HARBOURING OF IMMIGRATION OFFENDERS (Statement by the Minister for Home Affairs)

[Mr Speaker in the Chair]

Mr Wong Kan Seng: Mr Speaker, Sir, at the last Parliament sitting, we did not have enough time to debate the immigration offender problem. Members did not have the opportunity to seek clarification. Today, we will have more time for this. Let me try to summarise the main issues concerning the harbouring of immigration offenders. They are:

(a) why do we need to adopt a tough stance against harbouring;

(b) why is there a need for the mandatory jail penalty;

(c) why do we treat employers and harbourers in the same way;

(d) why do we need the presumption clause and the due diligence requirements;

(e) has there been adequate publicity on the due diligence requirements; and

(f) do the authorities exercise discretion when evaluating each individual case.

Why adopt a tough stance against harbouring?

This is because the immigration offender problem remains a serious one, and those who provide shelter to the immigration offenders contribute to it. Despite flushing out more than 12,000 immigration offenders in 1989 when amnesties were granted, after the Act was amended to provide for their caning, the number of immigration offenders has remained unacceptably high. The number of immigration offenders arrested has increased steadily over the years. In 1992, the number of immigration offenders arrested was about 6,000, but this number peaked to about 23,000 in 1998. Despite rigorous enforcement, the number of immigration offenders arrested last year was still high, at about 17,000. The number of employers and harbourers arrested has also been increasing over the years, reaching a high of 388 for employers and 306 for harbourers in 1999. I have asked the Clerk of Parliament to circulate to you the Table (Cols. 199 - 200) showing the arrest figures for the various groups Table - Number of Arrests from 1992 to 1999 (Cols. 199 - 200) contributing to the immigration offender problem from 1992 to 1999. [Copies of document distributed to hon. Members.] Members can see for themselves the seriousness of the problem.

The immigration offenders' problem has almost tripled in 1992 from 6,000 to about 17,000 last year. The number of illegal immigrants has actually gone up almost 30 times, from just 382 in 1992 to 11,500 in 1999. Although the number of overstayers arrested remains at about 5,000-6,000, on average, some years are a bit higher, but that is because of the visa requirement imposed on a number of nationalities who want to come to Singapore. Despite that, we have many who came here on social visit pass and overstayed in Singapore. That is because many of them who come from China and the Indian Continent can easily blend with our environment, live in our flats together with Singaporeans and therefore it is difficult to detect them unless enforcement actions are stepped up.

Sir, these immigration offenders pose a serious threat to Singapore's safety and security. Indeed, Singaporeans are concerned about crimes committed by immigration offenders. They are not like the law-abiding foreign workers who come here through legal channels to work or stay in Singapore, few of whom commit crimes. In fact, in 1999, only about 11 out of every 10,000 foreign workers commit crimes compared to 91 Singaporeans out of every 10,000. Immigration offenders would not hesitate to break our laws, having already risked the penalties of mandatory caning and jail. If they cannot find a job in Singapore, they are likely to resort to crime. Police's experience has shown this to be so. In 1998, four unidentified Indian nationals, believed to be illegal immigrants, robbed and killed an elderly couple who rented out the master bedroom in their HDB flat to them. Only about two weeks ago, two PRC illegal immigrants were sentenced to life imprisonment for kidnapping a 14 year-old female student last year. There are other examples.

To tackle the problem effectively, it is necessary to come down hard on all the parties who contribute to this problem, namely, the traffickers who smuggle in the illegal immigrants - the profits are very good, I think each of them is paid about 80 to 100 ringgit for each illegal immigrant they smuggle in - the illegal immigrants or the overstayers themselves, the person who employs them, and the person who gives them shelter. Apart from rigorous enforcement against immigration offenders and traffickers, we must make it difficult for the immigration offenders to find work or a place to stay in Singapore. It has to be clear to all that the employment or harbouring of immigration offenders are serious offences, and those who flout the law would be severely dealt with.

Why Need Mandatory Penalty?

