Soh Lip Hwa v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 03 September 2001
• Neutral Citation: [2001] SGHC 252
• Docket Number: Magistrate's Appeal No 137 of 2001
• Date: 03 September 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Tomas Ho Vei Liung (Chee & Teo)
• Citation: [2001] SGHC 252
• Defendant Counsel: Ravneet Kaur (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Benchmark sentences,Threefold test,Criminal Procedure and Sentencing,Employment,Benchmark sentence where accused claims trial,When additional evidence may be adduced,s 257(1) Criminal Procedure Code (Cap 68),Appeal,Mens rea,Sentencing,Motion to adduce additional evidence,Immigration,Whether appellant knows worker to be immigration offender,Whether element of employment made out,When statutory minimum term of imprisonment applies,Employment of immigration offender,s 57(1)(ii) Immigration Act (Cap 133- 1997 Ed),Whether imprisonment of one year manifestly excessive,Actus reus,s 57(1)(e) Immigration Act (Cap 133, 1997 Ed)

: This was an appeal against the decision of District Judge Audrey Lim when she convicted the appellant, Soh Lip Hwa (`Soh`), of an offence under s 57(1)(e) of the Immigration Act (Cap 133, 1997 Ed) for employing a China national, Zhou Xi Qiu, who had entered Singapore without a valid pass. Soh was sentenced to one year`s imprisonment. He appealed against his conviction and sentence. I dismissed the appeal and now give my reasons.

The charge

The charge against the appellant read as follows:

You, Soh Lip Hwa, Male/44 years, NRIC No. S2584327D, are charged that you, from a day in Jan 2000 till 8th day of March 2000, at various locations in Singapore, did employ one Zhou Xi Qiu [commat] Zhou Xi Qun, a China National, as general worker, whom you had reasonable grounds for believing to be a person who had acted in contravention of Section 6(1) of the Immigration Act; Chapter 133, by entering Singapore without being in possession of a Valid Pass issued by Controller of Immigration, Singapore, and you have thereby committed an offence under Section 57(1)(e) of the Immigration Act Chapter 133 and punishable under Section 57(1)(ii) of the said Act.

The undisputed facts

On 8 March 2000, Sgt Koh Ah Seng was on patrol duty when he was despatched to Block 749, Jurong West Street 73, [num ]12-143. He saw two China nationals, namely, Huang Xin Hwa (`Huang`) and Zhou Xi Qiu (`Zhou`) working in that unit which was under renovation at that time. They were unable to produce any documents when requested and were arrested. They were subsequently charged in court and convicted for being illegal immigrants.

The prosecution`s case

Soh was employed as a supervisor in a company known as Tops and Hui Design & Renovation (`Tops and Hui`), which was owned by one Ting See Sa Moi (`Ting`), since July 1999 when the company was first set up.

Soh`s job was to supervise the workers and the factory. According to Ting, every minor detail in the factory was handled by him. Soh was in charge of the workers and arranged for the workers to do their jobs at the project sites. When there was a project, drawings would be faxed to Ting. Soh would then arrange for the workers to go to the site and do all the measurements before commencing work. Every week he would advise Ting as to how much to pay the workers and she would withdraw the money from the bank for payment. If Ting was unable to do so, Soh could also withdraw the money to pay the workers, as Soh and Ting were joint signatories to the company`s bank account.

Soh was given almost complete control over the assignments given to Ting`s company. Soh had the authority to employ workers without Ting`s approval or consent and he had done so previously. Ting did not raise any objections to that as she thought he was more familiar with that line of work.

In 1999, Soh brought two China nationals, namely Zhou and Huang, to see Ting and asked her whether she wanted to employ them. Ting told him no, as her company was very small. When Ting asked the two China nationals whether they had work permits, Huang showed her a work permit. Zhou did not do so. Ting claimed that she could not understand the contents of the work permit as she did not know English. She testified that Soh had seen the work permit and told her that the work permit was genuine. Ting told Huang that she had no work for him at that time and that she would contact him if she had any work for him. She made a copy of Huang`s work permit.

Soh had informed Ting of a contract for cleaning works at Block 749, Jurong West St 73, [num ]12-143. Soh was in charge of the work to be done in that unit. As Ting was not free to attend to this herself, Soh told her that he would send workers to do the job, and suggested sending Huang. Ting agreed to it and told Soh he could send the person whose work permit she had photocopied to do the work. Ting testified that she did not instruct Soh to employ Zhou.

During the course of the investigations, two handphones were seized by Investigating Officer SSgt Anan s/o Balakrishnan. One of the handphones was seized from Zhou. That handphone, bearing the number 97870275, was registered in the name of Soh and the phone bills were sent to Soh`s residential address.

