Tan Choon Kin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 10 September 2002
• Neutral Citation: [2002] SGHC 209
• Date: 10 September 2002
• Subject Matter: Immigration,Witnesses,Corroboration,Appeal,s 136 Evidence Act (Cap 97, 1997 Ed),Employment,Whether appellant has necessary mens rea,Appeal against trial judge's findings of fact,Criminal Procedure and Sentencing,Foreign worker receiving salary from appellant,ss 57(1)(e), 57 (9) & 57 (10) Immigration Act (Cap 133, 1997 Ed),Whether task of verifying immigration status delegable,Appellant employing illegal foreign worker without verifying his immigration status,Whether and when appellate court can disturb such findings,Whether witness's testimony requiring corroboration,Illegal foreign worker,Evidence,Conviction of appellant on basis of witness's testimony,Whether elements of offence made out,Foreign worker regarding appellant as boss,Whether requirement of multiplicity of witnesses exists
• Docket Number: Magistrate's Appeal No 124 of 2002
• Published date: 19 September 2003
• Defendant Counsel: Tai Wei Shyong (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Palakrishnan SC (Palakrishnan & Partners)

Judgment

GROUNDS OF DECISION

This was an appeal against the decision of district judge Audrey Lim. The appellant, Tan Choon Kin (‘Tan’), was convicted of an offence under s 57(1)(e) of the Immigration Act (Cap 133) (‘the Act’) for employing a Thai national, Sommai Maneethap (‘Sommai’), who had entered Singapore without a valid passport or work permit. The trial judge sentenced Tan to 12 months’ imprisonment. Tan appealed against her conviction. I dismissed the appeal and now give my reasons.

The charge

2 The appellant was charged as follows:

You, Tan Choon Kin, F/55 yrs, NRIC No. S0408140D, are charged that you, sometime between February 2001 and 13^th July 2001, at a stall located at No. 35 Fishery Port Road, Jurong Fishery Road, Singapore, did employ one Sommai Maneethap, M/29 yrs, a Thai National as a stall assistant, whom you had reasonable grounds for believing to be a person who entered Singapore without being in possession of a valid pass lawfully issued by the Controller of Immigration, in contravention of section 6(1)(c) of the Immigration Act, Chapter 133 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 facts

3 Tan was at the material time director of First Choon Frozen Food Pte Ltd (‘First Choon’). She operated two stalls dealing in wholesale seafood and ice at the Jurong Fishery Port (‘the Port’). At 4.45 am on 13 July 2001, Ministry of Manpower (‘MOM’) officers raided Tan’s stalls. Outside one of her stalls, they arrested a Thai national pushing a trolley. He was later ascertained to be Sommai. He was subsequently charged and convicted of offences of illegal entry and possession of a forged Agri-Food and Veterinary Authority (‘AVA’) pass. Sommai’s photograph was on the pass, but the name was incorrect.

4 At trial, Sommai testified that he entered Singapore illegally sometime in January 2001, whereupon he met an agent by the name of Peter. Peter showed Sommai a photocopy of a work permit with the name ‘Prachan Ritongrak’, which he was asked to memorise. Then he brought Sommai to Tan’s office outside the Port. There, his employment was confirmed. Tan provided him with accommodation beside the office.

5 Sommai worked for Tan at her stall from 12.00 am to 12.00 pm daily until his arrest. He saw Peter three times during this period. According to Sommai, Tan paid his salary in cash every month. This amounted to $700 for the first month and $800 for each subsequent month. Sommai also stated that he regarded Tan as his boss. Peter did not instruct him on his daily work. This was also what he told the MOM officers after his arrest. When Cisco took over port security in or around June 2001, however, it was Peter who gave Sommai the forged AVA pass.

The prosecution’s case

6 At trial, the prosecution adduced oral testimony from Sommai and the MOM officers who conducted the raid and investigation to show that Tan, and not Peter, had had control over Sommai. Sommai himself was able testify in some detail with regards to the nature and workings of Tan’s wholesale seafood and ice business at the Port. He also testified that he received instructions from Tan and from Tan’s children, who could speak some Thai. Furthermore, Tan had never asked for nor verified Sommai’s passport and work permit. From the outset, when he was arrested by the MOM officers during the raid, he maintained that Tan, and not Peter, was his employer.

7 The MOM officers who conducted the raid (PW1, PW2 and PW3) confirmed that they had observed Sommai unloading ice from a sack into a trolley and pushing the trolley in front of Tan’s stalls at the Port. In addition, PW3 testified that when Sommai was shown a photograph of Tan while he was being interviewed by the MOM officers, and was asked if that was his employer, he answered in the affirmative.

The defence

8 Essentially, Tan’s defence at trial was that Sommai was Peter’s employee, not hers. It was her case that since four or five of her workers had quit after Chinese New Year, she needed workers to transport seafood from the boats to her stalls. In this regard she approached Peter, whom she first came to know of five or six years previously. As the workers belonged to Peter, she would pay Peter and not the workers directly. Peter brought three Thai workers, including Sommai, to her stalls on 30^th or 31^st January 2001. Tan also stated that she subsequently did not pay Sommai at all. Instead, she paid Peter $580 per month per worker. She produced invoices, receipts and copies of cheques to support this contention at trial. There was no dispute that the monies were paid. At trial and on appeal, the only dispute was the purpose of these payments.

9 Tan also stated that she obtained Sommai’s work permit and passport from Peter at the outset, but had neglected to take copies of them. Also, Sommai did not work exclusively at her stalls, but at a number of different stalls at the Port. Peter was at the Port daily to instruct his workers as Tan could not speak Thai. When Cisco took over port security, she terminated the ‘sub-contract’ with Peter as he did not show her valid work permits for his Thai workers. She last saw Peter in July or August 2001.

The decision below

10 The trial judge made the following findings of fact:

(a) Sommai had been employed by Tan, not Peter;

(b) Tan had never checked Sommai’s passport and work permit;

(c) the payments of $580 per worker per month made by Tan to Peter’s company from February to May 2001 were probably commissions for introducing the Thai workers;

(d) Tan had the necessary mens rea for the offence as she knew Sommai was a Thai national and was worried about his immigration status, yet failed to perform the requisite due diligence checks under sections 57(9) and 57(10) of the Act.

11 Having examined the evidence before her and observed the demeanour of the witnesses, the trial judge concluded that the prosecution had proved its case beyond a reasonable doubt and convicted Tan accordingly.

12 In reaching her conclusion, the trial judge was mindful of her reliance on Sommai’s testimony in doing so. She applied the test enunciated in Farida Begam d/o Mohd Artham v PP [2001] 4 SLR...