Public Prosecutor v Mohammed Faizal Shah

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 27 October 1997
• Neutral Citation: [1997] SGHC 268
• Docket Number: Magistrate's Appeal No 104 of 1997
• Date: 27 October 1997
• Published date: 19 September 2003
• Year: 1997
• Plaintiff Counsel: Jaswant Singh (Deputy Public Prosecutor)
• Citation: [1997] SGHC 268
• Defendant Counsel: Suresh Damodara and Dixon Ng (Gabriel Peter & Partners)
• Court: High Court (Singapore)
• Subject Matter: Immigration Act,Foreign workers,Employment of illegal foreign workers,Statutory offences,s 57(1)(e) Immigration Act (Cap 133, 1995 Ed),Immigration,s 57(1)(e) Immigration Act (Cap 133),Whether workers employed by respondent,Whether workers employed during relevant period,Criminal Law,Employment

Judgment:

YONG PUNG HOW CJ

This appeal arises out of an acquittal and discharge of the respondent by the district judge on three charges of employing foreign workers who did not have a valid pass to remain in Singapore, in contravention of s 57(1)(e) Immigration Act (Cap 133, 1995 Ed), after his defence was called.

2.The public prosecutor appealed to this court on the ground that the district judge had erred in fact and in law in failing to find the respondent guilty on all three charges in light of the evidence.

3.The appeal came up for hearing before me on 2 October. After hearing DPP Jaswant Singh, I dismissed the public prosecutor`s appeal against the order of acquittal without calling on counsel for the respondent to reply. I will now set out the grounds of my decision.

4. The charge

The respondent in this case faced the following three charges:

DAC 30564/96

You, Mohammed Faizal Shah s/o Amin Pakkir Ebrahim Sahib, male/34 yrs

NRIC No 1517221/E

are charged that you, sometime between the month of September 1996 and 4 December 1996, at Palms Shuttle Cafe, Changi Airport Terminal 2, # 026-049, did employ one Sahajahan, m/26 yrs, a Bangladeshi, being a person who had entered Singapore unlawfully, in contravention of s 6(1) of the Immigration Act (Cap 133) as amended by the Immigration (Amendment) Act 1995, as a general worker, and you have thereby committed an offence punishable under s 57(1)(e) of the Immigration Act (Cap 133).

DAC 30565/96

You, Mohammed Faizal Shah s/o Amin Pakkir Ebrahim Sahib, male/34 yrs

NRIC No 1517221/E

are charged that you, sometime between the month of September 1996 and 4 December 1996, at Palms Shuttle Cafe, Changi Airport Terminal 2, # 026-049, did employ one Delower, m/30 yrs, a Bangladeshi, being a person who had entered Singapore unlawfully, in contravention of s 6(1) of the Immigration Act (Cap 133) as amended by the Immigration (Amendment) Act 1995, as a general worker, and you have thereby committed an offence punishable under s 57(1)(e) of the Immigration Act (Cap133).

DAC 30566/96

You, Mohammed Faizal Shah

NRIC No 1517221/E

are charged that you, sometime between the month of September 1996 and 4 December 1996, at Palms Shuttle Cafe, Changi Airport Terminal 2, # 026-049, did employ one Jeevan Kumar Biswakarma, m/23 yrs, a Nepalese, being a person who had overstayed in Singapore, in contravention of s 15(1) of the Immigration Act (Cap 133) as amended by the Immigration (Amendment) Act 1995, as a general worker, and you have thereby committed an offence punishable under s 57(1)(e) of the Immigration Act, (Chap 133).

5. The facts

The gist of the prosecution`s case was that the respondent provided three foreign workers, Delower, Sahajahan and Jeevan Kumar Biswakarma (Jeevan) to Palms Shuttle Cafe (PSC) in September 1996 with the knowledge that they had no valid permits to stay or work in Singapore. On 13 September 1996, at a line-up of potential workers conducted by one Charlie Lim (Charlie), the operations manager of PSC, the three workers were picked out to work as cleaners. The defence, on the other hand, argued that the three workers were not under the employ of the respondent but were supplied by another contractor, Robin, prior to September 1996. The workers worked at both PSC and Oscars, another cafeteria run by Palms Food International Private Ltd (PFI) at Changi Airport Terminal 2.

6.On 4 December 1996, during a raid at PSC at Changi Airport Terminal 2, Delower, Sahajahan and Jeevan were arrested for working as cleaners without a work permit. At the scene of the raid, none could produce a valid work permit. All three of them admitted to overstaying in Singapore. Lim Siew Kim (Lim), the employment inspector at the raid, lodged a police report. The three illegal workers were subsequently charged and convicted. According to Lim, Sahajahan said that he had been working at PSC for three months for Charlie. Jeevan also told Lim that he had been working at PSC for the past three months for Charlie.

