Cb v. Apthorp, Brian Drew
Read the full judgment text of DCPI 357/2021 on BabelCite. This District Court judgment was delivered on 23 July 2024.
1. This is the plaintiff’s claim against the defendant for personal injuries suffered, resulted from the latter’s alleged indecent assaults, during the former’s employment as a domestic helper from 5 September 2018 to 6 August 2019. The plaintiff is from the Philippines.
Cited by 3 cases · Cites 12 cases
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DCPI 357/2021 [2024] HKDC 1160 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 357 OF 2021 ——————————
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—————————— JUDGMENT —————————— INTRODUCTION 1.This is the plaintiff’s claim against the defendant for personal injuries suffered, resulted from the latter’s alleged indecent assaults, during the former’s employment as a domestic helper from 5 September 2018 to 6 August 2019. The plaintiff is from the Philippines. 2.It is common ground that, for the same allegations, criminal charges were brought by the police against the defendant, and the parties had gone through 2 trials for these charges[1]. A magistracy appeal was sandwiched between the 2 trials[2]. At the end of the second criminal trial, the defendant was acquitted of all charges. For easy reference, I will refer to these criminal trials as 2020 Trial and 2022 Trial where necessary. 3.At the trial of this action, the plaintiff was represented by counsel Mr Erik Shum (“Mr Shum”) and Ms Yvonne Leung (“Ms Leung”), and the defendant was represented by counsel Mr Edwin Choy SC (“Mr Choy”) and Mr Jacky Ho (“Mr Ho”). Mr Choy was also the lead counsel for the defendant in the 2022 Trial. 4.The defendant counterclaimed against the plaintiff, which was abandoned on the first day of trial. Upon the agreement of the parties, the counterclaim is thus dismissed with costs of the same to the plaintiff to be taxed if not agreed. The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations. 5.In their opening statements, Mr Shum and Mr Choy agreed that the disputes involved in this case are predominantly, if not solely, factual. The implied duties and fiduciary duties of the defendant respectively as an employer and a doctor taking care of the plaintiff, are undisputed. The parties have also reached agreement on the quantum of 3 heads of claim (i.e., pre-trial loss of earnings, accommodation and living expenses, and travelling expenses[3]), subject to the Court’s findings on the issue of liability. Hence, majority of the trial time was spent on examination of the parties. Consequentially, much ink will be spilt on the parties’ evidence and discussions on the same in this Judgment. THE PLAINTIFF’S PLEADED CASE 6.Per her Statement of Claim (“SOC”), the plaintiff separated the alleged indecent assaults into 4 categories, namely:
7.The said indecent assaults are hereinafter collectively referred to as the “Sexual Abuses”. 8.The SOC begins with the introduction of the parties and the defendant’s residence. The plaintiff was 40 years old when she started her employment with the defendant, the latter a retired medical doctor. She resided at the defendant’s house in Shouson Hill (the “House”) at the material times. 9.The House is a 3-storey building, with the master bedroom located on the second floor (the “Master Bedroom”), a study room (the “Study Room”) and an office (the “Office”) on the first floor. Ground floor of the House is where the kitchen and the servant’s room (where the plaintiff slept in) are located. Employment 10.In August 2018, the plaintiff saw an online advertisement, under which the defendant sought to employ a domestic helper. She attended an interview on 2 September 2018 with the defendant at the House (the “Interview”). After the Interview, the defendant asked her to start work immediately. Despite such request, the plaintiff only started working for him on 5 September 2018. 11.Pausing here, the plaintiff signed a document entitled “Duties Expected of Domestic Helper” during the Interview (the “List of Duties”)[4]. In addition, although she started working on 5 September 2018, the plaintiff did not sign her employment contract with the defendant until 17 September 2018 (the “Contract”)[5], and obtained her visa working for him on 28 September 2018. Under the Contract, the plaintiff would receive a monthly salary of HK$5,000. 12.After commencing her work at the House, the plaintiff initially worked with another foreign domestic helper, Ms Janice Villaneuva (“Janice”), whom was already working for the defendant and was soon to leave the employment. The plaintiff was to replace Janice as the helper for the defendant. From September to November 2018, Janice acted as the plaintiff’s supervisor, and would instruct the plaintiff on the daily duties. The Body Check Assault 13.On 11 September 2018, a date after she had started working for the defendant but had yet signed the Contract, the plaintiff was called to the Office by the defendant. She was then brought into the Study Room, where the defendant showed her a document entitled “Health Declaration” (the “Health Declaration”)[6]. The plaintiff said that the defendant then asked her, and she answered, each question listed under the Health Declaration. After that, she signed on the Health Declaration, whilst the defendant also signed on it as a witness. 14.The plaintiff was then instructed to go to the Master Bedroom. She queried the purpose of it; the defendant simply asked her to trust him. It was only when both reached the Master Bedroom that the defendant told her that a body check would be performed. However, the scope of the body check was not explained to her, nor did she consent to it. The defendant then directed her to take off her clothes and lie on the bed. At the time, the plaintiff was wearing a short-sleeved T-shirt, shorts, and undergarments. 15.At this juncture, the plaintiff felt baffled by the need to undress. Her previous experiences told her that she would have to receive body check when starting a new employment, but none of these procedures required her to take off her clothes; and the examinations were performed in clinics. 16.Notwithstanding her reservations and fear of what was to come, she remained mute, as she trusted that the defendant, a retired doctor, would conduct a proper body check on her. She was wrong, as the Body Check Assault happened in the following manner: -
Sexual Massages 17.The plaintiff explains that, as part of the daily routines, full-body massage would be performed by the domestic helper on the defendant every day at 9 a.m., inside the Master Bedroom. Janice, who performed the massages prior to the arrival of the plaintiff and until her departure in early November 2018 [7], told her the basic procedures (and demonstrated to her on one occasion how to do it), details of which has been pleaded but unnecessary to be repeated here. Suffice it to say they are admitted by the defendant in his Defence and Counterclaim (“D&CC”) at §22. Of note, however, is that the defendant would be completely naked during the massages. The plaintiff said she inquired with Janice as to why the defendant had to be naked. Janice replied simply that the defendant always felt hot. 18.After Janice’s departure, the plaintiff started performing the massages on the defendant, until the end of March 2019. During these 5 months, she had massaged the defendant for over 100 times. They were not uneventful, as the defendant gradually made sexual demands to the plaintiff. 19.The plaintiff complains that, performing the massage with the defendant completely naked, caused her to be exposed to his sexual organ at close quarter. Then came the sexual demands: -
20.Though feeling disgusted by the Sexual Massages, the plaintiff dared not disobey the defendant. She elaborates that on one occasion when she rejected his demands, she was made to perform heavy manual labour at the garden as punishment. The defendant further threatened her by saying: “if you do not want me to get angry, help me empty my balls”. On another occasion when the defendant was displeased with the plaintiff, he threatened to punish her by stripping her naked and to beat her. In spite of such threat of punishment, the defendant also tried to seek the plaintiff’s written consent before dishing out the punishment, which was refused by the plaintiff. Despite not carrying out with his intended punishment on the plaintiff, this had nonetheless instilled fear in her mind. The Whipping Incidents 21.The plaintiff describes these as masochistic sexual acts, which took place on every Thursday between late November 2018 and April 2019, in addition and prior to the daily massages. There were 19 Whipping Incidents during the said period. The plaintiff pleads the following particulars about the Whipping Incidents: -
Video Watching Incident 22.Even though the plaintiff pleads that the defendant repeatedly made her watched indecent videos, particulars of the Video Watching Incident suggests that it was only on one occasion when she indeed watched the video. 23.She narrates that, since mid-November 2018, the defendant had on 2 occasions wanted her to watch a video of Janice. The plaintiff refused these invitations, as she suspected that it was an obscene video. 24.Then, also in November 2018, the plaintiff was called to the Office. When she arrived, the defendant was playing a video on his computer, and he demanded her to stand still and watch it with her. The video lasted for 20 minutes, which recorded Janice masturbating the defendant. 25.Relying on these Sexual Abuses, the plaintiff says that the defendant was in breach of his implied duties as her employer and a doctor. In addition, the Sexual Abuses constituted sexual harassment within the meaning of section 2(5) of the Sex Discrimination Ordinance, Cap 480 (“SDO”). They are also in contravention of sections 23(2), 23A(1), 40(1) and 40(3) of the SDO. Assistance sought; termination of employment 26.The defendant went abroad for 6 months starting from April 2019. Seizing such opportunity, the plaintiff sought assistance from non-governmental organisations in around May 2019. 27.Although the defendant was not in Hong Kong, he had rented out the House to a tenant. The plaintiff was required to remain working at the House during his absence. It was on 27 July 2019 that the plaintiff decided to terminate the Contract by giving 1-month notice to the defendant via email[8] (the “Resignation Email”). Nevertheless, she was unable to serve out the notice period, as the defendant dismissed her summarily on 6 August 2019 by way of a letter dated 5 August 2019 (the “Dismissal Letter”), citing the reason that she had been absent from work for the previous 10 days[9]. 28.On 13 December 2019, the plaintiff reported the Sexual Abuses to the police, which led to the 2020 Trial and 2022 Trial. 29.For the Sexual Abuses she had endured, the plaintiff suffered from psychiatric and psychological problems; and based on these she claims for PSLA, Pre-trial Loss of Earnings, Medical Expenses, Travelling Expenses, and Loss of Earning Capacity. For the Sexual Abuses, she also claims Aggravated Damages, Exemplary Damages, and Accommodation and Living Expenses. Grounds and particulars of these claims, regardless of my finding on the issue of liability, will be provided later in the quantum section of this Judgment. THE DEFENCE 30.I need only deal with the defence for reason provided in §4 above. 31.To begin with, there is no dispute as to the employment relationship between the plaintiff and the defendant, the Interview, and the settings of the House. He does not admit, however, that he had asked the plaintiff to start work immediately after the Interview; nor does he admit that she started employment on 5 September 2018. 32.The defendant denies that he is a retired doctor. He avers that he is still on the General Register under the List of Registered Medical Practitioner published by the Medical Council of Hong Kong[10]. 33.As aforestated, the defendant has no quarrel with his implied duties as an employer and a doctor. That being so, he denies that he had abused his position of power as an employer and his special position of trust as a doctor. Nor had he taken advantage of the plaintiff’s vulnerability as a foreign domestic helper by committing the Sexual Abuses on her. The Body Check Assault 34.In a nutshell, the defendant admits that he had asked the plaintiff to attend the Office, and he then brought her to the Study Room. He did show her the Health Declaration, and asked her questions listed thereon. The plaintiff signed on the Health Declaration; he also signed on the same as a witness. After this, they went to the Master Bedroom. That is the end of their agreements under this head. 35.The defendant asserts that the body check was conducted with the consent of the plaintiff, which she gave voluntarily. This is evidenced by her signing on the Health Declaration. He had also explained the procedures and scope of the body check to the plaintiff. The defendant adds that there was neither unwillingness nor complaints from her as to the body check. 36.Against what is said in the above, the defendant denies that the plaintiff had queried the purpose of going to the Master Bedroom. There is no truth that he had asked her to take off her clothes. He supplements that the body check he conducted on her was general and standard medical examination, which included the abdomen, lungs, breasts, and genital areas. Moreover, the plaintiff’s blood pressure was also checked. 37.As to the genital areas, the defendant says he had used tool such as speculum to examine the plaintiff’s cervix, during the process of pap smear. Before doing so, the plaintiff removed the shorts by herself. 38.Finally, he also taught the plaintiff how to perform self-examination on the breasts, after hearing that she had never learnt how to do it. The Sexual Massages 39.The defendant agrees with the basic procedures adopted for the massages as described by the plaintiff, including that he would be naked throughout the sessions. He also admits that Janice massaged him prior to her departure in November 2018. Nevertheless, he made no admission as to the plaintiff’s assertions regarding Janice taught and demonstrated to her how to perform the massage, nor their conversation about why the plaintiff had to be naked during massages. 40.Even though he concurs that, the plaintiff started massaging him after the departure of Janice in November 2018 and up until end of March 2019, he differs on her assertion that the massages took place on daily basis and for over 100 times. The defendant says that the plaintiff only started to massage him every day after deterioration of his shoulders and skin condition. He elaborates that he has been suffering from arthritis at his shoulders, and eczema on his back and legs. These were some of the reasons massaging him was set as one of her duties under condition 2(b) of the List of Duties. 41.The defendant denies existence of the 1st to 3rd Sexual Demands to the plaintiff. On the punishment alleged by the plaintiff, he refutes that doing manual work at the garden was part of the household chores that she had to undertake[11]. He rejects ever wanting, and seeking the plaintiff’s consent, to strip her naked and to beat her. The Whipping Incidents 42.He avers that there is no truth in the plaintiff’s allegation that the whipping were performed weekly and as masochistic sexual acts. It was the plaintiff who proposed to whip him; she had never refused to do so. This was adopted as a measure to monitor his weight. He would be whipped on his back and buttock whenever he gained weight. He derived no sexual pleasure from the whipping. Video Watching Incident 43.The defendant denies the Video Watching Incident in its entirety. Interestingly, he adds that the plaintiff had brought to him pornographic videos when she came back from vacation. Assistance sought; termination of employment 44.Understandably, the defendant makes no admission on the plaintiff’s narratives as to the assistance sought and report made to the police concerning the Sexual Abuses. That being so, he stresses on the lack of complaint made to him during her employment. 45.As to the termination of her employment, peculiarly, he also made no admission of the Resignation Email and the 1-month notice period given by her. The defendant instead focuses on the cause for her summary dismissal under the Dismissal Letter. He accuses that the plaintiff was absent from work for 6 days without permission. Her absence had led to 2 big umbrellas in the garden being damaged. Lastly, the plaintiff had stolen a fan inside the servant’s room. Videos of the defendant 46.Despite this being pleaded as part of the defendant’s counterclaim, these videos were heavily relied on as evidence in support of the plaintiff’s case at trial. The defendant takes offence to her video recording scenes in which she was voluntarily applying ointment to the defendant whist the latter was being massaged (the “Massage Videos”). PLAINTIFF’S REPLIES The Body Check Assault 47.Unsurprisingly, the plaintiff denies that she had ever given consent to the body check; nor had the defendant explained to her the scope and procedures of it. She says that the defendant did not check her blood pressure, or taught her how to conduct self-examination of the breasts. The plaintiff rejects the allegation that she removed the shorts by herself. The plaintiff also adds that at no time did the defendant inform her of the results of the alleged body check. The Sexual Massages 48.The plaintiff rejects the defendant’s assertion that he was massaged on need basis; she reiterates that the Sexual Massages were performed on daily basis. Notwithstanding condition 2(b) of the List of Duties, the Sexual Massages exceeded the scope of massages described therein. Moreover, condition 2(b) should not be construed as a limitation or exclusion of liability on the part of the defendant. The Whipping Incidents 49.In gist, the plaintiff denies all assertions of the defendant and repeats her pleaded case under this head. Video Watching Incident 50.The plaintiff says that she returned to the Philippines once during her employment with the defendant. On such occasion, the defendant requested her to bring to him pornographic videos, with specific instructions as to the title of the videos given to her. Termination of employment 51.Regarding this topic, the plaintiff reiterates that it was she who initiated the termination of the Contract by the Resignation Email. There is no truth in the allegation that she was absent from work prior to the issuance of the Dismissal Letter, as she had all along been working at the House. She also took the opportunity to deny responsibility for the damage of the big umbrellas in the garden, which was caused by typhoon. Moreover, she could not have stolen a fan in the servant’s room, as she packed her belongings under the surveillance of the tenants of the House. The Massage Videos 52.The plaintiff asserts that the Massage Videos captured the Sexual Massages, which she took to protect herself. She denies that she was applying the ointment on the defendant voluntarily in any of the scenes captured in the Massage Videos. KEY ISSUES AND THE APPLICABLE LEGAL PRINCIPLES 53.Broadly speaking, the alleged Sexual Abuses are disputed in their entirety by the defendant. As submitted by counsel, and I agree, the outcome on the issue of liability rests on the Court’s finding on the factual disputes between the parties. In cases of such nature, parties’ evidences, and their testimonies at trial, are factors that would tilt the balance to the favour of one side over the other. Every word they uttered would be scrutinised, and every mistake could be magnified. All of these could assist the Court in assessing the credibility and reliability of the parties’ evidences, with the outcome dictated by these assessments. 