Public Prosecutor v Ong Phee Hoon James

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 26 June 2000
• Neutral Citation: [2000] SGHC 116
• Date: 26 June 2000
• Subject Matter: Whether weight of identification evidence affected,Whether presumption of mens rea rebutted,Meaning of "harbour",Weight of identification evidence affected,Whether identification evidence inadmissible,Breach of procedural requirements of identification parade,Immigration,Whether identification evidence not inadmissible,Whether vicarious criminal liability can be imposed for unknown illegal sub-tenants,Admissibility of evidence,Impeachment,Whether adverse inference can be drawn,Identification parade,Failure to call unavailable witness,Harbouring,s 57(7) Immigration Act (Cap 133, 1997 Rev Ed),Evidence,immigration offenders,Inconsistencies between court testimony and earlier police statements,Whether impeachment should be based on inconsistencies,Whether leasing of premises to immigration offenders constituted harbouring,Criminal Procedure and Sentencing,Witnesses,Weight of evidence
• Docket Number: Magistrate's Appeal No 179 of 1999
• Published date: 19 September 2003
• Defendant Counsel: Jennifer Marie and Christopher Tang (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Ang Sin Teck (Raja Loo & Chandra)

: The appellant, Ong Phee Hoon James, was charged with five counts of having harboured illegal immigration offenders under s 57(1)(d) of the Immigration Act. He was tried and convicted in the district court on all five charges. The district judge Zainol Abeedin Hussin (`the judge`) sentenced the appellant to eight months` imprisonment on each charge. Two of the five sentences were ordered to run consecutively while the remaining three terms were ordered to run concurrently. Consequently, a term of 16 months` imprisonment was imposed on the appellant.

The charges read :

DAC 015275/99 - the first charge

You, Ong Phee Hoon James @ Wang Pi Yun male/58 yrs NRIC No S0293287/C are charged that you between the month of July 1998 and 13 October 1998, at No 200 Jalan Sultan [num ]15-06, Textile Centre, Singapore, did harbour one Mostaffa, a Bangladeshi national (male 23 years), a person who acted in contravention of s 6(1)(c) of the Immigration Act (Cap 133), by entering Singapore without being in possession of a valid visit pass, whom you had reasonable grounds for believing to be a person who has acted in contravention of s 6(1)(c) of the Immigration Act, and you have thereby committed an offence under s 57(1)(d) of the Immigration Act, punishable under s 57(1)(ii) of the said Act.

DAC 015276/99 - the second charge

You, Ong Phee Hoon James @ Wang Pi Yun male/58 yrs NRIC No S0293287/C are charged that you between the month of July 1998 and 13 October 1998, at No 200 Jalan Sultan [num ]15-06, Textile Centre, Singapore, did harbour one Baskar Khan, a Bangladeshi national (male 20 years), a person who acted in contravention of s 6(1)(c) of the Immigration Act (Cap 133), by entering Singapore without being in possession of a valid visit pass, whom you had reasonable grounds for believing to be a person who has acted in contravention of s 6(1)(c) of the Immigration Act, and you have thereby committed an offence under s 57(1)(d) of the Immigration Act, punishable under s 57(1)(ii) of the said Act.

DAC 015277/99 - the third charge

You, Ong Phee Hoon James @ Wang Pi Yun male/58 yrs NRIC No S0293287/C are charged that you between the month of July 1998 and 13 October 1998, at No 200 Jalan Sultan [num ]15-06, Textile Centre, Singapore, did harbour one Miras, a Bangladeshi national (male 30 years), a person who acted in contravention of s 6(1)(c) of the Immigration Act (Cap 133), by entering Singapore without being in possession of a valid visit pass, whom you had reasonable grounds for believing to be a person who has acted in contravention of s 6(1)(c) of the Immigration Act, and you have thereby committed an offence under s 57(1)(d) of the Immigration Act, punishable under s 57(1)(ii) of the said Act.

DAC 015278/99 - the fourth charge

You, Ong Phee Hoon James @ Wang Pi Yun male/58 yrs NRIC No S0293287/C are charged that you between the month of July 1998 and 13 October 1998, at No 200 Jalan Sultan [num ]15-06, Textile Centre, Singapore, did harbour one Md Kalum, a Bangladeshi national (male 26 years), a person who acted in contravention of s 6(1)(c) of the Immigration Act (Cap 133), by entering Singapore without being in possession of a valid visit pass, whom you had reasonable grounds for believing to be a person who has acted in contravention of s 6(1)(c) of the Immigration Act, and you have thereby committed an offence under s 57(1)(d) of the Immigration Act, punishable under s 57(1)(ii) of the said Act.

DAC 015279/99 - the fifth charge

You, Ong Phee Hoon James @ Wang Pi Yun male/58 yrs NRIC No S0293287/C are charged that you between the month of July 1998 and 13 October 1998, at No 200 Jalan Sultan [num ]15-06, Textile Centre, Singapore, did harbour one Zakirul Islam, a Bangladeshi national (male 20 years), a person who acted in contravention of s 6(1)(c) of the Immigration Act (Cap 133), by entering Singapore without being in possession of a valid visit pass, whom you had reasonable grounds for believing to be a person who has acted in contravention of s 6(1)(c) of the Immigration Act, and you have thereby committed an offence under s 57(1)(d) of the Immigration Act, punishable under s 57(1)(ii) of the said Act.

