Public Prosecutor v Caroline

• Jurisdiction: Singapore
• Judge: Imran bin Abdul Hamid
• Judgment Date: 29 September 2014
• Neutral Citation: [2014] SGDC 416
• Docket Number: MAC-000189-190-2014, MA 207/2014-01
• Published date: 24 November 2014
• Year: 2014
• Citation: [2014] SGDC 416
• Plaintiff Counsel: Prosecution Officer Ivan Chua & Hazel Chng from Ministry of Manpower
• Defendant Counsel: Mr Choo Zheng Xi & Mr Peter Low, Counsels
• Court: Magistrates' Court (Singapore)

District Judge Imran bin Abdul Hamid: Introduction

The general practice in the State Courts during sentence consideration is that the prosecutors, particularly, do not remain passive. Given Prosecution’s statutory right of appeal against manifestly inadequate¹ sentences, the prosecutor has a duty “to take up a positive attitude” in assisting the Court².

Assistance is given in any of, or a combination of, the following ways. Highlighting aggravating factors that are disclosed on the admitted facts and/or asking for a deterrent sentence: Gurmit Singh v PP [1999] 1 SLR (R) 1083; Highlighting impact on victim, or tendering victim impact statement: PP v. Mohamed Noh Hafiz B Osman [2003] 4 SLR (R) 281; PP v Lam Cheng Fong [2002] 2 SLR (R) 599; Highlighting statutory provisions, benchmark cases or sentencing guidelines which may assist: PP v UI [2008] SGCA 35; Challenging any assertion made by the counsel that, in mitigation is inaccurate, misleading or derogatory and if counsel persists in the assertion to recommend, where appropriate, the receiving of evidence to determine the truth of the assertion: PP v. Aniza Bte Essa [2009] 3 SLR 327, paragraphs 54 to 62; Recommending a range of terms of imprisonment or range of fines³ within which the current offence may fall and leaving duration/quantum to the court’s discretion: PP v UI.

The types of assistance that can be rendered are non-exhaustive⁴. Following the sentence of fines imposed in MAC 189/2014 and MAC 190/2014, of $2000 and $1800 respectively, the prosecutors, through State Prosecution (‘Prosecution’), filed an appeal against the sentence.

The implication is that they viewed the fines imposed, not only “inadequate” but also “manifestly” so. As such, “substantial alterations” to the sentence are needed to remedy the injustice: PP v Siew Boon Loong [2005] 1 SLR(R) 61; Liow Chow v PP [1939] 1 MLJ 170.

The Case i. The two charges

The accused was charged and prosecuted for committing 2 offences of abetment (intentional aiding) under section 5(1) read with section 23(1), punishable under section 5(6) of the Employment of Foreign Manpower Act (‘EFMA’, Cap 91A). The offence was punishable with a fine not exceeding $15,000 or to imprisonment for a term not exceeding 12 months or to both⁵: exhibits C1A & C2.

The offences pertained to the employment of her foreign domestic worker, Ulfiana Ari (‘Ari’), by Ms Mercy Sara George (‘Mercy’) and Mr Hixson Jon Todd (‘Hixson’), without a valid work permit, sometime in Feb 12. The accused claimed trial to both charges. At the end of the trial, I found the charges proved beyond a reasonable doubt and convicted her.

ii. Prosecutors’ submissions on sentence

The thrust of the prosecutor’s submission was primarily based on the summary of sentences (‘Summary’) in previous cases that they prepared, mostly for plead guilty cases. The Summary is entitled, “Table of Sentencing Precedents for first offender of section 5(1) under EFMA (Cap 91A)” ⁶: exhibit P11.

From the Summary, the sentencing pattern is fairly stable⁷, that is, around $2000 fine.

I was also informed about the sentencing pattern for fine ranges following the legislative enhancement to the punishment provision⁸. In particular, my attention was brought to PP v Ng Siew Leng⁹, where the accused was an unemployment agent. In that case, the period of illegal employment ranged from 8 days to 4 months. The prosecutors there submitted that, “…the accused was a licensed employment agent at the material period and knew or should have known that it was an offence to illegally employ a foreign employee without a valid work pass.”

I did not consider the subsequent sentencing pattern (post-amendment) as being applicable.

I took the view that the sentence pattern/tariff should be the one that was applicable at the time of the commission of the offence: Chota bin Abdul Razak v PP [1991] 1 SLR(R) 501¹⁰; Seow Wei Sin v PP [2011] 1 SLR 1199¹¹; HKSAR v Mok Yiu Kau [2007] HKCA 341¹².

I do not believe that the prosecutors are now taking a contrary position since they did not take a contrary position at the time of sentencing.

The prosecutors had not submitted during sentencing that the custodial threshold has been crossed. In any event, I never contemplated a term of imprisonment to be appropriate in this case.

