Tangarorang Jessamie Mendrez v. Chan Chau Wing

DCPI 433/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 433 OF 2010

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BETWEEN

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J U D G M E N T

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1.The plaintiff (“TJM”) was indecently assaulted and intimidated by the defendant (“Chan”) when she worked as a domestic helper under the employ of Chan’s wife in 2008. TJM now claims damages for her sufferings and loss. Chan denies liability.

2.Though unrepresented, Chan has all along responded and put up a fight in respect of matters as detailed as compilation of the trial bundle.  However he was absent from the pre-trial review.  In view of the failure to contact him at the address and telephone number last provided, I then gave directions for substituted service.  That having been done, Chan remained absent from the trial.

3.I saw no reason why TJM should be prevented from proceeding.

LIABILITY

4.TJM was born in 1984 and 23 years old at the time when she was employed by Chan’s wife.  This was her first ever contract to work as a domestic helper in Hong Kong.  Chan’s family then consisted of himself, his wife and 2 daughters aged 13 and 9 respectively.  The family then resided in Shatin, New Territories.

5.TJM arrived from the Philippines to report duty on 15 January 2008.  One week into her service at the apartment of Chan’s family, in the afternoon of 18 January 2008, Chan took her to a nearby park where he asked her to be his girlfriend.  Chan threatened to send her back to the Philippines if she refused.  Upon her refusal, Chan proceeded to kiss her, hug her and fondle her breasts with hands as well as touch her buttocks.  Chan further threatened her life if she uttered a word to his wife.

6.TJM called the employment agency for help.  But 3 days later, on 21 January 2008, while TJM was working at the apartment, Chan pushed her into the bathroom against her will; and told her to undress and to sit on the toilet bowl.  He threatened to send her back to the Philippines if she did not have sex with him.  He again threatened to give her hard times if she refused.  TJM yielded against her will; and Chan sat on her thigh and fondled her breasts for 30 to 45 minutes.

7.In the same afternoon, Chan took TJM to a karaoke lounge in Shatin where Chan again asked her to be his girlfriend.  She refused; but Chan proceeded to kiss her on the lips against her will.  He threatened TJM not to utter a word to his wife about what happened there.

8.TJM again called the employment agency for help; and complained to Chan’s wife that night instead.  Chan’s wife apologised; and gave TJM her contact number in case of emergency.

9.On the following day, the employment agency called TJM at Chan’s home to check on her safety.  Later, police officers and the representative of the employment agency arrived.  TJM was escorted to a shelter.  On 23 January 2008, the police and the representative of the employment agency accompanied TJM to collect her belongings from Chan’s apartment.

10.Chan was eventually charged with 3 counts of indecent assault and 3 counts of criminal intimidation (STCC 2523/2008).  He was convicted after trial of all counts; and was sentenced by the Magistrate to a total of 5 months of imprisonment on 10 June 2008.  The appeal against conviction was dismissed on 24 September 2008 (HCMA 587/2008).  The application for leave to appeal to the Court of Final Appeal (FAMC 63/2008) was dismissed on 27 November 2008.

11.9 months later, on 28 March 2009, at where she was then staying, TJM received a telephone call from Chan, who threatened to take her life in revenge.  TJM reported the matter to the police.  Chan was again arrested and charged with criminal intimidation (ESCC 4316/2009).  He was convicted after trial and was sentenced to 3 months’ imprisonment on 24 February 2010.  That conviction was quashed on appeal (HCMA 217/2010).

12.Pursuant to section 62 of the Evidence Ordinance, Cap 8, the convictions are admissible as evidence that Chan committed those offences; and the documents in connection with the convictions are admissible as evidence of the factual basis on which he was so convicted.  It will be the burden of Chan to prove the contrary, if so alleged, on the balance of probabilities.

13.As far as the indecent assaults and criminal intimidation on 18 January 2009 and 21 January 2008 are concerned, I take into account the evidence of TJM, the transcript of the criminal trial before the magistrate and the fact that Chan did not come forward to substantiate his challenge.  I accept the evidence of and adduced on behalf of TJM; and find those factual allegations against Chan proved.