Sir, why do we need a mandatory penalty? It is to serve as a deterrent. The mandatory jail penalty for employers and harbourers is not a new provision. It was introduced way back in 1984 when Mr Chua Sian Chin was the Home Affairs Minister. In moving the amendment to the Immigration Act, he stressed to the House the seriousness of the offence. He said that by offering the illegal immigrants and the overstayers shelter, the landlords were in fact encouraging more foreigners to remain in Singapore illegally. Mr Chua pointed out that employers and harbourers were the main source of the problem. Parliament passed the amendment and imposed a mandatory minimum jail term of 6 months for employers and harbourers of immigration offenders. It was meant to ensure that the penalty is sufficiently deterrent so that it would not be worthwhile for anyone to employ or harbour immigration offenders. Singapore is not the only country to use mandatory sentences as a deterrent. Other countries, such as the UK and US, also have them for offences they deem severe enough.

In fact, some Singaporeans felt that the mandatory jail penalty was not enough. After the Government introduced mandatory caning for immigration offenders and a presumption clause against employers in January 1989, the Straits Times editorial on 4th August 1989, titled "Cane the Bosses Too", made the case that strong action against employers of immigration offenders should have been taken earlier. I quote from the editorial:

"... It (namely, the January 1989 amendments) introduced a presumption clause to make it easier to bring such employers to book. But it left the penalty for the offence itself unchanged. Of course, there are those who might argue that a minimum jail term of 6 months plus a fine is stiff enough. But is it? In case readers have forgotten, that was the old penalty for immigration offenders which was not sufficiently effective deterrent. Surely what is sauce for the goose should be the sauce for the gander." [It meant that we should also cane the employers.]

This Straits Times editorial in August 1989 felt that it was unfortunate that the Government in January 1989 did not "take the next logical step - that is, make the penalty for hiring immigration offenders so painful that few employers would dare break the law". The Government eventually took a more targeted approach, and introduced mandatory caning for only the "hardcore" employers who employ more than 5 immigration offenders.

Again, Sir, the Sunday Times in another editorial on 29th October 1995 headlined, "No jobs here for illegals", supported tough deterrent sentences against errant employers. The editorial said, and I quote:

"The assurance that the Police will crack down hard on those who employ illegal immigrants will be received with widespread relief. In the longer term, tough deterrent measures will also help to protect foreign workers from exploitation, both by racketeers and unscrupulous employers."

Here, they are talking about the requirements for the main contractors to comply with due diligence requirements by boarding up the worksites. That was the amendment that I moved in 1995. Indeed, the Government will continue to come down hard on those who employ or provide shelter to immigration offenders.

Why Treat Employers and Harbourers the Same?

The next issue, Sir, is why do we treat the employers and the harbourers the same? Should employers and harbourers be treated differently? The answer should clearly be "no", because both employers and harbourers cause the same damage to the State. Both profit from activities that contribute to the immigration offender problem. Without work and a place to stay, immigration offenders will not find it worthwhile, indeed extremely difficult to stay in Singapore. That is why both the Ministry of Home Affairs and the then Ministry of Labour had from day one in 1984 decided to treat both employers and harbourers in the same way. The Ministry of Home Affairs and the then Ministry of Labour had issued a joint press statement to warn against harbouring or employing immigration offenders. The statement highlighted that any person who harbours or employs an immigration offender would face the same penalty, which includes a mandatory minimum of 6 months' jail. So that mandatory 6 months' jail was enacted then. Employers and harbourers therefore must be treated in the same way for either employing or giving shelter to immigration offenders.

Why Need Presumption Clause and Due Diligence Requirements?

The next question is why we need the presumption clause and the due diligence requirement. The presumption clause against landlords is also not new. It has been in place since 1984. Under the clause, a person who gives shelter to an immigration offender is presumed to know the immigration status of the person he has given shelter to. Why is it necessary to have the presumption clause? Because it is extremely difficult, if not impossible, for the prosecution to prove that the landlord knows that his tenant is an immigration offender, (unless, of course, he had told someone else who is prepared to testify in Court, or unless he had written it down somewhere). Hence, this approach is based on common sense, since the landlord is in the best position to explain to the Court why, even though his tenant is an immigration offender, he nevertheless does not know of his illegal status.

However, despite the earlier presumption clause provided for in 1984, the prosecution still faced difficulties in getting errant landlords convicted. These landlords were able to secure acquittals by arguing that they had checked a photocopy of the work permit.

