Ho Yean Theng Jill v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 14 November 2003
• Neutral Citation: [2003] SGHC 280
• Docket Number: Magistrate's Appeal No 70 of 2003 (Criminal Motion No 15 of 2003)
• Date: 14 November 2003
• Published date: 26 November 2003
• Year: 2003
• Plaintiff Counsel: K S Rajah SC (Harry Elias Partnership) and Peter Ong Lip Cheng (Ong Lip Cheng and Rajendran)
• Citation: [2003] SGHC 280
• Defendant Counsel: Christopher Ong Siu Jin (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Section 199 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Charge,Voluntarily causing hurt,Whether court should grant consent for compounding of offence,Section 170 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Sentencing,Section 323 Penal Code (Cap 24, 1985 Rev Ed),Whether sentence manifestly excessive,Principles,Section 71 Penal Code (Cap 224, 1985 Rev Ed),Compounding of offences,Criminal Procedure and Sentencing,Maid abuse by de facto employer,Joinder of similar offences,Whether series of connected acts should be tried as separate offences or one composite offence

1 The appellant was convicted in the Magistrate’s Court on five charges of voluntarily causing hurt under s 323 of the Penal Code and was sentenced to a total of four months’ imprisonment. She appealed against both conviction and sentence. After hearing counsel’s arguments, I dismissed the appeal against both conviction and sentence. I now give my reasons.

Preliminary issue

2 In the petition of appeal filed on 21 April 2003, the appellant essentially challenged the magistrate’s findings of fact. Thereafter, the appellant filed a criminal motion for leave to file a supplementary petition of appeal on 10 September 2003.

3 The original petition of appeal challenged the magistrate’s findings of fact. However, the supplementary petition of appeal raised issues of whether the magistrate had erred in withholding his consent to allow the offences to be compounded. At the hearing, counsel for the appellant argued that the criminal motion should be allowed because the supplementary petition of appeal raised issues of considerable importance with regard to maid abuse cases in Singapore. As the prosecution did not object, I allowed the criminal motion to file the supplementary petition of appeal.

4 It should be noted that the magistrate published his grounds of decision on 14 July 2003. This was about two months before the appellant filed the supplementary petition of appeal. This had an impact on one of the appellant’s arguments which I will deal with below.

5 The parties had also agreed in writing prior to the hearing, that the appellant would not be proceeding on the challenges against the magistrate’s findings of fact as found in the original petition of appeal. As the appellant had abandoned the challenge against the magistrate’s findings of fact, I will begin with only a brief summary of the facts.

Facts

6 This was a simple case of maid abuse. The victim was a domestic maid from Indonesia by the name of Sartini binti Warsono (‘Sartini’). The appellant was a 28 year-old divorcee with a young daughter. Sartini’s work permit was registered under the name of one Tan Key San (‘Tan’), who is the appellant’s ex-husband. Tan moved out of the matrimonial flat before the material incidents took place. It was undisputed that Sartini was working in the appellant’s household and that Sartini took instructions from the appellant at all material times.

7 Before the commencement of the trial below, counsel for the appellant indicated to the Court that the appellant offered to compound the offence. The DPP objected to the composition and the magistrate withheld his consent. The relevant parts of the notes of evidence are as follows:

D/C: (Peter Ong) – taken client’s instructions.
Offence compoundable – explaining if maid is mindful to compound.

DPP: Maid is not willing – usually not compounded. Prosecution is opposing.

D/C: Want to see Senior DPP to make oral representations.

Court: Stand down to 11.15 a.m.
Court commences at 11.25 a.m.

D/C: Representation turned down – maid is now willing to compound. Prosecution is objecting to it but asking Court to allow it.

DPP: Confirmed that maid is willing to compound but Prosecution objecting.

D/C: Compensation offer is $5,000/- and plus [sic] medical expenses and arrears of salary.

Court: Not allowing composition.

D/C: Client is claiming trial. [emphasis added]

8 At the trial, Sartini gave evidence for the prosecution. Sartini testified that in the late morning of 10 March 2002, the appellant scolded her about the dirty table in the living room and took a bamboo pole, normally used for drying clothes, to hit Sartini’s hand twice. This formed the substance of the first charge.

9 Sartini then proceeded to wipe the table and the appellant continued to scold her. Sartini then asked to return to Indonesia. On hearing this, the appellant took the front door keys from the top of the piano and scratched Sartini on the face with the keys. This took place about 10 minutes after the incident involving the bamboo pole and formed the substance of the second charge.

10 About 10 to 15 minutes after that, Sartini attempted to take the keys to let herself out of the flat, so that she could buy some food for herself. The appellant admonished her for it and prevented her from leaving. In the process of a scuffle that ensued, the appellant hit Sartini about five times on the top of her head with a high-heeled shoe that she picked up from the shoe rack next to the front door. This formed the basis of the third charge.

