The SUN HK : Court allows Filipina's application not to be named in civil suit vs ex-employer

District Court judge told fellow Filipinos have been particularly harsh on plaintiff

A Filipina domestic worker who has filed a personal injuries claim against her octogenarian former employer has won the right not to have her full name disclosed in court-related proceedings and documents, as well as in any report by the public or the media on her case.

In a ruling handed down on Friday, Nov. 3, Deputy District Court Judge David Chan allowed the plaintiff to be named only as “CB” in all matters relating to the case she filed against retired doctor, Bryan Drew Apthorp.

While Judge Chan accepted that the order was a departure from the norm, he chose to exercise the right of the court to issue an anonymity order, “as the interest of the private lives so required.”

He cited the possibility of CB being targeted for further victimization by “haters” in the Filipino community and the public in general, as well as the devastating effects the disclosure of her identity could have on her two daughters who are unaware of the ongoing cases.

CB’s civil suit comes at the close of two trials of the three sexual assault charges she filed against 84-year-old Apthorp. The first resulted in his conviction, but after a retrial ordered by the High Court on appeal, he was cleared of all charges.

PINDUTIN PARA SA DETALYE

The civil proceedings started on Feb 5, 2021, and in the writ of summons, the parties’ names were revealed. However, during the criminal trials in Eastern Court which ended in December last year, CB was referred only as “X”.

On October 5 this year, CB filed an application with the District Court, asking that her full name be withheld from all court proceedings and documents, citing a number of reasons, including the alleged “unforgiving and cynical” comments made by the Filipino community against her during the criminal trial.

Those comments were said to have added to the mental and emotional distress that she was already suffering due to the traumas she experienced from the alleged indecent assaults.

PINDUTIN DITO!

She also claimed that the Filipino community in general is not very sympathetic to victims of sexual assaults, and the same applies to the Catholic community which she is part of.

Disclosing her name in the instant case would just continue the victim-blaming and shaming she has suffered, that she may choose to just discontinue her claim, she added.

CB also said that while she is currently employed, putting her name out in public could be fatal to her future career prospect in Hong Kong.

PINDUTIN PARA SA DETALYE

Finally, she worried about the psychological effect on her daughters, aged 21 and 16 years old, if they learned from news reports that their mother was subject to the alleged indecent assaults and exploitation. She said she has not told her daughters about the case.

No affidavit was filed on behalf of Apthorp to oppose CB’s application. But in his written submissions, the defendant’s counsel said the plaintiff failed to show that there were exceptional circumstances that would warrant a deviation from the principle of open justice. Neither did she explain the delay in filing her application.

In his judgment, Judge Chan emphasized that to deviate from the public nature of court proceedings, it is essential for the applicant to show clearly the grounds that would justify the issuance of an anonymity order.

BASAHIN ANG DETALYE

The judge then said he was not impressed by some of the arguments raised on CB’s behalf, particularly that which said disclosing her identity would be fatal to her job prospects. If this were the case, he said all employees suing their employers in the Labour Tribunal should have the claimants’ names hidden.

Judge Chan also dismissed CB’s claim that an anonymity order could ease the mental and emotional distress she suffered from negative and derogatory comments during the criminal proceedings.

“With or without her name revealed, the upcoming trial could still be reported by the media, and haters within the public/community/netizens are still going to express their hatred.. and (she) could again be emotionally distressed,” said the judge.

However, he conceded that having CB’s full identity revealed could heighten her distress as the derogatory comments will then be directed at her, and the “more conservative and/or extreme members of the public…would have a clear target for their shaming, blaming, and discriminating.”

It did not matter if the defendant was cleared of all criminal charges, added the judge, as the nature of the sexual assault allegations in the case could expose the plaintiff to further victimisation.

He also agreed that seeing their mother’s name mentioned in connection with the alleged indecent assaults could have a devastating effect on CB’s daughters.

“I see no reason why they should be put in such position,” said the judge.

Judge Chan ordered that the costs of the application be paid by the defendant to the plaintiff, with certificate for counsel, to be taxed if not agreed. The plaintiff’s own costs should be taxed in accordance with Legal Aid Regulations.

The plaintiff was represented in court by Eric Shum and Yvonne Leung (on pro bono basis), on instructions by Patricia Ho & Associates, as assigned by Legal Aid.

Edwin Choy, SC and Jacky Ho, appeared for the defendant, as instructed by Haldanes.