Lim Gim Chong and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 01 February 1994
• Neutral Citation: [1994] SGHC 26
• Date: 01 February 1994
• Subject Matter: Harbouring,Illegal foreign worker,Immigration,Whether statutory presumption operates if defendant began giving shelter to overstayer before the expiry of social visit pass,Whether evidence of negligence sufficient to rebut presumption,Presumption of knowledge of overstaying,s 57(1)(d) & (7) Immigration Act (Cap 133)
• Docket Number: Magistrate's Appeal No 361 of 1993
• Published date: 19 September 2003
• Defendant Counsel: Kamala Ponnampalam (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Robert Yu (Low & Robert Yu)

Cur Adv Vult

The two appellants were charged with having, between 28 September 1991 and 31 January 1992, at the factory premises of Sun Tech Engineering Pte Ltd at 18 Penjuru Road, Singapore, in the furtherance of the common intention of them both, harboured three Indian nationals who had unlawfully overstayed in Singapore following the expiry of their social visit passes; and having thereby committed offences under s 57(1)(d) of the Immigration Act (Cap 133) (`the Act`), punishable under s 57(1)(ii) of the Act read with s 34 of the Penal Code (Cap 224). They were convicted of the charges against them and each was sentenced to 14 months` imprisonment. They now appeal against their convictions.

The facts

The facts of the case are essentially as follows. The three Indian nationals whom the appellants were convicted of having harboured illegally were: Thuraimanickam Ayyappan, Mariyappathevar Subramaniam and Veerasamy Thavasimuthu. At the material time, the first appellant was employed as production supervisor in the production department of Sun Tech Engineering Pte Ltd (`Sun Tech`) at 18 Penjuru Road, while the second appellant was employed as project and administration manager by Sun Tech. The second appellant admitted in a statement made to immigration officials on 17 February 1992 that his responsibilities included the employment of workers for Sun Tech, but stated that he also authorized the first appellant to interview workers when he himself was not available.

On 24 September 1991, the first appellant was approached by one `Rajah`, later ascertained to be Thuraimanickam Ayyappan, as well as another Indian man, both of whom were looking for jobs with Sun Tech. Ayyappan informed the first appellant that he was a Malaysian and that he had a work permit; although when asked to show this to the first appellant, he claimed that he had not brought it with him. The first appellant told the two men to return the following day with their work permits. He also proceeded to seek and obtain approval from the second appellant to employ the two men. In giving approval the second appellant added that this was on the condition that both men held work permits.

On 25 September 1991, Ayyappan returned to Sun Tech with Mariyappathevar Subramaniam. They were both told by the first appellant that they had been accepted for employment. Upon being asked by the first appellant for their work permits, passports and identity cards, they answered that they had forgotten to bring these documents. The first appellant then wrote down their names and identity card numbers on a piece of paper which he handed to the accounts clerk for record purposes. He did ask Ayyappan again a few days later for the work permits and passports of both men but once more Ayyappan replied that they had forgotten to bring them.

At about the same time, Ayyappan approached the first appellant with a request for accommodation for both himself and Subramaniam. The first appellant relayed this request to the second appellant and, upon receiving his approval, allowed both men to take up accommodation at the factory premises of Sun Tech in Penjuru Road. Another request was made by Ayyappan two days later, this time for the provision of mattresses. Again, the first appellant sought the second appellant`s permission before granting the request. In the meantime, he asked the two men again for their work permits and passports, only to be told again by them that they had forgotten to bring them.

Sometime in early October 1991, Ayyappan brought Veerasamy Thavasimuthu to see the first appellant after the first appellant had asked him to recommend another Malaysian worker with a work permit. Ayyappan informed the first appellant that Thavasimuthu had forgotten to bring the work permit with him and that he himself had not brought his own permit either. The first appellant took down Thavasimuthu`s particulars on a piece of paper which was passed on to the accounts clerk for record purposes. At the same time, the first appellant told the second appellant about Thavasimuthu and requested approval of his employment, which the second appellant duly gave. It appears that thereafter Thavasimuthu too stayed at the factory premises of Sun Tech where Ayyappan and Subramaniam were being accommodated.

Needless to say, none of the three Indian men actually possessed valid work permits. They held only social visit passes. It is important to note the dates on which their respective passes expired. Ayyappan`s social visit pass expired on 27 September 1991; Subramaniam`s pass expired on 14 October 1991; and Thavasimuthu`s pass expired on 6 October 1991. It is also important to note that throughout the period of their stay at the Sun Tech factory premises, none of them produced valid work permits to show the first and second appellants. The first appellant testified that he made some 10 to 15 requests for the work permits of these three men but that he was told time and again that they had forgotten to bring the permits with them.

On 12 November 1991, the first appellant was sent by Sun Tech to Batu Pahat, Malaysia, to assist in the assembling of a conveyor system there. He did not return to Singapore until 29 January 1992. There is no dispute however that throughout that entire period the three Indian men were staying at the Sun Tech factory premises in Penjuru Road. In fact, this was where they were arrested by immigration officials on 31 January 1992.

In the court below the learned district judge held that s 57(7) of the Act was capable of being invoked. Section 57(7) reads:

Where in any proceedings for an offence under subsection (1)(d) it is proved that the defendant has given shelter to any person who has remained in Singapore unlawfully for a period exceeding 90 days after the expiration of any pass issued to him or who has entered Singapore in contravention of section 5(1) or 6(1), it shall be presumed, until the contrary is proved, that the defendant has harboured him knowing him to be a person who has acted in contravention of the provisions of this Act or the regulations.

The district judge went on to hold that in the case of the first and second appellants, the...