14.As far as the alleged criminal intimidation on 28 March 2009 is concerned, the conviction was quashed on appeal because the learned judge found that the trial magistrate had inhibited the conduct of defence during the trial at various stages so that Chan did not receive a fair trial.  Reading the learned judge’s written reasons dated 24 May 2010, I found no adverse observation about the evidence of TJM at the trial below or her credibility.  Considering the evidence of TJM and the absence of contradiction here, I accept her evidence; and find on the balance of probabilities that the alleged intimidation took place as alleged.

15.That the conduct of Chan on the occasions mentioned above constituted tortuous acts against TJM is beyond dispute.  Liability is established.

16.Though not pleaded as the tortuous conduct founding the claim, various events subsequent to the convictions of Chan were also referred to in TJM’s evidence (as per her statement).  They included the telephone calls and message received in 2010 which TJM believed were initiated by Chan in rage.

17.Another incident happened on 15 March 2011 when TJM left the clinic of her psychiatric expert Dr Wong Chung Kwong.  Chan, being the defendant herein, was entitled to be, and had been, informed of the appointment for medical examination by the expert. Chan was suspected of stalking her. TJM identified him to the representative of her solicitors accompanying her then.

18.TJM has reported these incidents to the police and her statement to the police was among the documents in the trial bundle.

QUANTUM

TJM’s condition

19.TJM was examined by Dr Wong Chung Kwong, psychiatric expert, on 15 December 2009.  This led to his expert report dated 4 January 2010.  She was further examined on 15 March 2010; and Dr Wong produced his updated report on 6 April 2011.  Chan has challenged the admissibility of these reports; but there is no contrary medical expert evidence.  Of course, Chan eventually did not come forward to substantiate his challenge.

20.Dr Wong recorded that TJM described herself as a cheerful, good tempered and active person before the ordeals she met.  She enjoyed working; and worked hard.  She had a boyfriend at the air force back in the Philippines.  They used to maintain contact on the telephone; but had broken up after the above incidents.

21.As a result of the above incidents, TJM felt very strong fear.  She felt depressed and hopeless.  She had experienced quick heart beat and body tremor.  The flashbacks of the incidents made her more fearful and her chest uncomfortable.  She cried; and had difficulty to sleep.  She could hardly concentrate at work.  She felt mentally and physically exhausted.  The fear about Chan’s threat, coupled with pressure from debt obligation owed to the agency back in the Philippines, drove her to desperate behaviour such as cutting her left wrist with a knife.

22.During the examination on 15 December 2009, TJM rated her fear level at 10 out of a scale of 1 to 10 when the incident inside the bathroom of Chan’s apartment on 21 January 2008 happened.  As at the time of the examination, she rated her fear level at 6 out of 10.  She had depressed mood.  Flashback was less frequent and severe than before.  But when that occurred, she still had palpitation, feeling of suffocation and tremor of the body.  There was still difficulty in getting to sleep; and she would wake up from time to time.

23.In his second report, Dr Wong recorded TJM’s account of the other episodes including that after her examination at his clinic on 15 March 2011 mentioned above.  The episodes made her feel panicky and strong palpitation of the heart.  She breathed fast.  Her body shook.

24.TJM still complained about flashbacks and fear of the assault.  She continued to fear that Chan might find and hurt her.  She continued to be vigilant when going out; keeping a lookout for any Chinese man that resembles Chan.  When she saw one, she felt scared, palpitation and cold hands.  The level of fear at the time of the second examination was 4 out of a scale of 1 to10.

25.In terms of functionality, TJM managed daily living activities, including self care, household chores, going out and taking transportation.  She started employment again as a domestic helper in April 2010; and felt fortunate that her new employer and his family are treating her well.

26.Dr Wong opined that as a result of the assaults, TJM suffered from post-traumatic stress disorder (PTSD).  He explained that PTSD usually affects people who have been exposed to very traumatic or frightening events, often associated with physical danger and threat to life.  In the case of TJM, the indecent assaults with intimidation were life-threatening experiences particularly when they happened to her without warning or any protection.

27.In Dr Wong’s opinion, TJM started to suffer PTSD after the assault on 18 January 2008.  This was aggravated by the further assaults on 21 January 2008.  Whilst such disorder could be treated, it took its natural course without treatment in the case of TJM.  The fact was that TJM had no medical treatment prior to seeing Dr Wong.

28.In court, Dr Wong explained that when he first examined TJM on 15 December 2009, she was already much better than before.   She was more or less the same during the second examination on 15 March 2011.  However one common observation in psychiatry is that patients often improve spontaneously even without treatment but then the condition becomes plateau.  Worldwide statistics show that 50% of patients improve spontaneously without treatment in the first 3 months while the other 50% take a chronic course with different symptoms and impairment.

