1 Muegue Jonna Memje is a Filipino national who came to Singapore in December 2011 to work as a domestic helper (“the Victim”). This case concerns the serious abuse she endured at the hands of her employers. The abuse was so intolerable that she eventually decided to escape her employers’ residence by jumping out of a window from the sixth floor to the rooftop of an adjacent building.

2 The three members of the household are Chua Siew Peng (“Chua”), her elderly mother, Lum Wai Lui (“Popo”, meaning grandmother in Chinese) and her elder sister, Kathleen Chua Siew Wei (“Kathleen”). They have been separately tried for abusing the Victim at their residence in Maplewoods Condominium (“the residence”). The appeals before me concern only the convictions and sentences in respect of Chua’s prosecution.

3 Chua was convicted in the State Courts on one charge for voluntarily causing hurt under s 323 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) (“the VCH Charge”), and one charge for wrongful confinement under s 342 of the Penal Code (“the Wrongful Confinement Charge”). Both charges are read with s 73(2) of the Penal Code and provide as follows:

5 Having considered the GD, the parties’ submissions, and the evidence, I dismiss Chua’s appeals and allow the Prosecution’s appeal against sentence. I order the sentence in respect of the Wrongful Confinement Charge to be increased from two months’ imprisonment to 21 weeks’ imprisonment. I also order this sentence to run consecutively with the imprisonment term of the VCH Charge, rendering an aggregate imprisonment term of 24 weeks.

6 I begin with a summary of the facts which are material to these appeals. A more detailed account of them can be found in the GD.

7 The Victim was 24-years-old at the time of Chua’s offences. During the period of her employment as a domestic helper from 20 December 2011 to 30 October 2012, she lived with Chua, Popo, Kathleen, Kathleen’s husband and Kathleen’s daughter at the residence.

8 The charges which Chua faces in the present case arise from the events taking place on 29 and 30 October 2012. In relation to the VCH Charge, only Chua, Popo and the Victim were at the residence on 29 October 2012 as Kathleen’s immediate family were on holiday overseas. ¹

9 In relation to the Wrongful Confinement Charge, after Chua and Popo left the residence in the morning of 30 October 2012, the Victim packed her bags and climbed out of a bedroom window onto a narrow ledge and then jumped onto the rooftop of an adjacent building. Shortly after the Victim exited the residence in this manner, she was spotted by two domestic helpers, who came to her aid. One of them telephoned for help from Humanitarian Organisation for Migration Economics (“HOME”), an independent charity organisation which looks after the welfare of migrant workers in Singapore. Volunteers from HOME arrived and brought the Victim back to their offices, where they called the ambulance and police.

10 The Victim suffered multiple fractures in her feet and ankles when she landed on the rooftop and was rendered wheelchair-bound for four to six weeks. The doctor who examined the Victim also noted injuries to her face, left eye, hands, and forearms. In particular, the doctor noted that her left eye was swollen and bruised. ²

11 Chua was diagnosed with paranoid schizophrenia in 2008. ³ However, Chua does not dispute that at the time of the alleged offences, and the period prior thereto, she was not in any major relapse. ⁴

12 At the trial below, the Victim testified to the following:

(a) From March or April 2012 to October 2012 when the Victim ran away, she was physically abused by Chua, Popo and Kathleen, who would punch, slap and kick her, and also hit her head against the wall. ⁵

(b) On 29 October 2012, the Victim mistakenly ate some fish for lunch which was not meant for her. Popo learnt of this in the evening and told her to go to the toilet. There, Popo poured bleach on her body. Popo also punched and slapped her, and slammed her head against the wall. ⁶ A few minutes later, Chua entered the toilet and slapped the Victim’s face repeatedly. Chua also pulled her hair. ⁷ The Victim estimated that this assault by Popo and Chua lasted an hour, between 9.00pm to 10.00pm. After that, Chua instructed her to stand in the toilet until about 12.00 midnight when she was told by Chua to take a shower. ⁸

(c) The next morning on 30 October 2012, Popo left the residence first and then Chua left the residence at about 10.00am. Chua locked both the door and the gate of the residence when leaving. ⁹ At around 11.00am, the Victim decided that she could no longer tolerate the abuse and hence decided to run away. She went to Kathleen’s room and climbed out of the window onto a narrow ledge on the sixth floor. She then walked along the ledge and jumped onto the rooftop of an adjacent building, which was on the fifth floor of that building. ¹⁰

(d) The Victim decided to climb out of the window as she had no other way out of the residence. Both the door and gate to the residence were locked and she had never been given access to any keys to the residence (“the keys”) from the time she started working for Chua’s family. ¹¹ While the Victim had a mobile phone, she did not have a SIM card. ¹² She also did not have any off days, was not allowed to keep a diary, and did not know anyone other than Chua’s family members in Singapore as she was prohibited from speaking to outsiders. ¹³

(e) Before the Victim left the residence, she wrote on two yellow Post-It sticky note papers, inserted them in a small notebook, and placed the notebook near the telephone in the living room. ¹⁴ In the first note, the Victim wrote: “Thank you for all the kindness. Sorry Madam Kat, Sorry Madam Carrie, Sorry Sir, Sorry Lydia.” (“the first farewell note”). The Victim explained that she was thanking Chua and her family members (except Popo) for the kindness that they had shown to her in the first three months of her employment before the abuse started. ¹⁵ In the second note (which was never recovered), the Victim recalled that she wrote: “I am leaving. I am going to a place where no one can hurt me, where there is no bleach.” ¹⁶

13 Chua’s case at the trial below was one of bare denial to both the VCH and the Wrongful Confinement Charges. In particular, Chua testified as follows:

(a) She was seldom home and had little or no opportunity to assault the Victim. She denied slapping the Victim on her face or pulling her hair on 29 October 2012. ¹⁷

(b) The keys to both the door and the gate of the residence were on a key ring, which was placed either on top of the intercom device in the living room or hung from a nail on the wall by the main door. The keys were always there at either of these two places for common use and the Victim was aware of this. The Victim thus had the right to leave the residence anytime she wanted and in fact did so on several occasions to fetch groceries and wash the family’s car. ¹⁸

(c) On 30 October 2012, Chua left the residence at about 11.00am and had locked the door and the gate to the residence. ¹⁹ She was unsure whether she was the last to leave as she did not see Popo that morning. ²⁰

14 Apart from a suggestion that the Victim had been paid or threatened to lie in court, ²¹ the Victim’s testimony was unchallenged during cross examination by Chua (who was unrepresented at the trial below). Neither did Chua allege any internal or external inconsistencies in the Victim’s evidence. All Chua did was to assert that the Victim was fabricating allegations of abuse as a ploy to break her bond without incurring the facilitation fee (comprising flight costs and agent fees) and to get monetary compensation from her family. ²² She also made unsubstantiated allegations that the Victim had “exhibited strange behaviour” for about two to three weeks before the incident and thus might not have been in the right frame of mind before jumping out of the window. ²³

15 The District Judge had to decide two main factual questions (GD at [29]):

(a) on the VCH Charge, whether Chua slapped the Victim’s face on the night of 29 October 2012; and

(b) on the Wrongful Confinement Charge, whether Chua wrongfully confined the Victim in the residence on the morning of 30 October 2012 by locking the Victim in the residence before she left.

16 In deciding both issues in the affirmative and convicting Chua of both charges, the District Judge made the following findings of fact:

(a) The Victim was a credible witness who was a “witness of truth” (GD at [30]).

(b) The Victim’s version of events was amply corroborated by the evidence of independent witnesses, as well as medical evidence (GD at [31]–[33]).

(c) Chua was an untruthful witness. There were inconsistencies between her evidence in court and her statement to the police, which she was not able to explain satisfactorily (GD at [35]–[36]).

(d) Chua’s assertions that the Victim had fabricated the allegations of abuse and that the Victim was not in the right frame of mind were unsupported by any evidence (GD at [37]–[43]) and were “nothing more than wild and baseless speculation” (GD at [43]).

(e) Chua’s suggestions that the bruises on the Victim’s face were pigmentation marks or could have been sustained as a result of the impact between the Victim’s bag and her cheek when she jumped down whilst holding on to her belongings were contradicted by the medical evidence – Dr Tan Shera eliminated both these possibilities (GD at [44]).

(f) Chua’s evidence that there were keys in the residence for the Victim’s use was incredible. The photos taken of the residence on the very day of the incident did not show any such keys. Neither did Popo point the Investigation Officer, who had visited the residence, to where the keys could be found (GD at [46]).

17 Before I determine the merits of the respective appeals before me, there is a preliminary point on the admissibility of fresh evidence which I have to deal with.

18 During the hearing before me, counsel for Chua, Mr Quek Mong Hua (“Mr Quek”), made several references to the court transcripts of the concluded trials of Popo and Kathleen. The Prosecution objected to these references on the basis that no criminal motion (“CM”) had been filed by Chua to seek leave from the court to adduce further evidence. Mr Quek then submitted that no CM was required as these transcripts had been referenced by Chua at the trial below.

