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| The accused was found sweeping the floor in the house of her employer's mother |
A domestic helper charged with violating the Immigration Ordinance after being arrested by police for working in the house of her employer’s mother, has been cleared after a trial at Shatin Court.
Deputy Magistrate Tai Kwan-hang ruled Thursday (Oct. 24) that
Marivic Bumagat, 38 years old, did not breach her condition of stay-- to work as
a domestic helper only in her employer’s house as specified in their employment
contract -- when she was found to be sweeping the floor in the house of her
employer’s mother last March 26.
The Immigration Department’s complaint had asserted that Bumagat
violated the law because she performed “domestic duties…” at an address ”other
than that approved by the Director of Immigration.”
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But Magistrate Tai gave weight to the argument of Bumagat’s defense
lawyer in his summing up at the previous hearing, that the prosecution failed
to prove that although Bumagat did perform domestic duties as alleged, she did not
perform domestic helper duties for her employer’s mother.
Bumatay’s lawyer said she was found discarding rubbish and
sweeping the floor and no doubt was performing domestic work.
But the person she was doing it for was included in the
employment contract as a member of her employer’s household, and should be
served as well, he added.
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In addition, the employer’s mother did not give instructions
to her.
The lawyer also cited previous High Court rulings, which asserted
that mere working does not prove an employment relationship, and that both
parties should have fiduciary (or financial) duty and work arrangement for such
relationship to exist.
In one the judgments he cited, the court reversed a
magistrate’s ruling convicting Chinese visitors caught serving customers in a restaurant,
because the owner was a cousin.
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Another High Court decision ruled that chopping up
vegetables in a restaurant’s kitchen is not necessarily employment; there was
evidence of relationship between those charged and the owner as cousins and
friends.
In yet another judgment, the High Court reversed the conviction of a woman who was convicted for performing odd job duties, such as showing goods to customers of a shop, because there was not enough evidence to reach the inference that there was an order and following that order.
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