Mohd Aslam s/o Jahandad v Public Prosecutor
[2006] SGHC 46

16 March 2006

Yong Pung How CJ:

1          This was an appeal against conviction in respect of two offences under s 57(1)(k) of the Immigration Act (Cap 133, 1997 Rev Ed) read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed), namely:

(a)        abetting a company (“Eraz”) in making a false statement to the Ministry of Manpower (“MOM”) so as to obtain an employment pass for PW1, an Indian national (“the first offence”); and

(b)        abetting Eraz in making a false statement to the MOM so as to obtain a renewal of PW1’s employment pass (“the second offence”).

The false statement in question consisted of the declaration that Eraz was to employ PW1 as a business development manager at a basic monthly salary of $3,000. It was made in the employment pass application dated 5 June 2003 (“the application form”) and in the subsequent application dated 14 July 2004 for the renewal of the employment pass (“the renewal form”). I allowed the appeal where the first offence was concerned, but dismissed it in respect of the second offence. I now give my reasons.

The facts

The Prosecution’s version

2          At the trial, PW1, who was the Prosecution’s key witness, testified that he came to Singapore in August 2003 following arrangements made by one “Jafarullah”, an agent in India, for him to work here. Shortly after his arrival, he went to the appellant’s office to collect his employment pass (“the pass”). There, he was told, to his dismay, that the appellant had no job for him. After unsuccessful attempts to find employment by other means, PW1 contacted the appellant again six months later. The latter then offered to employ him as a “handyman”. PW1 worked for the appellant in this capacity from March 2004 to August 2004 at a salary of $1,500 per month. His duties consisted mainly of running errands for the appellant and cleaning the latter’s office.

3          Sometime later, pursuant to the appellant’s instructions, PW1 signed the renewal form so that the pass, which was due to expire on 8 September 2004, could be renewed. According to PW1, he only saw the reverse side of the renewal form when he signed it. The document was blank then, and he did not read through it before signing. PW1 stated that the renewal form was the only form which he signed. He denied having either seen or signed the application form even though that document was ostensibly signed by him. He also denied having signed an earlier employment pass application dated 10 December 2002 made in his name, in which another company had been listed as the would-be employer.

4          The pass was not eventually renewed. On 10 September 2004, as PW1 was about to return to India, he was arrested by immigration officials at the airport, apparently on account of suspicions that he had tendered fake educational qualifications in order to obtain the pass.

The Defence’s version

5          The Defence’s account of the material facts, in contrast, was as follows. The appellant, who ran a company providing consultancy services to foreigners planning to start businesses or companies in Singapore, was also a sleeping director of Eraz, which had been set up by two Pakistanis (“the Pakistani directors”) in 1999. Although Eraz had a registered address in Singapore, which was the address of the appellant’s office, it had been dormant since its incorporation.

6          In 2003, the Pakistani directors decided to turn Eraz into an active company and told the appellant to look for an experienced person who could help to develop its business in Singapore. The appellant recommended PW1, whom he had heard of through Jafarullah earlier in 2002. At that time, Jafarullah’s company had wanted to employ PW1 as a business development manager. The appellant had filled in an employment pass application on the company’s behalf, which was the employment pass application dated 10 December 2002 (mentioned at [3] above). That application had not, however, been successful.

7          The Pakistani directors accepted the appellant’s recommendation and told him to apply for an employment pass for PW1. In completing the application form, the appellant relied on Jafarullah for PW1’s personal particulars, while the details of PW1’s job title and salary were obtained from the Pakistani directors. The appellant claimed that he was unaware then that the information provided by the Pakistani directors was false.

8          PW1 arrived in Singapore sometime around August 2003. At their first meeting, the appellant informed PW1 of his designation in Eraz and his pay. After PW1 collected the pass, the appellant rarely saw him again. PW1 did not at any time complain to him about not being able to find a job in Singapore. The appellant also denied having employed PW1 as an office boy from March 2004 to August 2004, contending that it would have been illogical for him to do so as he already had an office boy (“DW2”) and a cleaner of his own. PW1, it was asserted, worked solely for Eraz. DW2 gave evidence to a similar effect on this point. He testified that PW1 did not work for the appellant between March 2004 and August 2004. He also stated that he never saw PW1 at the appellant’s office during that period.