19 Having perused the transcripts of the trial below, I am of the view that Mr Quek is indeed adducing fresh evidence on appeal and should have filed a CM in order to do so.

20 Dealing first with the transcripts of Popo’s trial, I note that Chua expressly decided not to have those transcripts admitted into evidence in the present case. This is evident from the following exchange between Chua and the District Judge at the trial below: ²⁴

21 In relation to the transcripts of Kathleen’s trial, Chua similarly did not apply for these transcripts to be admitted into evidence. Crucially, Chua at the trial below made only immaterial references to Kathleen’s testimony (adduced at Kathleen’s trial). ²⁵ So all the references that Mr Quek now makes to the testimonies of the Victim ²⁶ and Dr Heng Gek Hong ²⁷ in the transcripts of Kathleen’s trial are references to fresh evidence. Mr Quek is thus wrong to say that these transcripts are not new evidence. A mere passing reference in the trial below to a testimony given in a separate trial cannot possibly mean that the transcripts containing that testimony have been admitted, much less in their entirety (containing the testimonies of all the witnesses).

22 Accordingly, both Popo’s and Kathleen’s transcripts are fresh evidence on appeal, and the proper procedure to have this evidence admitted is through leave of the court obtained by way of a CM (see ss 392 and 407 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) and Form 78 in the Criminal Procedure Code (Prescribed Forms) Regulations 2010 (S 811/2010)).

23 Nevertheless, even though Mr Quek did not file a CM, I was concerned that Chua’s conviction may be unsafe given Mr Quek’s submission that the new evidence in these transcripts will indubitably undermine the credibility of the Victim. I thus allowed Mr Quek to direct my attention to this evidence through further submissions, and the Prosecution agreed to this direction, albeit after recording its procedural objection concerning the failure to file a CM. To ensure fairness to both sides, I offered the Prosecution an opportunity to reply to the further submissions made by Mr Quek, and the Prosecutors took that opportunity. In this regard, I must commend Mr Zhuo and Ms Adrianni, who appeared on behalf of the Prosecution, for not being obstructive in insisting on the filing of a CM. This special direction is however not to be seen as condoning Mr Quek’s failure to file a CM: only as a matter of exception and for the purpose of case management did I waive the procedural requirement of filing a CM as I did not wish for the proceedings to be delayed any further.

24 I turn now to analyse the admissibility of the fresh evidence.

25 It is well-established that for fresh evidence to be admitted on appeal under s 392(1) of the CPC, the three conditions of non-availability, relevance and reliability as laid out by Denning LJ (as he then was) in Ladd v Marshall [1954] 1 WLR 1489 must be satisfied. The stringency of these conditions in the criminal context has been refined by subsequent case law, which I will refer to below. The Prosecution submits that all three conditions are not satisfied in the present case.

26 It is undisputed that the transcripts were available for Chua’s use at the trial below. The Prosecution goes further to submit that Chua had in fact made the “tactical decision” not to admit these transcripts into evidence. ²⁸ I disagree. Given that Chua is not legally trained and was acting in person, she might not know the consequences on appeal of not having the evidence admitted at trial. Seen in this light, it is unlikely for it to have been a “tactical decision” on her part to do so.

27 The Prosecution relies on the case of Sundram Peter Soosay v Public Prosecutor (HC/MA 9104/2015/1) (“Soosay”) to submit that an appellate court will not allow a litigant to recant his decision not to adduce evidence at the trial, even if the litigant is in person. ²⁹ In Soosay, the appellant, who had been convicted of one charge of voluntarily causing hurt to a taxi driver, Sun Chuan Hua (“Mr Hua”) appealed against his conviction. In his appeal, one of the arguments made was that the trial judge had erred in refusing to recall Mr Hua for the purpose of allowing the appellant to admit Mr Hua’s police statement which was allegedly inconsistent with Mr Hua’s oral evidence. The High Court dismissed the appellant’s appeal and held that once Mr Hua’s police statement had been furnished to the appellant (who was acting in person), it was for the appellant to decide what to do with it. The appellant sought leave from the Court of Appeal to refer this issue as a question of law, but leave was denied.

28 In my view, Soosay does not stand for the proposition that the Prosecution advances as the High Court in that case was not faced with the question of non-availability in admitting further evidence. Instead, the question was whether the trial judge correctly exercised his discretion not to permit the appellant to recall Mr Hua. Further, even at the broader level of principle, the decision is eminently justifiable given that the appellant in that case was not only legally trained but also happened to be a law professor, teaching criminal law in one of the leading law schools in Asia. It will not be appropriate to hold Chua to the same standard as the appellant in Soosay.

29 Even if I agree with the Prosecution that the condition of non-availability is not in favour of admission, this does not ipso facto render the transcripts inadmissible. This is because, as the Prosecution itself acknowledges, the condition of non-availability is less “paramount” than the other two conditions in the context of criminal appeals (Soh Meiyun v Public Prosecutor [2014] 3 SLR 299 (“Soh Meiyun”) at [16]; approved by the Court of Appeal in Iskandar bin Rahmat v Public Prosecutor and other matters [2017] SGCA 9 at [72]). I am of the view that the following observations made by Chao Hick Tin JA in Soh Meiyun at [16] apply a fortiori to an appellant who, like Chua, was unrepresented at trial:

30 I turn next to consider the condition of relevance. Mr Quek submits that the fresh evidence is relevant in showing that the Victim was not a credible witness because she had given inconsistent testimonies in the different trials and had embellished her allegations of abuse and wrongful confinement. ³⁰

31 The Prosecution divides the fresh evidence into three categories, differentiated according to subject-matter. I accept these categories as accurate and set them out, together with the arguments made by Mr Quek, as follows:

(a) The first is the Victim’s testimony in Kathleen’s and Popo’s trials, with regard to how the Victim was never given access to the keys, as well as how she was abused by Popo and Chua on 29 October 2012. Mr Quek claims that the Victim’s testimonies in Kathleen’s and Popo’s trials are inconsistent with her evidence in Chua’s trial, and this affects her credibility as a witness.

(b) The second is the evidence given by Dr Lee Haur Yueh (“Dr Lee”) in Popo’s trial. Dr Lee was the dermatologist who examined the burns on the Victim’s body and hands. Mr Quek submits that Dr Lee’s evidence contradicts the Victim’s evidence that Popo poured bleach on her hands and body on 29 October 2012. This too goes to the credibility of the Victim as a witness.

(c) The third is the Victim’s testimony in relation to the first farewell note in all three trials. Mr Quek submits that this is inconsistent with the Victim’s general and specific allegations of having been assaulted and ill-treated by Chua.

32 The Prosecution submits that none of the evidence in these categories are relevant. First, the evidence given by the Victim in Chua’s trial is consistent with her previous testimony in Popo’s and Kathleen’s trials. Second, the objective medical evidence supports the Victim’s claim that she was abused by Popo with bleach on 29 October 2012. Third, the Victim’s explanation as to why she wrote the first farewell note is consistent and credible. ³¹ For the reasons cited by the Prosecution in their reply submissions, I find that none of the fresh evidence is relevant. I shall explain my reasons in relation to each of these categories of evidence.

33 On this category, the inconsistences in the Victim’s testimony highlighted by Mr Quek are only apparent and not real. They arise out of selective quotations from the different trial transcripts, and fail to appreciate the fact that different questions were asked of the Victim in the different trials. ³² Thus, this evidence is not relevant in affecting the Victim’s credibility as a truthful witness, which the District Judge found her to be.

34 On the matter of the keys to the residence, Mr Quek submits that the Victim’s testimony in Chua’s trial is inconsistent with her testimony in Kathleen’s and Popo’s trials in two main ways, and that these inconsistencies undermine her credibility. I do not accept his submission.

35 First, Mr Quek highlights that in Popo’s trial, the Victim said that when she first started work, the keys would be placed at a long table next to a flower vase, presumably for common use, whereas in Chua’s trial she did not mention anything about the keys being available for common use at any time. ³³ In my view, there is little merit to this observation. In Chua’s trial, the Deputy Public Prosecutor (“DPP”) asked if the Victim was given a set of keys to the gate and the door, and the Victim’s answer was in the negative. ³⁴ There is absolutely no falsity in the reply given that it is common ground that the Victim was not given a personal set of keys for her own use. ³⁵ Crucially, after hearing the Victim’s reply, it was then up to Chua to ask the Victim whatever questions in cross-examination relating to the keys as she wished to. However, Chua failed to do so. The Victim should not be faulted for failing to volunteer additional information about the existence of the keys in the first few months of her employment since these questions were not asked of her at Chua’s trial, whilst they were asked of her at Kathleen’s and Popo’s trials. ³⁶

36 Second, Mr Quek observes that in Kathleen’s and Popo’s trials, the Victim said that she had seen the keys in various locations in the residence, whereas in Chua’s trial she claimed that she had never seen those keys before. ³⁷ This observation is simply incorrect. This is evident from the following testimony given by the Victim at Chua’s trial: ³⁸

37 Although the Victim initially said “I have not seen” the keys before, read in the context of her overall testimony, what she was in fact saying is that she was not sure how the individual keys to the gate and door looked like respectively, not that she had never seen the bunch of keys before.

