Chief Justice Tengku Maimun Tuan Mat said the admissibility of affidavit evidence does not violate the Federal Constitution or prevent those charged under Section 12 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 from getting a fair trial.
Section 61A of the Act provides that any deposition of a trafficked person or smuggled migrant who has been deported shall be admitted as prima facie evidence by the prosecution.
“The right of the accused to a fair trial must also take into account the rights of the victim and society at large,” the top judge said when dismissing a couple’s reference that the provision breached their right to a fair trial and equal protection under the law.
Tengku Maimun, who sat with Chief Judge of Malaya Zabidin Diah and Justices Harmindar Singh Dhaliwal, Abu Bakar Jais and Abdul Karim Jalil, also said that accepting such evidence did not violate the judicial power of the court.
She said the judiciary retains the obligation of evaluating all the evidence at the close of the prosecution’s case before deciding whether an accused person should be called to enter his defence.
In 2019, businessman K Ketheeswaran, who holds the honorific title of Tan Sri, and his wife, Vivienne Ketheeswaran, were jointly charged in the Klang sessions court with three counts of trafficking in Indonesian women between 2012 and 2019.
Before the trial began, their lawyers mounted a constitutional challenge, leading the sessions court judge to refer the matter to the High Court which, in turn, sent the matter to the Federal Court for deliberation.
The apex court was asked to rule whether Section 12 of the Act was unconstitutional and whether it violated the doctrine of separation of powers enshrined in Article 121(1) of the constitution.
It was also asked whether the section violates the fundamental right of an accused person to a fair trial and whether it breaches the right to equality under the Article 8(1) of the constitution.
Tengku Maimun said the right to cross-examine is an important aspect of any trial, more so in a criminal case.
“That said, the ability to cross-examine a witness is not always present in every criminal trial, such as when it comes to validly admitted hearsay evidence. It can also be restricted when it comes to certain witnesses,” she said.
She said section 61A is objectively fair given the unique circumstances presented by human trafficking cases which involve foreign victims who are brought into the country via illicit means.
Tengku Maimun said the use of depositions allows trafficking victims to return home quickly.
“A balance is struck by enabling the taking of their evidence without letting such victims languish pending trial,” she said.
She said that while the use of depositions may give the prosecution an evidential advantage, the accused is still allowed to present rebuttal evidence and cross-examine all other prosecution witnesses to establish his case.
Today’s decision allows the matter to proceed to trial in the sessions court.
Lawyers K Kumaraendran, M Athimulan, Teh See Khoon and Shaarvin Raaj represented the couple, while deputy public prosecutor Yusaini Amer Abdul Karim, Nahra Dollah, and Dhiya Syazwani Azyan Akhir appeared for the prosecution.