9          The appellant claimed that when the pass was due for renewal, he went through the renewal form with PW1 before the latter signed it. He specifically checked with PW1 that the typewritten particulars of the latter’s pay and job title on that form were correct. The appellant protested that he did not know those particulars were false, for PW1 neither reported to nor received his salary from him. Instead, PW1 received his instructions and pay directly from the Pakistani directors.

The decision at first instance

10        In the court below, the appellant was convicted of both the first offence and the second offence. The trial judge held that the appellant: (a) “ought to know” when signing and submitting the application form and the renewal form on behalf of Eraz that they contained false details of PW1’s job title and salary; and (b) “knew” that the MOM had relied on those particulars to issue the pass. That the appellant was merely a sleeping director of Eraz was beside the point. The trial judge also regarded the Defence as having made “a vain attempt” to argue that the application form and the renewal form represented applications made for the future.

The appeal

11        The grounds upon which the appellant challenged his conviction (“the grounds of appeal”) were as follows:

(a)        the Prosecution failed to prove that when the appellant signed and submitted the application form and the renewal form, he knew that they contained false details of PW1’s job title and salary;

(b)        the trial judge misunderstood the thrust of the appellant’s defence, as the appellant never contended that the application form and the renewal form constituted applications made for the future;

(c)        there was no evidence which showed that the MOM had relied on the false particulars in the application form to issue the pass;

(d)        PW1 was a dishonest and unreliable witness whose evidence, which was “fraught with inconsistencies”, should not have been believed;

(e)        the Prosecution did not challenge material aspects of the Defence’s evidence which were inconsistent with a verdict of guilt; and

(f)         the trial judge failed to treat the evidence of PW1, who was an accomplice, with the requisite degree of caution.

12        Of the above points, I regarded the first – namely, that the Prosecution did not prove the requisite mens rea beyond reasonable doubt – as the crux of this appeal, for it was indisputable that the appellant carried out the actus reus of the abetment offences in question. Given Eraz’s conviction of the offence under s 57(1)(k) of the Immigration Act (“the s 57(1)(k) offence”) in MOM Summonses Nos 497 and 498 of 2005, there was no question that the company obtained the pass by making false representations in the application form and subsequently tried to renew the pass by repeating the misleading information in the renewal form. In signing and submitting those two forms on Eraz’s behalf, the appellant performed “an act of positive assistance” in connection with the s 57(1)(k) offence: Awtar Singh s/o Margar Singh v PP [2000] 3 SLR 439 (“Awtar Singh”) at [47]. As such, his conviction could be set aside only if he lacked the requisite mens rea when he carried out such act.

13        From this perspective, grounds (b) and (c) of the grounds of appeal ([11] above) were otiose. Where ground (b) was concerned, the trial judge was indeed mistaken in thinking that the Defence’s case was that the application form and the renewal form related to Eraz’s future employment of PW1. It was evident, however, from the grounds of decision that this error did not have any impact on the finding that the appellant must have known at the material time of the false information in the two documents. As for ground (c), whether or not the MOM actually relied on the details of PW1’s salary and designation when it issued the pass had no bearing on the appellant’s state of mind at the time he signed and submitted the application form. In any event, since it was expressly recorded in the statement of agreed facts that the pass was issued “[o]n the basis of the said declarations that the foreigner [PW1] would be employed as a Business Development Manager with a monthly salary of $3000”, it was not open to counsel to argue, at this stage of the proceedings, that the Prosecution failed to prove the MOM’s reliance on those particulars.

Whether the appellant had the requisite mens rea

14        Turning then to the crucial issue of mens rea, the mental element for the offence of abetting a crime by intentional aiding is knowledge on the accused’s part of “the circumstances constituting the crime” when he voluntarily renders an act of positive assistance: Awtar Singh ([12] supra) at [47]; Loh Kim Lan v PP [2001] 1 SLR 552 at [33]. For the s 57(1)(k) offence, the relevant circumstances would be the making of a false statement so as to obtain or attempt to obtain an employment pass. The Prosecution thus had to prove that at the time the appellant completed and submitted the application form and the renewal form in June 2003 and July 2004 respectively, he knew that the documents contained false details of PW1’s job title and salary.

