Public Prosecutor v Cheng Kim Han Stanley

JurisdictionSingapore
JudgeEdgar Foo
Judgment Date29 October 2019
Neutral Citation[2019] SGMC 66
CourtMagistrates' Court (Singapore)
Hearing Date30 October 2018,11 October 2018,15 April 2019,09 October 2018,02 October 2019,10 October 2018,31 October 2018,22 June 2018,12 September 2019,05 November 2018,07 August 2019,16 April 2019,21 June 2018
Docket NumberMAC 906075-2017 and Others, Magistrate’s Appeal No. 9237/2019/01
Plaintiff CounselDPP Asoka Markandu
Defendant CounselMr T.M. Sinnadurai (Regent Law LLC)
Published date05 November 2019
District Judge Edgar Foo: Introduction

The Accused, a 44 year old male Singaporean, had claimed trial to the following charges:-

1ST CHARGE – MAC 906075-2017 (Amended)

You … are charged that you, on the 28th day of November 2016, at or around 8.55 pm, inside a bedroom at XXXXXXX, Singapore, did use criminal force on one XXXXX, female / 23 years old, a domestic maid employed to work in your household, to wit, did place your head on her right shoulder, knowing it to be likely that you would thereby outrage her modesty, and you have thereby committed an offence punishable under section 354(1) read with section 73(1)(c) and section 73(2) of the Penal Code, Chapter 224.

2ND CHARGE – MAC 906076-2017 (Amended)

You… are charged that you, on the 29th day of November 2016, at or about 5.42pm, in the toilet of the master bedroom at XXXXXXX, Singapore, did use criminal force on one XXXXX, female / 23 years old, a domestic maid employed to work in your household, to wit, you hugged her from behind and used the fingers of your left hand to press her right breast (from outside of her clothes), knowing it to be likely that you would thereby outrage her modesty, and you have thereby committed an offence punishable under section 354(1) read with section 73(1)(c) and section 73(2) of the Penal Code, Chapter 224.

Punishment Prescribed by Law

The punishment prescribed under section 354(1) of the Penal Code (Cap 224) is imprisonment for a term which may extend to 2 years, or with fine, or with caning, for with any combination of such punishments.

Section 73 of the Penal Code (Cap 224) further states that where an employer of a domestic maid or a member of the employer’s household is convicted of an offence of using criminal force to any domestic maid employed by the employer, the court may sentence the employer of the domestic maid or the member of his household as the case may be to one and a half times the amount of punishment to which he would otherwise have been liable for that offence.

At the conclusion of the trial, I found the Accused guilty and convicted him of both the charges.

After hearing the Prosecution’s address on sentence and the Defence’s mitigation plea, I imposed the following sentences on the Accused:-

S/No. Charge No. Sentence
1. MAC 906075-2017 $5000 fine in default 5 weeks’ imprisonment
2. MAC 906076-2017 11 months’ imprisonment with 3 strokes of the cane
Total Sentence: 11 months’ imprisonment with 3 strokes of the cane and $5000 fine in default 5 weeks’ imprisonment

The Accused being dissatisfied with my decision, has filed his Notice of Appeal against conviction and sentence. Accordingly, I set out my reasons for both the conviction and sentence.

The Undisputed Facts

The Prosecution had called on 4 witnesses in their case against the Accused. They are: PW1 – XXXXX, the Victim PW2 – SI Chan Zhi Yao, the Investigating Officer PW3 – Naomi Biak Thawng Iang, the trainer from the maid agency PW4 – Sherlin Low Yee Huang, the manager from the maid agency

In addition to the 4 witnesses, the Prosecution had also tendered 21 exhibits which included CCTV footages1 taken from video cameras installed in the Accused’s house and translation of conversations taken from the CCTV footages2.

As for the Defence, the Defence had called only the Accused to give evidence in his defence. The Defence had also tendered a total of 24 exhibits as part of their case.

