ILLEGAL IMMIGRATION: PRINCIPLE AND PRAGMATISM IN THE CRIMINAL LAW

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1 18 Singapore Academy of Law Journal (2002) ILLEGAL IMMIGRATION: PRINCIPLE AND PRAGMATISM IN THE CRIMINAL LAW In recent years, few offences have taken up as much government time as the prohibition against the employment and harbouring of illegal immigrants under the Immigration Act. Parliament has amended the legislation no less than 6 times since 1984, and the cases keep coming up to the High Court on appeal. All quarters are anxious to deal with the situation, but in our zeal to do so, the fundamental principles of criminal liability should not be tampered with without a clear and convincing justification for doing so. This article examines some of the changes to the normal principles of criminal liability occasioned by this war against illegal immigration to see if such a justification exists. Illegal Immigration and the Criminal Law 1 Singapore is a victim of its own phenomenal economic success. It has become a magnet for foreign workers, licit and illicit, hoping to find jobs and make a living. Analysts call the availability of better-paying jobs in Singapore the pull factor. They also talk of the main push factor the relative lack of economic opportunities in the region surrounding Singapore. 1 Singapore is, of course, not the only country in the world to have had to face the problem of illicit foreign workers. In other countries, however, it is not always viewed with the degree of urgency and concern by the government that it is in Singapore. 2 Some reasons have been 1 2 Wages for comparable work in Singapore far exceed those that obtain in, for example, India, Bangladesh, Thailand, the Philippines, Indonesia and China. Most, if not all, the recent cases involve nationals from these countries. Interestingly, although a wage differential pertains also with Malaysia (to a lesser degree), it is not enough of an incentive for Malaysians to risk apprehension for illegal employment. See, eg, O Connor, An Overview of Illegal Immigration along the United States- Mexican Border (1995) 4 Journal of International Law and Practice 585; Christensen, Leaving the Back Door Open: Italy s Response to Illegal Immigration (1997) 11 Georgetown Immigration Law Journal 461. Witness the raging debate over the acceptability of a number of measures which are taken for granted in Singapore: for employer sanctions, see Stewart, Illegal Immigration: Employer Sanctions and Related Proposals (1981) 19 San Diego Law Review 149 and Welin, The Effect of Employer Sanctions on Employment Discrimination and Illegal Immigration (1989) 9 Boston College Third World Law Journal 249; for identification cards, see Danburg, Strenghtening Employer Sanctions Through Worker Identification Cards and a National [continued on next page]

2 14 SAcLJ Illegal Immigration 19 advanced for this: the small geographical size of Singapore, the fact that people from many neighbouring Asian countries are physically indistinguishable from Singaporeans, and the very reactive way in which the government of Singapore normally behaves. 3 There are many facets to the issue of illicit foreign workers, 4 but the burden of this article is to examine the way in which the criminal law has been used by the government in an attempt to counteract the push and pull factors of illegal immigration. 2 It would surprise no one that the problem of illicit foreign workers emerged alongside the advent of Singapore as an economic powerhouse. The existing legislation was amended in 1984 to facilitate the successful prosecution of (those believed to be) immigration offenders and this process was to be repeated many times in years that followed. The emerging pattern of amending legislation is this: it starts with a series of unsuccessful prosecutions, and the law is quickly amended to plug the loophole. Pragmatic in conception, these amendments naturally raise concerns over matters of principle has the law gone overboard in its zeal to deal with the problem of illicit foreign workers? The same concerns arise over the manner in which our courts have interpreted and applied the law. The pragmatic provenance of many recent decisions leads the observer to question whether the values traditionally inherent in the criminal law have been justifiably sacrificed. On the other hand, it would be wrong to think that legislative and judicial response has been completely insensitive to considerations of fairness and reasonableness there are signs that both arms of government are willing to go only so far, but no further, in its war against illegal immigration. Also, the legislature has been, to an extent, discriminate in its efforts to ease the job of the prosecution small steps are made, and then only if they appear not to have succeeded in producing the desired effect, larger steps are countenanced. 3 4 Database: Effective Barriers to Illegal Immigration? (1995) 9 Georgetown Immigration Law Journal 525. In comparison, the state of the law in Singapore is at the same time both more sophisticated and more primitive than the United States discourse more sophisticated in that an impressive array of sanctions have been in place for some time spawning a rich body of case-law, more primitive in that matters of great humanitarian concern (eg, the welfare of illegal workers, and unintended impact on discrimination) go largely unnoticed. Look at the speed at which the government moved in dealing with terrorism New York s twin towers were destroyed on 11 Sep 2001, Singapore enacted the United Nations Act 2001 (44 of 2001) on 15 Oct 2001 and on 10 Nov 2001, regulations on anti-terrorism were promulgated (S 561/2001) under the Act. See, for a non-legal perspective, Ofori, Foreign Construction Workers in Singapore, SAP 2.57/WP.106, 1996, forconst/index.htm; Yap, Migration Issues in the Asia Pacific: Issues Paper from Singapore, 1996,