15        In this respect, counsel submitted that the trial judge erred in law in holding that the appellant “ought to know” of the false particulars at the material time. I found no merit in this argument as knowledge is not confined to actual knowledge alone, but extends to “wilful blindness” as well. This was made clear in, inter alia, Awtar Singh, which concerned the abetment by intentional aiding of the offence under s 57(1)(d) of the Immigration Act (harbouring of immigration offenders). In that case, it had to be shown that the accused had knowingly facilitated the principal offender’s harbouring activities. The presumption of knowledge under s 57(7) of the Act being inapplicable, I held at [49] that what the Prosecution had to prove in terms of mens rea was that:

[T]he circumstances of the case [were] such that [the accused] ought to have made the enquiries and by not doing so, he could be said to have “wilfully shut his eyes to the obvious” that [the principal offender] was harbouring illegal immigrants. In other words, the [accused] must be shown to know or ought to have known that the sub-tenants at the premises were illegal immigrants. [emphasis added]

I added at [50] that while “merely neglecting to make inquiries which a reasonable and prudent man would make” did not constitute guilty knowledge (see also PP v Koo Pui Fong [1996] 2 SLR 266 at 272, [22]):

[A]ctual knowledge of certain facts [could] be inferred from the evidence that the defendant had deliberately or wilfully shut his eyes to the obvious or that he had refrained from inquiry because he suspected the truth but did not want to have his suspicion confirmed.

16        The right test of knowledge was, therefore, applied in the court below. What was arguable was whether, based on the above concept of knowledge, the trial judge’s finding that the appellant had the requisite mens rea was justified.

The first offence

17        The only evidence that the appellant knew at the material time that the application form contained false details of PW1’s job title and salary consisted of PW1’s testimony that when he went to the former’s office to collect the pass in August 2003, the appellant told him that there was no job available for him ([2] above). If this conversation did indeed take place, it would show that the appellant knew from the outset that Eraz never intended to employ PW1 as described in the application form.

18        Predictably, the Defence denied that the appellant made such a representation to PW1. More importantly, there was no supporting evidence to back up PW1’s account of the above conversation. The trial judge effectively relied on PW1’s uncorroborated evidence alone in convicting the appellant of the first offence. In these circumstances, I found it deeply troubling that the trial judge did not give any explanation in the grounds of decision as to why he accepted PW1’s evidence and rejected the Defence’s evidence. This was a grave omission on the trial judge’s part because, as I cautioned in Yeo Eng Siang v PP [2005] 2 SLR 409 at [25]:

[A]lthough there is no prohibition against relying on the evidence of one witness, there is always a danger where a conviction is based solely on one witness’s evidence. To warrant a conviction on the testimony of one witness alone, the trial court has to be aware of the dangers and subject the evidence to careful scrutiny: Low Lin Lin v PP [2002] 4 SLR 14 at [49].

What the trial court must do in such cases is to make a finding that the evidence of the sole witness in question was “so compelling that a conviction could be based solely on it”: Tan Wei Yi v PP [2005] 3 SLR 471 (“Tan Wei Yi”) at [23].

19        In the present case, it appeared from the grounds of decision that the trial judge did not review the evidence before him with the requisite degree of care. Notably, he did not make any assessment of the respective witnesses’ credibility before accepting PW1’s account of the material facts. In addition, he did not make any finding that PW1’s testimony was so compelling that it could in itself secure the appellant’s conviction of the first offence. Indeed, the trial judge seemed to have found the appellant guilty based on PW1’s evidence alone without even realising that he had to make such a finding (see Tan Wei Yi at [25]).

20        In the light of these factors, I was of the view that even though the appellant’s defence to the first offence (namely, that he filled in the details of PW1’s designation and pay on the application form as instructed by the Pakistani directors and believed those details to be true) was lame, his conviction of this offence could not be supported. Accordingly, I allowed the appeal in respect of the first offence.

The second offence

21        Where the second offence was concerned, the only evidence implicating the appellant was likewise PW1’s uncorroborated oral testimony, especially his assertion that he worked for the appellant as an office boy at a monthly salary of $1,500 from March 2004 to August 2004. Thus, the same criticism made of the trial judge’s decision on the first offence – ie, that he did not scrutinise the evidence before him with sufficient care and failed to make the requisite finding that PW1’s testimony was so compelling that a conviction could be based solely on it ([19] above) – applied. Notwithstanding these errors by the trial judge, however, I was of the view that the appellant’s conviction of the second offence, unlike that in respect of the first offence, was justified.