On 1 October 1998, the appellant leased the premises at No 200 Jalan Sultan [num ]15-06, Textile Centre, Singapore (`the premises`) to a Bangladeshi national by the name of Ansar. The appellant and one Chua Guan Chye (`Chua`) had jointly purchased the premises as an investment.

At various times between July and October 1998, the five persons named in the five charges, namely Mostaffa (PW6), Baskar Khan (PW2), Miras (PW5), Md Kalum (PW3) and Zakirul Islam (PW4), were brought to the premises to stay. Each of them was told that the appellant was the owner of the premises and that they had to obtain his permission to stay at the premises. They were also informed that the rental of $150 per month was payable on the fifth day of every month.

At the trial, these five persons informed the court that they had been introduced to the appellant who had, in turn, granted them permission to stay at the premises. Thereafter, they stayed at the premises and paid the monthly rental to the appellant through various intermediaries.

On 13 October 1998, the police raided the premises and arrested 21 Bangladeshi nationals including the five illegal immigrants named in the charges. All five persons were illegal immigrants in that they had contravened s 6(1) of the Immigration Act. Section 6(1) provides:

No person, other than a citizen of Singapore, shall enter or attempt to enter Singapore unless -

(a) he is in possession of a valid entry permit or re-entry permit lawfully issued to him under section 10 or 11;

(b) his name is endorsed upon a valid entry permit or re-entry permit in accordance with section 12, and he is in the company of the holder of that permit;

(c) he is in possession of a valid pass lawfully issued to him to enter Singapore; or

(d) he is exempted from this section by an order made under section 56.

All of them had been charged and convicted for their illegal presence in Singapore. They were each sentenced to one month`s imprisonment and four strokes of the cane.

The defence

In his defence, the appellant stated that he had never seen any of the five illegal immigrants before. He claimed that in early 1998, he and Chua had rented the premises out to one Faruk. Faruk had agreed to pay a monthly rental of $1,850. A tenancy agreement dated 1 March 1998 was signed. In the course of Faruk`s occupation of the premises, Chua collected rent from him on about five occasions. Payment for the rest of the period was given to the appellant. Faruk stayed at the premises from March until September or October 1998 although he had agreed to stay for a year. The appellant stated that he was unaware of anyone other than Faruk and one Sony (a witness to the tenancy agreement) staying at the premises during Faruk`s tenancy.

In any event, the appellant contended that he had exercised due diligence in ascertaining that Faruk was not an illegal immigrant. He stated that he had checked Faruk`s passport and had noted that it bore a stamp indicating Faruk`s entry into Singapore sometime in late February 1998. The appellant had also asked for Faruk`s work permit but was told by the latter that he did not have one as he was a businessman. The appellant also asked for and was shown Sony`s passport. The details of Sony`s work permit were recorded next to Sony`s signature in the tenancy agreement. As a precaution, the appellant inserted a clause into the tenancy agreement requiring the tenant to ensure that no illegal immigrant visited or stayed at the premises. There was also a clause forbidding the tenant to assign, sublet or part with possession of the premises.

When Faruk gave up the tenancy, he introduced one Ansar to take over the premises on the same terms. Another agreement (exh P-6) was entered into with Ansar. Ansar moved into the premises on 1 October 1998. Subsequently, the appellant heard that police raided the premises on 13 October 1998.

The decision below

The judge found the appellant guilty as charged.

Identification of the appellant

The judge rejected the appellant`s defence that he had not seen any of the five illegal immigrants before. This was because the five illegal immigrants had no difficulty identifying the appellant as the owner of the premises. They claimed that they had each been introduced to the appellant when they were brought to the premises to stay.

Due diligence

The judge also did not accept the appellant`s claim that he had exercised due diligence in a manner that would afford him a defence to the offence under s 57(1)(d) of the Immigration Act with which he was charged. Section 57(1)(d) of the Immigration Act provides:

(1) Any person who -

...

(d) harbours any person who has acted in contravention of the provisions of this Act or the regulations;

...

shall be guilty of an offence ...

Section 57(9) of the same Act provides:

In any proceedings for an offence under subsection (1)(d) or (e), it shall not be a defence for the defendant to prove that the person harboured or employed by him was in possession of a pass or permit issued to the person under the Act or the Regulations unless the defendant further proves that he had exercised due diligence to ascertain that the pass or permit was at the material time valid under this Act or the regulations.

Section 57(10) (as it was before the amendment that came into effect on 5 October 1998) provides:

For the purposes of subsection (9) a defendant shall not be deemed to have exercised due diligence unless he had personally checked the passport or other travel documents of the person whom he had harboured or employed and had reasonable ground to believe that -

(a) the person...