3 20 Singapore Academy of Law Journal (2002) 3 There is no doubt that the series of amendments introduced into illegal immigration law in recent years involve a sacrifice of principle. Mens rea and actus reus requirements have been progressively relaxed, evidentiary hurdles normally lying in the path of a conviction have been largely circumvented, and judicial discretion in sentencing has been significantly curtailed by mandatory penalties. The question is whether the moral cost of these measures is outweighed by the likely gains in dealing with the problem of illegal immigration. The government of Singapore has never held particular moral principles to be immutable but the moral cost must be counted and justified by sufficient tangible benefits in law enforcement. 5 4 The legislative architecture is not straightforward there are two primary pieces of legislation 6 containing a number of discrete immigration offences. 7 The focus of litigation has however been on two particular offences that of employing in the context of the Immigration Act,8 and that of harbouring 9 an illegal immigrant. This will also be the primary material on which this discussion draws. Mens Rea: Is Knowledge the Same as Negligence? 5 The primary offences are simply phrased any person who either harbours or employs an illegal immigrant shall be guilty of an offence Perhaps the most sustained legislative defence of the recent amendments is to be found in the speech of the Minister for Home Affairs, Wong Kan Seng, in Parliament on 9 May 2000, Parliamentary Debates vol 72, col The fact that it had to be given demonstrates a general concern over the proportionality of the measures: see the spirited debate in col See also the discussion in the rather less august medium of an Internet forum: Ignorance Can Be Jailable, 2001, The Immigration Act (Cap 133, 1997 Rev Ed) and Employment of Foreign Workers Act (Cap 91 A, 1997 Rev Ed). The Immigration Act targets people who are unlawfully in Singapore, essentially those who entered unlawfully or those who overstayed their visas. The Employment of Foreign Workers Act (EFWA) captures those who are lawfully in Singapore, but whose visas do not permit them to work. The punishment scheme for corresponding offences in the EFWA is considerably lower. Very few of the reported decisions involve EFWA offences, presumably the lower potential sentences result in far fewer cases in which trial is claimed. Under the Immigration Act, s 57 contains most of the offences, including employment and harbouring. Section 15 punishes unlawful entry. Section 57A punishes occupiers from permitting illegal immigrants to enter construction sites. Under the EFWA, s 5 captures illegal employment, and s 6A punishes occupiers for permitting foreigners without a work permit to enter construction sites. The construction site provisions are interesting, but has received little, if any, judicial attention. Section 57(1)(e), Immigration Act, and s 5, EFWA. Section 57(1)(d), Immigration Act. Supra notes 8 and 9.