22        It was significant, in relation to the second offence, that PW1 was not proficient in English. He testified that he could not read English at all, and only spoke a few words of that language. Although counsel sought to discredit PW1’s evidence on this issue by pointing to the latter’s English results in the educational certificates submitted together with the application form, this rebuttal was a non-starter since the appellant had himself accepted during examination-in-chief that PW1 understood “very little English”.

23        Clearly then, the appellant was aware of PW1’s poor command of English when he signed and submitted the renewal form in July 2004. By that time, he had met PW1 at least once, on which occasion the two men had communicated in Urdu. (In contrast, the appellant did not have any personal contact with PW1 prior to filling in the application form in June 2003.) Without a working knowledge of English, PW1 could not possibly have sourced for markets for Eraz in India and Singapore or carried out market research, which were said to be some of his duties as the company’s business development manager. It must, therefore, have been obvious to the appellant when he completed the renewal form that PW1 could not have been working for Eraz in that capacity. This must in turn have aroused his suspicions as to whether PW1 was truly receiving a monthly salary of $3,000 as stated in the form.

24        On the above analysis, there was sufficient evidential basis to find that the appellant ought to have known at the material time that the renewal form contained false information as to PW1’s job title and salary. I was fortified in my conclusion by two significant discrepancies in the Defence’s case on the second offence.

25        The first related to Eraz’s registered address in Singapore, which was also the address of the appellant’s office ([5] above). According to the appellant, that address was “only a registered mailing address” and none of Eraz’s employees were based there. This would mean that PW1, while employed by Eraz as the Defence claimed, did not operate from the appellant’s office. Tellingly, however, the appellant testified that PW1 reported for work at 11.00am daily during this period. This was a strong indication that the two men did in fact share the appellant’s office, in which case, given the size of that office (230 sq ft), the appellant must at least have had some idea of PW1’s activities. This in turn weakened his defence that due to his minimal contact with PW1 after August 2003, he did not know at the time of signing and submitting the renewal form that PW1 was not in reality working for Eraz as a business development manager ([8] above).

26        The second material inconsistency lay in the appellant’s initial assertion that PW1 reported to him at work and his subsequent retraction of that claim. If PW1 had indeed reported to the appellant, the latter would have known whether or not PW1 was being deployed by Eraz as a business development manager. Such knowledge would, in turn, shed light on whether the appellant knew or ought to have known that PW1 was not being paid the salary declared in the renewal form. It was thus significant that the appellant changed his stance during cross-examination and said that PW1 did not report to him at work. In my view, this shift in position cast grave doubt on the appellant’s credibility as a witness and, as a corollary, on his avowed ignorance of the false information in the renewal form.

27        Given the material discrepancies in the appellant’s defence to the second offence coupled with the unrefuted evidence of PW1’s illiteracy in English, I found that the appellant had the requisite mens rea to intentionally aid Eraz’s commission of the s 57(1)(k) offence when he signed and submitted the renewal form. The fact that PW1’s job title and salary were pre-printed on that form did not militate against this conclusion, for in signing the document, the appellant was thereby declaring those pre-printed particulars to be true, as stated in Part VI of the renewal form.

28        For these reasons, I upheld the appellant’s conviction of the second offence despite the trial judge’s omission to make the necessary finding that PW1’s evidence alone was sufficiently compelling to secure the conviction. In this respect, it should be noted that although I declared a similar mistake of the trial court in Tan Wei Yi ([18] supra at [25]) to be “an error of law that could not be rectified”, this is not the invariable outcome whenever mistakes of this nature are made. Instead, where a trial court convicts an accused based solely on a single witness’s testimony without making the requisite finding that the witness’s testimony was so compelling as to warrant the conviction, whether or not such error of law nullifies the conviction is to be assessed in the light of all the relevant facts and circumstances of the case. In Tan Wei Yi, the evidence of the sole witness in question was “riddled with assumptions and inconsistencies” ([33] of the judgment). In contrast, in the present proceedings, PW1 gave consistent testimony on the key aspects of the Prosecution’s case (see [30] below), and it was the appellant’s evidence which contained material inconsistencies instead ([25]–[26] above). It was thus inappropriate to apply the outcome in Tan Wei Yi to the appellant’s conviction of the second offence.

