Public Prosecutor v Bong Sim Swan, Suzanna

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 21 August 2020
• Neutral Citation: [2020] SGCA 82
• Plaintiff Counsel: Mohamed Faizal SC, Li Yihong and Sheryl Yeo (Attorney-General's Chambers)
• Docket Number: Criminal Reference No 2 of 2019
• Date: 21 August 2020
• Hearing Date: 10 June 2020
• Subject Matter: Criminal references,Benchmark sentences,Sentencing,Criminal Procedure and Sentencing,Domestic maid abuse
• Published date: 01 October 2020
• Defendant Counsel: Sui Yi Siong, William Khoo Wei Ming and Flora Koh Swee Huang (Eversheds Harry Elias LLP)
• Court: Court of Appeal (Singapore)
• Citation: [2020] SGCA 82
• Year: 2020

Tay Yong Kwang JA (delivering the judgment of the court):

This is the Prosecution’s application to refer three questions of law to the Court of Appeal pursuant to s 397(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). The respondent, Bong Sim Swan Suzanna (“the Respondent”), is now 48 years old. She was convicted after trial in the State Courts on one charge of voluntarily causing hurt to a female domestic helper employed by her by using a glass bottle containing medicated oil to hit the domestic helper’s left cheek a few times, an offence under s 323 read with s 73 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). She appealed against her conviction and sentence. The High Court dismissed the appeal against conviction but allowed the appeal against sentence by reducing the term of imprisonment and the amount of compensation to be paid by her to the domestic worker. The High Court also dismissed the Prosecution’s appeal against sentence and the compensation order.

In Tay Wee Kiat and another v Public Prosecutor and another appeal [2018] 4 SLR 1315 (“Tay Wee Kiat”), a three-Judge High Court set out a sentencing framework for domestic helper abuse offences. The issues raised in the present application arose from the application of the framework.

Background facts

In 2013, Than Than Soe (“the Victim”), a national of Myanmar who was then 23 years old, came to Singapore to work. In May 2013, she began working for the Respondent as a domestic helper in the three-room flat belonging to the Respondent’s parents. About four months after she began work, the Respondent started to find fault with her and to scold her. The scolding eventually escalated into incidents of violence with the Respondent regularly hitting, slapping or pulling the Victim’s hair. The Respondent would often punch the Victim in the eye or face and particularly on the left side. The Victim recalled one occasion where the Respondent punched her in the eye and caused it to turn red because a blood vessel burst. In another incident, the Respondent rubbed curry on the Victim’s face, pulled her hair and slapped her because she did not heat up the curry for dinner. About ten months after arriving here, the Victim’s eyesight began to deteriorate. When she told the Respondent about this, the Respondent told her not to “bullshit”.

When the Victim started working for the Respondent, she first lived in the Respondent’s parents’ flat in Yishun. About one and a half years later, she moved to the Respondent’s flat in Fernvale but was expected to perform household chores in both flats.

For the two years that the Victim worked for the Respondent, she was not paid her monthly salary. Her contract with the Respondent was due to expire after two years and she hoped to be paid and to return home. Instead, the Respondent told her to sign a document that she could not understand. The Victim found out later that it was an extension of her contract of employment. The Victim only received her salary after the authorities learnt about her situation after the incident stated in the charge.

The charge in question concerned an incident on 17 May 2015. The Victim was suffering from a headache and applied some medicated oil from a glass bottle on her head. When the Respondent returned home, she complained about the smell, ostensibly because her dog was very annoyed by it. When the Victim explained that she was having a headache, the Respondent asked her to hand over the glass bottle. She then held the glass bottle in her hand with the base of the glass bottle protruding out and used it to hit the Victim’s face somewhere below her left eye several times. The Victim felt pain and there was swelling and a bruise on the left side of her face. The Victim testified that she could not sleep that night.

In the morning of 18 May 2015, after the Respondent had left for work, the Victim called the police and reported that “My madam always beat me. Please help me. No need ambulance.” Two police officers were despatched to the Fernvale flat. They brought the Victim to the police station and later to a hospital. A medical report dated 23 July 2015 from the hospital noted that the Victim had a 3cm bruise at the left cheekbone area and diagnosed her as having suffered a contusion secondary to the assault. The Victim was discharged from the hospital the same day and brought back to the police station where she spent the night.

The next day, 19 May 2015, the Victim was sent to the Good Shepherd Centre (“the Centre”), a shelter for women who had suffered abuse. She had to sign some forms for admission and realised she had blurred vision as she could not see what was on the papers. When she had to visit an optician, she was unable to walk there alone as she could not see clearly and a staff member from the Centre had to lead her by the hand.