4 14 SAcLJ Illegal Immigration 21 Apparently, no express mens rea requirements appeared so at the very least, it was unclear whether and what form of mens rea would have been read into the offence. 11 However in 1984, a presumption, section 57(7), 12 was introduced: [W]here... it is proved that the defendant has given shelter to any person who has remained in Singapore unlawfully for a period exceeding 90 days... it shall be presumed, until the contrary is proved, that the defendant has harboured him knowing him to be [an illegal immigrant]... [emphasis mine] 6 This provision would, of course, make no sense unless the mens rea requirement is knowledge that the person given shelter to is an illegal immigrant. Unfortunately, the late FA Chua J, otherwise a judge with a solid reputation for sound decisions, did not realise this when he wrote his judgment in PP v Vadivelu, saying: 13 Even if the [defendant] proves to the satisfaction of the court that he in fact does not know that [the lodgers] were overstayers, he is still not entitled to be acquitted unless he proves on a balance of probabilities that he could not have reasonably known they were overstayers. 7 This, essentially, pegs the mens rea at negligence. This result is plainly wrong as a matter of statutory interpretation 14 for what reason could there be to presume knowledge and to allow the defendant to rebut This was the classic strict liability problem what should the courts do when the legislature is silent: see Chan, Requirement of Fault in Strict Liability (1999) 11 SAcLJ 98; Hor, Strict Liability in Criminal Law: A Re-Examination [1996] SJLS 312. The subsequent amendments, however, take the issue outside of the realm of the normal strict liability problem the legislature has spoken, but what it says is the point of this discussion. Immigration Act. There is much discussion in the cases about this, and an equivalent presumption for the offence of employment (s 57(8), Immigration Act, s 6, EFWA), primarily over the meaning of the term occupier in the employment presumption. It is of some practical importance, but the significance in terms of principle is no different here than for other presumptions whether it is justified to make exceptions to the presumption of innocence to do battle with serious social problems. The more easily the presumption is triggered, the greater is the derogation from the principle that guilt must be proved beyond reasonable doubt: see Hor, The Presumption of Innocence: A Constitutional Discourse for Singapore [1995] SJLS 365. [1992] 1 SLR 105, at 115 (emphasis mine). The same phenomenon can be detected in the treatment of drug offences: see Hor, Misuse of Drugs and Aberrations in the Criminal Law (2001) SAcLJ 54, at The offence of possession and trafficking has a similar presumption of knowledge, which some cases say is rebuttable only on proof of due diligence (or disproof of negligence).

5 22 Singapore Academy of Law Journal (2002) it, if negligence is the touchstone? What drove the court to arrive at this conclusion? It was obviously concerned that the purpose of the legislation would be defeated if it was enough for the [defendant] merely to deny knowledge.15 The court need not have feared that even if the mens rea was knowledge, mere denial of knowledge cannot, in most cases, gain an acquittal. The court must, where the presumption operates, believe the denial on a balance of probability; and where the presumption does not operate, hold that the denial raises to the level of reasonable doubt. Mere denials are never enough. In another part of the judgment, the court felt that a mens rea no higher than negligence was necessary to achieve sufficient enforcement and deterrence the purpose of creating the offences in the first place. 16 As for enforcement, it is ironic that, on the facts of the case, it was clear that the [defendant] in fact well knew that the [lodgers] were overstayers 17 the mere denial of knowledge was simply disbelieved by the court, and a conviction would have been warranted even if the required mens rea was knowledge. Deterrence is not so easy to nail down we need to ask whether there will be a significant class of would-be offenders who would persist in employing or harbouring illegal immigrants, trading on the belief that they can succeed in persuading the court that they did not know. I suggest that the difference between knowledge and negligence is hard enough for the judiciary to handle (and this will soon be demonstrated) it is far-fetched to think that a significant number of potential offenders would alter their behaviour on the basis of that distinction. Perhaps the strongest argument for liability based on negligence is that employers and harbourers will be forced to be more diligent in ensuring that the people they deal with are not illegal immigrants. The strength wanes once we realise that considerable incentives already exist, even if the legal standard is knowledge the defendant must still prove that he or she did not know, and the best, and often only, way of doing this is to show that reasonable steps were taken to check immigration status The real fear is that the watering-down of mens rea from knowledge to negligence buys us little, if anything, in terms of law enforcement gains or deterrent effects. On the other side of the balance sheet, what is at stake is more than simply a deviation from legal principle to put it starkly, we run the risk of confusing the merely foolish with the really evil. We simply do not think that the careless should also be criminal, or at least criminal Supra note 13. Supra note 13, at 116. Supra, note 13, at 118 (emphasis mine). Nevertheless the difference between due diligence as a substantive requirement, and due diligence as an evidential strategy to disprove knowledge must be maintained there will be those who do not exercise due diligence and yet still do not in fact know.

