Pendakwa Raya v 1. ) MOHD RAZIN BIN RAZALI 2. ) MOHAMAD FAIZAL BIN AHMAD ZAKI

Case Significance

Illustrates how section 14 of SOSMA and section 20 of the Witness Protection Act 2009 modify the open-court principle to safeguard a protected witness's identity in a migrant-smuggling prosecution, the Court of Appeal preserving special, closed-manner testimony over an order for open-court evidence.

This Court of Appeal decision at Putrajaya concerns the manner in which a protected witness may give evidence in a prosecution for the smuggling of migrants, and the interaction of witness-protection legislation with the ordinary rule of open-court testimony. The respondents were being prosecuted for an offence under seksyen 26B(d) Akta Anti Pemerdagangan Orang dan Anti Penyeludupan Migran 2007 (section 26B(d) of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007) read with seksyen 34 Kanun Keseksaan (section 34 of the Penal Code), and the appeal concerned how a key protected witness, PW1, should testify. The prosecution appealed against a High Court order requiring PW1 to give evidence in open court, relying on section 14 of the Security Offences (Special Measures) Act 2012 (SOSMA), which governs the special manner in which a protected witness may testify, read together with section 20 of the Witness Protection Act 2009, which protects a participant's identity from being disclosed in court proceedings. The court emphasised that public confidence in the Witness Protection Programme would be eroded if the identity of witnesses who ought to be strictly protected could be exposed without legal limitation. It unanimously allowed the prosecution's appeal that PW1 give evidence in a special manner, set aside the High Court's order that PW1 testify in open court, and maintained an earlier order that PW1 give evidence in the High Court in a special and closed manner; a further prosecution appeal concerning a second inquiry into PW1 was withdrawn at the prosecution's request. Determined on behalf of the panel by Azmi bin Ariffin JCA, the judgment is a useful illustration of how SOSMA and the Witness Protection Act 2009 modify the open-court principle to safeguard a protected witness's identity in a migrant-smuggling prosecution. The decision underscores that the special-measures regime is designed to keep faith with witnesses who agree to testify under protection, and that appellate courts will guard the integrity of the Witness Protection Programme so that the identities of those entitled to strict protection are not exposed without a legal basis.