In 1991, Justice F.A. Chua, in relation to a harbouring appeal case, said that the social policy of the Immigration Act "would not be achieved if mere negligence and recklessness on the part of the accused to enquire about the status of the illegal immigrant or overstayer, if he knows or has reason to believe that the person is a foreigner, would be sufficient to rebut the presumption of knowledge." Later, in another appeal case in 1993, the Chief Justice said clearly in his judgement that "to allow an employer to evade the section by shutting his eyes to the immigration or employment status of his foreign employee, would make proper control and enforcement impossible. It cannot be placing too onerous a duty upon employers in Singapore to require them to screen their foreign workers before employing them to ensure compliance with immigration policy and the law." Therefore, from the outset, both the Courts and the Government were in agreement that our immigration laws must not be defeated by a harbourer or employer simply making a claim that he did not know that the tenant or worker was an illegal. The judges agreed that our immigration laws should be interpreted strictly and that it was reasonable to impose some form of screening on landlords and employers.

That was why the Immigration Act was amended in 1993 to expressly require landlords to check the passport or travel document of the foreigner he intends to employ or let out his premises to. The Immigration Act was further amended in 1998 to update and state clearly what the requirements are, namely, the landlords are required to check the original immigration or work passes, check that the particulars on these passes correspond with the particulars in the passports, and if the employers are named, check with the employer to verify that his prospective tenants are indeed employed by them. These checks help to ensure that the foreign tenant is legally in Singapore, either on a valid work permit, or a valid immigration pass. Landlords are required to check the original passes because it is easy to fake photocopies. The checks against the passport and with the employer are meant to reduce the likelihood that the work permit or immigration pass is a fake.

These checks are straightforward. The setting out of these due diligence requirements in fact helps homeowners. They are informed exactly what they have to do to rebut the presumption that they knew the illegal immigration status of their tenants. It is also in the interest of homeowners to conduct the checks. It concerns not only the safety and security of the community, but also their own personal safety. In the 1998 case that I mentioned earlier, the elderly couple were murdered because they rented out a room to suspected illegal immigrants. This would not have happened if the couple had not taken them in.

Has There Been Adequate Publicity?

The next question I want to address is: has there been adequate publicity? There has. The due diligence requirements are stated clearly in the Immigration Act. They have been well publicised over the years - in the newspapers, over the radio and television, through Crime Watch, and through SIR pamphlets. In July 1998, HDB issued notices to all flat owners and tenants who were eligible to sublet their rooms to warn them against letting out accommodation to immigration offenders. The notice spelt out clearly the checks that are required of the owners to conduct to avoid harbouring immigration offenders. These notices would have reached more than 80% of all home owners in Singapore.

I have also personally, in Parliament and on other occasions, publicly stressed the seriousness of the immigration offender problem, and how landlords can play an important part by denying them a place to stay. The media has carried my comments. In short, there has been a lot of publicity on the seriousness of the immigration offender situation, especially on our enforcement efforts and severe penalties. I am told that in the last few years, there was on average, at least one report relating to immigration offenders every month. Some of these reports in particular reminded the public to be careful when employing or renting out their premises to them.

The Government cannot ensure that every landlord knows the due diligence requirements. But it has done enough to publicise them. The problem really is that people who read the publicity or who have received the HDB notices in 1998 did not care enough to take note, as, at that time, many felt the matter did not concern them, since they were not planning to rent out their flats or rooms. In fact, when SIR sent out pamphlets recently to remind all households late last month - I think they sent to hundreds of thousands of households - some homeowners actually rang up SIR to complain that the pamphlet is unnecessary and a waste of public money! Some even questioned whether SIR is suspecting them of harbouring immigration offenders. This shows that homeowners would not care unless the matter affects them personally.

Against this consistent publicity backdrop, surely it is reasonable to expect landlords to be extra careful when they let out their premises to foreigners. For landlords who have been prosecuted, even if they did not fully comply with the due diligence requirements of the three checks, they had fallen short. They may look like decent people, like you and me. But they were not "innocent", "innocuous" or "unwitting" landlords as some people said. Landlords know that they are dealing with foreign tenants. Yet, many do not even bother to check their tenants' passports despite the widespread and regular publicity over the years about the immigration offenders problem. Some merely look at photocopies of their tenants' work permits. Others just leave the checking to their housing agents. This is not good enough. Are There Discretion and Guidelines Supplied by the Prosecution?

Sir, the authorities have been meticulous in examining the circumstances and facts of every case, before a decision is taken as to whether to charge a landlord in court. Internal guidelines to determine whether an offender should be charged in court have been in place all the while. Over the years, the guidelines have been fine-tuned to ensure their relevance and effectiveness. In the last two years, about half of those arrested were not charged in court.

