Relatives of Filipina DH who died in Shenzhen allowed to give video testimony

By The SUN

 

The truth about Lorain Asuncion's death 5 years ago may soon be found 

More than five years since Lorain E. Asuncion was found dead after falling from the apartment building in Shenzhen where her employer’s father lived, a case filed by her sister seeking employees' compensation over the death is about to be heard.

In a decision handed down on Friday, Oct. 14, District Court Judge KC Chan granted an application by Jenevieve Asuncion Javier to allow her and two other relatives to give testimony in the case via video link, despite the opposition by Lorain’s employer, Gu Huai Yu.

But in allowing the application, Judge Chan directed Javier to take care of arranging the video links for her and her two witnesses, and that a video clip of each of the facilities that they will use be provided before the pre-trial review to ensure they provide an atmosphere of solemnity to the occasion.

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He also ruled that Gu, within reasonable bounds, may ask the witnesses to move the camera around to show the surroundings to ensure that there are no persons or “undesirable matters present” which may affect the fairness of the trial.

Apart from Javier, who lives in the Philippines, the two other witnesses are her two aunts, Susan Dichosa Escorial and Justina Yap Escorial, who both moved to Alberta, Canada after working as domestic helpers in Hong Kong.

All three cited the great cost it would entail if they were to fly to Hong Kong to give evidence, especially amid the current travel restrictions due to the pandemic.

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In his ruling, Judge Chan said the main issues at the trial would be (a) whether the incident occurred in the course of employment, and (b) whether Lorain fell down accidentally or committed suicide.

Lorain was found dead on July 24, 2017, having fallen from a multi-storey residential building in Shenzhen. She was then 28 years old. 

Javier, as applicant, claims that Lorain had told her and their two aunts that she was taken occasionally by her employer to work in the Mainland, and that the deceased was not inclined to commit suicide.

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Gu maintains Lorain occasionally went to the Mainland as a “travel companion of his family” and that just before her death, had asked to be taken across the border to be such a “travel companion.”

The insurer, Blue Cross (Asia-Pacific) Insurance Limited was named as second respondent, but denies liability on the ground, among others, that the incident occurred outside the territorial coverage of the insurance. The proceedings against the insurer has been stayed for the time being.

Based on her witness statement submitted to the court, Javier, who is 34, is expected to give evidence on Lorain’s personal background, employment history and state of mental health. She will also speak about conversations she had with Lorain, particularly those just before she died.

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Susan, who is 53, was the one who communicated with Lorain the most. She had included in her witness statement 27 pages of screen captures of messages she had with the deceased from mid-October 2016 to July 18, 2017, or six days before Lorain was found dead.

Justina, who is 39, wrote about meetings she had with Lorain in April, May and June of 2017 - and particularly the one they had on July 22, 2017, which was the day before the deceased went to Shenzhen and two days prior to the discovery of her death.

All said they could not afford to travel to Hong Kong to give evidence during the trial.

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Javier, who lives in the Philippines, is a full-time mother taking care of her children. Her husband is a farmer earning about Php30,000 a month (about HK$4,300). The cheapest estimate for her trip, including air ticket and hotel accommodation for seven days, would cost about HK$,800 which her family cannot afford.

Susan and Justina now both live in Alberta, Canada. Susan is a live-in caregiver while Justina works as a meat-packer and looks after two teen-age children who are attending school. Both say they cannot get off work, and pay the estimated $15,800 needed for flights and hotel accommodation in Hong Kong.

Judge Chan found these grounds reasonable, especially since Legal Aid would not cover the costs of their travel to and from Hong Kong.

“I consider the costs estimated by the 3 witnesses are very modest (if not under-estimates) and without any exaggerations,” said the judge. 

“Their personal circumstances deposed to in the Affidavit are detail.  Moreover, from what they say in their witness statements it seems to me that they enjoyed a close relationship with the Deceased, such that I am inclined to accept what is said in the Affidavit that the 3 witnesses all wish very much to attend trial to seek justice and remedy for the death of the Deceased.”

Refusing leave would stifle the applicant’s claim, added the judge.

Further, he said the court has already had many opportunities of receiving evidence and observing witnesses by video-link and has become experienced and apt in assessing witnesses through this medium.

The judge ordered Gu to pay the costs of the proceedings, saying he should not have contested the application in the first place.

Evelyn Tsao, of Patricia Ho & Associates, on directions by Legal Aid, acted for the applicant while Toni Y T Chan, instructed by Francis Kong & Co, Solicitors, appeared for Gu.

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Justice elusive for family of Filipina who fell to death in Shenzhen

By Vir B. Lumicao 

Lorain's death renewed calls to stop employers bringing their helpers across the border

Nearly four years after Filipina domestic helper Lorain Asuncion fell to her death in the southern Chinese city of Shenzhen, her family’s search for justice has gone nowhere, as her employers cannot be found.

Only a little money may be in store for her relatives, after an insurance company from which the employers had taken cover for the 28-year-old worker agreed on mediation to settle claims filed as a result of her death.

