Forward Food Management Pte Ltd and Another v Public Prosecutor

• Judge: Yong Pung How CJ
• Judgment Date: 07 March 2002
• Neutral Citation: [2002] SGHC 46
• Citation: [2002] SGHC 46
• Defendant Counsel: Christina Koh (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Uthayasurian Sidambaram (Surian & Partners)
• Date: 07 March 2002
• Docket Number: Magistrate's Appeal No 244 of 2001
• Court: High Court (Singapore)
• Subject Matter: Work permit stipulating employment as 'Waiter/Waitress Supervisor',"waiter",Immigration,Whether conviction acceptable as Ministry of Manpower contributed to confusion,Whether employers in breach of condition by employing worker as stall supervisor,Whether dictionary meaning appropriate,Proper approach to construction of penal provisions,Employment,Whether strict construction rule applicable,Whether term 'waiter' ambiguous,Words and Phrases,Foreign worker,Construction of statute,Statutory Interpretation,Whether strict construction rule for penal statutes applicable to executive orders and conditions

Judgment

GROUNDS OF DECISION

Introduction

This was an appeal from the decision of the district court convicting the first appellant, Forward Food Management Pte Ltd ("Forward Food") and the second appellant, Tan Hwee Kiang ("Tan"), of employing a foreigner, one Kuan Chwi Mei ("Kuan") otherwise than in accordance with the conditions stipulated in her work permit. This is an offence under s 5(3) of the Employment of Foreign Workers Act (Cap 91A) (the "Act") and punishable under s 22(2) of the Act. After considering the submissions and evidence before him, the district judge held that Kuan had been employed by the appellants for work other than as a "Waiter Supervisor/Waitress Supervisor", as provided in her work permit, and accordingly sentenced the appellants to a fine of $2,500 each. The appellants appealed against their conviction as well as their sentence. After hearing arguments from counsel, I allowed the appellants’ appeals against their conviction and now set out the reasons for my decision.

The facts

2 The facts relevant to this appeal were not in dispute. On 16 January 2001, officers from the Ministry of Manpower conducted a raid at a food court outlet at Causeway Point, which was allegedly owned by a company known as The Chef's Sam Pte Ltd ("Chef's Sam"). Four workers were seen within the stall, one of whom was Kuan, a Malaysian. It was later revealed that Kuan was under the employ of Forward Food, having been recruited by Tan, who was a director of that company. In addition to supervising the workers at the various outlets which Forward Food managed, Kuan’s job also entailed checking stocks at these outlets. Upon ascertaining the supply requirements of these outlets, Kuan would then make arrangements for the delivery of the necessary supplies.

3 Under Kuan's work permit, her occupation was described as a "Waiter Supervisor/Waitress Supervisor" and this was also reflected in the application form for her work permit, which was signed by Tan on behalf of Forward Food. On the same form, Forward Food was described as Kuan's employer.

The trial

4 In the court below, the prosecution's case was simply that the work permit had been issued to Forward Food under two conditions and that these had been breached by the appellants. The first condition was that Kuan had to be employed by Forward Food and the second condition was that she had to be employed as a "Waiter/Waitress Supervisor". With regard to the first condition, the prosecution alleged that the food court outlets where Kuan worked belonged to Chef's Sam and Kuan was under Chef’s Sam’s employ. This assertion was rejected by the trial judge, who was not satisfied that there was any evidence that Kuan was not in fact employed by Forward Food. Instead, he found that there was evidence which went to show that the said food court outlets were in fact licensed to Tan and that Forward Food had been appointed to manage these outlets. As such, it could not be said that that condition had been breached.

5 However, the trial judge agreed with the prosecution that Kuan was not employed as a "Waiter/Waitress Supervisor" as stipulated in the work permit. Instead, he felt that she was more of a stall supervisor, highlighting that as Tan had conceded in his evidence that there were no waiters or waitresses at the food court outlets, Kuan could not have been working as a "Waiter/Waitress Supervisor". Coming to this conclusion, the district judge amended the charge by deleting the reference to Chef's Sam and convicted the appellants on the amended charges. He then sentenced the appellants to a fine of $2,500 each as this was the usual tariff fine for such an offence.

