Awtar Singh s/o Margar Singh v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 08 July 2000
• Neutral Citation: [2000] SGHC 133
• Docket Number: Magistrate's Appeal No 323 of 1999
• Date: 08 July 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: R Palakrishnan and R Thrumurgan (Palakrishnan & Partners)
• Citation: [2000] SGHC 133
• Defendant Counsel: Christopher Tang (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Immigration,Weight of evidence,Whether mens rea proved beyond reasonable doubt,Whether necessary to conduct identification parade,Whether failure to conduct parade affected probative value of identification evidence,Abetment by intentionally aiding in harbouring of immigration offenders,Harbouring,Subletting to immigration offenders,Immigration offenders,Whether appellant knew or ought to have known sub-tenants' status as illegal immigrants,Identification parade,Evidence

: Introduction

This was an appeal against the decision of District Judge Valerie Thean who convicted the appellant of eight charges of abetment by intentionally aiding one `Anwar` in the harbouring of eight immigration offenders, by allowing him to sublet the premises at 154A Rangoon Road to the immigration offenders, an offence punishable under s 57(1)(ii) of the Immigration Act (Cap 133) read with s 109 of the Penal Code (Cap 224). The appellant was sentenced to eight months` imprisonment on each charge and the sentences on three of the charges were ordered to run consecutively. Hence, he faced a total of 24 months` imprisonment. He appealed against both his conviction and sentence. Having considered the submissions of the parties, I dismissed the appeal. I now set out my reasons.

The background

At all material times, the appellant was the joint owner of the premises at 154A Rangoon Road together with his sister-in-law. On 2 July 1998 at about 10am, the premises were raided by a party of police officers. The arresting officer was one Chan Chung Hwa (PW1) who gave evidence that there were 12 Bangladeshi nationals at the premises at the time of the raid and none of them could produce any valid travel document. They were subsequently placed under arrest. Amongst those arrested were the eight immigration offenders named in the charges against the appellant. They were Md Yasin (PW2), Habijul Islam (PW3), Md Anwar Hossain (PW4), Nittagopal (PW5), Md Hamid (PW6), Md Rahman (PW7), Ebadat Khan (PW8) and KH Azadur Rahman (PW9) (collectively referred to as the `immigration offenders`). Shortly after their arrest, they were charged and convicted of the offence of illegal entry into Singapore under s 6 of the Immigration Act in July 1998. They were each sentenced to one month`s imprisonment and four strokes of the cane.

The evidence of the prosecution

The immigration offenders had stayed at the premises for varying periods of time from March 1998 to June 1998 up to the date of their arrest on 2 July 1998. It was their evidence that Anwar had allowed them to reside at the premises for a monthly rental ranging from $120 to $130. According to PW7, PW8 and PW9, Anwar agreed to let them clean the house to offset their monthly rent after they told him that they did not have enough money with them. All of them paid their rent to Anwar directly. They also gave evidence that Anwar made the decision to rent the premises to them without consulting anyone else. Throughout their stay at the premises, no one asked them about their immigration status at all.

Apart from PW9, the rest of the immigration offenders testified that they had seen the appellant at the premises on a number of occasions and that the appellant had never spoken to any of them. PW2 said that he had seen the appellant on two occasions. On the first occasion, the appellant was at the premises for about 15 minutes to examine a broken glass window. At that time, Anwar was at work and there were eight to ten persons at the premises. When Anwar returned home from work that day, he asked PW2 if anyone came to see the window. When PW2 answered in the affirmative, Anwar told him that that person was the owner of the premises. On the second occasion, the appellant collected rent from Anwar and there were about 20 to 25 people at the premises then. The appellant did not speak to him on both occasions.

PW3`s evidence was that the appellant came with a carpenter to fix a damaged door. They stayed for about an hour or two. There were about 20 persons at the premises. On another occasion, the appellant came and spoke to Anwar for approximately 15 minutes. The appellant did not speak to PW3.

PW4 also saw the appellant twice. He said that a fire once broke out at a storeroom within the premises. According to him, the appellant came to the premises that day and spoke to Anwar about how the fire occurred. He was there at about 11pm and he stayed for about an hour. There were 12 to 15 persons at the premises at that time. He also saw the appellant with Anwar when he was walking on Serangoon Road. Anwar was making a telephone call and the appellant was standing next to him. On both occasions, he was not introduced to the appellant.

