Case Study

1.Labours Rights (1) Public Prosecutor V Donohue Enilia [2004] SGHC 248 High Court
Magistrates Appeal No 119 of 2004 Yong Pung How CJ 19 October; 5 November 2004

Facts: The respondent is the wmployer of a foreign maid from Indonesia, Achdaniah. The work permit was granted and supposed to be remain from 7 September 2001 to 9 August 2003. As the respondent subsequently failed to pay the maid levy to the Ministry of Manpower, the work permit thus was revoked on 1 December 2001 by the Ministry. The respondent, however, continued to employ the maid who shall be repatriated by law without paying for a futher one year and eight months though the respondent had already knew the work permit had been revoked. The total amount of payment was $4630, the respondent paid ultimately $1050 to the maid, but there was a balance of $3580 still outstanding. The maid reported the respondent to the police on 9 August 2003, the respondent pleaded guilty to the charge for employing foreign maid without valid work permit, and the charge for failure of paying the salary. The trial court held the two charges but refused to grant a compensation to the maid from 7 September 2001 to 1 December 2001 when the work permit was valid and from from 1 December 2001 to 9 August 2003 when the work permit had been revoked and known to the respondent. The prosecution appealed against the trial courts refusal to grant the compensation. Held The High Court allowed the appeal and held that: The compensation shall be granted to the maid during the period when the work permit was valid and also during the period when the work permit had been revoked.
(1) The trial judge had refused to grant a compensation order because of his suspicion that the maid had been complicit in the illegal employment during the period when there was no longer a valid work permit. However, there was no evidence to suggest that the maid had been aware of the revocation of her work permit at any point in time during the employment. There was no basis not to grant the compensation order even for the period where there was no valid work permit. (2) A compensation order was not punishment for an offence, nor part of the sentence imposed for the offence. It was not aimed at castigating an accused but at providing redress to a victim of crime.

The rationales: (1) The trial judge laid great emphasis on the issue of illegality when deciding whether or not to grant the order. The trial judge said that as the maid had been fully aware of the revocation of her work permit, and yet colluded with her employer to continue working without a valid permit, her involvement in the illegal employment tainted her right to compensation under s 401(1)(b) of the CPC. But the High court

found that On closer examination of the record of proceedings, it was evident that no evidence was adduced at trial to show that the maid had continued to work for the respondent despite knowing that her work permit had been revoked. (2) Taken into account of public policy consderations, the maid shall be granted compensation. The legislative background: During the parliamentary debate on the Penal Code (Amendment) Bill on 20 April 1998, the Minister for Home Affairs listed the reasons for the enhanced penalties: (a) Maids are especially vulnerable to abuse by their employers because they work within the confines of their employers home for 24 hours of the day are isolated from the rest of society and depend on their employer for food and lodging. (b) Maid abuse should not be tolerated in a gracious society, which is what Singapore aspires to be. (c) Maid abuse is also detrimental to Singapores international reputation and bilateral relations. Human rights perspective: A maid sells her services; she does not sell her person. An employer should not exploit his maids dependence on him for food and lodging, for these are basic rights. A maids abased social status does not mean that she is any less of a human being and any less protected by the law. The maid in the present appeal earned $230 per month. Yet she was not paid at all for her services rendered. In such circumstances, she would not be likely to have the financial capability to pursue a civil claim against the respondent for her unpaid salaries. Note: Here in the award, the jugde held that the vulnerability of maids is not limited to physical abuse, but extends to financial exploitation by errant employers who default on the payment of their salaries, such an extension may shows the added protection to the foreign maid is not only confined to their physical injuries but also contains the possible deprivation of due salaries, which provides a broader protection to the foreign maid.

(2) Farida Begam d/o Mohd Artham v Public Prosecutor [2001] SGHC 333
High Court Magistrates Appeal No 149 of 2001 Yong Pung How CJ 1,8 November 2001

Facts The appellant was convicted of voluntarily causing hurt to her maid Khusniati Habib, by hitting her head, face and chest with a wooden scrub and a slipper, which was an offence under Section 321 of the Penal Code(Cap224, 1985 Rev Ed) and was sentenced to three months imprisionment, a benchmark punishment by the magistrate court. The appellant appealed against conviction and sentence, while the prosecution cross-appealed against the sentence, whether the sentence was manefestly inadequate.

