Mohd Aslam s/o Jahandad v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 16 March 2006
• Neutral Citation: [2006] SGHC 46
• Docket Number: Magistrate's Appeal No 157 of 2005
• Date: 16 March 2006
• Year: 2006
• Published date: 20 March 2006
• Plaintiff Counsel: Mahendra Prasad Rai (Cooma & Rai)
• Citation: [2006] SGHC 46
• Defendant Counsel: Glenn Seah (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Witnesses,Section 57(1)(k) Immigration Act (Cap 133, 1997 Rev Ed), s 109 Penal Code (Cap 224, 1985 Rev Ed),Accused convicted based on uncorroborated evidence of sole witness,Whether accused's conviction should be set aside,Criminal Procedure and Sentencing,Evidence,Whether witness who neither pleads guilty to nor is convicted of offence may be regarded as accomplice to offence,Immigration,Requisite mens rea for offence,Examination,No finding by trial judge that sole witness's evidence so compelling that conviction could be secured by such evidence alone,Whether accused having mens rea at material time,Criminal offences,Prosecution not challenging certain parts of Defence's evidence,Abetment of making of false statement to obtain employment pass and to renew employment pass,Irregularities in proceedings,Whether Prosecution thereby accepting such evidence

16 March 2006

Yong Pung How CJ:

1 This was an appeal against conviction in respect of two offences under s 57(1)(k) of the Immigration Act (Cap 133, 1997 Rev Ed) read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed), namely:

(a) abetting a company (“Eraz”) in making a false statement to the Ministry of Manpower (“MOM”) so as to obtain an employment pass for PW1, an Indian national (“the first offence”); and

(b) abetting Eraz in making a false statement to the MOM so as to obtain a renewal of PW1’s employment pass (“the second offence”).

The false statement in question consisted of the declaration that Eraz was to employ PW1 as a business development manager at a basic monthly salary of $3,000. It was made in the employment pass application dated 5 June 2003 (“the application form”) and in the subsequent application dated 14 July 2004 for the renewal of the employment pass (“the renewal form”). I allowed the appeal where the first offence was concerned, but dismissed it in respect of the second offence. I now give my reasons.

The facts

The Prosecution’s version

2 At the trial, PW1, who was the Prosecution’s key witness, testified that he came to Singapore in August 2003 following arrangements made by one “Jafarullah”, an agent in India, for him to work here. Shortly after his arrival, he went to the appellant’s office to collect his employment pass (“the pass”). There, he was told, to his dismay, that the appellant had no job for him. After unsuccessful attempts to find employment by other means, PW1 contacted the appellant again six months later. The latter then offered to employ him as a “handyman”. PW1 worked for the appellant in this capacity from March 2004 to August 2004 at a salary of $1,500 per month. His duties consisted mainly of running errands for the appellant and cleaning the latter’s office.

3 Sometime later, pursuant to the appellant’s instructions, PW1 signed the renewal form so that the pass, which was due to expire on 8 September 2004, could be renewed. According to PW1, he only saw the reverse side of the renewal form when he signed it. The document was blank then, and he did not read through it before signing. PW1 stated that the renewal form was the only form which he signed. He denied having either seen or signed the application form even though that document was ostensibly signed by him. He also denied having signed an earlier employment pass application dated 10 December 2002 made in his name, in which another company had been listed as the would-be employer.

4 The pass was not eventually renewed. On 10 September 2004, as PW1 was about to return to India, he was arrested by immigration officials at the airport, apparently on account of suspicions that he had tendered fake educational qualifications in order to obtain the pass.

The Defence’s version

5 The Defence’s account of the material facts, in contrast, was as follows. The appellant, who ran a company providing consultancy services to foreigners planning to start businesses or companies in Singapore, was also a sleeping director of Eraz, which had been set up by two Pakistanis (“the Pakistani directors”) in 1999. Although Eraz had a registered address in Singapore, which was the address of the appellant’s office, it had been dormant since its incorporation.

6 In 2003, the Pakistani directors decided to turn Eraz into an active company and told the appellant to look for an experienced person who could help to develop its business in Singapore. The appellant recommended PW1, whom he had heard of through Jafarullah earlier in 2002. At that time, Jafarullah’s company had wanted to employ PW1 as a business development manager. The appellant had filled in an employment pass application on the company’s behalf, which was the employment pass application dated 10 December 2002 (mentioned at [3] above). That application had not, however, been successful.

7 The Pakistani directors accepted the appellant’s recommendation and told him to apply for an employment pass for PW1. In completing the application form, the appellant relied on Jafarullah for PW1’s personal particulars, while the details of PW1’s job title and salary were obtained from the Pakistani directors. The appellant claimed that he was unaware then that the information provided by the Pakistani directors was false.

