Tom-Reck Security Services Pte Ltd v Public Prosecutor

JudgeYong Pung How CJ
Judgment Date19 February 2001
Neutral Citation[2001] SGHC 32
Citation[2001] SGHC 32
Defendant CounselHee Mee Lin (Deputy Public Prosecutor)
Published date19 September 2003
Plaintiff CounselKenneth Tan SC and Joseph Tan (Kenneth Tan Partnership) and VG Sambandan (Sambandan & Co)
Date19 February 2001
Docket NumberMagistrate's Appeal No 141 of 2000
CourtHigh Court (Singapore)
Subject MatterImmigration,Mens rea,s 57(1)(e) Immigration Act (Cap 133),Illegal immigrant,Employment,Whether requisite mens rea established

: This was an appeal by Tom-Reck Security Services Pte Ltd (`Tom-Reck`), a company incorporated in Singapore, against a conviction in the magistrates` court for the offence of employing a person who had entered Singapore in breach of s 6(1) of the Immigration Act (Cap 133). After hearing arguments presented by Tom-Reck`s counsel, Mr Kenneth Tan SC and the Deputy Public Prosecutor, I allowed the appeal. I now give my grounds.

At all material times, Tom-Reck conducted itself in the business of providing security services, which it is licensed to provide under s 6 of the Private Investigation and Security Agencies Act (Cap 249).
To provide these services, Tom-Reck would recruit persons as security guards and assign them to work at its clients` premises. In June 1998 Tom-Reck employed as a security guard an individual who identified himself as a Singapore citizen named Rajakumaran s/o Samasundaram. This individual was deployed to work at the premises of one of Tom-Reck`s clients, Hong Guan Technologies (S) Pte Ltd, at 39 Joo Koon Circle, Singapore.

As it turned out, the individual claiming to be `Rajakumaran` was in fact an Indian national, Muthusamy Kennedy, who had entered Singapore illegally by hiding in a lorry.
Kennedy had assumed Rajakumaran`s identity and was able to perpetuate the fraud by using Rajakumaran`s Singapore NRIC card and a forged Apple Computer company employee pass bearing his photograph. As a consequence of an enforcement raid carried out at 39 Joo Koon Circle on 29 January 1999, Kennedy was arrested and charged with illegal entry into Singapore under s 6(1) of the Immigration Act, and of possessing a Singapore identity card without lawful authority under s 13(2)(b) of the National Registration Act (Cap 201). He pleaded guilty to these charges and was sentenced to four weeks` imprisonment and four strokes of the cane on the first charge and three months` imprisonment on the second charge, with both custodial sentences to run concurrently.

Subsequent to Kennedy`s conviction, Tom-Reck was charged with committing an offence under s 57(1)(e) of the Immigration Act which provides that:

57(1) Any person who -

...

employs any person who has acted in contravention of section 6, 15 or 36 or the regulations;

...

shall be guilty of an offence.



Section 57(2A) in turn provides that where such an offence is committed by a body corporate, the penalty imposed shall be a fine in lieu of caning or imprisonment, for which the minimum and maximum fines are $100,000 and $200,000.
Tom-Reck was convicted after trial and sentenced by the magistrate to a fine of $120,000.

Elements constituting the offence

In order for an accused person to be convicted under s 57(1)(e), it is necessary for the prosecution to establish three elements. First, it must demonstrate an employer-employee relationship between the accused and a subject individual. Second, it must establish that the subject individual has acted in contravention of ss 6, 15 and 36 or the regulations made under the Immigration Act. Third, although it is not expressed within the statutory wording of the offence, the prosecution must show that the accused person possessed the requisite mens rea for the offence, ie actual or constructive knowledge that the subject individual had acted in contravention of those provisions. That the requirement of mens rea is inherent in the scheme of the Act was confirmed by the High Court in Naranjan Singh s/o Ujagar Singh v PP [1993] 1 CLAS News 237. It was established in that case that constructive knowledge will be attributed to an employer where he has willfully shut his eyes to the legality of the subject individual`s presence in Singapore. Mere negligence or recklessness is not a defence. However, the prosecution does not have to prove knowledge (whether actual or constructive) where the facts are such that knowledge is presumed under s 57(6), (7) or (8).

