Public Prosecutor v Heng Siak Kwang

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 25 March 1996
• Neutral Citation: [1996] SGHC 51
• Docket Number: Magistrate's Appeal No 236/95/01
• Date: 25 March 1996
• Published date: 19 September 2003
• Year: 1996
• Plaintiff Counsel: P Arul Selvamalar (Deputy Public Prosecutor)
• Citation: [1996] SGHC 51
• Defendant Counsel: M Puvanendram (Nathan Isaac & Co)
• Court: High Court (Singapore)
• Subject Matter: Employment,Illegal immigrant,s 57(1)(d) Immigration Act (Cap 133),s 57(1)(e) Immigration Act (Cap 133),Immigration,Whether workers were employed by respondent or by sub-contractor,Harbouring,Whether harbouring proven

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The respondent was tried before the district court on three charges each of harbouring and employing persons who overstayed in Singapore illegally, contrary to s 57(1)(d) and (e) respectively of the Immigration Act (Cap 133) (the Act). At the end of the trial, the district judge acquitted the respondent. I dismissed the prosecution`s appeal. I now give my reasons.

The undisputed evidence was that on 29 March 1994, a group of Immigration officers raided the premises of Seng Moh Transport (Seng Moh) at 34B Penjuru Road. There, five Indian workers were found unloading bags of styrofoam beads from a container. Four of the workers, including PW7, PW8 and PW9, were arrested. The fifth escaped. From another container (the container), a 40-foot one, the personal belongings of the four arrested workers were recovered.

Seng Moh was a company engaged in freight transportation and other related business. Since June 1986, Seng Moh had had an oral agreement with the respondent, whereby the respondent`s firm, Heng`s Labour Supply, was engaged to stuff and unstuff containers, either at the premises of Seng Moh or at other designated warehouses. The respondent`s firm provided its own pool of workers.

Lim Hock Heng (PW2) was the general manager of Seng Moh. He was not involved directly in overseeing the stuffing and unstuffing work. His evidence was that the respondent had sought permission from him to keep a container on the premises. A letter was admitted to show that permission was given to the respondent to keep a 20-foot container on the premises. However, he had not seen the container until 29 March 1994, when he was taken there by immigration officers. He claimed the container belonged to the respondent. The container was still on the premises in November 1994 even though he had terminated the respondent`s services in March. He was not aware that workers were living in Heng Moh`s yard from July 1992. He did not give anyone permission to live there. He could not identify the Indian workers, as he did not pay any attention to the workers. He denied that Heng Moh`s agreement with the respondent was terminated in January 1994.

PW2`s sister, PW4, helped prepare invoices for the respondent. The last payment was made to the respondent on 3 January 1994. Thereafter she went on maternity leave. When she returned from maternity leave on 15 March 1994, she found that the respondent had not submitted any more invoices. She telephoned him and he said that he would follow the matter up. However, he did not submit any invoice. She stopped assisting him to prepare the invoices because she had already told him to prepare his own.

PW6, Cheng Seng Poh, was responsible for keeping records on the number of containers handled by the respondent. According to him, the respondent continued to deal with Seng Moh until March 1994. He saw the respondent in February on a few occasions. Delivery orders from 3 January to 30 January 1994 were tendered. PW6 had helped the respondent to prepare them. He obtained the required information from the worksheet. He did not help the respondent to prepare delivery orders in February and March because he was too busy.

PW7, Krishna Thevar Rajendran, was one of the prosecution`s three key witnesses. He was one of the workers arrested. His evidence was that he arrived in Singapore on 8 April 1990. He did not apply for an extension after his permit expired. He overstayed until his arrest. He started working at Seng Moh about one and a half years before he was arrested. His friend, Raja, introduced him to `the company` because Raja knew `the boss`. He met Raja at Serangoon Road. The boss was `Ah Kim`. He identified the respondent as his employer Ah Kim. When he met the respondent, the respondent`s son was also present.

PW7 was alone when he first met Raja. He asked Raja for a job. On the second occasion, the respondent and his son were present. PW7`s evidence was that he was employed by the respondent and not Seng Moh. While he was working there, either Raja, or, if Raja was not available, the respondent, would supervise him. Nobody else supervised him.

A forged work permit card, P13, was identified by PW7. He said that this was given to him by the respondent. He clarified that he asked the respondent for P13 through Raja. He had shown his passport to the respondent when he started work.

As for the container, this was where they lived. He had asked Raja for a place to sleep in. Raja made the necessary arrangements. PW7 did not know who owned the container. The four workers and Raja slept in the container. The respondent did not have the key to the container. Raja kept one of two keys. The other was kept by them in turn. According to him, the respondent visited them at the container. He went there after work and sometimes he watched television with them. Nobody from Seng Moh visited them.

