Ramli bin Daud v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 02 September 1996
• Neutral Citation: [1996] SGHC 191
• Date: 02 September 1996
• Subject Matter: Illegal immigrant,Whether rebutted,ss 57(8), (9) & (10) Immigration Act (Cap 133),Standard of due diligence required after 1993 amendments,s 57(1)(e) & (8) Immigration Act (Cap 133),Whether presumption of knowledge in s 57(7) rebutted,Harbouring,Immigration,Employment,Presumption of employment,ss 57(1)(d), (7), (9) & (10) Immigration Act (Cap 133),Immigration offenders,Employing,Duty on appellant to check passports personally to determine immigration status,Whether duty delegable to agent or sub-contractor,Presumption of knowledge that workers were illegal workers
• Docket Number: Magistrate's Appeal No 369/95/01
• Published date: 19 September 2003
• Defendant Counsel: Wong Keen Onn (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Ismail Hamid (Edmond Pereira & Partners)

Background

The appellant was convicted in a district court on four charges under s 57(1) of the Immigration Act (Cap 133) (the Act). Two of the charges, DAC 11823/95 and DAC 11824/95, were in respect of the employment of two Thai nationals, contrary to s 57(1)(e) of the Act. The other two charges, DAC 11826/95 and DAC 11827/95, concerned the harbouring of the same two Thai nationals, contrary to s 57(1)(d) of the Act. The appellant was sentenced to eight months` imprisonment on each charge. Two of the terms were ordered to run consecutively (DAC 11823/95 and DAC 11827/95), with the other two terms running concurrently. Having dismissed the appeal, I now set out my reasons.

The case for the prosecution

The appellant was the director of In-Situ Builders Pte Ltd (In-Situ). In-Situ was the main contractor engaged for a construction project in respect of three units of terrace houses at 2A Langsat Road (the premises). The charges against the appellant averred that he had employed and harboured two Thai workers (PW4 and PW5 - referred to collectively as `the workers`). It was not disputed that the workers were immigration offenders. The workers were found by immigration officers working at the premises on 19 June 1995. Their personal belongings were also found on the premises. When called to testify as prosecution witnesses, they referred to the appellant as their `towkay`. They said that he was present at the premises and had given them instructions on what they had to do. Essentially, they were engaged as cleaners to clear up the debris.

The prosecution also led evidence from one Richard Yap who said that the appellant had given the workers permission to stay at the premises. Richard Yap had been contracted by the appellant to supply the workers. He testified that he received a call from the appellant`s office requesting for workers sometime in May 1995. He brought PW5 to the premises and introduced him to the appellant. He acted as an interpreter for PW5 when the appellant told the latter about the scope of the work, the wages and time of payment. Later, PW4 came to the premises looking for a job and the appellant agreed to employ him.

Richard Yap further said that the appellant paid PW5`s wages through him, and that the appellant was present when he handed PW5 his wages. PW4 was not paid since his wages were not due yet. Richard Yap testified that he was not involved in supervising the workers. He did not give them any instructions and had nothing to do with the works on the premises. He was charged together with the appellant for abetting the latter in the commission of the offences. He had pleaded guilty and was serving a jail sentence at the time of the appellant`s trial.

The defence

In his evidence-in-chief, the appellant agreed that he allowed the workers to stay at the premises. He confirmed this in cross-examination. In respect of the `employment` charge, however, the appellant maintained that he did not employ the workers. He did not pay them or exercise control over them. He agreed that he had given the workers instructions on what to do, and that he was physically present to ensure that they carried out the work. Nevertheless, he maintained that they were actually employed by other persons, such as Richard Yap.

The appellant said that the arrangements to engage the workers were made between Richard Yap and his clerical staff, one Evelyn Tee, together with one Mary Lwee. Mary Lwee had been engaged by the appellant as the sub-contractor in respect of the building project. Both Evelyn Tee and Mary Lwee were called as defence witnesses. Evelyn Tee testified that the appellant`s wife had informed her that two workers were needed for the clean-up work. She called Mary Lwee, who in turn told her to contact Richard Yap. Evelyn Tee did so and Richard Yap brought the workers to the premises. Richard Yap later called her to inform her that the salary for one worker, amounting to over $400, was due for payment. She informed the appellant about this but she did not handle any cash.

Alternatively, the appellant claimed that the workers were employed by Mary Lwee. Mary Lwee was responsible for the running of the project as well as for applying for work permits for foreign workers. He had left these matters to Mary Lwee, who had been awarded a lump-sum contract. As Mary Lwee was engaged in other projects, this compelled the appellant to attend personally at the premises and instruct the workers on the work to be done.

Mary Lwee agreed that she was supposed to procure the workers but was then too busy with her other projects. She said that she assisted the appellant to procure the workers by putting Evelyn Tee in touch with Richard Yap. When she visited the premises, she asked the workers for their passports. She was told that they were with Richard Yap. One of the workers showed her a work permit. She only saw it from a distance and she did not know whether it was genuine or forged. She denied that the workers were employed by her, or that she had exercised any supervision or control over them. She did not pay their wages, nor would she reimburse In-Situ for any such payment.

In the proceedings below, the appellant`s main defence related to one of the mens rea elements of both the `employment` and `harbouring` charges. He contended that he did not know that the workers were illegal workers. While he did not personally check on their immigration status, he had asked both Richard Yap and Mary Lwee to check on his behalf. Richard Yap told him that they were `legal` workers, and that an unknown Thai agent had their passports. Mary Lwee told him that she had checked their passports. He was under the impression all along that they possessed valid documentation to remain and work in Singapore.

When the workers were found on the premises, the appellant was also present. He admitted to the immigration officers that they were his workers, as he had no reason to suspect that they were immigration offenders. He also claimed that he had made payments for what he believed to be salaries and the levy for legally employed workers. This was based on his previous experience with Mary Lwee, when the latter had claimed $500 as a levy for each worker supplied.

The decision below

The district judge found the appellant guilty on the charges. His main findings are contained in the following passage in his grounds of decision:

On the facts, I found that the accused employed the workers. He was present at the premises when [Richard Yap] introduced the workers. He gave them instructions. He was the one who paid them. He was present at the premises when the raid was conducted. Though he claimed the premises was sub-contracted out, he was physically present to ensure the works were carried out as the sub-contractor [Mary Lwee] was busy elsewhere. The workers were foreigners yet he shut his eyes to the patently obvious fact that they could be illegal workers. He did not ask for their work permits or satisfy himself that they were legally in Singapore apart from merely asking whether they were legal and asking whether they had passports.

The appeal

In the petition of appeal, counsel contended that the district judge erred in various respects - in accepting Richard Yap`s evidence and the evidence of the workers; in finding that the appellant had employed the workers; and also in failing to appreciate that Mary Lwee was the employer of the workers as she was responsible for the site as an independent contractor. Counsel argued that the workers were already employed by Richard Yap even before meeting the appellant. Moreover, the appellant had relied on Richard Yap`s assurance that they were `legal` workers, and an unknown Thai agent had their passports.

At the hearing of the appeal, counsel emphasised that the prosecution had failed to prove the fact of employment beyond a reasonable doubt. This was premised on the argument that the evidence of the prosecution witnesses was fraught with discrepancies. It was conceded that the defence itself was unsatisfactory. Nonetheless, on account of the inconsistencies in the evidence of Richard Yap and the workers, it would be unsafe to uphold the conviction.

(i)The presumptions in the Act

At the outset, it would be useful to keep in mind the operative provisions in...