The Victim testified that she did not have any problems with her vision prior to coming to Singapore. She noticed her vision beginning to blur sometime in March or April 2014. She complained about her worsening vision to the Respondent but the Respondent did not believe her. After the incident on 17 May 2015, the Victim’s eyesight deteriorated to the point where she could not walk around by herself.

The Victim was subsequently diagnosed with the following injuries (“the Injuries”): retinal detachment in the left eye as a result of retinal dialysis; bilateral vitreous haemorrhage (bleeding in both eyeballs); bilateral posterior subcapsular cataracts (cataracts in both eyes); and a macular hole in the left eye.

She required significant follow-up medical care, including six eye operations. Dr Chee Ka Lin Caroline (“Dr Chee”), who examined the Victim, gave evidence that at the time of the Victim’s first consultation with her on 2 June 2015, the Victim was found to be legally blind in her left eye. The Victim recovered after the eye operations but still suffered from 22% disability in her right eye and 48% disability in her left eye. While her right eye had recovered near normal vision, her left eye had permanent visual loss. She was likely to require follow-up treatment indefinitely.

At the trial, the Respondent denied the charge completely. She claimed that she treated the Victim like a daughter and never hit her. She also denied the allegations of oppressive and abusive conduct.

The Magistrate’s Court’s decision

The Trial Judge convicted the Respondent on the sole charge and sentenced her to 20 months’ imprisonment. The Trial Judge also ordered her to pay compensation of $38,540.40 to the Victim: see Public Prosecutor v Bong Sim Swan Suzanna [2018] SGMC 75 (“MC GD”).

The Trial Judge accepted that the Victim was a credible witness who provided a simple and even-handed account of the events: MC GD at [32]–[34]. The evidence that the Victim gave was found to be internally and externally consistent: MC GD at [57]–[58]. In contrast, the Respondent was found to be not completely truthful: MC GD at [69]. She appeared to be a fairly exploitative employer who wanted to maximise the benefits of having a live-in maid and did not fully regard the welfare of the Victim: MC GD at [72].

The Trial Judge did not prefer the Respondent’s version of events in respect of the incident on 17 May 2015: MC GD at [73]. Bearing in mind the Victim’s evidence of how she had been treated by the Respondent in the course of her employment, the Respondent’s version of how she reacted to the smell of medicated oil was uncharacteristically muted. The Respondent had claimed that she merely chastised the Victim in a slighter higher tone of voice, telling her, “Next time, just don’t apply”: MC GD at [74]. Considering the totality of the evidence, the Trial Judge concluded that the Prosecution had proved its case against the Respondent beyond reasonable doubt.

The Trial Judge then applied the sentencing framework for domestic helper abuse cases set out in Tay Wee Kiat: MC GD at [85]. The past assaults inflicted on the Victim were relevant because the prolonged history of abuse had sufficient nexus to the charge and formed part of the circumstances surrounding the commission of the offence: MC GD at [87]. The Victim’s enfeebled physical state was a result of frequent abuse which made her susceptible to further injury. It was impossible to divorce the condition that the Victim’s eyes were in after 17 May 2015 from the history of abuse that she had received: MC GD at [89]. The Respondent’s knowledge of the past assaults formed a crucial part of her state of mind at the time of the final attack and by choosing to hit the Victim at the same area on her face on 17 May 2015, this awareness was relevant to the Respondent’s culpability: MC GD at [90].

The Victim suffered both physical and psychological harm. The extent of the Injuries was a result of constant assault over a period of time, with the final blow executed on 17 May 2015: MC GD at [94]. In considering the physical harm, given the medical evidence, it was not possible to segregate the specific or type of injury attributable to the single act of hurt on 17 May 2015. To sentence the Respondent based solely on the bruise ignored the reality of the situation: MC GD at [96]. The extent of injury to the Victim’s eyes fell within the “more serious physical harm” category in Tay Wee Kiat: MC GD at [101].

As for psychological harm, the incident occurred in a context of a sustained pattern of abusive behaviour and a generally exploitative relationship: MC GD at [102]–[103]. At the same time, the Respondent’s treatment of the Victim was not particularly humiliating or degrading: MC GD at [104]–[105]. The degree of psychological harm fell in the higher range in the category of “less serious psychological harm”. The indicative starting range was therefore between 15 to 18 months’ imprisonment: MC GD at [106].

Turning to the aggravating and mitigating...