PENDAKWARAYA Tengku Najihah binti Tengku Zahari Azmi bin Ahmad LAIN-LAIN Peguambela: Shaharuddin bin Mohamed

PENDAKWARAYA Tengku Najihah binti Tengku Zahari Azmi bin Ahmad LAIN-LAIN Peguambela: Shaharuddin bin Mohamed

A Sessions Court may record a deposition under s61A ATIPSOM in Malaysia without first obtaining a Director General removal order; admissibility at trial depends on the trial court being satisfied at trial time that a removal order was made and the deponent cannot be procured, placing the evidential burden on the prosecution at trial rather than requiring postponement of deposition recording.

Citation
DJ-62ATIP-20-12/2021 (Mahkamah Sesyen)
Parties
Prosecution: Pendakwa Raya; Accused: Azmi bin Ahmad
Court
Sessions Court
Jurisdiction
Malaysia
Judgment Date
27 January 2022
Case Number
DJ-62ATIP-20-12/2021 (Mahkamah Sesyen)
Procedural Posture
Criminal — ATIPSOM 2007 (anti‑trafficking and Smuggling of Migrants) / Sessions Court Hearing on Recording of Deposition; Prosecution Applied for Adjournment; Judge Refused and Recorded Deposition; Matter Referred for High Court Criminal Review
Outcome
Application by Deputy Public Prosecutor for adjournment refused; deposition to be recorded as scheduled; judge sought High Court criminal review of the refusal to adjourn
Legal Topics
Deposition Admissibility, Section 61 a ATIPSOM 2007, Order of Removal by Director General, Hearsay Exception, Recording of Depositions
Source Language
Malay/English
Criminal Law Immigration Law Evidence Law Statutory Interpretation Deposition Admissibility Section 61 a ATIPSOM 2007 Order of Removal by Director General Hearsay Exception +1 more

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Parties

Pendakwa Raya

Prosecution

Azmi bin Ahmad

Accused

Procedural Posture

Criminal — ATIPSOM 2007 (anti‑trafficking and Smuggling of Migrants) / Sessions Court Hearing on Recording of Deposition; Prosecution Applied for Adjournment; Judge Refused and Recorded Deposition; Matter Referred for High Court Criminal Review

Legal Issues

  1. 1 Whether a deposition under s61A ATIPSOM 2007 may be recorded in Malaysia before a Director General removal order is issued
  2. 2 Whether such a deposition is admissible at trial if recorded before the removal order
  3. 3 Which court bears the burden to prove that a removal order was made when adducing a s61A deposition

Ratio Decidendi

A Sessions Court may record a deposition under s61A ATIPSOM in Malaysia without first obtaining a Director General removal order; admissibility at trial depends on the trial court being satisfied at trial time that a removal order was made and the deponent cannot be procured, placing the evidential burden on the prosecution at trial rather than requiring postponement of deposition recording.

Court Disposition

Application by Deputy Public Prosecutor for adjournment refused; deposition to be recorded as scheduled; judge sought High Court criminal review of the refusal to adjourn

Orders

  • Adjournment refused
  • Deposition under s61A ATIPSOM 2007 to be recorded on 27 January 2022 before the Sessions Court Judge or Magistrate as scheduled