Farida Begam d/o Mohd Artham v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 08 November 2001
• Neutral Citation: [2001] SGHC 333
• Date: 08 November 2001
• Subject Matter: Elements of offence,Witnesses,Evidence,Sentencing,Enhancment of penalties,Assessment of witness's demeanour,Evidence of interested witnesses,Evidence of disinterested witness,Need for caution,s 73 Penal Code (Cap 224),Offences,Whether elements satisfied,Criminal Law,Deterrence and public policy,Definition of 'hurt'- ss 319, 321 & 323 Penal Code (Cap 224),Criminal Procedure and Sentencing,Internal and external consistency of evidence,Maid abuse,Credibility,Voluntarily causing hurt
• Docket Number: Magistrate's Appeal No 149 of 2001
• Published date: 19 September 2003
• Defendant Counsel: Daniel Yong (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Shashi Nathan (Harry Elias Partnership)

: For ease of reference, Farida Begam d/o Mohd Artham will be referred to as the appellant, and the Public Prosecutor as the respondent. This was an appeal from the decision of Magistrate Gilbert Low (`the judge`), in which he convicted the appellant of an offence under s 323 of the Penal Code (Cap 224) and acquitted her of three other charges under the same section. The appellant was sentenced to three months` imprisonment. The appellant appealed against conviction and sentence. The respondent cross-appealed against sentence. I dismissed the appellant`s appeals and allowed the respondent`s cross-appeal and now give my reasons.

The charge

The first three charges were irrelevant for the purposes of this appeal. The fourth charge read as follows:

You ... are charged that you, on 30 August 1999, at Blk 496E Tampines Avenue 9 [num ]02-524, Singapore, being the employer of a domestic maid, one Khusniati Habib (female, 20 years of age), did voluntarily cause hurt to her, to wit, by hitting her head, face and chest with a wooden scrub and a slipper, and you have thereby committed an offence under section 323 of the Penal Code (Chapter 224) punishable under the aforesaid section read with section 73(2) of the Penal Code (Chapter 224).

The evidence of the prosecution

Khusniati Habib (`PW4`) started work in the appellant`s household as a domestic maid on 13 July 1999. There were allegations of several other instances of abuse, but the incident in question occurred on 30 August 1999 at about 7.30am. PW4 was cleaning the floor outside the flat with a long brush when the appellant told her that she was using the brush wrongly. The appellant then hit PW4 on the head and upper body several times with the brush pole. She subsequently hit PW4 hard on the face with a slipper. PW4 did not scream or cry for fear of reprisals. The appellant then showed PW4 how to use the brush and PW4 duly complied.

Later that morning, PW4 took the appellant`s daughter to school. One of PW4`s friends saw the injuries on her face and suggested she make a police report. They pleaded with a passer-by, Rugayah bte Idris (`PW3`) for help. PW3 took them to a police post, where a report was lodged at 1.30pm. The police took photographs of PW4`s injuries at 3pm. She was examined by Dr Khor Chong Chneah (`PW2`) at 9.40pm. PW4 spent the night in police custody. The next day, at 11am, Sgt Sani b Tugiman (PW1) noticed that the area around PW4`s eyes had darkened. More photographs of PW4`s face were taken.

The evidence of the defence

The appellant denied ever hitting PW4. Her evidence regarding the time at which she was home on 30 August 1999 was inconsistent throughout the trial (see below). The defence suggested two reasons for PW4`s injuries. First, Shamsunisha d/o Mohd Ghouse (`DW3`), the appellant`s aunt, said that PW4 had fallen twice, once forwards and once backwards, while washing the kitchen floor on 29 August 1999. The appellant, DW3 and the appellant`s brother, Mohamed Ali (`DW2`), said that PW4 only had slight bruises on her forehead at 11.30am the next day. Hence the second reason which the defence suggested was that PW4 inflicted the injuries on herself sometime between 11.30am and 1.30pm on 30 August 1999, while she was not in the appellant`s home.

Furthermore, the appellant alleged that PW4 had twice stolen money and valuables. The appellant made a police report on 30 August 1999 (the very day that PW4 had made her police report) alleging theft by PW4.

The magistrate`s decision

The judge set out the prosecution`s and the defence`s evidence. He described the impeachment exercises against PW4 and the appellant. He ruled that the former`s credit was not impeached, but that the latter`s was. He accepted PW4`s version of events, and PW2`s explanation of the possible cause of PW4`s injuries. In sentencing the appellant, he bore in mind the fact that she was a first offender, had two children and was 27 years old at the time of the offence. He imposed what he believed was the benchmark of three months` imprisonment.

Issues

The issues in this appeal were:

(1) The credibility of PW4 and Staff Sergeant Patrick Lim (`PW6`).

(2) The credibility of the defence witnesses.

(3) Whether the elements of the offence were present.

(4) Whether the sentence was manifestly inadequate or excessive.

THE FIRST ISSUE: CREDIBILITY OF PW4 AND PW6

A judge can make a finding on the credibility of a witness based on some or all of the following:

(1) His demeanour.

(2) The internal consistency (or lack thereof) in the content of his evidence.

(3) The external consistency (or lack thereof) between the content of his evidence and extrinsic evidence (for example, the evidence of other witnesses, documentary evidence or exhibits).

The starting point in relation to findings based on demeanour was Yap Giau Beng Terence v PP [1998] 3 SLR 656 :

It is trite law that an appellate court should be slow to overturn the trial judge`s findings of fact, especially where they hinge on the trial judge`s assessment of the credibility and veracity of witnesses, unless they can be shown to be plainly wrong or against the weight of the evidence. [Emphasis is added.]

This was relevant to all the witnesses, but it was especially so to PW4. In PW4`s case, while her evidence in relation to the particular incident was generally internally consistent, there was little extrinsic evidence with which her evidence could be compared. No other prosecution witness was present at the scene of the incident, and the medical evidence did not rule out a combination of falls and self-infliction as the cause (see below). Hence the judge`s assessment of her demeanour was significant. In contrast, in PW6`s case, there was external consistency between the content of his evidence and the actual document on which the appellant`s statement was made (see below). In the case of the defence witnesses, there were both internal inconsistencies in the content of individual witnesses` evidence and external inconsistencies between the content of different witnesses` evidence inter se.

PW4 was only 19 years old at the time of the incident, and had only received six years of education. The judge was of the opinion that she was naïve and not of high intelligence. The defence attempted to impeach PW4`s credit, based on inconsistencies between her police report and her testimony. There was only one issue which could be called a `discrepancy`: the police report mentioned `daily` abuse but the appellant was charged in relation to only four incidents. Staff Sergeant Lee Kim Siah (PW5) explained that PW4 had mentioned other incidents of abuse, but as the details of these were unclear, the appellant was not charged in relation to them. The judge found that PW4`s credit was not impeached. The judge was also careful to state that the appellant`s acquittal on three other charges was not due to PW4`s unreliability, but because of the lack of specific details in her evidence. However, PW4 remembered the incident in question well, because it was the most serious assault.

The next issue involved PW6`s credibility. On 30 August 1999, the appellant made a statement, which was recorded in English...