Public Prosecutor v R Alagiyasolan

• Jurisdiction: Singapore
• Judge: Roy Grenville Neighbour
• Judgment Date: 09 December 2005
• Neutral Citation: [2005] SGDC 253
• Court: District Court (Singapore)
• Year: 2005
• Published date: 28 January 2014
• Defendant Counsel: S Palaniappan (Defence Counsel),ASP Teo Keng Beng (Public Prosecutor)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Principles,Mitigating factors,Ill health,Accused suffering from diabetes, elevated cholesterol level and ischaemic heart disease, and having undergone angioplasty,Accused able to work and be gainfully employed,Whether accused presenting evidence that his ill health was of such a serious nature that his case should be regarded as exceptional and justifying reduction in sentence,Offence committed over short period of time,Accused employing overstayer for relatively short period of one and a half months,Whether relevant to the accused's sentence,Whether there was evidence to show accused would not have continued to employ overstayer had he not been arrested,Immigration,Employment,Overstayer,Accused, the operations manager of security company, responsible for recruiting and deploying manpower and making salary payments to security officers,Member of accused's staff who was supervisor in charge of security guards at condominium hiring one Anthony, an overstayer, as relief security guard,Accused meeting Anthony once and asking for his photograph and identity card, but not following up on matter,Accused failing to apply to police for approval to employ Anthony as security guard,Whether accused knowing or having reason to believe Anthony was overstayer,Whether accused exercising due diligence to ensure that Anthony not overstayer,Whether accused having grace period of between two weeks and one month to submit application to police for approval to employ Anthony,Sentence,Sections 57(1)(e), 57(1)(ii), 57(9), 57(10) Immigration Act (Cap 133, 1997 Rev Ed); reg 12(1)(b) Private Investigation and Security Agencies Regulations (Cap 249, Rg 1, 2000 Rev Ed)
• Citation: [2005] SGDC 253

9 December 2005

District Judge Roy Grenville Neighbour:

At the commencement of the hearing, the accused claimed trial to the following charge, namely:-

DAC No 33397/2005 [Exhibit P2]

“You

R Alagiyasolan, male 39 years

DOB. 10.02.1966

NRIC No. S1781716-G

are charged that you from October 2004 till 23 November 2004, at “The Madeira Condominium” located along Bukit Batok, Street 31, Singapore, did employ one Anthony Samy s/o Arokia Samy, m/23 yrs, an Indian national, as a security guard, whom you had reasonable grounds for believing to be a person who had remained unlawfully in Singapore after the expiry of his social visit pass on 4 September 2004, in contravention of section 15(3) of the Immigration Act (Chapter 133), and you have thereby committed an offence under Section 57(1)(e) of the Immigration Act, Chapter 133, punishable under Section 57(1)(ii) of the said Act”

At the conclusion of the whole case, the accused was found guilty and convicted on the charge. He was sentenced to 12 month’s imprisonment. Dissatisfied, the accused has appealed against the conviction and sentence. The accused is currently on bail pending appeal.

The Facts

It was not disputed that on 23 Nov ’04 at about 9.00 p.m. W/Sgt Tan Ann Ann attached to the Crime Control Unit, Jurong Police Station conducted a raid at Blk 210, #03-176, Choa Chu Kang Central. There in the presence of one Sivakami d/o Moorli (Sivakami), one Anthony Samy s/o Arokia Samy (Anthony), Kathivesan Balakrishnan and one Mani were arrested as they were suspected of being illegal immigrants. Anthony and Mani were not in possession of any valid travel documents. Kathivesan Balakrishnan was found to be in possession of an identity card No S1560885-D belonging to one Kathiresan s/o Krishnan. Sivakami was arrested for harbouring immigration offenders.

Consequently, investigations revealed that Sivakami was employed as a supervisor by Jacin Security Services and was in charge of security guards at the Madeira Condominium at Bukit Batok Street 31. The sole proprietor of Jacin Security Services, Ramani s/o Murugiah (Ramani) testified that the company is licensed by the police to provide security services. The company provides security services to Madeira Condominum and to several other buildings in Singapore. Under the licence, the company employs security guards who are Singaporeans and Malaysian citizens.

At the material time, the accused was the company’s Operation’s Manager charged with the responsibility to recruit and deploy manpower, liaise with clients and effect salary payments to security officers. At Madeira Condominium, the accused was responsible for the recruitment of security guards. It was his duty to obtain an applicant’s personal particulars and to submit an application to the Licensing Division of the Singapore Police Force for approval to employ the applicant because a person can only be employed as a security guard after approval has been granted. When applications are submitted to the Licensing Division, the applicant is required to provide a photograph and photostated copies of his educational papers and testimonials, to be attached to the application. In respect of Malaysian citizens, a clearance certificate from the Malaysian government or a work permit is required. All applicants are also screened with the police for criminal records. Once approval is granted, a guard may commence work. However, in Oct and Nov ’04, Mr Ramani stated that the company was given a grace period of 2 weeks to submit an application to the Licensing Division and obtain approval for a security guard to work. Thus, it was possible for a guard to work on site pending approval from the Licensing Division. The company would be penalized by the Licensing Division if it employs a guard after this period.

