Public Prosecutor v Donohue Enilia

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeYong Pung How CJ
Judgment Date05 November 2004
Neutral Citation[2004] SGHC 248
Citation[2004] SGHC 248
Plaintiff CounselBenjamin Yim (Deputy Public Prosecutor)
Docket NumberMagistrate's Appeal No 119 of 2004
Defendant CounselRespondent in person
Published date08 November 2004
Date05 November 2004

5 November 2004

Yong Pung How CJ:

1 The respondent pleaded guilty in the Magistrate’s Court to one charge of employing a foreign worker without a valid work permit under s 5(1) of the Employment of Foreign Workers Act (Cap 91A, 1997 Rev Ed) (“EFWA”) and one charge of failing to comply with the conditions of a work permit under s 22(1) of the EFWA. The respondent was convicted and sentenced to pay 35 months of levy at the rate of $345 per month for the first charge and a fine of $3,000 for the second charge. On an application by the Public Prosecutor for an order of compensation for the foreign worker’s unpaid salaries under s 401(1)(b) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”), the trial judge declined to make such an order. The Prosecution appealed.

2 At the start of the hearing, the Prosecution informed me that the respondent had agreed to make full payment of the maid’s unpaid salaries amounting to $3,580. Nevertheless, the Prosecution wished to continue with the appeal for a definitive decision on the order of compensation. After hearing the Prosecution’s arguments, I allowed the appeal and granted an order of compensation. I now give my reasons.

The facts

3 The charges against the respondent are set out below:

(a) MOM Summons No 677 of 2004:

You Enilia Donohue (F) (03/01/1975)

(NRIC S7540756D)

of 521 WOODLANDS DR 14 #06-329 Singapore 730521

are charged that you, from on or about 01 December 2001 to 9 Aug 2003 at 521 Woodlands Drive 14 #06-329 Singapore 730521 did employ a foreigner, namely, Achdaniah (PPT No. AD008097) when a work permit in respect of the said foreigner allowing the said foreigner to work for you had not been obtained and you have thereby committed an offence under section 5(1) of the Employment of Foreign Workers Act, Chapter 91A and punishable under section 5(6) of the same.

(b) MOM Summons No 678 of 2004:

You Enilia Donohue (F) (03/01/1975)

(NRIC S7540756D)

of 521 WOODLANDS DR 14 #06-329 Singapore 730521

are charged that you, from on or about 01 December 2001 to 9 Aug 2003 at 521 Woodlands Drive 14 #06-329 Singapore 730521 did fail to comply with the condition of the Work Permit No. 0 0356021 – which was issued to Achdaniah (PPT No. AD008097) to work as a Domestic Worker for you, to wit, you had failed to pay the said foreigner the salary you declared in the Work Permit Application Form dated 5 Sep 2001 and you have thereby committed an offence under section 22(1)(a) of the Employment of Foreign Workers Act, Chapter 91A and punishable under section 22(1) of the same.

4 On 7 September 2001, a work permit was granted for an Indonesian female to work for the respondent as a domestic maid. The respondent subsequently defaulted on the payment of the maid levy to the Ministry of Manpower (“the Ministry”), resulting in the Ministry revoking the maid’s work permit on 1 December 2001. Instead of repatriating the maid and paying her all moneys and salaries due to her before the repatriation as required by conditions 3 and 5 of the work permit, the respondent continued to employ the maid for a further one year and eight months despite knowing that the work permit had been revoked.

5 During her employment with the respondent from 7 September 2001 to 9 August 2003, the maid was never paid her salaries which totalled $4,630. After the maid ceased to work for the respondent and shortly before her plea of guilt, the respondent ultimately made good a sum of $1,050 to the maid. There was a balance of $3,580 still outstanding.

6 The maid eventually reported the respondent to the police on 9 August 2003, leading to the discovery of the respondent’s contravention of the EFWA. The respondent subsequently pleaded guilty to a charge under s 5(1) of the EFWA for employing a foreign worker without a valid work permit and to a charge under s 22(1)(a) of the EFWA for failing to comply with the condition of the work permit to pay the foreign worker a salary.

7 The trial judge held that aggravating factors in the case merited sentences above the benchmarks for both offences. He convicted the respondent on both charges and sentenced her to pay 35 months of levy at the rate of $345 per month for the first charge, and a fine of $3,000 for the second charge.

