Foreign domestic maids have become an integral part of Singapore’s society, playing a crucial role in supporting families by providing domestic care and services. This is especially so given Singapore’s rapidly ageing population and increasing participation of women in the workforce. Unfortunately, multiple instances of abuse against domestic maids have been reported over the past few years, leading to increased attention on the legal framework in Singapore addressing such cases.
An offence for voluntarily causing hurt falls under Section 323 of the Penal Code 1871 (“Penal Code”), which states, “Whoever voluntarily causes hurt, shall be punished with imprisonment for a term which may extend to 3 years, or with fine which may extend to $5,000, or with both.”
Domestic maids are a recognised class of vulnerable individuals as they are often isolated from their families and may face challenges such as language barriers, cultural differences and employment issues. Thus, when an employer voluntarily causes hurt to a domestic worker, an offence under Section 323 is read with Section 73 of the Penal Code, where an enhanced punishment may be meted out.
Section 73(1) of the Penal Code provides that “Where an employer of a domestic worker, a member of the employer’s household or an employment agent of a domestic worker is convicted of an offence under this Code that is committed against that domestic worker, the court may sentence the person convicted to twice the maximum punishment that the court could, but for this section, impose for that offence”.
Given the rise in the number of cases of abuse against domestic workers in Singapore, the High Court in Tay Wee Kiat and another v Public Prosecutor and another appeal [2018] 4 SLR 1315 (“Tay Wee Kiat”), issued a landmark decision which sets out a sentencing framework imposing harsher penalties for individuals convicted of abusing foreign domestic workers.
Background facts
Tay Wee Kiat (“Tay”) and his wife, Chia Yun Ling (“Chia”), faced 10 charges and 3 charges respectively for voluntarily causing hurt against their Indonesian domestic worker, Fitriyah, who was employed in their household from December 2010 to December 2012. Tay faced additional charges for offering to pay Fitriyah’s full salary and sending her back to Indonesia on the condition that she abstained from reporting his offence of voluntarily causing Fitriyah hurt and that she gives false information to the police that she had not been physically abused by him.
During the time that Fitriyah worked for the couple, the couple had employed another domestic worker, Moe Moe Than, a Myanmar national, from 8 January 2012 to 12 November 2012 to help Fitriyah with the household duties and caring of the couple’s three children.
The offences against Fitriyah came to light after Moe Moe Than was sent home to Myanmar. She lodged a report about having been abused by Tay and Chia with an employment agency.[1]
The abuse by Tay and Chia involved, amongst others, ordering Fitriyah to slap Moe Moe Than 10 times, slapping her face, kicking her on her left waist, hitting her head with a bundle of three canes tied together, grabbing her chin and pushing her head against the cabinet causing her head to hit the edge of the cabinet, making her assume a push-up position near the balcony door and when in this position, kicked her on her left waist causing her body to hit the balcony door, slapping her on her cheek, hitting her on the head with a bamboo stick, instructing her and Moe Moe Than to clasp the palms of their hands together, kneel on the floor, bow their heads to the floor and get up – and to do this 100 times, and punching her on her forehead.
Tay and Chia were convicted on all charges after trial. Tay was sentenced to a global term of 28 months’ imprisonment and Chia was sentenced to an aggregate of 2 months’ imprisonment.
Dissatisfied with the decision of the District Court, Tay and Chia appealed against their convictions and sentences. The Prosecution cross-appealed on the basis that the sentences meted against Tay and Chia were manifestly inadequate.
The High Court dismissed Tay and Chia’s appeal against their convictions and sentences and allowed the Prosecution’s cross-appeal against the sentences in part.
Sentencing Framework at [70]-[75] of Tay Wee Kiat
The First step – the Court shall determine whether the harm caused to the victim was predominantly physical or both physical and psychological.
Psychological harm could be indicated by behaviour which was sustained, humiliating or degrading, or occurs in the context of a working relationship which is generally oppressive and exploitative. In evaluating the degree of psychological harm caused, the court will usually have regard to any victim impact statement or psychological report of the victim, where available.
