Loh Kim Lan and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 03 January 2001
• Date: 03 January 2001
• Docket Number: Magistrate's Appeals Nos 197 and Criminal Motion No 21 of 2000
• Court: High Court (Singapore)

Loh Kim Lan and another

Plaintiff

and

Public Prosecutor

Defendant

[2001] SGHC 3

Yong Pung How CJ

Magistrate's Appeals Nos 197 and 207 of 2000 and Criminal Motion No 21 of 2000

High Court

Criminal Procedure and Sentencing–Appeal–Adducing fresh evidence–Whether fresh evidence previously unavailable–Whether fresh evidence relevant–Criminal Procedure and Sentencing–Identification parade–Failure to conduct identification parade–Whether probative value of identification evidence adversely affected–Whether identification evidence of good quality–Whether accused correctly identified–Immigration–Employment–Illegal foreign worker–Abetment of employment of immigration offender by intentional aiding–Whether accused knowingly aided employment of immigration offender–Immigration–Employment–Illegal foreign worker–Presumption of employment and knowledge–Whether presumptions rebutted–Section 57 (8) Immigration Act (Cap 133, 1997 Rev Ed)–Words and Phrases–“Employ”–Section 2 Immigration Act (Cap 133, 1997 Rev Ed)

The first appellant was charged with abetting, by intentionally aiding, the second appellant company in the employment of an immigration offender under s 57 (1) (e) of the Immigration Act (Cap 133, 1997 Rev Ed) (“the Act”) read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed). The second appellant was charged with the principal offence of employing the immigration offender, one “Ling”. The first appellant worked as a part-time cashier-cum-mamasan in a nightclub owned by the second appellant. Ling was arrested in a police raid of the second appellant's nightclub. Ling, a People's Republic of China national, was convicted of illegal entry into Singapore. Ling testified for the Prosecution that she had visited the nightclub the night before her arrest, hoping to obtain work as a hostess. She was approached by the first appellant who, after asking Ling if she wanted to work, led her into a karaoke room and gestured her to sit beside one of the male patrons. Ling's evidence was corroborated by one “Ghor”, a patron at the nightclub. Ghor testified that the first appellant had brought Ling to serve as a hostess in his karaoke room. Both Ling and Ghor identified the first appellant in court but no proper identification parade had been carried out previously with either of the witnesses. At the conclusion of the trial, both the appellants were found guilty and convicted as charged. They appealed. The first appellant argued that she had been mistakenly identified by Ling and Ghor and she applied by way of motion to adduce fresh evidence in the form of copies of the front and back of her National Registration Identity Card to dispute the identification evidence given by Ling. It was further contended that the first appellant did not know and had no reason to believe that Ling was an immigration offender. The second appellant sought to argue that it did not employ Ling.

Held, dismissing the criminal motion and both appeals:

(1) There was no basis for the first appellant's argument that she had been mistakenly identified. Although no identification parade was carried out, the first appellant had clearly been identified by Ling and Ghor. While failure to conduct an identification parade might in certain circumstances render the identification evidence of the eyewitness suspect, not every failure adversely affected the probative value of an eyewitness' evidence. Ultimately, the important question was whether the identification evidence was of good quality, given the circumstances in which the identification took place. On the facts, the testimonies of Ling and Ghor were generally consistent and any discrepancy was minor and of little consequence. There was no reason to disturb the trial judge's finding that the first appellant had been properly identified: at [29].

(2) The motion to adduce fresh evidence on appeal was rejected as the evidence failed to satisfy the test of unavailability and relevance: at [31].

(3) The Prosecution had proved beyond reasonable doubt that the first appellant knowingly abetted the employment of an immigration offender. The actions of the first appellant clearly showed a dominant intention on her part to aid or to facilitate the second appellant in engaging the services of Ling as a hostess. Further, the first appellant must have known or had deliberately shut her eyes to the patent fact that Ling was an immigration offender. The first appellant should have carried out the necessary checks on Ling's status before offering work to her. A bare assertion of ignorance alone was not sufficient to excuse the first appellant's conduct: at [35] to [37].

(4) Under the new definition of “employ” in s 2 of the Act, the Prosecution need not prove the existence of a formal contract of service nor any payment before the employer could be charged under s 57 (1) (e). On the facts, there was no doubt that Ling's relationship with the second appellant more than amply satisfied the applicable definition of “employ”: at [40].