The following undisputed facts have been adduced at the hearing: Relationship between Accused and PW1 The Accused is a 44 year-old male Singaporean citizen. He has been working as an air traffic controller with the Civil Aviation Authority of Singapore for over 20 years3. The Accused is the registered employer of the victim, PW1, with the Ministry of Manpower4. XXXXXX Pte Ltd is the employment agency which had arranged for PW1 to work in Singapore5. PW1 is a Myanmar national. She was 23 years old when she came to Singapore to work for the Accused. It is also undisputed that this was PW1’s 1st trip out of Myanmar6. Under the terms of employment between the Accused and PW1, PW1 is to work for the Accused as a domestic worker for a period of 24 months starting from 22 September 2016 and she is to be paid a salary of $450 a month plus $70 for day-off compensation7. PW1 had taken a loan from Myanmar in order to come to Singapore to work and she is supposed to use her salary for the 1st 7 months of her employment to pay off her loan. As such, she is supposed to receive the following amounts of salary every month: For the 1st 2 months, a sum of $34 a month; From the 3rd to 7th month, a sum of $44 a month; and From the 8th month to the 24th month, $520 every month8. The Accused had not paid PW1 her monthly salary of $34 amount even though she had worked for him for more than 2 months9. There are no terms in the employment contract to allow the Accused to withhold PW1’s salary10 nor is there any agreement between the parties for the Accused to withhold PW1’s salary11. In the present case, it is not disputed that the Accused did not pay PW1 her salary since she started work for him and he was holding on to the same12. The employment contract also allows either party to terminate the contract by giving the other party one month’s notice. Either party may also terminate the contract without notice if the other party is in breach of the work permit conditions. When that happens, it is the Accused’s responsibility to bear the cost of repatriating PW1 back to Myanmar13. It was also a term of the employment contract that the Accused is to arrange for PW1 to call home to Myanmar at least once a month14. PW4 also confirmed that she did tell all employers to allow their maids to call home once a month and it is the employer’s responsibility to ensure that this is done15. However, the Accused had not offered PW1 the opportunity of calling home to Myanmar16. The 1st time that PW1 had asked/requested the Accused to call home was on 29 November 2016 at around 17:32:46 hours. It is also clear from the CCTV footage/video recording that PW1 was not afraid to ask the Accused for permission to call home17. It is written in the employment contract that the Accused is supposed to provide PW1 with suitable accommodation in accordance with MOM guidelines and it is stated in the employment contract that PW1 is supposed to share a room with the 2 children18. However, it is clear from the evidence that PW1 was sleeping in the living room rather than with the children19. It is also clear from the evidence that PW1 had never complained to the Accused about her sleeping arrangement all these while20. Circumstances surrounding the alleged offences At the time of the 2 offences, the Accused and PW1 were alone at home. The rest of the Accused’s family had gone to China for a holiday. They had flown off at about 3 am on 27 November 201621. PW1 had started work with the Accused and his family on 22 September 201622. From the evidence, it can be seen that PW1 was the 3rd foreign domestic maid that the Accused had engaged23. PW1 had worked for the Accused for a period of 2 months and 1 week before the alleged incidents on 28 November 2016 and 29 November 201624. During this period, the Accused had reprimanded PW1 twice during the 2nd month of employment25, once when she did not follow the Accused’s wife’s instructions and the second time when she failed to wake up in time to get the children ready for school. On the 1st occasion, PW1 had pulled a long face when she was reprimanded and on the 2nd occasion, she teared after being reprimanded26. However, despite being reprimanded, PW1 had maintained a chirpy and happy demeanour27. The Accused was on child-care leave on 26 November 2016. 27 November 2016 was his off-day from work. The Accused worked from 11pm on 28 November 2016 till 9 am on 29 November 2016 and he did not work the rest of the day on 29 November 201628. CCTVs in the Accused’s residence It is not disputed that the Accused’s residence is fitted with CCTVs. The Accused’s residence is fitted with 5 CCTVs. Three of the CCTVs, namely the ones in the living room, dining room and master bedroom are fitted with SD cards and comes with recording facilities. There are 2 other CCTVs, one in the kitchen area and the other in the children’s bedroom which do not have recording functions but it comes with live viewing capability which allows the Accused to view what is going on in these 2 areas remotely29. The Accused is the only person who has complete knowledge of the home CCTV system as he was the one who had given instruction to the contractor on the installation of the CCTV system. The Accused had also not shared any of this knowledge with PW130. There are no CCTVs installed in the Bedroom 2, which is the grandfather’s bedroom and the Master Bedroom toilet where the 2 alleged incidents took place31. The Accused was the one who retrieved the SD cards and he handed the same to the police after the alleged incidents32. PW1’s Personality/Demeanour It is very clear from the evidence (ie the CCTV recordings) that PW1 is a very happy and easy going person. She is very chirpy by nature. She likes to sing33 to herself and she likes to make funny noises and mimic sounds like that of the doorbell34. It is also very clear from the CCTV recordings that PW1’s demeanour remained the same throughout the 2 days from 28 November 206 to 29 November 2016 in that she was happy and chirpy up to the point the Accused left the house at 17: 44:00 hours on 29 November 2016. It is also very clear that PW1’s demeanour changed shortly after the Accused left the house on 29 November 2016. The video recording from the living room at 17:59:18 clearly showed PW1 mopping the living room and looked very disturbed and troubled35. And when the Accused...

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