Wrongfully jailed and whipped, documented migrant seeks justice

 

Wrongfully charged, sentenced to jail and lashed with five strokes of the cane in a single session, Sabri Umar, an Indonesian migrant worker with valid documentation, will seek justice even though he is terrified of being re-arrested.

Bracing himself, Sabri told Malaysiakini he would leave the claim amounts to the lawyers but was considering suits against: “My former employer Fu Yee Corporation, Tawau Prison and the Tawau Police Department.”

The 31-year-old from South Sulawesi, who had been working in Fu Yee Corporation, a plywood factory in Kalabakan, Tawau, for the past seven years, was arrested for an alleged sexual offence but was instead charged and found guilty of illegal entry into Malaysia before his eventual acquittal in July this year.

Sabri (above) was arrested and investigated under Section 14(a) of the Sexual Offences Against Children Act but was eventually charged under Section 6(1) (c) of the Immigration Act.

The Tawau Sessions Court sentenced Sabri to 11 months in prison and five strokes of the cane after he pleaded guilty to the illegal entry charge.

Sabri claims to be innocent of both the alleged sexual offence and of illegal entry, of which he was later acquitted, but now lives in constant fear of re-arrest due to how quickly he was put behind bars the first time.

According to the 31-year-old, he was terminated from his place of employment on April 4 and was issued a temporary one-month pass to “make arrangements to leave”.

However, his arrest and imprisonment came swiftly, with the Sessions Court sentencing him to jail and whipping - just 14 days after he was sacked.

Sabri was administered five strokes of the cane in prison 12 weeks after he lost his job, despite his legal team having filed a notice of appeal at the High Court two days before he was whipped.

A month after his lashing and four months after he was terminated from employment, the High Court in Tawau acquitted Sabri on July 22.

‘I want justice’

Following his acquittal, Sabri said: “I want justice. I want to be compensated because I did nothing wrong. There was no sexual misconduct and my immigration status was valid at the time of the arrest.

“My dignity and that of my wife and child are gone,” he said, in trepidation, still anxious that he could be re-arrested and the uncertainty over his latest immigration status.

Despite his fears, Sabri has already filed a complaint against Fu Yee Corporation at the Tawau Labour Department for wrongful dismissal and was considering a suit against the parties who were connected to events that led to his wrongful imprisonment and whipping.

Meanwhile, he remains in Malaysia at an undisclosed location, awaiting a court date when his case under Section 20 of the Industrial Relations Act will be heard.

However, his efforts to reclaim his rights would also depend on the Immigration Department’s willingness to extend his special pass so he can remain in the country to attend the Labour Court proceedings.

His latest special pass will expire on Aug 25 and his lawyers say the Immigration Department has indicated they would not extend the duration beyond the stipulated two weeks.

“I have two children and a wife to think about. My employer can do anything because they have money.

“I am terrified of going to jail again,” Sabri told Malaysiakini, adding that his relationship with his employer started to sour after his active involvement in trade union activities in 2020.

Sabri was among 31 other members of the Sabah Timber Industry Employees Union (STIEU) in the Fu Yee plywood factory who sought their unpaid wages in 2020.

STIEU secretary Engrit Liaw said they were the few who demanded their unpaid wages while the about 260 workers represented by the in-house union remained mum.

Sabri also claimed that the sexual misconduct accusation was the result of manipulation of an incident where he fell off a chair and collided with a 14-year-old girl who, along with her family,  stayed at the same workers’ quarters as he did.

He said the girl’s mother had filed a report to withdraw the sexual misconduct complaint against him the next day.

Sessions Court judge Awang Kerisnada Awang Mahmud sentenced Sabri to 11 months imprisonment and five strokes of the cane, one stroke short of the maximum amount.

Sabah deputy public prosecutor Rustam Sanip could not be reached for comments on matters that should be taken into consideration when charging Sabri under Section 6(1) (c) of the Immigration Act.

Lack of legal representation

Sabri alleged that just before his hearing, Rustam advised him to confess to his charges or risk a longer prison sentence (see chronology).

“Only then did he tell me I was being charged for illegal entry. I argued that I had a valid pass, but he would not listen.

“The DPP took my passport from me, but only one. He left the expired passports with me,” Sabri claimed, adding that he had them with him in his pocket at all times.

The migrant worker, who was unrepresented by legal counsel at the Sessions Court, pleaded guilty and did not object to the charges against him, even though he was in possession of a valid passport and immigration pass.

Sabri also alleged that by the time he was produced in court, he had been threatened with a jail term of 20 years by the investigating officer, Inspector Azlinda Buang, and beaten by her and her colleagues.

“They wanted me to admit to the sexual misconduct offence but I did not,” he said.

On July 22, High Court judge Lim Hock Leng acquitted Sabri of his conviction and sentence but noted that he had already been caned.

Owing to the swift manner by which he was imprisoned and the corporal punishment carried out, Sabri agrees that there was a high possibility that there were other wrongfully imprisoned inmates in the Tawau prison.

“I am innocent. I did not do anything wrong, why did they imprison me?” he asked.

At every stage where he could have voiced his innocence as he had legal documents, such as when he was being wrongfully charged, sentenced, or caned, Sabri said he felt helpless.

On August 10, labour rights groups handed a memorandum to the Human Rights Commission of Malaysia (Suhakam), calling for a public inquiry into the human rights violations suffered by Sabri.

Sabri also questioned the heavier sentence he received compared to what was meted out to other migrants under the same charge.

“I was given the longest term and the highest number of strokes compared to the other four who were in the court with me, charged under the same offence,” he argued.

The notes of proceedings at the Sessions Court also revealed that Rustam had requested for the sentence to reflect an exemplary punishment, “taking into account the public interest factor”.

Rustam pointed out that although Sabri was charged with an immigration offence, he was being investigated under Section 14(a) of the Sexual Offences Against Children Act.

With no legal representation, Sabri said he did not know he could object to matters that were irrelevant to the charge brought against him but instead appealed to the judge for a lighter sentence, explaining that his youngest child was just a year old.

- Mkini