Kuek Ah Lek v Public Prosecutor

JudgeYong Pung How CJ
Judgment Date31 July 1995
Neutral Citation[1995] SGHC 184
Citation[1995] SGHC 184
Defendant CounselLow Cheong Yeow (Deputy Public Prosecutor)
Published date19 September 2003
Plaintiff CounselJason Peter Dendroff (Yap Chee Leong & Pnrs)
Date31 July 1995
Docket NumberMagistrate's Appeal No 286/94/01
CourtHigh Court (Singapore)
Subject MatterWhether claming trial tantamount to aggravating circumstance,Employer checked worker's work permit but not his passport,Whether sufficient evidence to show that appellant harboured overstayer,ss 57(1), (9) & (10) Immigration Act (Cap 133),Sentencing,Standard of due diligence required,Effect of amendments to Act which came into operation after worker was employed,Whether duty discharged for period after amendments came into force,Whether duty of due diligence discharged for period of employment before amendments came into force,Overstayer sleeping at appellant's construction site,s 57(1)(d) Immigration Act (Cap 133),Principles,Illegal foreign worker,Employment,- Employing,Harbouring,art 11(1) Constitution of the Republic of Singapore (1992 Ed),Immigration,Criminal Procedure and Sentencing,Whether sentence excessive,First-time offender

The appellant was convicted by the district court on two charges. The amended first charge was as follows:

You, Kuek Ah Lek @ Kuek Yong Lek ... are charged that you, between November 1993 and 22 June 1994 at the proposed erection of a pair of two-storey semidetached houses located at the junction of Toh Avenue and Upper Changi Road, Singapore, did employ one Rengasamy Kannadasan ..., an Indian national, as a general worker, being a person who had overstayed on his visit pass in contravention of s 15(1) of the Immigration Act (Cap 133) and you have thereby committed an offence under s 57(1)(e), punishable under s 57(1)(ii) of the said Act.



The second charge read as follows:

You, Kuek Ah Lek @ Kuek Yong Lek ... are charged that you, between February 1994 [sic] at the proposed erection of a pair of two-storey semidetached house located at the junction of Toh Avenue and Upper Changi Road Singapore, did harbour one Indian national, namely Rengasamy Kannadasan ... being a holder of a social visit pass and who has acted in contravention of s 15(1) of the Immigration Act (Cap 133), by remaining in Singapore after the expiry of the visit pass, and you have thereby committed an offence under s 57(1)(d), punishable under s 57(1)(ii) of the Immigration Act (Cap 133).



The prosecution case

The prosecution`s case was that on 22 June 1994, at about 9.45 to 9.55am, a party of officers from the Immigration Department conducted a check for overstayers at the worksite of a pair of semidetached houses at Toh Avenue (the worksite). Five workers were detained. The workers identified the appellant as their employer. One of the officers paged for the appellant, who returned the call. The appellant was told to go to the worksite. He arrived there at about 10.30am. Three of the workers were subsequently ascertained to be valid work permit holders and a fourth was a Singapore citizen. The fifth identified himself as Selvanathan Thirunavukkarasu. The identity of this fifth worker was later ascertained from his passport to be Rengasamy Kannadasan (Kannadasan).

The appellant was arrested and escorted to his office at Tan Quee Lan Street.
Payment vouchers and work cards relating to Kannadasan were seized. Senior Immigration Officer Png Eng Hock`s (SIO Png) conditioned statement was admitted in court. His evidence was that he approached Kannadasan, who was standing near a heap of sand and cement. Kannadasan gave his name as Selvanathan Thirunavukkarasu. However, he produced a green work permit (P11) under the name of Sethu Sangilimuthu. Kannadasan admitted that he was overstaying. He was arrested.

This was corroborated by Sub-Inspector Savinder Singh (SI Savinder).
SI Savinder also gave evidence that on that afternoon, he and Senior Immigration Officer Wong Kong Wa escorted Kannadasan back to the worksite. Kannadasan`s passport was retrieved from the second floor of the uncompleted building. It was kept in a bag. The name on the passport was Rengasamy Kannadasan. Kannadasan said that the passport was his. According to the passport, Kannadasan entered Singapore on 10 November 1992. He was granted a 14-day social visit pass. He had been overstaying in Singapore since 25 November 1992.

Joseph Yeo, a records officer at the Ministry of Labour, gave evidence that a work permit was issued to Sethu Sangilimuthu.
The photograph on P11 was not the same as that on the application form for the work permit. The work permit was not issued to Kannadasan. According to the records at the Ministry, no work permit was issued to Kannadasan. As far as he knew, the actual work permit was still with the real holder.