54.I do not wish to set out all the relevant legal principles relating to the assessment of a witness’ credibility and reliability. I have done so quite extensively in the case of Lee Yun Shing, The Sole Executor of the Estate of Lau Shui Kwan, Deceased v Lau Yun Chiu [12]. Suffice it to say, I have reviewed those authorities and principles when considering the parties’ evidences in our case. 55.In the present case, the plaintiff and the defendant have each filed 2 witness statements. As accepted by Mr Shum, the burden is on the plaintiff to prove on balance of probabilities that the Sexual Abuses did happen as described. I shall therefore first set out her evidence, and at the same time, highlight by italicising the salient parts of her case, and the differences between her pleaded case, her evidence as contained in the witness statements, and the testimonies she gave at trial. PLAINTIFF’S EVIDENCE ON LIABILITY 56.The plaintiff adopted her first and second witness statements as her evidence-in-chief at trial. The second witness statement was made in light of the developments at the 2022 Trial. Her evidence-in-chief Her background 57.The plaintiff started her narratives by introducing herself. She has 2 daughters with her boyfriend. Although the couple are not married, she described their relationship similar to that of a husband and a wife. 58.She started working as a foreign domestic helper in Hong Kong in 2014. She said she had been through 3 employers before her employment with the defendant in 2018. In the first 2 employments, she completed the full term of the contracts, and was complimented by her former employers. The last employer terminated her contract due to financial reasons; a favourable reference letter was given by the last employer to the plaintiff, commending on her good character. Start of employment with the defendant 59.This topic started with how she saw the advertisement on the Facebook, which brought about the Interview. The plaintiff said that, during the Interview with the defendant, he had inquired about her ability to take care of an elderly, which would involve bathing and massaging him. She thought, by massaging, it would be normal massage that was physiotherapeutic; she also thought it was to be a massage on defendant’s calves, since he was an old man. 60.As aforementioned, a List of Duties was presented to her to peruse and sign. The defendant left the Study Room whilst she was supposed to read the contents. However, the plaintiff says she signed without giving the List of Duties much thought, as she was eager to secure the employment. 61.The plaintiff was then introduced to Janice, who had worked for the defendant for 13 years. Janice explained to the plaintiff about the job. 62.Then came 5 September 2018, when the plaintiff started working at the House. She was shown around the House by Janice, who gave the plaintiff further explanations as to the various duties she would be tasked with. During their conversation, the plaintiff understood that Janice would leave her employment in early November 2018. The overlapping period, i.e. from September to November 2018, was for Janice to teach and handover the duties to her. During such overlapping period, Janice would also be the plaintiff’s supervisor. 63.The Contract was signed on 17 September 2018. The plaintiff’s employment with the defendant formally started on that day. 64.The plaintiff then described her daily duties, mostly no difference from what a domestic helper would do. However, she did have additional tasks, like doing accounting works for the defendant, as he owned a leasing company, also a flat in Lan Kwai Fong, which was leased out. Furthermore, the defendant would stay outside Hong Kong for 6 months every year. During his absence, the House would be rented out to some tenants. 65.Apart from her duties, the plaintiff gives her observations on the defendant. She does not find him acting his age (about 80 years old at the time). He was agile, active, and athletic; jogging and doing sit-ups every morning. He certainly had no problem moving around the House, including up and down the stairs. However, once the defendant was in public, he would slow his pace and walk in a lumbering manner. The Body Check Assault 66.The start of her description of this incident was largely consistent with her pleaded case (see §13 above). However, she differed on when she signed on the Health Declaration (at §§17 and 18 of her first witness statement), namely that the defendant told her to sign on the Health Declaration before asking questions. The plaintiff supplemented that she could not recall whether he did ask her all questions listed out therein. 67.The plaintiff expanded on this in her second witness statement. She said she did not have a chance to read the Health Declaration before or after signing it at the spot; she only read it when she received a copy of the same. More importantly, contrary to her pleaded case and her first witness statement, the plaintiff was able to say confidently in her second witness statement that the defendant only asked one or two questions about her health. Per her recollection, she was asked: (1) whether she was ever hospitalised; (2) whether she had any major illness; and (3) her last menstruation. The plaintiff said she forgot about these at the time when she prepared the first witness statement. 68.She also reiterated in her second witness statement that it was completely wrong to say that the defendant had asked her each question appearing on the Health Declaration. Her confirmation of this in the 2020 Trial was a mistake, due to mistranslation/misinterpretation, with the stress from giving evidence and being cross-examined at trial contributing to any ambiguity in her answer, and her failure to spot the mistakes made by the interpreter. 69.She then gave the same description as to how she was instructed to go to the Master Bedroom, and the conversation she had with the defendant on the way there. 70.Unlike her pleaded case, she did not lie down on the bed as instructed. The plaintiff said that she sat on the bed initially, against the demand of the defendant. It was on the second demand that she lied down. 71.The plaintiff repeated the pleaded query in her mind as to why she had to take off her clothes and lie down on bed for the body check. She was afraid and unsure of what was to happen, but trusted the defendant due to his medical background and his employer status. 72.The next bits of narratives were largely the same as what she pleaded: she was instructed to take off all her clothes; she did not do as instructed, but only pulled up the T-shirt up to her chest level; the defendant pulled the T-shirt up to the shoulder level, and unhooked her bra from behind when she turned her body to the left side. The differences are that, the defendant did not remove her bra. When she turned back to lie face-up, she still had the bra with her, which she had used to cover her breasts. Moreover, the defendant only pulled up the bra, revealing her breasts. 73.The description that the defendant then used his finger to circle around her nipples was repeated. Nevertheless, the plaintiff then went on to say that the defendant also played with her nipples, instead of rubbing. In addition, whilst doing so, not only was he breathing loudly as pleaded, the defendant was also said to be moaning. In her second witness statement, the plaintiff repeated what she said at the 2022 Trial, that the defendant touched her breasts in addition to playing with her nipples. She denied there being any inconsistency in her description of the acts, commenting that it was inevitable for the defendant to touch her breasts whilst playing with her nipples. 74.Then came the defendant’s command that she should take off her shorts, and her pulling down the shorts to the hip level, followed by the defendant pulling off her shorts and underpants at one go. At this juncture, she pulled down her T-Shirt, thinking that the check on her upper body was completed. However, the defendant pulled it back up to her shoulder level. There was no mentioning as to whether she pulled down her bra to cover up her exposed breasts. 75.The plaintiff’s narratives continued with how the defendant bent and spread her legs, she had her eyes closed, and felt like fingers playing around her clitoris and touching her vulva for around 2 minutes. She was terrified and knew not how to react. 76.The plaintiff then described how the defendant inserted his fingers into her vagina with elaborations. She said she felt 2 or 3 fingers being inserted into her vagina, which caused her pain, as the fingers would not get in. The defendant thrusted his fingers into her vagina again for a few times after applying some lubricant onto his fingers. She was in so much pain that she could not tell what exactly happened. However, she was able to recall that the process ended when something cold and hard being removed from her vagina. She skipped the part about a cold hard object being inserted into her vagina, and how it had stayed inside for a few minutes. 77.Pausing here, in her second witness statement, the plaintiff referred to what she said in the 2022 Trial and gave her explanation for it. At the 2022 Trial, she said the defendant had put on a glove before inserting his fingers into her vagina. This she did not mention in her first witness statement (see preceding paragraph), because she was not asked to elaborate further on how she felt. She confirmed that the defendant did have a glove on when his fingers were inserted into her vagina. 78.Once the cold hard object was removed from her vagina, and she heard that the defendant had stood, the plaintiff opened her eyes, stood up, grabbed her shorts and underpants, put them on, rushed out of the Master Bedroom, and went into the kitchen. Once she was there, she telephoned Janice. Bad connection interrupted the call, so Janice texted her and said they could talk when Janice was back at the House. 79.Pausing here, the plaintiff said that Janice was not in the House at the time when the Body Check Assault happened. In her second witness statement, the plaintiff supplemented that Janice was out to buy groceries at the time. From hindsight, she suspected that the defendant had deliberately seized such opportunity to assault her sexually. 80.They did talk when Janice returned to the House at 6 p.m. on that day. The plaintiff recounted the body check to Janice, who comforted the plaintiff, comparing the process with a pap smear. Janice said that this was part of the procedure of the employment, and the defendant had conducted the same check on her and other foreign domestic helpers. Even though the plaintiff had her reservation about Janice’s explanation, she trusted Janice, as Janice is a fellow Filipino and she had worked for the defendant for many years. 81.That being so, the plaintiff queried why the defendant gave no result of the body check to her. She felt traumatised by the experience, but dared not voiced her concern with the defendant, nor did she seek for the result of the body check, worrying that she would not be retained for the rest of the contractual term. The Contract 82.The plaintiff said that the Body Check Assault led to her contemplating resignation from the employment with the defendant. She abandoned such plan out of fear for deportation from Hong Kong, if she could not find a job here. She thus signed the Contract hesitantly. 83.She supplemented that, when she attended the Immigration Department, she inquired with an officer as to whether she could change her employer, notwithstanding that the Contract was signed. The answer was in the negative. The plaintiff said this led to her thinking that she should bear with the Body Check Assault, and try not to think about it anymore. The Sexual Massages 84.The plaintiff started this topic with repetition of the basic procedures adopted for massaging the defendant. She then described the first occasion when Janice demonstrated to her how to massage the defendant. Even though the defendant’s nudity was part of the basic procedure, the plaintiff was astonished to see him completely naked, and inquired with Janice the reason for his bareness. Janice said it was because he always felt hot. 85.The plaintiff said that, before Janice’s departure, Janice would be responsible for massaging the defendant. The plaintiff only had to do so on occasions when Janice was occupied with other matters. She started to massage the defendant on daily basis, save on her off-days and on days when there were guests in the House, after Janice left the employment. 86.I will interject here with what the plaintiff’s clarification in her second witness statement about when the demonstration happened. She related that she said during the 2022 Trial Janice gave the demonstration in November 2018. This, she clarified, was not accurate. The best the plaintiff could say was that the demonstration was given after she started working for the defendant, and before Janice’s departure in mid-November 2018. 87.She then elaborated on the 1st to 3rd Sexual Demands. The plaintiff described them as first, second and third levels in her witness statement. The 1st Sexual Demand began in late November 2018. She felt disgusted and queried why it was necessary. The defendant asked her to just do it. She did as she was instructed, but only pinched his nipples lightly. 88.A week later, the 2nd Sexual Demand was made. However, the plaintiff added that she was required to keep pinching his nipples whilst he masturbated. The plaintiff further said that, on one occasion when she prematurely stopped pinching his nipples, the defendant reprimanded her for not helping him “finish”. 89.2 weeks after the 1st Sexual Demand, the defendant made the 3rd Sexual Demand. The plaintiff tried pulling her hand away from his penis, but he was too strong. She was also afraid that, if she resisted too much, she would lose balance and fall on top of him. The plaintiff said she could not recall details of the 3rd Sexual Demand, as she had a lot of things in her mind. That being so, she remembered that the defendant made a sound before loosening his grip on her hand, and she immediately freed herself. Afterwards, she saw the defendant using a handkerchief to clean his penis. 90.The plaintiff has seemingly changed her narratives of the 3rd Sexual Demand in her second witness statement. She first recounted on what she said at the 2020 and 2022 Trials about how long the masturbating lasted. In the former, she said it was about 1 minute; in the latter, it lasted for a few seconds. In fact, she had no recollection as to how long it lasted. 91.What is also curious is that she had, at the 2020 and 2022 Trials, and in her second witness statement, narrated differently on how she escaped or removed her hand from the defendant’s penis. In the 2020 Trial, she said she was saved by the phone ranging; at the 2022 Trial she said she had simply removed her hand and left the Master Bedroom. She blamed the discrepancy on the questions of the prosecutor in the 2020 Trial. Come what may, the plaintiff confirmed in her second witness statement that, on the first incident where the 3rd Sexual Demand was made, she was shocked, so she removed her hand and left. On a subsequent occasion, the phone rang, so she used it as an excuse to leave. 92.Coming back to her first witness statement, the plaintiff said that, thereafter, she was required to perform the 1st to 3rd Sexual Demands on the defendant every day, save for Thursdays. The plaintiff added in her second witness statement that each of the 1st to 3rd Sexual Demands happened more than once. They did not represent just 3 incidents. 93.She also tried to correct the mistake she made at the 2022 Trial. At the 2022 Trial, she described the 1st Sexual Demand as having to look the defendant in his eyes, the 2nd Sexual Demand being that she had to look into the defendant’s eyes whilst he masturbated, and the 3rd Sexual Demand as her being forced to masturbate the defendant. The plaintiff confirmed that the descriptions and details contained in her first witness statement concerning the 1st to 3rd Sexual Demands are the correct versions. Nervousness had caused her to give the wrong descriptions at the 2022 Trial. Video Watching Incident 94.Sandwiched between the 2nd and 3rd Sexual Demands was the Video Watching Incident, which the plaintiff, from hindsight, considered this to be the defendant’s intention to get her prepared for the 3rd Sexual Demand. 95.Her account of the incident brought us to about 2 weeks after Janice’s departure. One day, the defendant asked the plaintiff to attend the Office. She stood on his left side, and saw him played a video chosen from the computer. He fast-forwarded the video to a certain segment, with Janice and himself in it. The defendant was naked, and Janice was seen pinching his nipple with one hand, and using her other hand to pull his penis. Seeing this, the plaintiff motioned to leave, but was stopped by the defendant; he held her hand and asked her to wait. She obeyed his command, and continued watching Janice masturbated the defendant, until she could no longer tolerate it. She said she had something to do, and went away quickly. The Whipping Incidents 96.As pleaded, the Whipping Incidents happened on every Thursday, before the daily massage. Missing from the SOC, the plaintiff said it was Janice who introduced this to her. Before Janice left the employment, she would perform the whipping on the defendant; the plaintiff played the observer role. 97.Her descriptions on how the whippings were conducted largely resembled her pleaded case, save the addition of Janice in the role of inflictor prior to her departure. She shared that the defendant’s buttocks and penis were the target of the whippings. 98.The plaintiff supplemented that, after departure of Janice, the defendant demanded to increase the sexual elements in the whippings. Before the whipping, she had to do some manipulation on his nipples to get him aroused, and to tickle his penis with a certain tool. She was also required to pull his penis from behind. 99.Unsurprisingly, the plaintiff again expressed her unwillingness to perform these masochistic acts on the defendant. She feared that she might injure him by accident. She tried resisting his commands, but was told by the defendant that the whippings were necessary to help him lose weight and to discourage him from eating too much chocolate. Incredible she found these excuses, but she acceded to his demands for the same reasons, i.e., the worry that she would be punished and she would lose her employment. Punishments on the plaintiff 100.Throughout her first witness statement, the plaintiff had repeated her unwillingness to succumb to the Sexual Abuses. She was disgusted by 1st to 3rd Sexual Demands amid the Sexual Massages, and the Video Watching Incident; she was uncomfortable with the Whipping Incidents if not sickened by the masochistic acts involved; and felt violated by the Body Check Assault. However, she had no option except to comply and endure, out of the fear of punishments and losing her job with the defendant. She also found it obligatory to accede to the command of her employer. 101.The plaintiff expanded on the punishment set out in §20 of this Judgment. She said that she was required to cut down all bamboo shoots in the garden, and to carry them to a disposal bin. She found this to be a physical ordeal, as the bamboo shoots were hard to cut, and heavy to carry. Fearing that she would face more punishments from the defendant, and submitting to his superiority as an employer, she made no complaint. 