The remaining arguments raised on appeal

29        Moving on to the rest of the grounds of appeal which presented live issues in this appeal, namely, grounds (d) to (f) ([11] above), I found that none of them provided a valid basis for allowing the appeal.

30        Taking each of these arguments in turn, the contention that PW1’s evidence was “wholly unreliable” (ground (d) of the grounds of appeal) was not tenable. Counsel’s allegation that PW1 faced criminal proceedings arising from his arrest on 10 September 2004 ([4] above) and thus had every motive to lie and put the blame on the appellant was a bare assertion unsupported by any proof of such motive. Likewise, there was no merit in the submission that PW1’s evidence was “totally inconsistent”. From a perusal of the notes of evidence, it was clear that PW1 was steadfast on the key aspects of his testimony. For instance, contrary to counsel’s stance, he did not “suddenly claim” during cross-examination that he did not understand the contents of the renewal form when he signed it. Instead, he made it clear from the outset that he neither read nor understood that document. Similarly, PW1’s comment during examination-in-chief that the renewal form was “blank” when he signed it did not contradict his later statement during cross-examination that he could not differentiate between the printed words and the typewritten words on that document and “did not observe” those words. Reading PW1’s evidence in its proper context, it seemed that what PW1 meant was that: (a) the printed words and the typewritten words appeared similar to him; and (b) the renewal form was “blank” when he signed it in that there were no handwritten entries in addition to the printed and typewritten words. In my view, these two positions, far from being mutually exclusive, were compatible. The only true inconsistency in PW1’s evidence related to the medical check-up which he had to undergo in August 2003 before the pass could be collected from the MOM. PW1 initially claimed that he saw the appellant pay for that check-up, but later conceded that he could not recall who paid. This inconsistency did not, however, relate to any of the material facts in this case. As such, I felt that it did not impinge on PW1’s credibility as a witness.

31        Counsel also contended that PW1 was a dishonest witness who repeatedly told untruths while testifying. It was said that PW1 must have lied when he claimed that he was jobless from the time of his arrival in Singapore in August 2003 until March 2004, when the appellant employed him as an office boy. This was because according to the notice of assessment dated 11 May 2004 (“the 2004 Notice of Assessment”) issued by the Inland Revenue Authority of Singapore (“IRAS”), PW1 earned some $12,000 during the year of assessment 2004 (ie, the calendar year 2003) and was liable to pay income tax of $1,800 in respect of that period. I was unpersuaded by this argument. The 2004 Notice of Assessment stated that the figure of $12,000 was merely an estimate of PW1’s chargeable income for that year of assessment. This document did not conclusively prove that PW1 actually earned income (and, by inference, was gainfully employed) between August 2003 and December 2003, and therefore lied when he claimed that he was jobless during that six-month period. It was possible, for instance, that a false tax return in PW1’s name might have been submitted to the IRAS for the year of assessment 2004 so as to maintain the façade of his purported employment by Eraz from August 2003 onwards. Besides, in the IRAS’s notice of assessment to PW1 dated 27 June 2005 (“the 2005 Notice of Assessment”) for the year of assessment 2005 (ie, the calendar year 2004), PW1’s chargeable income was again estimated to be $12,000. This was clearly at odds with the declaration in the application form and the renewal form that PW1’s salary from Eraz was $3,000 per month. I thus regarded the two notices of assessment as being of no help to the appellant’s case and, where the 2005 Notice of Assessment was concerned, possibly detrimental even to his defence.

32        I was similarly unimpressed by the other instances of PW1’s alleged falsehoods which counsel brought up. For instance, it was submitted that PW1 lied when he claimed that he worked for the appellant from March 2004 to August 2004 as he could not recall the name of the appellant’s secretary and was not seen at the appellant’s office by DW2 at all during this period. This argument was ill-founded. Given PW1’s poor command of English, it was hardly surprising that he could not remember the name of the appellant’s secretary. That DW2 never saw PW1 at the appellant’s office did not refute PW1’s evidence either, since DW2, who was out running errands for the appellant most of the time, was unfamiliar with the activities in the office. Likewise, there was no merit in the contention that the similarity between the applicant’s signature in the application form and the signature in PW1’s passport belied PW1’s claim that he did not sign the form. From a visual comparison of those two signatures, it was obvious that they were not the same.