Held: The appellants appeal against conviction and sentence were dismissed, and the respondents cross-appeal against sentence was allowed and the sentence was enhanced to nine months imprisionment. Rationales: 1. Special Protection to the foreign maid by law. In this case, there was aggravating factors that PW4 sustained rather serious injuries, concentrated on the head and face, which are vulnerable parts of the body. (b) The appellant did not use her bare hands, but used a wooden pole and a slipper. (c) The appellant was in a position of authority over PW4. (d) PW4 was a vulnerable victim. Maids have been recognised as a category of persons in need of greater protection. (e) The attack was unprovoked. (f) The appellant had shown no remorse. Section 323 of the Penal Code set up punishment for voluntarily causing hurt, with imprisonment of a term not extending to one year, or with fine which may extend to $1,000, or with both. Whereas in cases where the victims are domestic maid and the perpetrators are the employers, the court should also have considered Section 73, which provids that the court may sentence the employer of the domestic maid or the member of his household, as the case may be, to one and a half times the amount of punishment to which he would otherwise have been liable for that offence. 2. The public policy shall be taken into account. The judge in this case had overlooked these concerns. In imposing custodial sentences, the courts in cases like Wong Suet Peng v PP (MA 170/2000) and Chung Poh Chee v PP (MA 71/2000) have recognised the need for deterrence and the importance of public policy in this area. The Judge did not mention s 73 and the legislative intent behind it. During the parliamentary debate on the Penal Code (Amendment) Bill on 20 April 1998, the Minister for Home Affairs listed the reasons for the enhanced penalties: (a) Maids are especially vulnerable to abuse by their employers because they work within the confines of their employers home for 24 hours of the day are isolated from the rest of society and depend on their employer for food and lodging. (b) Maid abuse should not be tolerated in a gracious society, which is what Singapore aspires to be. (c) Maid abuse is also detrimental to Singapores international reputation and bilateral relations. Notes: These two cases show the great determnination of Singapore to tackle the abuse of foreign maids. But we have to realize that not all the victims have the potentials to report abuse to the police, many of them may not be able to afford the cost, financially and mentally. They are paid S$300 per month, equivalent to the maid levy charged by the Ministry of Manpower; they have a large amount of debt at home behind them, and they are afraid of being sent back to homes; they are confined to home by the host family in case that once they run away the host family will have to

be forfeited of S$5,000 security bond. And the foreign maids are excluded from labour law protection although the government has charge high miad levy. The maids do not enjoy the minimum wage, maternity leave, public holiday and paid annual leave as their counterparts do in Hong Kong.1

3 Equal Treatment of Migrant Workers and Right to Strike: Charges Against Bus Strike Leaders Four Chinese bus drivers, He Jun ling, Liu Xiangying, Gao Yuexiang and Wang Xianjie, employed by SMRT were convicted for illegal strik pursuant to Article 10(a) of the Criminal Law(Temporary Provisions) Act. Discontent with the SMRTs excluding them from increasing the salary, and discrimination between Chinese drivers and drivers of other nationalities on the payment, He Junling called on fellows to strike online and get response from the other three drivers. On 26 November 2012, 171 Chinese bus drivers stopped to report to the company of their work, and went on strike staying inside their company-run living quarters. They asked the company to address the unequal treatment and the poor living conditions. The bus drivers, failing to get response from the company and refused to work for nearly two days, were arrested and detained in custody with the charge of illegal strike, as the law in Singapore requires 14-day notice for any strike in an industry considered an "essential service, where the bus service is listed specifically. The court generally held that the grievances suffered by the bus drivers shall be addressed adequately by and within the company, but the drivers could not justify taking the law into their hands." The strike could have had the potential to "severely affect the lives of daily commuters, the cases were "not the forum" to address the workers' grievances. Note: Strike, assembly and speech are sensitive issues in Singapore, they are supported by the law, but subject to strict requirements. According to the International Labour Organization (ILO), of which Singapore is a member, workers regardless of their nationality have a fundamental right to strike peacefully, and restrictions on the right to strike in essential services sectors can only be justified if the interruption of the services could endanger the life, safety or health of all or part of the population, or in situations of acute national crisis.

