R Alagiyasolan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 08 March 2006
• Neutral Citation: [2006] SGHC 40
• Docket Number: Magistrate's Appeal No 137 of 2005
• Date: 08 March 2006
• Published date: 08 March 2006
• Year: 2006
• Plaintiff Counsel: Palaniappan S (Straits Law Practice LLC)
• Citation: [2006] SGHC 40
• Defendant Counsel: April Phang (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Section 147(6) Evidence Act (Cap 97, 1997 Rev Ed),Whether safeguards in s 147(6) Evidence Act followed,Substitution of statements for oral evidence,Appeal against conviction of offence under s 57(1)(e) Immigration Act for employing overstayer,Employment,Whether conviction should be overturned,Evidence,Weight of evidence,Sections 57(1)(e), 57(9), 57(10) Immigration Act (Cap 133, 1997 Rev Ed),Immigration,Defence in s 57(9) Immigration Act not pleaded,Overstayer,Whether trial judge placing undue weight on statements,Whether due diligence test in s 57(10) Immigration Act applicable

8 March 2006

Yong Pung How CJ:

1 The appellant was convicted on a charge of employing an illegal immigrant under s 57(1)(e) of the Immigration Act (Cap 133, 1997 Rev Ed) (“the Act”) and sentenced to 12 months’ imprisonment. The appellant appealed against conviction only. I dismissed the appeal and now give my reasons.

Background facts

2 The appellant had employed one Anthony Samy s/o Arokia Samy (“Anthony”), an Indian national who had entered Singapore on 21 August 2004 and remained here illegally after the expiry of his social visit pass. The charge against the appellant read as follows:

You, … 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 s 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.

3 At the material time, the appellant was the operations manager of Jacin Security Services (“JSS” or “the company”), a company licensed by the police to provide security services. Under its licence, JSS is permitted to employ Singaporean and Malaysian citizens as security guards. JSS is owned by one Ramani s/o Murugiah (“Ramani”) and provides security services to, inter alia, The Madeira, a condominium located along Bukit Batok Street 31 (“the condominium”). Sivakami d/o Moorli (“Sivakami”) was employed as a supervisor by JSS and was the supervisor in charge of the security guards at the condominium.

4 The appellant received a salary of $1,000 to $1,200 a month and his tasks included the recruitment and deployment of manpower, liaising with clients and effecting salary payments to security guards. It was his duty to obtain an applicant’s personal particulars, photograph, copies of educational papers and testimonials, so as to submit an application to the Licensing Division of the Singapore Police Force (“the Licensing Division”) for approval to employ the applicant. An additional clearance certificate from the Malaysian government or work permit was required of applicants who were Malaysian citizens. Under reg 12(1)(b) of the Private Investigation and Security Agencies Regulations (Cap 249, Rg 1, 2000 Rev Ed) (“the Regulations”), only after approval had been obtained could the applicant be employed by the company as a security guard.

5 Anthony was introduced to Sivakami by a friend and subsequently stayed at Sivakami’s flat in Choa Chu Kang Central for a rental fee of $150 a month. It was undisputed that Sivakami knew Anthony was an Indian national. Sivakami offered Anthony work as a relief security guard at the condominium and he started work on 11 October 2004. Anthony worked two to three days a week and was remunerated the sum of $35 a working day or $1,050 a month.

6 Anthony was arrested on 23 November 2004 when the police conducted a raid on Sivakami’s flat. He pleaded guilty to an offence under s 15(3)(a) of the Act for unlawfully remaining in Singapore for 79 days and was convicted and sentenced to one month’s imprisonment. Sivakami pleaded guilty to having abetted the appellant in employing Anthony and another illegal immigrant and agreed to have two other charges of harbouring Anthony and the other illegal immigrant taken into consideration for the purpose of sentencing. Sivakami was convicted and sentenced to serve a total of nine months’ imprisonment.

Evidence at the trial below

Anthony’s evidence

7 Anthony was the Prosecution’s main witness at the trial below. In a statement to the police recorded on 29 November 2004 (P8), Anthony stated that he received his salary on three occasions:

(a) $100 on 20 October 2004;

(b) $550 on 4 November 2004; and

(c) $200 on 22 November 2004.

He received his salary from the appellant directly on the first two occasions and from Sivakami on the third. Anthony also stated that he had paid Sivakami rent on four occasions:

(a) $100 when he shifted in;

(b) $50 about four days later;

(c) $150 in November 2004 after he received his salary; and

(d) $175 after he received $200 from her.

8 The relevant question and answer portion in Anthony’s statement (P8) is as follows:

Q 17: When did [the appellant] first meet you?

