Comfort Management Pte Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 04 February 2003
• Neutral Citation: [2003] SGHC 16
• Docket Number: Magistrate's Appeal No 200 of 2002
• Date: 04 February 2003
• Published date: 07 October 2003
• Year: 2003
• Plaintiff Counsel: Lim Chong Boon (Albert Teo & Lim)
• Citation: [2003] SGHC 16
• Defendant Counsel: G Kannan (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Purposive approach,Immigration,Foreign worker,Employment of Foreign Workers Act (Cap 91A, 1997 Rev Ed) ss 5(3), 22(2),Whether employing foreign worker otherwise than in accordance with conditions of work permit a strict liability offence,Employment,Construction of statute,Interpretation Act (Cap 1, 1999 Rev Ed) s 9A(1),Statutory Interpretation,Principles of statutory interpretation

The Charge

1 The appellant, Comfort Management Pte Ltd (‘the company’), claimed trial to a charge that it had employed a foreigner, one Krishnan Rajangam (‘Krishnan’), otherwise than in accordance with condition 2(d) of his work permit, namely, by authorising him to drive the company vehicles GM 2100E, YF 9957C and YG 909X outside construction sites in the course of his employment, and had thereby committed an offence under s 5(3) of the Employment of Foreign Workers Act (Cap 91A) (‘the Act’) which was punishable under s 22(2) of the Act.

2 Section 5(3) of the Act provides that "no person shall employ a foreign worker otherwise than in accordance with the conditions of the work permit". Under s 22(2) of the Act, a s 5(3) offence is punishable by a fine not exceeding $5,000.

3 After considering the submissions and evidence before her, the district judge convicted the company of the charge and imposed a fine of $3,500. The company appealed against its conviction. After hearing arguments from counsel, I dismissed the appeal and now set out the grounds for my decision.

Undisputed facts

4 The facts relevant to this appeal were relatively straightforward. Krishnan, an Indian national, was an employee of the company from April 2000 to April 2002. In order to employ him, the company, through its director, one Lim Fatt Seng (‘Mr Lim’), submitted to the Ministry of Manpower (‘MOM’) an application form for prior approval to employ 10 Indian nationals as ‘non-traditional source (‘NTS’) construction workers’. Certain conditions for the employment of a NTS construction worker were set out in the application form for prior approval, the material one being condition 2(d) which provided that:

2 Individual Work Permit Application

The employer shall submit individual Work Permit applications for each NTS construction worker to be employed … The NTS construction workers recruited by employer shall be:

…

(d) Engaged only in the construction activities listed in Annex A of this document (Note: construction activities do NOT include driving outside construction site).

Annex A listed several categories of construction activities such as ‘General Building Construction and Civil Engineering Works’, ‘Road Works’ and ‘Specialised Installation Activities’. Mr Lim signed a declaration in the prior approval application form that the company was engaged in one or more of the construction activities listed in Annex A, and that all the NTS construction workers employed by the company "shall be solely engaged in these construction activities and at our construction sites". Mr Lim also declared that the company would comply with the work permit conditions.

5 After prior approval was granted by MOM, Mr Lim applied for, and obtained, an individual work permit for Krishnan to work as a building electrician. Krishnan’s primary responsibilities were to carry out works relating to the installation, commissioning and testing of air-conditioning systems.

6 Krishnan held a valid driving license. It was not disputed that the company had authorised him to drive the company vehicles, referred to in the charge. The purpose and extent to which the company had authorised Krishnan to drive the company vehicles were however disputed and would be reverted to below.

The prosecution’s case

7 The prosecution conceded that Krishnan was not working primarily as a company driver. His primary responsibilities remained that of a building electrician and this complied with condition 2(d) of his work permit. The prosecution contended, however, that condition 2(d) should be interpreted as prohibiting all instances of driving outside construction sites in the course of a foreign worker’s employment. The crux of the case was hence whether the company had authorised Krishnan to drive in the course of his employment. The fact that the company was employing Krishnan primarily as a building electrician, and not as a company driver, was irrelevant to the charge.

The defence

8 The company raised three arguments in defence. First, the prosecution’s interpretation of condition 2(d) was wrong. Condition 2(d) was ambiguous and should therefore be construed strictly in favour of the company. Secondly, even on the prosecution’s interpretation of condition 2(d), the company was nevertheless not in breach of that condition. Thirdly, the company did not possess the mens rea for the offence.

