HO BENG HOCK [ ]

HO BENG HOCK [ ]

The Court upheld the High Court's factual findings that the six Indonesians were unlawfully in Malaysia and were attempting illegal exit via an illicit road at night; the appellant was driving them toward the border and circumstances permitted inference of knowledge or reason to believe they were being smuggled; the wording variation in the charge ('involved' v 'engaged') did not mislead the accused and was curable; therefore prosecution proved the essential elements of s26J ATIPSOM beyond reasonable doubt and conviction and sentence were safe.

Citation
Q-05(SH)-61-02/2023 (Mahkamah Rayuan)
Parties
Appellant: Ho Beng Hock; Respondent: Public Prosecutor
Court
SH
Jurisdiction
Malaysia
Judgment Date
24 February 2025
Case Number
Q-05(SH)-61-02/2023 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal / Court of Appeal Hearing on Appeal Against Conviction and Sentence
Outcome
Appeal dismissed; conviction and sentence upheld; prosecution's appeal against sentence dismissed
Legal Topics
Smuggling of Migrants, Conveyance Offence, Knowledge Element, Charge Drafting/defect, Forfeiture
Source Language
Malay/English
Criminal Law Immigration Law Statutory Interpretation Smuggling of Migrants Conveyance Offence Knowledge Element Charge Drafting/defect Forfeiture

Case Brief

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Parties

Ho Beng Hock

Appellant

Public Prosecutor

Respondent

Procedural Posture

Criminal Appeal / Court of Appeal Hearing on Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the six Indonesians constituted "smuggled migrants" under ATIPSOM
  2. 2 Whether the appellant had knowledge or reason to believe the migrants were being smuggled
  3. 3 Whether the charge was defective for using the word "involved" instead of "engages"

Ratio Decidendi

The Court upheld the High Court's factual findings that the six Indonesians were unlawfully in Malaysia and were attempting illegal exit via an illicit road at night; the appellant was driving them toward the border and circumstances permitted inference of knowledge or reason to believe they were being smuggled; the wording variation in the charge ('involved' v 'engaged') did not mislead the accused and was curable; therefore prosecution proved the essential elements of s26J ATIPSOM beyond reasonable doubt and conviction and sentence were safe.

Court Disposition

Appeal dismissed; conviction and sentence upheld; prosecution's appeal against sentence dismissed

Orders

  • Conviction under section 26J ATIPSOM affirmed
  • Sentence of two years' imprisonment upheld