102.The plaintiff further recounted the reason for the defendant wanting to strip her naked and to beat her was due to an incident involving his friend, Emy Sum (“Emy”). Apart from ordering her to apologise to Emy, the defendant wanted to inflict the said physical punishment on the plaintiff, but did not follow through with it when the plaintiff refused to sign a written consent. The plaintiff added that she did contact Janice about this, and Janice ambiguously replied that this was how the defendant would punish his helpers. 103.Aside from the said punishments, the plaintiff emphasised that she was afraid to lose her employment, as she had a family to feed. She was the sole breadwinner for her daughters and family in the Philippines; hence, she did not want to annoy the defendant. For the same reason, she did not terminate the Contract notwithstanding the Sexual Abuses. The Massage Videos and others 104.As aforementioned (see §52 of this Judgment), the plaintiff took some videos of the defendant during massages, to protect herself. She said the decision to do so stemmed from a conversation that she had with a fellow domestic helper from the Philippines in December 2018. Since then, the plaintiff had embarked on the task of evidence collection. 105.To be precise, she took 4 videos, and in one of them, the defendant’s demand to the plaintiff to hold his penis was recorded. The plaintiff said she was requested to hold his penis in one hand, and to whip him with the other hand (the “Whipping Video”). 106.Aside from the said videos, she also took one photograph of herself with the defendant lying naked on the bed; copied 2 videos, dated 19 July 2010 and 3 September 2010, from his computer which captured him and 2 women engaged in sexual acts, one of these women being Janice (respectively defined as “1st Scandal Video” and “2nd Scandal Video”, and collectively as the “Scandal Videos”); a photograph of the tools used in the Whipping Incidents; a photograph of her diary recording the 2nd Sexual Demand; a photograph taken at a page of the defendant’s album, which contained pictures of nude women and acts of obscenity. 107.All these photographs and videos, the plaintiff said, were taken to protect herself, in case the defendant was injured during the Whipping Incidents, or when she had enough of the Sexual Abuses and decided to walk away from the employment. She appreciated that the defendant, a doctor, and herself, a foreign domestic helper, were world-apart in terms of wealth and status. She was afraid of what the defendant might do to her if she rejected his demands or left the employment prematurely. She thus hoped that the photographs and videos would help protect her from the defendant’s wrath. The Defendant: a sex maniac 108.Perhaps to make her case more convincing, the plaintiff went on to identity where the defendant stored his various pornographic videos, magazines, projector slides, and books. She piled on with the defendant’s daily routine of watching pornographic videos, once in the afternoon before his nap, and once at night before he slept. By these, and together with the Sexual Abuses, the plaintiff has presented the defendant as a sex addict, if not a maniac. 109.She closed this topic with the episode where the defendant said she brought pornographic videos to him from the Philippines. The plaintiff refuted that it was upon his instructions that she brought the videos back. 110.The plaintiff had more to say about her trip back to the Philippines. In her first witness statement, she went back to have dental surgery. However, she explained during the 2022 Trial that she went to the Philippines because her visa was completed. All these, she explained in the second witness statement, were pieces of the puzzle. She did contemplate having dental surgery in the Philippines, but abandoned it when the defendant proposed to finance the surgery, in return for her to allow herself to be beaten by him whilst being naked. At the end of the day, the plaintiff did not have her surgery, but returned to the Philippines nonetheless, as required by the Immigration Department as part of the visa condition. Her resignation; and termination by the defendant 111.With the defendant’s annual trip outside Hong Kong in April 2019, the plaintiff sought assistance from non-governmental organisation, HELP for Domestic Workers (“HELP”) in May 2019. She expressed to HELP her need for medical treatment, as she did not feel right emotionally and psychologically. HELP referred the plaintiff to another non-governmental organisation, Rainlily, for counselling. 112.The plaintiff shared her train of thoughts on how she gained courage to tender her Resignation Email. She had her hesitations, again citing the loss of income and her fear of the defendant as the reasons. Thus, she waited until his departure from Hong Kong to consider seriously her resignation, and finally made up her mind after 3 months on 27 July 2019 when the Resignation Email was sent, knowing that she would not have to face the defendant in person when she resigned. 113.The plaintiff expanded on the reasons for not resigning in spite of the Sexual Abuses in her second witness statement. She said that, as a foreign domestic helper, she did not have the freedom to change employments. If she left the defendant’s employment, she would very likely not be able to stay or work in Hong Kong anymore. In addition, she was traumatised, depressed and anxious at the relevant times. She trusted no one, nor did she want to talk to anyone. It was only after advice received from HELP that her future employment would not be affected by her resignation due to the Sexual Abuses, together with the reasons aforesaid, that she found the courage to issue the Resignation Email. 114.As aforementioned, the Dismissal Letter followed. The plaintiff recalled that she had to remove all belongings and leave the House before the deadline imposed on her in the Dismissal Letter. Pausing here, after the defendant departed from Hong Kong in April 2019, the House was rented out to a tenant, Mr Nicholas Ian Luke (“Nick”) and his wife. The plaintiff said that Nick was present and witnessed her packing the belongings, and her leaving the House. There was therefore no truth in the defendant’s accusation that she had stolen a fan from the servant’s room. The aftermath 115.The plaintiff recounted on her complaint to the Equal Opportunities Commission (“EOC”) in August 2019, and to the police on 13 December 2019, after she left the employment with the defendant on 10 August 2019. The 2020 and 2022 Trials followed. 116.She further explained in her second witness statement that she approached EOC in hope that the process would help conciliate the mental and physical anguish that she felt caused by the Sexual Abuses. If an amicable resolution was reached, the plaintiff said, it would avoid the need for her to escalate the matter by making a report to the police. She added that, as a foreign domestic helper, she found reporting to the police a daunting matter. Unfortunately, what she hoped for did not happen. In view of the stance taken by the defendant in reply to the EOC’s inquiries, the advice obtained by her, and her solicitor’s agreement to accompany her on pro bono basis in making the report, the plaintiff mustered the courage to go to the police in December 2019. 117.She had also given details on the mental illness that she suffered, the treatments she received, and how her condition improved by the result in the 2020 Trial, and regressed due to the need to go through the 2022 Trial. I shall save these for the issue of quantum. 118.The plaintiff concluded her second witness statement with refutations on the Magistrate’s remarks in his verdict, that the plaintiff was reluctant and evasive in answering questions relating to the claim for HK$169,000 via the EOC against the defendant, and this claim, during the 2022 Trial[13]. The plaintiff attributed these reactions to the lack of legal training and understanding of the Hong Kong judicial system. She found it absurd that she would try to hide something so obvious, which would only shed a negative light on her. She also took the opportunity to emphasise that money was never her focus in lodging this civil claim, but to seek justice against the defendant for the Sexual Abuses he had inflicted on her. Her evidence under cross-examination 119.At the trial, Mr Choy cross-examined the plaintiff extensively and meticulously. There is thus much evidence to cover under this head. 120.Before doing do, I wish to mention that the plaintiff was initially assisted by a Tagalog interpreter at the trial. However, I observed that on a number of occasions, the plaintiff answered the questions before translations were completed by Madam Interpreter. There were also times when she corrected Madam Interpreter as to what English words should be used. On the second day of trial, after the lunch break, Mr Shum applied for leave and time to consult with the plaintiff as to whether she required the assistance of Madam Interpreter. With no objection from Mr Choy, I granted leave for Mr Shum to do so. When the trial resumed 11 minutes later, Mr Shum informed the Court that the plaintiff had confirmed that she could give evidence in English. 121.On this point, Mr Choy had, at the start of his cross-examination, confirmed with the plaintiff about her English ability. She agreed that she could understand the contents of the SOC and her witness statements even without having the same interpreted to her in Tagalog. The plaintiff also said that she used English extensively in her works in Hong Kong, Kuwait, and Singapore. 122.For the above reasons, I allowed Mr Shum’s application, and released Madam Interpreter from her duties. Her background 123.Mr Choy had extracted more information about the plaintiff’s background by reference to the “Medico-Legal Report” prepared by psychological therapist Ms Janice Chan (“Ms Chan”) dated 28 February 2020 (the “MLR”). They are as follows: -
The Interview and List of Duties 124.Turning to the Interview, the plaintiff agreed that she was shown the List of Duties. She expressed interest in knowing what duties were listed therein, hence, she paid attention to each and every paragraph of the List of Duties. She was given time to do so. She was aware that the duties were supplementary to those usually found in the standard contracts for foreign domestic helpers. She also agreed that, per §1 of the same, she had the right to seek clarification of the duties if she could not understand them. Echoing on what she said in §123(3) above, she would like to know which part of her caregiving skills could be applied, thus she read the List of Duties carefully. 125.Notwithstanding the above admissions, she then gave answers contradictory to them. Although she accepted that time was given to her to peruse the List of Duties, she only read the contents, including her benefits, quickly without paying attention. She complained that no time was given for her to seek clarification from the defendant during the Interview, as she was soon asked to sign the List of Duties, and was brought to Janice. The duties were explained by Janice. Moreover, because Janice would do the explanation, the plaintiff did not find the need to pay attention to the contents of the List of Duties before signing it. However, she accepted that at the time, she had no idea Janice would explain the List of Duties to her. 126.Although it was so stated in §5 of her first witness statement, neither could the plaintiff recall whether the defendant had asked about her experiences in taking care of the elderlies, nor could she remember whether she had said anything about her caregiving education. She had no memory as to whether he had told her that she would have to bath him, but said that it should be Janice who had told her so. The plaintiff denied that she would expect the defendant to be naked whilst she bathed him; Janice also said nothing about the defendant would be naked when taking a bath. When asked, she refused to retract what she said §5 of her first witness statement. 127.Then came a twist; the plaintiff admitted that the defendant did request her to bath him during the Interview. However, she clarified that this happened before he gave her the List of Duties. When Mr Choy suggested that, once such request was made by the defendant, she would realise that she would have to bath him whilst he was naked, the plaintiff replied that she did not understand. Despite such admission, the plaintiff subsequently made another turn, denying that the defendant had told her that she had to help the defendant bath. She asserted that the defendant only asked her whether she was willing to assist an elderly man. 128.The plaintiff agreed that the defendant had mentioned about massaging him during the Interview. However, her understanding at the time was that she would massage his calves only. She admitted that such understanding did not stem from what the defendant and Janice had told her. 129.Mr Choy then brought the plaintiff to her meeting with Janice on that day. She said she spent over an hour (but less than 2 hours) with Janice, during which there were discussions about the plaintiff’s scope of duties and benefits. She explained that Janice only talked about these generally, without going into the specifics, especially regarding the defendant’s daily routines, habits, and needs. Janice also mentioned nothing about bathing and massaging the defendant. 130.The plaintiff agreed that Janice had asked about her abilities. However, she said nothing of her caregiving education, as Janice was more interested in knowing about the plaintiff’s experiences in bookkeeping. The plaintiff also agreed that there were other candidates for the job, but she had not tried to impress Janice with her capability. She was not anxious to secure the employment with the defendant, as she had other job offers waiting for her (see §123(7) of this Judgment). 131.She was challenged as to how so little were being discussed between her and Janice during the meeting which lasted more than an hour. In reply, the plaintiff said Janice was talking with her friend who was at the House on that day. The plaintiff denied that she had asked Janice any question about the duties. Conversely, it was Janice who asked her questions, and had repeatedly used “flowery words” to persuade the plaintiff to work at the House. Commencement of work 132.After the Interview, on the same night, Janice telephoned the plaintiff, informing the latter that she had been chosen for the job. Janice wanted her to start work immediately, which was refused by the plaintiff. The plaintiff wanted to wait a few more days, not for the reason that she had to consider the other job offers that she had, but because her younger sister was in Hong Kong, and needed help since she was terminated from her employment. 133.When asked whether she had informed her agents about her decision to accept the defendant’s job offer, the plaintiff said she had no agent. She could find a job by herself. Although she had other job offers, the plaintiff was happy with the offer from the defendant. 134.When she started her work on 5 September 2018, Janice explained to her the various duties that she would have to undertake. These duties included having to bath and massage the defendant every morning, gardening, and etcetera. The plaintiff made it clear in her answer that she was not working “under” Janice, but they worked “together”. Janice showed and explained to her what duties she had, except the daily massages performed on the defendant. Although she did see him around the House since 5 September 2018, she did not speak to him about the Contract. 135.After having sight of the online complaint she lodged with the EOC, the plaintiff confirmed that she had started staying at the House permanently from that day onward, but she had since then returned to the boarding house at times to retrieve her personal belongings. She rejected Mr Choy’s suggestion that she did not move into the House on 5 September 2018. In addition, she denied attending the House on 11 September 2018 knowing that she was to receive a body check from the defendant. The plaintiff rhetorically questioned why she would wear shorts on the day in question if she had not been living at the House. The Body Check Assault 136.The plaintiff reiterated that she did not pay attention to the clauses in the List of Duties. Hence, albeit she read the contents, she had no memory of clause 2(a), under which it was stated that the defendant would conduct pre-employment medical on her. 137.Consistent with her second witness statement, the plaintiff said she signed the Health Declaration without reading it. She added that, when she signed it, the boxes on it were not ticked. She confirmed that the defendant only asked her a few questions about her health, not every question listed in the Health Declaration. Expectedly, Mr Choy confronted such answer with her pleaded case (see §13 of this Judgment). The plaintiff, also expectedly, denied Mr Choy’s accusation that she was lying. She blamed it on the possibility that there was a lapse of memory on her part, or it could be the problem with the interpreter who translated the SOC to her. When she was pressed by Mr Choy, using her own confirmation that she did read the SOC and could understand what was written in §13 of the SOC, the plaintiff said that she was confused, and supplemented that she did not have the Health Declaration with her when she made the SOC. 138.On the last answer, the plaintiff agreed that she could provide the exact date of the body check in her complaint form to the EOC on 15 August 2019, almost one year after the Body Check Assault, as the date was stated on the Health Declaration. She agreed that she had made copies of the Health Declaration, List of Duties, and the Contract, that were filed inside a folder in the Study Room. This was done after attending HELP on 15 May 2019 and having their advice to do so; she had subsequently passed the copied documents to HELP’s volunteer, Ms Philippa Anne Salewicz (“Ms Salewicz”). 139.Oddly, when Mr Choy brought her back to the complaint to the EOC a few minutes later, the plaintiff’s memory seemed faded. She could not be certain whether she had the Health Declaration with her when the complaint was lodged. 140.Moving on to the Body Check Assault, the plaintiff asserted that she had not reviewed her first witness statement after she had signed on it. She queried why she had to review it, when the particulars of how the Body Check Assault happened were affirmed. 141.The plaintiff had no quarrel that the particulars of the Body Check Assault described to the doctors, police, experts, volunteers at HELP, and etcetera, differed from those narrated in her first witness statement. She confessed that not all details were given to HELP and the EOC, as she sought for medical assistance and justice from these organisations. Mr Choy questioned how her desire for justice would prevent her from giving full particulars of the Body Check Assault to the EOC. The plaintiff replied that she had told the police everything already. 142.Below is a list of suggestions made by Mr Choy about what happened during the body check, to which the plaintiff denied: -
