Borhan bin Tahir & Anor v Public Prosecutor

Appellant(s): Borhan Bin Tahir

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Datuk Ravinthran a/l Paramaguru
• YA Dato' Collin Lawrence Sequerah
• YA Dato' Ahmad Kamal Bin Md. Shahid

• The appellants were among six individuals charged under Section 26A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM Act 2007) for smuggling migrants.
• They were apprehended at a roadblock in Sabah, driving vehicles found to be transporting undocumented Indonesian nationals, allegedly for an unlawful exit from Malaysia to Indonesia.
• Five of the accused, including the two appellants, were convicted by the High Court, while one was acquitted; the appellants subsequently appealed against their conviction and sentence.

• Whether the High Court erred in its assessment and rejection of the appellants' defence, which relied on a government repatriation program and their alleged belief that the migrants possessed valid documents.
• Whether the Public Prosecutor's decision not to charge the migrants under the Immigration Act 1959/63 precluded the prosecution of the appellants for migrant smuggling.
• Whether the prosecution had proven beyond reasonable doubt that the appellants arranged, facilitated, or organised the unlawful exit of migrants with the requisite *mens rea* under Section 26A of the ATIPSOM Act 2007.

• The Court of Appeal dismissed both appeals, affirming the High Court's conviction and sentence, finding no merit in the appellants' grounds of appeal.
• The Court held that the repatriation program defence was a belated fabrication, inconsistent with the evidence, and that the program's terms (e.g., designated exit points, required documents) did not apply to the appellants' circumstances.
• The Court affirmed the Public Prosecutor's constitutional discretion, ruling that the non-prosecution of the migrants did not fetter the case against the appellants, especially given the validly recorded depositions and removal orders.
• The Court found that the elements of migrant smuggling, including the appellants' knowledge (*mens rea*) of the unlawful exit, were proven, inferred from circumstances such as an attempted bribe and the unreasonable fare for domestic travel.