38 On the Victim’s testimony in relation to the physical abuse on 29 October 2012, Mr Quek highlights the following inconsistencies: ³⁹

(a) The time and duration of the alleged abuse: In Popo’s trial, the Victim testified that the abuse lasted from 9.00pm to 3.00am, but in Chua’s trial, the Victim expressly or impliedly testified that the alleged abuse ended around midnight with Chua asking her to shower.

(b) Chua’s involvement: In Popo’s trial, the Victim testified that Chua was sitting outside the kitchen toilet, watching her being abused, and at one point, even standing guard to make sure that she could not shower. However, in Chua’s trial, the Victim testified that she was not sure where Chua was when she was being assaulted by Popo.

(c) Who caused the Victim’s injuries: Despite testifying in Popo’s trial that Popo was responsible for all the injuries she sustained on 29 October 2012, ⁴⁰ the Victim testified in Chua’s trial that Chua also slapped her and pulled her hair.

39 I agree with the Prosecution that these alleged inconsistencies arise primarily from Mr Quek’s failure to appreciate that the abuse in question took place in two parts: ⁴¹

(a) The first part of the abuse took place from 9.00pm to 12.00 midnight, and involved both Chua and Popo hitting the Victim, and Popo pouring bleach and then telling the Victim to stand in the toilet. At about midnight, Chua told the Victim to take a shower, and this was when Chua’s involvement in the abuse ended (“pre-showering abuse”).

(b) The second part of the abuse started after the Victim went to bed after showering. At some point in time, Popo woke the Victim up, asked her to go to the kitchen to do laundry, and started to abuse the Victim again. Chua was not involved in this latter abuse (“post-showering abuse”).

40 During Chua’s trial, the Victim did not mention the post-showering abuse because she was not asked about it. In any event, the post-showering abuse was irrelevant in Chua’s trial since it was never the Prosecution’s case that Chua was involved in the latter abuse. Accordingly, there is no inconsistency in the Victim’s evidence about how the pre-showering abuse by Chua and Popo ended at about midnight, while Popo continued to abuse her after the shower. ⁴²

41 Next, concerning the person responsible for her injuries, I bear in mind that the Victim testified at the outset that she would have difficulties identifying the person (as between Chua and Popo) who caused each of the injuries she suffered, because she was assaulted simultaneously by Chua and Popo. ⁴³ Indeed, I consider that it would be very unfair to expect her to be able to do so given the nature of the assault she endured. What matters is that the Victim has been consistent in her testimonies in Popo’s and Chua’s trials that she was assaulted by both of them. Thus, if the transcripts of Popo’s trial is admitted, it will only go to fortifying the Victim’s credibility as opposed to weakening it.

42 I turn now to Dr Lee’s medical evidence. Mr Quek submits that Dr Lee gave evidence in Popo’s trial that the injuries on the Victim’s hands could not have been sustained within the past 24 hours before his examination of her, and that this disproves the Victim’s claim of being abused by bleach on 29 October 2012. ⁴⁴

43 This is a misrepresentation of Dr Lee’s evidence. What Dr Lee was asked about was the age of the injuries sustained by the Victim on her hands. In this regard, Dr Lee’s evidence was that those injuries could not have been the result of bleach poured on the Victim’s hand a mere 24 hours before the Victim was examined by Dr Lee, but were indicative of a skin condition that had “gone on for days and weeks”. ⁴⁵ This is entirely different from saying that it is unlikely that the Victim had bleach poured on her hand within 24 hours before Dr Lee examined her. The true import of Dr Lee’s evidence is clear from his re-examination by the DPP at Popo’s trial, which Mr Quek did not highlight to me: ⁴⁶

44 Thus, far from weakening the Victim’s credibility, Dr Lee’s evidence is in fact consistent with the Victim’s account of not only having bleach poured on her on 29 October 2012 but also of her being forced to soak her hands in bleach several times during her period of employment. ⁴⁷

45 In relation to the first farewell note, Mr Quek submits that it is incredulous for the Victim to have apologised and thanked everyone in Chua’s family (with the exception of Popo), despite her claims that Kathleen and Chua had also abused her.

46 This submission however does not engage the point on relevance of the fresh evidence because Mr Quek himself concedes that the Victim’s testimony on this point was in fact consistent in all three trials. ⁴⁸ If anything, the evidence only shows that the Victim is a consistent witness. Thus, I prefer to address the substance of the first farewell note below when I consider the merits of the appeal against conviction.

47 Since I have found that the fresh evidence sought to be adduced is not relevant, I need not address the question of reliability other than by making a brief observation: all the pieces of fresh evidence in the present case are prima facie reliable given that they are oral testimonies of witnesses made under oath in court.

48 However, the Prosecution submits that the reliability condition is not satisfied as the reliability of the new evidence cannot be ascertained without cross examination of the relevant witnesses. ⁴⁹ I agree that the witnesses should be given an opportunity to explain any inconsistencies with their differing testimonies (if any) at the separate trials. ⁵⁰ However, the fact that this was not done does not mean that the evidence automatically fails the condition of reliability. The proper recourse in such a case would be to remit the matter to the trial judge for the witnesses to explain the inconsistency or be cross-examined on this evidence. Thus, if I had found the fresh evidence sought to be adduced to be relevant in the present case, I would have been inclined to remit the matter to the District Judge to allow the witnesses an opportunity to explain the inconsistency or be cross-examined on the matter.

49 Since all the categories of fresh evidence are not relevant, I find that the fresh evidence, which Mr Quek attempts to adduce at this stage, is not admissible.

50 During the hearing before me, the submissions made by Mr Quek in relation to Chua’s appeal against conviction on both charges primarily related to the credibility of the Victim, which was largely based on the fresh evidence that he sought to have admitted. Given my decision not to admit this evidence, I will only consider the other arguments that do not relate to the fresh evidence.

51 In assessing these arguments, I bear in mind the role of an appellate court in relation to issues of fact. In short, it should not go beyond considering (a) whether the trial judge’s assessment of witness credibility is “plainly wrong or against the weight of evidence”; (b) whether the trial judge’s “verdict is wrong in law and therefore unreasonable”; and (c) whether the trial judge’s “decision is inconsistent with the material objective evidence on record”: see Haliffie bin Mamat v Public Prosecutor [2016] 5 SLR 636 (“Haliffie”) at [32] and ADF v Public Prosecutor and another appeal [2010] 1 SLR 874 (“ADF”) at [16].

52 Mr Quek’s main argument on the VCH Charge relates to the first farewell note. He says that it is incredulous for the Victim to have apologised and thanked Chua in the first farewell note, despite her claim that Chua had also abused her the very night before the first farewell note was written. ⁵¹ On a consideration of the evidence adduced at the trial below, I agree with the Prosecution that this note is not necessarily inconsistent with the abuse inflicted on her by Chua. ⁵²

53 During the trial below, the Victim explained that she had been taught that she needed to obtain permission before leaving, and hence she felt that she had to apologise for leaving the residence without seeking their permission to do so. ⁵³ The Victim also explained that she had included Kathleen and Chua in the first farewell note as they had been kind to her in the initial two to three months of her employment. ⁵⁴ Popo was left out of the note because Popo was the only member of the household who had abused her “consistently every day”. ⁵⁵

54 Furthermore, Mr Quek omits to mention that the first farewell note was followed by a second note where the Victim had stated that she was going to a place where no one could hurt her, where there was no bleach (see above at [12(e)]). Read in context, the two notes simply show that while the Victim was grateful for the initial good treatment given to her by Chua’s family (with the exception of Popo), she could no longer tolerate the subsequent abuse meted out on her by Chua and Kathleen (in addition to that from Popo). ⁵⁶

55 On the Wrongful Confinement Charge, I see no merit in Mr Quek’s argument that Chua may not have left before Popo on the morning of 30 October 2012. ⁵⁷ The Victim testified that Chua was the last person to leave the unit at about 10.00am on 30 October 2012, and Chua locked the main door and gate when she left the residence, leaving the Victim with no means of leaving the unit. ⁵⁸ It was for Chua to then rebut this evidence but all she did was to state that she was unsure whether she was the last to leave but had admitted that she had locked the gate and the door of the residence before she left. ⁵⁹ Given the equivocal nature of Chua’s testimony, the District Judge was entitled to believe the Victim and find that Chua had left after Popo.