143.When asked whether she knew the defendant was sexually abusing her during the body check, the plaintiff explained that she did not have that in mind, as she was shocked and scared. She simply wanted to run away. During the above exchanges with Mr Choy, the plaintiff described that the defendant played with her clitoris and vulva lustfully. She gave the same description to the doctors. In spite of the defendant showing his lust whilst touching her private part, the plaintiff did not feel sexually abused by him at that time. Again, she was shocked and scared, as she was abused. 144.Questions were asked as to the action taken by the plaintiff after the Body Check Assault. Apart from Janice, the plaintiff had told no one about the same until May 2019, when she sought assistance from HELP. Before the Body Check Assault, the plaintiff had good social life and a lot of friends in Hong Kong, including a friend who resides in Yuen Long (“YL Friend”), with whom she would gather during day-offs. She also attended church regularly as a Catholic. 145.Before going into her conversation with Janice after the Body Check Assault, Mr Choy’s cross-examination first focused their relationship. Reference to the Joint Psychiatric Expert Report (“JPER”) was made[14], which recorded her conflicts with Janice, echoing on her displeasure with Janice’s assumed role of supervisor over her (see §134 of this Judgment) and bossing the plaintiff around, when they should be equal. The plaintiff noticed Janice’s change of attitude after signing of the Contract. Janice was nice to her before, but the plaintiff suspected that this was perhaps because Janice was trying to convince the plaintiff to accept the employment with the defendant, so that Janice could be freed. She said that, after signing of the Contract, although still being friendly to her, Janice started to give the plaintiff all the works around the House, whilst Janice would talk on the telephone. Not only so, Janice also required the plaintiff to cook for her, which was outside the scope of the plaintiff’s duties[15]. 146.Returning to the Body Check Assault, the plaintiff admitted that she ran back to her room, locked the door, and telephoned Janice. They communicated for a few minutes before the call was disconnected. As Janice was in Lan Kwai Fong attending to the tenant of the defendant, and she still had to buy groceries, Janice told the plaintiff to stay at the House and wait. After about 1.5 hours, Janice returned to the House and comforted the plaintiff. Answering Mr Choy’s questions, the plaintiff said that after hearing the Body Check Assault over the phone, Janice did not suggest that the plaintiff should leave the House. Nor did the plaintiff thought about waiting for Janice at somewhere out of the House. This was so despite that the defendant was inside the House all along. The plaintiff said she trusted Janice, hence she listened to Janice and stayed inside the House, awaiting Janice’s return. Even though, at the time, she had only worked with Janice for 6 days, she had much trust in Janice, more so than her YL Friend, hence she did not turn to the YL Friend for help. Aside from these, she had never thought of calling the police, as she was scared and panicking. 147.When Janice returned to the House, they started talking about the Body Check Assault. The plaintiff confirmed that details of the same, as contained in her first witness statement, were told to Janice. As aforesaid, Janice comforted the plaintiff, and convinced her that it was nothing out of an ordinary body check, which was conducted by the defendant on all her previous domestic helpers, including Janice. Insertion of fingers into the vagina was part of the normal pap smear procedures. 148.The plaintiff repeatedly stressed that she believed in Janice, thus she agreed to stay on. On this point, she was confronted by Mr Choy, using the transcript of the 2022 Trial[16], during which she had expressly testified how she did not believe Janice’s explanation that the Body Check Assault was just a normal medical check-up. Equally, she did not believe that the defendant was performing pap smear procedures on her. 149.Pausing here, inconsistencies on her narratives of the events given to Dr Lai Tsz Him (“Dr Lai”) of the Western Psychiatric Centre, Department of Psychiatry, Queen Mary Hospital, were highlighted. In gist, the differences are as follows: -
150.On the above inconsistencies, she blamed it on Dr Lai’s misunderstanding of what she said, or it could be his typing mistake. She had conveyed to Dr Lai details of the Body Check Assault as accurately as possible. The plaintiff added that she had never seen the said consultation summary prepared by Dr Lai (“Dr Lai’s Notes”)[17], and if she had known about all the inaccuracies and mistakes made by Dr Lai, she would have asked her solicitors to correct him. 151.Mr Choy ended his cross-examination on this topic with questions concerning the plaintiff’s reason as to why she continued to work for the defendant notwithstanding the Body Check Assault (see §§82 and 83 above). The plaintiff rejected his suggestion that she had ample opportunities to cease working for the defendant before signing of the Contract, i.e. between 11 and 17 September 2018. Despite being shortlisted for other job offers, the plaintiff said she had disregarded them, because she was considering the employment offer from the defendant. The plaintiff reiterated that she signed the Contract because she trusted Janice and her manipulative words, and the need to feed her family after a lengthy break from fruitful employment. Regarding the former reason, the plaintiff elaborated that Janice had once told her that her salary would be HK$7,000 per month. This turned out to be untrue, as the plaintiff only received HK$5,000 per month as her salary. The Contract 152.Flowing from the plaintiff’s complaint about her deflated salary, she asserted that Janice lied to her. She said she was not allowed to look at the terms of the Contract; she was asked by both the defendant and Janice to just sign on it. However, she observed that the parts with information to be filled in, for example, her monthly salary under clause 5(a), were left unfilled. Janice simply asked her to fill in her personal particulars, after which the Contract was brought by Janice to the defendant. When she returned, the plaintiff saw that HK$5,000 was written down as her monthly salary. It was, according to the plaintiff, too late for her to reject the defendant’s terms of employment, as she had rejected the other offers, and made an appointment with the Immigration Department to process her working visa on even day. Despite being lied to by Janice, the plaintiff did not feel betrayed by her. The feud with Willia[18] 153.Instead of moving on to the Sexual Massages, Mr Choy, laying the foundation for his later cross-examination of the plaintiff, introduced the Court to the personal vendetta between the plaintiff and Willia, the latter being an employee of the defendant in the past. Willia returned to work at the House for about 10 days after the departure of Janice. Suffice it to say, Willia and the plaintiff did not get along, and their dispute escalated to a point which warranted Willia making a report to the Consulate General of the Philippines in Hong Kong (the “Consulate”). The plaintiff, feeling intolerable to work with Willia, requested the defendant to choose between the two, and to terminate the plaintiff if he retained the service of Willia [19]. The matter was resolved when the defendant allowed the plaintiff to leave the House and stay with her friend for 4 days, until Willia completed her tasks at the House. The plaintiff clarified that it was wrong for Ms Chan to record in the MLR that it was the defendant who made such suggestion. It was instead she who suggested it. 154.The plaintiff concluded this topic with remarks that: (1) Willia was trying to replace her; (2) Willia wanted to return to work for the defendant; and (3) Willia owed the defendant a lot of money. Finally, the plaintiff suggested that the defendant was worried that she would go to the police, if she were to live at the boarding house, for the things Willia and he had done to her. The Sexual Massages 155.Mr Choy started his examinations of the plaintiff under this head by asking her when the demonstration happened. Her first answer was that the demonstration took place after signing of the Contract, but before the defendant went for a trip outside Hong Kong in October 2018. The timing of the demonstration was later changed to sometime between 5 and 17 September 2018, i.e., on or before signing of the Contract. 156.It was the first time she saw the defendant naked, and was shocked by it. She believed Janice’s explanation as to why the defendant was naked, i.e., that he felt hot after bath. 157.She was unhappy having to massage the defendant whilst he was naked, but Janice told her that it was her duty to do so. The plaintiff added that, at this time, she had yet been told that she had to bath the defendant; Janice only told her so before the defendant returned from his trip in October 2018. 158.Contrary to her evidence-in-chief (see §85 of this Judgment), the plaintiff said that after the demonstration, she took up the primary task of massaging the defendant on daily basis. Janice would assist in this regard only if the defendant so requested, or if the plaintiff had other engagements. She denied there being any inconsistency in her evidence, and what was stated in her first witness statement was due to the misunderstanding on the part of her solicitors. 159.The plaintiff said that the 1st Sexual Demand happened after departures of both Janice and Willa. She added that once the Sexual Massages reached the third level, i.e., after the 3rd Sexual Demand was made, the level of seriousness never decreased. She was sickened by having to masturbate the defendant, and had tried to resist. However, the defendant was too strong that she could not break free. That being so, the plaintiff never once thought of the possibility that the defendant could rape her. She also admitted that the defendant, despite his strength and physical advantage over her, had never used them to force her to do anything. Neither had he used his status to achieve these purposes. Video Watching Incident 160.Mr Choy started this topic by bringing the plaintiff to her clerical duties for the defendant. She agreed that she performed these tasks inside the Office, and she had access to the files of other foreign domestic helpers previously hired by the defendant. She also had access to other materials kept inside the Office and the Master Bedroom. For instance, she was able to copy the Scandal Videos from his computer in March 2019. 161.The plaintiff revisited her first witness statement, where she had described the contents of the obscene video that she was forced to watch with the defendant (see §95 of this Judgment). Initially, she confirmed at trial that neither of the Scandal Videos was the one she watched. She was unable to locate the subject video, as there were too many videos. Her stance changed after the lunch break, when she was being confronted by Mr Choy using her answer to the police, under which she suggested that the video she watched during the Video Watching Incident was one of the Scandal Videos [20]. She said she was unable to recall what was contained in the Scandal Videos, with explanation that her initial answer above was given under confusion. On the assumption that the Scandal Videos were not the one she was forced to watch, Mr Choy suggested that the plaintiff had many opportunities to locate it. There was no clear denial of this, but the plaintiff said that when it was played, the defendant was fast-forwarding the entire video. She did not see anything in normal speed; however, she was able to identify the persons in the video and the acts they were performing. Ultimately, the plaintiff disagreed that the Scandal Videos were not the video that she was forced to watch. However, the plaintiff never told the volunteers at HELP about this, as they did not ask. The Whipping Incidents 162.The plaintiff believed in Janice when she said the whippings were therapeutic, intended to control the defendant’s weight. This was so despite that it was never taught in the care-giving course that she took. She did not realise it was to satisfy the defendant’s sexual desire until after the Video Watching Incident, and her conversation with Janice. Although whipping was not set as a task that she had to perform under the List of Duties, Janice manipulated the plaintiff by telling her simply to do as told. The plaintiff rejected Mr Choy’s suggestion that she offered to whip the defendant after the Video Watching Incident. 163.Notwithstanding her allegation that there is the Whipping Video, the plaintiff agreed that she had failed to record any video of the whippings she gave to the defendant. The plaintiff explained that she had tried to video-record the Whipping Incidents, but was caught by the defendant whilst doing so. The plaintiff wanted to try recording them again, but could not recall whether she did. Resignation and other matters 164.Due to the Sexual Abuses, the plaintiff wanted to leave the employment, but she did not resign immediately because she was trying to find another job first. When she was asked where her courage to resign amid the row with Willia had gone, the plaintiff explained that she wanted to maintain a good relationship with the Immigration Department. She supplemented that the record of a foreign domestic helper would be tarnished if she resigned. This changed when HELP assured her that it would not affect her future employment in Hong Kong. The plaintiff also stressed that, amid the Sexual Massages, she was more concerned about her mental welfare, and she recognised that she needed help with it. Despite such recognition, she did not seek help from her church, as she did not want to share with others her problems. 165.Curiously, she confessed having talked to a number of persons about the Sexual Massages, including Janice (who was in Toronto by this time), Donna[21], Ranita, and the defendant’s friend Helena[22]. She also shared the incidents with Janice’s best friend, who had suggested the plaintiff to report the matter to the police. Helena, on the other hand, told the plaintiff to keep her mouth shut unless she had evidence of the Sexual Massages. The plaintiff clarified that these conversations with Janice, Donna, Ranita, and Helena, were made over telephone calls and text messages. She kept the latter, and had given copies of the same to Ms Salewicz and HELP. The plaintiff complained that the police did not accept the text messages, despite that she had told the police about them, and had them with her on all 3 occasions when she and her solicitor attended the police station. The text messages were thus not produced as evidence at the 2020 and 2022 Trials. Equally, the plaintiff said no text messages were produced in these personal injuries proceedings, because someone, without naming who, told her they were unnecessary. 166.Staying on this topic, although she had previously worked for three employers, the plaintiff denied knowing there are organisations in Hong Kong that would render assistance to foreign domestic helpers. She repeated that she did not confide with her church and friends about the Sexual Massages, thus they had never referred her to these organisations. The plaintiff feared that, if she told her church members and friends about the Sexual Massages, they would be disappointed with her. The plaintiff did not want them to feel sorry for her. It was actually Nick who suggested that she should seek help after noticing her mental problems. 167.Turning to her resignation, the plaintiff initially rejected that HELP’s had represented to the Immigration Department that she had resigned with 1 month’s notice, rather than claiming constructive dismissal on the strength of the Sexual Abuses, for the reason that she wanted to preserve the evidence of the Sexual Abuses. It was explained that the plaintiff did not want to risk alerting the defendant of the potential police report, which might lead to him disposing of the evidence relating to her claims. At trial, the plaintiff refuted such representation, claiming that her resignation was due to her fear that the defendant would do something against her. Oddly, when she was confronted again with the letter from HELP to the Immigration Department, she said, presumably, she wanted to preserve evidence. 168.Mr Choy took a break from the Sexual Abuses, and focused on the plaintiff’s stay at the boarding house after she had left the defendant’s employ. She admitted to the 2 physical altercations with her co-resident, as reported in the MLR[23]. The plaintiff clarified that the 2 incidents involved the same girl, who was hostile towards the plaintiff. According to the MLR, this led to the plaintiff having uncontrollable rage, and feeling a strong need to defend herself, to a point where she did not care if she would kill the girl. At trial, the plaintiff denied being a violent person who would use physical force to defend herself. 169.Apart from her co-resident, the plaintiff also had a squabble with Emy whilst the defendant was away from Hong Kong in about March 2019. It was said that the plaintiff had been rude to Emy, which led to an apology letter being written by the plaintiff (the “Apology Letter”)[24]. At trial, the plaintiff asserted that she was forced by the defendant to do so, in return for a loan from him. Her unwillingness was evidenced by her refusal to sign on it. The plaintiff agreed with Mr Choy that, despite it being an Apology Letter, she had in it actually criticised Emy for being impolite, shouted at the plaintiff wrongfully, and being bossy. 170.Mr Choy ended his cross-examination on liability with questions on the plaintiff’s feisty character as demonstrated at trial. He quoted plaintiff’s furious instructions to Madam Interpreter to “say it!” and “just do your job!”. She had no denial about these, with reasons that Madam Interpreter was not translating what she said in court, and was not doing her job. The plaintiff was livid that Madam Interpreter stopped her when she was giving her testimonies, asking her to give short answers. On the latter complaint, I must confess that I did request the plaintiff and Madam Interpreter not to speak and translate at the same time, as I had trouble hearing the translated answers from Madam Interpreter. This led to Madam Interpreter telling the plaintiff to pause at times when she was giving lengthy answers. DEFENDANT’S EVIDENCE ON LIABILITY 171.The defendant made 2 witness statements for this case, which he adopted as his evidence-in-chief at the trial. As his second witness statement primarily reiterated the reasons given by the learned Magistrate in his verdict for the 2022 Trial, I shall only highlight the salient evidence contained in his first witness statement below. His evidence-in-chief His personal background 172.Compared with the plaintiff, the defendant’s evidence-in-chief is short. He started it by providing his personal particulars: -
The Interview 173.The defendant’s evidence is largely consistent with his pleaded case, in terms of what went on at the Interview. He emphasised that, under clause 2(b) of the List of Duties, the plaintiff was informed, and by signing on List of Duties she should have accepted, her duties to massage him. The Body Check Assault 174.His version of what happened before the body check differed from the plaintiff. In gist, there is no mentioning by the defendant that the plaintiff started working at the House on 5 September 2018. Instead, his narratives suggested that she attended the House on 11 September 2018, seemingly with the intention to start working and to receive a body check. There is, however, no information as to when such arrangement was made, and by whom it was made. 175.He has no quarrel that Janice was not in the House when the body check took place. The defendant explained that Janice was required to attend his property in Lan Kwai Fong as his tenant was locked out. He suspected that the plaintiff was having difficulty getting another day-off, hence, she agreed to continue with the body check in the absence of Janice. There is no indication as to why he had such suspicion, especially when there is no refutation from the defendant that the plaintiff had continued or started working at the House immediately after the body check. 176.Come what may, the defendant called the plaintiff to attend the Office at about 3 p.m., and what happened next as described by him are largely consistent with his pleaded case. However, he did elaborate further on a few matters. 177.First, the Health Declaration was a standard form used in the medical practices. Second, he added that, by signing the Health Declaration, the plaintiff gave her express, voluntary and informed consent for undertaking the body check. Pausing here, I see at the bottom of the Health Declaration, before the signatures of the plaintiff and the defendant, the following statement: -
