Moideen Pillay s/o Magdoon Lebbai v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon
• Judgment Date: 10 July 2001
• Neutral Citation: [2001] SGDC 216
• Year: 2001
• Published date: 19 September 2003
• Citation: [2001] SGDC 216
• Court: District Court (Singapore)

JUDGMENT:

Grounds of Decision

Background

The accused was tried and convicted before me on two charges under s 57(1)(e) of the Immigration Act (Cap 133)(‘the Act’) read with s 109 of the Penal Code (Cap 224). He was charged with abetting one Jailani bin Hussein Angullia (‘Jailani’) by aiding him to employ two Indian immigration offenders at a food stall known as ‘Al Ameen Muslim Food Stall’ (‘the stall’), located in ‘Mary’s Eating House’ at No. 46/48 Bencoolen Street. Jailani was also jointly tried before me together with the accused. I found Jailani guilty of the principal offences of employing the two Indian immigration offenders. He has not appealed against his conviction

2. The brief details of the charges against the accused are as follows. In DAC 14279/2001 (‘the first charge’), he was charged with abetting Jailani in the employment of one Ramesh. In DAC 14280/2001 (‘the second charge’), he was charged with abetting Jailani in the employment of one Hussein. He was said to have recruited both Ramesh and Hussein to be employed by Jailani as dishwashers between sometime in September 2000 to 23 October 2000, having reasonable grounds for believing that they were persons who had acted in contravention of s 6(1)(c) of the Immigration Act (Cap 133)(‘the Act’).

Undisputed facts

3. A number of crucial facts were not in dispute. The accused and Jailani were running the stall under an informal ‘partnership’ arrangement. For the purpose of applying for a licence from the relevant authorities to operate a food stall, Jailani was the sole applicant. Both of them had apparently invested substantial capital in the business when they took over the lease of the premises from one Alaggan Steven (‘PW3’ – ‘Steven’). They then took turns to operate the stall on a ‘shift’ arrangement, although there were times when they were both present at the stall.

4. It was not disputed as well that the two immigration offenders had entered Singapore illegally via Malaysia. They ended up working at the stall after having approached the accused to ask whether there were job opportunities. Jailani did not speak Tamil. The immigration offenders were unable to communicate with Jailani at all. Thus, the accused had served as an interpreter on their behalf. Thereafter, he remained their channel of communication to Jailani.

5. Ramesh and Hussein were eventually arrested on 24 October 2000 after a police raid on the stall. They were both observed by the arresting officer Chan Boon Foo (PW4) to be working there at around midnight. Ramesh was seen serving food to customers. Hussein was seen carrying used dishes to the kitchen. They were subsequently charged with having entered Singapore illegally under the Act. They pleaded guilty to the charges and had already served their sentences.

Joinder of trial

6. For the purposes of this grounds of decision, I shall not examine the details relating to the defence mounted by Jailani. It is however necessary to note the following salient points. Jailani had maintained that he did not employ Ramesh and Hussein. He knew that they had approached the accused to ask for employment. He had actually told the accused to turn them away. He further told the accused that if he wanted to employ them, he (ie. the accused) would have to bear sole responsibility for anything that might go wrong in the course of their employment. In short, his defence was that the accused was solely responsible for their employment.

7. On his part, the accused denied being the employer of Ramesh and Hussein. He also denied having abetted Jailani in their employment. He maintained that by merely introducing them and acting as an interpreter, this would not constitute the actus reus of abetment by intentional aid. The crux of his defence was that he did not have the necessary mens rea, primarily because he did not know or have reason to believe that Ramesh and Hussein were immigration offenders.

8. Although the defences raised by Jailani and the accused were inconsistent to some extent, it appeared to me that there was considerable common ground as well. Counsel for the accused did indicate that there could be prejudice to his client if a joint trial was held. I was not persuaded that any foreseeable prejudice, which was not fully articulated in any event, would necessarily outweigh the advantage in hearing all the parties at one forum.

9. This was patently a case that fell within s 176 of the Criminal Procedure Code (Cap 68)(‘CPC’). A joint trial would be expedient and appropriate. In any event, I was mindful that I would have to weigh the evidence of all the witnesses carefully since they obviously had their own interests to serve.

