BANDAR SERI BEGAWAN

THE High Court has ordered an overstaying Bangladeshi man to serve six months in jail and get three strokes of the cane after dismissing his appeal against his sentence and conviction.The appellant, Mohammod Iron Mia Md Chan Mia, was found guilty of remaining in Brunei for six months after the expiry of his visit pass on September 20, 2011. On April 23, the Magistrates’ Court handed down the same sentence which the defendant’s camp dubbed “excessive”.

In his appeal before the High Court, Mohammod Iron Mia’s defence counsel Hj Mohd Rozaiman Dato Hj Abd Rahman grounds of the appeal was that magistrate erred in law for not applying properly and adequately the test on “Mistake of Fact”, test of good faith and reasonable cause.

The defence counsel further submitted that the sentence imposed on his client was manifestly excessive and sought for his client to serve probation or community service order as there was inordinate delay in bringing the case.

The court document stated that Mohammod Iron Mia last extended his social visit pass on August 22, 2011 which was valid until September 22, 2011. This was to arrange ticket back after obtaining five extensions that allowed him to stay in Brunei for nine months and two weeks.

The defence’s case was that Mohammod Iron Mia had handed over his passport to a Bangladeshi man who told him that he was able to find the defendant a job and arrange for his employment visa. The appellant subsequently gave his passport and $2,000.

Some time in April 2012, the appellant surrendered himself to the immigration authorities when the passport that was returned to him was last stamped in September 2011. He was later issued a special pass and ordered by the immigration to report as instructed.

In January 2013, Mohammod Iron Mia was allegedly involved in a fight with another Bangladeshi man and it turned into a police case. He was ordered to report to the police every month.

The defence counsel said that it was his client’s belief that he did not have to report to the immigration authority when he was already reporting to the police.

In delivering the appeal verdict, Chief Justice Dato Seri Paduka Hj Kifrawi said that the appellant confirmed in his evidence that he relied solely on his friend to make arrangement with the immigration department to renew his pass and eventually get a job for him and an employment pass issued by Immigration department.

“From the cases already referred by the senior magistrate, the appellant should not blindly rely on another person for compliance of the Immigration act,” said the judge.

The chief justice said that the senior magistrate did rightly stated that the appellant should take the necessary steps personally to check with the Immigration Department concerning his immigration pass.

The court further agreed with the prosecution that although the appellant did not rely on the defendant of reasonable cause as a defence, the issue of reasonable cause is interrelated with the defence of mistake of fact.

“In this case, by relying on his friend to make sure that he is contravening the immigration act, he failed to show reasonable cause, as required by section 15 of the Immigration act.

“He could not also raise the defence of mistake of fact because he has to show good faith,” said the judge.

He went on to say that would mean he has to show on the balance of probabilities that he has taken due care and attention when he made a mistake of fact.

“Again, by simply trusting his friend to renew his pass and not checking personally his immigration status with the Immigration Department, he could not have made a reasonable mistake under the section 76 of the Penal Code,” said the judge.

The senior magistrate rightly mentioned in his judgment the appellant cannot rely on section 76 of the Penal Code.

“He failed to show on the balance of probabilities he had taken due care and attention with regard to his immigration status, by personally checking with Immigration Deparmtnet his immigration status, in particular, he has a right to remain in Brunei based on the passes issued to him,” said the chief justice.

Court said that there is no inordinate delay in the prosecution and hearing of this case and that the senior magistrate was right to impose the custodial sentence and mandatory whipping as this was a serious offence as it imposes serious threat to national security.

The Brunei Times