56 I am also not persuaded by Mr Quek’s argument that there was always a set of keys in the residence for common use. ⁶⁰ The District Judge carefully considered this possibility and ruled it out on the strength of the Victim’s testimony. In my view, given the extent to which the Victim was isolated and restricted in her freedom (no off days, no SIM card, not allowed to keep personal diaries, etc), it would have been incongruous for the Victim to have been afforded the means to leave the residence whenever she wished.

57 Even if there were such keys for common use, I am inclined to believe that Chua in all likelihood would have intentionally removed those keys from the residence or kept them somewhere in the residence such that they were not available for common use and in particular for use by the Victim on 30 October 2012. This is because Chua was alive to the victim’s visible injuries before she left the residence on the morning of 30 October 2012. Under cross-examination by the DPP, Chua admitted to being aware of the “redness” in the Victim’s hands: ⁶¹

58 Thus, even if the Victim had access to the keys on most days, Chua had a very good reason to keep them out of the Victim’s reach on 30 October 2012 – to prevent her from leaving the house so that no one would notice the patently visible injuries she had sustained from the assault the night before and be alerted to the possibility that she was being physically abused. In the circumstances, I see no reason to disturb the District Judge’s finding of fact that Chua had voluntarily locked the Victim in the residence.

59 In the overall analysis, I am not persuaded that the District Judge’s decision to convict Chua was erroneous or against the weight of the evidence. She correctly evaluated the evidence given by Chua and the Victim in their totality before concluding that Chua slapped the Victim on 29 October 2012 and also wrongfully confined the Victim on 30 October 2012. Accordingly, I dismiss Chua’s appeal against conviction on both the charges.

60 Before me, both Chua and the Prosecution appeal against the sentences imposed by the District Judge. Chua appeals against the sentences for both charges. The Prosecution appeals against the sentence for the Wrongful Confinement Charge and the order that the two custodial sentences run concurrently.

61 These appeals raise an important question of sentencing principle: to what extent can a sentencing court take into account offending conduct of the accused for which no charges have been brought (“uncharged offending conduct”). I will consider and set out my views on this question as it has a bearing on the appropriate sentences in these appeals.

62 The issue arises because the District Judge, in determining the appropriate sentence for both charges, took into account facts which could constitute standalone independent offences, based on the findings of fact she made. For the Wrongful Confinement Charge, the District Judge agreed with the Prosecution that “the wrongful confinement was present well before the date specified in the charge”, and she took this into account in sentencing Chua (even though each occasion technically constitutes an independent offence and grounds a separate charge of wrongful confinement) (GD at [97]). For the VCH Charge, the District Judge considered the fact that Chua had also pulled the Victim’s hair (even though there was no charge brought against Chua for this act and it was also not specified in the VCH Charge) (GD at [91]).

63 During the hearing before me, Mr Quek submitted that the District Judge erred in considering other instances of confinement for the Wrongful Confinement Charge. Although no specific arguments were made in relation to the VCH Charge, I believe the logic of his argument applies equally to the consideration by the District Judge of the fact that Chua had also pulled the Victim’s hair.

64 Having considered the law on the facts that may be taken into account by a sentencing court, I agree with the District Judge that the uncharged offence of pulling the Victim’s hair is a valid aggravating factor which I should take into account in sentencing Chua but not the uncharged offences of any previous wrongful confinements committed by Chua. I will first summarise why I take this view and then turn to analyse the law.

65 For the Wrongful Confinement Charge, even though each past instance of confinement discloses a separate offence for which no charges have been brought against Chua, the fact that the Victim had previously been subjected to wrongful confinement is relevant as evidence to prove a certain fact relevant to Chua’s sentencing. The fact which is proved by the offences is Chua’s knowledge that the Victim had previously been wrongfully confined and subjected to abuse. And this knowledge is relevant to the sentencing exercise in the present case as it is relevant to the degree of Chua’s culpability. To be clear, the previous wrongful confinement offences are relevant to Chua’s sentencing in only this specific evidential sense. The offences themselves, being very detached in time from 30 October 2012, the date of the Wrongful Confinement Charge, are not relevant for the purpose of sentencing. The point here is simply that in knowingly prolonging the Victim’s wrongful confinement, Chua increased the risk that the Victim would suffer injuries owing to the conditions of the confinement and Chua’s actions in so confining the Victim on 30 October 2012 ultimately drove the Victim to take the drastic step of escaping from the premises of the residence through a dangerous exit which resulted in the Victim sustaining serious injuries in the process of doing so. This is an aggravating factor that I cannot ignore.

66 In taking into account this aggravating factor, I only attach weight to Chua’s knowledge of the past instances of confinement and give no weight to the fact that Chua was responsible for the Victim’s prior confinement. To do otherwise would violate the well-established rule that the court should not take into account uncharged past offending on the part of the accused, a rule which I discuss below. In other words, if the Victim’s previous wrongful confinement had not been the doing of Chua but the doing of others, I would have still held that Chua’s offence is aggravated because Chua knew about that previous period of confinement, and was by her offence on 30 October 2012 adding salt to a festering wound. It can be seen that for the purpose of this analysis, taking into account as an aggravating factor Chua’s awareness (at the time of her commission of the offence of wrongful confinement on 30 October 2012) of the mental and physical state of the Victim resulting from the previous periods of wrongful confinement and the various acts of physical abuse inflicted on the Victim (whether attributable to Chua, Popo or others) does not at all mean that Chua’s sentence for the Wrongful Confinement Charge has been enhanced in any way on account of Chua having committed other offences during those earlier periods for which she was not charged.

67 Next is the issue of whether Chua’s pulling of the Victim’s hair is relevant to sentencing for the VCH Charge. In my judgment, while this fact is not stated in the VCH Charge, it is nevertheless relevant to the sentencing exercise because it forms part of the immediate circumstances in which the offence of slapping the Victim was committed by Chua. Chua’s pulling of the Victim’s hair can thus be taken into account as an aggravating factor for the purpose of sentencing for the VCH Charge.

68 I turn now to analyse the law.

69 It is apposite to first appreciate the difference in the role played by the courts when sentencing an offender (“sentencing stage”) as opposed to when convicting an offender (“conviction stage”). At the conviction stage, the judge is called upon to decide whether the elements of the offence for which an accused is charged have been proved beyond reasonable doubt. In this connection, the judge is required to only consider relevant evidence and should not consider any inadmissible evidence. At the sentencing stage, the judge is to determine the appropriate sentence in light of, amongst other things, the culpability of the accused. In assessing the culpability of an offender, the judge should take into account all the relevant facts and circumstances. At this stage, the range of facts that can be considered is usually wider than that necessary to determine whether the elements of the offence are satisfied.

70 In the related context of the mitigating facts that are capable of being considered in the sentencing stage, Chan Sek Keong CJ (as he then was) stated in the Court of Appeal case of Public Prosecutor v Aniza bte Essa [2009] 3 SLR(R) 327:

71 The reason for this markedly distinct approach at the sentencing stage is to give full effect to the culpability of the offender. Between two offenders convicted of the same offence, ceteris paribus, the one who is more culpable than the other ought to receive a higher sentence. This is what I consider as the “relativity principle”. It operates in a similar way to the parity principle, under which co-offenders in a common criminal enterprise, who are of the same culpability, should not receive “unduly disparate” sentences: see Chong Han Rui v Public Prosecutor [2016] SGHC 25 at [1].

72 Having said that, I note that there are some categories of facts that cannot be considered at the sentencing stage (“impermissible facts”). One well-established rule is that the sentencing court cannot consider the fact that the accused could have been charged with a more serious offence and therefore treat the accused as if he had been found guilty of the graver charge. This principle was stated very recently by the Court of Appeal in Suventher Shanmugam v Public Prosecutor [2017] SGCA 25 (“Suventher”) in relation to capital offences at [36]:

73 The other impermissible fact in sentencing is that relating to uncharged offending conduct, which I shall now consider in greater detail.

