Case Note - COMPENSATION FOR ABUSED FOREIGN DOMESTIC WORKERS

• Author: Benjamin Joshua ONG1 BA Jurisprudence (Oxon), BCL (Oxon); Advocate & Solicitor (Singapore); Assistant Professor of Law, Singapore Management University. 1 The author is grateful to the anonymous reviewer for the useful comments received. The author is also grateful to Cacy Tan, Assistant Director of the Community Justice Centre, for her helpful clarifications regarding the scope of the Victim Assistance Scheme. All errors and omissions remain the author's own.
• Published date: 01 December 2020
• Date: 01 December 2020

I. Introduction

1 Tay Wee Kiat v Public Prosecutor2 involved a married couple who repeatedly abused a foreign domestic worker named Fitriyah. Tay Wee Kiat's treatment of Fitriyah between 2011 and 2012 was “plainly cruel and almost sadistic” and amounted to a “serious affront to her dignity”.3 His wife Chia Yun Ling, while not as culpable, caused physical harm to Fitriyah in a manner that “bordered on the abusive”.4 (This is to say nothing about their similar crimes during the same period against another foreign domestic worker, Moe Moe Than).5

2 For their offences against Fitriyah, Tay and Chia were sentenced to 43 months' and two months' imprisonment respectively. In addition, using its powers under s 359 of the Criminal Procedure Code6 (“CPC”), the High Court ordered the offenders to compensate Fitriyah for her pain and suffering and loss of prospective earnings: Tay and Chia were ordered to pay Fitriyah $5,900 and $1,900 respectively.7

3 But Tay and Chia did not pay up for over a year. Eventually, despite the Prosecution's efforts, the High Court declared that the offenders were to serve default terms of imprisonment instead of paying the compensation, and that nothing more could be done to make them pay.8 This state of affairs was brought about by what this note argues was an incorrect application of the statutory compensation scheme by the High Court. The High Court refused to make further orders under s 360 of the CPC, such as ordering that the offenders' property be seized and sold and the proceeds used to pay Fitriyah. This note will argue that the High Court erred in so refusing, and ought to have made such orders.

II. The purpose of compensation orders

4 Under s 359 of the CPC, when a person is convicted of an offence, the court must “consider whether or not to make an order for

the payment by that person of a sum to be fixed by the court by way of compensation to the person injured, or his representative, in respect of his person, character or property”. The compensation is in respect of losses arising from (a) offences of which the offender has been convicted; or (b) offences to which the offender has admitted and consented to be “taken into consideration for the purposes of sentencing”.9 If the court is of the view that it would be “appropriate” to order compensation, then the court must do so.10

5 The purpose of the compensation provisions is to serve as a “shortcut to the remedy that the victim could obtain in a civil suit against the offender”.11 Consider the following example: If an offender is convicted of voluntarily causing hurt to the victim, and has caused the victim to incur $100 in consulting and obtaining treatment from a doctor, the victim would be entitled to sue the offender for the tort of trespass to the person and be awarded $100 in damages. What the compensation regime does is to allow the court which convicted the offender to order that the offender pay $100 to the victim, without the victim having to incur the effort and expense of commencing a separate civil suit to recover the $100 as damages. This is particularly useful when the victim is “disadvantaged or poor” and therefore lacks the financial means to commence a civil suit.12 In particular, the High Court has previously recognised that “domestic maids are often, if not invariably, impecunious”.13

6 One might next ask: What if the offender fails to pay the $100? That is why s 360 of the CPC exists. If the victim had brought civil proceedings against the offender, and the offender had been held liable to pay the victim $100 in damages, then the victim can seek to enforce the judgment debt by way of a writ of seizure and sale, the appointment of a receiver, or garnishee proceedings, or a combination of any of these.14 In addition, if the offender-defendant has the means to pay the debt but flat out refuses to do so, then the victim-plaintiff can apply for him to be committed for contempt of court and fined or imprisoned.15

Likewise, s 360 of the CPC provides for various similar techniques for the enforcement of compensation orders, such as the following:

(a) The court may stipulate a timeline for the payment of the compensation sum, which may involve payment by instalments.16

(b) The court may order that the offender's property be seized and sold (possibly by a receiver), and that the proceeds be applied toward payment of the compensation sum.17

(c) The court may order that debts due to the offender be garnished and paid to the court instead, which the court will in turn apply toward payment of the compensation sum.18

(d) The court may order that the offender be imprisoned in default of payment of the compensation sum.19

(e) The court may order that the offender be searched, and any money found on him be applied toward payment of the compensation sum.20

7 In short, the statutory compensation scheme shares two features in compensation with civil actions for damages:

(a) First, both make it possible to order an offender (tortfeasor) to compensate the victim for harm arising from the crime (tort).

