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

Case Significance

Illustrates that where a trial court has made inconsistent orders about a protected witness's mode of evidence, the appellate court will give effect to the special-measures regime under SOSMA and the identity protections of the Witness Protection Act 2009 and restore the order preserving the witness's protection over one exposing the witness in open court.

This Court of Appeal decision at Putrajaya, part of a consolidated set of prosecution appeals arising from a people-smuggling prosecution at Alor Setar, concerns the sequence of competing High Court orders about how a protected witness should testify and which of them should stand. The respondents were charged 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 dispute was about the mode of evidence of a protected witness, PW1. The High Court had made more than one order on the point: an earlier order that PW1 give evidence in the High Court in a special and closed manner, and a later order that PW1 instead testify in open court. The prosecution appealed, relying on section 14 of the Security Offences (Special Measures) Act 2012 (SOSMA), which provides for a witness to give evidence in a special manner, read with section 20 of the Witness Protection Act 2009, which protects a participant's identity from disclosure in court. The Court of Appeal resolved the tension in favour of protection. It unanimously allowed the prosecution's appeal that PW1 give evidence in a special manner, set aside the later High Court order for open-court testimony, and maintained the earlier order for special and closed testimony; a further prosecution appeal about a second inquiry into PW1 was withdrawn. Determined on behalf of the panel by Azmi bin Ariffin JCA, the judgment is a useful illustration of how, where a trial court has made inconsistent orders about a protected witness's evidence, the appellate court will give effect to the special-measures and identity-protection provisions and restore the order that preserves the witness's protection rather than the one that would expose the witness in open court.