Observations and Application

In recent years, an increasing number of property owners and employers have been charged under Section 57(1)(d) or (e) of the Immigration Act (Cap 133) with the illegal harbouring or employing of immigration offenders. On conviction, they face mandatory imprisonment of not less than six months and not more than two years. In addition, offenders may be fined up to S$6,000.

When he heard an appeal from the Magistrate Court in Lim Dee Chew v PP (1997) 3 SLR 956, Chief Justice Yong Pung How took the opportunity to expand on the observations he made in Kuek Ah Lek PP (1995) 3 SLR 252.


The appellant (Lim) agreed to rent her flat to Li for S$1,100 per month. Lim did not ask Li for his passport at their first meeting or when she collected rent. Lim did not require Li to enter into a tenancy agreement. Lim arranged to collect rent either from Li personally or for Li to pay the rent to her friend, Goh. Lim's flat was raided and several Chinese nationals, including Li, were arrested and convicted for overstaying. Lim was charged with harbouring an 'overstayer' under Section 57(1)(d) of the Immigration Act and was sentenced to seven months' imprisonment.

The prosecution's case was that Lim had rented her flat to an overstayer. As Li had overstayed for more than 90 days, the presumption under Section 57(7) was triggered. Until the contrary could be proved, Lim was presumed to have harboured Li, knowing that he was an overstayer.

In defence, Lim claimed to have asked Li for his passport, as she knew that he was a Chinese national, but he had not produced it. She did not know that Li was an overstayer and had no reason to suspect that he was.


The district judge concluded that Lim had failed to rebut the presumption of knowledge on a balance of probabilities.

On appeal, Chief Justice Yong held that as Lim had not contested or denied providing shelter, the presumption under Section 57(7) was triggered, absolving the prosecution from having to prove the requisite mental state (mens rea). He cited Justice Chua in PP v Vadivelu (1992) 1 SLR 105 and agreed that even if she could prove to the satisfaction of the court that she in fact did not know that Li was an overstayer, she was still not entitled to be acquitted unless she proved on a balance of probabilities that she could not have reasonably have known. As Lim could not rebut the presumption, the appeal was dismissed.

Observations and Application

Triggering the presumption
In Lee Boon Leng Joseph v PP (1997) 1 SLR 445, the Chief Justice refused to make a leap of logic and accept that a few pieces of clothing hanging in a storeroom without any bedding constituted signs of habitation or that the employer's giving of a key to the storeroom to the workers was sufficient to constitute giving shelter. A positive act of providing shelter or food was required.

Rebuttal of the presumption
It was not enough for the accused to deny knowledge. The accused would have to prove to the satisfaction of the court that (i) he in fact did not know, and (ii) on a balance of probabilities, he could not reasonably have known (that the tenant was an immigration offender). (See Justice Chua in PP v Vadivelu and Chief Justice Yong in Lim Gim Chong v PP (1994) 1 SLR 825).


As the district judge's comments in Lim Dee Chew Case could be construed to suggest that it might have been sufficient to absolve Lim if she had delegated the task of checking Li's passport to Goh, the Chief Justice was quick to clarify that he was doubtful that the delegation of one's duty would suffice.

The 1993 amendments to Section 57(9) and (10) of the Immigration Act, which came into effect on April 22 1994, have clarified doubts by requiring the employer/harbourer to personally check the passport or other travel document and pass or permit. This position is still consistent with the subsequent amendments to Section 57(10) in October 1998.

However, the court has indicated that in exceptional situations, the harbourer/employer could still prove that he had exercised due diligence even though the passport had not been checked personally (see the Chief Justice's opinion in Ramli bin Daud v PP [1996] 3 SLR 225). In Mohamed Lukman bin Amoo v PP (1999) 4 SLR 292, the appellant was illiterate in English and unfamiliar with immigration procedures. The appellant had asked for the passports and passes to be produced and had cursorily glanced at them checking the names and photographs. The Chief Justice decided that his efforts were insufficient to discharge due diligence, pointing out that the appellant should:

  • check the dates permitting entry and stay in Singapore;

  • check the expiry date of the work permit and passport;

  • look for patently suspicious markings or irregularities that would warn a reasonable man of the possibility that the documents were forged or tampered with; and

  • ensure that he understood what was written on the documents by asking someone who could read English.

A 'harbourer' is defined in the Immigration Act as the one who gives food or shelter, and includes one who assists in the evasion of apprehension.

Chief Justice Yong acknowledged that a harbourer need not necessarily be the owner of the premises. In some cases where the sub-tenant is found to be an immigration offender, it would depend on the facts of each case and the agreement struck between the owner and his tenant, including whether the agreement permitted subletting with or without the owner's consent? Who decided the sub-tenant's rent?

An 'employer' is defined as someone who engages or uses the service of any person whether under a contract of service or otherwise, with or without remuneration; the one who controls, supervises the workers and determines their remuneration (see the Mohamed Lukman Case).

Once the harbourer or employer is ascertained, the appropriate presumption under Section 57(7) or (8) and the amendments under Subsections (9) and (10) would apply. They would still not be guilty unless unable to rebut the presumption of knowledge. This could be achieved by reliance on Section 57(9) and strict compliance with Section 57(10).

The Chief Justice did not dismiss the possibility that a harbourer/employer could prove the exercise of due diligence other than by compliance with all the elements of Section 57(10). However, he was of the view that such instances would be the exception rather than the rule (see Lim Dee Chew).

For further information on this topic please contact Hope Wee at Drew & Napier by telephone (+65 535 0733) or by fax (+65 535 4864) or by e-mail ([email protected]). The Drew & Napier web site can be accessed at www.drewnapier.com.

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