Tan Choon Kin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Audrey Lim Yoon Cheng
• Judgment Date: 08 July 2002
• Neutral Citation: [2002] SGDC 170
• Published date: 19 September 2003
• Year: 2002
• Citation: [2002] SGDC 170
• Court: District Court (Singapore)

Judgment:

GROUNDS OF DECISION

1. The accused, Tan, was the director of First Choon Frozen Food Pte Ltd, and operated two stalls dealing in wholesale seafood and ice at the Jurong Fishery Port. She was charged with employing an illegal immigrant, Sommai, sometime between February to 13 July 2001, an offence punishable under s 57(1)(e) of the Immigration Act (Cap 133)(the Act). She claimed trial to the charge. Two other charges under the Employment of Foreign Workers Act (Cap 91A) pertaining to two Indian nationals were stood down as the accused had indicated that she wished to admit to them.

2. At the close of the trial, I convicted her on the charge under the Act, and sentenced her to 12 months imprisonment. The accused appealed against the conviction and the stood down charges were transferred to another court to be dealt with.

The prosecutions case

Testimony of Sommai Maneethap (PW5)

3. Sommai had entered Singapore illegally sometime in January 2001, and met an agent by the name of Peter, who showed him a photocopy of a work permit with the name Prachan Ritongrak, which he was asked to memorise. He then brought Sommai to Tans office, which was outside the Jurong Fishery Port (the Port). At the office, Sommais employment was confirmed, and Tan provided him with accommodation beside the office.

4. Sommai was transported to work at the Port in a lorry which belonged to Tans company. His working hours were from 12.00 midnight to 12.00 noon daily, and a Malaysian worker employed by Tan would instruct him on his job which included loading ice into lorries, weighing seafood, and delivering ice and seafood to other stalls and buyers. However, he was not involved in unloading seafood from the boats at the Port. He would also receive instructions from Tan, who called him Prachan, and from Tans children who could speak a smattering of Thai.

5. When he first started work, he was not told of his salary. However, in the first month, he received $700 in wages and $800 per month thereafter. Tan paid him in cash on a total of six occasions at her office. Sommai regarded Tan as his boss and it was Tan who paid his wages and not Peter. Sometimes Tan also provided him with food. All throughout his work, he did not see Peter save for three occasions when he met Peter at Tans office, and Peter did not instruct him on his daily work. Tan had other workers, including two Thais (one by the name of Panya), two PRC nationals (including DW5) and three Indian workers (including DW3 and DW4). She also had two female workers in the office.

6. During Sommais employ, no security checks were conducted at the Port. However sometime in June 2001, Peter gave him an AVA pass (exhibit P3) which allowed him to enter the Port, as Cisco took over the security of the Port and started conducting checks. Sommai stated that the photograph in P3 was his, but not the name.

7. Sommai was employed for about six months at Tans stalls at the Port before he was arrested on 13 July 2001. On that day, he was loading ice into a lorry when he was arrested by officers from the Ministry of Manpower (MOM). When queried, he informed the MOM officers that he had no passport. At the MOM office, Insp. Huang and Insp. Jailani queried Sommai, through a Thai officer, Aniruj, who acted as interpreter. He informed them that his employer was Tan, whose photo was shown to him, and that his agent Peter had given him the AVA pass. He also informed the MOM officers that he received $30 per day in salary from Tan. After the interview, he was not told to sign any statement and did not know if what he had told the MOM officers were accurately recorded. Sommai was subsequently charged in court and pleaded guilty to one count of illegal entry and one count of using a forged pass.

8. Throughout his employ, Tan had never asked for nor verified Sommais passport and work permit. However Sommai bore no grudge against Tan, who had been a very good employer to him.

Testimony of Insp. Huang (PW1), Insp. Jailani (PW2) and Aniruj (PW3)

9. On 13 July 2001 at about 4.45 am, a group of MOM officers conducted a raid at the Port. According to Insp. Huang, Sommai was found outside Tans stall pushing a trolley. Insp. Jailani asked Sommai for his passport and work permit but he did not have any and was subsequently arrested. As the MOM officers could not converse in Thai, Sommai was brought back to MOM where a Thai officer, Aniruj, was asked to assist in interviewing him. During the interview, Sommai revealed that the AVA pass had been given to him by a friend and said that he had worked at the Port for about three months. He was shown a photograph of Tan, whom he confirmed to be his employer and who had paid his wages. Subsequently Insp. Huang lodged a police report (exhibit P2).

