Lee Boon Leong Joseph v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 12 November 1996
• Neutral Citation: [1996] SGHC 261
• Docket Number: Magistrate's Appeal No 173 of 1995
• Date: 12 November 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Lim Kia Tong (Lim Kia Tong & Partners)
• Citation: [1996] SGHC 261
• Defendant Counsel: Malcolm BH Tan (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Whether giving 'shelter' proven,Employment,Presumption of employment -Whether employment proven,ss 57(1)(d) & (7) Immigration Act (Cap 133),Illegal immigrant,Presumption of harbouring,s 57(1)(e) Immigration Act (Cap 133),Immigration,Harbouring

Background

The appellant was charged with two counts of employing immigration offenders and two counts of harbouring the same under ss 57(1)(e) and (d) of the Immigration Act (Cap 133) (the Act) respectively and punishable under s 57(1)(ii) thereof. The district judge convicted him of all four charges and sentenced him to six months` imprisonment on each charge, two sentences of which were to run consecutively as required under s 18 of the Criminal Procedure Code (Cap 68).

The facts

The appellant was the company director and operations manager of OCTO-JET Building Maintenance Services Pte Ltd. OCTO-JET entered into contracts with the management of commercial buildings to provide cleaning services. Two such contracts were with the management of IMM Building in Jurong East and Prime Supermarket which was located within Ginza Plaza.

The Immigration Department conducted a raid on the premises of Ginza Plaza and arrested two Indian nationals, PW6 and PW7, who were at that time performing cleaning work at Prime Supermarket. PW6 and PW7 were subsequently convicted under s 15(1) of the Act for overstaying their visitor passes.

At the time of arrest, PW7 could not produce any satisfactory documentation. He led the immigration officers to IMM Building and a store room located there at the fifth level. He retrieved from a bag in that store room an Indian passport which turned out to be a forgery. For present purposes, the significance of this episode is that the prosecution`s case is that the appellant had harboured the workers in that storeroom.

The decision below

The district judge held that the presumptions in both ss 57(7) and (8) had been raised. He therefore proceeded to determine whether the appellant had rebutted the presumptions on a balance of probabilities.

Employment

In relation to the charges relating to employment, the district judge rejected the contention that the appellant did not employ the two workers.

PW4, the manager of Prime Supermarket at Ginza Plaza, testified that PW6 worked at the supermarket every day with an Eurasian worker named Bell. Bell did not work on Wednesdays and it was then that PW7 would fill his place. The raid having taken place on a Wednesday, both workers were found at the supermarket. On other days, according to PW7, he would work at the IMM Building Exhibition Hall.

According to PW6, the appellant paid him $900-$1,000 per month directly. This was at the rate of $35 per day. The appellant would also visit him in the storeroom, which he had been permitted to sleep in, from time to time in order to pass him instructions about work or to pass him money.

PW7 had worked for the appellant previously in September 1993. He was introduced to the appellant through one Samy. He stopped working but through Samy, managed to regain employment with the appellant on 5 May 1994. PW7 received his pay from Samy but he would obtain advances from the appellant when he requested it from time to time. These would be deducted from his pay by Samy.

The appellant contended that the workers` true employer was a company named AG Muthusamy Bros Construction Pte Ltd. He argued that he did not see the need to go through the expense of employing permanent staff and looked to the subcontractor to provide workers as and when he required them. The district judge noted that PW8 in the course of his investigations found that AG Muthusamy Bros had ceased operations in 1988 and was no longer to be found at the given address in the Registry of Companies.

As to the payments to PW7, the appellant contended that these payments were made as advances on the worker`s salary; they were made because he was in need of cash and not because it represented his salary which he was to receive from Samy. The district judge rejected this explanation. If anything, it was Samy who was paying PW7 on the appellant`s behalf. In relation to PW6, the appellant agreed that he paid the worker his salary based on the rate of $35 per day but said that, over and above this sum, he also paid AG Muthusamy Bros a monthly sum of $300. If he were the employer of the workers, there was no need for him to make this regular payment to the subcontractor.