The evidence for the prosecution

i. Ramesh’s evidence

10. Insofar as it was challenged by the accused, the following evidence was adduced by the prosecution. Ramesh and Hussein entered Singapore illegally at different times. Ramesh said that he went to the stall to ask the accused for a job. The accused was able to speak Tamil. The accused claimed he had to seek approval from Jailani, who he said was his employer and the ‘owner’ of the stall. The accused then communicated Ramesh’s request to Jailani, whose agreement was in turn conveyed by the accused to Ramesh. Ramesh did not know what language Jailani spoke.

11. Through the accused, Ramesh was also told the basic terms of employment, such as the daily working hours and salary. He worked there daily from 6.00 pm to 12.00 midnight and was paid $20 per day. He had received his salary from both Jailani and the accused. Ramesh said that the accused would communicate Jailani’s work instructions to him at all times.

12. After Ramesh had worked for five or six days, the accused asked Ramesh whether he had a work permit. He told the accused that he did not. He was not asked whether he had a passport. He said that if the accused had asked about his immigration status, he would have disclosed that he was in Singapore illegally. He had believed all along that the accused was his employer. He only found out later that Jailani was actually his employer.

13. Ramesh further clarified that he did not tell the accused that he was a foreigner when they first met. He did not claim to be a Singaporean. But the accused had not asked where he was from either. Ramesh thought that he had given the accused the impression that he was a Singaporean since he had turned up asking for a job ‘well-dressed in shirt and pants’. Subsequently, at times, the accused would ask to see his identity card. He told the accused that he did not have an identity card or a work permit. He even told the accused that he had come to Singapore illegally.

ii. Hussein’s evidence

14. Hussein entered Singapore on 2 October 2000. Initially, he roamed around Serangoon Road without a job. His friends told him that he could get a job at the stall on a part-time basis. He found his way to the stall and managed to secure a job through the accused. Jailani told Hussein through the accused what his basic duties were, as well as his working hours which were from 7.00 pm to 12 midnight. By the time of Hussein’s arrest, Jailani had paid him two days’ salary, at the daily rate of $10. His job was to wash dishes in the kitchen. He was arrested after having worked for only three days.

15. When Hussein first met the accused, he was told that Jailani was the ‘boss’. The accused told him that he would ask Jailani whether he would employ him. After conferring with Jailani, the accused told Hussein that he could start working at the stall. As Hussein did not speak Malay, he could only speak to the accused who spoke Tamil. He was not asked for his work permit or any form of identification. In any case, he did not have any identification papers with him. He told them that he ‘did not have anything’ with him.

16. Hussein said that when he was asking the accused for a job, he had mentioned that he was not a Singaporean. They asked him whether he was from India or Malaysia. He told them that he was from India. They did not ask whether he had entered Singapore illegally and he did not tell them about his immigration status. They proceeded to employ him nonetheless.

17. In cross-examination, counsel produced a black and white photocopied work permit in the name of ‘Usain’ bearing a photograph of Hussein. I noted that according to the photocopied permit, he was employed as a construction worker and his employer was stated as ‘Lee Construction’. Counsel proceeded to ask Hussein whether he remembered showing the accused a ‘green-coloured work permit’ bearing his own photograph. Hussein denied showing him any work permit. He said that he had never even seen any work permit resembling the one produced by counsel at any time.

18. In response to my enquiries, counsel said that the photocopied permit had been found by the accused at the stall after Hussein was arrested. However, the accused had kept it with him thereafter. He did not forward it to the police to assist in their investigations. Counsel informed me that he would not seek to admit the permit as a defence exhibit. He then turned to a different line of questioning.

19. Hussein later explained that the accused had asked him for his photograph. He did not know why the accused wanted his photograph. On his second day of work, the accused had asked him whether he had any documents. He said that he did not. The accused then told him to give him a photograph. As he did not have any photographs, he had his photograph taken the next day when the accused brought him to ‘Tekka’ market at Serangoon Road. He then gave two photographs to the accused.

20. Hussein said that he would report to the accused when he went to work. All communications were made through the accused. Like Ramesh, he had initially thought that the accused was his employer. Later, he realised that Jailani was his employer after the accused told him so.

The close of the prosecution’s case

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