For cases that are predominantly physical, the court should consider the degree of harm as well as the aggravating and mitigating factors (as set out in the third step below) in determining the appropriate sentence.
The Second step – for abuse that is both physical and psychological, the Court is to identify the degree of harm caused in relation to each charge. Where both physical and psychological abuse have occurred, the sentencing range at this stage should start at the level of months rather than days.
The following table sets out indicative ranges corresponding to the degree of harm caused. It should be noted that these ranges are merely indicative, and the specific sentence will vary depending on other factors taken into account at the third step below.
| Less serious physical harm | More serious physical harm | |
| Less serious psychological harm | 3–6 months’ imprisonment | 6–18 months’ imprisonment |
| More serious psychological harm | 6–18 months’ imprisonment | 20–30 months’ imprisonment |
The Third step – the Court adjusts the sentence to be imposed for each charge having regard to the aggravating and mitigating circumstances. Typical aggravating factors and mitigating circumstances include but are not limited to the following:-
|
Aggravating Factors
|
Mitigating circumstances |
| (a) The use of a weapon or other implement of harm or injury;
(b) Efforts to prevent the Victim from seeking or accessing help; (c) The offender’s motive – whether it was committed out of cold-blooded malice or vengefulness or a spontaneous lapse of self-control or in the heat of an unanticipated and sudden and spontaneous struggle; (d) Whether there was deliberation or premeditation; (e) If the offender intended to inflict greater harm than actually resulted; (f) Presence of past convictions for similar offences as well as similar charges being taken into consideration for the purposes of sentencing; and (g) A lack of remorse, which may be shown when an offender puts the Victim through the traumatic experience of testifying at trial and casts aspersions on her character. |
(a) The offender’s remorse;
(b) Cooperation with the authorities; and (c) Where a mental illness, psychological condition or learning disability significantly contributed to the commission of the offence. |
The fourth step, having determined the sentences for each of the charges, the court then decides which sentences to run consecutively and which concurrently.
Applying the framework to the facts
In applying the framework, Tay’s sentenced was increased from 28 months to 43 months and Chia’s jail term remained at two months.
The Court was of the view that it was unnecessary to enhance the sentence of two months’ imprisonment for each charge imposed on Chia as there was nothing to suggested that there was a broader pattern of violent or abusive behaviour towards Fitriyah on her part. Chia’s culpability was noted to be nowhere near the level of Tay’s.
Whereas for Tay, the Court was of the view that some of the sentences imposed on Tay were manifestly inadequate given the degree of psychological harm inflicted and physical harm caused. The Court found that the extent of humiliation, bullying and cruelty reflected in Tay’s behaviour placed him in the category of more serious psychological harm. Tay’s physical abuse of Fitriyah persisted for almost two years and resulted in ten charges. Although Tay had no past convictions, the number and frequency of the attacks by Tay showed that he was habitual and unrestrained in his abuse.
Compensation and costs orders for offenders convicted of voluntarily causing hurt to domestic maids
The Court in Tay Wee Kiat issued a supplementary judgement in Tay Wee Kiat and another v Public Prosecutor and another appeal [2018] 5 SLR 438, to address whether Tay and Chia should be ordered to pay compensation to Fitriyah, and if so, the quantum.
Under Section 359 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed), the Court has ancillary powers to make a compensation order against an offender.
Compensation ought only to be ordered in clear cases where the fact and extent of damage are either agreed or readily and easily ascertainable on the evidence. A compensation order does not form part of the sentence imposed on the offender, nor is it an alternative to a sentence. Its purpose is not to punish an offender but to allow an injured victim or the victim’s representative to recover compensation where a civil suit is inadequate or impractical remedy.
The Court held that a compensation order in maid abuse cases will usually be based on one or more of the following:-
- Pain and suffering caused to the victim;
- Medical expenses incurred by the victim;
- Loss or damage to the victim’s property as a result of the offences;
- Prospective earning, ie, income that the victim would have earned but for her being unemployed pending investigation and trial of the offences.
