounded by the Federal Court in Dato' Seri Anwar Ibrahim v. Public Prosecutor & Another Appeal [2004] 3 CLJ 737, where the Federal Court held as follows: "Clearly, an appellate court does not and should not put a brake and not going any further the moment it sees that the trial judge says that is his finding of facts. It should go further and examine the evidence and the circumstances under which that finding is made to see whether, to borrow the words of HT Ong (CJ Malaya) in Herchun Singh's case (supra) 'there are substantial and compelling reasons for disagreeing with the finding.' Otherwise, no judgment would ever be reversed on question of fact and the provision of s. 87 CJA 1964 that an appeal may lie not only on a question of law but also on a question of fact or on a question of mixed fact and law would be meaningless."

Bearing the above principles in mind, the Court now deals with the issues in dispute raised by both parties.

The petition of appeal states nine grounds of appeal, and broadly speaking, the prosecution's foremost grounds of appeal focus on the point that the LSC erred in law and fact when the LSC decided that the prosecution had failed to prove the two critical ingredients of the charge and the finding by the LSC that the prosecution must call the holder of the passport, Amer Hossaen as its witness to prove its case against the accused.

The LSC made the findings that the prosecution had failed to establish a prima facie case against the accused based on the following grounds:

Paragraphs 30 and 33 – the prosecution failed to prove the first ingredient of the charge on the element of possession, where other individuals (including PW6) had access to the place of the incident.

Paragraph 42 – failure by the prosecution to prove the second ingredient of the charge on whether Amer Hossaen (the passport holder) had given the authority for the accused to keep his passport. The prosecution had failed to call Amir Hossaen, who had since left Malaysia, to provide evidence as to whether he had given the authority for the accused to keep his passport.

Paragraph 35 - PW6 testified that as the accused was also the director of the company, logically, both directors have access to the premises where PW1 found the passport.

Paragraph 37 – conflicting testimonies by the prosecution witnesses as to the place in which the passport was found had created doubt about the prosecution's case.

Paragraph 46 – PW10 and PW11 testimonies were irrelevant to the issue before the LSC, as they testified about matters related to the system.

Paragraph 51 – The IO's investigation was not complete.

To better understand the issue in dispute, the Court reproduced below the relevant provision in dispute:

Offences

Any person who—

without lawful authority, has in his possession any passport or internal travel document issued for the use of some person other than himself;

In the context of the case and the provision of section 12(1)(f) Passport Act, there are two critical questions that the Court must address-

What is the correct interpretation of the words "lawful authority", and

The meaning of the word "possession". The question was whether the Court should adopt the strict principle of law on the element of possession held by Courts in drugs cases under the Dangerous Drugs Act 1952.

The LSC decided that the evidence of Amer Hossaen as the passport holder is material to the prosecution's case to determine whether the accused had the lawful authority to keep Amer Hossaen's passport. As the prosecution had failed to call Amer Hossaen to testify before the Session Court, the LSC decided that the prosecution had failed to prove the first ingredient of the charge.

The accused's counsel similarly argued that the passport holder's authority is crucial to determine whether the passport holder had given the accused the authority to keep the passport. The cases of Wong Ting Yong v PP [1985] 2 MLRH 321 and PP v Margarita B Cruz [1988] 1 MLJ 539 were referred by the counsel in support of her contention.

Those cases referred by the counsels are easily distinguishable. The case of Wong Ting Yong v PP (supra) is a decision by the Brunei High Court. Based on the narratives of the case referred by the counsel, the accused was working as a captain in a restaurant, who, from time to time, was asked to renew passes and work permits. Miss Reyes, The holder of the an agent responsible for applying for the passport holder the requirements from the appropriate authorities for the holder's pass or working permit as a maid in Brunei. The High Court decided that the accused had lawfully had in his possession the holder’s passport as

The prosecution, on the other hand, argued that "lawful authority" means an authority granted by the State or one of the State's organs or by the law itself as decided in PP v Muniandy [1963] CLJU 96; [1963] 1 LNS 96; [1963] 1 MLJ 147 and referred in the case of Lukman Hakim Mohamed Yousuf v PP [2022] 1 CLJ 271.

Further, the prosecution argued that since the prosecution had proved that the accused was keeping someone else's passport, the prosecution submitted that it had established the first paramount ingredient of the charge that the accused did not have the lawful authority to keep Amer Hossaen's passport.

Having read the notes of the proceedings and the submissions by the prosecution and the accused's counsel, the Court found that the prosecution had proven the first ingredient of the charge that keeping Amer Hossaen's passport was illegal, as the accused had no authority to keep someone else's passport.

Section 1A of the Passport Act defines "passport" to mean "a valid passport which has been issued to a person by or on behalf of the Government of which he is a subject or citizen and includes any form of valid document of identity issued for the purpose of travel by any Government and recognised as a travle document by the Government of Malaysia."