74 Generally, at the sentencing stage, the court cannot consider facts relating to offences for which no charges have been brought against the accused (“uncharged offences”). In Chua Tiong Tiong v Public Prosecutor [2001] 3 SLR 425 (“Chua Tiong Tiong”), the appellant was convicted of bribing a senior police officer. At the time of sentencing, several other police officers had already been convicted of accepting bribes from the appellant (although he was never charged with those offences as a giver). The High Court (per Yong Pung How CJ) remarked at [28] that:

75 This issue has subsequently received considerable judicial attention in our courts. Several recent cases have concluded that if the Prosecution elects not to charge an accused for past offending conduct (either as proceeded charges or as charges to be taken into consideration for the purpose of sentencing (“TIC”)), these uncharged offences cannot be considered by the court as an aggravating factor at the sentencing stage. In Vasentha d/o Joseph v Public Prosecutor [2015] 5 SLR 122 (“Vasentha”), Sundaresh Menon CJ opined at [62]:

76 This principle was further expounded by See Kee Oon JC (as he then was) in Public Prosecutor v Tan Thian Earn [2016] 3 SLR 269 (“Tan Thian Earn”). In this case, the respondent pleaded guilty in the State Courts to four charges – one of these charges was brought under s 10A(1)(c) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). This charge pertained to his possession of several tablets of pseudoephedrine, which was a substance used in the manufacture of methamphetamine (a controlled drug). The respondent admitted that he had intended to use these tablets to manufacture methamphetamine and that he had successfully done so on at least eight previous occasions. The High Court opined that such facts relating to prior offending, for which no charges had been brought (proceeded or TIC), cannot be considered as a “sword” to enhance the sentence as an aggravating factor even though it can be used as a “shield” by the Prosecution to deny the accused any mitigating weight associated with being a first-time offender (Tan Thian Earn at [61]). The High Court preferred this approach as a matter of principle:

77 See J applied this same principle in the subsequent case of Chong Yee Ka v Public Prosecutor [2017] SGHC 47 (“Chong Yee Ka”), which involved the physical abuse of a domestic helper. The appellant in Chong Yee Ka pleaded guilty to two charges under s 323 read with s 73(2) of the Penal Code and consented to having one similar charge to be taken into consideration. In the Statement of Facts, the appellant admitted to physically abusing her domestic helper on more occasions than the dates specified in the charges that were brought against her. At first instance, the district judge took these uncharged offences into account as an aggravating factor in concluding that there had been a “prolonged period of physical and mental abuse”. See J disagreed with this approach and remarked as follows at [47]:

78 I agree with the rule expressed in these cases. The point here is that if the Prosecution wants the sentencing court to consider the accused’s past offending conduct, it must draw up the necessary charge or charges in respect of that conduct after ascertaining that there is sufficient evidence available to prove the charges. If the Prosecution ultimately decides not to proceed on any of these charges, it must apply for these outstanding charges to be taken into consideration in order for the court to consider them at the sentencing stage upon the accused’s conviction on the charges proceeded with, unless the Prosecution intends to withdraw the outstanding charges entirely or to proceed with them at another trial. If the Prosecution does not apply for the outstanding charges to be taken into consideration, it cannot expect the court to nevertheless consider such past offending conduct. If the court does so, it will be recognising a new category of offences, to be taken into consideration for the purpose of sentencing at the sentencing stage, in addition to the legislatively provided category of TIC offences under s 148 of the CPC. This will be an undesirable outcome. There are legal safeguards on how such outstanding offences are to be dealt with as part of the sentencing process. It is trite that both the admission by the accused to the commission of the outstanding offences and the consent of the accused to have them taken into consideration for determining the sentence is indispensable before the TIC offences can be considered at the sentencing stage: see s 148(1) of the CPC. Section 148(5) of the CPC further protects the accused from being charged or tried for any offences that the court has already taken into consideration for sentencing unless the conviction for the original offence is set aside. Where the accused does not admit to committing the outstanding offences as spelt out in the TIC charges or does not give his consent, the sentencing court is required to ignore these outstanding charges because “[w]hether or not he will be found guilty or not of those charges was still a matter not known” (Chua Tiong Tiong at [29]).

79 For completeness, I also observe that a similar approach has been adopted in England and Australia. In England, the Court of Appeal has held in R v Kidd [1998] 1 WLR 604 at 607B that an accused “may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence” [emphasis added]. In that case, the Court of Appeal found that the practice of accepting “specimen” charges for the purpose of sentencing for the entire offending alleged was improper. In Australia, the Australian Court of Appeal expressed in R v Newman and Turnbull [1997] 1 VR 146 (“Newman and Turnbull”) (at 150 per Winneke P):

80 Despite this general rule, it is noteworthy that Winneke P in R v Cincotta (Unreported, Supreme Court of Victoria, Court of Appeal, 15 October 1997) observed that all the consequences flowing directly from the criminal conduct may nevertheless be taken into account by the sentencing judge (see [115(d)] and [128] where the consequences of the wrongful confinement are considered in sentencing in the present case). Winneke P said:

81 While a sentencing court generally cannot take into account uncharged offences, it is entitled to, and in fact should, consider the aggravating circumstances in which the offence was committed, even where these circumstances could technically constitute a separate offence. This point was explained in the following way in Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2009) at para 9.028:

82 This principle has been applied, for example, in the cases relating to the offence of driving while under the influence of alcohol (“drink-driving”) under s 67(1)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”). Even though this offence is made out once it is established that the level of alcohol in the accused’s blood or breath exceeds the prescribed level, it is accepted law that a number of other circumstances can aggravate the drink-driving offence (even though these facts could technically make out independent offences). As stated by Menon CJ in Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 (“Edwin s/o Suse Nathen”):

83 Thus for instance, where injury is caused whilst drink-driving, this is treated as an aggravating factor for the drink-driving offence even though technically it could constitute a separate offence of causing hurt or grievous hurt through rash or negligent driving under ss 337 and 338 of the Penal Code. In such a situation, it should not matter that the Prosecution fails to draw up a specific charge in respect of this injury because this fact is so closely intertwined with the commission of the drink-driving offence such that it should be considered at the sentencing stage – it is a consequence of the drink-driving offence. Other than consequences of the offence, the circumstances under which the offence is committed should also be considered. For instance, as stated in Edwin s/o Suse Nathen, the fact that the offender had been speeding while drink-driving is an aggravating factor even though the act of speeding discloses a separate offence for which no charge has been drawn up by the Prosecution: see s 63(1) of the RTA. In a related vein, See J also suggested in Chong Yee Ka that facts relating to “the immediate background to the offence at hand” can be considered in sentencing (at [45]).

84 Accordingly, the principle that can be drawn here is that a fact with sufficient nexus to the commission of the offence can be considered at the sentencing stage, irrespective of whether this fact could also constitute a separate offence for which the accused was not charged. This nexus makes it a relevant fact in assessing the culpability of the offender for the offence(s) for which he is charged. Ultimately, what will constitute sufficient nexus is a fact-sensitive inquiry, depending on the circumstances of each case and in particular on the degree of proximity of time and space to the charged offence(s). Sufficient nexus will generally be present if it concerns a fact in the immediate circumstances of the charged offence(s) or is a fact relevant to the accused’s state of mind at the time the offences(s) are committed. This situation is different from the case of antecedent offending conduct with no nexus whatsoever to the offence(s) in question.

85 The reason for treating facts with sufficient nexus as relevant is to give effect to the relativity principle which I have described (see above at [71]). For two offenders charged with the same offence, the offender with the higher culpability ought to receive a higher sentence. Given that the culpability of the accused person in any offence is largely concerned with the circumstances in which the offence was committed as well as the consequences of the offence, a sentencing court cannot turn a blind eye to these facts just because no charges were brought in respect of these acts. In making this assessment, the fact that these concern uncharged offences are less important here because these factors go to the very commission of the offence in question and thus directly inform the court about the culpability of the accused. However, the sentencing judge must bear in mind that he cannot sentence the accused as if he had been convicted of this uncharged offence. He can only take this fact into consideration in deciding on the culpability of the accused in relation to the charges that were brought against him. It is also important for the judge to ensure, as cautioned by Menon CJ in Edwin s/o Suse Nathen, that such aggravating factors have been adequately proven by the Prosecution such that a finding of fact is made by the trial judge or the accused admits to this fact.

86 In concluding this discussion, I find apposite the following remarks made on the duties of a sentencing judge by Wilson J in The Queen v De Simoni (1981) 147 CLR 383 at 395–396:

87 The application of this principle is straightforward in the case of the VCH Charge. Even though the act of pulling the Victim’s hair could technically constitute a stand-alone offence under s 323 of the Penal Code, this is a relevant fact with a sufficient nexus to the offence given that it was committed contemporaneously with the slap on the Victim, ie, it directly relates to Chua’s culpability on the VCH Charge. Thus, the District Judge did not err in considering this additional fact when sentencing Chua.

88 As for the Wrongful Confinement Charge, even though the Wrongful Confinement Charge specified only one date, the District Judge made a finding of fact that there were other periods of confinement because the Victim was not given access to the keys of the residence and was not allowed to leave the residence on other occasions (at [97]). On appeal, the Prosecution goes one step further to argue that the fact that the Victim had been confined by Chua for about 11 months is an aggravating factor. I disagree with the Prosecution.

89 First, since the Wrongful Confinement Charge specified only one date for the confinement, it will be inconsistent with the particulars of the charge for Chua to be punished as if she had continuously confined the Victim for a period of 11 months. In any event, it is clear from the evidence that there was not one continuous period of confinement but rather discrete and separate periods of confinement. Chua had testified, which evidence was not contradicted by the Victim or the Prosecution, that during the period of the Victim’s employment, the Victim had been allowed to go out to fetch groceries, wash the family’s car and buy products from the provisional shop located at the ground floor of the condominium.