Ting testified that she had never purchased handphones for the company and had never given any handphone to anyone in the company. She never requested Soh to purchase handphones for the company. She also did not pay for Soh`s handphone or his handphone bills. Neither did she pay for any handphones or handphone bills for the workers.

The defence

Soh testified that he was formally employed by Ting from May 2000. Prior to that, he was employed by Home Shape Design and Construction (`Home Shape`), which was a company owned by Ting`s husband, Ngu Ting Tieh (`Ngu`). Soh would assist Ting whenever Ngu instructed him to do so.

Soh`s evidence was that, as a supervisor, he had no authority to employ any workers. His main job was to oversee the production line in the factory and he never went down to project sites. He acted on Ting`s or Ngu`s instructions and it was Ting, and not him, who was in charge of the day to day running of the business in Tops and Hui. According to Soh, Ting had told him of the work to be done at Block 749, Jurong West St 73, [num ]12-143. He testified that he was not in charge of the work to be conducted in that unit and did not supervise the workers for the project. However, he testified later that he had instructed workers to go to the unit to do work upon Ngu`s or Ting`s orders.

Soh got to know Zhou and Huang at a nearby canteen. One day both of them asked him whether any general work was available. Soh told them that they could ask Ngu at Home Shape. Soh brought them to see Ting and asked her whether she would employ them. Soh said that he did not see Ting check any work permit and was not aware whether she did so. However, he later testified that Ting told him after checking the work permit that it was genuine.

Soh`s defence was that it was Tops and Hui, and not he, who had employed Zhou and that Soh had acted on Ting`s instructions in sending Zhou to do the work. Zhou contacted Ting in the office to ask if there was any job for him. Ting told Soh to inform Zhou that there was a job for him and to ask him to report for work. Ting also paid $20 to him to be handed over to Zhou as Zhou`s salary for the work to be done.

Ting told Soh to apply for two handphone lines for the use of the company two to three years prior to 2000. At that time, Ting was at Home Shape. The handphone bearing the number 97870275 was the handphone that Home Shape instructed him to purchase. He handed this handphone to Zhou. The handphone was purchased for Home Shape, but the bill was sent to his residential address. According to Soh, this was because he did not bring an authorisation letter from Home Shape when he bought the handphone, but produced his identity card instead. He handed the phone bills to Home Shape for reimbursement or payment. He never asked Ngu whether he would pay or had paid the bills.

The decision below

The judge accepted Ting`s testimony that she had left Soh to supervise the work at the factory and on-site and to deploy and supervise workers. Ting`s testimony that Soh had the authority to hire workers without Ting`s consent was also accepted by the judge.

The judge found that Soh had brought Zhou and Huang to see her for employment. It was also found that Ting had asked to look at their work permits, and Huang produced one to Soh, who remarked that it was genuine and handed it to Ting. The judge believed Ting`s testimony that she had agreed to Soh`s suggestion in deploying Huang to do the cleaning work at the flat, as Huang had a work permit. Further, it was found by the judge that Ting never gave Soh permission to employ Zhou.

The judge found that there was clear indicia of employment by Soh. Firstly, in Soh`s long statement he admitted that he had informed Zhou that there was a job for him and asked him to come to work. Soh also demonstrated the work to Zhou and told him that he could return in one or two days. When Zhou returned, Soh directed him to do the cleaning work and gave him the address. The judge preferred Soh`s evidence in his long statement to his testimony in court, where he claimed that he had done all those things on Ting`s orders. Secondly, Soh handed Zhou his salary of $20 per day. Thirdly, Soh gave Zhou a handphone registered in Soh`s name to contact him for work. The judge also found Soh to be an inconsistent, evasive and untruthful witness. For instance, Soh`s evidence was that he did not know that Zhou and Huang produced their work permits to Ting and he did not see Ting check their work permits. However, he later testified that Ting told him that the work permits were genuine. Under such circumstances, Soh must have known that Ting had checked their work permits. Another discrepancy noted by the trial judge was that Soh testified that he did not supervise workers or go to project sites and he only worked in the factory, but he also testified that he did instruct workers to go to the unit at Blk 749 upon Ting`s or Ngu`s instructions. Yet another inconsistency was that Soh kept referring to Ting as his boss during the trial and as his employer in the long statement, but he kept denying that he was employed by Ting at the material time. He maintained that his employer was Ngu at that time, but Ngu was never mentioned in his long statement as his employer. The judge rejected Soh`s explanation that he regarded Ting as his employer when the statement was recorded, because he was then working for Ting, and thus did not mention Ngu as his boss. The judge held that it was inconceivable how Soh could have forgotten to mention Ngu, if Ngu had been involved in any way.

Accordingly the judge was satisfied beyond reasonable doubt that Soh had employed Zhou at the material time and Soh...