Lau Khee Leong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 13 August 2004
• Neutral Citation: [2004] SGHC 175
• Court: High Court (Singapore)
• Year: 2004
• Published date: 19 August 2004
• Plaintiff Counsel: Appellant in person
• Defendant Counsel: Low Cheong Yeow (Deputy Public Prosecutor)
• Subject Matter: Criminal Procedure and Sentencing,Appeal,Findings of fact by trial judge,Approach of appellate court.,Sentencing,Appeals,Whether sentence wrong in law or manifestly excessive.,Immigration,Employment,Foreign worker,Appellant employment agent arranged employment pass applications despite knowing that the application forms contained false information,Whether appellant committed an offence under s 57(1)(k) of the Immigration Act (Cap 133, 1997 Rev Ed) read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed).
• Citation: [2004] SGHC 175

13 August 2004

Yong Pung How CJ:

1 The appellant, Lau Khee Leong, was tried and convicted in the District Court on four charges of abetting the making of false statements in employment pass applications submitted to the Ministry of Manpower (“MOM”). This constituted an offence under s 57(1)(k) of the Immigration Act (Cap 133, 1997 Rev Ed) (“the Act”) read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed), and was punishable under s 57(1)(iv) of the Act. The district judge sentenced the appellant to three weeks’ imprisonment on each charge, and ordered two of the sentences to run consecutively. The appellant appealed against both conviction and sentence. I dismissed both appeals, and now give my reasons.

The background facts

2 At all material times, the appellant was a licensed employment agent and the sole proprietor of Heavenly Employment Agency. Sometime in July and August 2000, the appellant helped to complete and submit to MOM employment pass application forms (“Form 8 EP Applications”) in respect of four nationals from the People’s Republic of China (“the PRC”), namely, Fang Qing Rong (“Fang”), Liu Kong Shou (Liu”), Chen Chun Xiang (“Chen”) and Xue Liang Song (“Xue”). These workers had been invited by MOM to convert their three‑year work permits, which were about to expire, into employment passes, provided that they remained in the employment of their respective local sponsor employers.

3 The Form 8 EP Applications stated that the local sponsor employer for Fang, Liu and Chen was Aquatic World Building Contractors Pte Ltd (“Aquatic”), while that for Xue was Eng Thye Shing Construction Pte Ltd (“ETS”). On the basis of the information and declarations provided in the application forms, MOM issued employment passes to the four foreign workers. However, it later transpired that the workers had never been employed by Aquatic or ETS but had been freelancing, and that they continued to work for various other construction companies after obtaining the employment passes.

4 The appellant was subsequently charged with abetting three of the workers (Fang, Liu, Chen) and the director of ETS, one Teh Char Lay (in respect of Xue’s employment pass application), in providing false statements in the Form 8 EP Applications. The charges against the appellant read:

The first charge

[T]hat you on or about 28.08.2000, did abet one Teh Char Lay … in the commission of the offence of making a false statement in an Application for an Employment Pass “Form 8” received by the Employment Pass Department on 28.08.2000, to obtain an Employment Pass for one Xue Liang Song; … to wit, you intentionally aided the said Teh Char Lay to arrange the said Form 8 application wherein was stated that the said Xue Liang Song would be employed by Eng Thye Shing Construction Pte Ltd …, a statement which you knew to be false, and on the basis of this false statement, an Employment Pass was issued to the foreigner on 14.10.2000, and which offence was committed in consequence of your abetment, and you have thereby committed an offence under Section 57(1)(k) of the Immigration Act (Cap 133) read with Section 109 of the Penal Code (Cap 224), punishable under Section 57(1)(iv) of the Immigration Act (Cap 133).

The second charge

[T]hat you on or about 20.07.2000, did abet one Fang Qing Rong … in the commission of the offence of making a false statement in an Application for an Employment Pass “Form 8” received by the Employment Pass Department on 20.07.2000, to obtain an Employment Pass for him; to wit, you intentionally aided the said Fang Qing Rong to arrange the said Form 8 application wherein was stated that he would be employed by Aquatic World Building Contractors Pte Ltd …, a statement which you knew to be false, and on the basis of this false statement, an Employment pass was issued to the foreigner on 22.08.2000, and which offence was committed in consequence of your abetment, and you have thereby committed an offence under Section 57(1)(k) of the Immigration Act (Cap 133) read with Section 109 of the Penal Code (Cap 224), punishable under Section 57(1)(iv) of the Immigration Act (Cap 133).