8 PW1 arrived in Singapore sometime around August 2003. At their first meeting, the appellant informed PW1 of his designation in Eraz and his pay. After PW1 collected the pass, the appellant rarely saw him again. PW1 did not at any time complain to him about not being able to find a job in Singapore. The appellant also denied having employed PW1 as an office boy from March 2004 to August 2004, contending that it would have been illogical for him to do so as he already had an office boy (“DW2”) and a cleaner of his own. PW1, it was asserted, worked solely for Eraz. DW2 gave evidence to a similar effect on this point. He testified that PW1 did not work for the appellant between March 2004 and August 2004. He also stated that he never saw PW1 at the appellant’s office during that period.

9 The appellant claimed that when the pass was due for renewal, he went through the renewal form with PW1 before the latter signed it. He specifically checked with PW1 that the typewritten particulars of the latter’s pay and job title on that form were correct. The appellant protested that he did not know those particulars were false, for PW1 neither reported to nor received his salary from him. Instead, PW1 received his instructions and pay directly from the Pakistani directors.

The decision at first instance

10 In the court below, the appellant was convicted of both the first offence and the second offence. The trial judge held that the appellant: (a) “ought to know” when signing and submitting the application form and the renewal form on behalf of Eraz that they contained false details of PW1’s job title and salary; and (b) “knew” that the MOM had relied on those particulars to issue the pass. That the appellant was merely a sleeping director of Eraz was beside the point. The trial judge also regarded the Defence as having made “a vain attempt” to argue that the application form and the renewal form represented applications made for the future.

The appeal

11 The grounds upon which the appellant challenged his conviction (“the grounds of appeal”) were as follows:

(a) the Prosecution failed to prove that when the appellant signed and submitted the application form and the renewal form, he knew that they contained false details of PW1’s job title and salary;

(b) the trial judge misunderstood the thrust of the appellant’s defence, as the appellant never contended that the application form and the renewal form constituted applications made for the future;

(c) there was no evidence which showed that the MOM had relied on the false particulars in the application form to issue the pass;

(d) PW1 was a dishonest and unreliable witness whose evidence, which was “fraught with inconsistencies”, should not have been believed;

(e) the Prosecution did not challenge material aspects of the Defence’s evidence which were inconsistent with a verdict of guilt; and

(f) the trial judge failed to treat the evidence of PW1, who was an accomplice, with the requisite degree of caution.

12 Of the above points, I regarded the first – namely, that the Prosecution did not prove the requisite mens rea beyond reasonable doubt – as the crux of this appeal, for it was indisputable that the appellant carried out the actus reus of the abetment offences in question. Given Eraz’s conviction of the offence under s 57(1)(k) of the Immigration Act (“the s 57(1)(k) offence”) in MOM Summonses Nos 497 and 498 of 2005, there was no question that the company obtained the pass by making false representations in the application form and subsequently tried to renew the pass by repeating the misleading information in the renewal form. In signing and submitting those two forms on Eraz’s behalf, the appellant performed “an act of positive assistance” in connection with the s 57(1)(k) offence: Awtar Singh s/o Margar Singh v PP [2000] 3 SLR 439 (“Awtar Singh”) at [47]. As such, his conviction could be set aside only if he lacked the requisite mens rea when he carried out such act.

13 From this perspective, grounds (b) and (c) of the grounds of appeal ([11] above) were otiose. Where ground (b) was concerned, the trial judge was indeed mistaken in thinking that the Defence’s case was that the application form and the renewal form related to Eraz’s future employment of PW1. It was evident, however, from the grounds of decision that this error did not have any impact on the finding that the appellant must have known at the material time of the false information in the two documents. As for ground (c), whether or not the MOM actually relied on the details of PW1’s salary and designation when it issued the pass had no bearing on the appellant’s state of mind at the time he signed and submitted the application form. In any event, since it was expressly recorded in the statement of agreed facts that the pass was issued “[o]n the basis of the said declarations that the foreigner [PW1] would be employed as a Business Development Manager with a monthly salary of $3000”, it was not open to counsel to argue, at this stage of the proceedings, that the Prosecution failed to prove the MOM’s reliance on those particulars.

Whether the appellant had the requisite mens rea

14 Turning then to the crucial issue of mens rea, the mental element for the offence of abetting a crime by intentional aiding is knowledge on the accused’s part of “the circumstances constituting the crime” when he voluntarily renders an act of positive assistance: Awtar Singh ([12] supra) at [47]; Loh Kim Lan v PP [2001] 1 SLR 552 at [33]. For the s 57(1)(k) offence, the relevant circumstances would be the making of a false statement so as to obtain or attempt to...