Ang Jwee Herng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 16 April 2001
• Neutral Citation: [2001] SGHC 73
• Docket Number: Magistrate's Appeal No 336 of 2000
• Date: 16 April 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Davinder Singh SC and Wendell Wong (Drew & Napier)
• Citation: [2001] SGHC 73
• Defendant Counsel: Jennifer Marie and Toh Yung Cheong (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Subject Matter: Whether appellant had knowledge of presence of immigration offenders,Whether failure of prosecution to call material witness in present case warranted drawing of adverse inference,Evidence,Circumstances in which adverse inference will be drawn for failure to call material witness,Identification parade,Whether necessary to have conducted identification parade,Witnesses,Criminal Procedure and Sentencing,s 116 illustration (g) Evidence Act (Cap 97, 1997 Ed),Effect of failure to conduct identification parade,Whether fact of harbouring proven beyond reasonable doubt,Whether failure to conduct identification parade diminished probative value of identification evidence given by witnesses,Immigration,Benchmark sentences,harbouring illegal immigrants,s 57(1)(d) Immigration Act (Cap 133, 1997 Ed),Harbouring,Quality and assessment of identification evidence,Whether sentence of nine months' imprisonment on each charge manifestly excessive

: The appellant was charged with three counts of harbouring an illegal immigrant during the period between October 1999 and 16 February 2000 pursuant to s 57(1)(d) of the Immigration Act (Cap 133, 1997 Ed). At the end of the trial, district judge Valerie Thean convicted him of all three charges and sentenced him to nine months` imprisonment on each charge. Two of the sentences were ordered to run consecutively, making the total length of imprisonment 18 months. He appealed against both his conviction and sentence. At the end of the hearing before me, I dismissed the appeal and now give my reasons.

Background facts

On 16 February 2000, just slightly after midnight, a police raid was conducted at 725A Havelock Road (`the Premises`). A total of 21 Bangladeshi nationals were found on the Premises, with 18 of them subsequently ascertained to be immigration offenders.

The appellant and his wife were found to be the registered proprietors of the Premises, which was part of a shophouse that also comprised the units 725 and 725B Havelock Road, which were similarly owned by the appellant and his wife.

At the material time, 725 Havelock Road, which was located on the ground floor, was rented out to a teochew porridge business known as Henry Teochew Porridge, while 725B was unoccupied.

The prosecution`s case

The mainstay of the prosecution`s case rested on the evidence of the three Bangladeshi nationals who were the respective subjects of the three charges proffered against the appellant. All three were also part of the 18 immigration offenders arrested on the Premises during the police raid.

ALI (PW6)

Ali testified that he stayed at the Premises from October 1999 right up to the day of the police raid on 16 February 2000. He said that one Majibur, a fellow Bangladeshi national, was in charge of the Premises and had told him that he had to pay a monthly rent of $130 which Majibur would then pay to the owner of the Premises. Ali said that he had seen the owner of the house, whom he identified in court to be the appellant, on three separate occasions. The first occasion was on 5 October 1999 when the appellant and Majibur came to the Premises together at around 9pm. Ali was asked by Majibur to pay the rent as the owner of the house was there. Ali then gave $130 to Majibur who in turn handed the money over to the appellant. He did not however speak to the appellant for Majibur told him that that was unnecessary and that Ali should speak to Majibur if there was anything he needed.

The second occasion was a month later on 5 November 1999, when the appellant and Majibur again came to the Premises together at around 9pm. Ali together with another 15 others who were then watching television on the Premises were asked to pay up the rent, which they did to Majibur who again handed the moneys to the appellant. On this and the first occasion, the appellant remained at the brightly-lit Premises for around ten to 15 minutes and Ali had a good look at him. He was certain that the person in the dock was the same man who had come to the Premises with Majibur.

The third and final occasion was on 5 December 1999 when Ali met Majibur and the appellant at a park situated close to the Premises at around 10pm in the evening. Majibur again asked him to pay up the rent which he did before leaving. He did not know however what Majibur did with the money on this occasion.

ALAM (PW7)

Alam`s evidence echoed that of Ali`s in most material respects. In particular, he testified that he stayed at the Premises for about three and a half months before his arrest on 16 February 2000. One Majibur, he said, was in charge of the Premises, and Alam paid him a monthly rental of $130. He was quick to point out however that Majibur was not the owner of the Premises.

Alam testified that he saw the owner of the Premises, whom he identified in court to be the appellant, on one occasion. It was around 8 or 9pm in the evening and the appellant had come up to the Premises with Majibur. All the occupants present, which numbered some eight to ten Bangladeshi nationals, were then asked to pay up their rent. Subsequently, Majibur went into one of the rooms and took out some moneys from a drawer which he handed over to the appellant, who left after accepting the cash. When queried about this, Majibur replied that the appellant was the owner and landlord of the Premises who had come to collect the rent.