11 A few days thereafter, on the night of 14 March 2002, Sartini testified that she was in the living room when the appellant asked her if she had washed the master bedroom toilet. She told the appellant that she had not done so. The appellant went into the master bedroom toilet and told Sartini to follow her there to show Sartini the state of the toilet. When they returned to the living room, the appellant emptied a plastic basket normally used to keep her daughter’s toys and hit Sartini on the head with it. This was the substance of the fourth charge.

12 The appellant continued to scold Sartini. About eight minutes later, the appellant used her right hand to scratch Sartini’s face. This was the basis of the fifth charge.

13 The next morning, on 15 March 2002, Sartini left the appellant’s flat. She contacted her aunt, one Kusniatun who is also working as a domestic maid in Singapore. Sartini went to Kusniatun’s flat whereupon the sister of Kusniatun’s employer informed the police.

14 Sartini was brought to one Dr Siow Yeen Kiat for examination of the injuries on 15 March 2002. Dr Siow noted that Sartini suffered the following injuries:

(a) a 5 cm scratch mark on her left lower eyelid;

(b) a 2 cm scratch mark on her right cheek;

(c) a 2 cm scratch mark on her right parotid area;

(d) multiple very superficial scratch marks on her right cheek.

15 The appellant’s case at the trial below was one of bare denial. She denied that the basket existed, that she had hit Sartini with a high-heeled shoe and that she scratched her face with a key and/or her fingers. She also attempted to present an alternative version of how the incidents unfolded. For example, with regard to the attempt by Sartini to leave the flat to buy food, she said that her sister told her that Sartini could have hurt herself when she (the appellant’s sister) tried to pull her in during the scuffle. The appellant also said that she had asked Sartini about the injury and Sartini had told her that ‘it’s okay’. In his grounds of decision, the magistrate noted that the appellant’s sister was not called as a witness. Also, the magistrate noted that the appellant did not put to Sartini that she (the appellant) had noticed her bruises and asked her about it.

The decision below

16 The magistrate evaluated the testimony of the witnesses at great length and found that all the charges against the appellant had been proven beyond reasonable doubt. On the issue of composition of the offence, the magistrate held at paragraph 147 of his grounds of decision, ‘[t]hey [the defence] also pointed out that a composition sum of $5,000 was offered to Sartini at the start of the trial (which the Court did not allow).’ The magistrate did not state his reasons for not allowing the composition of the offence in his grounds of decision. However, it has to be noted that the grounds of decision was published almost two months before the appellant decided to proceed with the supplementary petition of appeal to challenge the magistrate’s decision on the issue of composition.

17 On sentencing, the magistrate held at paragraph 148:

While I agree that the enhanced penalties of Section 73 [of the Penal Code] cannot apply because the charges are simply under Section 323, I must note that the law still grants me the discretion to enforce a maximum of one year’s imprisonment or $1,000 fine or both. However, Section 73 aside, Sartini was still a domestic maid. Yes, officially her work permit was under the name of the Appellant’s ex-husband but de facto if not de jure she was under the employ of the Appellant. She was the Appellant’s maid, and as such belonged to the vulnerable class that Section 73 was designed to protect. While, through a technicality, the Court is unable to enhance to maximum penalty, there is nothing that disallows the Court to consider the fact that the victim was the perpetrator’s maid as an aggravating factor and sentence accordingly within the confines of the maximum sentences allowable under Section 323 itself.

18 After considering the relevant mitigating circumstances, the magistrate sentenced the appellant to four weeks’ imprisonment for the first, third and fourth charges. He also sentenced her to two months’ imprisonment for the second and fifth charges. Finally, he ordered the sentences for the second and fifth charges to run consecutively, bringing the total term of imprisonment to four months.

The appeal against conviction

19 In essence, the appellant’s case on appeal against conviction was that the magistrate erred in not allowing her to compound the offences. Counsel argued that this court should exercise its discretionary powers under s 268 of the Criminal Procedure Code (CPC) and allow the offences to be compounded with the consent of the maid.

20 First, counsel submitted that the magistrate should have leaned in favour of composition because this was a simple case of voluntarily causing hurt. Counsel tried to persuade me that Parliament had expressly retained the right to compound offences even in instances of maid abuse. Secondly, counsel argued that the magistrate did not exercise his discretion judiciously because he did not provide grounds for withholding his consent. I will deal with each of these arguments in turn.

Composition of the offence

General principles

21 The crux of this appeal was whether the courts should lean in favour of giving its consent in cases where a domestic maid was hurt, even though the...