HKSAR v. Law Wan Tung

DCCC 421/2014 &
DCCC 651/2014 (Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS421 & 651 OF 2014

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REASONS FOR VERDICT

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1.This trial involved 3 victims. All are domestic helpers from Indonesia employed by the defendant at different times. Chronologically, PW9 was employed first and worked for the defendant in her family home between 19 April 2010 and the 30 March 2011. PW10 was employed between October 2011 and 4 December 2011. PW1 worked for the defendant between the 30 May 2013 and 9 January 2014. PW9 and PW10 did not make a police report against the defendant until they recognized their previous employer in the media reports of the defendant’s abuse of PW1.

Background and Issue

2.The defendant lives in Hong Kong with her family including 2 teenage children.  She has very high standards of cleanliness and hired the 3 victims as foreign domestic helpers to clean her home only.  They had to clean 20 hours a day and were only allowed to sleep for 3 to 4 hours during the day.  They had to work through the night.  There are allegations by all 3 of assault by the defendant and threats from her.  PW9 alleged the defendant hit her with her bare hands often and once hit her across the back with the bamboo end of a feather duster.  PW10 alleged the defendant slapped her and once grabbed her arm and twisted it.  Both allege the defendant threatened to kill them. PW1 alleged the defendant began beating and assaulting her often about a week after she tried to run away.  The occasions were almost daily and too numerous to recount or recall over a period of about 6 months.  The safety and wellbeing of her family at home in Indonesia was threatened regularly to keep her in line and silent.  She was not paid any salary during her employment and had to work on her rest days and any statutory holiday.  She was sent home by the defendant in such a poor physical state she was admitted into hospital the day after she arrived home in Indonesia.  Photo album P11 was taken of PW1 when she arrived home on the 10 January 2014 and before she was taken to hospital.  Photo Album P4 was taken on the 24 January of PW1 by the Hong Kong police whilst she was still in hospital.  They show her physical state and injuries the day she returned to Indonesia as well as 2 weeks later.

3.The case came to light in the media just after PW1 was admitted into hospital which led to the Hong Kong police travelling to Indonesia to visit the defendant and take a statement from her.  The defendant was arrested at Chep Lap Kok Airport on the 24 January 2014 after she was stopped by an immigration officer as she prepared to depart the territory.

4.There are 2 categories of offences.  Firstly the assaults and threats charges, Charges 1 to 10 and secondly the failure to pay PW1 wages, grant her a statutory holiday and a rest day, Charges 11 to 20.  The defendant pleaded guilty to Charge 21, a failure to take out insurance for PW1.

5.The defendant denies any of the allegations made against her.  She did not assault any of the alleged victims nor did she threaten them or their family members.  She may have had very high standards of cleanliness she insisted her helpers maintain but it did not amount to any criminal offence.  Their allegations were fabricated and designed to falsely accuse her.  They may have hidden agendas.

6.The issue is one of credibility.  The defence does not challenge the medical evidence submitted or the photographic evidence.  The defence do not challenge to any material extent the evidence of witnesses other than the 3 victims.  The issue is whether or not the victims are credible and whether the ingredients of the charged offences have been proved beyond reasonable doubt.

The Charges

7.The contested charges can be divided up as follows.  Where PW1 is concerned;

Charge 1; On or about the 8 July 2013, the defendant at home unlawfully and maliciously inflicted grievous bodily harm upon PW1. Contrary to S19 of the Offences against the Persons Ordinance. Cap 212

Charge 2; On an unknown day between July 2013 and October 2013, the defendant at home committed the same offence against PW1 contrary to Section 19 of the same Ordinance.

Charge 3; On an unknown date between July 2013 and October 2013 the defendant at home assaulted PW1 thereby occasioning her actual bodily harm, contrary to Section 39 of the same Ordinance.

Charge 4; On an unknown day between September 2013 and October 2013 the defendant at home unlawfully and maliciously caused grievous bodily harm to PW1 with intent to do her grievous bodily harm, contrary to Section 17 of the same ordinance.

