Loo See Mei v PP

• Jurisdiction: Singapore
• Judgment Date: 26 February 2004
• Date: 26 February 2004
• Docket Number: Magistrate's Appeal No 120 of 2003
• Court: High Court (Singapore)

Loo See Mei

Plaintiff

and

Public Prosecutor

Defendant

[2004] SGHC 42

Yong Pung How CJ

Magistrate's Appeal No 120 of 2003

High Court

Evidence–Witnesses–Corroboration–Whether necessary–Evidence–Witnesses–Examination–Failure to call certain witnesses–Whether court should draw adverse inference against Prosecution and appellant–Evidence–Witnesses–Impeaching witnesses' credibility–Standard of proof required of Prosecution to prove prosecution witness had no reason to falsely implicate accused–Immigration–Harbouring–Overstayer–When to invoke presumption of mens rea–Section 57 (7) Immigration Act (Cap 133, 1997 Rev Ed)

The appellant was charged with harbouring a Nepalese, one Prem Kumar Palungwa (“Limbu”) who had unlawfully overstayed in Singapore. The appellant was the registered lessee of a Housing Development Board flat (“the flat”). On 19 February 2003, a team of immigration officers raided the flat and arrested 11 Nepalese men. Nine of them were found to be immigration offenders, one of whom was Limbu. Limbu was subsequently convicted for overstaying in Singapore and served his sentence.

Limbu testified that he met the appellant on four occasions to pay the rent to her. Three of these occasions were at the flat. The last time Limbu met the appellant was at the Yishun Mass Rapid Transit station sometime in February 2003. The other prosecution witness was the investigating officer, Gomez. He testified that when he asked Limbu how to contact the appellant, Limbu was able to give the appellant's mobile number “off-hand”.

The appellant's defence was that she did not know that the Nepalese men, including Limbu, were staying at the flat except for one Top Bahadur Poon (“Top”). Top, one of the Nepalese men rounded up at the flat, was subsequently released because he had a valid social visit pass. The appellant had rented the flat to Top, initially on a one-year tenancy. Subsequently, the flat was rented to him on a month-to-month basis. She testified that she had gone to the flat only about two times from September to end-December 2002 and did not go to the flat between January 2003 and the day of the raid on the flat. Her defence was that Top was the real harbourer. The Prosecution offered the other immigration offenders to the appellant as witnesses but the appellant did not call on them.

The trial judge convicted the appellant and sentenced her to ten months' imprisonment. He found Limbu to be a sincere and forthright witness. He also noted that the appellant's failure to call the other immigration offenders as witnesses to support her defence, created a serious gap in her defence. The appellant appealed against her conviction.

Held, dismissing the appeal:

(1) Corroboration of Limbu's evidence was not necessary. In any event, the trial judge noted that Limbu's evidence was uncorroborated and addressed this amply: at [30] and [31].

(2) When a trial judge wished to make a finding that the complainant or prosecution witness had no reason to falsely implicate the accused, he must base such a finding on credible evidence. What amounted to credible evidence depended on the facts of each case. Here, the trial judge was entitled to, and did, rely on the fact that Limbu had been convicted, and had served his sentence, as a basis for finding that Limbu had no reason to falsely implicate the appellant: at [38] and [39].

(3) The Prosecution bore the burden of proving that the complainant or prosecution witness had no reason to falsely implicate the accused but the burden was one of “beyond reasonable doubt”, not beyond all doubt. To accede to counsel's request to find that Limbu might have falsely implicated the appellant, on the frivolous conjecture that he may have wanted to shield Top from prosecution out of camaraderie and friendship, would be tantamount to demanding that the Prosecution prove beyond all doubt that Limbu had no reason to falsely implicate the appellant. That could not be the state of the law: at [40] to [41].

(4) The court rejected the argument that an adverse inference should have been drawn against the Prosecution for failing to call on the other immigration offenders as witnesses. The Prosecution had a discretion in deciding which witnesses to call, provided that there was no ulterior motive in its decision. The Prosecution's approach in the conduct of the trial below could not be faulted: at [50].

(5) The court rejected the Prosecution's argument that an adverse inference should be drawn against the appellant for failing to call on the other immigration witnesses. It was not in every case that an accused person's failure to call on a witness resulted in an adverse inference being drawn against him or her. Much depended on the facts and circumstances of each case. There were various factors to take into account, some of which included the availability of the witness, the purpose for which the witness was to be called and the materiality of calling that witness: at [54].

(6) Once the trial judge had accepted the version of events as narrated by Limbu, the trial judge was entitled to make the necessary inferences of “wilful blindness” and “failure to exercise due diligence” and invoke the presumption of mens rea under s 57 (7) of the Immigration Act (Cap 133): at [55].

