OVERSIMPLIFIED CASE REVIEW: KETHEESWARAN KANAGARATNAM & ANOR v. PP [2021] 9 CLJ

CASE REVIEW ON CONSTITUTIONAL LAW.

KETHEESWARAN KANAGARATNAM & ANOR v. PP [2021] 9 CLJ 

 

HIGH COURT MALAYA, KLANG

AZMI ABDULLAH J

[NOTICE OF MOTION NO: BL-44-6-09-2020]

3 JUNE 2021

 

FACTS

The applicants are Anmuni Maria, Yani Tri Anda and Fransisaka [Migrants]. Applicants are charged under s. 12 of Anti-Trafficking In Persons And Anti-Smuggling Of Migrants Act 2007.

Offence of trafficking in persons s.12.

Any person, who traffics in persons not being a child, for the purpose of exploitation, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding fifteen years, and shall also be liable to fine.

The prosecution delivered on the applicants as part of the evidence for the prosecution pursuant to s.51A Criminal Procedure Code Act 593.

Delivery of certain documents 51a.

(1) The prosecution shall before the commencement of the trial deliver to the accused the following documents:

(c) a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.

The applicants have challenged the constitutionality of s. 61A of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM) with the impugned provision being argued to be against arts. 121(1), 8(1) and 5(1) of the Federal Constitution (FC).

Section 61A of ATIPSOM essentially provides that the deposition of trafficked persons or smuggled migrants who cannot be found would be accepted as prima facie evidence without the evidence being tested under cross-examination at the trial for the charges under s. 12 of ATIPSOM beinglevelled against the applicants in this instance.

ISSUES

  • 1.      Whether impugned provision contravened arts. 121(1), 8(1) and 5(1) of Federal Constitution
  • 2.      Whether impugned provision excludes judicial power of courts to decide or arrive at decision
  • 3.      Whether denial of right to cross-examine denial of right to fair trial
  • 4.      Whether denial of right to cross-examine caused inequality to applicants
  • 5.      Whether ATIPSOM being specific Act prevails over Evidence Act 1950 and Criminal Procedure Code

HOLDINGS

  • 1.      s. 61A of the ATIPSOM does not contravene arts.121(1), 8(1) and 5(1) of the FC and should not be declared unconstitutional.
  • 2.      s. 61A of the ATIPSOM does not usurp the judicial power of the court. Article 121(1) of the FC had not been infringed.
  • 3.      No allowance of cross-examination is not a denial of fair trial.
  • 4.      No allowance of cross-examination is not a denial of fair trial.
  • 5.      s. 61A, would override the requirement as stated in s. 145 of the EA due to the maxim generalibus specialia derogant

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