Chong Yee Ka v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 10 March 2017
• Neutral Citation: [2017] SGHC 47
• Citation: [2017] SGHC 47
• Defendant Counsel: Bhajanvir Singh and Stephanie Koh (Attorney-General's Chambers)
• Published date: 16 March 2017
• Hearing Date: 02 November 2016,20 January 2017
• Plaintiff Counsel: Quek Mong Hua and Jacqueline Chua (M/s Lee & Lee)
• Docket Number: Magistrate’s Appeal No 9089 of 2016 and Criminal Motion 43 of 2016
• Court: High Court (Singapore)
• Date: 10 March 2017
• Subject Matter: Adducing fresh evidence,Criminal Procedure and Sentencing,Appeal,Criminal Law,Offences,Hurt,Domestic maid abuse

See Kee Oon J: Introduction

This is an appeal against sentences imposed by the District Court in respect of two charges under s 323 read with s 73(2) of the Penal Code (Cap 224, 2008 Rev Ed). The offences in question involved the abuse of a foreign domestic worker, Ms Aye Moe Khaing (“the victim”), a 27-year-old Myanmar national who had worked in the appellant’s household since March 2013.

The appellant was charged with three counts of voluntarily causing hurt to the victim. It is significant to note that the offences were committed over a duration of nearly 20 months, with the first offence taking place in August 2013 and the other two taking place much later, on consecutive days in early April 2015 (“the April 2015 incidents”).¹

The Prosecution elected to proceed with two charges which pertained to the April 2015 incidents. The other charge relating to the earlier offence in 2013 was taken into consideration (“the TIC charge”). The appellant pleaded guilty and admitted to the Statement of Facts (“SOF”) without qualification and the District Judge sentenced her to three weeks’ imprisonment in each charge, ordering the imprisonment terms to run concurrently. The appellant filed the present appeal against sentence and also filed a criminal motion (“CM”) seeking to admit additional evidence in support of her appeal.

The District Judge’s decision

Before the District Judge, the Prosecution submitted that the appropriate sentence was a global term of four weeks’ imprisonment, emphasising that there were no reasons to warrant a departure from the norm of a custodial term for maid abuse, as laid down by the Court of Appeal in ADF v Public Prosecutor and another appeal [2010] 1 SLR 874 (“ADF”).² The Defence argued that a fine would suffice. In particular, it submitted that, having regard to Chao Hick Tin JA’s decision in Soh Meiyun v Public Prosecutor [2014] 3 SLR 299 (“Soh Meiyun”), the custodial threshold was not crossed because the appellant had suffered from depression and obsessive-compulsive disorder (“OCD”), which were found by her psychiatrist to have a causal link to her offences.³

The District Judge’s Grounds of Decision can be found at Public Prosecutor v Chong Yee Ka [2016] SGMC 17, which I will refer to as the “GD”. He reasoned that the offences were serious, and both specific and general deterrence required custodial sentences to be imposed, notwithstanding the appellant’s psychiatric conditions: GD at [61]. He agreed with the Prosecution’s submissions on the various aggravating factors, including the manner in which injury was caused. In each offence in the proceeded charges, the assault did not comprise a singular act of violence, but involved various acts, and the appellant had viciously targeted the victim’s face and head, which were vulnerable parts of her body: GD at [21]. The victim as a result sustained head and eye injuries, including a bruise below her right eye which remained clearly visible five days after the assault.

The District Judge also highlighted the “prolonged period of physical and mental abuse and the TIC charge”, noting from the SOF that the appellant had started physically abusing the victim from August 2013, which was “about 5 months into her employment”. In his assessment, at [31] of the GD,

These facts meant that the Victim suffered a prolonged period of abuse, rather than just “…a case of a one-off spontaneous incident…” (see V K at [105] of ADF). In all, the abuse appears to have taken place over a significant period starting from August 2013, with the frequency increasing from December 2014 onwards.

[emphasis in original]

The District Judge further noted at [32] of the GD that the abuse included “demeaning and hurtful words directed at the Victim by the Accused who used “her finger to push the side of the victim’s head saying that she had ‘no brains’” (emphasis in original). He opined that the two proceeded charges had to be considered in the context of the prolonged period of abuse, and other episodes of assault suffered by the victim at the hands of the appellant.

The District Judge was however also cognisant that the injuries caused were relatively superficial, with no evidence of any permanent damage suffered: GD at [23]. The appellant was remorseful, had pleaded guilty, and was otherwise of good character.