In the court below, the first and second elements were established as common ground.
The trial therefore turned on the third element, knowledge.

Facts

In the magistrate`s view, whether or not Tom-Reck possessed the necessary mens rea to justify a conviction turned on her appraisal of two conflicting accounts of the circumstances under which Kennedy came to be employed.

Prosecution`s version

According to Kennedy, after entering Singapore illegally, he approached an agent, named Segar, to help him find work. He agreed to pay Segar RM500 for his help and for a Singapore identity card. In Kennedy`s presence, Segar then telephoned Michael Tan Han Sing, an employee of Tom-Reck, and told him that there was an Indian national who wanted a job, and that he (Segar) had given him (Kennedy) an identity card. Kennedy then spoke to Michael Tan on the phone. Subsequently, Kennedy reported to Michael Tan at Tom-Reck`s premises. Michael asked to see the identity card, which he examined and commented on, comparing the photograph to Kennedy, that it was `not right`. However, he told Kennedy not to worry about it and that he would adjust it. Kennedy also showed Michael the Apple Computer pass bearing his photograph. Michael then gave Kennedy a form to complete, and instructed him to use the particulars found on the identity card supplied by Segar. Michael then told Kennedy that he would be paid $900 a month. He took a photograph of Kennedy and brought him to the premises of Hong Guan Technologies, where he was briefed on his duties by another Indian security guard, Prabhakaran, who was already employed there. As it turned out, Prabhakaran was also an illegal immigrant, and was subsequently arrested and charged. According to Kennedy, he contacted Michael to express concern. Michael reassured him that he would be safe as raids were only conducted during the day and Kennedy was working the night shift. Subsequently, however, owing to a labour shortage, Michael assigned Kennedy to work the day shift as well. It was during one such shift that Kennedy was arrested.

Defence`s version

According to Tom-Reck, Michael Tan had no actual or constructive knowledge that Kennedy was in fact an illegal immigrant. On the contrary, its evidence was that Kennedy had of his own accord attended Tom-Reck`s offices seeking employment, and that he had been processed through a standard recruiting procedure. The employees who participated in this procedure gave evidence in the court below to support Tom-Reck`s case.

Angela Tan Gek Eng, a clerk employed by Tom-Reck, gave evidence that it was she who first dealt with Kennedy.
She questioned him on the particulars in the identity card, made a photocopy of it and gave him a job application form to complete. An important, but separate, part of the recruiting process related to the statutory requirement under s 14 of the Private Investigation and Security Agencies Act that no person shall be employed by a licensee (in this case, Tom-Reck) as a security guard until he has submitted to the licensing officer (defined in s 4 of the Act) a statement containing his personal particulars in the prescribed form. To comply with this requirement, Angela Tan took Kennedy`s photograph, which she used to prepare the statutory form (Form D) for submission to the licensing officer. The job application form and Form D were tendered in evidence to support Angela Tan`s testimony.

She then handed over the application form and photocopy of the identity card to Eric Goh, an Operations Executive employed by Tom-Reck, who gave evidence that he conducted a brief interview and offered Kennedy a salary of $900 a month.
It was only at this point that Kennedy was handed over to Michael Tan, an Assistant Operations Executive, whose evidence was that he conducted a further interview and decided to assign Kennedy to work at the premises of Hong Guan Technologies.

Magistrate`s findings on question of knowledge

Faced with these conflicting versions of the events that transpired, the magistrate elected to believe the prosecution`s evidence. She rejected the oral and documentary evidence that Kennedy had been subjected to the standard recruiting process, and found that Kennedy`s employment at Tom-Reck was the direct consequence of Michael Tan agreeing, upon Segar`s request, to employ an illegal immigrant. Holding that, through Michael Tan, Tom-Reck possessed actual knowledge of Kennedy`s status as an immigration...

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5 cases
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1 firm's commentaries
1 books & journal articles
  • Criminal Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2001, December 2001
    • 1 Diciembre 2001
    ...The following case presented one of the few opportunities where this area was considered. 10.2 In Tom-Reck Security Services Pte Ltd v PP[2001] 2 SLR 70, the appellant company appealed against conviction by the trial court of employing a person who had entered Singapore illegally, an offenc......

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