Cheong Choon Bin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 04 September 2001
• Neutral Citation: [2001] SGHC 255
• Docket Number: Magistrate's Appeal No 76 of 2001
• Date: 04 September 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Allan Tan Chwee Wan (Sim Mong Teck & Partners)
• Citation: [2001] SGHC 255
• Defendant Counsel: Toh Yung Cheong (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: 'Employ',Courts and Jurisdiction,Standard of due diligence after amendments to Immigration Act,Immigration,Whether employer's statutory duty and responsibility delegable,CourPower of appellate court to overturn trial judge's findings of fact,ss 57(9) & 57(10) Immigration Act (Cap 133, 1997 Ed),Employer's duty to check immigration status of foreign employees,Relevant considerations,s 2 Immigration Act (Cap 133, 1997 Ed),Statutory definition of 'employ',Words and Phrases,Whether relevant that employment done by third party,Whether substance or form of employer-employee relationship important,Circumstances when person deemed employer,Whether any reason to interfere with trial judge's findings of fact

: The appellant was charged and convicted under s 57(1)(e) of the Immigration Act (Cap 133, 1997 Ed) (`the Act`) on three counts of employing immigration offenders. He was sentenced to ten months` imprisonment on each charge, and pursuant to s 18 of the Criminal Procedure Code (Cap 68), two of the terms of imprisonment were ordered to run consecutively. I dismissed his appeal against conviction and now give my reasons below.

The facts

The appellant`s company, C & B General Services & Trading Pte Ltd (`C & B`), held the contract for cleaning and gardening works at Good Luck Garden Condominium (`Good Luck Garden`). On 15 February 2000, police officers conducted a raid on Good Luck Garden. Four male persons, all wearing T-shirts bearing the legend `C & B General Services & Trading Pte Ltd` were arrested. The arrested persons included three Sri Lankan nationals - Laxman Pradeep (PW5), Ruwan Pradeep (PW6) and Jerad Neil (PW7) (collectively, `the Sri Lankan witnesses`) - who were subsequently convicted of entering Singapore unlawfully and who were the subjects of the three charges against the appellant.

The prosecution`s case

The prosecution alleged that the appellant`s employment of the Sri Lankan witnesses was pursuant to a contract made between C & B and the estate managers of Good Luck Garden, which obliged C & B to provide six cleaners and three gardeners - making a total of nine workers - at Good Luck Garden. Although the contract in existence at the date of the police raid was for the period of 1 May 1999 to 30 April 2000, the prosecution was able to adduce evidence to show that C & B had held the cleaning contract at Good Luck Garden prior to 1999. Yap Sieh Wah (PW1), an employee of the estate managers of Good Luck Garden, testified that he had seen the Sri Lankan witnesses, dressed in the C & B uniform, working at Good Luck Garden. PW1 further testified that he had seen the appellant taking the C & B workers to Good Luck Garden, and that he had seen the appellant there almost every month.

PW5 and PW6 testified that they had worked as cleaners at Good Luck Garden between August 1999 and February 2000, while PW7 testified that he had worked there part-time as a gardener between December 1998 and February 1999, and full-time from February 1999 until February 2000. All three had been introduced to a Sri Lankan named `Banda` by fellow Sri Lankans, and it was Banda who recruited them to work at Good Luck Garden. Banda also appeared to be the main overseer at Good Luck Garden. Likewise, it was Banda who told PW6 that the appellant was his employer.

However, both PW5 and PW6 testified that their monthly salaries of $700 each were paid to them by the appellant, save for one occasion when PW6 was paid by Tan Hin Lee (PW4), one of the appellant`s employees. PW7 gave evidence that although he received his salary of $700 from various persons, it was the appellant who paid him his salary on four or five occasions. PW7 also testified that he had seen PW4 bring to Good Luck Garden the equipment used by the foreign workers. Finally, PW5 stated that the appellant did not speak to him, apart from paying him his salary, while PW7 testified that, on the occasions when the appellant paid him, he never asked to see any of PW7`s identification papers.

PW4, who had worked for C & B between June 1998 and September 1999, testified that he would be sent at times to Good Luck Garden to pay the workers` salaries, which were in the form of cheques signed by the appellant and which PW4 encashed before paying the workers in cash. The workers had to sign payment vouchers when they were paid. PW4 claimed to have asked the workers for their identification documents, although he had not pursued the matter when they did not produce the documents. PW4 further testified that C & B supplied equipment for the use of the workers, and that he had made some deliveries of equipment himself. He had seen PW7 doing gardening work during one of his visits to Good Luck Garden, although he could not recognise PW5 or PW6.

PW4 and the Sri Lankan witnesses were also recalled as the appellant claimed to have four witnesses (`the Bangladeshi witnesses`) who had worked at Good Luck Garden between February and July or August 1999. The Sri Lankan witnesses testified that they were unfamiliar with these Bangladeshi witnesses. On the other hand, PW4 testified that while two of the Bangladeshis were unfamiliar to him, the other two, one `Islam` and one `Haman`, had been employed by C & B on the HDB grass-cutting teams. PW4 also testified that Islam had been deployed to Good Luck Garden as a grass-cutter occasionally.

The defence

The appellant gave evidence on his own behalf. He testified that Banda was the supervisor of the foreign workers at Good Luck Garden. He had employed Banda because Banda had previously worked for the sub-contractor who carried out the cleaning and gardening services, and the management corporation of Good Luck Garden had `told` him to retain Banda. Salaries were usually paid by PW4 or another C & B employee, and between May 1999 and February 2000, he had paid salaries to the workers at Good Luck Garden on only two occasions at most.

The appellant further claimed to be unaware of the exact identities of the foreign workers he employed to work at Good Luck Garden, as well as the day-to-day situation there, as he was often away on business in Cambodia during that period. Nevertheless, he claimed to be certain that on the day of the raid, ie 15 February 2000, only legal foreign workers were employed at Good Luck Garden. Finally, he claimed that he had never seen the Sri Lankan witnesses before.

Finally, the appellant called the Bangladeshi witnesses, who testified that they did not know the Sri Lankan witnesses.

The decision below

The district judge noted that since Tamilkodi s/o Pompayan v PP [1999] 1 SLR 702 , the manner of remuneration and the degree of control exercised by the alleged employer over the worker continued to be significant considerations in determining the existence of an employment relationship. However, these were not the only considerations that the court would take cognizance of. The district judge found the following factors to be relevant in deciding that an employment relationship did exist between the appellant and the Sri Lankan witnesses:

(1) that the appellant held the cleaning contract at Good Luck Garden at the material time and was expected to pay his workers out of the contract sum;

(2) that it was the appellant`s responsibility to...