Daw Aye Aye Mu v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 12 January 1998
• Neutral Citation: [1998] SGHC 13
• Citation: [1998] SGHC 13
• Defendant Counsel: Anandan Bala (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Myint Soe (Myint Soe Mohamed Yang & Selvaraj)
• Date: 12 January 1998
• Docket Number: Magistrate's Appeal No 150 of 1997
• Court: High Court (Singapore)
• Subject Matter: Criminal Law,Criminal Procedure and Sentencing,Whether principal to be convicted of offence before abettor could be convicted of abetting said offence,Accused's 'dominant intention' at time of commission of act of assistance,Punishment for offences of abetment to be commensurate with dominant intention -ss 109, 110 & 111 Penal Code (Cap 224),s 256(b)(ii) Criminal Procedure Code (Cap 68),Amendment by High Court on appeal,Abetment,Whether appropriate to amend charge,Issue of whom accused aided,Charge,Safeguards required to prevent prejudice to defence and prosecution,Two possible principals

Judgment:

YONG PUNG HOW CJ

In the court below, the appellant was convicted by the district judge Abdul Rahim bin Abdul Jalil on the following charge:

DAC 30098/96

You,

Daw Aye Aye Mu @ Daw Aye Than, f/42 yrs

(Passport No 147643, Nationality: Myanmese)

are charged that you, on or about 8 May 96 to 27 June 96, at Budget Lodge, 77 Loewen Road, Singapore, did abet one Ng Ching Yong in the employment of San Lwin, a Myanmese national, as a maintenance staff cum worker supervisor, being a person who had overstayed in Singapore in contravention of the provisions of s 15(1) of the Immigration Act (Cap 133, 1995 Ed), and you have thereby committed an offence under s 57(1)(e) of the Immigration Act, read with s 109 of the Penal Code (Cap 224) punishable under s 57(1)(ii) of the Immigration Act.

There was another charge against the appellant of employing one Maung Tun Hlaing (Maung) but she was acquitted on that charge. The trial was a joint trial with one Ng Chin Yong (Ng) whom the appellant was alleged to have abetted in the employment of San Lwin and Maung. The district judge found Ng guilty of employing both San Lwin and Maung. Ng did not appeal. The appellant appealed against her conviction.

2. The prosecution`s evidence

San Lwin arrived in Singapore on 23 April 1996. He was given a social visit pass which entitled him to stay in Singapore for 14 days. He said that he came to Singapore to seek employment as he had some relatives including a younger brother in Singapore.

3.San Lwin first met the appellant in a taxi stand at Orchard Road on 2 May 1996. While queuing at the taxi stand, he had heard someone speaking Burmese. This turned out to be the appellant. San Lwin therefore asked the appellant whether she was Burmese and she said yes and a gentleman who was with the appellant then proceeded to give San Lwin her address and contact number.

4.San Lwin called the appellant the next day and asked her whether there were any job opportunities and he was told to bring all his particulars when he came to visit her. He did so on 4 May 1996 at the appellant`s house in Geylang. After looking at San Lwin`s papers which comprised a diploma certificate of civil engineering and his resumes, the appellant told him that his papers were good enough to apply for an employment pass. He also showed the appellant his passport. San Lwin passed $200 and his documents to the appellant to apply for an employment pass for him.

5.According to San Lwin, after he had shown his papers to the appellant, she informed him that she was going to see one employer and she asked him to follow her. However, at that first place the employer was not around so he was then brought to a hotel at 77 Loewen Road (Budget Lodge). He went there with the appellant and two other persons who were also waiting for job vacancies.

6.At Budget Lodge he met one William Chen (William). San Lwin said that he saw the appellant discussing about jobs for the other two persons with William. San Lwin also met a Filipino lady, Zaiton bte Abdullah alias Angeline R Acoreba (Vangie) at Budget Lodge. She was the receptionist there. According to San Lwin, Vangie persuaded him to work for them as she said that he spoke better English than the other two persons.

7.San Lwin said that when Vangie asked him to work for them the appellant said that it was his decision. He worked for only one day and was paid $35. He worked until 8pm carrying mattresses from downstairs to the rooms upstairs. San Lwin said that he met Ng on that day as well but he did not speak to him.

8.After he had finished his day`s work at Budget Lodge, San Lwin went back to the appellant`s house in Geylang. He was then told by the appellant that they did not require a civil engineer which was what San Lwin was. It seemed that the company only required an electrical engineer. San Lwin did not receive any money after he had finished the work and he informed the appellant of this but the appellant told him that he had not completed the work yet and he had to go back to continue it and only after the completion of the work would he get paid. He said that he had given the $200 to the appellant with the understanding that if he could not obtain the civil engineering job, she would be searching for another job for him and therefore he could not ask for the money to be returned to him.

