Pendakwa Raya v 1. ) ANAS HAFIZIN BIN AHMAD 2. ) MUHAMAD ASLAM BIN OSMAN 3. ) IBRAHIM BIN DAHAMID

Case Significance

Illustrates how the special-measures regime under section 14 of SOSMA and the identity protections in section 20 of the Witness Protection Act 2009 qualify the open-court principle where a protected witness must testify in a migrant-smuggling prosecution, the Court of Appeal preserving special, closed-manner evidence to protect the witness.

This Court of Appeal decision at Putrajaya is one of a set of consolidated prosecution appeals concerning how a protected witness should give evidence in a migrant-smuggling prosecution, this appeal relating to three respondents charged in the High Court at Alor Setar. The respondents faced 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). At the centre of the appeal was the treatment of a key witness, PW1, whose identity fell to be protected. The prosecution invoked section 14 of the Security Offences (Special Measures) Act 2012 (SOSMA), which permits a witness to give evidence in a special manner, read with section 20 of the Witness Protection Act 2009, under which the identity of a participant in the witness-protection programme is not to be disclosed in court proceedings. The court stressed that public confidence in the witness-protection scheme would be undermined if witnesses who ought to be strictly protected could have their identities exposed without legal limitation. The Court of Appeal 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High Court in a special and closed manner; a related prosecution appeal about conducting a second inquiry into PW1 was withdrawn at the prosecution's request.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 the special-measures regime under SOSMA and the identity protections of the Witness Protection Act 2009 qualify the open-court principle where a protected witness must testify against those charged with people-smuggling offences.