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| Apthorp leaves court with a female counsel after attending a previous court hearing |
A Filipina domestic helper has suffered a final setback in her attempt to get her octogenarian former employer held to account for his alleged sexual assaults on her, more than five years ago.
In a 137-page judgment
handed down late on Tuesday, Deputy District Judge David Chan dismissed the $1.06
million personal injuries claim filed by the helper, referred to only by her
initials C.B., against her former employer, 86-year-old doctor Brian Drew
Apthorp.
The judgment
drew to a close a three-year court battle waged by C.B., now 46, and her
lawyers, to get Apthorp held to account for the alleged indecent assaults he
committed against her at his home, between November 2018 and April 4, 2019.
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Her complaint
led to Apthorp being found guilty after trial for three counts of indecent
assault and sentenced to 30 months in jail in July 2021, before being
overturned on appeal at the High Court. A retrial led to him being totally exonerated
in December 2022.
In dismissing
the personal injuries suit, Judge Chan said he found C.B.’s evidence “flawed
and inherently improbable” that he was not convinced that the sexual abuses
that she alleged did happen.
The judge said
he was “equally unimpressed” with the defendant’s evidence, but to a lesser
extent as compared to that of the plaintiff, which he described as full of inconsistencies
and self-contradictions, which bordered on “improbabilities and absurdities.”
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C.B. had claimed
that the elderly doctor used deception and threats to make her agree to a pre-employment body check and pap smear on
Nov. 11, 2018, during which her breasts and nipples were fondled and her
genitals probed with his fingers and a metal object.
Later, after she
signed up as his helper, he allegedly forced her to give him daily massages and
weekly whippings while fondling himself and committing other sexual acts. These
sessions happened about 100 times by her reckoning, but could only provide
details and evidence for three of them.
Commenting on
this, the judge asked why C.B. still signed the employment contract with Apthorp
if she felt disgusted by the body check that he allegedly forced on her before
signing her up.
He said her
explanation that she feared being deported from Hong Kong did not make sense,
nor was her claim that she needed money and the job at the time.
“I reject her
explanation that she signed the Contract, notwithstanding the Body Check
Assault, out of fear that she would be deported from Hong Kong. Equally
unattractive is her claim of impecuniosity forcing her to accept the employment
from the defendant,” said the judge.
He pointed out
that C.B. herself said that there were other job offers for her at the time,
and that she realized that she could have signed up with another employer
without fear of repercussions from the Immigration Department.
In addition, the
judge disbelieved C.B.’s claim that she was dissuaded from walking out of the
job by Janice, saying she trusted the other helper as a fellow Filipina.
Judge Chan noted
from C.B.’s statements and demeanor that she was feisty and could not be easily
manipulated by someone like Janice, nor suppressed by her employer.
He cited as an
example her feud with another former helper of Apthorp called Willia and a
co-resident at a boarding house. Another was her insistence that Janice was not
her supervisor but a co-equal in Apthorp’s house, and telling a court
interpreter to “just do your job” when she felt like her statements were not
being translated properly.
In Willia’s
case, C.B. admitted telling Apthorp that she would resign if the former helper
was allowed to stay in the house with her after they had an altercation. To
appease her, the employer agreed to let her move to a boarding house while
Willia completed her task at the house.
“Her feuds with
Willia and her co-resident at the boarding house fortify my observations on her
personalities. I am not persuaded that she would unwillingly endure the sexual abuses
without standing up for herself, or perhaps even put up a fight against them,”
said the judge.
As for the three
incidents of sexual abuse which she claimed happened from November 2018 to
April 2019, the judge said she gave so many conflicting statements in both her
written claims and court testimonies that she could not be believed.
“The plaintiff’s
verbal evidences are so flawed and inherently improbable that I do not accept
that the sexual abuses did happen as she has alleged,” said the judge.
He also
questioned why it took C.B. four months after leaving her job and filing a
civil claim with the Equal Opportunities Commission in August 2019 before going
to the police, when she should have sought help from them first.
“I cannot fully
understand why she thought lodging a complaint to the EOC and a report to the
police are mutually exclusive so much so that she had resorted to the latter
only after her quest for a settlement with the defendant via the former had
failed. Such approach contradicts with her goal to seek justice against the
defendant, not only for herself, but for his other victims, if any,” said the
judge.
He also found it
improbable that C.B. would not tell anyone about the alleged indecent assaults,
including her common-law partner in the Philippines, a close friend in Yuen
Long or her churchmates.
However, the judge
also questioned Apthorp’s motive in conducting the body check, as he did it
without anyone, particularly a nurse, in attendance, as is the required
protocol in medical practice.
He also dismissed claims made by Apthorp and
his counsel that he was in the early stages of Alzheimer’s disease that he
could not remember the details of what had transpired during the time that C.B.
was in his employ.
Over objections
from the defence counsel, the judge allowed the showing of two videos showing
Apthorp having sex with Janice and another previous Filipina helper, Chris,.
He also allowed
the showing of videos of the massage sessions between C.B. and Apthorp, which purported
to show the alleged indecent assaults.
On these, he
said, “Alas, in spite of having allegedly performed the 1st to 3rd sexual demands
for close to 100 times, the plaintiff could not catch the defendant red-handed
even on one occasion,” said the judge.
He ordered that
costs be paid by the plaintiff to the defendant, while the plaintiff’s own
costs should be taxed in accordance with the 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.
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