2. Civil Rights: Free Speech and Defamation

1

John Burton, Singapore law fails to protect maids, December 6, 2005. http://www.ft.com/intl/cms/s/0/2840c1aa-6684-11da-884a-0000779e2340.html#axzz2RHJXvQdm.

Constitution of the Republic of Singapore Freedom of speech, assembly and association 14. (1) Subject to clauses (2) and (3) (a) every citizen of Singapore has the right to freedom of speech and expression; (b) all citizens of Singapore have the right to assemble peaceably and without arms; and (c) all citizens of Singapore have the right to form associations. (2) Parliament may by law impose (a) on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence; (b) on the right conferred by clause (1)(b), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof or public order; and (c) on the right conferred by clause (1)(c), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, public order or morality. (3) Restrictions on the right to form associations conferred by clause (1) ( c) may also be imposed by any law relating to labour or education. (1) Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2009] SGCA 46 Court of Appeal Civil Appeals Nos 163 and 164 of 2008

Facts:
The appellant, the Far Eastern Economic Review, pubished an article written by Mr Hugo Restall, the editor of respondent. The said article was in connection with an interview conducted by Hugo Restall with Dr Chee Soon Juan, the secretary-general of the Singapore Democratic Party. The article described Dr Chee Soon Juan as the martyr of Sinagpore, and refered to the National Kidney Foundation (NKF) Saga, the well-known corruption incident by the former chief executive of NKF Mr T T Durai. Mr Lee Hisen Loong, and Mr Lee Kuan Yew, subsequently sued the appellant in two suits for defamation, claiming that the said article used the NKF Saga as a basis for comparing the way in which the NKF had been run during Durais tenure with the way in which Singapore had been governed by Singapore officials, and the words in their natural and ordinary meaning implicating that the respondents were unfit for office because they were corrupt and had set out to sue and suppress those who would question them for fear that such questioning would expose their corruption. The Judge granted summary judgment for both suits, having found that the Disputed Words bore such meaning contended by the Respondents and that the Appellants had no viable defence in law. The respondent appealed the Judges decision in the summary judgement applications.

Decision:
The court dismissed the appeals.

Nationales:
In determining whether the offending words were referable to the plaintiff, the test was an

