When justice must shield those trafficked into crime

Being a victim of human trafficking must be an absolute defence for crimes committed by victims of human trafficking.

The principle of non-liability and non-punishment for crimes committed by human trafficking victims has been accepted in many jurisdictions, including Asean and even Malaysia.

…Victims of trafficking are subjected to exploitation in various ways. Sometimes, as a result of their victimization, they engage in illegal conduct. Common examples include involvement in the sex trade, involvement in drug production or trafficking, petty crime, possession or the use of fraudulent documents or entering another country in a manner that does not comply with its immigration laws, and even phone/online scam. In many cases, victims are forced or otherwise compelled by traffickers to commit these crimes or other illegal conduct… – ICAT, The Inter-Agency Coordination Group against Trafficking in Persons

In 2002, the United Nations High Commissioner for Human Rights issued recommended principles and guidelines on human rights and human trafficking that provides that: “Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked person.”

The Asean Convention Against Trafficking in Persons, Especially Women and Children, which was adopted in Kuala Lumpur, Malaysia on 21 November 2015 clearly states in Article 14(7):

Each Party shall, subject to its domestic laws, rules, regulations and policies, and in appropriate cases, consider not holding victims of trafficking in persons criminally or administratively liable, for unlawful acts committed by them, if such acts are directly related to the acts of trafficking.

Likewise, the Philippines’ Anti‑Trafficking in Persons Act of 2003 (Republic Act No. 9208), Section 17 – Legal Protection to Trafficked Persons, states:

Trafficked persons shall be recognized as victims of the act or acts of trafficking and as such, shall not be penalized for unlawful acts committed as a direct result of, or as an incident or in relation to, being trafficked based on the acts of trafficking enumerated in this Act or in obedience to the order made by the trafficker in relation thereto. In this regard, the consent of a trafficked person to the intended exploitation set forth in this Act shall be irrelevant.

Malaysia provides similar protection, though unreasonably limited and lacking, under Section 25 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007.

Section 25 – Immunity from criminal prosecution

A trafficked person shall not be liable to criminal prosecution in respect of:

(a) illegal entry into the receiving country or transit country;

(b) unlawful residence in the receiving country or transit country

(c) procurement or possession of any fraudulent travel or identity documents obtained, or with which he was supplied, for the purpose of entering the receiving country or transit country,

where such acts are the direct consequence of an act of trafficking in persons that is alleged to have been committed or was committed.

Sadly, Malaysia focuses only on immigration-related crimes and has yet to provide immunity to trafficked victims who are compelled to commit other crimes such as sex crimes, online crimes like theft, scamming or violations of data protection laws, drug trafficking and other criminal acts. This gap will hopefully be remedied soon by Parliament or the courts.

The principle of non-liability and non-punishment for crimes committed by victims of human trafficking should rightly include all crimes committed by a victim, while being trafficked or when compelled by the trafficker or by the situation the victim is in. It should cover sex offences like prostitution, drug trafficking offences (including production and delivery), online or phone scam offences, illegal employment offences, theft and possibly even killing where compulsion can be shown.

This absolute defence must be available for all victims of human trafficking, who would not have committed such crimes had they not been victims of human traffickers or been compelled by traffickers.

The duty of the state should be confined to rescuing and protecting victims, and prosecuting human traffickers – and not prosecuting trafficked victims.

Application in Malaysia

It appears that Malaysian courts have yet to consider how and when this total defence (or non-liability and non-punishment for crimes committed by victims of human trafficking) should apply.

Of course, law enforcement and prosecution can on their own decide not to prosecute such victims. But more importantly, we should look at how and when this defence can be raised in court.

For this, we will consider decisions in the courts in UK and other jurisdictions.

Section 45 of UK’s Modern Slavery Act 2015, sets out a defence for victims of slavery or trafficking who commit offences.

(1) A person is not guilty of an offence if—

(a) the person is aged 18 or over when the person does the act which constitutes the offence,

(b)the person does that act because the person is compelled to do it,

(c) the compulsion is attributable to slavery or to relevant exploitation, and

(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act

(2) A person may be compelled to do something by another person or by the person’s circumstances…

Thus, the question then is who has the burden of proof for an accused who wants to rely on the Section 45 defence. There were several cases that dealt with the issue, and at present the binding authority seems to be the criminal appeal case of MK v R and Persida Gega (aka Anna Maione) v R [2018], where Judge Lucas’s decision can be summarised as follows[ii]:-

The effect of the rulings may be summarized in this way:

(i) The defendant bears an evidential burden to raise the issue whether she was a victim of trafficking or slavery;

(ii) Having successfully done so, it is for the prosecution to prove, beyond reasonable doubt, that she was not;

(iii) If the prosecution succeeds in that, the section 45 defence will not avail the defendant;

(iv) However, if the prosecution fails in this respect, the legal or persuasive burden of proof in respect of the other elements of the defence falls on the defendant. Therefore, if the defendant is over 18 years old, she must prove on the balance of probabilities:

(a) That she was compelled to commit the offence;

(b) That the compulsion was as a direct consequence of her being or having been a victim of slavery or relevant exploitation; and

(c) That a reasonable person in the same situation as her and having her relevant characteristics would have no realistic alternative to doing the act which constitutes the offence.