By applying the definition to the facts of the case, both parties did not dispute that Amer Hossaen, a Bangladeshi national, was the holder of passport number. BX0700440 (exhibit P20) and the Immigration team found his passport in the accused's possession at the second premise.

Based on the narratives of the case, the accused led the team to the second premise. SP1 found Amer Hossaen's passport in the second premise, and access to the second premise was made possible by the keys the accused had to unlock the doors.

The accused rented the second premise from PW5 and managed the company at the second premise. This is also consistent with PW6's testimonies. Moreover, the accused's company was not a foreign employment agency. But instead, the accused is a managing director of a company known as U-Farm Sdn Bhd, which is involved in the agriculture business.

Hence, based on the principle propounded in the case of Rex v Turner 5 M & S 206, which was applied by the Court of Appeal in Abdul Manap v PP [1952] 1 MLRA 337, the Court held as follows: "On the principle laid down in Rex v. Turner and numerous other cases, where it is an offence to do an act without the lawful authority, the person who sets up lawful authority must prove it, and the prosecution need not prove the absence of lawful authority. I think the onus of the negative averment in this case was on the accused to prove possession of the policy required by the statute."

On the finding that the investigation was not complete, this Court think that the finding made by the LSC was unwarranted and the Court is reminded of the decision in Public Prosecutor v. Subramaniam [1968] 1 LNS 112 where it was held: 'As regards the observation of the learned President, I feel that such an observation that the case was not properly investigated is uncalled for and is strictly outside the duty of the learned president. Not having seen the investigation papers, it is hardly right for the learned president to make such comments. His concern is just to decide whether or not a prima facie case has been made out to justify calling upon the defence. Whether or not to call the so called independent witnesses is according to the long line of cases a discretion for the prosecution.'

Concerning the second ingredient of the charge, regarding possession, the accused's counsel urged the Court to apply the principles laid down in respect of possession for drug cases. For instance, the landmark decision on this point is the case of Chan Pean Leon v. PP (1956) MLJ 237, where it was held: "'Possession' itself as regards the criminal law is described as follows in Stephen's Digest (9th Edition pg 304)...A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so i case of need. To put it otherwise, there is a physical element and mental element which must be present before possession is made out. The accused must not only be so situated that he can deal with the things as it if belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must be shown that he had the intention of dealing with it as if it belonged to him should he see any ocassion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact, which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from surrounding cimcumstances. Whether these surounding circumstances make out such intention is a question of fact in each individual case. If a watch is in my pocket then in the absence of anything else the inference will be clear that i intend to deal with it as if it were my own and accordingly i am in possession of it. On the other hand, it it is lying on the table in a room in which i am in but which is also frequently used by other people then the mere fact i am in physical proximity to it as if it belonged to me. There must be some evidence that i am doing or having done something with it that shews such an intention."

The Court thinks the cases involving the element of possession in drug cases should be distinguished from cases under the Passport Act. The Court refers to the case in Park In Keun v Public Prosecutor [2021] MLJU 1283 as an illustration where the Court made a similar comment on the issue regarding the element of possession in drugs cases to cases under the Customs Act, and the Court held: "Now, of course, the circumstances of possession of incriminating items such as dangerous drugs cannot be equated with possession of intoxicating liquors put up for sale in a minimarket or supermarket."

A similar approach had been adopted in another case, PP v. Tan Cheng Chai [2010] 6 CLJ 231, where the Court held : "The approach taken by the learned magistrate to consider the defence case was misplaced. She considered that the prosecution had failed to prove the accused had exclusive possession of the firecrackers and fireworks, the subject matter of the charge. It would appear that she had introduced the element of exclusivity of possession into the offence of knowingly concerned in the conveying of prohibited goods under s. 135(1)(e) of the Act. The learned magistrate had omitted to properly address her mind as to whether the defence had rebutted, on the balance of probability, the presumption of knowledge under s. 135(2) of the Act rather than labouring on the issue of exclusive possession. This is a misdirection by way of non-direction. Presumably, the learned magistrate had got mixed up with the element of exclusive possession which is commonly raised and familiar in the field of our drug laws - Dangerous Drugs Act, 1952."

Based on the overwhelming evidence of the prosecution witnesses and the documents tendered before the LSC, the Court is convinced that the prosecution had established the element of possession based on the following:

The accused was in possession of the keys to the second premise.

The accused led the Immigration team to the second premise.

The application of Section 27 of the Evidence Act. Without the accused leading the team to the second location, the team would not have found the passports that the accused had illegally kept.

The police report (exhibit P63) states that the accused led the team to the second premise.

The accused had custody and control over exhibit P20.

Based on the above, the Court found that this is a fit and proper case for this Court to intervene as the LSC fell into