6 In addition to the foregoing, four other points of evidence, which were not apparent from the district judge’s judgment, caught my attention. First, the prosecution’s witness from the Ministry of Manpower, investigating officer Mr Ng Ngak Shim ("IO Ng"), did not seem very certain as to whether Kuan’s duties were outside the scope of a "Waiter/Waitress Supervisor". Second, it was IO Ng’s evidence that the Ministry did not have any defined job scope in relation to a "Waiter/Waitress Supervisor". The third point pertained to the application process for Kuan’s work permit. At the trial, Tan testified that, when he was completing the application form for the permit, he noticed that there was no relevant category listed in the form other than "Waiter/Waitress Supervisor". There was certainly no "Stall Supervisor" category and, as such, he chose the former category. Moreover, after making the application for Kuan, he was not told of the limited scope of work that Kuan, as a "Waiter/Waitress Supervisor", would be allowed to do. The fourth point was that it was apparent from the notes of evidence that the prosecution’s main line of attack in the court below was that Kuan was actually not in the employ of Forward Food. This was rejected by the district judge, who proceeded to convict the appellants on what was clearly a collateral and technical ground.

The appeal

7 Before me, the appellants advanced several arguments which went to challenging the trial judge's finding that, based on the job which Kuan was employed to do, the appellants were in breach of the work permit condition that Kuan be only employed as a "Waiter/Waitress Supervisor".

8 First, the appellants argued that the trial judge erred in failing to consider that the prosecution had not produced any evidence to show that there was a specific job description known as a "Stall Supervisor" for which a work permit could have been applied for and the scope of duties of such a job description, if it existed. Second, the appellants contended that it could well be that a "Stall Supervisor" had the same duties as a "Waiter/Waitress Supervisor "and, as the prosecution did not lead any evidence as to what the duties of a "Waiter/Waitress Supervisor" were, they argued that the prosecution had not proven its case beyond reasonable doubt.

9 The appellants' third submission was that the trial judge erred in not considering the evidence of IO Ng, who gave some evidence of what he perceived to be the scope of duties of a "Waiter/Waitress Supervisor". During cross-examination, IO Ng stated that there was no job scope set out by the Ministry of Manpower in relation to a waiter supervisor. Significantly, he also conceded that if Kuan simply checked the stocks of her official employer, served customers at its outlets and supervised its employees working there, there would have been no breach of the work permit conditions. The appellants argued that this evidence clearly showed that the duties carried out by Kuan were within the job scope permitted by the Ministry of Manpower.

10 The appellants then argued that the district judge erred in failing to consider Tan's evidence that he was given no information as to the scope of work Kuan was allowed to do. The prosecution responded by saying that in the court below there was a form, signed by Tan, which stated the conditions of the work permit. But as the prosecution did not produce this form, the appellants submitted that an adverse inference should have been drawn against the prosecution in this respect. Through this argument, the appellants contended that no conditions were attached to their employment of Kuan and there could therefore have been no breach of such conditions.

11 Finally, the appellants asserted that the trial judge erred in finding that there were no waiters or waitresses at the food outlets because he drew this conclusion from Tan's evidence. They contended that it was clear from Tan’s evidence that he was confused over the use of the words ‘waiter’ and ‘waitress’ and the trial judge should not have placed too much weight on his evidence with regard to this point.

12 The prosecution's main response to the appellants' arguments was that Tan himself had admitted that there were no waiters or waitresses working at the food court outlets. Therefore the trial judge was right to come to the conclusion that it could not be said that Kuan was employed to supervise waiters or waitresses there. In addition to this argument, the prosecution claimed that the trial judge was correct not to draw an adverse inference against the prosecution for failing to produce the form containing the conditions of the work permit. In support of this submission, the prosecution cited Yeo Choon Huat v PP [1998] 1 SLR 217 for the proposition that an adverse inference could only be drawn against it, under s 116 illustration (g) of the Evidence Act, if it had withheld or suppressed the evidence. As it did not withhold any evidence which was in its possession, the prosecution contended that an adverse inference should not be drawn against it.

13 As can be seen from the above arguments, the parties only addressed myself and the district court on issues pertaining to the actus reus of the offence. No evidence relating to the appellants’ mens rea was adduced and there were no submissions as to whether this offence was a strict liability offence. After reading the relevant provision, I had doubts as to whether the presumption of mens rea, as stated by the Privy Council in Lim Chin Aik v The Queen [1963] AC 160, had been rebutted and that the offence is necessarily a strict liability offence. However, as I came to the conclusion that the actus reus of the offence had not been made out and also I did not receive full arguments on the issue of mens rea, I considered it neither necessary nor appropriate to deal with this issue in the present case.

The issues

14 Considering the arguments raised by the parties, three issues had to be resolved in order for this appeal to be disposed of. First, there was the question of whether there were any conditions attached to the issuance of Kuan’s work permit for her employment under Forward Food and, if so, whether one of these conditions was that Forward Food was only...