objective one, ie, whether the ordinary reasonable person who, at the material time, was aware of the relevant circumstances or special facts would reasonably understand the plaintiff to be referred to by the offending words, and the context in which the words were used was also relevant. 1. The disputed words in the said article are refered to the former Prime Minister Mr Lee Kuan Yew. Three steps to identify defamation: Firstly, by the time the Article was published, the Relevant Events had entered the public domain and were within the general knowledge of the ordinary reasonable person. The relevant events includes(para 45): the NKF Saga , the libel action brought by the NKF and Durai against Singapore Press Holdings Ltd to cover their corruption (that suit culminated in Durai withdrawing the action, subsequently being arrested by the Corrupt Practices Investigation Bureau (CPIB) and, LHL is the Prime Minister of Singapore, LKY is the Minister Mentor in the Prime Ministers Office; the various defamation suits commenced over the years by the Respondents. (See para 35, 36). Secondly, the disputed words referable to the respondents in the mind of the reasonable person. The term government and Sinagpores great and good were understood by the ordinary reasonable person who were aware of the relevant circumstances or special facts as refered to respondent LKY. (para47-55) Lastly, the natural and ordinary meaning of the Disputed Words in relation to LKY is that LKY, like Durai: (a) is corrupt; (b) has been running and continues to run Singapore in the same corrupt manner as Durai ran the NKF; and (c) has been using libel actions to cover up his misdeeds. (See para92). The Article described (at para 11) this scandal as a gift for the opposition and suggested (in the same paragraph) that the scandal had wider implications too [emphasis added]. Paragraph 11 of the Article then immediately made reference to the Governments control of huge pools of public money in the Central Provident Fund (CPF) and the Government of Singapore Investment Corporation Pte Ltd (GIC), both of which were described as highly nontransparent. The same paragraph went on to refer to the Governments control over spending on public housing in Singapore and described the funds for refurbishing apartment blocks as a bribe for districts that vote for the ruling party [emphasis added]. Paragraph 11 ended with the statement that Singaporeans have no way of knowing whether officials are abusing their trust as Mr. Durai did.(para 65) It is noteworthy that the NKF Saga was mentioned in the Article (at para 10) immediately after the suggestion (in para 9) that LKY had skeletons in his closet (which expression is ordinarily used to indicate that the person concerned has done shameful acts which he wishes to hide). Further, the suggestion that LKY had skeletons in his closet ( per para 9 of the Article) was immediately followed by the statement [t]hat raises the question of whether Singapore deserves its reputation for squeaky-clean government [emphasis added] in para 10 of the Article. Read together, these statements would, from the viewpoint of the ordinary reasonable person, mean that LKY had something to hide, which, if exposed, would call into question Singapores reputation for squeaky-clean government. (para84) 2. The disputed words in the said article are refered to the former Prime Minister Mr Lee Kuan Yew, also refered to Lee Hsien Loong. As for the term government in the Disputed Words, it must similarly be referable to LHL in the context of the Article. It is common knowledge that LHL, as the Prime Minister of Singapore, is the head of the Government in Singapore.(para 59) LHL was the first government official referred to in the Article (see para 3 thereof), even

before any reference to LKY was made, and he (LHL) was mentioned specifically in his capacity as the Prime Minister, the head of the Government. Furthermore, the word officials in para13 of the Article was also used in the context of libel suits commenced by Singaporean officials. This is significant as it is common knowledge in Singapore that LHL, like LKY, has sued many politicians and the press for defamation in Singapore. (para59-60) Paragraph 11 of the Article spoke of the NKF Saga having wider implications and went on to refer to the Governments control of large pools of public money in other public institutions. As stated above, the last sentence of para 11 would suggest to the ordinary reasonable person that the Government (which includes LHL) was guilty of the same kind of wrongdoing as that which the NKF and/or Durai had engaged in. where the comparison in paras 1213 of the Article between the successful libel suit brought by the NKF in 1998 and the successful libel suits brought by Singaporean officials [and] Singapores great and good (see para 13 of the Article) is concerned, the implication is that LHL, like Durai, had similarly used defamation suits to cover up his misdeeds (ie, his corruption) as well as to prevent others from questioning him, and had wrongly won (see para 13) such suits in the past. Note: The case here is refered to the freedom of press and defamation. Opposition

party would like to express multiparty discourse in public or published via newspaper, and some critics will refers to the governmental officials, like in this case. It is hard to say that the court in this case or in many other defamation cases prefers the governmental offcials and is used as a tool to suppress the opposition party by the government, but it nevertheless presents the line between freedom of speech and defamation is not difficult to cross if it has to be so. Appendix: The article at issue: [1] Striding into the Chinese restaurant of Singapores historic Fullerton Hotel, Chee Soon Juan hardly looks like a dangerous revolutionary. Casually dressed in a blue shirt with a gold pen clipped to the pocket, he could pass as just another mildmannered, apolitical Singaporean. Smiling, he courteously apologizes for being late even though it is only two minutes after the appointed time. [2] Nevertheless, according to prosecutors, this same man is not only a criminal, but a repeat offender. The opposition party leader has just come from a pre-trial conference at the courthouse, where he faces eight counts of speaking in public without a permit. He has already served numerous prison terms for this and other political offenses, including eight days in March for denying the independence of the judiciary. He expects to go to jail again later this year. [3] Mr. Chee does not seem too perturbed about this, but it drives Singaporean Prime Minister Lee Hsien Loong up the wall. Asked about his governments persecution of the opposition during a trip to New Zealand last month, Mr. Lee launched into a tirade of abuse against Mr. Chee. Hes a liar, hes a cheat, hes deceitful, hes confrontational, its a destructive form of politics designed not to win elections in Singapore but to impress foreign supporters and make himself out to be a martyr, Mr. Lee ranted. Hes deliberately going against the rules because he says, Im like Nelson Mandela and Mahatma Gandhi. I want to be a martyr.

