Public Prosecutor v Chen Chih Sheng and another appeal

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 18 January 1999
• Neutral Citation: [1999] SGHC 14
• Date: 18 January 1999
• Docket Number: Magistrate's Appeals Nos 80/98/01 and 80/98/02
• Plaintiff Counsel: B Mohan Singh and Bernard Chao (Chung, Tan & Partners),Malcolm Tan and Sunari bin Kateni (Deputy Public Prosecutors)
• Published date: 19 September 2003
• Court: High Court (Singapore)
• Subject Matter: Alteration,Foreign worker continues working despite unsuccessful application,Whether employment of illegal foreign worker attributable to default of managing director,Supervisor pleads guilty to and convicted of Ministry of Labour charge,ss 5, 16D & 22 Employment of Foreign Workers Act (Cap 91A, 1991 ed),Supervisor employs foreign worker without valid work permit,Immigration,Whether accused entitled to exempt himself from liability where doctrine of autrefois convict prevents second person from being charged with offence,Foreign worker,Principles governing amendment of charge by appellate court,Managing director signs work permit application,Exemption of liability,Criminal Procedure and Sentencing,Employment of foreign worker without valid work permit,s 256 Criminal Procedure Code (Cap 68),Whether conviction under 1991 Act considered previous conviction for purposes of 1995 Act,Employment,Procedure in such cases,ss 5 & 16D Employment of Foreign Workers Act (Cap 91A, 1991 Ed),Sentencing,Charge,Employment of Foreign Workers (Amendment) Act (Act 37 of 1995)

Judgment:

YONG PUNG HOW CJ

The accused was convicted on the following charge:

You, Chen Chih Sheng, are charged that you from, on or about 14 November 1992 to 14 November 1996 were a director at Victoria City Restaurant Pte Ltd of 2, Havelock Road, Apollo Centre [num ]02-01 which had from, on or about early October 1996 to 30 October 1996 committed an offence of employing a foreign worker, namely, one Chin Sai Piew, without having obtained a valid work permit allowing him to work for the said company under s 5(1) of the Employment of Foreign Workers Act (Cap 91A), the commission of which offence was attributable to your default, and you have thereby, by virtue of s 16D, committed an offence under s 5(1) punishable under s 5(4) of the same Act.

2.The prosecution submitted that, as the accused had a previous conviction under s 5(6) read with s 5(1) and punishable under s 5(4) of the Employment of Foreign Workers Act (Cap 91A, 1991 Ed) (`the 1991 Act`), his current conviction under s 16D read with s 5(1) and punishable under s 5(4) of the Employment of Foreign Workers Act (Cap 91A, 1991 Ed), as amended by the Employment of Foreign Workers (Amendment) Act (Act 37 of 1995), (`the 1995 Act`) was a second conviction under the 1995 Act and accordingly should be punished with mandatory imprisonment as required by s 5(4)(b)(i) of the 1995 Act. The trial judge found however that the accused`s conviction under the 1991 Act should not be considered a previous conviction under the 1995 Act and his current conviction should therefore not be considered a second conviction under the 1995 Act which would attract the punishment of mandatory imprisonment. In the result, the trial judge sentenced the accused to pay a fine of 48 months` levy, amounting to $15,840.

3.The Public Prosecutor appealed against the sentence imposed by the trial judge. The accused responded by appealing against his conviction, but not his sentence.

4. Facts

A Malaysian, one Chin Sai Piew (`Chin`) approached one Chan Tonny Chun Fatt (`Ah Fatt`), for work at Victoria City Restaurant (`the restaurant`) some time in October 1996. Ah Fatt interviewed him and employed him at the restaurant. Chin started working at the restaurant and only applied for a work permit on 1 November 1996. At the same time, he applied for a temporary work permit which was granted. By a letter dated 4 November 1996, the Ministry of Labour notified the restaurant that Chin`s application for a work permit had been rejected and that his temporary work permit would be cancelled with effect from 9 November 1996.

5.On 14 November 1996, Yeo Sze Kwang, an employment inspector from the Ministry of Labour, together with several other inspectors, conducted an inspection at the restaurant. Chin and two other Malaysian workers were arrested for working without valid work permits.

6.The Ministry of Labour prosecuted the restaurant under s 5(1) of the 1995 Act for employing Chin and the other two Malaysian workers without valid work permits. The restaurant pleaded guilty to all three charges and was fined a total of $33,660.

7. P4

The accused was subsequently interviewed by the investigating officer, PW1. The following statement, P4, was recorded:

(1) I am a Singaporean citizen and I am the managing director of Victoria City Restaurant Pte Ltd. I have been managing director of the restaurant since 14 November [1990].

(2) I am here at the Ministry today to give a statement regarding three Malaysians who were found working at the restaurant by a group of employment inspectors during a surprise check conducted on 14 November 1996 at about 11.10am.

(3) I am married with two children and my highest educational level is Form 2. I am able to speak and understand Mandarin. Hence I am giving my statement voluntarily in Mandarin.