The third and fourth charges were the same as the second charge in all material aspects, except that they related to the employment passes for Liu and Chen respectively.

The case for the Prosecution

5 It was not disputed that the workers did not work for Aquatic or ETS during the time they held the work permits and the employment passes. They sought their own employment and held no permanent jobs.

6 Consequently, the Prosecution’s case was essentially this: that the appellant was fully aware, at the time he assisted the three workers and the director of ETS in filling up and submitting the Form 8 EP Applications, that the sponsoring companies would not actually be employing the workers.

Evidence of the foreign workers

7 The Prosecution principally relied on the evidence of Fang, Chen, Liu and Xue to establish its case. On the whole, their evidence was essentially the same, except for some minor details that were peculiar to each witness. Conditioned statements of the four workers were admitted as evidence (Exhibits “PS 1” to “PS 4”) under s 371 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”).

8 The workers testified that they were all on three‑year work permits from 1997 to 2000. Fang, Chen and Liu held work permits to work for Aquatic, while Xue held a work permit to work for ETS.

9 In mid-1997, they were introduced to an employment agent, one Li Yu Pei (“Li”). Li approached them individually and offered to help them change their respective employers after the expiry of their first work permits in 1997. All four agreed, as they hoped to find better-paying jobs. Li told them that they could seek employment for themselves after the work permits were approved. In exchange for arranging their work permit applications, the workers agreed to pay Li “application fees” for the period that they held the work permits. Fang agreed to pay Li $7,000, while Chen and Liu both agreed to pay $4,500. In addition, Chen and Liu also promised to pay Li “management fees” of $150 per month. Xue also testified to paying a certain sum of money to Li as “management fees” every six months, but he could not recall the exact amount he paid each time.

10 Sometime in 1998, the workers learned that Li had passed away, leaving his widow behind. One or two months later, the appellant contacted the workers and asked them to go to his office. Chen and Liu went to the appellant’s office together, while Fang and Xue met the appellant on separate occasions.

11 The appellant introduced himself as Li’s partner and the real agent behind Li. He informed the workers that from then onwards they were under his charge, and instructed them to pay him any outstanding agency fees owed to Li. Fang, Liu and Chen believed the appellant and agreed to the arrangement as the appellant knew Li’s name, had their contact numbers, and knew exactly how much they still owed Li.

12 Before the expiry of their work permits in 2000, the appellant met up with the workers to discuss the converting of their work permits to three‑year employment passes. He offered to arrange their employment pass applications for a fee. He asked Fang, Chen and Liu to pay $6,500 each, and also requested them to pay a further $1,000 to $1,100 to extend the expiry date of their passports. Xue was asked to pay $10,000, which sum included the application fee, the fee for the renewal of his passport and management fees. The workers agreed to this arrangement, as they believed that the appellant could otherwise cancel their employment documents and send them back to the PRC. At the meeting, the appellant told the workers that they could continue to seek employment on their own.

13 The appellant presented each worker with a Form 8 EP Application to sign. The appellant helped to fill in their particulars in the forms, as the workers were not conversant with the English language. Fang noticed that the declaration and covenant by the local sponsor under Pt X and Pt IX had already been signed. Subsequently, the workers received their employment passes.

14 The workers were unequivocal in their evidence that the appellant never informed them that it was illegal for them to work for companies other than the local sponsor employer stated on their employment passes. Furthermore, the appellant knew that they were not working for Aquatic and ETS, but were freelancing for various other companies. They were certain of this, as all of them had contacted the appellant on at least one occasion to seek his assistance in finding employment. Once, Fang asked the appellant if he could work for Aquatic, his official employer. He had hoped to work for Aquatic as his then employer was not paying him. However, the appellant informed him that there was no job for him there. Hence, Fang continued to look for employment on his own. The appellant also told Xue that the employers he knew of only paid low salaries.

15 The appellant also helped Chen and Liu to write at least one letter of recommendation each, to potential employers. Chen was even charged $20 for each letter prepared under the Aquatic letterhead. Occasionally, the appellant would also provide them with telephone numbers of prospective employers for them to approach when they could not find any work on their own. However, the appellant specifically informed Chen not to look for the boss of Aquatic for employment, as the boss was an Indian, and Chen would face problems communicating with him. Based on the above factors, the workers were confident that the appellant knew that they were seeking employment on their own prior to their making their employment pass applications.

16 In 2001, Fang, Chen and Liu were notified by the appellant that their employment passes had been cancelled by the boss of Aquatic, one A Francis Xavier a/l Arokiasamy (“Francis”). Subsequently, the...