Under cross-examination, he told the court that he only spoke Tamil. He did not speak Malay or any Chinese dialect. All communication with the respondent was through Raja as interpreter. When he first met Raja, Raja told him that he was working at Seng Moh. When asked why Raja supervised them, he said that they did not have a supervisor. He denied that he told the court that Raja was his supervisor. Raja and the respondent merely gave them instructions as to what to do. Raja merely worked together with them and was not their supervisor. Raja was with them on 29 March. He escaped.

The respondent paid their wages. The respondent paid them directly, but Raja was present when they were paid. They were paid in cash monthly. They did not receive any wages in January, February or March 1994. PW7 said that neither PW11 nor PW12 was Raja.

PW8, Ramaiya Dhasnamoorthy, said that he arrived in Singapore on 6 March 1993. He overstayed until he was arrested. He secured his job at the premises of Seng Moh through Raja, whom he had met at Tekka. Raja asked if he was interested in the job. He said he was. The next day, on 14 July 1993, he met Raja at Clementi MRT station and was taken to the premises. There he met the respondent. Raja was not his employer. His employer was the respondent. PW8 said that Raja was employed by the respondent and was PW8`s `foreman`. PW8 did not communicate directly with the respondent. On each occasion, Raja interpreted for him. The respondent handed their wages to Raja. Raja, in turn, handed the wages to them. He was last paid in December 1993. They were not paid for three months. He had asked Raja to ask the respondent for his wages. Both the respondent and Raja were his foremen. Raja also did the same job as they did. Nobody from Seng Moh supervised them.

PW8, too, said that there were two keys to the container. Raja kept one and they kept the other. He had asked the respondent, through Raja, for permission to stay in the container. The respondent visited them at least once a week. Like PW7, PW8 denied that either PW11 or PW12 was Raja.

PW9, Kirishna Thevay Asaithambi, gave evidence that he arrived in Singapore in March 1993. He started work at the premises of Seng Moh on 27 September 1993. He was near a Chinese temple at Tekka when he was approached by Raja and the respondent. Raja told him that the respondent wanted to know whether he was interested in working for the respondent. He said he was, and was taken to Seng Moh`s premises in a lorry. Nobody supervised him in his work. Raja did the same work as PW7 and PW8, which was stuffing and unstuffing. PW9 did mainly painting.

The respondent paid them their wages. As the respondent did not speak their language, the respondent gave the money to Raja and Raja paid PW9. He did not consider Raja his employer. Sometimes PW9 was paid on a different occasion from the other workers. He last received his wages on 6 January 1994.

He did not know who the container belonged to. The respondent gave him permission to live in it. He had asked through Raja. He denied knowing PW11 or PW12.

The investigating officer was Chew Thiam Hock (PW10). His evidence was that the workers had identified the respondent as their employer. PW11 and PW12 were employed by Seng Moh and were valid work permit holders. On 10 December 1994, the respondent had told him that Raja was back at Seng Moh. They conducted a search together with the respondent. The respondent identified PW11 as `big` Raja and PW12 as `small` Raja. An identification parade was held on 12 December 1994. None of the four arrested workers could identify PW11 or PW12.

A photograph marked `C` was produced. Photograph C was enlarged and marked `C1`. PW10 was of the view that PW11 looked like one of the persons in the photograph. The photograph was imprinted with the date `10 13 93`. PW11`s passport was produced in court. It was issued in March 1992. It showed that PW11 arrived in Singapore in July 1994.

Manickam Regupathy (PW11) denied that he was Raja. He maintained that he arrived in Singapore only in July 1994. He denied that he looked like the person in photograph C1.

One of the arresting officers was PW13, Aziz bin Ahmed. He testified that he had a good look at the Indian who escaped. He was not the person in photograph C1. The escaped person was tall and slim. He had no moustache. He was also slightly fair. PW13 could not identify PW11 or PW12. However, he agreed that the person in the photograph looked like PW11.

PW7, PW8 and PW9 were recalled. They all denied that the person in the photograph was Raja. They all described Raja as `tall and lean`. They also denied that PW11 resembled the person in the photograph.

PW7`s evidence was that Raja did not have a moustache. However, PW8`s evidence was that Raja had a thick moustache. The person in the photograph did not have a thick moustache. When asked why PW7 had said that Raja did not have a moustache, PW8 said that there were occasions when he shaved it, even though he had just told the court that Raja always had a moustache. According to PW8, `At times, he would have it on. At times...