Charge 5; On an unknown day between the 30 December 2013 and the 3 January 2014 the defendant at home assaulted PW1 contrary to common law and punishable under section 40 of the same Ordinance. A common assault charge.

Charge 6; On the 9 January the defendant at home threatened PW1 with injury to her parents with intent to alarm PW1 contrary to sections 24(b) (i) and Section 27 of the Crimes Ordinance, Cap 200.

Charges 11 to 18 relate to a failure to pay wages within the due date. This is one charge for every month PW1 was owed a monthly salary by the defendant and was not paid it, hence 8 charges for 8 months. This is contrary to Section 23 and 63C of the employment ordinance Cap 57.

Charge 19; the defendant without a reasonable excuse failed to grant PW1 a statutory holiday on the 1 January 2014 contrary to section 39 of the same ordinance Cap 57.

Charge 20; the defendant without a reasonable excuse failed to grant PW1 a rest day on the 5 January, a Sunday contrary to Section 17 of the same ordinance, Cap 57.

Where the 2nd Victim, PW9 is concerned;

Charge 7; On an unknown day between the 19 April 2010 and the 30 March 2011 the defendant at her then home in Tai Kok Tsui, Kowloon assaulted PW9 contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap 212. A common assault charge.

Charge 8; On an unknown day in or around August 2010 the defendant at home threatened PW9 with injury to her person with intent to alarm PW9 contrary to sections 24(a) (i) and Section 27 of the Crimes Ordinance, Cap 200.

Where the 3^rd Victim, PW10 is concerned;

Charge 9; On an unknown day between November 2011 and December 2011the defendant at her then home in Tai Kok Tsui threatened PW10 with injury to her person with intent to alarm PW10 contrary to sections 24(a) (i) and Section 27 of the Crimes Ordinance, Cap 200.

Charge 10; On the 4 December 2011, the defendant at home assaulted PW10 thereby occasioning her actual bodily harm, contrary to Section 39 of the Offences against the Person Ordinance.

8.An enormous number of issues and incidences were covered by PW1 and other witnesses during the course of this trial.  It is simply not practical in the course of these reasons for verdict for me to attempt to cover every aspect of events covered by every witness; to identify individually and discuss every discrepancy, real or perceived; to deal with every argument or submission made by counsel for the prosecution and the defence.  However, I have carefully borne in mind all of the evidence of all of the witnesses, the strengths, the weaknesses, the contradictions, the discrepancies, and the support to be found amongst their evidence for and against the prosecution and the defendant.  That I do not mention a particular piece of evidence or submission does not mean that I have not considered it or factored it into my decision making.

9.I will deal with the evidence of all 3 victims in detail and then supplement or contrast it with salient features of the evidence from other witnesses.

THE PROSECUTION CASE

PW1 and the evidence related to her allegations.

10.PW1, Ms Erwiana Sulistyaningsih came to Hong Kong aged 21 years old to work as a domestic helper on the 27 May 2013.  She had signed up with an Indonesian Employment agency in Jakarta to work abroad as a domestic helper.  She received training for a period of 8 months in Jakarta.  This included training in domestic duties and learning punti to communicate with employers in Hong Kong.  She had never worked as a domestic helper prior to coming to Hong Kong.  She knew she was to be paid $3920 per month.  She also knew she had to pay an agency fee to get a job in HK and receive training preparatory to arriving here.  The fee was to be paid by installments of HK$2543.00 per month for 6 months.  It is clear she had a contract with the defendant before she arrived in Hong Kong.  Her Hong Kong employment contract was dated the 22.3.2013, Exhibit P1.  These details are not disputed and dealt with in the 1^st admitted facts P16.  Chan’s Asia recruitment agency is the agency on record who arranged this contract.  When she arrived she did not go straight the defendants home.  The agency arranged a medical examination and visits to the immigration department to apply for a HK ID card.  PW1 did not see her passport again until she left Hong Kong nor did she ever see her ID card issued.  She did not know who had these items whilst she was in Hong Kong. 