(5) In any event, as Ling was within the second appellant's premises at the time of her arrest, the presumptions of both employment and knowledge under s 57 (8) of the Act were triggered and the burden shifted to the second appellant to show that it did not employ Ling and that it did not know she was an immigration offender. The fact of employment was clearly irrefutable and the second appellant failed to rebut the presumption of knowledge: at [41].

Awtar Singh s/o Margar Singh v PP [2000] 2 SLR (R) 435; [2000] 3 SLR 439 (refd)

Heng Aik Ren Thomas v PP [1998] 3 SLR (R) 142; [1998] 3 SLR 465 (folld)

Juma'at bin Samad v PP [1993] 2 SLR (R) 327; [1993] 3 SLR 338 (folld)

Ladd v Marshall [1954] 3 All ER 745 (folld)

Mohamed Lukman bin Amoo v PP [1999] 3 SLR (R) 321; [1999] 4 SLR 292 (refd)

PP v Datuk Tan Cheng Swee [1979] 1 MLJ 166 (refd)

R v Turnbull [1977] QB 224 (refd)

Tamilkodi s/o Pompayan v PP [1999] 1 SLR (R) 227; [1999] 1 SLR 702 (refd)

Employment of Foreign Workers Act (Cap 91A, 1997 Rev Ed) s 5 (8) (a)

Immigration Act (Cap 133, 1997 Rev Ed) s 2, 57 (8) (consd);ss 6 (1) (c), 57 (1) (e), 57 (2A), 57 (9)

Penal Code (Cap 224, 1985 Rev Ed) ss 107 (c), 109

Wee Pan Lee (Wee, Tay & Lim) for the appellants

Lee Sing Lit and Toh Yung Cheong (Deputy Public Prosecutors) for the respondent.

Yong Pung How CJ

1 The first appellant was charged with abetting, by intentionally aiding, the second appellant in the employment of an immigration offender under s 57 (1) (e) of the Immigration Act (Cap 133) (“the Act”) read with s 109 of the Penal Code (Cap 224), while the second appellant was charged with the principal offence of employing an immigration offender. At the end of the trial, both appellants were convicted. The trial judge sentenced the first appellant to seven months' imprisonment and ordered the second appellant to pay a fine of $100,000. I dismissed both appellants' appeals against their convictions and affirmed the sentences imposed. I now give my reasons.

The background facts

2 The first appellant worked as a part-time cashier-cum-mamasan in the second appellant company. The second appellant was at all material times the occupier of the premises located at 116 Middle Road #01-01-04, which premises were known as the Golden Crystal Nightclub (“the Nightclub”).

3 At or around 12.57am on the morning of 5 September 1999, a party of police officers from the Central Police Division conducted a raid on the second appellant's premises. One Ling Hui Wen (PW1) (“Ling”), a female People's Republic of China (“PRC”) national, was arrested during the raid.

4 On 13 September 1999, Ling was convicted under s 6 (1) (c)of the Act for illegal entry into Singapore. She was sentenced to one month's imprisonment and fined a sum of $2,000. At the time of the hearing of the trial of this case, Ling had finished serving her sentence and was waiting to return home to the PRC.

The Prosecution's case

5 Ling gave evidence that she entered Singapore illegally by boat on 1 September 1999. One “Xiao Ming”, a PRC national, had arranged for her entry. When she arrived, he gave her a name card bearing the name and address of the Nightclub and told her that she could work there as a hostess and earn the tips which the customers gave.

6 On 3 September 1999, Ling visited the Nightclub's premises at Middle Road to see if there was business. She did not speak with anyone there on this occasion.

7 The next day on 4 September 1999, Ling went to the Nightclub again at around 11.30pm. Upon entering the premises, she was approached by the first appellant who asked her if she wanted to work. When she replied in the affirmative, the first appellant led her into one of the karaoke rooms in the Nightclub and gestured for her to sit beside one of the male patrons.

8 Throughout the next two hours or so, the first appellant returned to the room at least twice. Each time, she would sit and chat with the customers for at least five to ten minutes before leaving the room.

9 In court, Ling positively identified the first appellant as the person who had asked her whether or not she wanted to work and who had brought her into the karaoke room on the night in question. She admitted however that she had not seen the first appellant since the time of her (Ling's) arrest on 5 September 1999. Thus, at no time between then and the commencement of the trial on 7 April 2000 did Ling see the first appellant again. She further testified that no identification...