PENDAKWARAYA NICOLAS KEE MA

PENDAKWARAYA NICOLAS KEE MA

Prosecution failed to prove a prima facie case that the accused obtained a benefit from migrant smuggling under s.26D because there was no credible evidence linking the seized RM2,100 or any other funds to a benefit derived by the accused from the smuggling; the RM5,000 payment was shown to have been handed to a third party and there was insufficient evidence the accused received or retained any profit. Although the accused was present and had knowledge, absence of proof of actual benefit defeated the prosecution's case, warranting acquittal under s.180 CPC.

Citation
CB-45SOM-4-12/2019 (Mahkamah Tinggi)
Parties
Prosecution: Pendakwa Raya; Defendant: Nicolas Kee Ma
Court
High Court
Jurisdiction
Malaysia
Judgment Date
9 December 2021
Case Number
CB-45SOM-4-12/2019 (Mahkamah Tinggi)
Procedural Posture
Criminal Alleged Migrant Smuggling / Profit From Smuggling / After Close of Prosecution Case; Court Considered Prima Facie and Acquitted (no Requirement to Call Accused to Enter Defence)
Outcome
Accused acquitted and discharged (no requirement to enter defence)
Legal Topics
Migrant Smuggling, Profit/benefit From Criminal Conduct, Prima Facie Assessment, Sufficiency of Charge, Seizure of Assets
Source Language
Malay/English
Criminal Law Anti‑trafficking and Migrant Smuggling Law Criminal Procedure and Evidence Immigration Law Migrant Smuggling Profit/benefit From Criminal Conduct Prima Facie Assessment Sufficiency of Charge +1 more

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Parties

Pendakwa Raya

Prosecution

Nicolas Kee Ma

Defendant

Procedural Posture

Criminal Alleged Migrant Smuggling / Profit From Smuggling / After Close of Prosecution Case; Court Considered Prima Facie and Acquitted (no Requirement to Call Accused to Enter Defence)

Legal Issues

  1. 1 Whether the prosecution proved that the accused obtained a benefit from migrant smuggling contrary to s.26D of the Anti‑Trafficking and Anti‑Smuggling of Migrants Act 2007
  2. 2 Whether the charge was defective or sufficiently particular to enable defence
  3. 3 Whether a prima facie case was made out under s.180 CPC to call accused to enter defence

Ratio Decidendi

Prosecution failed to prove a prima facie case that the accused obtained a benefit from migrant smuggling under s.26D because there was no credible evidence linking the seized RM2,100 or any other funds to a benefit derived by the accused from the smuggling; the RM5,000 payment was shown to have been handed to a third party and there was insufficient evidence the accused received or retained any profit. Although the accused was present and had knowledge, absence of proof of actual benefit defeated the prosecution's case, warranting acquittal under s.180 CPC.

Court Disposition

Accused acquitted and discharged (no requirement to enter defence)

Orders

  • Accused Nicolas Kee Ma is acquitted and discharged under s.180 Criminal Procedure Code; no further orders recorded