11.She was picked up by the defendant on the 30 May 2013 and taken home to an apartment in Tseung Kwan O.  There is a sketch of the defendant’s home at P13 and 13A.  There are also photographs of the home in the photo album P5.  PW1 said the defendant lived there with her 2 teenage children.  She never saw the defendants husband in 7 months of working there.  She recalls arriving at the home on the 30 May and being given instructions on how to clean the home all through the night.  Without sleep she started work proper the next morning.

12.Her schedule included a maximum of 4 hours sleep from 1pm to 5pm every day.  She was fed twice a day, before she slept and after she woke up.  She was given several slices of bread each time.  She was also given a bowl of left over rice and meat; left over from the defendant’s family meals.  She was always hungry which led to her sneaking food she was not allowed to eat.  She once knocked on her neighbors door at 230am begging for food.  She slept on the floor of a store room.  She had no bed or mattress.  She was given a pillow and a blanket.  Before she lay down to sleep she had to move into the corridor from the store room bags and boxes to make room for her to lie down.  She was allowed to use the children’s bathroom but was told she could only use it twice a day and after each time she had to spend 15 minutes cleaning it.  If she needed to urinate again she had to urinate in a bucket or a plastic bag.  She was only given a small bottle of water to drink every day.

13.After the first month there she ran away.  She ran away because she was unhappy, hungry and had not been paid any salary.  She had not had a day off and had only been out of the house once to go grocery shopping in that month.  She had been told that everything she broke she had to pay for.  She ran away to try and contact her agency to complain and hope they would find her a new employer.  She went downstairs and asked the security guard if she could borrow the phone at the reception desk.  She was not allowed to use the defendants home phone and she had no mobile of her own.

14.She called the agency and complained she had not been paid her first month’s salary.  She complained she did not have enough food or sleep.  The agency sent someone called Tini, an Indonesian female, to meet PW1.  The end result and despite her complaints was that the female then took her back upstairs to the defendants home.  About 2 days after this attempt to leave the defendants employment, the defendant hit PW1 for the first time and the physical abuse continued until about a week before PW1 was sent home to Indonesia.

15.Over a 6 month period the defendant consistently hit PW1 with her bare hands, items such as metal hangers, a ruler, a broom handle, the vacuum cleaner tube and a ladder.  She often verbally threatened to have her parents in Indonesia killed.  The defendant told PW1 her husband was wealthy and worked in Indonesia.  He knew many people there who could arrange to kill her parents if she told anyone of the abuse or made trouble.  She was also told if she ran away again her parents would be killed.  She was told if she wanted to end her contract she had to pay the defendant one month’s salary.  She had not received any salary to be able to pay the defendant this. PW1 believed all the threats.  These threats were repeatedly uttered up until date of departure at home and at the departure gate at the airport.  The defendant also took away PW1’s telephone book and wallet after she ran away.  PW1 could not recall any telephone numbers to call for help or to complain even if she could access a telephone.

16.The first time the defendant hit her was when she found out PW1 had stolen some food and drink.  PW1 objected to the use of the term “stolen” in cross examination as she said she took the food out of necessity, hunger.  The defendant got angry and assaulted PW1.  She hit her in the face and punched PW1 in the mouth 2 or 3 times chipping or fracturing 2 of her front teeth and cutting her lips.  They bled.  The defendant made her sign a confession saying she had stolen food and threatened to call the police.  She told her to go back to work after the assault.  Photos 4 and 5 of P4 show her chipped front teeth.  This is the grievous bodily harm alleged in Charge 1 by the prosecution.  She does not recall the exact date but it was from her evidence given in court likely to have been early July.

17.PW1 said she was hit and punched in the face often.  She recalled one particular time in the summer (air conditioners were used) when the defendant punched her nose really hard, harder than other occasions.  She was vacuuming the carpet in the corridor when she dozed off because she was so tired.  The defendant caught her dozing and punched her in the eyes.  PW1 was shocked and tried to avoid the punches that kept coming.  One landed on her nose and it really hurt.  She had some blood in her nostril and she was unable at first to breathe through the left nostril.  She said later she continued to have difficulty breathing through her left nostril. She said her nose was broken having been told this by a doctor in Indonesia.  Her nose injury is the grievous bodily harm alleged in Charge 2 by the prosecution.