90 Second, all these separate instances of confinement by Chua over a period of 11 months cannot appropriately be considered as criminal acts with sufficient nexus such that they could be taken into account per se for the purpose of sentencing for the Wrongful Confinement Charge, which only relates to confinement on a single day on 30 October 2012. If the Prosecution wanted the court to consider each of these past offences committed by Chua for the purpose of sentencing in the same manner as TIC charges, it should have charged Chua accordingly for multiple occasions of confinement and have them treated in the same way as TIC charges. As the Prosecution has not done so, I am not acceding to its request to consider these facts relating to other wrongful confinement offences committed by Chua over the past 11 months to enhance the sentence on the Wrongful Confinement Charge or to treat Chua as having committed multiple offences of wrongful confinement previously for the purpose of sentencing, as doing so would flout the rule against consideration of antecedent uncharged offences.

91 Having said that, I agree with the District Judge that the Victim had been confined on other previous occasions (irrespective as to who had confined her). In my judgment, the fact that Chua knew of these previous instances of confinement is a relevant fact in sentencing. This is a relevant fact in relation to the consequence of the offence as well as Chua’s state of mind at the time she confined the Victim. It is very unlikely for the Victim to have taken the drastic step of jumping out of the residence if the wrongful confinement on 30 October 2012 was simply a one-off incident. She must necessarily have felt desperate and believed that there was no other way out of the residence given that she had not been allowed to leave the residence for some time. As such, in sentencing Chua for the Wrongful Confinement Charge, I cannot turn a blind eye to this circumstance of the offence – the past instances of confinement have a close nexus to the offence in so far as they had made the Victim’s mental state more vulnerable and as such the offence in question was committed on a desperate Victim with a weakened mental state. Chua must have been aware of the previous long periods of confinement and the abusive treatment that the Victim was continuously subjected to. Chua’s wrongful confinement of the Victim on 30 October 2012 led to the consequence of the Victim jumping out of the residence to escape from her wrongful confinement on the day in question. Since Chua had knowingly committed this offence on a Victim with a significantly weakened mental state, Chua’s culpability is to that extent greater.

92 One obvious counter-argument to this approach would be that it indirectly takes into account uncharged offences committed by Chua, thereby flouting the rule against considering uncharged offending conduct. My answer is that it does not because I am not considering the fact that it was Chua who had confined the Victim on the past occasions. In other words, I would have arrived at the same outcome even if the Victim had been confined by someone else (“A”) and Chua knew of this fact. If the Victim had previously been confined by A for some time, and Chua knew of this fact, but yet decided on 30 October 2012 to confine the Victim, already made more vulnerable due to previous occasions of confinement (and abusive treatment), it would make no sense to completely ignore the effect of these past instances of confinement by A on the condition of the Victim. Following the same reasoning, just because it was Chua (and not A) who had confined the Victim on these past occasions, should the court ignore the actual condition of the Victim on the day of the wrongful confinement just because no charges were brought against Chua for other periods of wrongful confinement of the Victim by her? Clearly not. Focusing solely on the awareness of Chua as to the weakened mental state and vulnerability of the Victim when Chua committed the offence, and on Chua’s decision nevertheless to prolong or add to the suffering which the Victim has endured, the issue of who previously wrongfully confined (or abused) the Victim is irrelevant. In this regard, it cannot be said that the previous offences committed whether by A or by Chua have been taken into account per se in the sentencing of Chua for her offence of wrongful confinement on 30 October 2012. In fact, it does not even matter if any past offences were committed in the very first place – what matters is whether Chua knew about the Victim’s particular susceptibility or vulnerability but nevertheless proceeded to confine her. Thus for instance, if an offender knows that his victim suffers from claustrophobia but proceeds to wrongfully confine the victim in a very small and dark room, this knowledge will make the offender more culpable than an offender who does not know of this particular vulnerability when similarly confining his victim in such a room.

93 The factual scenario here is thus very different from that encountered in the cases like Vasentha and Tan Thian Earn. One can readily accept that past instances of drug possession or consumption have little to do with the preferred charges faced by the accused persons in those cases. The fact that the accused had possessed or consumed drugs before (for which there were no preferred charges) cannot be considered as an aggravating circumstance of the present offence of drug possession or consumption – each of them are distinct offences with insufficient nexus between one another.

94 Thus, in determining the sentence for the Wrongful Confinement Charge, I disregard the fact Chua was the one who had confined the Victim on these past occasions (as submitted by the Prosecution) – the only fact I took into consideration was that Chua, despite knowing that the Victim had been confined (and continuously abused) previously which should have at least put her on notice of the Victim’s state of desperation and feeble mental condition, nevertheless decided to confine the Victim on 30 October 2012, which then led to the desperate measure taken by the Victim to escape by climbing out of a bedroom window onto a narrow ledge and then jumping onto the rooftop of an adjacent building. As a consequence, the Victim suffered serious injuries. This allows me to find that Chua is more culpable than an offender who did not have such knowledge of past confinement (and past abuses), such that in line with the relativity principle, Chua should get a heavier sentence. It must be emphasised that the sentence that I am calibrating for Chua is still based on the charge under s 342 of the Penal Code and its particulars of a wrongful confinement for only one day, which carries a prescribed maximum sentence of 18 months’ imprisonment (see s 342 read with s 73(2) of the Penal Code).

95 Having determined this question, I propose to now deal with the respective appeals against sentence in the following order:

(a) Whether the sentence for the VCH Charge is manifestly excessive;

(b) Whether the sentence for the Wrongful Confinement Charge is manifestly excessive or inadequate; and

(c) Whether the respective custodial sentences ought to run concurrently or consecutively.

96 After considering the sentencing precedents for maid abuse under s 323 of the Penal Code and the nature of Chua’s assault on the Victim (GD at [87]–[91]), the District Judge imposed a sentence of three weeks’ imprisonment for the VCH Charge. In appealing against this sentence, Mr Quek submits that a non-custodial sentence is warranted because of Chua’s psychiatric illness, the serious damage that a custodial sentence could do to her ⁶² and the lack of serious injuries suffered by the Victim. ⁶³ I will deal with each of these arguments in turn.

97 In order to ascertain the relevance of any psychiatric condition suffered by an accused person, it is important to first appreciate the dominant sentencing objectives of the offence in question. In this vein, it is trite that sentencing in offences against domestic helpers engages strong considerations of specific and general deterrence (ADF at [58]–[59]).

98  The Court of Appeal held in Lim Ghim Peow v Public Prosecutor [2014] 4 SLR 1287 that while there is generally a tension between the sentencing objectives of deterrence and rehabilitation when sentencing offenders suffering from mental disorders, “the element of general deterrence may still be accorded full weight in some circumstances, such as where the mental disorder is not serious or is not causally related to the commission of the offence, and the offence is a serious one.” (at [28]) [emphasis added].

99 In the present case, whilst Chua has been diagnosed to be suffering from paranoid schizophrenia since 2008, the IMH psychiatrist who examined Chua has concluded that there was no causal link between her schizophrenia and the commission of the offences. ⁶⁴ Further, Chua herself does not dispute that at the time of the alleged offences, and the period prior thereto, she was not in any major relapse (see above at [11]). ⁶⁵ As there is clearly no causal relation between Chua’s mental disorder and her commission of the offences, her mental disorder is not a relevant sentencing consideration that predisposes me to favour a non-custodial sentence in the present case.

100 On the strength of the High Court’s recent decision in Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 (“Chew Soo Chun”), the Prosecution submits and I agree that in cases where there is no causal relation between an offender’s mental illness and the offence, the offender’s ill-health is only relevant in two ways, either as a ground for the exercise of judicial mercy, or as a mitigating factor where a jail term may cause disproportionate impact on the offender (at [38]). ⁶⁶

101 As regards judicial mercy, the High Court noted that it is an exceptional jurisdiction, only to be exercised in cases where the offender is suffering from a terminal illness or when a custodial term would endanger the offender’s life (Chew Soo Chun at [22]). This ground is clearly inapplicable in the present case as Chua is not suffering from a terminal illness. Neither is there any evidence to suggest that prison environment will endanger Chua’s life.

102 As regards disproportionate impact, the court is to assess whether a jail term would present a “risk of significant deterioration in health or a significant exacerbation of pain and suffering” (Chew Soo Chun at [34]). In ostensibly relying on this limb, Mr Quek refers to the IMH report by Dr Manu Lal (“Dr Manu”) dated 1 February 2016, which states that: ⁶⁷

103 The Prosecution submits that Mr Quek’s reliance on this report is misplaced ⁶⁸ because the Singapore Prison Service is fully capable of housing inmates with psychiatric conditions. In fact, it has always been able to manage their condition and to arrange for them to undergo treatment at hospitals should the need arise. ⁶⁹ I agree that this is a relevant consideration. As the High Court opined in Chew Soo Chun, the court will consider whether the prison has adequate medical facilities to address the offender’s medical conditions. If so, the offender’s ill-health will not be accorded weight as a mitigating factor even where the contention is that prison life would have a significantly adverse impact on the offender (Chew Soo Chun at [39(a)]).

