Gan Hock Keong Winston v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 20 September 2002
• Neutral Citation: [2002] SGHC 221
• Docket Number: Magistrate's Appeal No 115 of 2002
• Date: 20 September 2002
• Year: 2002
• Published date: 19 September 2003
• Plaintiff Counsel: Nai Thiam Siew Patrick (Abraham Low LLC)
• Citation: [2002] SGHC 221
• Defendant Counsel: Ivan Chua Boon Chwee (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Courts and Jurisdiction,Evidence,Oral testimonies of prosecution witnesses different from earlier statements,Previous inconsistent statements -Impeachment of prosecution witnesses by prosecution,Impeaching witnesses’ credibility,Whether and when appellate court can interfere with such findings,Appeals,Whether trial judge can give due weight to such statements,Whether trial judge under obligation to accept oral testimonies exculpating appellant,Sentencing,Whether prosecution can substitute oral testimonies for prior inconsistent statements,Witnesses,Whether sentence manifestly excessive,Criminal Procedure and Sentencing,s 157 Evidence Act (Cap 97, 1997 Ed),Trial judge's findings of fact,Whether and when appellate court can interfere with sentence below,Factors to consider,Statements,Documentary evidence,s 147 Evidence Act (Cap 97, 1997 Ed)

Judgment

GROUNDS OF DECISION

This was an appeal against conviction and sentence. The appellant claimed trial and was convicted on 26 March 2002 on the following charge:

You, Gan Hock Keong Winston, are charged that you, from on or about 1 August 2001 to 15 August 2001 at Hainanese Boneless Chicken Rice Stall located at 30, Eunos Road 5, #01-101, Singapore 400030 did abet by intentionally aiding one Tan Hui Huang in the commission of the offence of employing a foreigner, namely Yap Chai Teck, without having obtained in respect of the said Yap Chai Teck a valid work permit allowing him to work for the said Tan Hui Huang, to wit, by arranging for the said foreigner to work at the said stall as a stall assistant and which offence was committed in consequence of your abetment and you have thereby committed an offence under section 5(1) read with section 23(1) of the Employment of Foreign Workers Act, Chapter 91A and punishable under section 5(6) of the same.

And further, that you, prior to the commission of the above mentioned offence, were convicted on 23 March 1999 in Court 23 in the Subordinate Courts for two offences under section 5(1) of the Employment of Foreign Workers Act, Chapter 91A, which conviction had not been set aside, and you are liable for enhanced punishment under section 5(6)(b)(i) of the same Act.

2 The appellant was the owner of one Jie Sheng Food Court of Blk 735, Pasir Ris Street 72, #01-298 ("Jie Sheng"). Since May 2001, one Yap Chai Teck (‘Yap’) had been working for him as a coffee shop assistant. Yap’s work permit only allowed him to work for the appellant at Jie Sheng. On 15 August 2001, Yap was found working for one Tan Hui Huang (‘Tan’) at one Hainanese Boneless Chicken Rice located at Blk 30, Eunos Road 5, #01-101 (‘the chicken rice stall’) by officers from the Ministry of Manpower (‘MOM’). Investigations revealed that Yap had been working there since 1 August 2001. Following his arrest, Yap was questioned by one Raymond Chui (‘Chui’), an MOM investigating officer, and made the following statement:

Last month … ‘Wu Bai’ (the appellant) has a friend by the name of ‘Ah Huang’ (Tan) who approached him at Jie Sheng Food Court and told ‘Wu Bai’ that he needed me to help out at the inspected premises (the chicken rice stall). After discussion between ‘Wu Bai’ and ‘Ah Huang’ at Jie Sheng Food Court, both ‘Wu Bai’ and ‘Ah Huang’ approached me and together they told me to go over to the inspected premise on the 1^st of August this year to help out.

I then asked ‘Wu Bai’ and ‘Ah Huang’ how much salary they will be paying me for helping out at the inspected premise. However, both ‘Wu Bai’ and ‘Ah Huang’ told me to go over and help out at the inspected premise first and they will then pay me my salary accordingly. But till date, I have not received any additional salary either from ‘Wu Bai’ or ‘Ah Huang’ for helping out at the inspected premise. Both ‘Wu Bai’ and ‘Ah Huang’ then gave me the address of the inspected premise and told me to report for work on 1^st August 2001 at 8am in the morning.