29.Dr Wong added that once improved to a certain extent, the patient would manage certain level of functioning such as self care, family relationship and even work.  However quality of life and performance has already been compromised.  More importantly the patient remains vulnerable to future stressors that, if happen, could result in deterioration.  In the case of TJM, the intimidation incident on March 2009 was an example.  After that, the condition of TJM again improved until it reached plateau again.

30.According to Dr Wong, similar pattern in the future without actual treatment is well known and would be expected in the case of TJM.  It is likely that TJM would suffer from mild residual symptoms reflected in her vulnerability to future stressors and compromised quality of life such as courtship and marriage.

31.In Dr Wong’s opinion, sick leave on psychiatric ground for 6 months after 21 January 2008 would be reasonable.  By late July 2008, again on psychiatric ground, TJM should have been able to resume work as a domestic helper with some impairment of functioning and loss of earning capacity.  TJM maintained a mild level of impairment until early 2009 when she was again threatened by Chan.  That caused deterioration, which would have required another period of 3 months’ sick leave.  For reference, this amounted to 8% impairment of the whole person.

32.The prognosis of TJM is fairly good in that PTSD could be treated.  Two conditions however need to be satisfied: first, TJM needed psychiatric treatment; and second, stressor by threat posed by Chan could be curbed in the future.  As far as the first condition, which is immediately manageable, is concerned, Dr Wong recommends treatment by psychiatric medication and psychotherapy for 1 year.

33.Reckoning that the public sector is overloaded with patients, Dr Wong recommends treatment in the private sector.  For reference, and subject to the treating psychiatrist, the treatment regime may consist of weekly 1-hour session during the first month; fortnightly 1-hour session during the next 3 months; and monthly 1-hour session during the remaining 8 months.

34.Considering the reports and his evidence in court, I find Dr Wong’s opinion is solid and convincing.

Pain suffering and loss of amenities (PSLA)

35.Mr Sadhwani referred to various cases involving victims of sexual abuse or assault: Re O (a minor) [1997] CLY 1865; Re SJY [1998] CLY 1517; Luk Sung Fei Veronica v Chau Chung Shun & Ors, HCPI 392/2009 (29 June 2012).  I have take into account that the first 2 cited were not local cases and thus lacked references to the local circumstances.  Further, all 3 cases cited were materially more serious than the present case in terms of the victim’s age, the severity of the abuse, the duration the victim was subject to abuse and the severity of the resultant psychological/psychiatric impairment caused to the victim.

36.Acknowledging that the above cases are readily distinguishable from the present case, Mr Sadhwani suggested an award in the region of HK$170,000.  Taking into account all the circumstances, I award general damages in the sum of HK$140,000 under this head.

Aggravated damages

37.In Appleton v Garrett [1996] PIQR P1, it was held that assault can attract aggravated damages.  It is compensatory of the injury to feelings including the dignity, mental suffering, humiliation or distress as well as anger and indignation arising from the circumstances of the attack.  The conduct of the assailant as well as the scale and horror of the assault are relevant.  If there are aggravating features causing such aggravated damage, aggravated damages may be award.

38.Warly Cabaneros v Liu Man Kuen, HCPI 121/2001 was an instance of an Indonesian domestic helper being assaulted by her employer where aggravated damages in the sum of HK$50,000 were awarded for a single incident.  In Faridha Sulistyoningshi v Mak Oi Ling Karen, DCPI 1575/2005, similar amount was awarded for apparently more serious and frequent infliction of injury on the domestic helper.

39.In the present case, Chan abused his position as the employer of TJM.  Within days of her arrival without any prior experience of working in Hong Kong, TJM experienced repeated the indecent assaults and intimidation.  The conduct of Chan was malicious and TJM’s pride, feeling and dignity were injured. Psychiatrically, TJM’s distress once caused her to wound herself.  All these reflect the aggravating features that warrant an award of damages separate from the ordinary award for PSLA.

40.I am not inclined to adopt the mathematical approach in assessing such an award as proposed by Mr Sadhwani.  To reflect the repeated offences of similar nature committed by Chan within a short period of time, I also find the individual award for each assault incident undesirable.  I prefer a lump sum approach in making an award.  HK$30,000 is awarded, which is close to the region suggested by Sadhwani using his approach.