The prosecution’s main witness, Anthony, an Indian national, testified that on 21 August ’04, he entered Singapore with three friends from Johore with the help of an agent in Malaysia and was issued with a Social Visit Pass (SVP) to remain in Singapore for a period of 14 days. The pass was valid till 4 Sep ’04. However, after the expiry of the SVP, Anthony did not leave Singapore and instead chose to remain in the country illegally. Anthony stated that upon entering Singapore he stayed in a house at Teck Whye for two days. Thereafter, he stayed with friends at various places.

On or about 22 Sep ’04, Anthony stated that one Vijayakumar a friend, took him to Sivakami’s flat. By then Anthony’s SVP had expired. Sivakami whom Anthony called “Akka”, or elder sister in Tamil, knew that Anthony was an Indian national because Vijakumar had told her that he was an Indian national and to provide him with accomodation. Sivakami never asked to see Anthony’s passport. Anthony testified that when Sivakami met him she asked him if he was working. When Anthony told her that he was unemployed, Sivakami told him that he could not stay at the flat but could only sleep at the flat at night. As Anthony had some money, he paid Sivakami some money and she permitted him to stay at the flat till 6^th or 7^th October ’04. Anthony stated that as he was fast running out of funds, he accepted Sivakami’s offer to work as a relief security guard at the Madeira Condominium. Subsequently, Anthony learnt that Sivakami was employed as a supervisor by Jacin Security Services and was in charge of the guards at the Maderia Condominium. Anthony testified that on 11 Oct ’04, when he reported for work as a security guard, Sivakami gave him a Jacin Security Services guard’s uniform to wear and to report to the car park for duty. On 12 Oct’04, he had no work. On 13 Oct’04, he reported for work and continued working till the day of his arrest. As a security guard he worked two to three days in a week and was remunerated $35 a working day or $1,050 per month for a shift from 8.00 a.m. till 8.00 p.m. He paid Sivakami a sum of $150/- as rent to stay at her flat. Besides Anthony, one Gobi and Kathiresan were also residing at her flat. They too, were working as security guards at the Condominium.

On 13 Oct ’04, Anthony stated that when he first saw the accused at the Condominium, he did not know who the accused was. Approximately, three days later, Sivakami told him that the accused was called “Sam”, who was the manager at the condominium and paid the workers their salaries. On this occasion the accused spoke to him and asked him for his photograph and National Registration Identity Card (NRIC). Anthony told the Accused that he did not have them with him and that he would hand them to him in two days. After that, the accused did not ask Anthony for the documents and neither did Sivakami request him to produce the said documents to her. Anthony stated that the accused did not ask him what nationality he was. He said since the accused had asked for his NRIC, the accused must have thought that he was a Singaporean. Anthony stated that thereafter, he did not see the accused again. He also said he did not know who was responsible for hiring or terminating the services of the security guards at the condominium

Anthony testified that when he was renumerated, his salary was paid to Sivakami and not to him. Sivakami would after deducting the rental monies due to her, give whatever monies remaining to him. He said that from his salary of $550/-, he received only two payments of $325/- from Sivakami.

In view of Anthony’s evidence, the prosecution applied to cross-examine him after he was allowed to refer to his police statement (P8) to refresh his memory under section 161 of the Evidence Act. The application was allowed. After refreshing his memory, Anthony confirmed that he received a salary of $100/- on 20 Oct’04 and a sum of $550/- on 4 Nov’04. On 22 Nov ’04, the night prior to his arrest, Anthony stated that Sivakami had told him that the rent was deducted from his salary and that he would not be receiving any money. Then he said Sivakami had collected a sum of $225/- and after deducting the rent due to her, she paid him a sum of $40/-. After refreshing his memory he stated that he received a sum of $200/- from Sivakami. He denied stating in his statement that the accused had directly paid him his salary on the first two occasions on 20 Oct’04 and 4 Nov’04. He clarified stating that the monies were paid in his presence by the accused, to Sivakami. Immediately, Sivakami after deducting the rental monies, would pay him the balance. However, in his statement (P8) Anthony stated that he paid rent of $100 to Sivakami when he first shifted in. Approximately 4 days later, he paid her a further sum of $50. In Nov’04, after receiving his salary, he paid Sivakami $150 as rent. The last rental payment he made was a sum of $175 after he had received his salary of $200 from Sivakami.

Anthony also denied stating in his statement that the accused knew that he was an Indian national. He claimed that he did not say anything to the recorder in reply to the question. He had told Sivakami that he was an Indian national and wanted a job. He thought that Sivakami would have related this to the accused. He said that he did not know who was responsible for hiring and firing of relief security guards like him. Upon refreshing his memory, Anthony admitted that he did state in his statement that the accused had asked him where he was from and he had stated that he was from India. The accused then told him not identify himself as an Indian national.

At the conclusion of Anthony’s testimony, the prosecution, in accordance with section 147 of the Evidence Act, applied to the court to substitute Anthony’s oral evidence with the evidence in his statement which he had voluntarily given to the police during the investigations. The application was allowed and two statements recorded from Anthony namely, (P8) recorded on 29 Nov ’04 and a further statement (P8A) recorded on 6 Dec ’04 were admitted in evidence. In reference to Anthony’s oral testimony...