Similarly, PW5 recounted two incidents where he saw the appellant. The first time was when the storeroom next to the kitchen caught fire. It was at about 9pm. He ran downstairs together with about 40 to 50 others who were at the house at that time because they were all afraid of further police investigations. When he was downstairs, he saw the appellant talking to Anwar. He did not speak to the appellant. The second occasion was at about 10am to 10.30am when the appellant came to check on the repairs required to be made as a result of the fire. At that time, PW5 was cooking in the kitchen. He was not introduced to the appellant and the appellant also did not speak to him.

PW6 said he saw the appellant once at the premises. It was about 9.30am to 10am. There were about eight to ten persons in the house. The appellant asked him to open the door. He subsequently saw the appellant cleaning up some broken window glass. The appellant did not speak to him or ask him any questions. He was informed by the other sub-tenants that the appellant was the owner of the premises.

PW7 said he saw the appellant on several occasions and he was told by Anwar that the appellant was the owner of the premises. He testified that the appellant would inspect the premises in the evenings and on one occasion, he was seen collecting a PUB bill and some money from Anwar. The appellant did not check on him or ask him any questions. The first time he saw the appellant was when he came to the premises at about 7pm or 8pm to collect rent from Anwar. He saw Anwar hand over an envelope to the appellant. The appellant was there for about 15 minutes to half an hour. The next time he saw the appellant was when the appellant went to the premises to inspect a faulty toilet upon Anwar`s request. The appellant remained there for about 45 minutes. The third time was on the 7th or 8th of the following month when the appellant came to collect rent from Anwar. He stayed for about half an hour. On these occasions, there were about 25 to 40 persons at the premises when the appellant was there. He did not check the premises room by room and he also did not speak to anyone apart from Anwar.

PW8 also saw the appellant at the premises on several occasions in the evening. The appellant would be seen inspecting the premises with Anwar. Once, he saw Anwar hand him a PUB bill and an envelope containing money. He was later told by Anwar that the envelope contained rental collection from the sub-tenants and that the appellant was the owner of the premises. According to him, Anwar never introduced the appellant to anyone and the appellant also did not speak to him. The appellant, accompanied by Anwar, would check that things were orderly in the premises and would stay for about 15 to 20 minutes. He said that the appellant would visit the premises two or three times a week in the evening. About 30 to 35 people would be there on these occasions. The appellant would go to the toilet or the rooms but he would not talk to anyone.

PW9`s evidence was that he had never seen the appellant before. He said that on the average, there were about 30 to 35 persons at the premises.

All of them remained at the premises until the day of their arrest and they disagreed with the defence counsel that Anwar had asked them to vacate the premises soon after the fire.

Sergeant Lee Cher Kwang (PW10) was the investigating officer who interviewed the appellant and recorded two statements from him on 8 August 1998 and 2 February 1999. The appellant told him that he had leased the premises to one Md Shohel. When Md Shohel returned for Bangladesh for his wedding in March 1998, he put his brother Anwar in charge temporarily. The appellant gave him Anwar`s pager number. PW10 attempted paging Anwar but he did not get any response. He checked the number with Singtel and he was told that it belonged to Md Shohel. He then checked with the Ministry of Manpower and discovered that Md Shohel was a work permit holder whose permit had terminated in May 1998. He did not determine whether Md Shohel was still in Singapore because the appellant told him that it was Anwar who collected the rent. Furthermore, Md Shohel was not implicated by any of the witnesses.

The defence

The appellant was in the business of marketing and supplying curry powder and spices to wholesalers and retailers. The appellant admitted that he was the owner of the premises which were purchased in mid-1996 in both his and his sister-in-law`s names. The premises were originally rented to a construction firm to house their workers. Upon the termination of that tenancy, the appellant put up a signboard to advertise for new tenants. Md Shohel, a Bangladeshi national, telephoned the appellant indicating his interest in renting the premises. They met at a coffee shop along Serangoon Road together with the appellant`s wife, sister-in-law and mother-in-law. Md Shohel was accompanied by Anwar and another Bangladeshi. The appellant was introduced to Anwar as Md Shohel`s brother. It was agreed during this meeting that the tenancy was for one year commencing on 1 February 1997 at a monthly rental of $3,550. Md Shohel told him that his friends, who had entered Singapore legally, would be staying at the premises. As the apartment had six rooms, the appellant told him that he could allow up to 24 persons to stay there but he did not decide the rent for each individual sub-tenant. A formal tenancy agreement dated 28 January 1997 was entered into between the parties and cl 2(l) stated that Md Shohel `shall not allow overstayers or illegal workers into the demised premises`.

The appellant also told Md Shohel that he needed the particulars of the persons staying at the premises...