Pre-trial loss of earnings

41.According to her contract with Chan’s wife, TJM’s monthly salary was HK$3,480 for a 2-year term of service until January 2010.  The employment ended after just 6 days.  According to TJM, she was required by the police to stay in Hong Kong pending the conclusion of criminal proceedings.  The Immigration Department did not allow her to seek alternative employment until after the legal proceedings (except for the present action) had been concluded.  In the meantime, her visa to stay was extended.

42.Mr Sadhwani submitted that the situation of TJM is not materially different from the plaintiff in Faridha Sulistyoningsih (above).  There the court held that for the purpose of pre-trial loss of earnings, the domestic helper had been constructively dismissed on the date when she fled from the physical abuse of the employer.  The helper was justified in terminating the employment contract without notice and refused to carry on in the event of his having a reasonable apprehension of danger to her life or personal injury.  As the helper was not allowed by the Immigration Department to change her employer until much later, she was entitled to loss of income over that period.

43.Mr Sadhwani submitted that TJM should be entitled to her loss of income that should have been paid for the term of her contract with Chan’s wife.  I agree.  The amount is HK$3,480 x 24 months = HK$83,520.  However the following should be taken into account.

44.First, among the documents is an acknowledgement of receipt of HK$618 being wages in arrears from 17 to 22 January 2008 apparently from Chan’s wife.  TJM did not recall having received that amount; but she recalled receiving a sum from her at the Labour Department on one occasion.  The documents show that that happened on 16 August 2008.

45.The acknowledgement of receipt was undated and unsigned by TJM.  In the absence of contrary evidence, I do not find that TJM had actually received that amount of HK$618.

46.Second, the amount TJM received from Chan’s wife at the Labour Department on 16 August 2008 consisted of cost of the air ticket and travelling allowance.  They were what TJM would have been entitled to on top of her salary.  But there was also a settlement sum of HK$2,000.  TJM was unable to explain what that was for. However, that could only be settlement of what TJM was entitled to claim pursuant to the contract and the Employment Ordinance.  As it could only be compensatory, though not damages, the amount, in my view, should be given credit to when assessing the loss of earnings suffered by TJM.

47.Third, TJM admittedly left Hong Kong for the Philippines for 2 months from August to October 2009.  According to her, it was because her parents were not well.  She admitted that had she worked under the contract with Chan’s wife uneventfully, she would not have been entitled to leave for those 2 months with pay during the term of her contract.  In the circumstances, she is not entitled to claim for loss of salary during those 2 months.

48.In short, the pre-trial loss of earnings suffered by TJM should really be HK$(83,520 – 2,000 – 3,480 x 2) = HK$74,560.

Loss of earning capacity

49.This is to compensate the handicap in the labour market in that the plaintiff would be faced with real risk of not being able to secure or to maintain employment. HK$150,000 was pleaded under this head of claim; but Mr Sadhwani suggested an award of HK$60,000 at the trial.

50.Dr Wong’s assessment of TJM’s loss of some earning capacity (2% in quantitative terms) was made contingent upon 2 conditions, namely, completion of the 1-year course of psychiatric treatment that he recommended (which will be discussed below) and the absence of harassment by Chan in the future.  As far as the latter of the 2 conditions is concerned, TJM confirmed in court that Chan last appeared in March 2011 (mentioned above); and she has never heard of Chan ever since.

51.TJM was able to secure employment in April 2010.  Her current employer has been supportive and already renewed her contract.    There is no suggestion that she has been unable to cope with any particular aspect of her work.  But the chance of need to change employer in the future cannot be ruled out.  That TJM’s psychiatric vulnerability may affect her ability to cope with that should not be neglected.

52.Considering all the circumstances, including the degree of handicap assessed by the expert, I am prepared to allow this head of claim but only to the extent of HK$30,000.

Future medical expenses

53.As mentioned, Dr Wong recommended a course of psychiatric treatment for a term of 1 year.  Specifically, this court is concerned whether such treatment will indeed be sought, if this item of claim is allowed, in view of the lack of treatment so far.

54.In court, TJM explained that when she used to be very depressed and fearful after the incidents, she was offered consolation by the church sisters.  She had no idea about psychiatric treatment.  She was subsequently aware of the recommendation for treatment but she lacked the financial resources to do so.  She was clear enough in her intention to seek such treatment as long as her current employer would accommodate.

