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| Forcing the FDH to do sexual acts amounted to forced labor & human trafficking, said the CA |
A Filipina domestic helper who was forced to do
sexual acts by her octogenarian male employer was a victim of human trafficking
and forced labour, said the Court of Appeal in a landmark ruling handed down on
Feb. 22.
The Filipina, identified only as CB, had sought to
challenge the Police’s decision to only file two counts of indecent assault
against her male employer, and exclude the more serious offences of trafficking
in persons and forced labour.
Her counsel from Patricia Ho and Associates lauded
the CA’s decision, saying the court’s findings and observations will provide
invaluable guidance to law enforcement and the Department of Justice when they
handle similar cases.
CB said that between September 2018 and April 2019
she was repeatedly sexually assaulted and exploited by her male employer, referred
to in the proceedings as “Z”. With help
from a non-government organization, CB filed a complaint to the police against
Z in December 2019.
CB provided six videos, four of which she captured
on her phone, showing her massaging and touching Z in a sexual way. The two
others she retrieved from Z’s computer, and showed two other FDHs called Janice
and Chris providing sexual services to the employer, “apparently in a routine
manner.” Z could be heard on the video telling the two women how to serve him.
CB also provided three photos which she took. The
first showed her massaging a fully naked Z. The second showed the tools which Z
asked her to use on him. The third was a page from a photo album that CB found
in Z’s bedroom, showing Asian women in “compromising sex positions.”
A woman constable, Ms. Mui, concluded that CB was a
victim of human trafficking after interviewing her. However, a senior inspector, Wan Chun Lok,
disagreed.
At no point, according to the investigation, was CB
told that she was being assessed for human trafficking.
After their investigation, the police charged Z only
for two counts of indecent assault. This prompted her solicitors to write to
the police to ask why Z was not charged with offences relating to human
trafficking, saying that “the charges did not sufficiently represent the
gravity and heinousness of the crime committed.”
The police did not reply.
Aggrieved, CB sought leave to apply for a judicial
review of the Police’s decision, and named the Commissioner of Police,
Secretary for Justice and the Secretary for Security as putative respondents.
In his judgment handed down on April 22, 2022, Judge
Russel Coleman granted CB’s application for judicial review.
The judge also granted a declaration that the
failure to consider CB a victim of trafficking in persons and/or forced labour were
linked to the absence of specific legislation criminalising forced labour.
Meanwhile, although Z had in July 2021 been
convicted after trial by a magistrate on both counts of indecent assault and
sentenced to a total of 30 months’ imprisonment, shortly after Judge Coleman’s
decision, the conviction was quashed on appeal by the Court of First Instance
on Apr 29, 2022.
In December 2022, Z was acquitted after a re-trial
before another magistrate.
In
their appeal against Judge Coleman’s decision, the respondents argued that CB
cannot properly be considered a victim of human trafficking or forced labour”,
and that “no relevant duties
of investigations arose” at all.
Ruling
against this, the CA reaffirmed its decision in the case of ZN that “a positive
duty arises on the part of the Government to carry out investigation once it is
aware, or ought to be aware, of circumstances giving rise to a credible
suspicion that an identified individual has been, or is at real and immediate risk of
being, required to perform forced or compulsory labour”.
Another
argument raised by the respondent was that there was no human trafficking
involved as Z derived no economic gain.
Again,
the CA ruled firmly against this, saying: “In our view the purpose of using
another person for one’s
own sexual gratification, without any intended economic or commercial gain, can
nevertheless amount to a “purpose of exploitation” within the definition of
human trafficking”.
The respondents
also argued that for trafficking to occur, the recruitment stage must involve prohibited
means, such as “use of force”, “abduction”, or “fraud”.
The CA
were not convinced, saying the Z’s conduct leading to CB being deceived or
misled about the nature of the services required was sufficient.
Another
ground cited by the respondents was that there could be no human trafficking as
CB was not recruited for the purpose of sexual exploitation or forced labour and
was performing FDH duties.
The CA
also rejected this argument, upholding the CFI’s finding that it was clear Z
recruited CB to perform sexual acts.
Further,
the respondents argued that CB willingly continued to work for Z, who also made
no threats against her.
In
rejecting this argument, the CA said that the “concept of menace of penalty”
has to be considered, given the vulnerability of FDHs in Hong Kong.
The
court noted that they are often female low-skilled workers from economically disadvantaged
countries, employed in a place foreign to them with language and cultural barriers,
often working alone and without the company of family and friends, but with a mandatory
requirement to live in the employer’s residence. They are dependent on their employers
for food, shelter and income, and for their continued stay in Hong Kong.
In
its ruling, the CA noted that police officer Wan took a lot of “irrelevant
considerations” when he came to the “irrational conclusion” that CB was not a
trafficking victim. He misunderstood the law when he thought there should have
been prohibited means used against the victim to reach the correct conclusion.
Further,
the Police were wrong in accepting a self-serving letter from Janice in
exculpating Z, and for not investigating Chris who was also in the videos, only
on the basis that she made no complaint.
Still,
the CA said that the errors in law enforcement cannot be attributed to the lack
of bespoke law criminalizing human trafficking and forced labour, contrary to
Judge Coleman’s ruling.
“Nor
are we satisfied that there is such a sizeable pool of like cases as to lead to the conclusion that the operational failures found in this case are a
widespread phenomenon
rather than an aberration,” said the court.
CB
was represented in the case by Senior Counsel Abraham Chan and Albert Wong, on
instruction by Patricia Ho and Associates.
The
appellants were represented by Jin Pao, SC, and Martin Ho, on instruction by
the Department of Justice.
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