(b) Second, both provide means to compel the payment of compensation by procedures such as seizure and sale of property and garnishment of debts.

III. Summary of case

8 This note seeks to discuss two judgments relating to Tay and Chia's offences against Fitriyah which the High Court handed down after the convictions. In the first21 (“Tay Wee Kiat (Compensation Order)”), the High Court rightly recognised and gave effect to the first feature of the compensation regime. The High Court calculated the amount of compensation in the same way that a court would calculate the sum of damages in tort. For example, the High Court used the Guidelines for the

Assessment of General Damages in Personal Injury Cases22 as a guide to compensation for pain and suffering,23 and applied a principle akin to the doctrine of mitigation in compensating the victim for loss of income only for the period during which it would not have been practical for her to find alternative employment.24 These approaches are perfectly right, and are perfectly in line with the purpose of compensation as serving as a “shortcut” to granting the victim what the victim could obtain in a suit in tort.

9 However, the High Court's second judgment25 (“Tay Wee Kiat (Enforcement Decision)”) had the effect of frustrating the second feature of the compensation regime, by rendering the compensation order effectively unenforceable in cases where the offenders chose to serve a default jail term instead. What happened was this: When the High Court made the compensation order on 8 May 2018, it ordered that Tay and Chia be imprisoned in default of payment of compensation.26 For over a year, Tay and Chia failed to pay the compensation due to Fitriyah. On 20 September 2019, the Prosecution sought an order that debts owed to them be garnished and/or their property be attached (“garnishment/attachment orders”). The High Court refused to make such orders, and the offenders chose to serve the default imprisonment terms instead of paying compensation.27 As a result, the victim could recover nothing by way of the statutory compensation scheme; she would only have been able to recover compensation from the offenders by commencing a separate action against them.28

IV. Discussion

10 There were two reasons for the High Court's refusal to make garnishment/attachment orders.

A. Delay in application for compensation order

11 The first reason was that it was too late for such orders to be sought: “if the Prosecution had wanted to seek orders for examination and garnishment, the necessary directions ought to have been sought

at the last hearing before us”.29 Instead, “in cases where the Prosecution is seeking a compensation order, the Prosecution should also consider which of the default mechanisms prescribed in s 360(1) CPC it wishes to seek”.30

12 This is questionable. As the High Court recognised, “s 360(1) of the CPC does not limit the court to one mode of enforcing payment of compensation”.31 Why, then, ought the court to decline to make a garnishment/attachment order by reason only of the Prosecution's delay in seeking one?

13 The High Court did not clearly elaborate on the answer to this question. One possible answer is the risk of prejudice to the offender. But there is no such risk. As has been seen,32 it would have been open to the victim to (successfully) sue the offenders in tort and then enforce the judgment debt by various means, and these means are similar to those set out in s 360(1) of the CPC. In other words, whether or not the court makes an order under s 360(1) of the CPC, it would still be possible for these procedures to be invoked against the offenders. So it cannot be said that the use of multiple modes of enforcement under s 360(1) occasions any prejudice to the offenders. To the contrary, the proceedings would end faster, and the offenders would sooner be able to move on with their lives, than if separate civil proceedings were to be instituted against them.

B. “Undue protraction” of proceedings

14 The High Court's second reason for refusing to grant the Prosecution's application for garnishment/attachment orders was that:33

… [this] would result in precisely what the compensation regime under the CPC should seek to avoid – undue protraction of proceedings by converting a concluded criminal matter into ‘quasi-civil’ enforcement proceedings over which extended judicial oversight has to be exercised.

15 In support of this view, the High Court stated that it had “cautioned against such a prospect” in its previous judgment in Tay Wee Kiat (Compensation Order). The relevant extract from Tay Wee Kiat (Compensation Order) is as follows:34

… compensation ought only to be ordered in clear cases where the fact and extent of damage are either agreed or readily and easily ascertainable on the evidence. This is because compensation...