6 14 SAcLJ Illegal Immigration 23 in the same way as the knowing actor. 19 There is a strong indication that the Legislature is similarly persuaded. In a speech introducing the major amendments of 1989, (then) Senior Minister of State Lee Boon Yang stated that the root of the illegal immigration problem was unscrupulous employers who hire illegal workers, and that amendments to the Immigration Act were necessary because the government has found it extremely difficult to secure convictions against unscrupulous employers. 20 Seen in this light, the real concern of the government is not really the negligent or careless, but those who employ or harbour with full knowledge (the unscrupulous ), yet who pretend to be ignorant. But we need to know who the unscrupulous are, and implicit in this strategy is that someone, presumably the prosecutor, will make the decision to charge based on an assessment of whether the employer or harbourer had the guilty knowledge. This shifts the real decision-making from the court to the prosecutor, where judicial process and procedures (carefully designed to ensure fair and accurate decision-making) do not apply. Worse, with the passage of time, this original intent might well be lost, and the relevant actors in the criminal process will begin to think that it is actually the negligent or the careless, and not only the unscrupulous, that the government is after. Using-the criterion of negligence to catch the unscrupulous is a serious over-kill proof of knowledge is grist in the mill for the criminal lawyer, 21 and if it is really the unscrupulous we are after, the identification of the unscrupulous should be made in court and by a judge. 9 Vadivelu, and its advocacy of negligence liability in the face of clear statutory words, sparked off a series of intriguing developments. In Naranjan Singh s/o Ujagar Singh vpp, Chief Justice Yong quoted Vadivelu with approval, but said: 22 [I]n practice the courts have treated [the presumption of knowledge introduced in 1984] as if it did impose a strict liability, and have placed a high obligation on the part of the employer of foreign workers to establish that they were not illegal immigrants... before employing them. To allow an employer to evade the section by doing what would, in effect, amount to wilfully shutting his eyes to the immigration... status of his foreign employee, would make control and enforcement impossible There are two ways to proceed if we believe that negligence is not the same as knowledge negligence can simply be not punishable, or it can be punishable but to a lesser degree. 26 Jan 1989, Parliamentary Debates vol 52 col 596. The operative mens rea for murder is in effect knowledge s 300, Penal Code (Cap 224,1985 Rev Ed) it has never been suggested that because this may be difficult to prove, we should lower it to negligence. Unreported, High Court, 22 Feb 1993, Magistrate s Appeal 398/91/01.

7 24 Singapore Academy of Law Journal (2002) 10 This passage conflates, and almost uses interchangeably, three distinct levels of mens rea: strict liability (where both knowledge and even negligence is irrelevant), negligence (where the issue is whether the defendant ought to have known), and knowledge (where the question is whether the defendant actually did know which state of mind includes wilful blindness, a situation where the defendant has a strong suspicion but purposefully refuses to check out of a fear that his suspicion will be confirmed). It seems to imply that there is little difference between the three kinds of mens rea, leaving the reader in grave doubt as to exactly what the required mens rea is. This set the scene for the confusion that was to follow. 11 In 1993, the Legislature introduced section 57(9), Immigration Act which provides: 23 In any proceedings for an offence [of harbouring or employing and illegal immigrant] it shall not be a defence for the defendant to prove that the person harboured or employed by him was in possession of a pass or permit... unless the defendant further proves that he had exercised due diligence to ascertain that the pass or permit was... valid The need for this subsection was articulated by the (then) Minister for Home Affairs, Professor Jayakumar: 24 [U]ntil a recent decision of the Chief Justice [in Naranjan Singh] we have experienced considerable problems in prosecuting employers of illegal immigrants... In several cases, when an employer was charged with such an offence, he was able to get an acquittal by simply arguing that he was shown a copy of a work permit... even though it turned out that the work permit was forged. [The Minister recited the holding in Naranjan Singh and continued] We therefore propose to... provide expressly for this approach. [The proposed amendments] seek to require a person charged with employing or harbouring... to prove that he had exercised due diligence by checking [the relevant documents] Emphasis mine. It is interesting to compare the equivalent provision in the EFWA which is much more satisfactorily drafted s 5(4): [I]t shall not be a defence for a defendant to prove that he did not know that the worker was a foreigner unless the defendant further proves that he had exercised due diligence to ascertain the nationality of the worker. Section 5(5) then goes on to prescribe the minimum requirements of due diligence. The way the EFWA is drafted shows with crystal clarity that the mens rea intended by the legislature is negligence. 10 Nov 1993, Parliamentary Debates vol 61 col 914 (emphasis mine).