The background facts

The SOF is set out in full at [5] of the GD. As reflected in the SOF, the police were informed on 8 April 2015 by the Ministry of Manpower of the victim’s allegations of abuse. The following paragraphs in the SOF provide an account of the abuse suffered by the victim, encompassing the April 2015 incidents. I have retained the District Judge’s emphases in the GD: 6. The victim reported that in August 2013, about 5 months into her employment, the accused began physically abusing her whenever she was unhappy at her performance or when she made mistakes. The accused would abuse the victim by slapping her, knocking her on the head, or using her finger to push the side of the victim’s head saying that she had “no brains”. According to the victim, the abuse became more frequent after the accused gave birth to her second child in December 2014.

Facts relating to the charges

7. On 3 April 2015, in the morning, the victim was cleaning the master bedroom when the accused came in and told her that she had 20 minutes to finish cleaning. The victim asked the accused for more time but this angered the accused. The accused then used her fist to punch the victim on her face and used her palms to slap the victim on both cheeks until the victim fell down. As the victim tried to get up, the accused kicked her in the face causing her to fall backwards. The accused then grabbed hold of the victim’s hair and pulled the victim up before knocking the victim’s head against the wall twice. Thereafter, the accused punched the victim in the face again and finally left the bedroom. The incident was partially witnessed by the accused’s husband, who did not try to stop the assault and simply closed the bedroom door.

….

9. On 4 April 2015, in the afternoon, the victim was filling up water bottles in the kitchen sink when she accidentally knocked over one of the bottles. The victim bent down to pick up the bottle without realising that she had left the tap running. On seeing this, the accused came over and punched the victim on the right side of her face and then slapped the victim on both sides of her face. The accused also pulled the victim’s right ear and scolded her.

…

[emphasis in original]

The victim was seen at Khoo Teck Puat Hospital on 9 April 2015. She was diagnosed with eye and head injury secondary to alleged assault, and she was discharged with medication.⁴ Photographs taken of the victim showed a clearly visible bruise below her right eye.⁵

Evidence of the appellant’s psychiatric conditions

Before the District Judge, a total of six reports relating to the appellant’s psychiatric conditions were furnished. Three of these were prepared by Dr Ung Eng Khean (“Dr Ung”), the appellant’s psychiatrist; two by Dr Kenneth G W W Koh (“Dr Koh”), a psychiatrist with the Institute of Mental Health (“IMH”); and one by Dr Douglas Ong (“Dr Ong”), the appellant’s obstetrician.

The Defence tendered Dr Ong’s report to show that he had treated the appellant for post-natal depression after the birth of her first child in 2012 following a miscarriage in 2011.⁶ He had followed up with treatment in 2014 after the appellant gave birth to her second child.

In his first report dated 23 September 2015 (“Dr Ung’s first report”),⁷ Dr Ung opined that the appellant was suffering from major depressive disorder of moderate severity, as well as a mild form of obsessive-compulsive disorder (“OCD”), secondary to her depressive disorder.⁸ He also stated his opinion that the appellant’s mental condition had a “direct and causal relationship” to her commission of the offences.⁹ In his second report dated 24 November 2015 (“Dr Ung’s second report”), Dr Ung maintained the conclusions and recommendations in his first report.¹⁰

In Dr Koh’s report dated 20 January 2016 (“Dr Koh’s first report”), he opined that the appellant was suffering from agitated depression of moderate severity at the time of the offences and her psychiatric condition contributed to her offending.¹¹ Dr Koh recognised that depression does cause increased agitation and reduced impulse control in some people.

In Dr Koh’s report dated 24 February 2016 (“Dr Koh’s second report”), Dr Koh did not think that Dr Ung had correctly diagnosed the appellant with OCD but agreed with the finding of major depressive disorder of moderate severity.¹² Dr Koh affirmed his original view that the appellant’s depression was only contributory to the commission of the offences. He stated that it would be best that Dr Ung clarify the statement in the first report regarding the “direct and causal relationship” between the appellant’s illness and her offending behaviour. Dr Koh felt that this opinion was “difficult to defend as depression and OCD do not routinely and frequently cause persons to assault others, unlike, say a fall directly causing a bruise”.

The last in chronology of the six reports before the District Judge was from Dr Ung and it was dated 14 April 2016 (“Dr Ung’s third report”).¹³ The Defence tendered it after the appellant had pleaded guilty on 11 April 2016. It traversed recommendations regarding the appellant’s ongoing treatment and the role the appellant’s husband can play to reduce her risk of recidivism. However, Dr Ung did not clarify in his report why he found a “direct and causal relationship” between the appellant’s illness and her offending behaviour.

In its submissions before the District Judge, the Prosecution contended that Dr Koh’s opinion ought to be preferred to that of Dr Ung since: The abuse inflicted by the appellant...