33        I was of the view that if PW1’s credibility as a witness was to be faulted, it could only be on the basis that there was a lack of “conformity of [his] evidence with experience” (Kwan Peng Hong v PP [2000] 4 SLR 96 at [50]) in certain respects. Specifically, it was not “such as ordinarily would occur in human experience” (Kwan Peng Hong v PP at [51]) for an office boy working in Singapore to earn as much as $1,500 per month, let alone one who, like PW1, was a foreigner with a poor command of English and with no prior experience of working in this country. Conformity of the evidence in question with normal human experience is, however, only one of the factors affecting a witness’s credibility. The consistency of the witness’s testimony is an equally important consideration. Furthermore, in the present case, the appellant might well have had his own reasons for paying PW1 a monthly salary of $1,500. It was not the court’s task to attempt to deduce those reasons: J Ravinthiran v PP [2004] SGHC 173 at [47].

34        As such, having regard to PW1’s evidence as a whole and noting in particular the consistency of his testimony ([30] above), I rejected the appellant’s contention that PW1 was utterly lacking in credibility as a witness.

35        With regard to the Prosecution’s failure to challenge certain parts of the Defence’s evidence (ground (e) of the grounds of appeal), this argument was a non-starter where DW2’s testimony was concerned. The notes of evidence indicated that the Prosecution did challenge DW2’s assertion that he never saw PW1 working at the appellant’s office by asking questions which were intended to show that DW2 was unfamiliar with the activities in the office and might have lied in order to advance the appellant’s defence. While it was true that the Prosecution did not dispute the appellant’s evidence that he already had DW2 and a cleaner working for him and thus had no reason to employ PW1 as an office boy ([8] above), it was not appropriate to invoke the rule in Browne v Dunn (1893) 6 R 67, under which testimony left unchallenged during cross-examination may be treated by the court as having been accepted by the opposing party (Yeo Kwan Wee Kenneth v PP [2004] 2 SLR 45 at [35]), against the Prosecution. The rule in Browne v Dunn is not rigid and immutable, but rather flexible and aimed at ensuring procedural fairness in litigation (Liza bte Ismail v PP [1997] 2 SLR 454 at [68]). In this instance, since the Prosecution was asserting that the appellant employed PW1 as an office boy from March 2004 to August 2004, it must have been obvious to the Defence, notwithstanding the absence of cross-examination, that the Prosecution did not accept the premise that it was illogical for the appellant to engage an office boy when DW2 was already working for him in that capacity.

36        As for the argument that the trial judge failed to treat the evidence of PW1 – an accomplice – with the requisite degree of caution (ground (f) of the grounds of appeal), this contention was misconceived as PW1 was not an accomplice in the first place. A witness who, like PW1, has neither pleaded guilty to nor been convicted of the offence in question may be regarded as an accomplice only if there is “evidence on which it could reasonably be said that the witness was a participant”: Chai Chien Wei Kelvin v PP [1999] 1 SLR 25 at [54]. In the present case, there was no such evidence implicating PW1, especially since: (a) he did not sign the application form; and (b) he signed the renewal form without understanding its contents. There was thus no legal requirement on the trial judge’s part to treat PW1’s evidence with special caution.

Conclusion

37        In summary, I allowed this appeal in respect of the first offence as the Prosecution failed to prove beyond reasonable doubt that the appellant had the requisite guilty knowledge when he signed and submitted the application form. Accordingly, I set aside the appellant’s conviction of and sentence for that offence. In contrast, I dismissed the appeal in relation to the second offence as I was satisfied that the appellant was wilfully blind to the false particulars in the renewal form at the material time, and thus had the necessary mens rea to intentionally aid Eraz’s commission of the s 57(1)(k) offence. Since the appellant appealed only against conviction and not against sentence, the sentence of six months’ imprisonment imposed by the trial judge for the second offence remained unaltered.