In adopting a rough-and-ready measure, the Court was of the view that a sum of $500 could be attributed to each incident of abuse, taking into account the physical and psychological harm suffered. As for prospective earnings, four months was a reasonable estimate of the time she would reasonably have been able to take on alternative employment.
Tay and Chia were ordered to compensate Fitriyah in the amounts of $5,900 (in default four weeks’ imprisonment) and $1,900 (in default ten days’ imprisonment) respectively.
Implications of the Court’s decision in Tay Wee Kiat
The Court highlights vulnerable status of foreign domestic workers in Singapore as a result of the unequal position of subordination and recognises the psychological abuse that arises from a relationship between the offender and domestic worker.
The judgments issued by the Court provides clarity on the issues surrounding criminal sentencing and compensation orders in relation to offenders who have committed offences of abuse against foreign domestic workers.
Clarification on the application of Tay Wee Kiat sentencing framework
To seek clarity on the Tay Wee Kiat sentencing framework, the Prosecution applied to refer three questions of law to the Court of Appeal in the case of Public Prosecutor v Bong Sim Swan, Suzanna [2020] SGCA 82 (“Suzanna”), where the accused was convicted after trial in the State Courts on one charge of voluntarily causing hurt to a female domestic worker by using a glass bottle containing medicated oil to hit the domestic worker’s left cheek a few times.
Of the three questions raised by the Prosecution, the Court of Appeal responded to two of the questions on psychological harm and culpability.
The two questions that were raised by the Prosecution to the Court of Appeal and the Court’s response were as follows:
Question: In applying the sentencing framework for a maid abuse offence punishable under s 323 read with s 73 of the Penal Code set out in Tay Wee Kiat, should the court take into account psychological harm that arises from a sustained pattern of abuse, ie, multiple incidents of the offender causing hurt to the domestic maid, even though separate charges were not preferred for the other incidents of abuse?
Response: Yes, in assessing the degree of psychological harm, the Court can and should have regard to the background facts notwithstanding that they may also amount to uncharged offences. There is no requirement that the psychological harm must be proved through a source independent of the offender’s own previous acts even though those acts could also amount to other offences.
The Court was of the view that a fair assessment of the degree of psychological harm suffered requires the Court to have consideration of the entire background relationship, irrespective of whether certain acts could also form the subject matter of criminal charges. The charged offence has to be seen in the context of the relationship.
If there has been a sustained pattern of abuse, it would be wrong for a sentencing judge to disregard that fact and view the charge in isolation because that would give a false assessment of the suffering of the victim and of the offender’s culpability. The Court should look at all the surrounding facts so long as they are relevant and proved. This will help the Court to assess the true gravity of the offence in relation to the harm to the victim and the level of culpability of the offender.
Question (reframed by the Court): Does the fact that an offender knew, or was aware of the likelihood, of a victim’s pre-existing injury or particular vulnerability that arose from previous proved incidents which could have been but were not made the subject of separate charges, when he assaulted the victim on that particular part of the body constitute an aggravating factor in sentencing?
Response: Yes, the offender’s knowledge or awareness arising from uncharged prior offending conduct is relevant when considering the level of harm, both physical and psychological, suffered by the victim and the culpability of the offender. If such conduct is proved, should be considered in sentencing as part of the total circumstances.
In summary, Court’s response to the Prosecution’s questions highlights that a sentencing Court ought to consider the entire background relationship between the offender and domestic worker in assessing the offender’s culpability and the harm suffered by the victim.
Although an offender cannot be punished for an offence for which he was not charged or convicted, a sentencing Court should consider facts with a sufficient nexus to the commission of the offence, regardless of whether it involved acts that would potentially amount to separate offences which the offender was not charged with. What constitutes a sufficient nexus is a fact-sensitive inquiry that depends on the circumstances of each case and the degree of proximity of time and space to the charged offence.