Public Prosecutor v Oh Cheng Hap

• Jurisdiction: Singapore
• Judge: Foo Chee Hock
• Judgment Date: 26 January 2001
• Neutral Citation: [2001] SGDC 24
• Year: 2001
• Published date: 19 September 2003
• Citation: [2001] SGDC 24
• Court: District Court (Singapore)

JUDGMENT:

Grounds of Decision

1. The accused person claimed trial to one charge under s 57(1)(e) of the Immigration Act (Cap 133), of employing a Chinese national, Ms Liu Li Ying (hereafter "Ms Liu"), who had contravened s 6 of the Immigration Act.

2. The specific charge against the accused is set out below:

P1-DAC 45066 of 2000

"You,

NAME : Oh Cheng Hap, Male/ 41 years

NRIC : S 1378171/J

NATIONALITY : Singaporean

are charged that you, sometime between June 2000 and 19^th September 2000, at "Toa Payoh Lorong 1 Come Daily Fried Hokkien Mee" Stall located at Block 921 Yishun Central #01-273, Singapore, did employ one Liu Li Ying, female 37 yrs, a China national as a stall helper, a person who has acted in contravention of Section 6(1)(c) of the Immigration Act, Chapter 133, and whom you had reasonable grounds for believing to be a person who had acted in contravention of Section 6(1)(c) of the said Act. And you have thereby committed an offence under Section 57(1)(e) of the Immigration Act, Chapter 133 and punishable under Sec 57(1)(ii) of the said Act."

3. At the close of the trial, I found the accused guilty of the above offence and convicted him. He has appealed against conviction only.

4. In order for the prosecution to sustain a conviction, they had to prove the following ingredients of the charge:

i. that the accused had employed Ms Liu (PW2); and

ii. that Ms Liu had acted in contravention of s 6(1)(c) of the Immigration Act, with the requisite mens rea on the accuseds part.

5. The prosecution called five witnesses, the most material of whom was Ms Liu. She testified that she arrived in Singapore sometime in September 1999. Her agent had given her a passport with an unknown name. After entering Singapore, the agent brought her to an unknown place to stay. A few days later, the agent had taken away her passport and left her on her own.

6. Sometime towards the end of June 2000, she had gone to the coffeeshop at Block 921, Yishun Central #01-273 (see photograph at "P2-A"), looking for employment. She had approached the accused, who ran the "Come Daily Fried Prawn Mee" stall (see photograph at "P2-F").

7. The accused asked her where she came from and she had replied that she was a Chinese national. He did not ask to see any travel or identification document. Neither did he ask for her work permit or passport during the course of her employment with him.

8. The arrangement was for Ms Liu to help at the stall on a temporary basis. She was to work 3 hours from about 12 noon to 3 pm, on days when the accused required her services. This would be told to her after the days work.

9. Her duties were, in the main, to cut the cuttlefish and lime, as well as to peel the prawns. She would help out by serving customers when there was time. This was observed by PW1 (Sergeant Dave Chia Lip Hong, hereafter "Sgt Chia"), one of the arresting officers on 19 Sept 2000, when Ms Liu was arrested.

10. Ms Liu started working the next day after she met the accused, and again the following day. She would turn up whenever the accused instructed her to do so. She was paid $12 per day, and the accused was the one who paid her wages.

11. The accuseds defence was in essence a denial of the first ingredient of the charge adumbrated above. The accuseds evidence, and that of his witnesses, were directed towards the first ingredient of the charge, alleging that Ms Liu was employed by the neighbouring stall (which sold fried "bee hoon" in the morning, and fried prawn crackers in the afternoon). His counsel challenged the second ingredient, by arguing that Ms Liu had not contravened s 6(1)(c) of the Immigration Act.

12. The accused alleged that he did not know Ms Liu but saw her frequently at the coffeeshop since 1999. He seldom talked to her. He claimed knowledge that she was working at the bee hoon stall, next to his stall. She would start in the "early morning" and finish at about 10.00 am. Then she would return at about 2.00 pm to 3.00 pm. He had seen her frying the bee hoon herself and "selling the bee hoon on some occasions". Although he had "never asked her to help in my stall", she had voluntarily assisted him by collecting the dishes.

13. The next defence witness was Mr Oh Cheng Seow (DW2), the accuseds cousin. (In view of persons with similar surnames, I shall refer to him as "DW2, Mr Oh" and the accuseds brother, Mr Oh Cheng Ai, as "the accuseds brother".) DW2, Mr Oh testified that he helped out at the accuseds stall 3 or 4 times in a week, by serving the customers and packing the takeaways. He would be at the stall from 2.00 pm to 5.00 pm. DW2, Mr Oh had seen Ms Liu, sitting at the coffeeshop, about once a week. He had also witnessed her working at the fried prawn cracker stall, bringing the dishes to the customers. On 19 Sept 2000, he was the helper at the accuseds stall when the police "raided" the coffeeshop.

