In the case of Public Prosecutor v Bong Sim Swan, Suzanna (Suzanna), a domestic helper was a victim of physical and psychological abuse by her employer over a sustained period of time.
In Suzanna, the Court of Appeal applied a sentencing framework for domestic helper abuse cases set out in Tay Wee Kiat. According to this framework the sentencing court shall decide whether the harm caused to the victim was predominantly physical or both physical and psychological.
If the harm is both physical and psychological, the court will determine the degree of harm caused in relation to each charge.
Finally, the court adjusts the sentence for each charge depending on aggravating or mitigating circumstances.
Punishing an offender for surrounding harm they were not charged for
Generally, an offender cannot be punished for an offence for which they were not charged or convicted. However, in Suzanna, the employer was only convicted for voluntarily causing hurt, but her sentence included punishment for the psychological harm caused to the domestic helper as well. Why was this so?
It was noted in Suzanna that without including the surrounding psychological harm, it would result in a most perverse situation where serial offenders would be benefitted. Notably, this does not undermine principle where offenders are not to be punished for offences of which they were not charged by punishing the offender for a separate uncharged offence, as the Court is merely viewing the charge in the context of the relationship. Furthermore, evidence relating to a charge often involves background facts and incidents that are admissible at the conviction stage. To later find these background facts and evidence inadmissible at the sentencing stage would be contradictory.
It is also pertinent to note that an offender who knew, or was aware of the likelihood, of a victim’s pre-existing injury or vulnerability that arose from previous proved incidents, which could become a separate charge but was not actually charged would likely be considered an aggravating circumstances.
Basically, an offender’s prior instances of injury to their victim might not form the subject of their conviction. However, if it can be established that the offender knew, or was aware of the likelihood of their victim’s prior injury, during the subsequent act of abuse (for which they were charged), the court will very likely find the offender to be of higher culpability.
Although it might seem strange, at first glance, to include punishment for acts an offender was not charged with in the sentence meted to them, the unique circumstances of domestic helper abuse must be considered. In these situations, offenders are able to inflict multiple instances of harm over a significant period of time, which could eventually snowball into very serious injuries. Ultimately, it is reassuring to know that the Courts do not turn a blind eye to these special situations, and prevent serial offenders from getting away with their wrongdoing.
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