8 14 SAcLJ Illegal Immigration Two observations are in order. First, if the Minister was worried about the several cases where acquittals were obtained by defendants simply arguing that they had been shown a permit, then no amendment was necessary. We do not know how many these several cases were, nor do we know the precise circumstances but it would be very surprising if mere assertions that a permit was produced would have been enough to gain an acquittal, and if indeed that were the case, it would be even more surprising that the prosecution did not seek to correct the error on appeal. 25 Assuming the presumption in section 57(8) applies, the defendant must disprove knowledge of the immigration status of the person he is dealing with. The defendant may seek to support his lack of knowledge by arguing that he had been shown a permit. But the court need not accept the argument it need not have believed the defendant s story that a permit was produced. Even if it was produced, the court need not have believed that the defendant genuinely thought it was valid. If indeed the defendant actually thought it was valid then there seems to be no reason why he or she ought to be penalised the defendant here is simply not an unscrupulous employer (or harbourer). 14 Secondly, the express adoption of the ruling in Naranjan Singh, without further explanation is unfortunate. As we have seen, that decision is riven with ambiguity. It did not settle that essential question of what the mens rea is strict liability, negligence or knowledge? The language of due diligence points to negligence, but it is not found in the primary offence provision (sections 57(1)(d) and (e)), nor does it appear in the presumptions in sections 57(7) and (8). Instead, it appears in the very peculiar section 57(9) which deals only with the situation of the defendant attempting to prove that the employee (or the person harboured) was in possession of a pass or permit. The mysterious section 57(9) has no application where no presumption operates against the defendant for then the defendant will not need to prove anything. Even when the presumptions operate, the defendant will still not need to prove, nor can it ever be a defence merely to prove, that the employee or person harboured is in possession of a pass or permit. Whether the mens rea is knowledge or negligence, the fact that the employee or person harboured was in possession of what purports to be a pass or permit is only evidential of either the fact that the defendant knew or did not know (if the mens rea is knowledge), or of the fact that the defendant ought or ought not to have reasonably known (if the mens rea is negligence). What is a defence, or 25 I have not been able to detect any reported or unreported written grounds of decision in which mere assertions of ignorance succeeded.

9 26 Singapore Academy of Law Journal (2002) must be proved, is never the mere possession of a pass or permit, but whether the defendant either knew or ought to have known that the pass was invalid How have the courts interpreted the mens rea requirement since? It is necessary to distinguish between a situation where one of the presumptions (in sections 57(7) and (8)) apply and a case where they do not. It is weird that evidential presumptions, which properly affect only the burden of proof and not the substantive mens rea requirement, should make a substantive difference but it does seem to do so here. Where the presumptions do not apply, for example where the defendant on a charge of employment is not considered to be an occupier, there is a degree of uncertainty, but the balance of authority seems to favour actual knowledge (or wilful blindness). In Guna Segar v PP, 27 the relevant presumption did not apply because the premises concerned were residential. The defendant, who employed an illegal immigrant as a maid, escaped conviction although he was less than prudent in believing the representations of a maid agency that she had the necessary papers. What the court required was evidence that the defendant intentionally looked for an illegal overstayer, or evidence that the defendant knew or shut his eyes to the obvious. In short, the mens rea is nothing short of knowledge negligence is not enough. The position is rather less clear in Assathamby v PP. 28 The defendant had complained that the charge of employment did not allege knowledge that the employee was an illegal immigrant. The appeal failed, but what is of immediate interest is the fact that the court at one point said that such knowledge [of the immigration status of the employee] is needed for a conviction, but at another point amended the charge to include the allegation that the defendant knew or had reasonable grounds for believing that the employee was an illegal immigrant. Reasonable grounds for believing is the language of negligence and not actual knowledge. The point remains unsettled. 16 Where the presumptions do apply, it is necessary to discuss the position before and after the amendments of 1993 which introduced the requirement of due diligence. The position before the 1993 amendments The EFWA avoids these problems, supra note 23, but creates others. Eg, s 5(4) assumes, without prescribing, that the defendant must prove that he did not know immigration status the normal rule is, of course, that it is the prosecution who must disprove knowledge. Also, the presumption for occupiers in s 6 presumes the defendant to have employed the foreigner and says nothing about knowledge of immigration status is that to be presumed as well? A thorough discussion should wait for further judicial development. [1996] 2 SLR 283. [1998] 2 SLR 744.