10. Insp. Jailani confirmed that on 13 July 2001, he observed Sommai unloading ice from a sack into a trolley and pushing the trolley in front of Tans stalls. He approached Sommai and asked him for his documents, whereupon Sommai handed him the AVA pass but told him that he had no valid documents. Insp. Jailani also asked him who his boss was, and he pointed to Tan who was then at her stall. Due to the language barrier, simple English was used. Insp. Jailani also ascertained from Sommai that his salary was $700 per month and that he had worked for Tan for three months. When asked who his supervisor was, Sommai replied that Tans daughter, who could converse in Thai, would instruct him on his job. At MOM, Insp. Jailani ascertained from Sommai, through Aniruj, that the AVA pass had been given to him by a friend to gain entry through the security checkpoint at the Port. Insp. Jailani also confirmed Insp. Huangs testimony on the interview at MOM.

11. Aniruj confirmed that he was asked to act as an interpreter between Insp. Huang, Insp. Jailani, and Sommai. During the interview, Sommai was shown a photograph of Tan and was asked if that was his employer, to which he answered in the affirmative. Sommai also stated that he earned $700 per month and worked for Tan for three months. Sommai said that he could communicate with Tans daughter who could speak some Thai. Aniruj did not take any notes or keep a record of this interview.

Testimony of IO Shirley Tan (PW4)

12. IO Shirley was called to testify in the main on how Sommai had obtained the AVA pass, as well as on Peters whereabouts. She confirmed that from 1 June 2001, Cisco took over the security of the Port and Sommai used the AVA pass to get into the Port. A check conducted with the AVA Authority revealed that the pass was issued pursuant to an application submitted by one Tan Soo Qiang from a company known as Express Marble and Granite Pte Ltd. IO Shirley contacted a director at Express Marble and Granite who confirmed that he had a Thai valid work permit holder by the name of Sitthimetpong Thawin (as reflected in the AVA pass) but had no dealings at the Port as they were in the business of construction work. He also did not have an employee by the name of Tan Soo Qiang.

13. IO Shirley also conducted investigations into Soon Ang Enterprise and contacted the sole proprietor, Ng Soon Ann (Ng). In May 2001, Ng closed the business, which involved supplying construction workers. He said that he did not have any dealings with First Choon Frozen Food Pte Ltd, and did not know Sommai or Tan.

14. In the course of investigations, Tan tendered two namecards which she claimed that Peter had given to her. The first namecard (exhibit P4) was in the name of Heng Choon Enterprise. IO Shirley contacted the sole proprietor, Lim Ee Choon, who informed her that Peter was his partner but the business had been terminated in October 2000. A screening done with SingTel revealed that the telephone number in the namecard, 97696633, belonged to Lim Ee Choon but the line was terminated in January 2001. The second number, 97494077, was an existing line belonging to one Abdul Rahman bin Ali. The second namecard was in the name of MBF Construction (exhibit D2), whose business was terminated around March 2000 (exhibit D5). SingTel stated that the two telephone numbers reflected in D2 had not been issued to anyone yet. At the end of the day, IO Shirleys attempt to trace Peter was fruitless.

The close of the prosecutions case

15. At the close of the prosecutions case, the defence declined to make any submission of no case to answer, and I held that a prima facie case had been established against the accused according to the Haw Tua Tau test. Accordingly, I called on the accused for his defence. The accused elected to give evidence on oath.

The defences case

Testimony of DW1 Tan Choon Kin (Tan)

16. Tan was the director of First Choon Frozen Food Pte Ltd (First Choon) and had been operating two stalls at the Port for 20 years, retailing seafood and ice. The operating hours at the stalls were from 1.00 am to 8.00 am daily. Prior to February 2001, she had seven workers, comprising Malaysians and Singaporeans. As business was poor, four or five workers quit after Chinese New Year, as they were unhappy with Tan after receiving a small bonus. Tan then enlisted the help of her children, Siow Hua, Siow Meng, Candy and Bee Lan in February 2001, and they assisted her for a month. As they were unable to carry the heavy loads, Tan looked for Peter who sub-contracted workers to carry ice and seafood at the Port.

17. Tan first knew of Peter five to six years ago, when he had given her his namecards and informed her that he had many workers. She approached Peter at the Port at the end of January 2001 and told him that she needed workers to transport the seafood from the boats to her stalls, and that they would be required to work six days a week from 1.00 am to 8.00 am. Peter said that in order to do this job, she would need three workers, and the price of each worker was agreed at $580 per month. As the workers belonged to Peter, Tan would pay Peter and not the workers directly.

18. On or...