The appellant`s testimony was that he would pay the labour supplier direct at the end of the month. AG Muthusamy Bros would charge him $40 per cleaner per day. Exhibit P5 comprised of monthly invoices presented to OCTO JET by AG Muthusamy Bros in respect of manpower supplied by the latter. As regards PW6, the defence produced further invoices in exh D2 which related, inter alia, to the appellant`s cleaning contract at Sparks Discotheque at Ngee Ann City Building, Orchard Road. These invoices included the entry `Additional Manpower Supply` for which a sum of $300 was claimed from the appellant by AG Muthusamy Bros. This corresponded with the appellant`s testimony that he paid $300 over and above what he paid to PW6 directly.

In the segment of his grounds entitled `The Close of Prosecution Case`, the trial judge held that it was more accurate to say that Samy was paying PW7 on the appellant`s behalf. Furthermore, PW7 received instructions from the appellant who kept strict attendance records of the workers. Just because Samy paid the salary of PW7 did not make him an employer nor prevent the appellant from being one. In relation to PW6, the judge said that he had dealings only with the appellant and received his salary from him.

In the subsequent segment of his grounds entitled `Evaluation of the Case` which follows the segment on the `Defence Case`, the district judge stated his conclusions on the evidence, including those adduced by the defence. However, he did not re-examine the question of employment. Instead, that last segment proceeded on the assumption that the appellant was the employer and went straight into the question of whether the appellant, as an employer, had discharged his obligation under the law to check the status of those he employed, as required under the Act. It is true that, in so doing, the district judge must have implicitly rejected the defence version of the facts and held that the presumption of employment, which he thought had been triggered on these facts, had not been rebutted. However, I think it would have been helpful, especially for an appellate court, if a trial judge below, in the concluding segment of his written grounds, had expressly said why he chose to believe the prosecution`s case over the defence`s.

Harbouring

The district judge relied on the testimonies of PW6 and PW7 that the appellant had given them permission to sleep in the store room. The senior immigration officer who accompanied the appellant to the store room at the IMM Building on the day after the arrest of the two workers had also observed that the storeroom could accommodate three to four persons and that there were a few pieces of clothing hanging in the store room. The prosecution also called as a witness the general manager of the company providing security services to the IMM building, PW9. He testified that his guards had not reported to him that any cleaners had been allowed to remain in the building overnight. He also said that there were no complaints of anybody sleeping in the carpark.

The appellant contended that, although he had given the workers a key to the store room, that was to give them access to the cleaning equipment kept there and not for them to use the room as accommodation. The defence also produced two witnesses, DW2 and DW3, who were security guards distinct from those under PW9`s charge separately employed to guard over a number of Toyota cars parked in the IMM carpark. They testified that the two workers had slept in their rest area in the carpark and had on occasion dined with them there.

The district judge rejected the version of facts offered by the defence. He found that, as overstayers liable to be punished with imprisonment and caning, PW6 and PW7 had too much to lose by sleeping in the open where they could easily be caught. The security personnel would begin locking the building from 10.30pm and would complete this task by about midnight and `arm` the alarm system as well. The workers stopped work at 10pm at both Ginza Plaza and IMM Building. It was possible for them to return to the IMM Building before it was totally locked and the alarm system `armed`.

Knowledge

The offences could not be made out if the appellant did not know that the workers were illegal immigrants. The district judge held that the presumption of knowledge had been raised in relation to the respective charges by virtue of ss 57(8) and (9) and that the appellant had failed to rebut the presumption. He had failed to check their employment status against the employers stated in the work permits they produced. He had also failed to check their passports. He had therefore not exercised due diligence and deliberately shut his eyes to the obvious.

The appeal

Counsel for the appellant raised three main issues before me. First, he argued that the presumption of employment had been rebutted on the facts. Secondly, he contended that the presumption of harbouring in s 57(7) had not been triggered on the facts. Alternatively, he argued that it had been rebutted if indeed it had been triggered.

The presumption of employment

Admittedly, counsel did not focus on this issue and approached his task by seeking to show that the presumption had been rebutted. However, it was an issue that troubled me somewhat as I perused the grounds of decision of the court below as well as the record. Section 57(8) of the Act reads:

Where a person who has acted in contravention of section 6, 15 or 36 of the regulations is found at any premises or place, other than premises used solely for residential purposes, and is in possession of any tools or implements or engaged in any activity which may give rise to the inference that he is doing any work, the occupier of the premises or place shall be presumed, until the

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