The main prosecution witness was Kannadasan.
He gave evidence that after arriving at Changi Airport on 10 November 1992, he went to Tekka Market. He was told that was where all the Indians would be and that he would be able to get employment. Ten days after arriving in Singapore, he managed to get employment. He worked at different places under different employers, often for only two to three days. Kannadasan was approached by the appellant when he was at a site in Geylang. The appellant asked Kannadasan if he would work. Kannadasan said he would and the appellant took him to the worksite at Toh Avenue. Kannadasan was paid $35 per day at the worksite. His job was to mix cement and to do other general work. Kannadasan said that he was paid by the appellant. Whenever the appellant paid him, he had to sign a receipt. These are the payment vouchers produced in court. The appellant called him Muthu. This was because he told the appellant that his name was Muthu. He had never shown anyone his passport before.

Kannadasan told the court that throughout the period from the end of 1993 till 22 June 1994 he stayed at the worksite.
The appellant permitted and told him to stay there. Originally he stayed in a container at the worksite. Subsequently the appellant told them to destroy the container. They then slept in the building. The appellant told him in English `You sleep there.` This was either in February or March.

Kannadasan said that the name on P11 was not his, but the photograph was.
He had previously bought P11 for $10 from an Indian national at Tekka. He obtained it before working at Toh Avenue. He had never shown anyone P11 except the appellant. The appellant saw P11 on an occasion when he was keeping his wages in his purse. He had taken the card out. The appellant saw P11 and asked for it. After viewing both sides of P11, the appellant returned it to him. The appellant did not say anything.

Kannadasan explained that he had first given his name as Selvanathan Thirunavukkarasu because he had been told by an Indian national named Rajah, that if he did that, he would get a lighter sentence.
When the officers from the Immigration Department asked where his passport was, he led them to the place where he kept it.

Under cross-examination, Kannadasan told the court that before he went to the worksite at Toh Avenue, when he was working at various diverse places, his employers would pay him different wages.
Sometimes he was paid $30 a day, and sometimes $20. He had previously worked for some 30 employers. He was always paid in cash and those employers did not ask him to sign any payment vouchers. These employers never asked for his work permit and he never showed them. If the employers asked him to work for four to five days, they would ask him to stay at the site.

Some of the employers knew that Kannadasan was an overstayer and an illegal worker.
They would tell him that he had no work permit. They would say that there are many people from India at Tekka. Therefore, they would only pay him $20. If he asked for more, they said that they would get someone else. Nobody paid him more than $30 except the appellant. He denied that he asked to be paid $35 per day. He also denied that the appellant told him that out of the $35, $20 was for his wages, $14 was for the foreign worker levy and $1 was for his income tax. He denied that the appellant saw P11 on the day he was taken to Toh Avenue. He maintained that the appellant only saw P11 on that one occasion when he took it out. That was about two weeks after he started work.

Kannadasan told the court that the appellant did not ask to see his passport.
He would have shown the appellant his passport if he had asked for it. If the appellant had then asked him to leave, he would do so. He told the appellant his name was S Muthu because the name on P11 was Sethu Sangilimuthu. He did not tell the appellant that his passport was with his agent and that his agent was in India. The appellant used to bring Kannadasan and the other workers food. Kannadasan agreed that it was a bonus or a gesture of the appellant`s appreciation for their work. The appellant would also buy them drinks every day. Kannadasan agreed that, when he was arrested, he was once placed in the same room as the appellant. The appellant had confronted him and said `Muthu, you have cheated me.` He did not say anything in reply. He did not know why the appellant had confronted him in that manner.

The investigating officer, Lim Peng Siah (Lim) testified that the contractor at the Toh Avenue worksite was Guan Seng Construction Pte Ltd (Guan Seng).
The appellant was a director of Guan Seng. The appellant had told him that he was in charge of the operation of Guan Seng. The other director, his wife, only dealt with administrative matters.

Lim told the court that the appellant had told him that he did not know that Kannadasan had overstayed in Singapore.
The appellant also told him that Kannadasan had showed him a green work permit and told the appellant that it was a valid work permit. The appellant said he believed Kannadasan. The appellant said that he had asked Kannadasan for his passport and Kannadasan had told him that it was with his agent. The appellant mentioned that he had asked Kannadasan on several occasions. Lim also gave evidence that Kannadasan had told him that he was paid $35 a day. Kannadasan had told him that he had shown the appellant his green card. However, Kannadasan had said then that he showed it to the appellant on the second day that he was employed.

The defence case

The appellant gave evidence that he had never previously engaged illegal workers. He paid his Thai workers $16 per day, increasing to $17 per day in the second year they were employed. These were workers with valid work permits. His company kept proper documents and accounts.

On the day he went to Geylang, he had gone to see a friend.
It was about 7am. It was his friend`s site. The appellant had some miscellaneous work to do in Geylang, so he dropped by the site and visited his friend. There, he met Kannadasan, who had just woken up. The appellant asked Kannadasan if he was interested in working for him. He also asked Kannadasan if he had a work permit. Kannadasan said `yes` and followed the appellant to his pick-up. The appellant asked for Kannadasan`s...

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