JUBANG ANAK USIN v Pendakwa Raya

Case Significance

Affirms a conviction for smuggling ten migrants under section 26A of ATIPSOM 2007 against challenges to accomplice testimony and an alibi, holding a six-year sentence not manifestly excessive given the offence's violation of national sovereignty; a stay and bail were granted pending further appeal.

This Court of Appeal decision concerns an appeal against conviction and sentence for the smuggling of migrants under section 26A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM 2007). The appellant had been charged, on a charge subsequently amended by the prosecution in the High Court, with carrying out the smuggling of ten migrants on 8 April 2021 at Simpang Amir Lachau in the Sri Aman district of Sarawak, the migrants being named foreign nationals travelling without passports. The appellant was convicted and sentenced by the High Court in Sabah and Sarawak at Sri Aman.

On appeal the issues included the reliability of accomplice testimony and the appellant's alibi defence. The Court of Appeal examined the evidence and the trial judge's treatment of it, and affirmed the conviction, finding no basis to disturb the trial court's findings on the appellant's involvement in the smuggling of the migrants.

On sentence, the court noted that although the notice of appeal was against both conviction and sentence, neither the appellant's counsel nor the Public Prosecutor made submissions on sentence. Notwithstanding the absence of submissions, the court considered the matter and was of the view that a sentence of six years' imprisonment for the offence was not manifestly excessive, taking into account the nature of the offence, which violates the sovereignty of the country. On the delivery of its decision, counsel for the appellant applied for a stay of execution and for the appellant to be released on bail. The Public Prosecutor did not object but sought bail of RM30,000, with RM15,000 to be deposited. The court unanimously allowed the application for a stay, setting bail at RM30,000 with one surety. The judgment illustrates the appellate treatment of a migrant-smuggling conviction under ATIPSOM 2007, the assessment of accomplice evidence and an alibi, and the calibration of a custodial sentence for an offence against the country's sovereignty.