Public Prosecutor v Tan Kim Seng Construction Pte Ltd and Another

• Jurisdiction: Singapore
• Judgment Date: 03 June 1997
• Date: 03 June 1997
• Docket Number: Magistrate's Appeal No 195 of 1996
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Tan Kim Seng Construction Pte Ltd and another

Defendant

[1997] SGHC 147

Yong Pung How CJ

Magistrate's Appeal No 195 of 1996

High Court

Criminal Law–Offences–Employment of foreign workers without valid work permits –Whether elements of offence made out against company–Whether there was employment of worker–Whether absence of valid work permit–Section 5 Employment of Foreign Workers Act (Cap 91A, 1991 Rev Ed)–Criminal Law–Offences–Employment of foreign workers without valid work permits –Whether elements of offence made out against managing director–Whether company committing offence–Whether managing director was director of company at that time–Whether employment occurring as result of his neglect–Section 5 Employment of Foreign Workers Act (Cap 91A, 1991 Rev Ed)–Criminal Procedure and Sentencing–Statements–Previous inconsistent statement –Factors to be considered when according weight to statement–Section 147 (5) Evidence Act (Cap 97, 1990 Rev Ed)–Immigration–Employment–Illegal foreign worker–Employment without valid work permits–Whether employment proven beyond reasonable doubt–Section 5 Employment of Foreign Workers Act (Cap 91A, 1991 Rev Ed)

The first respondent (“the company”) was charged with employing foreign workers without a valid permit, contrary to s 5 (1) of the Employment of Foreign Workers Act (Cap 91A, 1991 Rev Ed) (“the Act”). The second respondent, who was managing director of the company, was charged with neglect in permitting the company to employ the said workers contrary to s 5 (6) of the Act. The foreign workers stated that they obtained work from one Ang, whom they considered as their “boss” and who paid their salaries. Ang testified that he was merely the company's subcontractor. This testimony contradicted his prior statement that he had employed the workers on the company's behalf.

The magistrate did not find any link between the foreign workers and the respondent. In this regard, the magistrate found that Ang was shown to be a rather easily-confused person and no reliance could be placed on his prior inconsistent statement. Accordingly, the magistrate held that the Prosecution failed to prove the case beyond a reasonable doubt, and the respondents were thus acquitted. The Prosecution appealed.

On appeal, the Prosecution submitted, inter alia, that the magistrate failed to draw the appropriate inferences from the evidence and ought to have given sufficient weight to Ang's prior inconsistent statement.

Held, dismissing the appeal:

(1) In order to succeed against the company, the Prosecution needed to show that the elements of the offence were made out, namely (a) employment of a worker, and (b) the absence of a valid work permit. As for the second respondent, the Prosecution had to establish (a) that the company committed the offence, (b) he was a director of the company at that time and (c) the employment occurred as a result of his neglect: at [13].

(2) Bearing in mind the obvious purpose of the Act, which was the regulation of foreigners working in Singapore, the offence-creating section was clearly targeted at those having a direct say in whether such foreigners were able to work here; in that respect, both control and remuneration would be the most crucial factors indicating employment. Such control had to be real and substantial. It would not be absent simply because a layer of contracts or corporations was interposed between the putative employer and employee. But neither would it be present simply because the putative employer happened to have some say in the affairs of an intermediary, for example, if that intermediary was a subsidiary. The Prosecution had to establish real and substantial control beyond a reasonable doubt: at [17].

(3) By virtue of s 157 of the Evidence Act (Cap 97, 1990 Rev Ed), Ang's credit could be impeached by the Prosecution using the prior inconsistent statement, provided there was consent of the court. Such impeachment would require that the contradictions materially affected the witness's credibility. It did not necessarily however mean that the whole of the witness's evidence was rejected. The contradictions concerned the precise nature of the relationship between Ang and the second respondent. Accordingly, the contradictions were material and affected Ang's credibility as a witness. Ang's credit was impeached: at [23].

(4) The use of prior inconsistent statements for the truth of the facts stated was governed by s 147 of the Evidence Act. In that regard, the contemporaneity of a statement with an incident was important for it guards against inaccuracy. In addition, the weight to be accorded to a prior inconsistent statement would be affected materially by an explanation of the inconsistency, and why that statement was an inaccurate representation of the facts. Regard should be had to the context of the statement and the cogency and coherence of the facts to be relied upon. In view of the circumstances affecting the statement, the weight to be accorded to the inconsistent parts concerning the control exerted over Ang by the second respondent was minimal: at [24], [27], [29] to [31].