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This was disclosed today, Mar 26, by a lawyer representing the family of Asuncion, whose badly injured body was found in a flower bed outside a building at the Vanke No.5 Garden residential estate in Shenzhen on July 24, 2017.

Three autopsies conducted on her remains concluded that there was no foul play involved, indicating suicide.

Evelyn Tsao, a partner at Patricia Ho & Associates law office in Wanchai, said Asuncion’s Chinese male employer Gu Huaiyi is no longer at his contractual address at 10B, One Silversea, Tai Kok Tsui, Kowloon and at his known addresses on the mainland.

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Tsao was assigned by human rights lawyer Patricia Ho as the solicitor in charge of the civil claims filed on behalf of Asuncion’s family at the District Court.

Tsao says an insurer has agreed to mediation to settle the claim

Tsao said Blue Cross Insurance HK, the insurer, is agreeable to mediation. She said the law firm had plans to seek compensation from the Employees Compensation Assistance Fund Board but before they could go to the Fund Board, the insurer said it would defend the proceedings. Just very recently Blue Cross suggested mediation because they are inclined to settle the case, Taso said.

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This was the same reason given by the Hong Kong Labour Department when it declined to investigate Asuncion's death.

Tsao said she could not say yet how much how the settlement would amount to, as the parties have yet to agree on a date for mediation.

Earlier, Ho said that the case was moving towards mediation, with a still undetermined amount to be paid to Asuncion’s beneficiaries to settle the claim.

She said the money would likely come from the Employees Compensation Assistance Fund, which covers payments relating to work-related injuries or death which a court may rule as payable by employers, as well as legal costs.

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“But there would be no justice for Lorain as her employers cannot be found to take responsibility for her death,” she lamented.

Ho laments that justice won't be served Lorain until her employers are found

Asuncion’s sister Jenevieve A. Javier echoed Ho’s sentiment. She said in a message to The SUN that the employer should have at least appeared in court to show good faith, instead of fleeing from his responsibility.

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On July 23 last year, the third anniversary of Asuncion’s death, the District Court issued summons to Gu in his last known address at One Silversea, after he ignored several notices for hearings. But he never responded.

Gu, then 47 years old, was arrested by the police shortly after Asuncion’s death in 2017, along with his  32-year-old wife surnamed Liu. But they were later released, with the police citing “lack of evidence” to support a charge against them.

(For more insight into this case, please read: https://www.sunwebhk.com/search?q=lorain

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Employers of OFW in Shenzhen death fall still no-show in court

By Vir B. Lumicao

Nearly 3 years since Lorain fell to her death in Shenzhen, her employers have avoided any responsibility for her death

A Chinese mainland couple who employed Lorain Asuncion, a Filipina domestic helper who plunged to her death nearly three years ago from a residential tower in Shenzhen, has disappeared.

This became apparent when a compensation claim brought by Asuncion’s family against Gu Huaiyu and his wife, Ms Liu, resumed in District Court today, Jun 5.

Solicitor Patricia Ho, who represented the Asuncion family, said that for the past several months, her office had been trying to find Gu, 49, and Liu, 34, but to no avail.

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“We’ve been trying to contact them, but we have not found them. They simply disappeared,” Ho said at the hearing of the employee compensation claim filed by Asuncion’s elder sister, Jenevieve A. Javier.

Gu and Liu have not been heard from since Asuncion fell to her death a day after she was told by her employers to follow them to Shenzhen in July 2017.

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“As it is, we can’t move forward with the case because the employers are not around,” Ho said.

However, a representative from Blue Cross Insurance Co, with whom Asuncion was apparently insured by her employer, was in court.

The District Court in Wanchai will hear the case again on Jul 24

Judge Katina Levy adjourned the hearing until Jul 24 to give Ho and the insurance company time to prepare documents relating to the compensation claim.

The case has been stuck in District Court for the past several months because the employers have not surfaced. The couple was also not in court in the previous hearing in January.

Gu and Liu had lived in Hong Kong where they signed the employment contract with Asuncion, but crossed the border on long weekends to spend time with Liu’s father in Longgang, a district of Shenzhen.

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It was from the 22^nd floor flat of Liu Heping that Asuncion fell to her death on Jul 23 or 24, according to Shenzhen police.

Gu and Liu were arrested on Aug 17, 2017 and held on a charge of conspiring to defraud Hong Kong Immigration by claiming Asuncion would work only in the territory.

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But nearly a year later, on May 7, 2018, they were released after investigators said there was not enough evidence against them.

This was even after the police discovered that the couple had taken Asuncion across the border four times in the nine months that she had served them.

The Hong Kong Labour Department has not conducted its own investigation, citing lack of jurisdiction, as the maid died outside Hong Kong.

The authorities’ inaction prompted militant OFWs and local labor unions to stage a rally at the Labour Department last year to urge the government to stop employers from taking their helpers to work in China.

