Mohamed Lukman bin Amoo v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 07 September 1999
• Neutral Citation: [1999] SGHC 238
• Date: 07 September 1999
• Subject Matter: Employment,Whether presumption of knowledge applies,Illegal immigrant,Whether duty of due diligence discharged,ss 57(8), 57(9) & 57(10) Immigration Act (Cap 133),Immigration
• Docket Number: Magistrate's Appeal No 55 of 1999
• Published date: 19 September 2003
• Defendant Counsel: Kan Shuk Weng (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: B Ganesh (Ganesha & Partners)

: Introduction

The appellant was charged with two counts of employing immigration offenders under s 57(1)(e) of the Immigration Act (Cap 133) (`the Act`), punishable under s 57(1)(ii) of the Act. The district judge convicted him on both charges and sentenced him to six months` imprisonment on each charge, both sentences to run concurrently. I dismissed the appellant`s appeal against his conviction and sentence on both charges. I now give my reasons.

Background facts

At all material times, the appellant was the sole proprietor of A & A Muslim Restaurant (`A & A`) at 431 Sembawang Road.

On 26 June 1998, two Bangladeshi nationals, Shamin Ahmed (PW2) and Md Humayun Kabir (PW3) were arrested in a room above the restaurant. Subsequently, both PW2 and PW3 pleaded guilty to charges of entering Singapore without being in possession of a valid pass issued by the Controller of Immigration, in contravention of s 6(1) of the Act. They were each sentenced to one month`s imprisonment and four strokes of the cane.

The following charges were then brought against the appellant:

that you, from early June 1998 to 26 June 1998, at Singapore, did employ as a cleaner, one Shamin Ahmed @ Monir Hossain ... Bangladeshi National, a person who had acted in contravention of s 6(1) of the Immigration Act (Cap 133) by entering Singapore without being in possession of a valid pass issued by the Controller of Immigration, and whom you had reasonable grounds for believing to be a person who had contravened s 6(1) of the Immigration Act (Cap 133), and you have therefore committed an offence under s 57(1)(e), punishable under s 57(1)(ii) of the Immigration Act 1995

and

that you, from December 1997 to 26 June 1998, at Singapore, did employ as a cleaner, one Md Humayun Kabir ... Bangladeshi National, a person who had acted in contravention of s 6(1) of the Immigration Act (Cap 133) by entering Singapore without being in possession of a valid pass issued by the Controller of Immigration and whom you had reasonable grounds for believing to be a person who had contravened s 6(1) of the Immigration Act (Cap 133), and you have thereby committed an offence under s 57(1)(e), punishable under s 57(1)(ii) of the Immigration Act 1995.

The prosecution`s case

The prosecution`s case was that the appellant had employed PW2 and PW3 as cleaners at A & A during the periods of time stated in the respective charges, and that he had done so despite having reasonable grounds for believing that PW2 and PW3 were immigration offenders. In addition, the prosecution alleged that the appellant had allowed the workers to reside in the room above A & A in which they were arrested.

PW2 and PW3`s evidence

At the trial, the prosecution called PW2 and PW3 as their key witnesses. PW2 and PW3 had entered Singapore on different dates, but their testimonies in the district court were essentially similar: upon entering Singapore, the worker`s agent, one `Kumar`, took away his air ticket and passport and arranged to give him a laminated, black-and-white photocopied work permit. While the worker`s photograph appeared on his work permit, the name stated on the work permit was not his real name. PW2`s work permit stated `Monir Hossain` while PW3`s work permit stated `Shamim`. The worker was then brought to A & A. The appellant was introduced to him as the `boss` and he was told to start work immediately at the restaurant. PW2 and PW3 also testified that their work at A & A comprised general cleaning chores, including cleaning the tables, mopping the floor, and cleaning the toilet and cutlery. The appellant was present at the restaurant every day and he instructed them on the work that had to be done.

PW2 started work at the restaurant from early June 1998 and lived in the room above the restaurant. He testified that he never told the appellant his real name and the appellant simply called him `Monir`. As far as PW2 was concerned, the appellant never asked PW2 for his work permit, and did not query whether PW2 was an immigration offender. On the day of his arrest, PW2 had only just received his first month`s salary payment of $600 from the restaurant manager `Rahman`.

PW3 started work at the restaurant sometime in December 1997, and lived in the room above the restaurant. He did not know who arranged for him to stay there. Neither did he know whom the room belonged to. However, he testified that both Kumar and the appellant told him on the day when he was first brought to A & A that he could stay in that room.