(5) There was no other evidence of control or remuneration by the respondents. There was no evidence anywhere of any relationship directly between the workers and the second respondent. Accordingly, the Prosecution did not establish the elements of the offence and had therefore not proven its case beyond a reasonable doubt. The charge against the first respondent was also not established; consequently that against the second respondent also failed: at [40] to [45].

Foong Seow Ngui v PP [1995] 3 SLR (R) 254; [1995] 3 SLR 785 (distd)

Garmaz s/o Pakhar v PP [1995] 3 SLR (R) 453; [1995] 3 SLR 701 (folld)

Lee Boon Leng Joseph v PP [1996] 3 SLR (R) 655; [1997] 1 SLR 445 (folld)

PP v Heng Siak Kwang [1996] 1 SLR (R) 603; [1996] 2 SLR 274 (folld)

PP v Sng Siew Ngoh [1995] 3 SLR (R) 755; [1996] 1 SLR 143 (folld)

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 (distd)

Regina v Lucas (Ruth) [1981] QB 720 (folld)

Employment of Foreign Workers Act (Cap 91A, 1991 Rev Ed) s 5 (consd);ss 5 (1), 5 (6), 6

Evidence Act (Cap 97, 1990 Rev Ed) s 147 (5) (consd);ss 147, 157

Immigration Act (Cap 133, 1995 Rev Ed)

Amarjit Singh (Deputy Public Prosecutor) for the appellant

R Palakrishnan and Dominic Nagulendran (Palakrishnan & Partners) for the respondents.

Yong Pung How CJ

1 The respondents were acquitted by the magistrate of charges relating to the employment of illegal foreign workers. The Prosecution appealed. After hearing arguments from the Prosecution, this court dismissed the appeal. As the issues raised were of some importance, I set out below my reasons for dismissing the appeal.

2 The first charge against the first respondents was as follows:

You, Tan Kim Seng Construction Pte Ltd of 163 Ang Mo Kio Ave 4, #01-480 S 560163 are charged that you, from on or about mid-October 1994 to mid-December 1994 at Lorong M, Telok Kurau, Singapore, did employ a foreign worker, namely one Lim Kim Teah (MBIC No: 550725-08-5387) when you had not obtained in respect of the said Lim Kim Teah a valid work permit allowing him to work for you, and you have thereby committed an offence under s 5 (1) of the Employment of Foreign Workers Act (Cap 91A) punishable under s 5 (4) of the same Act.

The second charge was in the same terms, save that it involved another foreign worker, one Lee Wooi Sang. The second respondent, the managing director of the first respondents, was charged as follows:

You, Tan Kim Seng, NRIC No SS180509F, of Blk 114 Yishun Ring Road #04-579 S 760114, are charged that you on or about 23 September 1994 were a managing director of Tan Kim Seng Construction Pte Ltd of 163 Ang Mo Kio Ave 4 #01-480 S 560163 which had from on [sic] or about mid-October 1994 to mid-December 1994 committed an offence of employing a foreign worker, namely one Lim Kim Teah (MBIC No: 550725-08-5387) without having obtained a valid work permit allowing him to work for the said company under s 5 (1) of the Employment of Foreign Workers Act (Cap 91A), and the commission of which offence was attributable to your neglect, and you have thereby by virtue of s 5 (6), committed an offence under s 5 (1) of the Employment of Foreign Workers Act (Cap 91A) punishable under s 5 (4) of the same Act.

The facts

3 The two workers, Tan and Lim, gave evidence that they had sought and obtained work from one Ang Lye Thiam (“Ang”) in October 1994. Ang assigned them to paint at a house at Lorong M Telok Kurau. There, the two worked seven-hour days, six days a week until December 1994. They were paid by Ang, whom they considered their “boss”. Ang himself gave evidence that the two were indeed employed by him. However, Ang claimed that he was not an employee of the first respondents, but a subcontractor. The respondents were not consulted by him on the employment of the workers nor did they pay the workers' salaries.

4 The Prosecution sought to impeach Ang's credit using a statement given by him earlier. The inconsistent portions of that statement disclosed that Ang had employed the workers on behalf of the second respondent, and that the second respondent would apply for work permits for them if he found them suitable. Ang's explanation for the statement was that it was made in relation to another occasion when the workers had been working at the National University of Singapore. He had also meant to say in the statement that he sought the second respondent's help in trying to obtain permits for the workers as he himself could not do so.

5 The...