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Family of maid in Shenzhen death fall to shift claim to EC Fund Board

By Vir B. Lumicao

Lorain's employer who frequently took her to Shenzhen could no longer be located

Family members of a Filipina helper who fell to her death three and a half years ago in Shenzhen are shifting their money claim to the Employee Compensation Fund Board after their lawyers failed to get hold of the maid’s employer.

Gu Huai Yu, the Chinese male employer of Lorain Asuncion, was a no-show in District Court in the first scheduled hearing of the claim filed against him by the Asuncion family.

It was from the 22nd floor flat of Gu’s father-in-law Liu Heping in Longgang District, Shenzhen, that Asuncion fell to her death in July 2017.

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Both Shenzhen and Hong Kong police, as well as a private medico legal in Shenzhen, have ruled out foul play after conducting separate autopsies on Asuncion’s remains before they were shipped to her hometown of Baggao in Cagayan in 2018.

Solicitor Evelyn Tsao of Patricia Ho and Associates, who represented the Asuncion family, said the next recourse of her clients would be to take their claim to the EC Fund Board.

Tsao told Judge Katina Levy they would seek compensation from the Fund Board after exhausting all means to locate, and serve court summonses, to Gu.

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The judge set the next hearing for June 5 at the request of Tsao, who said she would prepare the round for shifting the claim to the EC Fund Board.

When asked outside the court how much would the compensation claim be, Tsao said it would be around $30,000.

“But that still depends on the Fund Board, which we expect to defend itself against the claim,” she explained.

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Gu and Liu were arrested on Aug 17, 2017 after they were summoned to the Hong Kong police headquarters in Wanchai, and held on a charge of conspiring to defraud Hong Kong Immigration by claiming that their maid would work only in the territory.

Police reportedly found out that the Filipina had been taken across the border by her employers four times in the nine months that she worked for them.

However, the police dropped their case against the couple on May 7, 2018, citing lack of evidence.

Ten months later, Asuncion’s family suffered another setback when they were informed by the Hong Kong Labour Department in March 2019 that it had not investigated the case supposedly because she died outside Hong Kong.

Eman Villanueva, chairperson of Filipino Migrant Workers Union, blasted Labour’s failure to investigate, saying it “sends the message that once a foreign domestic worker is sent out of Hong Kong to work elsewhere, the employer is no longer accountable to her.”

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Fight for Lorain

One can only imagine what was going through the mind of Lorain Asuncion on that sad night in Longgang, Shenzhen, 19 months ago. Her sister says Lorain was unhappy that she was left there by her employers while they went off somewhere.

She was in a strange place, working for the female employer’s father she could hardly communicate with, so she was understandably sad, even resentful. But, says her sister, not lonely enough to have jumped off the old man’s 22nd floor flat.

That part we may never be able to verify, for three autopsies conducted on her remains did not indicate foul play. In short, it was likely she took her own life.

Her family was forced to accept that verdict after a long and agonizing wait. It took all of four months for the three post mortems to be completed that her body had to be put in a sealed coffin before it was shipped off for burial in the Philippines.

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Sad as that was, the family had to bear more setbacks in the months that followed.

First, they received word that Lorain’s employers were released from police bail without charges being filed. That meant that after 10 months of investigation, the police in Hong Kong had determined that there was no basis to charge the employers with conspiracy to make Lorain work illegally in China.

This was despite records showing that Lorain was brought across the border four times during the nine months that she was in the couple’s employ. That, and the incontrovertible fact that she was working for somebody who was not her employer at the time she died.



But more heartache was to come. Recently, Lorain’s sister learned from the solicitor they chose through legal aid to represent them, that their claim for compensation could not proceed because the Labor Department decided not to investigate the case at all. The reason given was that Lorain’s death happened outside Hong Kong.

That reasoning makes one wonder whether the controversial case is being deliberately shoved under the carpet so it does not again stir up questions as to why Immigration seems to look the other way when migrant workers are routinely sent or brought across the border by their employers.

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One can only imagine how prevalent this practice has become, when a chat with a longtime community leader revealed she had been crossing over to the other side nearly every other month, but has never received so much as a reminder that this practice could be in breach of the law.

And yet, Immigration has reportedly started warning absentee migrant workers – those who are away more often than they are in Hong Kong – that they must stay put for at least six months each year, or risk not having their work contracts renewed.

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But, as union leader Eman Villanueva says, Labor’s inaction has more far-reaching implications than this.

By refusing to look into the events that led to Lorain falling to her death in Shenzhen, Labour is sending the signal that employers are freed of any liability as soon as they take their helper with them abroad, or across the border.



By not providing relief to Lorain’s family members, the authorities effectively abet, rather than curtail, this widespread flouting of the laws by employers.

Ultimately, the inaction could lead to hundreds, if not thousands, of foreign domestic workers being exposed to innumerable risks, not least of which is falling into depression, or harm.

There is only one way to stop all these, and that is, to conduct a thorough and impartial inquiry into the events that preceded Lorain’s death. That’s what justice is all about.

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