178.Third, the defendant said he gave the plaintiff explanation of the scope and procedures of the body check, and consent was sought and obtained from her as to the same. He also asked her whether any doctor or nurse had taught her how to examine her breasts for lumps, and if she had received injection for HPV. She denied knowledge of either. The defendant supplemented that Willia had suffered from cancer of the cervix of the uterus, before the HPV injection was introduced in 2006. 179.When the defendant inspected the plaintiff’s cervix, he used a speculum to do so. He also taught her how to perform self-inspection of the breasts. Throughout the body check, there was no complaint or objection from the plaintiff. Neither did she say anything nor express any unwillingness to the body check. 180.Finally, he said that the body check was a general and standard medical examination of the plaintiff’s body parts, which included the abdomen, lungs, heart, breasts, and genital area. Her blood pressure was also checked during the examination. The Sexual Massages 181.The defendant did not have much to add on this topic, save explanations on his needs to be massaged everyday by his domestic helpers, including the plaintiff. This stemmed from the deterioration of his shoulders, the pain from which caused him sleepless nights. The pain could not be controlled by Panadol or Celebrex; these medicines were in any case contra indicated by the fact that he was on Warfarin for his heart condition. Hence, he obtained some relief by the massage. 182.Aside from his physical pain, the defendant expounded on his skin conditions, namely, Bullous Pemphigoid, for which he was prescribed ointments. The lesions were on his chest, arms, thighs, and his back. He had trouble applying ointment on his back. In addition, the defendant suffered from occasional bouts of groin rash (tinea cruris). For these skin conditions, the plaintiff voluntarily applied the ointment for him, after the massage. 183.Records of his skin and heart conditions could be found in the letter from Dr Ien Chan, Consultant Dermatologist, of the London Dermatology Centre, dated 5 June 2018 (“Dr Chan’s Letter”)[26]. The Whipping Incidents 184.He said that the whippings were initiated and proposed by the plaintiff, intended to monitor his weight. The defendant said that, whenever he gained weight, she would whip him on his back and buttock. He derived no sexual pleasure from it; instead, he let the plaintiff do it to humour her. Video Watching Incident 185.The defendant outright rejected the allegation that he forced or made the plaintiff watch indecent videos with him. On top of this, he repeated his pleaded case on how the plaintiff brought him pornographic videos from the Philippines, although he had never requested for them. Termination and other matters 186.The defendant expanded on his pleaded reasons for termination of the plaintiff (see §45 above). They were rooted from the time when the defendant made his annual trip outside Hong Kong in April 2019, when Nick and his family moved into the House temporarily. He said that the plaintiff was rude to his guests, including Emy and Donna. Peculiarly, the defendant’s tenants also include Willia, who had a row with the plaintiff in May 2019, leading to Willia’s complaint to the Philippine Consulate, and advice from the Consulate to terminate the plaintiff. Pausing here, I note the difference in time as to when Willia stayed in the House and had a feud with the plaintiff. 187.These led to an email being issued to the plaintiff on 14 May 2019, reprimanding her for her incompetence in discharging her duties, and her rudeness towards his guests. He also warned that he would have no objection if the plaintiff chose to resign from her employment (the “Warning Email”). 188.The defendant described the plaintiff’s acts of going to the EOC and police as extortions; the plaintiff deliberately copied the Scandal Videos and took the Massage Videos to threaten him in return for monetary gain. Such intention, he said, was evidenced by the plaintiff’s proposal to settle the EOC complaint if the defendant would pay her HK$169,000. It was only when such settlement proposal was rejected by the defendant in October 2019 that she made the report to the police in December 2019. His evidence under cross-examination 189.Majority of Mr Shum’s cross-examination on the defendant have to do with the Scandal Videos played at the trial. These questions, and the answers obtained from the defendant, were in turn aimed at advancing the plaintiff’s cases on the Sexual Massages and the Whipping Incidents. Affairs with his domestic helpers 190.Mr Shum started with the defendant’s relationship with Janice. His inquiries led to the following answers from the defendant: -
191.The Court was introduced to another foreign domestic helper who had worked for the defendant, namely Ms Chris Lagos (“Chris”). The defendant could not recall the period that Chris worked for him, but she had probably served him for about a decade. There were times when both Janice and Chris worked in the House, but Chris left her employment with the defendant before Janice did. He also had sexual relationship with Chris, but his memories of the same had faded with time and his early Alzheimer. However, he was able to testify that:
192.Apart from Chris, the defendant was asked questions about his friend from south of France, Bernadette. The defendant and Bernadette had sexual relationship when they were in France, before 1997. By the time Bernadette visited the defendant in 1997, and stayed in the House for a week or so, their sexual relationship had ended. He explained that this was due to Bernadette becoming mad. The defendant emphasised that they had no sexual activities when Bernadette was in Hong Kong. 193.The importance in introducing Bernadette in this case is that she was the owner of the sexual instruments, which the defendant described them as “sexual arsenal” in his statement to the police, that were left in the House. The defendant confirmed that Bernadette took all her belongings with her when she left the House, save for the sexual instruments. He said he was not surprised by it, as Bernadette was behaving weirdly at that time. The defendant denied using the sexual instruments for self-gratification, nor had he any use for them. That being so, he did not dispose of them, with explanation that he never threw anything away from the House throughout the 40 odd years he had resided there. These instruments remained at the House at the time of the trial. 194.He said the sexual instruments included a dog leash, a black leather belt, and some other instruments that the defendant could not recall. The whip was not one of the sexual instruments left by Bernadette; the whip belonged to him, which he used for horse-riding at the Beas River. The defendant explained that Janice only used the whip on him, not the sexual instruments. He could not recall whether Chris also used some tools to whip him, but he doubted she did. Trailer of the Scandal Videos 195.Mr Shum then proceeded to raise questions that served as a trailer of the Scandal Videos. The defendant’s answers are summarised below: -
196.The defendant agreed that the above alleged consensual sexual activities, contained in the Scandal Videos, could be relevant to the issues in the EOC investigation, 2020 and 2022 Trials, and this action, but they were never revealed in any of his statements. He explained that, his conscience told him that he should not get Janice and Chris involved in these cases for their consensual acts. He did not wish to disparage their characters. 197.The defendant has no dispute that the Scandal Videos were copied from his computers. That being so, he did not know their existence before they were adduced as evidence by the plaintiff. He also had no knowledge as to who recorded the Scandal Videos, nor did he know who uploaded them to his computers. The defendant clarified that there were 2 computers in the House, one kept in the living room, and the other inside the Study Room. The latter was used by the domestic helpers, and he had no access to it. The 1st Scandal Video 198.I shall first set out its contents before providing the defendant’s answers to the requisitions based on the 1st Scandal Video: -
199.The defendant’s answers to Mr Shum’s questions are provided below: -
2nd Scandal Video 200.The 2nd Scandal Video contained the following images: -
201.Below are the defendant’s answers arising from questions based on the 2nd Scandal Video: -
The Whipping Incidents 202.In view of the contents of the Scandal Videos, it is predictable that Mr Shum tried to tie them to the Whipping Incidents, asserting that the latter were also for the defendant’s sexual pleasure. The defendant refuted such allegation by claiming that the whippings could serve dual purposes: for sexual pleasure and for health. For the latter, a riding whip would be used. In addition, he highlighted the difference in times when the acts captured by the Scandal Videos took place, and when the plaintiff was employed. There was a difference of 8 years; by 2018, he was in his early 80’s [27] and not sexually active. 203.He had never came across any study, literature, survey, or statistical information, suggesting that whippings could bring about weight loss. When asked whether he considered Chris’ suggestion to whip him in return for such effect nonsensical or crazy, the defendant immediately corrected Mr Shum that it was not Chris who suggested it. It was Janice who did it first, and inherited by the plaintiff later on. 204.The defendant confessed that the idea of being punished by a domestic helper whenever he gained weight was a bit absurd, but he said it had worked in the past. He was further questioned on why he allowed himself to be whipped to humour the plaintiff (see §184 above), the defendant was unable to give a clear answer. The plaintiff said to him that Janice told her to do it, and he simply went along with it. He claimed that he was a forgiving person, hence he humoured the plaintiff by allowing himself to be whipped, notwithstanding the plaintiff’s feud with Willia. 205.The defendant had no argument that, as shown in the Scandal Videos, he had sexual relationship and sexual desire for domestic helpers who worked for him, and the sexual activities happened inside the House during their employments with him. Despite so, he disagreed that these histories could lend support to the plaintiff’s case, citing again that the sexual activities with Janice and Chris were consensual, and he was younger at that time. The Sexual Massages 206.The defendant agreed that, for the massages and application of ointment, it was unnecessary for him to be completely naked. However, he denied having ever demanded the plaintiff to masturbate for him, or for her to touch his penis from behind whilst he was standing. It was untrue that the massages from the plaintiff were to satisfy his sexual pleasure; the massages were performed for his health. The Body Check Assault 207.Mr Shum started his cross-examination under this head by referring the defendant to the Medical Registration Ordinance, Cap 161 (the “MRO”). The defendant agreed that a person has to be registered by the Registrar, and possesses a valid practising certificate, before he could practice medicine in Hong Kong. It would be a criminal offence for a person to practice medicine if he was not listed in the register[28]. Although he said he was still a registered doctor and a holder of a practising certificate at the time when the body check was conducted, he later on agreed that, after retiring in 1990 (see §172(4) above), he no longer had a practising certificate; he also had no practising certificate at the time when the body check was performed on the plaintiff. 208.Apart from the above, the defendant confirmed that it was a normal practice that a nurse should be present when the body check was conducted. The Health Declaration should also be witnessed and signed by a nurse (as the witness). However, none of these practices was observed for the body check on the plaintiff. He explained that he had suggested to the plaintiff that the body check could be postponed, but she was anxious to get on with it, perhaps because she was eager to secure the employment. He confessed that he should have been more careful. 209.When asked why he had not set out in his witness statement the reason for Janice’s absence during the body check, the defendant had no answer for it. 210.Mr Shum then questioned the defendant on the examinations conducted on the plaintiff during the body check, and the defendant gave confusing answers. First, he asserted that when he inspected the vagina of the plaintiff, he was checking whether she had prolapse rather than cervical cancer. He corrected himself to cervical cancer, after he was referred to §12 of his first witness statement. Second, he agreed that, for examination of the cervical cancer, pap smear would be conducted, which is a procedure to obtain tissue sample from the surface of the cervix. The extracted tissues sample would then be stored in a medical glass slide to preserve the cells in liquid, and the sample would then be sent to a laboratory for biopsy. However, the defendant once again denied checking for cervical cancer, but for HPV. He also disagreed that he had performed pap smear test on the plaintiff, contrary to his pleaded case (see §37 of this Judgment). 211.This topic ended with questions concerning the tests usually performed for foreign domestic helpers. The defendant rejected the suggestions that foreign domestic helpers would be examined on diseases like skin diseases, AIDS, tuberculosis, and Hepatitis B or C. In refutation to the allegation that he was only concerned with the plaintiff’s cervix and breasts, the defendant asserted for the first time that he also looked at her teeth, ears, and tonsils. These, he said, were general examinations, thus he could now recall them being checked, albeit not remembering about them at the time when his witness statement was made. The defendant argued that it would be impossible to write down all examinations he had conducted on the plaintiff, as he would be writing a book. 212.Finally, he agreed that no result was recorded after the body check. Video Watching Incident 213.Mr Shum concluded his cross-examination on the defendant with this topic. He narrowed his questions under this head to the pornographic videos allegedly brought back by the plaintiff from the Philippines. The defendant said, by doing so, the plaintiff was trying to entrap him. Their relationship was not so close and intimate that she would do so as a favour to him. He did watch a little bit of the videos, and realised that they are child pornography; he was so disgusted by them that he could not bear watching them in full. That being so, he did not question the plaintiff as to why she brought these videos to him. Neither did he dispose of them, as he did not know what to do with these illegal videos. Thus, he kept them in the House, until the police seized them during the home search. He regarded Mr Shum’s suggestion that the child pornography belonged to him as nonsense. His evidence under re-examination 214.Mr Choy started his re-examination with query as to why the defendant did not record the results from the body check. In reply, the defendant remarked that it would be unnecessary, as the results were normal. He added that tests for AIDS and Hepatitis were unnecessary and expensive. 215.In relation to what he had said in §209 above, he agreed that he had actually explained the absence of Janice in §7 of his first witness statement. 216.Finally, he clarified that, even though he retired from practice in 1990, he continued to be registered, and held a practising certificate, in 2018. ANALYSIS ON THE EVIDENCE AND DISCUSSIONS ON LIABILITY 217.Looking at the evidence reproduced in the above, I must say I am not impressed by both parties, but especially by the plaintiff, as I will explain in the sections below. My observations on the plaintiff General observations 218.Aside from the clear inconsistencies and self-contradictions in her evidence, as highlighted in the above, I find the plaintiff to be an incredible and unforthcoming witness. On the latter, Mr Shum highlighted that, by admitting her inability to recall some details due to lapse of time, the plaintiff was forthcoming. I do not entirely agree. As seen in the above, and expanded below in §§222 and 223, most of the self-contradictions and inconsistencies came from her own pleaded case and witness statements. She was not prohibited to review her SOC and refresh her memories of the Sexual Abuses before making her witness statements. I do not accept that all the discrepancies in her case are due to the loss of memories over time. 219.Multiple aspects of her case are improbable, unimaginable, illogical, and bordered on absurdities. Often and repeatedly, she tried relying on her impecuniosity, self-asserted inferior status, and vulnerability, to mask the flaws in her case, but unmasked by her own answers and performances at the trial. She had constantly demonstrated her feistiness, contradicting or undermining the possibility of her being suppressed/manipulated/harassed/abused by others, or her possible tolerance of any suppression/manipulation/harassment/abuses, without retaliations and/or defence. These are supported by how she had rebuffed the questions and suggestions from Mr Choy, and at times, argued with him. Her repeated insistence that she worked with and not under Janice, amid latter’s supervisory role (see §12 of this Judgment), shed light on how uncomfortable the plaintiff is with any sense of inferiority instilled in her (see §§134 and 145). She also did not hide her displeasure with Madam Interpreter when the latter, valid or not, did not perform up to the plaintiff’s expectation. The plaintiff was quick to blame others, as she had done repeatedly in her answers given at trial, for any error discovered in her case. 220.I note how Mr Shum criticised Mr Choy’s remarks on the personality of the plaintiff, saying it is an unjustified personality assassination. I do not share Mr Shum’s view, for reasons I have set out in the preceding paragraph. The Court is bound to look at the full picture, including the personalities and characters of both the plaintiff and the defendant, in considering the veracity of their respective case and evidence. Mr Shum’s criticisms on the defendant’s personality and character seek to achieve the same purpose. I do not see why this Court should consider one but not the other. 221.Overall, I cannot find any inferiority or vulnerability in her. I will provide further elaborations below. Inconsistencies and self-contradictions 222.The credibility and reliability of her accounts of the Sexual Abuses are discounted by the inconsistencies and self-contradictions between her pleaded case, evidence-in-chief, and answers given under cross-examination. To recap, I refer to the following paragraphs in this Judgment: -
