1. ) ZALI BIN SAAD 2. ) TENGKU MOHD BASHAH BIN TENGKU HUSIN 3. ) ADI BASTIAN BUSTAMI 4. ) MOHD YUSOF BIN HUSIN v Pendakwa Raya

Case Significance

Confirms the high threshold for appellate interference with sentence, holding that an eight-year term for smuggling migrants under section 26A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 was not manifestly excessive after weighing public interest, gravity and mitigation.

This Court of Appeal decision concerns an appeal against sentence by four appellants convicted of a migrant-smuggling offence, and the standard for appellate interference with a sentence said to be manifestly excessive. The prosecution had proceeded against the four appellants in the High Court at Shah Alam on a charge that, acting together on 21 June 2023 aboard an unregistered fibreglass boat in Malaysian waters near Tanjung Rhu, Sepang, they had engaged in the penyeludupan migran (smuggling of migrants), an offence under seksyen 26A Akta Antipemerdagangan Orang dan Antipenyeludupan Migran 2007 (section 26A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007). The High Court had convicted the appellants and imposed a sentence of eight years' imprisonment from the date of arrest. On appeal against sentence, the appellants contended that the term was excessive. The Court of Appeal applied the settled principle that it will interfere with a sentence only where it is shown to be wrong in principle or manifestly excessive, and not merely because the appellate court might have imposed a different term. Having heard oral submissions on sentence and weighed the factors of kepentingan awam (the public interest), the seriousness of the offence and the appellants' mitigation, the Court held, unanimously, that the sentence of eight years' imprisonment from the date of arrest imposed by the High Court could not be characterised as manifestly excessive so as to justify appellate intervention. It accordingly dismissed the appellants' appeal and affirmed the High Court's sentence. The decision illustrates the deference an appellate court accords to a trial court's exercise of sentencing discretion in a serious migrant-smuggling case, and the high threshold that must be crossed before a custodial term will be disturbed on appeal. The decision also reflects that the gravity of migrant-smuggling offences, and the public interest in deterring the clandestine movement of people through Malaysian waters, weigh heavily in sentencing, so that a substantial custodial term reached after due regard to mitigation will ordinarily be regarded as within the proper range and insulated from appellate interference.