55.TJM expressed her confidence that her present employer would be willing to accommodate her, provided that prior arrangement is made.  As mentioned, her current employer has been supportive; and has renewed her contract.  She has been able to attend to all her appointments with her lawyers and Dr Wong as well as this trial.

56.I am impressed by the evidence of TJM in this respect.  She should be allowed the opportunity to seek such treatment as recommended.  I accept Dr Wong’s recommendation that it will be more realistic to plan such treatment in the private sector.  Dr Wong estimated the expenses would amount to HK$45,000.  This is claimed; and I allow it.

Miscellaneous special damages

57.Various items of special damages are claimed.  They represent the amount that TJM has spent during the period when she had no choice but to stay here jobless.  According to her, she had to depend on loans including those obtained by her siblings in the Philippines in order to enable her to sustain here during that period.

Visa extension

58.Following the termination of her employment contract, TJM’s work permit became invalid. Her stay in Hong Kong, as required by the police and Immigration Department, had to be extended by visa.  The documents show a total of 22 visa extensions at the cost of HK$160 each.  An amount of HK$160 x 22 = HK$3,520 had been spent.

Alternative accommodation

59.TJM had to leave Chan’s apartment.  She moved to stay at a shelter operated by a Catholic centre in Apleichau.  She had to pay $10 per day for accommodation.  This lasted from March 2008 to March 2009.  The amount incurred was HK$10 x 30 days x 13 months = HK$3,900.

60.Out of concern about the centre’s safety, the centre had to ask TJM to leave the shelter.  She did; and moved to a boarding house in Causeway Bay at the end of March 2009.  She had since stayed there until she took up employment with her current employer in April 2010.

61.Up to April 2010, she paid HK$400 per month for the accommodation.  As mentioned, she left Hong Kong for the Philippines for 2 months in 2009.   She had incurred HK$400 x 10 months = HK$4,000.

Food and others

62.But for the termination of her contract with Chan’s wife, TJM should have been provided with food or food allowance of HK$300 per month pursuant to the contract.  According to TJM, she was also provided with basic personal hygiene items such as toothpaste and shower gel.

63.During the period when she took the alternative accommodation, TJM had to spend separately on food and such utility.  That was about HK$40 per day for food and HK$200 per month for utility (except for the 2 months when she was in the Philippines during that period).  As damages for this claim in tort, I do not think TJM’s claim for expenses on food should be limited by the rate of food allowance that she would have been entitled to contractually.  I accept the amount actually incurred was HK$(40 x 30 days + HK$200) x 24 months + = HK$33,600.

64.TJM claims mobile phone expenses at HK$100 per month for the same period as above. She explained that she was required to maintain contact with the police and lawyers.  But she also admitted in court that had nothing happened, she would have kept a mobile phone while working in Hong Kong.  To reflect that, I allow part of the amount claimed.  That will be HK$1,200.

Transportation

65.Transportation expenses were incurred for the purpose of attending the police station, lawyers’ offices, medical expert’s clinic and the court.  Breakdown was given; and I allow the amount of HK$2,010 as submitted.

Total

66.In total, miscellaneous special damages awarded amount to HK$(3,520 + 3,900 + 4,000 + 33,600 + 1,200 + 2,010) = HK$48,230.

Summary

67.In summary, damages shall be awarded as follows:

PSLA	HK$140,000
Aggravated damages	HK$30,000
Pre-trial loss of earnings	HK$74,560
Loss of earning capacity	HK$30,000
Miscellaneous special damages	HK$48,230
Future medical expenses	HK$45,000
Total:	HK$367,790

68.There shall be interest on general damages (HK$140,000 + 30,000) at 2% per annum from the date of writ and on special damages (HK$74,560 + 48,230) at 4% per annum from the date when TJM moved out of Chan’s apartment (23 January 2008) until today.

ORDER

69.Judgment is entered against Chan for damages in the above sum with interest as aforesaid.  Interest from today until full payment runs at the judgment rate.

70.TJM shall have the costs of this action, including any costs reserved.  Costs shall be taxed, if not agreed, with certificate for counsel.  Her own costs shall be taxed in accordance with legal aid regulations.  

Mr Kamlesh SADHWANI instructed by Messrs Vidler & Co for the plaintiff on the assignment of the Director of Legal Aid

The defendant, absent