Khoo Kwoon Hain v PP [1995] 2 SLR (R) 591; [1995] 2 SLR 767 (folld)

PP v Azman bin Abdullah [1998] 2 SLR (R) 351; [1998] 2 SLR 704 (folld)

PP v Koo Pui Fong [1996] 1 SLR (R) 734; [1996] 2 SLR 266 (folld)

PP v Nurashikin bte Ahmad Borhan [2003] 1 SLR (R) 52; [2003] 1 SLR 52 (distd)

Tan Ah Lay v PP [1994] SGCA 90 (folld)

Tan Puay Boon v PP [2003] 3 SLR (R) 390; [2003] 3 SLR 390 (refd)

Wong Tiew Yong v PP [2003] 3 SLR (R) 325; [2003] 3 SLR 325 (refd)

Yap Giau Beng Terence v PP [1998] 2 SLR (R) 855; [1998] 3 SLR 656 (folld)

Evidence Act (Cap 97, 1997 Rev Ed) ss 116 illus (g), 136

Immigration Act (Cap 133, 1997 Rev Ed) s 57 (7) (consd);ss 15, 57

Chia Boon Teck (Chia Yeo Partnership) for the appellant

Eddy Tham (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 This was an appeal against the decision of District Judge Malcolm B H Tan where he convicted the appellant on a charge under s 57 (1) (d) of the Immigration Act (Cap 133, 1997 Rev Ed) (“the Act”) for harbouring an illegal immigrant and sentenced her to ten months' imprisonment. She appealed solely against her conviction. After hearing counsel's arguments, I dismissed her appeal. I now give my reasons.

Facts

The charge

2 The appellant claimed trial to one charge of harbouring a Nepalese national, one Prem Kumar Palungwa (“Limbu”) who had unlawfully overstayed in Singapore for a period exceeding 90 days in contravention of s 15 (3) (b) of the Act thereby committing an offence under s 57 (1) (d) and punishable under s 57 (1) (ii) of the Act.

3 Section 57 (1) (ii) of the Act provides that any person who commits an offence of harbouring shall be punished with imprisonment for a term not less than six months and not more than two years and shall also be liable to a fine not exceeding $6,000.

The Prosecution's case

4 The appellant is the registered lessee of a Housing and Development Board flat at Block 756 Yishun Street 76 #01-266 (“the flat”). On 19 February 2003, at about 6.50am, a team of immigration officers raided the flat and arrested 11 Nepalese men who were present in the flat. They were caught sleeping in the hall and in three rooms of the flat. Nine of these men were found to be immigration offenders while two of them possessed valid social passes. One of the immigration offenders arrested was Limbu.

5 Limbu was subsequently convicted for the offence of overstaying in Singapore from 1 March 2002 to 19 February 2003. He was sentenced to one month's imprisonment and four strokes of the cane.

6 Evidence for the Prosecution was chiefly led by Limbu. He testified that he had entered Singapore sometime in January 2002 on a valid social visit pass. His attempts to obtain a student visa were turned down but he continued to stay in Singapore illegally after his pass expired sometime in March 2002.

7 Sometime towards the end of March 2002, Limbu met a fellow Nepalese man by the name of Run. At that time, Limbu was interested to get accommodation and Run brought Limbu to the flat on 1 April 2002. Limbu testified that when he went to the flat, he found all three rooms to be fully occupied with six Nepalese men staying there. Limbu decided to stay at the flat and it was agreed that he would pay rent of $150 per month to Run. Limbu stayed at the flat from 1 April 2002 until his arrest in February 2003.

8 Limbu testified that it was through Run that he met the appellant. The first time that Limbu met the appellant was sometime in September 2002 when he followed Run to Suntec City. At that meeting, Run paid the rent to the appellant and Run told Limbu that the appellant was the “house owner”. They were not formally introduced on that occasion and they did not talk to each other.

9 Subsequently, Limbu met the appellant on four other occasions. The first three were at the flat in the months of September and December 2002, and January 2003. On each of those occasions, the appellant went to the flat to collect rent. The first of these three meetings took place around 4 or 5 September 2002, between 6.00pm to 7.00pm. Limbu testified that on this particular occasion, the appellant went inside the flat and there were two or three other persons with him in the flat at that time. The appellant asked Limbu who he was and Limbu told her his name and that he was staying there. She did not ask about the other persons who were there. She also did not ask Limbu (or any of the other persons there) for their travel, immigration or identity documents. On this first occasion, Limbu was wearing only his shorts when he answered the door.

10 The other two occasions when the appellant went to the flat to collect...