104 More crucially, I find Dr Manu’s equivocal remark (as seen in the words used “suspect” and “may deteriorate”) insufficient to persuade me that prison life will have a disproportionate effect on Chua. Here, it is apposite to refer to Menon CJ’s comments about a similarly worded psychiatric report tendered by the accused in Idya Nurhazlyn Bte Ahmad Khir v Public Prosecutor [2014] 1 SLR 756 at [42]:

105 For these reasons, I am of the view that Chua’s psychiatric condition does not warrant the imposition of a non-custodial sentence.

106 Due to the primacy of deterrence in cases of maid abuse, the absence of serious injuries does not preclude the imposition of a custodial sentence. In ADF, the Court of Appeal noted that a custodial sentence is almost invariably warranted where there has been any manner of physical abuse against a domestic helper (at [91]). The Prosecution cites several sentencing precedents involving maid abuse which do not result in serious injuries to the victim. These precedents show that sentences of between three to six weeks’ imprisonment have been imposed on offenders who had slapped their domestic helpers. ⁷⁰ The sentence of three weeks’ imprisonment imposed on Chua is thus at the lowest end of the comparable sentences for similar cases.

107 In my view, the sentence should have been slightly higher (at least 4 weeks’ imprisonment), to take into account the fact that Chua had also additionally pulled the Victim’s hair whilst slapping her (see above at [87]). However, I am not enhancing Chua’s sentence on the VCH Charge as I do not find that the threshold for appellate intervention has been crossed, ie, the sentence is not “manifestly inadequate”.

108 Accordingly, I dismiss Chua’s appeal against the sentence imposed for the VCH Charge.

109 For the Wrongful Confinement Charge, the District Judge acknowledged that there was no evidence to show that Chua had confined the Victim in order to cause hurt to her but nevertheless found that the custodial threshold had been crossed. The District Judge was of the view that whilst the Wrongful Confinement Charge specified just one date, the Victim had also been so confined on other occasions. In addition, the Victim was effectively forced to jump out of the window to escape the abuse, and suffered injuries that rendered her wheelchair-bound for four to six weeks. While recognising the severity of Chua’s actions in respect of the Wrongful Confinement Charge, the District Judge nonetheless held that Chua’s faculties were impaired by her illness, and considered Dr Manu’s opinion that a custodial term may have deleterious effects on her mental health condition. As such, she imposed an imprisonment term of two months on Chua (GD at [97]–[98]).

110 In appealing against this sentence, the Prosecution submits for a sentence of at least six months’ imprisonment. ⁷¹ It argues that the District Judge erred on the following grounds: ⁷²

(a) gave insufficient weight to the fact that the wrongful confinement by Chua spanned a period of 11 months, and to the fact that the Victim suffered serious injuries as a result of being compelled to jump out of the residence from the sixth floor;

(b) failed to consider that the Wrongful Confinement Charge is read with s 73(2) of the Penal Code, which provides for enhanced punishment if the offence is committed against a foreign domestic worker;

(c) failed to consider that the wrongful confinement of the Victim was coupled with appalling conditions of confinement which included physical abuse and mental anguish; and

(d) placed undue mitigating weight on Chua’s psychiatric condition.

111 In relation to Chua’s appeal, Mr Quek submits for a fine on account of Chua’s psychiatric condition and the fact that Chua had no illegal intentions in confining the Victim. ⁷³

112 In so far as the relevance of Chua’s medical condition is concerned, I have already determined that Chua’s medical condition does not qualify her to a discount from a custodial to a non-custodial sentence (see above at [97]–[105]). Accordingly, Chua’s submission on this issue cuts no ice and the District Judge erred in placing weight on this as a mitigating factor.

113 In relation to the Prosecution’s submission that the confinement of the Victim by Chua, prolonged over a period of 11 months, amounted to an aggravating factor, I have already given the reasons why this cannot be considered in sentencing because it relates to uncharged offences by Chua, which do not have a sufficient nexus to the Wrongful Confinement Charge (see above at [88]).

114 Due to prior inconsistent case law and the absence of a settled sentencing framework for the offence of wrongful confinement under s 342 of the Penal Code, I agree with the Prosecution that it will be helpful to set out a sentencing framework for this offence. ⁷⁴ In establishing this framework, I derived much assistance from the well-reasoned submissions of the Prosecution. ⁷⁵

115 In Sarjit Singh Rapati v Public Prosecutor [2005] 1 SLR(R) 638 (“Sarjit Singh”), the High Court observed that an imprisonment term of three months and above is to be imposed only for an offence of wrongful confinement where aggravating factors are present (at [56]). While Sarjit Singh did not elaborate further on these aggravating factors, the structure of the Penal Code and the relevant case law contain helpful insights on the type of aggravating factors that would justify the imposition of a custodial sentence in wrongful confinement cases. Without attempting to exhaustively itemise all these factors, I suggest that the sentencing court dealing with offenders for wrongful confinement under s 342 of the Penal Code, which carries a maximum imprisonment term of one year, ought to consider the following aspects of the offence:

(a) the total duration of the wrongful confinement;

(b) the conditions in which the victim was wrongfully confined;

(c) whether the wrongful confinement was committed to facilitate the commission of another offence; and

(d) the consequences of the confinement on the victim.

116 Generally, the longer the period of confinement, the more aggravated the offence will be. This aggravating factor is implicit in the legislative design behind s 342 and its affiliate offences. The Penal Code specifically provides for enhanced punishment in cases where the period of the wrongful confinement exceeds certain limits. Whilst the maximum term of imprisonment for an offence of wrongful confinement under s 342 of the Penal Code is one year’s imprisonment, a maximum of two years’ imprisonment applies where the wrongful confinement is for three days or more (s 343 of the Penal Code). Where the wrongful confinement is for ten days or more, the accused faces a mandatory sentence of imprisonment which may extend to three years’ imprisonment (s 344 of the Penal Code).

117 Although the Prosecution is entitled to bring a charge under s 343 or s 344 of the Penal Code, the Prosecution is also entitled to prosecute the offender under a reduced charge under s 342 for wrongful confinement simpliciter. By doing so, the Prosecution is not thereby precluded from stating the full duration of the wrongful confinement in the charge. And if, for example, the Prosecution states in a charge of wrongful confinement simpliciter under s 342 that the accused was wrongfully confined for a period of 30 days, and if the accused is convicted of that charge, the sentencing court will be entitled to take that duration into account, but not to the extent of sentencing the accused as if he had been convicted on a graver charge (Suventher at [36], discussed at [72] above). The longer the total period of confinement specified in the charge, the more severe will be the sentence based on the relativity principle. There is no novelty to this approach. An offender convicted on a VCH charge who caused his victim a fracture will be treated more severely than an offender convicted on a VCH charge who caused his victim a bruise, all things being equal.

118 Given that the sine qua non of wrongful confinement is that a victim is prevented from leaving a confined place, the conditions of this confinement ought to be a material factor in sentencing. The court should consider, amongst other things, whether the victim was given inadequate access to basic necessities such as food, water, clothing, and sanitation and whether the place of confinement is dirty, uncomfortable or barely habitable. If the offender is responsible for conditions intended to deny the victim access to basic necessities, or to cause prolonged discomfort, or to humiliate the confined person, that would be an aggravating factor.

119 The cases cited by the District Judge at [93]–[95] of the GD also show that a sentence of at least four weeks’ imprisonment is the norm when the offence of wrongful confinement is committed to facilitate the commission of a further offence (or multiple offences) such as criminal intimidation (which may well amount to mental torture if prolonged), voluntarily causing hurt or a sexual offence.

120 An illustrative case is Karthi Kesan s/o Raja Gopal and others v Public Prosecutor (MA No 83 of 1994), which was cited in Sarjit Singh (at [56]) as an example of a wrongful confinement case with aggravating factors. In that case, the victim owed the offender money. The offender, together with his co-offenders, kicked and pushed the victim into a lorry, where the victim was wrongfully confined. While in the lorry, they further assaulted him, forced him to hand over his belongings, and asked him to strip to his underwear. The offenders also threatened him with bodily harm if he failed to raise the money. The sentence of three months’ imprisonment imposed on the offender under s 342 (read with s 34) of the Penal Code for wrongful confinement was upheld on appeal.

121 It may be noted that ss 347 and 348 of the Penal Code provide for mandatory imprisonment if the wrongful confinement was done for the purpose of, inter alia, extorting property, constraining to an illegal act, extorting a confession, or compelling the restoration of property. The maximum sentence in such cases is three years’ imprisonment.