9.San Lwin said that he had shown his passport to William and Vangie before his visit pass expired. They told him that they liked his work and asked him to move into Budget Lodge, which he did on 6 May 1996. As his social visit pass was due to expire on 7 May 1996 William asked him to extend his pass but his application to extend his pass was rejected. San Lwin also testified that Ng had asked him for his passport two or three times but he had told Ng that his passport was kept with his brother. According to San Lwin, he thought that Ng had asked him for his passport as it was normal practice to see if he had overstayed. San Lwin further stated that he did not know Ng`s role in Budget Lodge but that Ng often came to Budget Lodge and he used to brief and instruct William and Vangie and at times he slept in his own room in the hotel.

10.San Lwin testified that he worked at the hotel from 5 May 1996 till he was arrested on 27 June 1996. During that period, he worked as a foreman and interpreter for the other workers. He said that he received instructions from Vangie and sometimes from William. Ng also instructed him once or twice a week.

11.In total San Lwin received three payments for his work. He said that, as he was new, he had to ask the appellant for help to settle his salary. The appellant then came to the hotel on 20 May 1996 and paid him his salary for ten days which amounted to $350. William paid him another $350 at the end of May and then he received a third payment of $300 on 10 June 1996 from Ng.

12.San Lwin said that he did not see the appellant regularly but he knew that she came to the hotel once in two weeks. She usually came to the hotel with other Myanmese. In all, he saw her three times.

13.On 27 June 1996, San Lwin was fixing an air-conditioner in the hotel when he was arrested. He was charged in court for overstaying for 52 days. He pleaded guilty on 29 June 1996 and was fined $2,500 in default two months` imprisonment.

14.Vangie also gave evidence. She said that she was introduced to Ng by a Filipino friend, Mercy. During the first week of May 1996, she had a misunderstanding with her husband and Mercy told her that there were vacancies at Budget Lodge. She had sought temporary accommodation there. While she was there Ng had asked her to help him manage the place and she agreed. She then worked at Budget Lodge as a receptionist.

15.Vangie said that she understood Ng to be the owner of Budget Lodge. This was because he attended to most of the matters in the hotel and contracts concerning the hotel were negotiated by him. Ng came to the Budget Lodge office everyday and collected the income from the guests and also checked on the workers whenever he came. She considered William to be her colleague. His name was used in financial transactions. He was the person who signed the cheques and documents, also the company was registered in his name and he was also the lessee under the tenancy agreement for the building where Budget Lodge was housed.

16.Vangie said that she knew the appellant as she often came to Budget Lodge to bring in part time workers from Myanmar. The appellant usually came to Budget Lodge as often as four times a week. Besides part time workers, the appellant also brought in some of the regular workers at Budget Lodge, from Myanmar.

17.Vangie said that she knew San Lwin from Budget Lodge. He did mainly handyman work and general supervising services as well as acting as an interpreter for his fellow workers who did not know English well. She came to know San Lwin a week or two after she started work at Budget Lodge. San Lwin had been brought to Budget Lodge by the appellant and, after an interview, he started work there the next day. She was not involved in the interview between San Lwin, Ng and the appellant. Vangie said that usually it was Ng who gave instructions and, when he was not around, she would give the instructions.

18.Vangie said that Ng gave the salaries to the appellant to distribute among the workers. She had only seen the appellant paying San Lwin his salary once and she did not know what happened after that. Ng and San Lwin had discussed his salary. She knew this as San Lwin had approached her as he was wondering how much the other workers were receiving from the appellant.

19. The defence`s evidence

The appellant testified that many employment agencies would contact her husband and herself to seek employment of Myanmar nationals. Myanmar nationals who had come to Singapore would also approach her, seeking her help to obtain employment. The appellant said that she was approached by San Lwin around May 1996 at a taxi stand. She said that she gave him her contact number as she understood that he was a civil engineer and she thought she would have a vacancy for such a post.

20.Subsequently, San Lwin contacted her as he had no money and needed a job as well as accommodation. She told him that there was a place which would cost him $10 per day. She suggested that he go for an interview to apply for an employment pass or work permit. When San Lwin came to her premises in Geylang, he had shown her his educational certificates and his passport. She noticed that he had been given a fourteen days social visit pass and that there was still a period of a few days before the pass expired.

21.According to the appellant, she had brought San Lwin along with two other Myanmar nationals to Budget Lodge. She had been told by the employer at Budget Lodge that they would test him for one or two days first. She said that at Budget Lodge, Ng had interviewed San Lwin and she was present at the...