Tay Wee Kiat and another v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Tay Yong Kwang JA,Kee Oon J
• Judgment Date: 02 March 2018
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeals Nos 9079 and 9080 of 2017
• Date: 02 March 2018

Tay Wee Kiat and another

and

Public Prosecutor and another appeal

[2018] SGHC 42

Sundaresh Menon CJ, Tay Yong Kwang JA and See Kee Oon J

Magistrate's Appeals Nos 9079 and 9080 of 2017

High Court

Criminal Procedure and Sentencing — Charge — Multiple charges worded identically — Whether offences double-counted —

Criminal Procedure and Sentencing — Charge — Prosecution amending charges before Defence called — Whether amendment of charges prejudicial to conduct of defence —

Criminal Procedure and Sentencing — Disclosure — Prosecution failing to disclose statements made by victim to police — Whether Prosecution in breach of duty of disclosure —

Criminal Procedure and Sentencing — Sentencing — Benchmark sentences — Domestic maid abuse — Appropriate sentencing framework — Sections 73 and 323 Penal Code (Cap 224, 2008 Rev Ed) —

Held, dismissing the offenders' appeals against their convictions and sentences and allowing in part the Prosecution's cross-appeals against the sentences:

(1) The Prosecution's amendment of the charges did not prejudice the offenders in the conduct of their defence. The charges were amended before the Defence was called and the offenders had sufficient opportunity to meet the Prosecution's case. Moreover, the amendment of charges did not undermine the veracity or reliability of the victim's and Moe Moe Than's evidence. The critical issue was whether the totality of the evidence suggested that their evidence in respect of the material elements of the charges was untrue or unreliable: at [21] and [22].

(2) The allegation of double-counting of charges was without substance. Although some of the charges were worded identically, they referred to separate and distinct incidents of abuse. The details pertaining to each charge were dealt with in the evidence, the submissions and by the District Judge: at [23].

(3) The Prosecution had not breached its obligations under Kadar (No 1). The victim's statements were inadmissible under s 259 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) and the District Judge did not err in declining to invoke any of the exceptions thereto. Disclosure of the statements would not have provided a real chance of pursuing a line of inquiry leading to material that was likely to be admissible and that might reasonably be regarded as credible and relevant to the offenders' guilt or innocence. The mere fact that the charges had been amended did not constitute reasonable grounds to believe that the duty of disclosure had been breached: at [25] to [28].

(4) While there were some inconsistencies in the victim's evidence, the trial occurred some four years after the alleged incidents of abuse and it was reasonable for her to have difficulty recalling specific dates and times. These inconsistencies were not material and did not affect the victim's credibility. Discrepancies between the victim's testimony and that of other witnesses were minor and understandable given the passage of time. Moreover, five incidents of abuse were corroborated by Moe Moe Than's testimony: at [32], [33], [35], [36] and [39] to [46].

(5) There were adequate explanations for the victim's failure to report the abuse to the police or to doctors, including her belief in the offenders' assurances that they would not hit her again and her perception that the doctor would not be in a position to help her: at [47] and [48].

(6) Psychological abuse, in conjunction with physical harm, was what characterised egregious instances of maid abuse. Domestic maids were particularly vulnerable to such abuse by reason of their circumstances. The psychological harm and mental anguish they could suffer from being trapped in a situation of fear, abuse and oppression could be just as acute and enduring as physical harm, if not more. The emotional trauma resulting from psychological abuse was therefore a critical sentencing consideration in maid abuse cases: at [66], [68] and [69].

(7) In sentencing cases of domestic maid abuse, the court should first determine whether the harm caused to the victim was predominantly physical, or both physical and psychological. In the former case, the court should consider the degree of harm and the aggravating and mitigating factors in determining the appropriate sentence, bearing in mind other maid abuse precedents. In the latter case, the second step was for the court to identify the degree of physical and psychological harm caused in relation to each charge. Psychological harm could be indicated by behaviour which was humiliating or degrading, or calculated to reinforce the offender's authority and oppress and bully the victim into submission. Indicative sentencing ranges would apply based on the degree of physical and psychological harm caused. Third, the court would adjust each sentence in the light of other aggravating factors and mitigating circumstances. Finally, the court would decide which sentences to run consecutively, bearing in mind the duration and frequency of abuse and taking care not to double-count any factors which had already been considered as aggravating at the second stage. Where psychological harm arose from a sustained pattern of abuse, it was more appropriate to take that harm into account at this stage, rather than in sentencing each charge individually: at [70] to [75].