… As ‘Wu Bai’ is my boss at Jie Sheng Food Court, I have no choice but to follow his instructions to work for ‘Ah Huang’ at the inspected premise. (emphasis mine)

3 Both Tan and the appellant were subsequently questioned by Chui. Tan made the following statement on 16 August 2001:

The said ‘Ah Mao’ (Yap) is actually a work permit holder working as a coffee shop assistant at Jie Sheng Food Court at Blk 735 Pasir Ris. His boss there is known as Vincent (the appellant). I also know Vincent myself as I also have a chicken rice stall there. However, ‘Ah Mao’ also has the intention to quit his job as a coffee shop assistant selling drinks at Jie Sheng Food Court and as I also need him to help me out at the inspected premise to sell chicken rice.

I therefore discussed the matter with Vincent and we then told ‘Ah Mao’ to come over to help out at the inspected premise. Thus, Vincent knows that ‘Ah Mao’ is helping me out at the inspected premise since 01.08.2001, and Vincent agreed to let ‘Ah Mao’ help me out at the inspected premise

(emphasis mine)

4 On 17 August 2001, the appellant made the following statement:

I therefore agreed to this matter of ‘Ah Mao’ (Yap) helping out at the inspected premise for ‘Ah Huang’ (Tan). Both ‘Ah Huang’ and myself then told ‘Ah Mao’ to go over and work as a stall assistant at the inspected premise since 01.08.2001 this year

. (emphasis mine)

5 Tan pleaded guilty on 31 January 2002 to a charge of employing Yap without a valid work permit, an offence under s 5(1) of the EFWA. He was fined $6,480.

6 The issue in the present case was whether the appellant had abetted Tan in the illegal employment of Yap by arranging for Yap to work at the chicken rice stall, knowing that Yap did not possess a valid work permit to be so employed. I noted that the content of the statements recorded between 15 and 17 August 2001 quite clearly implicated the appellant in this respect. In particular, that the appellant’s own statement contained incriminatory material which showed that he had arranged for Yap’s unlawful employment. It was not disputed that the statements were made voluntarily.

The trial below

7 During the trial, a very different version of events was narrated by all three men. Their oral testimony was that it was Tan alone who had arranged for Yap to work at the chicken rice stall, and that the appellant did not know that Yap was working there between 1 and 15 August 2001. The appellant was the sole defence witness, while Yap and Tan were among the witnesses called by the prosecution.

8 Yap’s evidence in court was that the appellant was not involved in his decision to work at the chicken rice stall. He stated that it was Tan alone who had given him the address of the stall and had told him to work there. Yap initially stated in court that there was no discussion between Tan and the appellant concerning his employment at the chicken rice stall. However, on further questioning, he conceded that there had been a previous discussion between Tan and the appellant, but claimed that he did not know the contents of the discussion.

9 On cross-examination, Yap stated that he had told the appellant in mid-July 2001 that he intended to quit because the pay was too low. Yap said that the appellant gave him two weeks off from 1 to 16 August 2001 in order for him to consider whether he wished to continue working at Jie Sheng. His evidence was that the appellant did not know that he had been working in the chicken rice stall during those two weeks, and had in fact told him that his work permit would have to be cancelled if he intended to work somewhere else.

10 Tan’s evidence in court was also that the appellant did not know that Yap had been working at the chicken rice stall from 1 to 15 August 2001. Tan admitted that he and the appellant had previously discussed the idea of Yap working in the chicken rice stall. Tan stated that the appellant had said there would be no problems with the arrangement, as long as Tan informed him beforehand. Tan claimed that he did not tell the appellant that Yap was working at the chicken rice stall from 1 to 15 August 2001 because he was there on a trial basis, and Tan had not yet decided whether to formally employ him.

11 The appellant was the only witness for the defence. His evidence was that he had told Yap that if he intended to work anywhere else, he must have his work permit cancelled first. He had agreed to Yap’s request for two weeks off in August 2001 as business was not good at that time and by giving Yap time off he would not need to pay his wages for those two weeks. He had spoken to Yap about the possibility of him working at the chicken rice stall, and had also discussed the possibility with Tan. However, he denied having actually directed Yap to work at the chicken rice stall.

12 All three men relied on the same explanation for the discrepancies between their oral testimonies and the contents of the previous statements: Chui – the MOM investigating officer – had failed to accurately record their statements. The defence alleged that the statements were inaccurately recorded on several grounds. First, Chui had only a C6 grade for his GCE ‘AO’ level Chinese. Since the questioning took place in Mandarin, Chui was not sufficiently proficient in the language and...