Dr Vasoo and Mr Noris Ong asked that we should have flexibility and a different set of punishment for offenders who have broken the law unwittingly or due to negligence, such as fines, that they should not be imprisoned. I have set out the background to the various amendments to the Immigration Act to show that the law cannot just target the knowing or the intentional offender. As it is difficult to prove knowledge or intention, many landlords will be punished with less strict penalties, such as fines. If we were to do that, then the problem of immigration offenders will not be minimised as there would always be any number of "first-time" offenders. This will embolden landlords to take risks, thus undermining our comprehensive approach to tackling the problem. The nature and magnitude of our illegal offenders' problem justifies a tough approach. As the law has been widely publicised over the years, landlords should not be claiming ignorance as an excuse, and say that they have breached the law unwittingly. For landlords who know that harbouring of immigration offenders is an offence, their act in breaking the law cannot be innocuous, because grave social harm can be caused by their action. Singaporeans' safety will be jeopardized. If a landlord knows the checks he is supposed to conduct, but only does some cursory check, it is then not a question of negligence. Rather, he took the risk of not conducting all the required checks. The law is very clear - a landlord is supposed to conduct the requisite checks spelt out in the law. For good reasons, the law does not require him to have wilfully failed to conduct these checks.

Also, with more than adequate publicity over the years, there is no reason to make an exception for any particular group, whether they be first-timers, retirees and so on. If we let first-timers off, the law would lose its deterrence and effectiveness, as the vast majority of the harbourers are first-timers. We would then have an even more serious immigration offender problem on our hands.

Sir, I am not the first Minister for Home Affairs to deal with this problem. Mr Chua Sian Chin dealt with it in 1984, Prof. Jayakumar dealt with it in 1989 and amended the law in 1993 to make it clear as to what landlords needed to check. Still that was not enough, and hence, I amended the law again in 1998 to state the three checks that the landlords are required to make.

Amendments to the Immigration Act

Finally, Sir, Mr Goh Choon Kang asked if the Ministry will consider requiring housing agents to ensure that the tenants they introduce to landlords are not immigration offenders. The answer is yes. Amongst others, we will consider extending the due diligence requirements by landlords to those who act as facilitators or middlemen, such as housing agents, in the renting of premises to immigration offenders. But this should not be construed as a move to absolve the landlords of their responsibilities. All landlords should still personally check the documents of their prospective tenants.

Conclusion

We welcome bona fide tourists to visit Singapore. We welcome foreigners to work here. But we cannot allow foreigners to enter or stay here illegally. No country allows that. Neither can we adopt a casual attitude towards those who employ or harbour immigration offenders. We need to be clear and consistent in our message and action that we are serious about tackling the immigration offender problem comprehensively.

Landlords must play their part by diligently ensuring that they do not give shelter to the immigration offenders. It is not too late to start checking the immigration status of their tenants. By taking an active interest, they would help to make Singapore a safer and more secure place. And this would also be in their own interest.

Assoc. Prof. Chin Tet Yung (Sembawang): Sir, I agree with the tough policy on illegal immigrants and harbourers. But deterrence is effective only if the right people are punished. I refer to the Minister's final point concerning landlords and agents. Sir, when a landlord relies on an agent to perform the due diligence test and the agent fails to exercise due diligence, the landlord is punished instead. That seems to many people to be wrong. I would like to ask the Minister whether his Ministry would consider introducing a defence that would permit a landlord to show that another party is responsible and that if he shows this to the satisfaction of the court, he, the landlord, should be exonerated and the agent punished. In this way, criminal responsibility is correctly placed. This type of defence is not new. It can be found, for example, in section 93 of the Factories Act. I should like to ask the Minister to consider such a defence in this particular type of case because much of the public annoyance seems to have come from the fact that they thought that the landlords were unjustly punished.

Mr Wong Kan Seng: Sir, I have explained, at great length, why the landlords are not unjustly punished if they did not perform the due diligence requirements. The law is very clear that they are required to take the three steps to check the passports, the work passes and travel documents, and if necessary, check with the employers of those who are working here. So they ought to know because of the publicity that we have made over the years. To allow landlords to make a defence to say somebody else has done the job for them is not enough because they just cannot pass the responsibility of renting a home to somebody else. That is their home, they have primary responsibility. But I take the point that there could be others who assist the landlord in renting out the property. I have just said that we will amend the law to also make those who facilitate such renting of premises liable, if it can be proven.