18.PW1 said she was often hit on the head by the defendant with objects, sometimes the broom handle, a hanger or vacuum tube.  She often had headaches from being hit on the head.  She was shown a pinkish scar on her scalp found by doctors and seen in Photo 8 and 9 of P4 photo album.  She recalled on one occasion when it was still summer when she was in the corridor she was hit on the head so hard she fell over and lost consciousness.  She woke up in her bedroom.  She didn’t know how she got there. She woke up in pain and had a headache.  When she woke up the defendant told her to continue cleaning.  This incident is alleged by the prosecution to be the assault of Charge 3.

19.PW1 was shown photo 5 of Album P4 there is a lip injury and scar seen by the doctors.  PW1 recalled an occasion when the defendant got angry when she dozed off again when vacuuming and disconnected the vacuum tube from the machine and its head and put it in her mouth and twisted it.  She twisted it for 5 to 10 seconds.  PW1’s lip then bled and scarred.  She is sure her lips bled and her inside lip was cut on this occasion.  She could not recall the date but said it was summer time but after the children had gone back to school after a long holiday.  This lip injury is the grievous bodily harm injury alleged in Charge 4 by the prosecution.

20.PW1 said she often fell asleep whilst working from sheer exhaustion.  She recalled once at the end of December she fell asleep whilst working and the defendant was very angry.  She took off all PW1’s clothes and made her stand under the shower.  She then got a fan from the living room and brought it into the bathroom.  She turned it on facing PW1 who was now not only naked but wet.  PW1 was made to stand there for several hours with the fan blowing at her.  After that she was allowed to dress and told by the defendant to carry on working.  This is the common assault incident alleged in Charge 5 by the prosecution.

21.PW1 referred to many incidents not charged.  She recalls the defendant hitting her hands with a ruler when she caught her using her hand cream because her hands were sore from cleaning incessantly.  She says she tried to run away again a second time but failed to open the door.  In fact after the 1st time she ran away she did not leave the house again.  The defendant bought things for her like toiletries which were apparently deducted from her salary.  Of course she went outside the front door to dispose of rubbish in the rear stairs or to clean the door.  But she said the defendant always opened the door for her.  She would be told when to do these chores.  She would always have to clean the door in the middle of the night.  It was on one of these occasions in December when the defendant opened the door for her to clean the door and the defendant went out.  The children were awake at home to keep an eye on PW1.  Despite this and out of desperation, she took that opportunity to ring on the doorbell of a neighbor to beg for food.  The neighbor answered but said he had nothing and shut the door on her.

22.She was told by the defendant she could watch her at all times.  There was a camera in every room except the bathrooms, the defendant’s room and the children’s room.  There were 2 in the living room.  There was even one in the small kitchen.  The defendant said she could access the cameras on her mobile when she was not home.  PW1 believed the defendant could watch and hear her at all times.  She believed what she was told.

23.She felt so tired and unwell that she asked the defendant to buy her vitamins.  The defendant gave her pills.  PW1 noticed she did not menstruate after she started taking the pills.  She began to menstruate again in May 2014, 4 months after leaving Hong Kong.  She told the defendant she did not menstruate regularly as she had before she came to Hong Kong but the defendant did not care.

24.PW1 was shown the photos of her scars and injuries on her body in the photo albums.  She explained the scars on her neck, forehead, nose, hands and shoulders were from injuries inflicted by the defendant over the 6 month period.  She would be hit with objects and scratched with the defendants nails.  She would try and avoid blows to the head and that is why she had scars on her shoulders where the blows fell.  She had several scars on her lower back and she is sure those are from when the defendant pulled her off a ladder she had to climb to clean the air conditioners.  She had been pulled off backwards and fell to the ground.  Her back hurt after these incidents.