14. The final witness was DW3, Mr Ng Ghim Yam (hereafter, "DW3, Mr Ng"). He is the accuseds brother-in-law. The salient aspects of his evidence were:

(i) During the material period in the charge, and even prior to that, DW3, Mr Ng went to the subject coffeeshop on most weekends, and "some weekdays".

(ii) On weekends, he would arrive at about 12.30 pm, staying there "almost for the whole day"; while on weekdays, he reached the coffeeshop between 6.30 pm to 7.00 pm.

(iii) While he was there, apart from relaxing and having drinks, he would assist the accused by serving customers, packing the food, even washing the plates for the accused. During cross-examination, he revealed for the first time that he also cut the "cuttlefish, prawns and the lemon" during the weekends (at about 12.30 pm).

(iv) DW3, Mr Ng had seen Ms Liu "serving customers and arranging the foodstuffs for the fried prawn cracker stall" in the afternoons and evenings. According to PW4, Mr Ng Chiang Lee, (hereafter "PW4, Mr Ng", to be distinguished from DW3, Mr Ng) who operated the neighbouring stall (on the left side of P2-F) with his wife, he opened his stall from 6.00 am to 10.30 am to sell fried bee hoon. His wife re-opened the stall at about 4.00 pm to sell fried prawn crackers or "wu siang"(also called "ngo hiang").

(v) DW3, Mr Ng had not seen Ms Liu assist that stalls bee hoon business as that would be in the morning.

ASSESSMENT OF DW2, MR OHS CREDIBILITY

15. I had no doubts that DW2, Mr Oh was not a truthful witness. The clearest point against his evidence was his alleged presence on the day of the arrest, for the very purpose of helping at the accuseds stall. He embellished his evidence by stating that he was standing in front of the stall (at P2-F), and that Ms Liu was not assisting at all, but sitting at a table all the time. However, this was directly contradicted by Sgt Chia who was in the arresting party on 19 Sept 2000. Sgt Chia kept observation and witnessed Ms Liu standing beside the stall, later serving a customer and collecting payment for the plate of fried noodles. I had no reason to doubt Sgt Chias evidence on this aspect, which was totally unchallenged during cross-examination.

16. Indeed, until DW2, Mr Ohs evidence, there was nothing to suggest that he was even present on that day in question. DW2, Mr Oh was conspicuously absent from Ms Lius or Sgt Chias testimony, as well as Sgt Chias police report at P3A, about the events on the day of the arrest. It should be noted that DW2, Mr Ohs presence, and the defence version that DW2, Mr Oh (and not Ms Liu) was the helper on the day of the arrest, was not "put" to Ms Liu or Sgt Chia, hence transgressing the rule in Brown v Dunn [1893] 6 The Reports 67.

17. Further, DW2, Mr Ohs presence on that day did not surface at all in the accuseds own testimony he denied that he was the "cousin" who informed the accused about the "police raid at the stall". Neither was he specifically identified as one of the accuseds regular helpers. I was driven to find that DW2, Mr Oh was not the helper on 19 Sept 2000 and that on a material point, he had told a blatant lie in a transparent attempt to exculpate the accused. I also found his unequivocal testimony that "he never saw her (Ms Liu) working at the accuseds stall" must be a lie, if he was present on the 19 Sept 2000.

18. Further, when the police arrested Ms Liu and the accuseds brother, it was incredible that DW2, Mr Oh would not come forward to identify himself as the helper at the Fried Prawn Noodle stall. I rejected his explanation that he could not do so because "the police were shouting at me". When asked whether he was concerned that the accuseds brother was arrested, his remarkable answer was, "No, I was just sitting there." He also admitted that he had never told the police that he was the helper on the day of the arrest.

19. It was noteworthy that from DW2, Mr Ohs own evidence he did not usually go to the stall on Tuesdays and Wednesdays, as he would be at the Singapore Island Country Club. To explain his presence on the 19 Sept 2000, which was a Tuesday, DW2, Mr Oh said that the accused was unable to find any helper that day. I found that to be an afterthought. It was no coincidence that the accused mentioned nothing of that nature in his testimony.

20. While DW2, Mr Oh was prepared to say that he had seen Ms Liu working at the fried prawn cracker stall, he "did not know" who had employed Ms Liu, because "he did not speak to her". He also did not know what the accuseds brother had said to the police after the arrest because he "did not ask him about it". I found DW2, Mr Ohs testimony to be palpably contrived and untruthful on the material facts in issue.

ASSESSMENT OF DW3, MR NGS CREDIBILITY

21. It should be mentioned at the outset that DW3, Mr Ng was in no position to deny that if Ms Liu had worked for the accused from 12.00 noon to 3.00 pm on weekdays, he would not have personal knowledge, since he would be at work at that time. But more than that, I found that as the accuseds brother-in-law, who could "get...