10 14 SAcLJ Illegal Immigration 27 attracted the attention of two contradictory decisions. In Kuek Ah Lek v PP, 29 the court was of the view that some sort of negligence liability was in place it was not enough for the defendant to prove that he or she did not know of the immigration status of the employee. In addition it had to be proved that he had inquired from his employee what his employment status was or had checked his employee s permits. In PP v Koo Pui Fong, 30 however, although the court did cite Kuek Ah Lek for the proposition that the old standard of due diligence was applicable, went on to contradict this by saying that it remains open for the accused to show that it was more likely than not that he did not know that his employee was an illegal immigrant. More tellingly, the court held that although the defendant was negligent, in the sense that she ought to have known... because she had in effect the means of knowledge..., there is vast difference between... deliberately shutting the eyes to the obvious... and a state of mind which is merely neglecting to make inquiries as a reasonable and prudent person would make. 31 There matters stood when the 1993 amendments came into force. 17 The manner in which the 1993 amendments were drafted leaves much to be desired. The problematic section 57(9) is the key, for it determines when the due diligence provision (section 57(10)) comes into play. In situations where section 57(9) operates, the standard is expressly due diligence (or negligence), 32 with the rider that the standard of care cannot fall below the steps enunciated in section 57(10) (which is essentially the requirement that the defendant must check both the passport and the work permit to see that the relevant particulars tally). Section 57(9) is predicated on the defendant attempting to to prove that the person harboured or employed by him was in possession of a pass or permit. On its face, it appears to deal only with the situation of a defendant who is arguing that he did not know (or could not have reasonably known) the employee (or person harboured) was an illegal immigrant because he was shown a pass or permit which was in the possession of the employee. It is only in such a case that it becomes necessary for the defendant to prove that the employee was in possession of the said permit or pass. The problem is that it is possible to run a defence without needing to prove that the employee was in possession of a pass or permit. For example, the defendant may have relied on someone else to check and in this situation it is not necessary to prove that the employee was in fact in possession of a permit, [1995] 3 SLR 252. [1996] 2 SLR 266. Ibid, at 272. There is really no difference between due diligence and negligence: the defendant who has failed to exercise due diligence is negligent.

11 28 Singapore Academy of Law Journal (2002) it is enough to prove that the defendant believed (or held the reasonable belief) that the check was performed. Section 57(9) is inoperative and we are thrown back to the debate surrounding the pre-1993 amendment situation is the mens rea actual knowledge or will negligence suffice? If it is negligence (against clear statutory wording), it must then be determined what the standard of care is apart from the stipulated requirements of section 57(10). It may be that a reasonable person would have left the checking to someone else with a reliable track record w but this is something the court must address its mind to independently of section 57(10). Unfortunately, in both Ramli bin Daud v PP and Cheong Choon Bin v PP, 33 it was simply assumed that section 57(9) applied in all cases where the presumption is triggered. The automatic (and, it is suggested, erroneous) application of section 57(10) naturally led to conclusion that relying on another to conduct the relevant checks can never be a good defence, however reasonable that course of conduct may have been. In apparent contradiction to these two decisions are the pronouncements in two other cases. In Lim Dee Chew v PP, 34 it was held that fulfilling the requirements of section 57(10) is but one way... to rebut the presumption, and that it was open [to the defendant] to prove that he had exercised due diligence other than by establishing the elements of sub-s(10), namely, that he had checked the passport personally. Ramli bin Daud was explained away as holding that the legislation effectively and not necessarily requires a person to personally check. A hypothetical blind defendant asking his wife to do the checking was given as an example of an exceptional case where section 57(10) did not have to be complied with. 35 This was picked up in Mohamed Lukman bin Amoo v PP 36 where it was held that the defendant, who was illiterate in English, could exonerate himself by asking someone who was literate in English to check. 18 The positions in Lim Dee Chew and Mohamed Lukman seem to lead towards these propositions: a. b. c. The required mens rea for the offences of employing and harbouring is negligence. Where the presumptions do not apply, the prosecution must prove negligence. Where the presumptions do apply, the defendant must disprove negligence Respectively, [1996] 3 SLR 225 and [2001] 4 SLR 190. [1997] 3 SLR 956. Ibid, at [1999] 4 SLR 292.

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