The SUN HK : Filipina forced to do sexual acts by employer victim of human trafficking, says CA

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.

Buksan ang mga tip

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.”

How? Pindutin ito!

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.

TAWAG NA!

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.

PINDUTIN ITO

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.