[4] Coming at the end of a trip in which the prime minister essentially got a free ride on human rights from his hosts New Zealand Prime Minister Helen Clark didnt even raise the issue this outburst showed a lack of selfcontrol and acumen. Former Prime Minister Lee Kuan Yew, the man who many believe still runs Singapore and who is the current prime ministers father, has said much the same things about Mr. Chee a political gangster, a liar and a cheat but that was at home, and in the heat of an election campaign. [5] Mr. Chee smiles when its suggested that he must be doing something right. Every time he says something stupid like that, I think to myself, the worst thing to happen would be to be ignored. That would mean were not making any headway, he agrees. [6] But one charge made by the government does stick: Mr. Chee is not terribly concerned about election results. Which is just as well, because his Singapore Democratic Party did not do very well in the May 6 polls. It would be foolish, he suggests, for an opposition party in Singapore to pin its hopes on gaining one, or perhaps two, seats in parliament. He is aiming for a much bigger goal: bringing down the city-states one-party system of government. His weapon is a campaign of civil disobedience against laws designed to curtail democratic freedoms. [7] You dont vote out a dictatorship, he says. And basically thats what Singapore is, albeit a very sophisticated one. Its not possible for us to effect change just through the ballot box. Theyve got control of everything else around us. Instead whats needed is a coalition of civil society and political Singapore. [8] So far Mr. Chee doesnt seem to be getting much, if any traction. While many Singaporeans dont particularly like the PAPs [Peoples Action Partys] arrogant style of government, the ruling party has succeeded in depoliticizing the population to the extent that anybody who presses them to take action to make a change is regarded with resentment. And in a climate of fear Mr. Chee lost his job as a psychology lecturer at the national university soon after entering opposition politics a reluctance to get involved is hardly surprising. [9] Why is all this oppression necessary in a peaceful and prosperous country like Singapore where citizens otherwise enjoy so many freedoms? Mr. Chee has his own theory that the answer lies with strongman Lee Kuan Yew himself: Why is he still so afraid? I honestly think that through the years he has accumulated enough skeletons in his closet that he knows that when he is gone, his son and the generations after him will have a price to pay. If we had parliamentary debates where the opposition could pry and ask questions, I think he is actually afraid of something like that. [10] That raises the question of whether Singapore deserves its reputation for squeaky-clean government. A scandal involving the countrys biggest charity, the National Kidney Foundation [(NKF)], erupted in 2004 when it turned out that its Chief Executive T. T. Durai was not only drawing a $357,000 annual salary, but the charity was paying for his first-class flights, maintenance on his Mercedes, and goldplated fixtures in his private office bathroom. [11] The scandal was a gift for the opposition, which naturally raised questions about why the government didnt do a better job of supervising the highly secretive NKF,