The Prosecution’s case

8 The Prosecution cited several aggravating factors for the trial judge’s consideration in deciding whether to grant an order of compensation. The respondent had retained the maid in employment despite knowing that the work permit had been revoked. Further, according to the Prosecution, the respondent had kept the maid in the dark about the revocation. If the maid had not reported the respondent to the police for the unpaid salaries on 9 August 2003, the respondent would have simply continued to flout the law. Finally, the respondent’s irresponsible behaviour also resulted in the maid being classified as an overstayer. The Prosecution thus sought a compensation order on the basis of these aggravating factors.

The decision below

9 The trial judge rejected the Prosecution’s arguments. First, he held that it was wrong of the Prosecution to cite the aggravating factors in support of the application for a compensation order as they were more appropriate for decisions as to sentencing. Second, he found that there was a high likelihood that the maid knew about the illegal employment and thus did not deserve to be compensated. Third, he held that the Prosecution had failed to give a satisfactory explanation of how the sum of $3,580 sought in the application for a compensation order was derived. Consequently, he refused the Prosecution’s application to make a compensation order under s 401(1)(b) of the CPC for the unpaid salaries owed by the respondent.

Preliminary issue of jurisdiction

10 Before dealing with the appeal proper, a preliminary issue raised by the Prosecution must first be dealt with. This was whether the High Court could, under s 256 of the CPC, hear an appeal relating to the granting of a compensation order and vary the order accordingly. In particular, could the High Court hear an appeal against the refusal by the trial judge to grant a compensation order?

11 Section 256 of the CPC provides that:

At the hearing of the appeal the court may, if it considers there is no sufficient ground for interfering, dismiss the appeal or may —

(a) in an appeal from an order of acquittal, reverse the order and direct that further inquiry shall be made or that the accused shall be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction —

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction or committed for trial;

(ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or enhance the sentence; or

(iii) with or without the reduction or enhancement and with or without altering the finding, alter the nature of the sentence;

(c) in an appeal as to sentence, reduce or enhance the sentence, or alter the nature of the sentence; or

(d) in an appeal from any other order, alter or reverse the order.

[emphasis added]

12 The authorities seem to suggest that no appeal can lie against a compensation order as it does not form part of the sentence under s 256(c) of the CPC. In PP v Lee Meow Sim Jenny [1993] 3 SLR 885, Karthigesu JA held at 893, [28] that:

[A] compensation order under [s 401(1)(b) of the CPC] is not part of the ‘sentence’ and consequently the High Court would not have the power under s 256 to make such an order. In our opinion, a compensation order is not ‘punishment’ for an offence under the Penal Code.

13 In Lim Poh Eng v PP [1999] 2 SLR 116, after referring to the above passage in PP v Lee Meow Sim Jenny, I stated at [45] that:

Since a compensation order is not regarded as part of the ‘sentence’, the High Court does not have the power under s 256(b) or (c) to vary a compensation order. A compensation order could conceivably be varied under s 256(d) in ‘an appeal from any other order’. That section was however unavailable since the appeal was only with regards to conviction and sentence.

14 A common thread running through these two authorities is that the appeals involved had been against sentence or both conviction and sentence, to which ss 256(b) and 256(c) of the CPC applied. Framed this way, the appellate court, strictly speaking, could not “enhance the sentence” by making or varying a compensation order, simply because such an order did not form part of the sentence. However, I made the observation in Lim Poh Eng v PP that a compensation order could conceivably be varied under s 256(d) “in an appeal from any other order”. I only stopped short of varying the compensation order because the appeal in Lim Poh Eng v PP had only been with regards to conviction and sentence and s 256(d) therefore did not apply. Therefore, it is clear that where an appeal lies against a compensation order made by the lower court, such an appeal can be heard by the High Court and the order accordingly maintained or varied.

15 The only problem in this appeal was that the trial judge had made no compensation order at all. Strictly speaking, there was no existing compensation order from which the Prosecution could appeal. In other words, it was technically not “an appeal from any other order” under s 256(d) of the CPC. Nevertheless, I was of the view that there could be an appeal against the court’s refusal to grant a compensation order. The opposite conclusion would be absurd, for it would mean that an appeal would be possible if the court awarded a manifestly inadequate amount of compensation, but no appeal would be possible if the court refused to grant any compensation. It cannot be Parliament’s intention for the High Court’s appellate powers to be so circumscribed.

The appeal

16 The Prosecution appealed against the trial...

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