Malaysia legislation
Section 26
of ANTI-TRAFFICKING IN PERSONS AND ANTI-SMUGGLING OF MIGRANTS ACT 2007
Section 26
(2)
If any book, document or paper which is in evidence or liable to inspection in any civil or criminal proceedings whatsoever contains any entry in which any informer is named or described or which might lead to his discovery, the court before which the proceedings is had shall cause all such entries to be concealed from view or to be obliterated so far as is necessary to protect the informer from discovery.
Act 670
(3)
If in a trial for any offence under this Act, the Court, after full enquiry into the case, is of the opinion that the informer willfully made in his complaint a material statement which he knew or believe to be false or did not believe to be true, or if in any other proceedings the court is of the opinion that justice cannot be fully done between the parties without the discovery of the informer, the Court may require the production of the original complaint, if in writing, and permit enquiry and require full disclosure concerning the informer.
(4)
Any person who gives the information referred to in this section, knowing that the information is false, commits an offence.
Part IIIa
SMUGGLING OF MIGRANTS
Offence of smuggling of migrants 26a. Any person who carries out smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding *twenty years, and shall also be liable to fine, or to both.
Aggravated offence of smuggling of migrants 26b. Any person who commits an offence of smuggling of migrants where any of the following applies:
(a)
in committing the offence, the person intends that the smuggled migrant will be exploited after entry into the receiving country or transit country whether by the person himself or by another person;
(b)
in committing the offence, the person subjects the smuggled migrant to cruel, inhuman or degrading treatment;
(c)
in committing the offence, the person’s conduct gives rise to a risk of death or serious harm to the smuggled migrant; or
*NOTE—Previously “fifteen years”–see section 9 of the Anti-Trafficking in Persons and
Anti-Smuggling of Migrants (Amendment) Act 2022 [Act A1644] w.e.f. 22 February 2022.
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Anti-Smuggling of Migrants 27
(d)
where the offence of smuggling of migrants was committed by a public officer in the performance of his public duties, shall, on conviction, be punished with *imprisonment for life or with imprisonment for a term which shall not be less than five years, and shall also be liable to whipping.
Offence in relation to smuggled migrant in transit 26c. Any person who brings in transit a smuggled migrant through Malaysia by land, sea or air or otherwise arranges or facilitates such act 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, or to both.
Offence of profiting from the offence of smuggling of migrants 26d. Any person who profits from the offence of smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term of not less than seven years but not exceeding fifteen years, and shall also be liable to a fine of not less than five hundred thousand ringgit but not exceeding one million ringgit, or to both, and shall also be liable to forfeiture of the profits from the offence.
Fraudulent travel or identity documents 26e. Any person who makes, obtains, gives, sells or possesses a fraudulent travel or identity document for the purpose of facilitating an act of smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term of not less than seven years but not exceeding fifteen years, and shall also be liable to a fine of not less than fifty thousand ringgit but not exceeding five hundred thousand ringgit, or to both.
*NOTE—Previously “imprisonment for a term not less than three years but not exceeding twenty years, and shall also be liable to fine, or to both”–see paragraph 10(e) of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants (Amendment) Act 2022 [Act A1644] w.e.f.
22 February 2022.
**NOTE—Previously “seven years”–see section 11 of the Anti-Trafficking in Persons and
Anti-Smuggling of Migrants (Amendment) Act 2022 [Act A1644] w.e.f. 22 February 2022.
Act 670
Providing facilities in support of smuggling of migrants 26f. Any person, being—
(a)
the owner, occupier, lessee or person in charge of any premises, room or place, knowingly permits a meeting of persons to be held in that premises, room or place;
or
(b)
the owner, lessee or person in charge of any equipment or facility that allows for recording, conferences or meetings via technology, knowingly permits that equipment or facility to be used, for the purpose of committing an offence under this Part, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years, and shall also be liable to fine, or to both.
Providing services for purposes of smuggling of migrants 26g. (1) Any person who, directly or indirectly, provides or makes available financial services or facilities—
(a)
intending that the services or facilities be used, or knowing or having reasonable grounds to believe that the services or facilities will be used, in whole or in part, for the purpose of committing or facilitating the commission of an act of smuggling of migrants, or for the purpose of benefiting any person who is committing or facilitating the commission of an act of smuggling of migrants; or
(b)
knowing or having reasonable grounds to believe that, in whole or in part, the services or facilities will be used by or will benefit any person involved in an act of smuggling of migrants, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years, and shall also be liable to fine, or to both.
(2)
For the purpose of subsection (1), “financial services or facilities” include the services and facilities offered by lawyers or accountants acting as nominees or agents for their clients.
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Concealing or harbouring smuggled migrants and migrant smugglers 26h. (1) Any person who conceals or harbours, or prevents, hinders or interferes with the arrest of any person knowing or having reason to believe that such person is—
(a)
a smuggled migrant; or
(b)
a person who has committed or is planning or is likely to commit an act of smuggling of migrants, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years, and shall also be liable to fine, or to both.
(2)
In this section, “harbour” includes supplying a person with shelter, food, drink, money or clothes, arms, ammunition or means of conveyance, or assisting a person in any way to evade apprehension.
Supporting offence of smuggling of migrants 26i. (1) Any person who provides material support or resources to another person and the support and resources aid the receiver or any other person to engage in conduct constituting the offence of smuggling of migrants 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, or to both.
(2)
For the avoidance of doubt, a person commits an offence under subsection (1) even if the offence of smuggling of migrants is not committed.
Offence of conveyance of smuggled migrants 26j. Any person being the owner, operator or master of any conveyance who engages in the conveyance of smuggled migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding five years and shall also be liable to a fine not exceeding two hundred and fifty thousand ringgit, or to both.
Act 670
Obligation of owner, etc., of conveyance 26k. (1) Any person being the owner, operator or master of any conveyance that engages in the conveyance of goods or people for commercial gain shall ensure that every person travelling on board is in possession of travel documents for the lawful entry of that person into the receiving country or transit country and if not, shall refuse to convey such person.
(2)
Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding five years, or to both.
(3)
In any proceeding for an offence under this section, it shall be a defence for such owner, operator or master to prove that—
(a)
he has reasonable grounds to believe that the travel documents of the person referred to in subsection (1)
are travel documents required for lawful entry of that person into the receiving country or transit country;
(b)
the person referred to in subsection (1) possessed travel documents required for lawful entry to the receiving country or transit country when that person boarded, or last boarded, the conveyance to travel to the receiving country or transit country; or
(c)
the entry of the person referred to in subsection (1) into the receiving country or transit country occurred only because of illness or injury to that person, stress of weather or any other circumstances beyond the control of such owner, operator or master.
(4)
Any person convicted of an offence under this section shall be liable to pay the costs of the smuggled migrant’s detention in, and removal from, the receiving country or transit country.
(5)
Where there is no prosecution or conviction under this section, the owner, operator or master of the conveyance used shall be jointly and severally liable for all expenses incurred by the Government in respect of the detention and maintenance of the smuggled migrant and his removal from Malaysia and such expenses shall be recoverable as a debt due to the Government.
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