PW3 also testified that he worked a 12-hour shift from 7am to 7pm daily. His agent, Kumar, had told him at the outset that his monthly salary was $600 but would be increased if his performance was good. PW3 testified that he was paid $600 from January 1998 to March 1998 , and $700 from April 1998 onwards. He said that he had asked the appellant for the increase in salary. The appellant told him to talk to Kumar instead, and it was Kumar who raised his salary to $700. He was always paid by Kumar, and he knew that he would only get paid if the appellant paid Kumar a certain amount of money every month. He also recounted one occasion when he proposed to the appellant that the appellant should pay him directly and that this sum could then be deducted from whatever sum that the appellant paid to Kumar each month. However, the appellant refused to do so.

PW3 testified that after he had worked 2[half ] months at A & A, the appellant asked him for his original work permit and passport. He told the appellant that these were all kept by Kumar. About one week later, Kumar came to A & A with a file which he showed to the appellant. Kumar later told PW3 that the file contained PW3`s passport and work permit. As far as PW3 was aware, the appellant did not ask to see the documents again.

The expiry dates of the work permits given to PW2 and PW3 were 25 July 1999 and 18 August 1999 respectively. On the reverse of PW2`s permit, it was stated that he was permitted to work as a `construction worker` for `Hock Lee Sin Building Contrn, 100 Jln Sultan [num ]03-33 Sultan Plaza`. On the reverse of PW3`s permit, it was stated that PW was permited to work as a `general worker` for `Tangee Construction, 22 A Lor 11 Geylang`.

PW1`s evidence

The agent, Kumar, could not be found. However, Kumar`s principal, one Manickam Elangovan (PW1), was present to testify for the prosecution in the district court. PW1 had previously been convicted of illegally overstaying in Singapore. After serving his sentence, he was put on a Work Release Scheme during which he absconded. At the time of the trial, PW1 was serving a sentence of 4[half ] years` imprisonment and six strokes of the cane for various offences arising out of operating an illegal business of labour supply. One of these offences was abetting A & A in employing immigration offenders.

In the district court, PW1 testified that he had purchased a fake identity card at Serangoon Road. He had then used the identity card to set up `Esvar Engineering and Cleaning Services` (`Esvar`) under the assumed identity of Baboo Thevan s/o Nagarasaen. PW1 explained that he had a team of about 10 Bangladeshi agents, including Kumar, who would scout for workers, and for companies to supply the workers to. The companies would make payments in the form of cheques made out to Esvar for the services provided. Out of the sums paid to Esvar, PW1 and his agents would deduct a percentage of their respective commissions, and then pay the remainder to the workers.

PW1 testified that his role was to sign blank invoices for his agents to use. He himself had no links or contact with the workers and had no idea how much PW2 and PW3 were paid. It was always the agents who `distributed the salaries` to the workers. He also testified that he had never dealt directly with the appellant. He had received about two or three cheque payments of slightly more than $1,000 each from A & A but he had never seen the contract between Esvar and A & A.

`Employed`

The prosecution submitted that the evidence of PW1, PW2 and PW3 clearly supported the prosecution`s allegation that the appellant had `employed` PW2 and PW3. The prosecution pointed out that, since the Act was amended in 1996, the definition of `employ` in s 2 of the Act had been widened to mean `to engage or use the service of any person, whether under a contract of service or otherwise, with or without remuneration`. The prosecution submitted that the appellant fell squarely within the statutory definition because he had `used or engaged the services` of PW2 and PW3.

Due diligence and reasonable grounds to believe

The prosecution also submitted that s 57(9) and s 57(10) of the Act placed a specific duty of due diligence on the appellant. In effect, these sections shifted the burden of proof on to the appellant to show, on a balance of probabilities, that he had reasonable grounds to believe that PW2 and PW3 were legitimate immigrants. It was not reasonable for the appellant to have left the legal arrangements to his `contractors`, and to have accepted the documents at face value as originals. Moreover, even though he did not understand English, the appellant had not bothered to ask someone else who understood English to check the documents for him. If the appellant had taken reasonable steps to ensure that the documents shown and supplied to him were in order and were authentic, he would have been put on notice as to the workers` illegal immigrant status.

The defence`s case

The appellant did not dispute that PW2 and PW3 had worked as cleaners at A & A, and that they had lived in the room above A & A in which they were arrested. However, the appellant maintained that he had neither employed PW2 and PW3, nor had he reasonable grounds to believe that they were immigration offenders. He alleged that he had been cheated by Kumar, and that he had never met PW1 before.

`Employed`

Counsel for the defence...