Shekhar a/l Subramaniam v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 12 February 1997
• Neutral Citation: [1997] SGHC 32
• Docket Number: Magistrate's Appeal No 289 of 1996
• Date: 12 February 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: SK Kumar (SK Kumar & Associates)
• Citation: [1997] SGHC 32
• Defendant Counsel: Lim Pek Bur (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Application for criminal revision,s 57(1)(iii)Immigration Act (Cap 133, 1995 Ed),Revision of proceedings,Whether to allow application,Appellant conveying prohibited immigrant into Singapore,Statutory offences,s 57(6)Immigration Act (Cap 133, 1995 Ed),Criminal Procedure and Sentencing,Appeal against sentence,Prosecution failing to prove that appellant engaging in business of conveying prohibited immigrants,Sentencing,Whether sentence carries mandatory minimum,Criminal Law,s 57(1)(c) Immigration Act (Cap 133, 1995 Ed),Immigration Act,Prosecution failing to include presumption in s 57(6) Immigration Act in the charge

The appellant in this case faced the following charge in the district courts:

You, Shekhar a/l Subramaniam (M/07.02.71) m/25 years

MIC No A1741873

MRP No H120703

are charged that you, on 25 Sept 96 at about 0845 hours, at the Woodlands Immigration Checkpoint, Singapore, did engage in the business of conveying to Singapore in a motor vehicle JAY 1334, one Veeraiah Thangamani, an Indian National whom you knew or had reasonable grounds for believing to be a prohibited immigrant and you have thereby committed an offence under s 57(1)(c) of the Immigration Act (Chapter 133) punishable under s 57(1)(iii) of the same Act.

According to the statement of facts tendered by the prosecution, the appellant was a lorry driver who had colluded with a male Indian named Segar to convey an Indian national named Veeraiah Thangamani (Veeraiah) into Singapore. The appellant was paid RM$100 by Segar for doing so. He was also informed that Veeraiah had no passport. The whole operation took place on 25 September 1996 and involved Veeraiah lying down at the rear of the appellant`s lorry, covered with a piece of canvas, whilst the appellant drove through the Woodlands Immigration Checkpoint. Unfortunately for the appellant and Veeraiah, immigration officers ambushed the lorry after it had already cleared the immigration checkpoint. The appellant was arrested and appeared in person before a district judge a few days later. He pleaded guilty to the charge set out above and was sentenced to two years` imprisonment, with three strokes of the cane. He brought an appeal against sentence as well as (subsequently) an application for criminal revision.

On 21 January 1997 both the appeal against sentence and the application for criminal revision came up for hearing before me (the appellant being legally represented by this stage). I dismissed them and now set out my reasons in writing.

The criminal revision

In respect of the application for revision, counsel for the appellant relied on three broad grounds. He pointed out, first, that the statement of facts adduced below showed the appellant to have engaged in only one isolated act of conveying a prohibited immigrant into Singapore. Counsel contended that, in order for the appellant to be convicted under s 57(1)(c) of the Immigration Act (Cap 133, 1995 Ed) (the Act), he must be shown to have engaged in more than a single act of conveying a prohibited immigrant: he must, in counsel`s words, be shown to have acted with some degree of `system, repetition and continuity`; and there was no evidence of such conduct in the statement of facts.

Counsel further referred me to s 57(6) of the Act, which provides:

Where, in any proceedings for an offence under ss (1)(c), it is proved that the defendant has conveyed any prohibited immigrant in any vehicle, vessel, aircraft or train, it shall be presumed, until the contrary is proved, that he is engaged in the business or trade of conveying to Singapore in or on that vehicle, vessel, aircraft or train that prohibited immigrant knowing him to be, or having reasonable grounds for believing him to be, a prohibited immigrant.

Counsel submitted that if the prosecution were relying in any way on this presumption, they should have included it in the charge against the appellant. Their omission to do so, he said, was fatal because it rendered the appellant`s plea of guilt equivocal.

Lastly, counsel contended that in any case the appellant was capable of rebutting the presumption in s 57(6)...