223.The above are only discrepancies regarding the Sexual Abuses. Inconsistencies and contradictions could also be found in other aspects of her case. Below are some of the examples: -
224.I accept that discrepancies in evidence are often the products of a witness’ loss of memories over time. However, in this case, clearly not all the highlighted discrepancies stem from such reason. Against nature, the plaintiff seems to have improved recollections on certain incidents with the passing of time. Conversely, on areas that her memories have regressed, I shared Mr Choy’s curiosity. This would be unlikely, in view of the numerous opportunities she had in repeating her case and evidence to the volunteers of HELP and Rainlily, Ms Chan, the EOC, the police, the Magistrates presiding over the 2020 and 2022 Trials, and not to mention to her solicitors in the preparation of the present case. I agree with Mr Shum’s submissions that these instances were not designed to provide opportunities for her to refresh memory, and could be stressful moments for her having to relive the Sexual Abuses. However, it remains unavoidable that her memory would be refreshed via these processes. 225.In addition, some of these discrepancies are crucial to her case. For example, the questions of whether: (1) the plaintiff still had her bra on whilst having her body checked; (2) the defendant moaned; (3) he also touched her breasts intentionally; (4) he had his gloves on when he inserted his fingers into her vagina; and (5) she had said “no” during the body check; are important questions that could shed light as to the intention of the defendant in conducting the body check. It is, hence, dubious why these important evidences came up only at trial. 226.The question of whether the defendant had asked each question listed under the Health Declaration, could help decipher the defendant’s true intention for conducting the body check. The plaintiff has pleaded that the defendant did ask her all the questions, which could support the defendant’s assertion that the body check was genuine and conducted without any foul intention. Her recollection on this seems diluted in her first witness statement (i.e., she could not recall whether he did ask all questions), but strangely crystallised with passing of time (i.e., the defendant definitely did not ask her all questions) in her second witness statement. I am confused by how her memory works. Come what may, I do not accept that what she said at the 2020 Trial was a mistake she made under pressure. As said, the same narrative is pleaded in her SOC. She should not be under any pressure when making, and had ample time to confirm accuracy of, her pleaded case. 227.The inconsistencies in her answers regarding whether she was given time to read, and had read, the contents of the List of Duties, left this Court in a blank as to whether she was aware that the body check would be conducted by the defendant (see clause 2(a)). Even if she was uncertain as to what that clause meant, as submitted by Mr Shum (but not so asserted by the plaintiff), the plaintiff was not prohibited by the defendant or Janice to inquire into its meaning. Also, it is clearly stated in clause 2(b) that she was required to dress and bath the defendant, entailing with these tasks the inevitable need to see him naked. Clear and consistent answers from the plaintiff on this, and whether the defendant told her about the bathing duty, could assist the Court in deciding whether she was rightly shocked to see the defendant naked when Janice demonstrated to her how to perform the massage, and whether she would have accepted, or felt offended by, his bareness when she massaged him. 228.Furthermore, the differences as to when the demonstration was given by Janice, when the plaintiff took over the primary duty to massage the defendant on daily basis, what happened during the 1st to 3rd Sexual Demands, and how the 3rd Sexual Demands ended on the first and second occasions, all led to doubts as to the reliability and veracity of her evidence regarding the Sexual Massages. I would also add my amazement that the defendant would masturbate (under the 2nd Sexual Demand) or ask to be masturbated (under the 3rd Sexual Demand) on close to daily basis, if what the plaintiff said was true, in view of his age since November 2018 (80 years old). I am not saying that it would be impossible, but I have my doubts. 229.Her narratives on how the Video Watching Incident happened are equally problematic. She started them on a wrong footing by claiming erroneously that she was made to watch one of the Scandal Videos, when her descriptions of the contents of the video she watched on that occasion totally differed from the contents of the Scandal Videos played at trial. Remarkable is the lack of description of Chris, who played the key roles in the Scandal Videos, in the Video Watching Incident. I am also troubled by the plaintiff’s later assertion that the defendant fast-forwarded the entire video during the Video Watching Incident. It begs the questions why she had spent 20 minutes watching a fast-forwarded video (if she indeed spent 20 minutes watching), and how the defendant could achieve the suggested purpose of getting her prepared for the 3rd Sexual Demand by doing so. Such added evidence makes me a disbeliever that the Video Watching Incident happened. 230.Turning to the Whipping Incidents, my first impression after reading the SOC and her witness statements was that, the defendant had instructed and taught her how to whip him; he also gave her the justifications for whipping him. It turned out that it was Janice who taught the plaintiff what to do and explained to her the reasons behind it. Such difference is crucial, because, if her later assertion were to be accepted, one would anticipate elaborations from the plaintiff on her reactions and thoughts on such task, which was not specified in the List of Duties. Oddly, the plaintiff is silent on this. 231.Equally remarkable is the omission in the SOC of the act of pulling the defendant’s penis from behind. It is mindboggling that she has left out such important fact from her pleading, which could clearly show the sexual element of the Whipping Incidents. Peculiarly, the plaintiff instead cited the Video Watching Incident and conversation with Janice as the reasons for her realisation of the defendant’s sexual desire via whipping. Inherent improbabilities 232.Leaving aside the aforestated discrepancies, when one look at the full picture, the plaintiff’s case is bursting with inherent improbabilities, especially taking into consideration my observations in §§218 and 219 above. List of Duties and the Interview 233.Considering the plaintiff’s experiences working as a domestic helper in Hong Kong prior to her employment with the defendant, her working experiences abroad, and her educational background, I do not believe that she would be so innocent, naïve, and helpless, to not know her rights, or that she was sexually abused by the defendant, if what she said were true. 234.Starting from the time when she went for the Interview, it is highly unlikely that she would not read the List of Duties carefully, which contained her obligations and benefits, for example, her holidays and bonuses[29]. Her later suggestion that she did not do so, was contradicted by her earlier evidence that she was interested to know about her duties, and whether she could apply her caregiving skills acquired from the college. The defendant giving her a List of Duties, a likely rarity in employment cases involving foreign domestic helpers, should attract her special attentions to its contents. I am not impressed by her explanation she did not read the List of Duties because Janice would explain the duties and benefits to her. This is refuted by her own admission as one can see at the end of §125 above. 235.I also doubt that she had no chance to make inquiries with the defendant as to her duties during the Interview as he allegedly walked away after giving her the List of Duties. This is contradicted by her evidence that he did mention to her about her massaging duties (see §128 of this Judgment). Equally doubtful is the plaintiff’s narratives that Janice had spent over an hour briefing her about the duties without much detail. It defies logic that the plaintiff would opt to work for the defendant over the other potential employers lined-up to hire her with so little information provided by the defendant and Janice. I also reject Mr Shum’s suggestion that Janice and the plaintiff could have spent some time conversed on topics unrelated to the job, as this never came out from the mouth of the plaintiff. 236.The above undermine suggestion that the body check conducted by the defendant, or seeing him naked, should come as a surprise to her, for the reasons I have said in §227 above. Health Declaration and the Body Check Assault 237.I do not believe that her pleaded case about being asked all questions on the Health Declaration was an error due to translation. The plaintiff was asked, and had confirmed, at the start of the cross-examination, that she could read, and did read, the SOC without the aid of an interpreter (see §137 of this Judgment). Her alternative explanation is equally unimpressive. Clearly, by her own answers, she had in her possession and control a copy of the Health Declaration when the SOC was being drafted (see §§138 and 139 above). Her blame game simply could not stand. 238.The inconsistencies highlighted in the above on how the Body Check Assault happened have already led to doubts about the accuracy of her allegations. They were further weakened by the plaintiff’s confession that she had not been giving the same descriptions to HELP, the EOC, and the police (§141 above). I see no reason for her to provide them with different accounts of the Body Check Assault, or to withhold giving them the full particulars. 239.If I were to accept her narratives of the same, the defendant’s lust was unsubtly displayed. But, for whatever reasons, she had tried resisting Mr Choy’s suggestion that she felt abused by the Body Check Assault (see §143 of this Judgment). If that was the case, I do not see the need for her to allegedly run away after it was completed, and had sought the help from Janice immediately after she had reached either the kitchen or her room, if she did not feel abused. 240.If the Body Check Assault had happened as alleged, dumbfounded I am by her willingness to sign the Contract. It is unimaginable for anyone to accept an employment from a person, who had abused her just 6 days ago, and who might abuse her again in the future. With the other job offers that she had before signing of the Contract, it is a myth that she chose to work for an abuser. In addition, her signing of the Contract notwithstanding the Body Check Assault also conflicts with how indifferent she was about competing with other candidates for the job (see §130 of this Judgment). She has not demonstrated a desire to win the job from the defendant so strong that she would have chosen to ignore the Body Check Assault. 241.In passing, I am also unable to understand why she dared not ask the defendant for results of the body check, before the Contract was signed (see §81 above). 242.Based on her answers at the trial, the main reason for her to sign the Contract, despite the Body Check Assault, was the trust she had in Janice. I find it incredible that she would place so much trust on Janice, a person who by that time the plaintiff had known only for a few days, and although she did not fully believe Janice’s explanation (see §§80 and 148 of this Judgment). In addition, without any employment restricting her freedom to leave the House after the Body Check Assault, it is inconceivable that the plaintiff would remain there to wait for the return of Janice. I also find it unbelievable that she trusted Janice more than her YL Friend, so much so that she chose to confide with the former rather than the latter about the abuse she had encountered (see §146 above). 243.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. Again, there were other job-offers on the table for her to choose from. In fact, according to her logic, having no working visa issued yet gave her freedom to choose another employer seeking her service, without fear of repercussion from the Immigration Department, affecting her future working opportunities in Hong Kong. 244.Finally, the plaintiff blamed the signing of the Contract on Janice’s flowery words and manipulation, the latter concerning the promised salary of HK$7,000 per month, which turned out to be untrue. I am not convinced that, for the reasons provided in §233 above, the plaintiff could be so easily persuaded. Most importantly, once she realised that she was only paid a salary of HK$5,000 under the Contract (see §151 of this Judgment), she should immediately felt betrayed by Janice; there was simply no cause for her to work with a liar, and for an abuser. Perhaps, sensing the absurdity of this, the plaintiff added at trial that the Contract was signed by her when the essential terms, including her remuneration, had yet been filled in (see §152). I do not believe it. Not only is this never raised in her witness statements, such foolish act is unlikely to be committed by a person with the wealth of working experiences both in Hong Kong and abroad. Moreover, it is hard to believe that she would sign the Contract when such an important term, and perhaps the sole reason for her to work for an alleged abuser, was unknown. The Sexual Massages, Whipping Incidents, and Video Watching Incident 245.The inconsistencies in the plaintiff’s narratives on these topics have been highlighted and require no repetition. I shall, in this section, focus only on other matters that have undermined her cases under these heads. 246.As said, I am surprised by the plaintiff’s surprise to see the defendant naked during Janice’s demonstration on massaging him. The plaintiff knew she had to bath him, which was clearly set out in the List of Duties, and she had been told such duty by both Janice and the defendant during the Interview. I do not believe the plaintiff’s assertion that she learnt, and expected, to bath a person with underwear on, especially if she was required to bath a patient whilst working at a hospital (see §123(3) above). 247.Assuming I was wrong on when she was told the duty to bath the defendant (which could be the case because she also mentioned that she was not told about the duty to bath the defendant until he had left for a trip in October 2018; see §157 above), and assuming the plaintiff was correct in her latest evidence on the timing of the demonstration (i.e., before signing of the Contract; see §155 above), this should have provided her with another reason not to sign the Contract. 248.In any event, if the plaintiff was genuinely surprised and offended by seeing the defendant naked, and to massage him whilst he was naked, I have heard no evidence that she had protested directly with the defendant. Her only reaction was to inquire with Janice as to his bareness, and seemed to have accepted Janice’s explanation without further contention. On this point, Mr Choy, in his closing submissions, relied on an Australian case of O’Callaghan v Loder & Anor [30], where the Equal Opportunity Tribunal said: -
249.Mr Shum has no quarrel with the above principle; neither do I. I think, if the plaintiff was unhappy seeing and massaging the defendant whilst he was naked, she should have voiced out her displeasure, at the very least to Janice and requested her to convey the message to the defendant (considering she still found Janice to be trustworthy at the material times). She could have taken further action to make it known that the defendant’s bareness was unwelcome, if the demonstration happened before signing of the Contract (see §247 above), by threatening not to sign it. 250.The change of timing when she took over the primary task of massaging the defendant is also an interesting subject that is worth discussing (see §158 of this Judgment). If she had started massaging the defendant on daily basis since around the time the Contract was signed, there was roughly 1.5 months before the departure of Janice for the defendant to make his 1st to 3rd Sexual Demands to the plaintiff, but he never did. This is quite unnatural for the defendant as described by the plaintiff, when his sexual desire was so strong that he would require the 1st, 2nd and/or 3rd Sexual Demands to be satisfied every day. Possible also, with Janice still being employed by the defendant, and how ready she was in allegedly manipulating and betraying the plaintiff, weaving a web of lies in order to lure the plaintiff into the hands of the defendant, that the defendant would use Janice to demonstrate or persuade the plaintiff to satisfy his 1st to 3rd Sexual Demands. This is conceivable, especially considering Janice’s participations in acts captured by the Scandal Videos. Again, oddly, he never did. Either the defendant was deliberately suppressing his sexual desire and unleashed it only after 8 November 2018 when Janice left his employment (or even later, after the departure of Willia; see §159 above), or he was simply not sexually interested in the plaintiff at all. 251.Curious I am, that, notwithstanding having to masturbate the defendant until ejaculation under the 3rd Sexual Demand, the plaintiff had never once mentioned about the need to clean his semen from her hand. 252.Inexplicable I find the plaintiff’s answer that she had never thought of the possibility that the defendant would force himself on her and rape her (see §159 above). She felt his lust and unsubtle sexual conducts during the Body Check Assault. He was described as an agile, active and athletic person despite his age. He had sufficient strength to pull the plaintiff’s hand, forced it to grab his penis, fought against her resistance, controlling her hand in the masturbation, and to continue doing so until ejaculation, on frequent if not daily basis. Together with his seemingly insatiable desire for sex, being raped by him should be a potential risk so likely to materialise that it should never have escaped the mind of any reasonable person. Fleeing from such disaster should be pressing and of high priority. She never did. She remained in the House and to bear the risk of it until April 2019, when the defendant went abroad. This is ludicrous. 253.The plaintiff’s justification for the absence of such worry was that the defendant never used his strength and physical advantage, or his status, to force her to do anything. This totally contradicted her narratives on how the 3rd Sexual Demand first happened (see §§19(3) and 89 of this Judgment), and how he had used his status as an employer to punish her for disobeying his demands (see §§20 and 101 above). 254.Veracity of the alleged Sexual Abuses are further emasculated by her actions and inactions. I will list them out below: -
255.For the reasons above, 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. The Videos 256.Notwithstanding the above, the plaintiff’s case could still be salvaged by the videos she adduced as documentary evidence. I can see from Mr Shum’s submissions that they are relied heavily in establishing liability on the defendant. Apart from the Scandal Videos, there are 4 Massage Videos taken by her. At trial, only the Scandal Videos were played. As for the 4 Massage Videos, Mr Shum, in his opening statements gave the following descriptions: -
