Kong See Chew v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 09 May 2001
• Neutral Citation: [2001] SGHC 89
• Citation: [2001] SGHC 89
• Defendant Counsel: Toh Yung Cheong (Deputy Public Prosecutor)
• Published date: 07 November 2003
• Plaintiff Counsel: Uthayasurian Sidambaram (Surian & Partners)
• Date: 09 May 2001
• Docket Number: Magistrate's Appeal No 268 of 2000
• Court: High Court (Singapore)
• Subject Matter: Employment,Whether circumstantial nature of evidence changes application of Haw Tua Tau test,Standard of proof,Proof of evidence,Whether circumstantial nature of evidence prevents prosecution from proving case beyond reasonable doubt,Manager claiming demotion and removal of authority to employ workers,Evidence against accused circumstantial in nature,Whether principal offence committed,Whether abetment charge can be preferred even if actus reus of principal offence not established,Circumstantial evidence against manager,Abetment,Immigration,Relevant test on whether prosecution established prima facie case,Circumstantial evidence,Whether test in Ang Sunny v PP should be applied at close of prosecution's case or close of trial,Whether prosecution proved case beyond reasonable doubt at conclusion of trial,Illegal foreign worker,ss 5(1), 6, 23(1) Employment of Foreign Workers Act (Cap 91A, 1997 Ed),Whether prosecution established prima facie case at close of its case,Evidence,Manager charged with abetting registered proprietor of lounge in employing illegal foreign worker

: The appellant, Kong See Chew (`Chew`), was charged in the subordinate courts with abetting, by intentionally aiding, in the employment of an illegal foreign worker, contrary to s 5(1) of the Employment of Foreign Workers Act (Cap 91A, 1997 Ed) (`the Act`). Chew claimed trial and at the end of it, was found guilty and was convicted by the district judge. He was sentenced to one month`s imprisonment and ordered to pay a fine of 36 months` levy, in default one month`s imprisonment. He appealed against his conviction only. At the end of the hearing before me, I dismissed the appeal and now give my reasons.

The charge

The amended charge under which Chew was convicted was as follows:

that you from on or about Feb 98 to Aug 98 at M KTV Karaoke Lounge of 542-556 Geylang Road Singapore 389497 did abet one Chua Seng Kim (NRIC No. S1367531G) of 61B Jalan Tua Kong Singapore 457257 trading as M KTV Karaoke Lounge (RCB No. 49655500J) in the commission of the offence of employing a foreign worker, namely one Tye Soon Hin (MBIC No. 800425-02-5349), in that you had intentionally aided the said Chua Kim Seng trading as M KTV Karaoke Lounge to employ the said Tye Soon Hin contrary to section 5(1) of the Employment of Foreign Workers Act (Chapter 91A) (Revised Edition 1997) when the said Chua Seng Kim had not obtained in respect of the said Tye Soon Hin a valid work permit allowing the said foreigner to work for her, which offence was committed in consequence of the abetment and you have thereby committed an offence under section 5(1) read with section 23(1) of the Employment of Foreign Workers Act (Cap 91A) (Revised Edition 1997) and punishable under s 5(6) of the same Act.

Background facts

On 10 November 1998, employment inspector Mohd Yusoff Johari from the Ministry of Manpower (`MOM`), together with some 30 officers, raided the M KTV Karaoke Lounge (`M KTV`). They found three Malaysian workers there who did not possess valid work permits. One of the three workers was Tye Soon Hin (`Tye`).

Further investigations later confirmed that, at the time of the raid, Tye was working at M KTV without a valid work permit. A search with the Registry of Companies and Businesses revealed that the registered proprietor of the business was a Chua Seng Kim (`Chua`). It was also established that Chew had been working as a manager at M KTV from around February 1994 to August 1998. At the time of the raid, Chew was no longer working at M KTV. Chew had previously, in 1997, been convicted on similar charges under s 5(1) of the Act.

The prosecution`s case

The prosecution`s case rested essentially on the evidence given by Tye and one James Wee Peo Cheng (`James`), who is a captain at M KTV.

(1) TYE`S EVIDENCE

Tye testified that he had been working as a waiter at M KTV from February 1998 till his arrest in November 1998. He admitted that he did not possess a valid work permit to work at M KTV. Sometime in early February 1998, he responded to a newspaper advertisement and went with a friend for a job interview at M KTV. When he arrived at M KTV for the interview, he was directed to a room. A captain of M KTV, Jeffrey, then spoke to him and gave him a form to fill in. Tye filled in the form with his personal particulars, including his name, nationality, marital status, Malaysian identification card number, passport number and Singapore address. He handed the completed form to Jeffrey. He then observed Jeffrey taking the form and going out of the room. Through the glass door of the room, he saw Jeffrey showing the form to Chew, who was just outside the room. Chew looked at the form and talked to Jeffrey for about five minutes. Although Tye was not able to hear what was being said between the two of them, he could clearly see that they were having a conversation. He had a clear view of Chew as the latter was only about 10ft away from him and the area was very brightly lit. After that, Jeffrey came back into the room and told him to start work the next day.