The aggravating factors cited by the prosecutors were essentially, twofold: one, the accused was an employment agent at the time the offences were committed, and, two, the accused elected to claim trial.

It was submitted that since the accused had claimed trial, the fines should be higher than $2000 although the prosecutors had not articulated how much more than $2000, the appropriate quantum, should be.

If the prosecutors had desired for the fine to be above $2000, say, in the vein of Parvin Begum, which was the solitary case cited in the Summary, it is reasonable for me to assume that the departure from the usual meant that there were “cogent reasons” for the departure¹³.

As that was an unreported case prosecuted by the MOM, I was not made aware of the specific facts of that case, including mitigating factors (or lack thereof) to justify the departure.

What is apparent is that the fines imposed in all but one (i.e Parvin Begum), has remained stable at around $2000, based on the Summary prepared by the prosecutors.

iii. Mitigating factors

The accused is a first offender. She is the sole breadwinner and mother of 3 children. 1 of them has an asthmatic condition, serious enough, at times, to merit observation in a hospital ward. Her elderly father resides with her.

She used to run a MOM licensed employment agency. MOM has revoked her employment agency license before these charges were preferred, and before convictions were entered.

Having lost her source of income, she now works as a spa receptionist earning $1,800 per month. She exhausted her savings engaging counsel for the trial.

iv. Sentence imposed

With respect to MAC 189/2014, the charge where she had abetted the commission of the offence by Mercy by intentionally aiding Mercy to employ Ari on 2 occasions to do house cleaning for about 5 hours (total of 10 hours), I sentenced her to a fine of $2000 (in default 10 days).

With respect to MAC 190/2014, the charge where she had abetted the commission of the offence by Hixson by intentionally aiding him to employ Ari on 1 occasion to babysit his daughter for about 5 hours, I sentenced her to a fine of $1800 (in default 9 days).

The accused did not appeal against the convictions and sentence. She applied for installments to pay the fine. She has since completed paying the fines (total of $3800). This matter has now come to a close for her.

v. The appeal

It has been said that the Prosecution grapples with the issue of sentencing thrice¹⁴. Notwithstanding this, I gather from this appeal that the prosecutors are of the view that the fines of $2000 and $1800 were not the appropriate quantum they had in mind although they did not share their specific views on this, then.

Assuming that the prosecutors viewed a range between $2000 and $3000 (since Parvin Begum was cited in the Summary) to be appropriate, the fine imposed in MAC 189/2014 (of $2000) is within the range whilst the fine imposed in MAC 190/2014 is $200 below the range.

It would be apt for me to state the factual basis for the sentence passed.

vi. Factual Basis for Sentence

To expedite the trial, the Defence, on accused’s instructions, agreed a Statement of Agreed Facts (‘SOAF’): exhibit PS 1. At the trial, Ms Ari did not give evidence as she had returned to Indonesia¹⁵ before the accused was charged.

The undisputed facts are these: The accused got to know Ari, her maid sometime in Nov 10 while she was working at an employment agency, Happy Maid Happy Home, as an agent.

From 4th Feb 12 to 21st Mar 12, the accused was the employer of Ari. Ari was supposed to work at the accused’s home. Ari was not employed to work at the premises of the employment agency (‘EA’) that the accused ran, namely, Trafford Employment Services (UEN: 201133984G, EA License No.: 11C4857).

Ari was not part of the pool of domestic workers to be engaged by prospective clients through the agency. The breaches by the accused were in her personal capacity since Ari was her domestic maid.

The accused held an employment agency license from 17th Jan 12 and throughout the month of Feb 12. One of her clients was Hixson who had approached her to help him find a domestic maid. Until June 12, the accused’s mobile phone number was [XXX].

The Defence agreed by consent to have the out-of-court police statements of Ari admitted as evidence at the trial, saving the prosecutors’ having to prepare arguments for admission under section 32 of the Evidence Act¹⁶. The following exhibits were admitted into evidence by consent: P3 - Ari’s statement dated 21 March 2012; P4 - Ari’s statement dated 11 June 2012; P5 - Ari’s statement dated 17 October 2012; and P6 - Ari’s statement dated 21 November 2012.

Facts surrounding the commission of MAC 190/2014

Hixson testified that he knew the accused through his friends’ recommendations when he and his wife were looking for a domestic helper. After calling up several different sources to look for a babysitter, he called the accused seeking her suggestion. The accused replied that, “she might be able to help find somebody”. On the afternoon of 19th Feb 12, a female babysitter arrived at his residence at about 3pm. He could not recall what she looks like.

About 5 hours later, he returned home and paid the babysitter about S$50-$60 for her services. He paid the babysitter directly. Hixson informed that he never called the babysitter directly to engage her service - everything was done through the accused.

Hixson’s evidence and Ari’s account in her statement dated 21st Nov 12 (“P6”) dovetails nicely. In...