257.Despite the 3rd and 4th Massage Videos revealed none of the 1st to 3rd Sexual Demands, I have watched them in entirety. Their descriptions are correct. 258.As to the 1st Massage Video, the defendant did mutter some words at 0:02:23, but I could not tell whether they were “Can you help me to masturbate?” as submitted by Mr Shum. I had raised this with Mr Shum at the closing submissions stage, and he suggested me to turn up the volume. I did as suggested, and after 15 tries using my personal computer notebook and the desktop computer in my chambers, I still could not hear clearly the words uttered by the defendant. Nevertheless, what I observed from the 1st Massage Video is that, after uttering the words at about 0:02:23, and up to the end of it (at 0:03:00), the plaintiff had neither touched the defendant’s penis (not to mention masturbated him), nor had she given any reply to what he had said. In addition, the defendant had not said another word to the plaintiff after getting a cold shoulder from her. 259.Regarding the 2nd Massage Video, the defendant did ask the plaintiff to hold his penis in one hand. However, that was only part of what he said. The defendant also muttered something to the sound of “ject that” or “check that” or “gently”, which I could not hear clearly, as the plaintiff was at the same time muttering something. Could he be asking her to hold his penis, so that something could be checked, like groin rash? Or could he be asking her to hold his penis until something eject or ejaculate? I cannot be sure on either of these. However, there was only a fleeting moment where I could see the plaintiff holding his penis from behind, but that could not have lasted for a second, as the camera was panned away. When the defendant’s buttock reappeared on the screen again one or two seconds later, her hand was no longer in contact with his penis. 260.Overall, none of the Massage Videos showed clearly the 1st to 3rd Sexual Demands being requested by, or being performed on, the defendant as alleged by the plaintiff. 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. 261.I note Mr Shum’s submissions on the defendant’s habit in videoing taping his sexual activities with his domestic helpers in the past, and kept those videos. I am not sure if having the two Scandal Videos taken qualified as a habit. Nevertheless, if I were to accept such submissions, it is singular that no video was taken by him, or found by the plaintiff from his collection when she was gathering the evidence to be used against the defendant, which captured any of the Sexual Abuses. 262.Turning to the Scandal Videos, admittedly they are not the videos that the plaintiff was forced to watch during the Video Watching Incident. Neither could they support any sexual element in the Whipping Incidents. It is not the plaintiff’s case that she had to masturbate the defendant, or pull his penis during the Whipping Incidents, that one could see happened in the Scandal Videos. Neither did the plaintiff complain that she was asked to undress herself and to be caressed by the defendant. I am unable to say with confidence that simply by being whipped, the defendant derived sexual pleasures short of masturbation or getting his penis pulled. 263.In my view, what the Scandal Videos could show is that there were sexual elements in the massage and whipping performed on the defendant by Janice and Chris. For the reasons in §§261 and 262 above, I am unable to say safely that these sexual elements would carry forward to 8 years later, in support of the existences of the 1st to 3rd Sexual Demands. Nor could they suggest that the Whipping Incidents, as described by the plaintiff, were to satisfy the defendant’s sexual desire. There is no evidence to support Mr Shum’s submissions that the sexual activities between the defendant, Janice and/or Chris, had continued for years, or had continued to the arrival of the plaintiff. Summary on the plaintiff’s evidence 264.For the reasons above, I am not persuaded that the Sexual Abuses happened as alleged by the plaintiff, based solely on her evidences. 265.I observe from Mr Shum’s closing submissions that he is relying heavily on the admissions and flaws in the defendant’s case in support of the plaintiff’s case. I shall therefore, in the section below, provide my observations on the defendant’s evidences. My observations on the defendant General observations 266.Although there is nothing to confirm or negate his alleged early Alzheimer, his replies and reactions to the questions asked by Mr Shum demonstrated that his memories of the incidents relevant to this case, in particular what happened in 2018 and 2019, should not be as bad as what he had tried to present to the Court. As one can see from §203 of this Judgment, he was able to correct Mr Shum as to who introduced whipping to control his weight. This is especially impressive considering that, as per his own evidence, Janice started whipping him about 2 years after commencement of her employment with him, i.e., in or about 2007, and at the time Chris was probably also under his employ. In addition, in the absence of any medical evidence supporting his condition, I will disregard the defendant’s alleged early Alzheimer in this Judgment. 267.I am equally unimpressed with the defendant’s evidences, but to a lesser extent as compared to the plaintiff’s evidences, considering the inconsistencies, self-contradictions, and how they bordered on improbabilities and absurdities. I shall elaborate on these below. Inconsistencies and contradictions 268.The defendant’s evidence on his relationships with Janice and Chris (see §§190(3), 191(3), (4) and (5)), the dietary purpose of the whippings conducted by them (i.e., unconnected to any sexual activities and not for his sexual pleasure), are contradicted by his subsequent answers (see §195 above) and the Scandal Videos. 269.He gave back and forth answers as to whether he was registered with the Medical Council and holder of a practising certificate at the time when the Body Check Assault took place (see §§207 and 216 of this Judgment). 270.The defendant was also inconsistent with what he was examining for when he inspected the plaintiff’s vagina. He pleaded that it was a pap smear procedure, but did not repeat such explanation in his first witness statement. At the end, he denied having performed any pap smear procedure on the plaintiff during the body check (see §§37, 178, 179, and 210 of this Judgment). 271.Initially, he denied using the sexual instrument left by Bernadette for self-gratification nor had he any use for them. This is contradicted by his later confession that the Scandal Videos captured Janice and Chris using some of the sexual instruments to whip him, that were part of the process in giving him sexual pleasure (see §§193 and 201(2)). I will also group under this head his ridiculous denial of taking the Scandal Videos, when his setting up of and adjusting the cameras were clearly captured. 272.Amongst the highlighted discrepancies, I think only the one about whether pap smear procedure was conducted is worth giving any weight. For the sexual activities captured in the Scandal Videos (and using the sexual instruments left by Bernadette), I have in the above remarked that they could only enlighten the Court with what happened in 2010. I repeat what I have said in §263 above. 273.As to the question of whether he was registered with the Medical Council, and had a practising certificate, at the time when the body check was performed, I observe that the defendant had expressly confirmed that he maintained the registration, and implicitly indicated that he held a practising certificate. One could see from §4 of his first witness statement that, although he did not work as a doctor anymore in around 1990, he remained on the General Register with the Medical Council, and he was qualified to handle gynaecological problems, until he resigned in 2021. He was also able to salvage such blunder during the re-examination. Come what may, the plaintiff side has not adduced any evidence that could contradict the defendant’s case in this regard. 274.Turning to the examination of the plaintiff’s vagina, no explanation is given as to why pap smear was mentioned in the Defence, if that procedure was not performed or if it was not performed for the purpose of cervix examination. Neither is there any effort to amend the Defence to correct such error, nor was such mistake clarified in his first witness statement. There is also no explanation as to the difference in methods of inspection between cervical cancer and HPV, or to specify that the latter would not require the taking of tissue sample for biopsy (see §210 of this Judgment). Again, I do not understand why the defendant would have better recollection of the events with the passing of time. 275.That being so, I doubt whether his examination of the plaintiff’s vagina was purely to satisfy his lust, as suggested by the plaintiff. The Health Declaration does include questions relating to venereal diseases and gynaecological issues[32]. This perhaps could act as a cause or preview that the body check would entail examination of the plaintiff’s vagina and cervix. In addition, there is no denial that the defendant did use a speculum, and per the plaintiff evidence at trial, he did put on a glove, at certain points of time, during the examination. I do not know why these were done if the whole exercise was to satisfy his sexual desire. Illogicality, implausibility, and/or inherent improbabilities 276.I must say I am at a lost as to the defendant’s descriptions as to whether the plaintiff especially arranged time to attend the House on 11 September 2018 for the body check and started working on the same day. His narratives certainly sounded like this was the case. I have already expressed my reservations on such narratives in §§174 and 175 of this Judgment (although his further explanation in §208, i.e., that the plaintiff was anxious to secure the employment, hence she preferred to go ahead with the body check although Janice was not around, sounds more logical). This could lend support to the plaintiff’s case that the defendant had deliberately taken or created an opportunity to conduct the body check on her, knowing that Janice would not be there. 277.Nevertheless, the plaintiff’s assertion would still be unattractive, if I were to accept her depiction of Janice as an aider of the defendant (luring her into the employment, knowing that the defendant could make sexual advances to her). In that case, the defendant would most probably prefer Janice being present, masking his genuine intention to abuse the plaintiff. 278.Staying on the body check, Mr Shum challenged the defendant with suggestions that foreign domestic helpers would be examined on other diseases (see §211 above). The lack of these examinations indicated that he focused only on the breasts and vagina of the plaintiff. I am unable to give full weight to Mr Shum’s suggestion, seeing how the plaintiff’s side failed to show what the usual medical examination for foreign domestic helpers would entail, despite that the defendant had already alleged in his first witness statement that the body check was a general and standard medical examination[33]. He had also enumerated the other parts of the plaintiff’s body that he had examined during the body check (see §180 of this Judgment). However, I do not accept his late additions involving examination of the plaintiff’s teeth, ears and tonsils. Once again, I see no reason why these examinations were not included in his first or second witness statement. I disagree that simply by putting these 3 examinations in his witness statements would require a book to be written. 279.Closing the book on this topic, I have considered the plaintiff’s complaint on the lack of result being given to her after the body check, and how this could shed light on the defendant’s indecent intention. However, I need to take into consideration that she had never asked for the result from him. Her reason for not doing so, as I have said in §241 above, is unreasonable. If she had requested for the same, but turned down by the defendant, her case on this could be fortified. The absence of such request from her also rendered the defendant’s omission, i.e., that he found nothing worrying with her health thus the result was not given, seems excusable. 280.I am amused by the defendant’s narrative that the Whipping Incidents would serve the purpose of humouring the plaintiff. The defendant has not given any sensible explanation on this (see §204 above). Of course, the idea of being punished for gaining weight is unconventional and unsupported by studies or literature (see §203), but in my view not impossible (see the first part of §204). I also wish to add that I am not convinced that the sexual instruments were left behind by Bernadette. I cannot understand why she would leave these tools in the House, when she had taken her other belongings away with her. 281.I note the defendant’s agreement that, for the massages and application of ointment, it was unnecessary for him to be completely naked (see §206 of this Judgment). However, I would not read it as his agreement that his nudity was for sexual pleasure. It could simply be his personal preference, or, as explained by Janice to the plaintiff, because he felt hot after shower. In any event, his nudity, although unnecessary, could facilitate application of ointment on the various parts of his body (see §182 above). 282.As to the pornography allegedly brought to him by the plaintiff from the Philippines, I find his reliance of this to refute the Video Watching Incident ludicrous. I simply do not see the connection between the two. It does nothing but to make himself look like a fool, but could instead advance the plaintiff’s portrayal of him as a sex maniac. 283.Finally, on the defendant’s admissions on his sexual activities and relationships with Janice and Chris, I shall repeat my observations and remarks in §§261 to 263 above. There is nothing to rebut the suggested consents from Janice and Chris to participate in these sexual activities. The best arguments that Mr Shum could muster to counter this is the time when the sexual activities took place (in the wee hours of the day), and how they looked tired, disinterested, and yawned. These could show, in my view, the defendant could have picked the wrong time to engage in the activities. In any event, Chris could be seen taking off her clothes and offered her body to the defendant in the 2nd Scandal Video. The scene negates any allegation that the activities were not consensual. 284.I also find the defendant’s reason for not disclosing his intimate relationships with Janice and Chris in any of his statements, believable and understandable (see §196 above). Summary on the liability 285.Although I am not entirely convinced with the case and evidence of the defendant, I have far greater reservation as to the plaintiff’s. I do not find the problems with the defendant’s case could help the plaintiff in overcoming the flaws in her case. With the burden of proof squarely on her shoulders, and on the balance of probabilities, I find against her on liability. Her claim against the defendant is dismissed. 286.If I were wrong on my ruling above, and on the assumption that the Sexual Abuses happened as alleged, I shall proceed to consider the issue of quantum in this section below. QUANTUM 287.In her Revised Statement of Damages (“RSOD”), the plaintiff claims:
288.As said, the quantum for pre-trial loss of earnings, accommodation and living expenses, and travelling expenses have been agreed by the parties (see §5 of this Judgment). Hence, her evidence relating to these claims will not be rehearsed in the section below. Plaintiff’s case and evidence on quantum 289.Due to the Sexual Abuses, the plaintiff said she began to suffer from symptoms of mental disturbance in December 2018. The initial symptoms were of a feeling of fear and sense of dread. They evolved into anxiety, heart palpitations, problems with sleeping, and a feeling of hopelessness. 290.The plaintiff’s narratives resumed from October 2019, when she felt emotionally unstable and started to consult Ms Chan. In the MLR, Ms Chan opined that the plaintiff met the criteria for post-traumatic stress disorder (“PTSD”) and depression. As she was having nightmares about the defendant, and constantly feeling tense, irritable, angry and anxious, Rainlily arranged for her to receive treatment from Dr Candy Lin of Lin & Lam Medical Centre. She was diagnosed with moderate depressive episode and PTSD, and was prescribed medication to ease her symptoms. For the same diagnosis, the plaintiff received treatments from Western Psychiatric Centre (“WPC”) from February 2020 to July 2021. Her symptoms persisted until July 2021, when she was informed that the defendant was convicted and sentenced to 30 months’ imprisonment after the 2020 Trial. Feeling relieved, she stopped attending WPC since August 2021. However, her symptoms returned when she was informed about the defendant’s appeal against the conviction. She resumed treatment at the WPC since 10 February 2022 and continued with follow-up treatments once every 5 months. She said that her anxiety and nightmares increased, after knowing the trial dates for this action. 291.Aside from WPC, I note that the plaintiff also attended consultations at the Department of Psychiatry of Queen Mary Hospital. The Joint Psychiatric Expert Report (“JPR”) 292.The plaintiff was jointly examined on 29 April 2022 by Dr Wong Yee Him (“Dr Wong”) instructed by her, and Dr Benjamin Lai (“Dr Lai”) instructed by the defendant. During the examination, the plaintiff was invited to tell the experts about the Sexual Abuses. She was unable to complete her narratives (only up to the Body Check Assault), as she received a telephone call informing her that the defendant had successfully appealed against his conviction in the 2020 Trial, and she would have to give testimony again in the 2022 Trial. The plaintiff became emotional afterwards. Dr Wong said that she was visibly trembling, and when Dr Wong shook her hand, he could feel that it was tremulous, clammy and very cold. By agreement between the 2 experts, they decided not to press her for more information about the Sexual Abuses, and to evaluate her mental condition and level of functioning first. They later concluded that it was unlikely that they could gain further clinical information from more joint evaluations, and they could rely on the documents provide to them to identify details of the Sexual Abuses and to give their opinions based on them. 293.Both Dr Wong and Dr Lai gave their detailed analysis on the plaintiff’s conditions, and the cause for her psychiatric illness. Suffice it to say, both experts agreed that, based on the available medical documents, symptoms of PTSD have been noted. There were overlaps of symptoms between PTSD and a major depressive disorder (with both experts agreeing that her psychiatric symptoms do not fulfil the diagnostic criteria of a major depressive disorder). They opined that she was mentally capable to resume work as a domestic worker, and no sick leave would be required. 294.Their main differences were on the causation of the plaintiff’s psychiatric symptoms, psychiatric condition, further psychiatric treatment, prognosis, and the estimation of the permanent impairment of whole person (“WPI”), and the loss of earning capacity (“LOEC”). Causation 295.As aforestated, the discussions on quantum are on the assumption that the Sexual Abuses happened as alleged. Under such circumstance, I have no doubt that the plaintiff’s PTSD was attributed to them. 296.Pausing here, I shall add that, but for the assumption that the Sexual Abuses had happened, I would wonder whether the plaintiff’s mental illness could have some connections with the anxiety, stress and pressure from having to go through the litigations, especially having to attend trials, give evidence and subject to cross-examinations. Such query comes from the experts’ recorded pattern on how the plaintiff’s mental condition improved and regressed with and without trials (see §292 above). 