Tye gave evidence that his duties included serving liquor and collecting glasses. After he started working at M KTV, he found out that Chew was the sole manager of the lounge and he saw Chew every day while he was working there. There were about three to four captains at M KTV and he reported mainly to James. Jeffrey had left M KTV about two to three months after he started working there. Tye admitted that he came into contact more with the captains than with Chew. His work was supervised by the captain and it was the captain who told him his salary, the working hours, the uniforms he had to wear and the nature of his job.

However, Tye testified that Chew, as the manager, would still oversee his work and if he encountered any problems, he was to approach Chew, although the opportunity did not arise while he was working there. Further, it was Chew who mostly paid him his salary during the period from when he first started work till around June or July 1998. When Chew was not around and after he (Chew) left the employment of M KTV, Tye received his salary from one Tan Ai Ching, the cashier.

The evidence further showed that Tye was working at M KTV for intermittent periods and not for a continuous period. This was because he could remain in Singapore for only the length of his social pass, which was for 14 days at a time. Whenever his social pass expired, he would return to Malaysia to renew his social pass and then come back into Singapore again on the same day to continue his work at M KTV. There were occasions when he would be stopped by the immigration authorities from re-entering Singapore. At such times, he would call James, who was in charge of recording attendance, and inform the latter that he had been refused entry. Subsequently, once he was able to re-enter Singapore, he would return to work at M KTV without having to fill up the form again.

(2) JAMES`S EVIDENCE

James started working at M KTV from 1994 as a waiter. He later became a captain in 1998 and his duties included supervising the staff. He worked under Chew, who was the manager of M KTV. James`s evidence was that only the manager had the authority to employ workers for M KTV. The captains did not have such authority, even though they could interview the applicants first. Before a worker could be employed, the captains must first seek the manager`s permission. James said that Chew was the one who decided on the employment of foreign workers. However, he did not know if there was anyone else other than Chew who had the authority to engage workers. He also did not know if Chew still had the authority to employ workers after the latter was fined in 1997 for charges relating to the illegal employment of foreign workers.

James alluded to an established arrangement which Chew had with regards to the employment of foreign workers such as Tye. When these foreign workers had to return to Malaysia and were not able to return to Singapore immediately, they were required to inform either him or the manager (ie Chew) of the reason. If the reason was due to immigration problems, the worker would be allowed to continue working at M KTV once he regained entry into Singapore. If the foreign worker failed to inform James or Chew that he could not report for work, then the worker would be sacked. It was Chew who decided whether or not to allow the foreign worker to return to work at M KTV. This arrangement existed prior to Tye`s employment and it remained unchanged while Chew was the manager at M KTV. Chew also gave James instructions regarding the medical leave and off-days of the staff. James`s evidence was that these instructions were given both prior to and after Chew`s conviction in 1997.

(3) CHUA`S EVIDENCE

At the material time, Chua was the registered sole proprietor of M KTV. She was also called by the prosecution to give evidence. However, her evidence was contradictory and eventually, turned out to be largely unhelpful. Initially, she testified that she was the `boss` of M KTV and she had employed Chew to manage the lounge, giving him the authority to hire workers for the place. Halfway through her cross-examination, Chua contradicted her earlier testimony to say that she was only the proprietor in name and that it was actually her brother, Chua Tiong Tiong, who was running the business. She had allowed him to use her name as he had a previous conviction and could not register a business. Although she knew that Chew was the manager of M KTV, she did not have any personal knowledge of his job scope and his authority. Hence, she was not able to provide any useful information on whether Chew had the authority to employ workers for M KTV.

It appeared that her subsequent testimony was the truth, as it was verified by the evidence of the other witnesses. Tye said that he did not know who Chua was and had never seen her before. James`s evidence was that he knew that Chua Tiong Tiong was a boss at M KTV as he was handling the matters there. Chew himself confirmed that it was Chua Tiong Tiong who had employed him as the manager of M KTV.

The defence

At the close of the prosecution`s case, the defence made a submission of no case to answer. The judge was satisfied that a prima facie case against Chew had been made out on the evidence and the defence was called.

Chew was the only witness called by the defence. He testified that he had worked at M KTV from February 1994 to August 1998. He was employed as the manager of M KTV and was put in charge of everything. During his employment with M KTV, there was only one manager for the lounge. Chew admitted that initially, he was given the authority to hire and recruit workers for M KTV. However, he denied that he still had such authority at the material time when M KTV employed Tye in 1998.

In 1997, Chew was convicted and fined for abetting in the illegal employment of foreign workers without work permits. Chew claimed that after this incident, sometime in...