The trial judge’s findings

9 The trial judge agreed with the prosecution’s interpretation of condition 2(d) of Krishnan’s work permit. The judge held that condition 2(d) was not ambiguous and that it prohibited Krishnan from driving outside a construction site in the course of his employment. However, driving in his personal capacity was not prohibited.

10 The judge then considered whether the company had breached condition 2(d). The company conceded that it had authorised Krishnan to transport work equipment (used by his co-workers and himself) between constructions sites and that it had paid for all expenses (including parking and petrol charges) relating to those vehicles. On these facts alone, the judge was prepared to find that the company had authorised Krishnan to drive in the course of his employment and had therefore breached condition 2(d).

11 The judge also went further to consider the disputed scope of driving, namely, whether the company had also authorised Krishnan to ferry co-workers in those vehicles. Krishnan testified that Abdul Razak Syed Mubarak (‘Syed’), an operations manager of the company who was responsible for the allocation of company vehicles, had instructed him to ferry co-workers between construction sites once or twice every month. Krishnan further testified that Syed had also instructed him to pick up one Kesavan, a co-worker, every morning on his way to work. Syed was then called to testify as a prosecution witness. In his examination-in-chief, he denied giving these instructions to Krishnan. Upon cross-examination, however, he admitted that Krishnan had picked up Kesavan with his knowledge and consent. The company’s defence, as relevant to this issue, was that it did not authorise Krishnan to ferry his co-workers at all. The judge, after careful consideration of the evidence and the demeanour of the witnesses, rejected both Syed and the company’s testimonies. She believed Krishnan’s testimony and found that the company had not only authorised Krishnan to use the company vehicles to transport the work tools (which was conceded), but also his co-workers. She held that this further strengthened the prosecution’s case that the company had authorised Krishnan to drive in the course of his employment. The actus reus for a s 5(3) offence was accordingly made out.

12 The judge next considered whether the company had possessed the requisite mens rea for a s 5(3) offence. No arguments were presented as to whether mens rea is required for the offence, or the type of mens rea that must be proved. The parties instead proceeded on whether the company had knowledge of the existence of condition 2(d). The judge found that the company had such knowledge and ruled that the prosecution had proven the presence of mens rea beyond a reasonable doubt.

13 The judge accordingly convicted the company of the charge and imposed a fine of $3, 500, giving weight to the fact that it was a first offender.

Issues arising upon appeal

14 The issues which arose upon appeal were similar to those which had arisen during the trial. First, whether the trial judge was correct in her interpretation of condition 2(d) of the work permit. Secondly, whether the company had breached condition 2(d) of the work permit. Thirdly, whether the company had possessed the requisite mens rea for the offence.

First ground of appeal : interpretation of condition 2(d)

(i) Applicable principles of interpretation

15 The applicable principles in the interpretation of executive orders and conditions (including work permits) are the same as those applied in the interpretation of primary legislation: Forward Food Management Pte Ltd v PP [2002] 2 SLR 40. In that case, I discussed the relevant authorities and summarised the principles to be applied in interpreting penal statutory provisions as follows:

The proper approach to be taken by a court construing a penal provision is to first consider if the literal and purposive interpretations of the provision leave the provision in ambiguity. It is only after these and other tools of ascertaining Parliament’s intent have been exhausted, that the strict construction rule kicks in in the accused person’s favour [at para 26].

It is clear from the passage quoted above that the strict construction rule is a rule of last resort to be applied only if ‘literal’ and ‘purposive’ interpretations of a provision as well as other rules of construction still leave the provision in ambiguity.

16 While the purposive and literal interpretations of a statutory provision often coincide, this is not always the case. Where they conflict, it is settled law that a purposive interpretation should be adopted over a literal interpretation that does not support the purpose and object of the written law, even if the wording of the statute is not ambiguous or inconsistent: Constitutional Reference No 1 of 1995 [1995] 2 SLR 201 and Kenneth Nicholas v PP [MA/210/2002]. This follows from the clear terms of s 9A(1) of the Interpretation Act (Cap 1) which reads:-

Purposive interpretation of written law and use of extrinsic materials

9A. – (1) In the interpretation of a provision of a written law, an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object.

17 Section 9A(1) is also in line with the prevailing common law position which was stated most succinctly by Lord Simon of Glaisdale in ...