Like Ali, Alam asserted that the Premises were brightly lit and that he was able to observe the appellant for a good few minutes. He was certain that the man in the dock was the same person who had come to the Premises with Majibur. The appellant did not however ask him anything at any time nor did he speak to anyone else on the Premises.

During cross-examination, Alam explained that he normally paid his rent to Majibur on the fifth or sixth of each month, which rent Majibur said he would then pay over to the owner of the Premises.

MILON (PW8)

Milon gave evidence that he stayed at the Premises after his arrival in Singapore on 25 December 1999. Majibur had brought him there. Majibur also told him that the monthly rent was $120, which Milon subsequently paid to him.

Milon testified that he had never seen the owner of the Premises. He knew however that Majibur was not the owner but that the latter was only in charge of the Premises and collecting the rent. He had further been told by Majibur that the Premises belonged to a Chinese man to whom Majibur had to pay over the rental moneys.

Under cross-examination, Milon averred that Majibur would normally collect the rents from the Bangladeshi occupants some two or three times before the tenth of each month.

SIRJIT DASLAL MOHAN DAS (PW14)

The prosecution also called one Sirjit to testify. He was not however one of the 18 immigration offenders found on the Premises during the raid on 16 February 2000.

Sirjit, also a Bangladeshi national, testified that he never stayed at the Premises. During the relevant time, he resided at quarters provided by his company in Clementi. This was corroborated by Lim Kok Hua (PW10), a director of the company which employed Sirjit.

Sirjit gave evidence that he went to the Premises once to visit his uncle but the latter was not in. As he was coming down the stairs, he met two other Bangladeshis. He asked them where the coffeeshop was to which they replied that there was none. They then asked him to accompany them instead and told him that they would bring him to a coffeeshop. He followed them into a car which was parked on a nearby road, and the driver of which was a Chinese man. Sirjit entered the car as the two Bangladeshis told him that they would take him to a coffeeshop. The Chinese man then drove the men to an office building. At the office, he saw several other Bangladeshis. The Chinese man asked for Sirjit`s work permit and assured him that he had nothing to worry about as the man was a Singaporean. In consequence, Sirjit handed over a laminated photocopy of his work permit to the Chinese man, who further instructed him to sign some documents which he did. Sirjit alleged however that he did not know what he was signing and that he merely did as he was told because the Chinese man said that he was Singaporean and a `boss`.

In cross-examination, Sirjit testified that the above events occurred sometime in February 2000. He explained that he agreed to get into the car with three complete strangers because, aside from the driver, the rest of the party were all Bangladeshis, and thus his own people whom he trusted. He also averred that he did not leave or attempt to leave as the driver told him that he would take him to a coffeeshop later. His photocopied work permit was returned to him and he was dropped off at an MRT station after the men left the office building that morning.

KAREN TAN (PW2)

Another witness called by the prosecution was one Karen Tan (`Karen`), a secretary in the law firm of Lee Bon Leong & Partners (`the firm`). Karen gave evidence that the appellant was a client of the firm. On 3 February 2000, the appellant came to the firm to see Karen`s boss, Mr Lee Bon Leong. After the meeting, Mr Lee instructed Karen to prepare a tenancy agreement in respect of the Premises based on the instructions which the appellant had given him. In particular, the tenancy agreement was to state that it was made between the appellant as landlord, and six Bangladeshis whose names were written on a piece of paper which Mr Lee had handed to Karen as the tenants. According to the appellant`s instruction, the agreement should further state that the tenancy was to commence on 1 February 2000.

On 8 February 2000, the appellant came to the firm again, this time together with five Bangladeshi nationals. He instructed Karen to delete one of the names in her prepared draft of the tenancy agreement, and to replace three of them, making the total number of tenants now five instead of six as was the case under his previous instruction. Karen then obtained the photocopied work permits of the three Bangladeshi nationals whose names were used as replacements in the tenancy agreement and made copies of them before returning them to the men. Thereafter the appellant and the five Bangladeshi nationals signed the tenancy agreement. The appellant`s wife, the co-owner of the Premises came down around two days later to sign the document as well. The tenancy agreement (`P5`) was eventually dated 18 February 2000 as stamp duty was only cleared on that day.

At the end of the prosecution`s case, the court found that a prima facie case had been made out and, after administering the standard allocution, the appellant was called upon to enter on his defence. The appellant elected to give evidence.

The defence

The appellant`s defence, in essence, was a complete denial of any knowledge of Ali, Alam and Milon being on the Premises.

The appellant was a 51-year-old businessman dealing in the wholesale seafood...