(8) Applying this framework to the facts, the appeals against Chia's sentences were dismissed. The harm that resulted from Chia's offences was predominantly physical. Taking into account the degree of harm and her lack of remorse, two months' imprisonment was not manifestly inadequate or excessive: at [77].

(9) In contrast, four of the sentences imposed on Tay were manifestly inadequate given the degree of harm inflicted. Three of these charges involved humiliating and degrading treatment of the victim, placing them in the category of more serious psychological harm. The fourth involved pushing the victim's head against the cabinet and was also enhanced given the degree of physical harm caused. Considering the cumulative effect of Tay's abuse over the two-year period, five sentences were ordered to run consecutively, making an aggregate of 43 months' imprisonment: at [78] to [81], [83] and [84].

Case(s) referred to

ADF v PP [2010] 1 SLR 874 (folld)

Ang Lilian v PP [2017] 4 SLR 1072 (refd)

Chang Kar Meng v PP [2017] 2 SLR 68 (refd)

Chong Yee Ka v PP [2017] 4 SLR 309 (refd)

Chua Siew Peng v PP [2017] 4 SLR 1247 (refd)

Farida Begam d/o Mohd Artham v PP [2001] 3 SLR(R) 592; [2001] 4 SLR 610 (refd)

Janardana Jayasankarr v PP [2016] 4 SLR 1288 (refd)

Lee Siew Boon Winston v PP [2015] SGCA 67 (folld)

Loganatha Venkatesan v PP [2000] 2 SLR(R) 904; [2000] 3 SLR 677 (folld)

Low Gek Hong v PP [2016] SGHC 69 (refd)

Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (folld)

Muhammad bin Kadar v PP [2011] 3 SLR 1205, CA (folld)

Muhammad bin Kadar v PP [2011] 4 SLR 791, CA (folld)

Ong Ting Ting v PP [2004] 4 SLR(R) 53; [2004] 4 SLR 53 (refd)

PP v BDB [2018] 1 SLR 127 (refd)

PP v Chong Siew Chin [2001] 3 SLR(R) 851; [2002] 1 SLR 117 (refd)

PP v Kwong Kok Hing [2008] 2 SLR(R) 684; [2008] 2 SLR 684 (refd)

PP v Lim Choon Hong [2017] 5 SLR 989 (refd)

PP v Rosman bin Anwar [2015] 5 SLR 937 (refd)

PP v Singh Kalpanath [1995] 3 SLR(R) 158; [1995] 3 SLR 564 (folld)

Soh Meiyun v PP [2014] 3 SLR 299 (folld)

Facts

The offenders were convicted of multiple offences relating to their mistreatment of a woman who had worked as a domestic maid in their household (“the victim”). Some of the instances of abuse were witnessed by another maid, Moe Moe Than, who was also working for the offenders at the time. The first appellant (“Tay”) was convicted of 12 charges in total, including nine charges of voluntarily causing hurt to the victim under s 323 read with s 73(2) of the Penal Code (Cap 224, 2008 Rev Ed) for incidents which took place over the course of two years, including slapping the victim, hitting her head with a bundle of three canes tied together, and pushing her head against a cabinet. He was also convicted of one charge under s 323 read with ss 73(2) and 109 of the Penal Code for instigating Moe Moe Than to slap the victim; one charge under s 204B(1)(a) of the Penal Code for offering to pay the victim's full salary and send her back to Indonesia on condition that she abstain from reporting him to the police; and one charge under s 182 read with s 109 of the Penal Code for instigating the victim to give false information to the police, namely that he had not physically abused her. He was sentenced to an aggregate of 28 months' imprisonment. The second appellant (“Chia”) was convicted of two charges of voluntarily causing hurt to the victim under s 323 read with s 73(2) of the Penal Code, one for slapping her face and one for punching her forehead. She was sentenced to two months' imprisonment for each charge and both sentences were ordered to run concurrently.

The offenders appealed against their convictions and sentences. As regards their convictions, they argued that the Prosecution's amendment of some of the charges had prejudiced the conduct of their defence; that the Prosecution had double-counted offences because some of the charges were worded identically; and that the Prosecution had breached its obligations under Muhammad bin Kadar v PP[2011] 3 SLR 1205 (“Kadar (No 1)”) by failing to disclose the statements which the victim had made to the police. The offenders also highlighted various aspects of the victim's evidence which they alleged were inconsistent with other aspects of her testimony and other evidence. They furthermore contended that, if the victim had really been abused, she would have reported the abuse to the police or to the doctors during her biannual medical check-up.

As regards their sentences, the offenders contended that the individual and aggregate sentences imposed on them were manifestly excessive having regard to all the circumstances of the case. The...