7.Delower testified that he arrived in Singapore on 17 June 1996 legally although he could not remember the airline he took. His agent was a Bangladeshi named Mylom who took away his passport upon his arrival and to whom he paid $700 as commission for arranging his coming to Singapore to work. He first met the respondent at Serangoon Road sometime before September 1996. Delower said that the respondent told him that he would be paid $900 per month for a sixteen-hour day. The respondent did not ask for his passport. When Delower said that he did not have a valid pass, the respondent replied that there would be no problem and that he would issue one later. Upon commencement of work at PSC sometime between 11 September 1996 and 13 September 1996, the respondent gave him a work permit under the falsified name of Voban Sorker.

8.Delower maintained under cross-examination that he did not work anywhere else before September 1996 and that his first and only place of work was at PSC. At PSC he took instructions from Charlie. He had heard of Robin but had never met him before. He also said that he was not put in a line up of workers conducted at Oscars when Charlie selected workers from the line up to work at PSC. It is pertinent to point out that Delower was not consistent in his testimony with regard to when the respondent paid his salary. First, he said that he was paid on two occasions - once on 5 September 1996 and the other time on 5 October 1996. He was not paid in November 1996. Few lines down, he corrected himself and said that he was paid on 5 October 1996 and 5 November 1996.

9.Sahajahan testified that he arrived in Singapore in July 1996 by road via Malaysia, where he had worked for two years. His agent was a Bangladeshi by the name of Salam to whom he paid $1,000 as commission for arranging his coming to Singapore to work. He was introduced to the respondent by Salam at Serangoon Road sometime during the first week of September 1996. Salam told Sahajahan, in the presence of the respondent, that he would be given a sixteen-hour day job by the respondent who would be his employer. His salary was $900 per month. Sahajahan said that the respondent did not ask to see his passport nor did Sahajahan tell him that he had no valid passport to stay in Singapore. Sahajahan said that he commenced work at PSC in September 1996 and that the respondent gave him a work permit under the falsified name of Anar Rahman when he told the respondent that he did not have a passport or work permit.

10.Sahajahan maintained throughout that he started work only in September 1996. At PSC, he took instructions from Charlie. He had only heard of Robin`s name being mentioned by other workers but that he did not know who he was. He said that he was part of a line-up of workers conducted at Oscars in September 1996 when Charlie selected workers from the line-up to work at PSC. Sahajahan deposed that it was the respondent who paid him his salary on two occasions - 5 October and 5 November 1996.

11.Under cross-examination, Sahajahan said that he mentioned the respondent`s name to Lim. To explain the inconsistency with regard to the date of his arrival between his examination-in-chief and his oral statement to Lim upon arrest on 4 December 1996, Sahajan said that he told Lim he had been staying in Singapore for one year and eight months as that was in accordance with the details in his work permit. Later, he varied his explanation and said that he had told Lim this because:

I was told to say that by the accused and that was what I said. I do not know how to see the dates in P9A. I am illiterate.

12.Jeevan testified that he arrived in Singapore on 26 July 1995 and worked as a construction worker. He was introduced to the respondent in September 1996 by his supervisor at the construction site, one Mani, at Orchard Road (after remaining unemployed for about two months). At the meeting, Mani asked Jeevan for his passport in the presence of the respondent. Neither Mani nor the respondent inspected his passport. Jeevan told them he was an overstayer in Singapore.

13.Jeevan identified the respondent as his employer and denied that Charlie was his boss. He merely took instructions from the latter. He commenced working as a dishwasher at PSC in September 1996. He was paid $900 per month by Mani who would get it from the respondent in his presence. The respondent did not pay him directly. Jeevan said that he was paid on two occasions, once either on 5 October 1996 or 6 October 1996, the other time on either 6 November or 7 November 1996. Jeevan also denied that it was Robin who got him the job at PSC prior to September 1996. He had heard of Robin`s name but did not know him. Jeevan recalled that he was put in a line-up of workers held at Oscars by Charlie in 1996 and that he was selected from this line-up. He testified that both Delower and Sahajahan were in this line-up. In his cross-examination, Jeevan said that Delower and Sahajahan told him that they started work 10 to 15 days before he did, sometime in August 1996.

14.Before going into Charlie`s testimony, some background on the supply of workers of PFI will be elaborated on. PFI owned three outlets at Changi Airport, PSC (opened on 8 August 1996), Oscars and Palms Cafeteria. Palms Cafeteria ceased operations on 22 November 1996. By a contract dated 1 April 1995, Frameng Services Pte Ltd (Frameng) agreed to provide PFI with six dishwashers at Palms Cafeteria and Oscars. The agreement was terminated on 31 July 1996 as there were complaints by PFI of bad service. On 18 June 1996, PFI entered into an oral agreement with one Robin who purported to act on behalf of NVMC & T Services to supply contract workers to PFI. There was an unsigned agreement between PFI and NVMC & T Services dated 22 July 1996 but Peter Ng (Ng), the general manager of PFI, decided to proceed on the verbal contract until a proper contract was drawn up as he was advised...