whose patron was the wife of former Prime Minister Goh Chok Tong (she called Mr.Durais salary peanuts). But it had wider implications too. The government controls huge pools of public money in the Central Provident Fund and the Government of Singapore Investment Corp., both of which are highly nontransparent. It also controls spending on the public housing most Singaporeans live in, and openly uses the funds for refurbishing apartment blocks as a bribe for districts that vote for the ruling party. Singaporeans have no way of knowing whether officials are abusing their trust as Mr. Durai did. [12] It gets worse. Mr. Durais abuses only came to light because he sued the Straits Times newspaper for libel over an article detailing some of his perks. Why was Mr. Durai so confident he could win a libel suit when the allegations against him were true? Because he had done it before. The NKF won a libel case in 1998 against defendants who alleged it had paid for first-class flights for Mr. Durai. This time, however, he was up against a major bulwark of the regime, Singapore Press Holdings; its lawyers uncovered the truth. [13] Singaporean officials have a remarkable record of success in winning libel suits against their critics. The question then is, how many other libel suits have Singapores great and good wrongly won, resulting in the cover-up of real misdeeds? And are libel suits deliberately used as a tool to suppress questioning voices? [14] The bottling up of dissent conceals pressures and prevents conflicts from being resolved. For instance, extreme sensitivity over the issue of race relations means that the persistence of discrimination is a taboo topic. Yet according to Mr. Chee it is a problem that should be debated so that it can be better resolved. The harder they press now, the stronger will be the reaction when hes no longer around, he says of Lee Kuan Yew. [15] The paternalism of the PAP also rankles, especially since foreigners get more consideration than locals. The World Bank and [the] International Monetary Fund will hold their annual meeting in Singapore this fall, and have been trying to convince the authorities to allow the usual demonstrations to take place. The likely result is that international NGO groups will be given a designated area to scream and shout. So we have a situation here where locals dont have the right to protest in their own country, while foreigners are able to do that, Mr. Chee marvels. Likewise, Singaporeans cant organize freely into unions to negotiate wages; instead a National Wages Council sets salaries with input from the corporate sector, including foreign chambers of commerce. [16] All these tensions will erupt when strongman Lee Kuan Yew dies. Mr. Chee notes that the ruling party is so insecure that Singapores founder has been unable to step back from front-line politics. The PAP still needs the fear he inspires in order to keep the population in line. Power may have officially passed to his son, Lee Hsien Loong, but even supporters privately admit that the new prime minister doesnt inspire confidence. [17] During the election, Prime Minister Lee made what should have been a routine attack on multiparty democracy: Suppose you had 10, 15, 20 opposition members in parliament. Instead of spending my time thinking what is the right policy for Singapore, Im going to spend all my time thinking whats the right way to fix them,

to buy my supporters [sic] votes, how can I solve this weeks problem and forget about next years challenges? But of course the ominous phrases buy votes and fix them stuck out. That is the kind of mistake, Mr. Chee suggests, Lee Sr. would not make. [18] Hes got a kind of intelligence that would serve you very well when you put a problem in front of him, he says of the prime minister. But when it comes to administration or political leadership, when you really need to be media savvy and motivate people, I think he is very lacking in that area. And his father senses it as well. [19] However, the elder Mr. Lees death he is now 82 is a necessary but not sufficient condition for change. Another big factor is how civil society is able to use new technologies to bypass PAP control over information and free speech. The government has tried to stifle political filmmaking, blogging and podcasting. Singapore Rebel, a 2004 film about Mr. Chee by independent artist Martyn See, was banned but is widely available on the Internet. [20] Meanwhile, pressure for Singapore to remain competitive in the region has sparked debate about the governments dominant role in the economy. Can a topdown approach promote creativity and independent thinking? The need for transparency and accountability also means that Singapore will have to change. That is the source of Mr. Chees optimism in the face of all hissetbacks: I realize that Singapore is not at that level yet. But weve got to start somewhere. And Im prepared to see this out, in the sense that in the next five, 10, 15 years, time is on our side. We need to continue to organize and educate and encourage. And it will come. [21] He doesnt dwell on his personal tribulations, but mentions in passing selling his self-published books on the street. That is his primary source of income to feed his family, along with the occasional grant. As to the charge of wanting to be a martyr, once he started dissenting, he found it impossible to stop in good conscience. The more you got involved, the more you found out what theyre capable of, it steels you, so you say, No, I will not back down. It makes you more determined. [22] Perhaps its in his genes. One of Mr. Chees daughters is old enough that she had to be told that her father was going to prison. She stood up before her class and announced, My papa is in jail, but he didnt do anything wrong. People have just been unfair to him.[emphasis added]