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

Case Significance

Illustrates how section 14 of SOSMA and section 20 of the Witness Protection Act 2009 displace the ordinary open-court rule to protect a witness's identity and safety in a migrant-smuggling prosecution, the appellate court giving effect to the protective regime over an order for open-court evidence.

This Court of Appeal decision at Putrajaya, decided together with related prosecution appeals in a migrant-smuggling case at Alor Setar, engages the tension between the open-court principle and the statutory protection of vulnerable witnesses. 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). Ordinarily witnesses testify in open court, but that general rule is qualified by statute where a witness requires protection: section 14 of the Security Offences (Special Measures) Act 2012 (SOSMA) allows evidence to be given in a special manner, and section 20 of the Witness Protection Act 2009 forbids the disclosure of a participant's identity in court proceedings. The issue in this appeal was whether the protected witness, PW1, should be required to give evidence openly or in a protected manner. The court reasoned that the very purpose of the Witness Protection Programme — to assure the safety of witnesses who face danger and to shield their identities from public knowledge — would be defeated, and public confidence in it eroded, if such witnesses could be exposed at will. It unanimously allowed the prosecution's appeal that PW1 give evidence in a special manner, set aside the High Court's order for open-court testimony, and maintained the earlier order for special and closed testimony; a further appeal about a second inquiry into PW1 was withdrawn.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 SOSMA and the Witness Protection Act 2009 displace the ordinary open-court rule to protect a witness's identity and safety in a prosecution for the smuggling of migrants. The decision reflects the legislative choice to prioritise the security of vulnerable witnesses in security and cross-border offences over the transparency that open-court testimony ordinarily serves, and the appellate court's willingness to enforce that choice so that the protective scheme retains the confidence of the witnesses it is meant to serve.