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This article was first published on Yawning Bread and republished here with permission (slightly edited).
In a landmark judgement from the High Court, Justice V K Rajah not only dismissed the appeal of an employer who caused great suffering to over 600 foreign workers, but stated for the record that employers who “persistently” mistreated their workers, or even engaged in “a single serious transgression” should be jailed.
In so doing, he gently chided the prosecution for not appealing the light sentences meted out by the magistrate in a lower court. If the prosecution had appealed, he would have increased them, the judge said.
Having lost his appeal, Paul Lee Chiang Theng will now have to serve his four weeks’ sentence. He has already paid the fine.
Mohamed Kamaluddin, one of the over 600 workers, died as a result of the Paul Lee’s neglect.
Here is a video made by Shelley Thio, and executive committee member of Transient Workers Count Too around the time the workers appealed for help when a few of them of them came down with chicken pox in their crowded quarters.
Paul Lee registered two companies in 2008. Goldrich Venture was incorporated in March 2008 and Gates Offshore in May the same year. He had received assurances from a shipyard, Halcyon, that there would be large projects in hand.
Under Goldrich, he brought in 187 workers, the bulk of whom arrived between April and July 2008. Even though these workers had no work — the early promises from Halcyon did not mterialise — he brought in a further 431 workers under Gates Offshore, most arriving August to November.
The 618 workers from Bangladesh were housed in unacceptably crowded and inadequate spaces, as you would have seen from the video. They reported that they got only two meals a day. Most crucially, they had no work, and no pay.
Also evident from the video was the attitude of the police. According to the men interviewed, the police had been called several times; they came, took a look and went off each time. Until someone died.
Paul Lee Chiang Theng (right) faced a total of 100 charges under the Employment of Foreign Manpower Act (EFMA), to wit:
Later, at the appeal stage, Justice V K Rajah noted that “Although the Appellant had failed to pay salaries to most of his 610 workers, the Prosecution only charged the Appellant with regard to 73 workers with the Appellant pleading guilty to 24 of the salary charges and the other 49 salary charges taken into consideration for the purposes of sentencing.” The same could be pointed out about the accommodation charges.
Lee had been sentenced by the lower court thus:
Not wanting to go to jail, Lee then appealed against the prison sentence.
Salaries all paid up, according to Lee
Justice V K Rajah noted that after the case came to light, Lee “was able . . . to pay all the salaries, the transport cost of the repatriation, and an additional cash allowance of $500 per worker.” The cash came from insurers, to which Lee is now indebted, but here’s the funny thing — the figures cited by the judge amounted to only $1,445,200. Divided by 618 workers, it meant just $2,338 per worker.
If one deducts from there the $500 ex-gratia payment and the cost of airfare back to Bangladesh (about $800), that leaves just $1,000 for salaries per worker. On average, the workers had been in Singapore for about five months (some as long as nine months), so it seems to work out to $200 per month per worker in salary. This does not sound right.
High court’s observations
As noted above, the appeal judge rejected Lee’s appeal, affirming the 4-week jail sentence. The fines levied by the magistrate’s court were not under appeal.
What is noteworthy is that V K Rajah made a number of observational statements in his written judgement (Click here for full version. Ref: Lee Chiang Theng vs Public Prosecutor 2011, SGHC252), which may be useful in future cases for sentencing purposes. These include:
22. On appeal, the Appellant argued that he never profited from the workers, but in fact, suffered heavy financial burdens in paying for the workers’ lodging, food and allowances. He claimed that the workers were not paid salaries because there were no jobs for the workers and this was, he alleged, a factor beyond his control.
This is a common excuse used by employers, who often take the position that when their employees are not assigned any work, no wages are earned. This is illegal. There is still the basic salary that has to be paid. Moreover, employers often pro-rate the monthly basic salary by the number of days that they had work for their men. Foreign workers often tell TWC2 volunteers that in such-and-such a month, the boss didn’t assign work for, say, 16 or 17 days, and then cut their basic salary by 16/26 or 17/26 (assuming 26 weekdays in a month). This too is illegal.
The appeal judge made it clear that Lee, as employer
28 . . . was legally bound to pay the salaries of the workers that he brought into Singapore regardless of whether Halcyon actually provided jobs for them.
It was a point the judge reiterated further down in his written decision, saying, that the welfare of workers
34 . . is a legal responsibility that cannot be shirked or excused by a deteriorating economic climate or by defaulting business partners. This legal responsibility is even more significant when the foreign workers are of particular vulnerability, ie, where they are unskilled workers with little bargaining power and unable to fend for themselves.
The judge then observed, and in doing so, provided guidance for future cases:
33. As there is a lack of clear precedents regarding the consequences arising from the commission of the offences under the EFMA, it is important to emphasise that employers who persistently fail to discharge their legal responsibilities towards foreign workers will ordinarily have custodial sentences imposed on them. I ought to also emphasise that a single serious transgression in relation to this genre of offences might also attract a custodial sentence. When precisely the custody threshold is crossed will necessarily have to be fact centric. The seriousness of the offence will of course be exacerbated when a large number of foreign workers are brought in and the employer fails to fulfil his legal responsibilities towards them. Other possible aggravating considerations are, inter alia:
(a) a persistent failure by an employer to discharge his responsibilities, eg, the employer has been in continuous breach for an extensive period of time with no efforts of rectification,
(b) an employer’s failure to discharge its responsibility that renders the employee susceptible to physical harm or otherwise results in a situation that compromises the worker’s overall welfare or well being, and
(c) an employer’s cumulative commission of various offences under the EFMA or different conditions in the work permit with regard to the same worker (eg, failing to pay the salary and housing the worker in unacceptable conditions).
The appeal judge took the opportunity to express his disagreement with the lenient sentences given by the lower court. With respect to the accommodation offences, for which Lee was only fined,
39 . . . I viewed the Appellant’s failure to discharge his obligation in providing acceptable accommodation much more seriously [than the lower court] – such breaches that expose and cause physical harm to one’s employees deserve a custodial sentence to reflect the abhorrence towards such offences. In my opinion, had the Prosecution appealed, the accommodation charges would have attracted a custodial sentence in order to be commensurate with the severity of the harm caused and the level of general deterrence required.
With respect to the salary offences, the jail sentence for which was the subject of appeal,
41. Therefore, it could not be said that a sentence of one week’s imprisonment per charge with four charges to run consecutively was manifestly excessive. Indeed, given the number of workers involved here the sentence ought to have been heavier.
In conclusion, Justice V K Rajah emphasised that employers of foreign workers have serious responsibilities and
42 . . . A serious failure to discharge these responsibilities, ie, in relation to the payment of salaries; the statutory levies due; or the provision of suitable accommodation will ordinarily attract a custodial sentence.
And then ruled that the magistrate’s lenient sentences should not be used again as guiding precedents.
43 . . . Perhaps I should also make plain that the custodial sentence given in these proceedings should not be viewed as the benchmark for similar offending conduct. Had there been an appeal to enhance the sentences, I would have been inclined to significantly increase the term of imprisonment.
Altogether, the appeal judge made this point — that stiffer sentences would have been appropriate — several times in his written decision. The court’s guideline for future cases could not be clearer.
TWC2 is an organization that is dedicated to assisting low-wage migrant workers when they are in difficulty. We are motivated by a sense of fairness and humanity, though our caseload often exceeds our