In law, the evidential burden (or burden of adducing evidence) refers to the obligation of the victim to only present sufficient evidence to raise a particular issue for consideration by the court. It’s the burden of bringing an issue into play, not necessarily proving it to the required standard on a balance of probabilities or beyond reasonable doubt.

Essentially, it’s the burden of just demonstrating there’s a reasonable possibility that a fact exists or does not exist. The evidential burden is distinct from the legal burden (or burden of proof), which is the obligation to prove a fact to the required standard

The evidential burden is met when a party presents enough evidence to make it plausible that a particular fact is true. This doesn’t mean the party has to prove the fact, just that it’s worthy of consideration by the judge.

In summary, the burden is first with the accused (or victim) but it is merely an evidential burden to prove he or she is a victim of human trafficking, and thereafter the burden shifts to the prosecution to prove beyond reasonable doubt that he or she is not a victim of human trafficking. If the prosecution succeeds, then it is the end of the defence of victim of human trafficking.

However, based on the UK law (which may not be the same in other jurisdictions, including Malaysia), if the prosecution fails to prove that the accused is not a victim of human trafficking, the burden again shifts to the accused (now proven a victim of human trafficking) to prove the other elements needed to rely on that defence:

• That she was compelled to commit the offence
• That the compulsion was as a direct consequence of her being or having been a victim of slavery or relevant exploitation and
• That a reasonable person in the same situation as her and having her relevant characteristics would have no realistic alternative to doing the act which constitutes the offence – and here the burden of proof on the accused is a balance of probabilities

In comparison, in Malaysia, based on the wording used in Section 25 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, all that needs to be proven is just that one is a victim of human trafficking and that “such acts are the direct consequence of an act of trafficking in persons”.

To date, there seems to be no reported cases on Section 25. It could be that the state has yet to prosecute a victim of human trafficking, or this defence has yet to be raised by accused victims of human trafficking or their lawyers.

Reasonably, Section 25 of the act needs to be amended to cover all crimes committed by victims of human trafficking. Not to do so would mean that Malaysia is failing to protect such victims and may be guilty of further violations of the rights of these victims of human trafficking.

When should the defence be raised?

The principle is non-liability and non-punishment for crimes committed by victims of human trafficking, and as such law enforcement or the prosecution should not even investigate or charge such victims in criminal courts. The prosecutors should on their own first determine whether they are victims of human trafficking.

But, if these victims end up being charged in court, then reasonably, it should be best raised at the very beginning before the prosecution begins its case to prove a prima facie case or beyond reasonable doubt that the accused did commit the alleged crime.

However, in the interest of justice, there should also be no bar to raising this defence later, even during the defence case or even during the appeal stage. Lawyers, being human, may fail to raise this defence at the trial at the court of first instance. So it is best just to allow this defence to be raised even at the appellate stage as we do not want a miscarriage of justice.

In cases, where the accused is of “unsound mind and incapable of making his defence’, then the criminal trial will not commence or proceed until this fundamental issue is resolved.

Likewise, when a person is a victim of human trafficking, he or she should have never even been charged, let alone allow the trial to proceed based on the principle of non-liability and non-punishment for crimes committed by victims of human trafficking – a principle that Malaysia has clearly adopted. Should not the issue of whether he or she is a victim of human trafficking be resolved first?

The case of Mary Jane Veloso

In this case, according to her lawyer Edre U Olalia, the fact that she was a victim of human trafficking seems to have been a major consideration when Indonesia decided to stop her execution at the 11th hour and decided to repatriate her back to Philippines.

Mary Jane Veloso was first recruited in Philippines to work as a domestic worker in Malaysia.

But in Malaysia, the recruiter informed her that her job was no longer available. But she was reassured that she would look for a job for her. After a few days, she was told to pack her things as she would be sent to Indonesia to work. She was given an empty suitcase to put her clothes in and was given money.

Upon arrival at Yogyakarta, airport personnel detected suspicious items in her suitcase through the X-ray machine. They found US$500,000 worth of heroin weighing 2.6kg, neatly packed in the inner part of the suitcase given to her.

She was convicted of drug trafficking and sentenced to death.

Understanding human trafficking

A narrow understanding by many is that the victims are ‘forcibly abducted or transported with no opportunity to escape’ and brought in from another country to be forced to provide sex and sexual favours to customers. But that is not complete and too narrow.

In Section 2 of the Anti-Trafficking In Persons And Anti-Smuggling Of Migrants Act, “trafficking in persons” means all actions of recruiting, conveying, transferring, acquiring, maintaining, harbouring, providing or receiving a person, for the purpose of exploitation, by the following means:

(a) threat or use of force or other forms of coercion

(b) abduction

(c) fraud

(d) deception

(e) abuse of power

(f) abuse of the position of vulnerability of a person to an act of trafficking in persons or

(g) the giving or receiving of payments or benefits to obtain the consent of a person having control over the trafficked person

“Exploitation” includes all forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, any illegal activity or the removal of human organs;

In short, the definitions in the act must be considered in trying to use the principle of non-liability and non-punishment for crimes committed by trafficking victims. Besides being a defence in criminal trials, the possibility of using this in mitigation of sentences also ought to be considered.

Malaysia needs to expand the list of crimes for which this defence can be used in law. Surely, Malaysia does not want to be blamed for further exploiting victims of human trafficking by ignoring the lived realities of human trafficking.

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