Roy S Selvarajah v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 11 August 1998
• Date: 11 August 1998
• Docket Number: Magistrate’s Appeal No 33 of 1998
• Court: High Court (Singapore)

Roy S Selvarajah

Plaintiff

and

Public Prosecutor

Defendant

[1998] SGHC 272

Yong Pung How CJ

Magistrate’s Appeal No 33 of 1998

High Court

Criminal Law—Abetment—Intentionally aiding commission of offence of overstaying —Whether appellant could be prosecuted for abetment when overstayer had not been tried—Criminal Procedure and Sentencing—Charge—Particulars—Whether sufficient information in charge for appellant to be put on notice as to case against him—Whether charge of abetment rendered defective by Prosecution’s failure to provide particulars of intentional aiding—Sections 158, 159 and 160 Criminal Procedure Code (Cap 68, 1985 Rev Ed)—Criminal Procedure and Sentencing—Public Prosecutor—Whether appellant prejudiced by Prosecution’s choice not to proceed against accomplice—Whether Prosecution having ulterior motive in not calling certain witnesses—Criminal Procedure and Sentencing—Sentencing—Deterrence—Abetting of illegal overstayers to remain in Singapore—Reprehensibility of appellant’s conduct in keeping overstayer in Singapore although she wanted to return to India—Evidence—Admissibility of evidence—Hearsay—Whether computer records with Data Processing Centre at Immigration Department admissible—Whether information contained in records might be adduced solely through oral evidence of investigating officer —Section 380 Criminal Procedure Code (Cap 68, 1985 Rev Ed)—Immigration—Criminal offences—Abetting overstayer in remaining in Singapore—Sections 15 (1) and 15 (3) (b)Immigration Act (Cap 133, 1997 Rev Ed)—Section 109 Penal Code (Cap 224, 1985 Rev Ed)

The appellant, Selvarajah, was convicted of abetting one Nagammal to remain unlawfully in Singapore after the expiry of her visit pass, an offence under s 15 (1) of the Immigration Act (Cap 133, 1995 Rev Ed) (“the Act?), punishable under s 15 (3) (b) of the Act read with s 109 Penal Code (Cap 224, 1985 Rev Ed). Selvarajah was originally charged with Nagammal but at the commencement of the trial, the Prosecution applied to stand down the charge for overstaying against Nagammal and instead proceeded against the appellant. Nagammal then became a material prosecution witness against Selvarajah. The Prosecution led evidence from an investigating officer (“PW1?) and from an officer from the Ministry of Labour (“PW2?) to show that Nagammal was an overstayer.

The appellant objected to the admissibility of the evidence of PW1 and PW2 on the ground of hearsay and the objection was rejected by the district judge. Selvarajah appealed against conviction on the grounds that: (a) that the charge was defective; (b) the principal offence of overstaying under s 15 (1) of the Act was not made out; (c) the principal offender was not dealt with; (d) the principal offence was not shown to be committed as a result of Selvarajah’s abetment; (e) the conviction was not supportable; and (f) the manner in which the trial was conducted was prejudicial to the appellant. He also appealed against the sentence on the ground that it was manifestly excessive.

Held, dismissing the appeal:

(1) There was sufficient information in the charge for Selvarajah to be put on notice as to the case against him. There was no need for the Prosecution to state in the charge how Selvarajah intentionally aided Nagammal to overstay in Singapore. It was sufficient for the Prosecution to lead evidence, through its witnesses, of how he had intentionally aided her to overstay: at [36].

(2) PW1’s evidence that she checked the records with the Data Processing Centre in the Immigration Department which showed that Nagammal’s social-visit pass expired on 7 January 1995 was admissible via an exception to the hearsay rule. Whilst it was desirable to prove the statement in a document by the production of the document or a copy of the document within s 380 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed), there was no reason why the document could not be proved by direct oral evidence of what the document contained. PW1 was stating facts concerning the occurrence of the record itself, not about the truth of anything contained in the record: at [44] and [45].

(3) PW1’s evidence that she was informed by the Work Permit Department that no work permit was ever issued to Nagammal was hearsay and inadmissible. She relied entirely on a document issued by the Comptroller of Work Permits that was hearsay because it was made out of court and was relied on to prove the truth of the contents of the document. The document could not be admitted under s 380 of the CPC without leave of court since it was prepared in contemplation of criminal proceedings: at [47].

(4) PW2’s evidence that the Work Permit Department had sent an automatically-generated letter to inform the employers that their in-principle approval had expired was admissible to show that Nagammal did not turn up at the Work Permit Department and, accordingly, no work permit was ever issued: at [48].

(5) The fact that the principal offender, Nagammal, was not yet tried was not a bar to the conviction of Selvarajah who was alleged to have intentionally aided her. The evidence showed that the principal offence of overstaying was committed as a result of Selvarajah’s abetment. Selvarajah brought Nagammal into Singapore to work and was under a legal obligation to follow up with the documentation with the Work Permit Department but failed to do so. The evidence of all the employers was damning to Selvarajah who supplied Nagammal to work in their households. Nagammal’s testimony of how Selvarajah sent her to numerous homes was corroborated in material respects by the former employers: at [51] to [53].