122 In relation to the wrongful confinement of domestic helpers, I am of the view that a custodial sentence should be the starting point if the wrongful confinement of the domestic helper is intended to abet, allow, facilitate or conceal the physical abuse of a domestic helper. If any manner of physical abuse against a domestic helper by the employer or other members of the household warrants a custodial sentence (ADF at [91]), it would be anomalous for wrongful confinement in such cases not to attract the same starting point if any manner of physical abuse has been facilitated given that both offences involve an abuse of power or authority over a vulnerable victim.

123 It goes without saying that the severity of the injuries suffered by a victim is a recognised aggravating factor in all offences against the person. In this regard, a narrow issue that arises in this appeal is whether such injuries aggravate the offence even if they did not arise directly from the offender’s actions, or are not entirely predictable. In my view, the answer is “Yes”.

124 In Public Prosecutor v Hue An Li [2014] 4 SLR 661 (“Hue An Li”), the High Court considered the inherent tension between the principle that no one should be held accountable for matters which are beyond his control (“control principle”), and the principle that moral and legal assessments often depend on factors beyond the actor’s control (“outcome materiality principle”) (at [69]–[70]):

125 The court in Hue An Li ultimately decided (at [71]–[75]) that the outcome materiality principle trumps the control principle in the context of criminal negligence. Similarly, in Public Prosecutor v Lim Choon Teck [2015] 5 SLR 1395, I was of the view that outcome materiality did matter in determining the severity of sentences in relation to criminal rashness (at [38]).

126 In a similar vein, I agree with the Prosecution that the injuries suffered by a victim of wrongful confinement should be considered in determining the severity of the sentence to be imposed on the offender, even if those injuries did not arise directly from the offender’s actions, as long as there is a causal link between the wrongful confinement and the injuries suffered. The point is illustrated by the following hypothetical. Suppose a fire breaks out in a place where a victim is confined. The only way for the victim to escape unscathed is to flee the place. However, the victim is unable to leave because the accused has locked the place. The victim suffers severe burns before being rescued eventually. There is no doubt that the accused is not responsible for the fire. Nonetheless, the victim’s inability to escape from the fire is a direct result of the accused’s act of confining the victim, and thus may be regarded as a risk created directly by the accused’s wrongful act. Imposing a higher sentence on the accused on account of the victim’s severe burns may be justified on the ground that the accused created a risk of harm to the victim by wrongfully confining the victim, and hence cannot allege unfairness if that risk materialises, which may then influence the sentence to be imposed.

127 The Victim’s physical and mental condition on 30 October 2012 itself is a relevant sentencing consideration. The Victim had previously been subjected to appalling conditions of confinement – which included physical abuse and threat of punishment. ⁷⁶ The physical abuse suffered by the Victim over a period of six to seven months can be summed up in her own words: “[Chua, Popo and Kathleen] would punch me, slap me, kick me, and hit my head against the wall, and they would use bleach on me” from “March or April 2012 until October 2012”. ⁷⁷ The Victim was also not merely wrongfully confined – she was deliberately cut off from the outside world and forced into isolation. This is evidenced by the fact that she was not given any off days, deprived of a SIM card for her mobile phone, not allowed to talk to anyone besides Chua and her family members, and not allowed to keep a diary (see above at [12]). This gives the backdrop to better understand the mental and physical condition of the Victim on the day of the offence of wrongful confinement committed by Chua. Chua in confining the Victim on the day in question was not merely wrongfully confining any normal person but one who had already been subject to prolonged ill-treatment and abuse whilst under prolonged wrongful confinement previously (a fact which she knew about). To that extent, her culpability is much higher than an offender who did not have such knowledge.

128 Most significantly, the confinement of the Victim on 30 October 2012 eventually led her to mount a desperate escape by jumping out of the residence from the sixth floor. This dangerous manner of escape was the Victim’s only way out of the unit, and it caused her to suffer debilitating injuries in the form of multiple fractures, which led to her being wheelchair-bound for four to six weeks. There is no doubt that Chua was responsible for this eventual result: she took part in the physical assault on the Victim on 29 October 2012, and was the one who confined the Victim to the residence on 30 October 2012, despite being aware that the Victim has already been so confined for some time (see above at [91]–[94]). I am thus in full agreement with the District Judge when she concluded at [97] of the GD that Chua “as good as forced [the Victim] to resort to the extreme measure of jumping out of the window to escape from Ms Chua’s abuse.” In this connection, the severe injuries suffered by the Victim in the course of making her escape is a material aggravating factor which I have to consider in determining the sentence to impose on Chua.

129 Accordingly, I increase the sentence for the Wrongful Confinement Charge to 21 weeks’ imprisonment. This is only about a quarter of the maximum imprisonment term of 18 months (which is about 78 weeks) that could have been imposed on Chua. In this connection, it is worth noting that if the Prosecution had exercised its discretion to charge Chua for the other periods of confinement, over the course of 11 months, I would not have hesitated to impose a sentence upwards of 12 months’ imprisonment.

130 The District Judge, primarily influenced by the fact of Chua’s psychiatric condition (GD at [98]), decided to order the two terms of imprisonment to run concurrently.

131 The Prosecution submits that the District Judge erred in exercising her discretion under s 306(2) of the CPC to order the two custodial sentences to run concurrently because the District Judge failed to consider whether the one-transaction rule and totality principle were applicable in the present case. ⁷⁸

132 Section 306(2) of the CPC reads:

133 It is established law that the discretion of a sentencing judge under s 306(2) of the CPC must be exercised in accordance with the one-transaction rule and the totality principle (Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998 (“Shouffee”) at [25]). The District Judge did not explain in the GD how the one-transaction rule and the totality principle were considered by her in deciding to run the sentences concurrently.

134 Having considered the one-transaction rule and the totality principle, I agree with the Prosecution that the sentences should run consecutively in the present case.

135 In relation to the one-transaction rule, two key observations made by Menon CJ in Shouffee are relevant in the present case. First, the one-transaction rule is generally not applicable where there is an absence of proximity between the offences (at [34]). Second, the “real basis” of the one-transaction rule is “unity of the violated interest that underlies the various offences” (at [31]). Applying both these considerations, I am of the view that the one-transaction rule is inapplicable in the present case. ⁷⁹ First, there is a lack of proximity in time between the two charges given that the offence in the Wrongful Confinement Charge was committed almost half a day after the offence in the VCH Charge. Second and more crucially, the charges violate different “legally protected interests” (Shouffee at [31]). The VCH Charge relates to an invasion of the Victim’s bodily integrity, while the Wrongful Confinement Charge relates to an infringement of the Victim’s right to freedom of movement. These interests are separate and distinct, and do not necessarily or inevitably flow from each other. Accordingly, the two offences committed by Chua do not fall within a single transaction.

136 As for the totality principle, this principle has two distinct limbs. First, the aggregate sentence should not be substantially higher than the normal level of sentences imposed for the most serious of the individual offences (Shouffee at [54]). Second, the aggregate sentence should not be crushing taking into consideration the offender’s past record and his future prospects (Shouffee at [57]). In Haliffie, the Court of Appeal further clarified at [79] that in determining the normal level of sentences imposed for the most serious offence, a court should look at the range of sentences normally imposed for the most serious offence and not at a specific sentencing benchmark or stating point.

137 Applying both limbs, I am of the view that the totality principle is not violated if the custodial sentences were to run consecutively in this case. An additional sentence of three weeks’ imprisonment in the present case where the difference is between 21 to 24 weeks’ imprisonment cannot be considered substantially higher than the normal range of sentences in cases of abuse of domestic helpers (bearing in mind the one and a half times times uplift in sentence mandated by s 73(2) of the Penal Code). Neither would it entail a crushing sentence on Chua.

138 Accordingly, I find that the two custodial sentences should run consecutively in the present case.

139 For these reasons, I dismiss Chua’s appeals and allow the Prosecution’s appeal against sentence. I order the sentence in respect of the Wrongful Confinement Charge to be increased from two months’ imprisonment to 21 weeks’ imprisonment. I also order this sentence to run consecutively with the imprisonment term in the VCH Charge, rendering an aggregate imprisonment term of 24 weeks.

140 I close by highlighting the public message which this judgment carries. The law will not tolerate the abuse of persons in any way, shape or form, much less abuse over a prolonged period by any person in a position of power or responsibility, which inevitably poses a real risk of significant and less than temporary harm to the victim, physical and psychological. This is not the first case of its kind in which the court has had to act on the law’s uncompromising attitude towards such abuse, and it is unlikely to be the last. Employers of domestic helpers will from this judgment be well-apprised of the consequences which will be visited upon them should they choose to treat their helpers in an inhumane manner. These helpers come from abroad to serve our households, not to be placed into servitude and abused, and the law as it now stands will have consequences for those who think and act otherwise.