(4) I am the person in charge of the restaurant. My duties are to oversee the business of the restaurant and also to handling issues on the marketing aspects.

(5) There are about 30 workers working at the restaurant. There are a manager, a supervisor supervising waitresses and waiters, and two supervisors supervising workers in the kitchen.

(6) The two supervisors supervising workers working in the kitchen are Ah Fatt and Ah Min. As I am always not around at the restaurant, I have authorised my supervisors to recruit workers to work at the inspected restaurant. For example, if Ah Fatt finds there is a shortage of workers in the kitchen, he would recruit workers himself. He does not have to inform me regarding the recruitment. Hence, it would be the same for other supervisors. They are also given the authority to recruit workers to work in their areas of supervision. They will make the final decision.

(7) As for payment of salary to the workers recruited by the supervisors, they will have to inform the accountant that a certain amount of money has to be paid to these workers.

(8) However, when the supervisors apply work permits or employment passes for these workers, they will have to submit forms for me to sign.

(9) The restaurant operates daily from 11am to 11pm. I would be there about two to three times per week to oversee the business. At times, I would stay there for the whole day or only for one to two hours.

(10) During the time of the inspection, I was not present at the restaurant.

(11) When I am not around at the restaurant, the supervisors and manager will oversee the operations of the restaurant.

(12) I am now shown the polaroid photographs of the following persons:

(a) Chin Sai Piew;

(b) Ang Dek Pau; and

(c) Lim Tow Hong.

I do not recognise the above subjects as I have never seen them before. I am not sure whether the subjects are employed by Ah Fatt as he is the person who is in charge of workers working at the restaurant. So far, Ah Fatt did not mention anything about the subjects.

(13) However, I remember not long ago, Ah Fatt gave me two application forms to sign. He said that he had employed a few workers and they need to have work permits. Hence I signed the forms. But I do not know who are the workers that he has applied work permits for.

(14) For every worker employed by Ah Fatt, he would distribute salaries to them. I believe these workers do not have to sign for any payment vouchers.

(15) I wish to say that it is due to my negligence that I had allowed my workers to employ on my behalf. I should exercise more stringent control over the recruitment of these workers.

(16) That is all.

(17) The above statement has been read and explained to me in Mandarin, a language which I understand. I confirm it to be correct and true.

The above will henceforth be referred to as paras 1 to 17 of P4.

8.PW1 testified that the accused had chosen to make his statement in Mandarin. PW1 recorded his statement in English through an interpreter, one Hang Teck Yi (`Hang`), who conversed with the accused in Mandarin. The statement was read over and explained to the accused in Mandarin. The accused confirmed that the statement was correct and declined to make any amendments. The accused signed both pages of the statement. Under cross-examination, PW1 testified that the accused had not said that his Mandarin was not very good. PW1 questioned the accused in English, and the questions were interpreted through Hang to the accused in Mandarin. The accused replied in Mandarin and his answers were interpreted through Hang to PW1 in English. Hang was present throughout the recording of the statement.

9. The prosecution`s case

The mainstay of the prosecution`s case was the admissions made by the accused in P4. The accused had admitted that (a) he was in charge of the restaurant, (b) as he was only around two or three times a week, he had delegated the task of recruiting workers to his supervisors, (c) he had been negligent in allowing his supervisors to recruit on his behalf, and (d) he should have exercised more stringent control over the employment of the workers. The employment of Chin was therefore attributable to the accused`s default.

10.The trial judge found that a prima facie case had been made out against the accused and called for his defence.

11. The defence

The accused gave evidence in his own defence. He testified that, right from the very start, Ah Fatt had been allowed to take full charge of the running of the kitchen. Ah Fatt was called the supervisor of the kitchen, and one Wong Min, who worked directly under Ah Fatt, was the second supervisor. All those who worked in the kitchen were answerable to Ah Fatt. The accused was not responsible for the recruitment of employees in the kitchen. The kitchen staff was employed by Ah Fatt. Ah Fatt was also responsible for the supervision of the kitchen staff, applying for work permits and paying their salaries. The accused admitted however that he signed the applications for the work permits. However, apart from this, he did not have any role in the employment of the staff.

12.The accused testified that he had met Chin on either 2 or 3 November 1996, two or three days after he had signed the application form for Chin`s work permit. Ah Fatt told him that Chin had obtained a work permit.

13.The accused claimed that he knew that the law pertaining to employing illegal workers in Singapore was very strict and so he took precautions against contravening the law. The accused gathered the staff for a discussion everyday and always cautioned them not to engage illegal workers. When the restaurant advertised for staff in the newspapers, it was always emphasised that only Singaporeans or Permanent Residents would be considered. Notices were put up at the restaurant stating that unauthorised workers were not allowed on the premises. The supervisors were given handbooks which clearly stated that no illegal workers were allowed.

14.The accused then gave evidence as to the recording of P4. PW1 told him that she would be recording a statement from him and that she would speak to him in either English or Mandarin. He told...