(6) It was a matter of discretion for the trial judge whether to exclude an accomplice’s evidence on the ground that there was an obvious and powerful inducement for him to ingratiate himself with the Prosecution and the court. Further, there was no prejudice to Selvarajah in the manner in which the Prosecution was conducted especially in view of the strong corroborative evidence from no less than ten prosecution witnesses; there was no danger that Selvarajah was convicted based on the evidence of Nagammal alone: at [59] to [61].

(7) Selvarajah’s reprehensible conduct warranted a deterrent sentence. After bringing Nagammal to Singapore, he had no qualms about sending her to various households and in keeping her in Singapore for more than two years, despite her pleas to be allowed to return to India. Given the need to protect the public interest in deterring would-be offenders from abetting illegal overstayers to remain in Singapore, the sentence imposed was not excessive: at [67].

Aw Kew Lim v PP [1987] SLR (R) 443; [1987] SLR 410 (folld)

Daw Aye Aye Mu v PP [1998] 1 SLR (R) 175; [1998] 2 SLR 64 (refd)

Govindarajulu Murali v PP [1994] 2 SLR (R) 398; [1994] 2 SLR 838 (distd)

Lim Woon Cheng Anthony v PP [1997] 3 SLR (R) 123; [1998] 1 SLR 14 (distd)

Lim Young Sien v PP [1994] 1 SLR (R) 920; [1994] 2 SLR 257 (folld)

Ong Ah Yeo Yenna v PP [1993] 1 SLR (R) 349; [1993] 2 SLR 73 (distd)

Pipe v R (1966) 51 Cr App R 17 (refd)

PP v Annamalai Pillai Jayanthi [1998] 1 SLR (R) 305; [1998] 2 SLR 165 (folld)

Public Prosecutor v Datuk Tan Cheng Swee [1979] 1 MLJ 166 (folld)

R v Patel [1981] 3 All ER 94 (distd)

Subramaniam v Public Prosecutor [1956] 1 WLR 965 (folld)

Tay Kok Poh Ronnie v PP [1995] 3 SLR (R) 545; [1996] 1 SLR 185 (folld)

Turner v R (1975) 61 Cr App R 80 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)ss 158, 159, 160, 380 (consd);ss 378,379,380 (2) (iv),380 (4),381, 382,383

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

Evidence Act (Cap 97,1990 Rev Ed)ss 5, 116illus (g),157

Immigration Act (Cap 133, 1995 Rev Ed)ss 15 (1), 15 (3) (b) (consd);ss 6 (1),15 (3),57 (1) (e)

Penal Code (Cap 224,1985 Rev Ed)s 109 (consd);s 107 (c)

Civil Evidence Act1968 (c 64) (UK)

B Ganesh (Ganesha & Partners) for the appellant

Amarjit Singh (Deputy Public Prosecutor) for the respondent.

Judgment reserved.

Yong Pung How CJ

1 The appellant was tried and convicted of the following amended charge:

DAC 13213/97

You, Roy Selvarajah (M/1/3/61) SNRIC (P) S 1467915D are charged that you, between 8 January 1995 and 21 May 1997, in Singapore, did abet to wit by intentionally aiding one Meyyanathan Nagammal (F/12/4/59), an Indian national, in the commission of an offence of remaining in Singapore unlawfully after the expiry of the visit pass on 7 January 1995, which offence was committed in consequence of your abetment, and you have thereby abetted an offence under s 15 (1) Immigration Act (Cap 133) which is punishable under s 15 (3) (b) of the said Act read with s 109 of the Penal Code (Cap 224).

2 He was sentenced to six months’ imprisonment and nine strokes of the cane. He was also charged with harbouring the same foreigner in DAC 13214/ 97 but was acquitted of that charge. The appellant has appealed against the conviction and sentence in respect of the abetment charge. The Prosecution is not appealing in respect of the harbouring charge.

The Prosecution’s case

3 The Prosecution’s case was essentially that Meyyanathan Nagammal (“PW10?) remained in Singapore unlawfully for a period of two years after the expiry of her social visit pass on 7 January 1995, in contravention of s 15 (1) Immigration Act (Cap 133, 1995 Ed), and that the appellant had abetted her to commit the offence by intentionally aiding her. At the trial below, the Prosecution called a total of 20 witnesses. PW1, 2, 3, 4, 5, 6, 7, 9, 10, 11 and 13 gave evidence in respect of the abetment charge. PW10 was originally tried jointly with the appellant. At the commencement of the trial, the Prosecution applied to stand down the charge of overstaying under s 15 (1) of the Immigration Act against PW10. Instead it proceeded with the two amended charges against the appellant and turned PW10 into a material prosecution witness against the...