A 17: He met me about 3 days after I started work. It was sometime about 14 October 2004 in the morning. He saw me at the guard house. He asked me whether I am the new worker brought in by [Sivakami]. … He also asked me to submit a copy of a Singapore IC and two photos.

…

Q 20: Does [the appellant] know that you are an Indian national?

A 20: Yes. He did ask me where I am from and I replied that I am from India. He told me not to identify myself as an Indian national.

9 The relevant portions of Anthony’s further statement to the police recorded on 6 December 2004 (P8A) are reproduced below:

Q 5: Did [the appellant] tell [Ramani] anything about you?

A 5: [Ramani] asked [the appellant] whether I am an Indian national or local. [The appellant] replied that I am a younger brother of a Singaporean friend. I heard the conversation and understood it as it was in Tamil.

…

Q 8: Did you introduce yourself as a Malaysian to [the appellant]?

A 8: No.

…

Q 13: Does [the appellant] know that you are an Indian national?

A 13: Yes. I told him.

Q 14: Does [the appellant] know that you were staying at [Sivakami’s] house?

A 14: Yes. [Sivakami] have spoken to [the appellant] asking for the rent amount to be paid directly to her from my salary. I told [the appellant] not to do so and that I would pay her once I received my salary.

Anthony twice testified that he had given both statements voluntarily.

10 At trial, however, Anthony’s evidence was that he first met the appellant at the condominium on 13 October 2004, when the appellant asked him for his photograph and National Registration Identity Card (“NRIC”). He told the appellant that he did not have these documents with him and would hand them to the appellant in two days. Subsequently, neither the appellant nor Sivakami asked Anthony to produce the documents and Anthony did not see the appellant again. Anthony testified that since the appellant asked for his NRIC, the appellant must have assumed he was a Singaporean and therefore did not ask him what his nationality was. Anthony also testified that he did not say anything in reply to the question posed by the recorder of his statement (P8) as to whether the appellant knew that he was an Indian national. He explained to the court that he told Sivakami that he was an Indian national and wanted a job and thought Sivakami would have related this to the appellant.

11 Anthony further testified that he did not receive his salary directly from the appellant. Sivakami would collect his salary on his behalf, deduct the rental moneys due to her and hand the balance to him. He said that his entire salary from the time he started work until his arrest was $550, and that he only received two payments from Sivakami totalling $325 after she deducted the rental moneys due to her. He denied saying in his statement (P8) that the appellant paid him directly on two occasions.

12 On further examination by the Prosecution, Anthony said that on 22 November 2004, the night before his arrest, he asked Sivakami how was it that he had not received any salary, and was told that his rental sum had been deducted from his salary. He then said he remembered that on the eve of his arrest, Sivakami collected $225 and paid him $40 after deducting the rental sum.

13 In view of the patent inconsistencies between Anthony’s statements (P8 and P8A) and his testimony, the Prosecution applied to cross-examine Anthony after he was allowed, pursuant to s 161 of the Evidence Act (Cap 97, 1997 Rev Ed), to refer to his statements to refresh his memory. The application was allowed and after refreshing his memory, Anthony confirmed the three occasions on which he received his salary, namely, $100 on 20 October 2004, $550 on 4 November 2004 and $200 on 22 November 2004. Anthony clarified, however, that what he meant by the appellant paying him “directly” was that the appellant paid his salary over to Sivakami in his presence. Sivakami would immediately deduct the rent owed to her and give Anthony the balance on the spot. He repeated that the appellant had asked him where he was from and he reported that he was from India, whereupon the appellant told him not to identify himself as an Indian national.[note: 1] Anthony clarified that when the appellant first asked him for his NRIC and photograph, he thought that the appellant did not know that he was an Indian national.

14 On cross-examination by counsel for the Defence, Anthony testified that the appellant only spoke to him on the one occasion on 13 October 2004 when the appellant asked for his NRIC and photograph, and he agreed to give the documents to him two days later even though he had no valid identification documents. Anthony had also seen the appellant come by the guardroom on about three occasions; Anthony saw the appellant at close range on two occasions and at a distance on one occasion. On the occasions that Anthony saw the appellant at close range, the appellant had come to “hand over the salary to Sivakami”.

15 Anthony also testified that he witnessed the proprietor of JSS asking the appellant who he was, remarking that he looked like someone from India, to which the appellant replied that he was the brother of a Singaporean friend. Both Ramani and the appellant subsequently testified, however, that such a conversation had never taken place.

16 Surprisingly, Anthony then testified that he had never told the appellant that he was an Indian national...