297.Coming back to the experts’ opinions, the key question is whether the other stressors, as identified by Dr Lai, had contributed to the plaintiff’s psychiatric injuries. These stressors include the plaintiff’s conflicts with her colleagues (Janice and Willia) and Emy, the defendant’s threat to terminate the Contract amid her quarrel with Emy, her inharmonious stay at the boarding house highlighted by her physical altercations with the co-resident, financial stress after leaving the defendant’s employ, and having to work away from her home country and family. Dr Lai opined that these were stressors independent from the Sexual Abuses. 298.I am unable to tie these stressors to the symptoms presented by the plaintiff to the experts, and accepted by them as symptoms of PTSD. For instance, her nightmares involved only the defendant. I also see no connection between her feeling or fear and sense of hopelessness having anything to do with her disputes with colleagues and co-resident. Level and severity of her psychiatric condition 299.Dr Lai remarked that, by reason of her ability to resume employment as a domestic helper, even if she had suffered from PTSD symptoms and depressive symptoms, the degree of these should have been mild, such that her functional level had not been significantly affected. I note his comment that, at the time of the joint examination, she should no longer be affected by PTSD. I see that Mr Choy took the same line of argument in his submissions. 300.Dr Wong took a different view, detailing how PTSD is not categorised in accordance to symptom severity, under DSM-5 [34]. Hence, a condition like PTSD is either present or in full remission, since even very occasional symptoms could be greatly distressing and disruptive, which in turn could still have significant impact on the plaintiff’s functioning albeit intermittently. The plaintiff demonstrated during the joint examination that she was suffering from active PTSD symptoms. She still had nightmares, and fear and avoidance of reminders to the Sexual Abuses. She was reluctant to recount details of the Sexual Abuses, and re-experiencing of the traumatic events are still distressing, albeit at a reduced frequency. Moreover, the plaintiff was still taking antidepressant Fluoxetine at the time of the joint examination. Dr Wong concluded that she should not be taken as having a full remission unless she could remain free from PTSD symptoms 6 months after stopping the said medication. 301.Overall, I do not see much difference between the experts’ opinions on this topic. The PTSD symptoms could have subsided in March 2021 for the plaintiff, after the 2020 Trial. However, the symptoms could recur when the plaintiff recalls or is required to relive the Sexual Abuses, for instance having to recount those experiences again at the 2022 Trial and the trial for this civil litigation. When this happened, the uncontrollable nightmares of the unhappy experiences could devastate her sleep and mood. The distress she suffers from these episodes, would conceivably affect her works. However, as commented by Dr Wong, the frequency would reduce, with the passing of time (and with conclusion of all litigations). The severity, of any adverse impact on her works thus employment, would correspondingly reduce. Prognosis 302.Similarly, I do not see much difference in the expert’s opinions in this regard. Dr Wong considered the plaintiff having a fair prognosis for full recovery from PTSD, on the condition that she would not be exposed to the reminders of the Sexual Abuses. He relied on how the plaintiff was able to cease medical treatment after March 2021, when the defendant was convicted and jailed after the 2020 Trial, and how she relapsed after hearing on the day of joint examination that his appeal was allowed, and a re-trial was on the horizon. For these reasons, Dr Wong concluded that she would continue to have PTSD symptoms in the short and medium term. 303.Properly understood, Dr Lai’s opinion actually echoed what Dr Wong said. But for the defendant’s success appeal against conviction, the plaintiff could have largely recovered from her PTSD and depressive symptoms since March 2021. With the conclusions of all litigations, she could return to the mental state she had attained in March 2021, with only mild residual psychiatric symptoms. Further psychiatric treatment 304.Both experts opined that the plaintiff would require further psychiatric and psychological treatments in order for her to achieve full remission from the PTSD condition. For Dr Wong, he suggested psychiatric treatment for another 21 months (monthly treatment for 3 months, then once every 2 months for 18 months), and 12 sessions with a clinical psychologist (“CP”). 305.Dr Lai suggested that the plaintiff should receive psychiatric treatment roughly on a monthly basis (once every 4 to 6 weeks), that should continue for another 6 months after conclusion of the litigations. I think Dr Lai is more generous than Dr Wong in this regard, considering the trial for this action ended in December 2023. 6 months from that would end in June 2024, a total of 24 months from the date of JPR. 306.On the CP front, Dr Lai opined that she would require 4 to 5 sessions. 307.Both experts provided the range of fees charged by a psychiatrist and CP in the private sector. The former would range from HK$2,000 to HK$3,000 per consultation, and the latter would range from HK$2,000 to HK$2,500 per session. Dr Lai added that, the rate for the public sector would be HK$200 and HK$100 per session respectively. WPI and LOEC 308.Dr Wong assigned to the plaintiff 5% for both WPI and LOEC, whereas Dr Lai had given 3% for her WPI and 0 to 1% for LOEC, although both experts adopted the AMA Guide [35] and the Assessment Guide for Psychiatric or Psychological Impairment[36]. Behind these numbers, one should appreciate that the grades given by both experts fall within the mild impairment range according to the cited literatures. 309.With the differences in opinions between experts resolved, I shall now consider each head of claims in the sections below. PSLA 310.As said, the plaintiff claims HK$600,000 for PSLA. The defendant countered with a sum of HK$150,000, after taking into account the plaintiff’s largely recovered psychiatric condition as well as the factor of inflation. 311.On the latter point, per the Personal Injury Table Hong Kong 2019, the award for serious injury, after taking into account inflation between 1996 and 2018, ranges from HK$548,000 to HK$740,000. I agree with Mr Shum that the PTSD suffered by the plaintiff falls within such category. Adopting the views of the experts, her PTSD symptoms could recur and persist until conclusion of all litigations, notwithstanding the intermittent subsiding of the symptoms between litigations, i.e., between March 2021 and April 2022. I agree with Dr Wong that, until the plaintiff is finally free from litigations, she could not be seen as having attained full remission. I also take into account the mild nature of her symptoms as accepted by both experts, and how her works and daily living would suffer minimal adverse impact from them. 312.Mr Choy had relied on 3 authorities in support of his contention that a sum of no more than HK$150,000 should be awarded under this head[37]. However, I note in none of these cases the court was required to consider the factor of inflation. I also see that, in 2 of the 3 cases, the court had either granted the full sum claimed by the claimant, or had granted a sum which was slightly below the sum claimed, albeit the mild symptoms suffered by the claimants. 313.Considering the treatments that she had to go through, the pain and sufferings endured, and the loss of social life as documented in the JPR, and the factors set out in the preceding paragraphs, an award of HK$550,000 is justified for this head of claim. Medical expenses 314.Both experts agreed that further medical treatment would be required (see §§304 to 306 above). Mr Choy submitted that there is no evidence to support that the plaintiff had continued her treatment after the joint examination as recommended by the experts. As such, the defendant only agreed to future medical expenses for 6 months after completion of the trial for this case. Adopting HK$200 per session for psychiatric treatment, the defendant suggested a sum of HK$1,200 should be awarded for this head. 315.Mr Shum adopted the plaintiff’s calculation of this claim in the RSOD, namely 12 sessions of psychiatric treatment at HK$3,000 each, and 12 sessions of psychological treatment at HK$2,000 each. 316.I am unable to accept the submissions from both sides. First, Mr Choy’s submissions seems controverted by the plaintiff’s now withdrawn attempt to disclose further attendance slips that could support her attendances at WPC and another clinic for psychiatric and psychological treatments post the joint examination. Alas, for whatever reasons, Mr Shum had on the first day of trial extracted those documents from the trial bundle. 317.Second, the said attendance slips showed that the plaintiff had never attempted to acquire any treatments from the private sector. Even if I were not to consider those attendance slips as they were not properly disclosed, her claim in the RSOD remains unsupported by any documentary evidence. 318.In light of the above, and by deduction, I can only adopt the suggestion of Dr Lai, and award medical expenses for 6 months after the conclusion of the trial in this case, and the treatments should be received from the public sector. I would allow HK$1,200 for psychiatric treatment, and HK$600 for psychological treatment. A total sum of HK$1,800 is allowed under this head. LOEC 319.The plaintiff claims that, because of her residual symptoms, which requires regular counselling and is prone to future relapses, she was terminated from her employment contract (from October 2020 to October 2021) due to her former employer disagreeing with her spending 2 to 3 days a week on her counselling, treatment, meetings with lawyers and court hearings. 320.For the above reasons, she claims to suffer a disadvantage in the market. Hence, she seeks compensation worth 12 months of her salary at HK$6,075 per month. The HK$6,075 represents HK$5,000 as the basic salary, with HK$1,075 as the food allowance. 321.Mr Choy argued that, as she had resumed full employment, and the experts’ assessment on the percentile for her LOEC being unhelpful and inadmissible[38], there is no real and/or substantial risk that at some future date during the plaintiff’s working life, she would lose her employment due to her disadvantage in the labour market. 322.Behind the numbers, both experts agreed that there would be some minor residual symptoms. With the need for her to obtain further medical treatments for 6 months after the trial, there is a chance, albeit slight, that she could lose her employment for this reason[39]. However, I do not see that she would need more than 6 months to find an alternative employment, in view of her experiences working as a domestic helper in Hong Kong. I shall therefore only make an award under this head representing 6 months of her remuneration, in the sum of HK$36,450 (HK$6,075 × 6 months). Aggravated damages 323.The plaintiff claims HK$100,000 for aggravated damages, on the basis that the Sexual Abuses were obscene in nature, and involved the exploitation of her vulnerability as a foreign worker with little local support. It involved breach of trust and professionalism of the defendant as a medical doctor, and was an abuse of his position of authority as the employer. In addition, the Sexual Abuses involved repetitious conduct for nearly 7 months, imposing prolonged humiliation and loss of dignity on the plaintiff. 324.In his submissions, Mr Shum cited the case of Appleton & Ors v Garrett [40] in identifying the situations where aggravated damages would be appropriate. Dyson J, agreeing with Lord Devlin’s observation in the case of Rookes v Barnard [41], said: -
325.The above principles have been followed by the courts in Hong Kong. In Ambarini-Bt-Sahari-Kasto v Fok Ka Ching [42], a domestic helper was sexually assaulted by her employer’s cousin. The court awarded the full amount of HK$80,000 being claimed as aggravated damages. The factors that the court considered were identical to those relied upon by the plaintiff in our case (see §323 above). 326.Mr Choy preferred the case of Tangarorang [43] under which the court awarded a sum of HK$30,000 on a lump sum approach where there were 3 incidents of indecent assault committed on the domestic worker. 327.I prefer to adopt the Fok Ka Ching case, since, if the plaintiff’s case on the Sexual Abuses were accepted, the duration that they lasted for well exceeded those suffered by the claimants in the Tangarorang case and the cases referred to by the learned judge. Balancing everything (e.g., plaintiff had more familiarity with Hong Kong at the time when the Sexual Abuses happened; the breach of trust committed by the defendant extended to his role as a medical doctor aside from being an employer; the duration of the Sexual Abuses), I would award HK$90,000 as aggravated damages. Exemplary damages 328.Both counsel agreed on the adoption of principles set out in the case of C v Hau Kar Kit [44], where the learned deputy judge said: -
329.Notwithstanding the above principles, Mr Choy added that the award of aggravated damages would by itself be a severe and adequate punishment for the defendant, and the circumstances in our case does not justify an additional award of exemplary damages. Mr Choy cited the case of Faridha Sulistyoningsih v Mak Oi Ling Karen[45], where DDJ Anthony Kwok (as His Honour then was) said: -
330.In reply, Mr Shum argued that exemplary damages is warranted to reflect on the seriousness of the defendant’s conduct. The nature of the Sexual Abuses warranted imposition of such punishment. It is a breach of trust committed by the defendant under dual capacities as an employer and a doctor. Those incidents happened in the House, the plaintiff was his servant, and the Sexual Abuses lasted for a few months, are all factors in support of additional punishment to be imposed. Moreover, his denials in pleadings were rebutted by the Scandal Videos and the 4 Massage Videos. The plaintiff was forced to give evidence 3 times by these phony defences. The other heads of damages are not sufficient to reflect on the seriousness of these conducts. 331.The matters highlighted and relied upon in Mr Shum’s submissions have mostly been considered and accepted by this Court when assessing on whether aggravated damages should be awarded. I do not see there being any reason why the defendant should be punished again for the same wrongful conducts. The Scandal Videos and the 4 Massage Videos did controvert his evidence to a certain degree, but they also did not support the plaintiff’s case, as found in the above. The plaintiff only had to give evidence once by the defendant’s defences. Like what Mr Shum said, the defendant gave no testimonies at the 2020 and 2022 Trials. 332.Overall, I am not minded to exercise my discretion and award any exemplary damages on top of the aggravated damages already awarded. Assuming that I were wrong on this, I would adopt the figure suggested by Mr Choy (HK$30,000) instead of the HK$80,000 sought by the plaintiff under this head. Summary on quantum 333.On the assumption that liability is established against the defendant, the plaintiff should be awarded with the following damages: -
CONCLUSION 334.The plaintiff’s claim is dismissed. 335.Costs of the plaintiff’s claim (including all costs previously reserved) shall follow the event, and be paid by the plaintiff to the defendant, with certificate for leading counsel, to be taxed if not agreed. The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations. Such costs order nisi shall become absolute unless any party applies to vary it within 14 days of this Judgment. 336.Finally, I am most grateful to counsel for their assistance.
Mr Erik Shum and Ms Yvonne Leung (on pro bono basis), instructed by Patricia Ho & Associates, assigned by the Director of Legal Aid, for the Plaintiff Mr Edwin Choy SC and Mr Jacky Ho, instructed by Haldanes, for the Defendant [1] ESCC 2267/2020 and ESCC 997/2022, the latter being a re-trial. [2] HCMA 359/2021. [3] Agreed at the sums of HK$81,223, HK$32,000 and HK$2,000, respectively. [4] At pp 303-304 of the Trial Bundle. [5] See pp 306-316 of the Trial Bundle. [6] See p 305 of the Trial Bundle. [7] According to the Joint Psychiatric Expert Report, §33, at p 227, the plaintiff said Janice left the defendant’s employment on 8 November 2018. [8] See p 319 of the Trial Bundle. [9] At p 320 of the Trial Bundle. [10] He eventually resigned in 2021. See §172(4) of this Judgment. [11] See condition 1(c) of the List of Duties. [12] [2023] HKDC 1792, at §§144 to 147. [13] See transcript of the 2022 Trial, lines I to K, at p 1458 of the Trial Bundle. [14] At §33, p 227 of the Trial Bundle. [15] See §26 of the MLR, at p 152 of the Trial Bundle. [16] See Line B, at p 1458 of the Trial Bundle. [17] Based on the consultation with the plaintiff on 17 February 2020. See pp 174 to 177 of the Trial Bundle. [18] The name is provided by the plaintiff; the name used by the defendant and counsel is “Willia”. Notwithstanding the difference, there is no dispute that both parties were referring to the same person. For consistency, I shall in this Judgment adopt the name “Willia”. [19] For more details about the dispute between the plaintiff and Willia, please see §§27 to 34 of the MLR, at pp 152 and 153 of the Trial Bundle. [20] See the plaintiff’s statement to the police dated 17 December 2019, Answer 36, at p 397 of the Trial Bundle. [21] According to the plaintiff, Donna was the helper of the defendant’s girlfriend. [22] See the plaintiff’s statement to the police dated 17 December 2019, Answer 30, at p 396 of the Trial Bundle. Helena was not mentioned therein. The plaintiff denied Helena being a recent invention, citing Helena’s warning that her name should never be revealed. [23] See §§45 to 46, at p 154 of the Trial Bundle. [24] See p 339 of the Trial Bundle. [25] Dated 15 March 2022. [26] At p 337 of the Trial Bundle. [27] See §172(1) of this Judgment. The defendant was 80 years old in 2018. [28] See sections 14, 20A and 28 of the MRO. [29] See clauses 3 and 5, at p 304 of the Trial Bundle. [30] [1983] 6 IR 1, at p 27. [31] See p 318 of the Trial Bundle. [32] Clauses 4 and 9 of the Health Declaration. [33] See §§11 and 15; the defendant also said that the Health Declaration was a standard form that he had used during his practice. [34] The 5th edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association in 2013, agreed by the experts to be adopted for psychiatric diagnostic criteria. [35] 5th Edition of the Guides to the Evaluation of Permanent Impairment published by the American Medical Association in 2001. [36] Issued by the Employee’s Compensation Board of the Labour Department, Hong Kong. [37] Fu Hoi Lin v Tsio Kan Ching [2019] HKDC 488; Tangarorang Jessamie Mendrez v Chan Chau Wing (unreported, DCPI 433/2010, HHJ CM Leung, 29 January 2013); and Wong Ka Wai Johnny v Lee Man Wai (unreported, DCPI 145/2010, DDJ Kent Yee (as His Honour then was), 16 January 2012). [38] See Yuen Macie v Yeung Ying Kit [2018] HKCA 125 at §22. [39] Following the rationale for awarding loss of earning capacity as set out in the case of Chan Wai Tong & Anor v Li Ping Sum [1985] HKLR at 183B-D. [40] [1996] PIQR, P1, at P4. [41] [1964] AC 1129, at p 1221. [42] [2017] 1 HKLRD 880. [43] Supra, note 37. [45] (unreported, DCPI 1575/2005, 4 April 2007). | ||||||||||||||||||||||||||||||||||||||||||
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