25.She had terrible fresh scabs and scars on her knees from kneeling too long whilst scrubbing and cleaning.  She had severe dermatitis of her hands and feet.  This started when it got cooler in November.  By the time she left her hands and feet were in the most pitiful condition.  She could barely walk.  She was very frail.  The medical evidence will show why she was so weak.  The photos of both albums P4 and P11 show the extent of her condition.

26.This dermatitis was brought on by incessant cleaning and washing cloths in water with detergents and cleaning agents.  The defendant would not let PW1 wear gloves whilst she cleaned.  She was given cream by the defendant the cost of which she was told would be deducted from her salary.  She was not taken to a doctor nor was she asked to go to the doctor.  She said her hands and feet got worse with time, until she was unable to work anymore.  2 days after she was physically unable to work anymore or walk anymore she was sent home.  The condition of the dermatitis of her feet was exacerbated by the fact the defendant made her wrap plastic bags around her feet so the pus and liquid oozing from open sores and cracks on her feet would not dirty the floor.

27.A few days before she left Hong Kong the defendant told her she was leaving.  PW1 was relieved to be going home.  She however had not received any salary since she arrived in Hong Kong and worked every rest day and statutory holiday including the 1 and the 5 Jan 2014.  She was told by the defendant she deducted and paid the agency fee installments from her salary.  The payments were paid to a finance company, Niaga Finance Co Ltd by the defendant through 7-11 stores.  Receipts were produced by the defence, P12 and 12A & B.  PW1 was required to sign each one.  She had no choice but to accept that arrangement.  She signed salary receipts despite not receiving any salary, Exhibit 2 and 2A.  She was forced to sign them, feeling she had no choice.  She was given 100,000 Indonesian rupees (approximately HK $60.00) in a red lai see packet and told it was her money to get home.  She left Hong Kong with that sum of money to show for her 7 months here.  She had to sign a termination of contract document and receipt of final payments before she left Hong Kong, Exhibit P3 and P3A.  P2 and P3 show she was paid her salary but in fact they are false.

28.She did ask the defendant for her salary when she knew she was leaving Hong Kong but the defendant said she had deducted the agency fees owed by PW1 and the items PW1 broke whilst working for her had to be paid for from her salary.  The items were a doll but PW1 said she tore it because she had cleaned it so much every day the material wore thin.  There was also a HK$600 ceramic ornament she knocked off a table when she dozed off cleaning.  There was also a broken shower door where a screw came off when PW1 was cleaning it.  She was told she had to pay half the repair bill which was about $600.  She once broke the toilet seat after she had a shower and was told to hurry up.  Her feet dermatitis was bad and she was in pain.  It was very hard to pull on her trousers and she fell breaking the toilet seat.  She could not recall any other items she had to pay for.  She also had to pay for all the toiletries and clothes the defendant bought on her behalf.

29.To send her home the defendant dressed her in several layers of clothes, put an adult nappy on her, put makeup all over her face to hide the swelling, discoloration and marks seen on the photos P11 taken the day after she left.  The defendant bandaged her feet and then put several pairs of socks on her.  She made her wear a pair of trainers that belonged to one of the children that were too small.  Then the defendant made her practice walking up and down the corridor at home.  The defendant forced her to walk and said if she told anyone what had happened to her then her parents at home would be killed.  This threat is the criminal intimidation alleged in Charge 6 by the prosecution.

30.The defendant did not allow her to bring any luggage to check in. PW1 was only allowed to take a very light rucksack as carryon luggage.  She had to leave all her belongings behind.  She took a batik she had brought with her from home.  The defendant put several adult nappies in her rucksack.  The defendant took her all the way to the airport by taxi, checked in for her and took her to the immigration gate to go through to the restricted area.  Before PW1 walked through to the restricted zone only for passengers and the defendant could go no further with her, the defendant threatened her again to keep silent or her parents would be killed.

PW2

31.When PW1 arrived at her boarding gate she sat on her own.  Obviously the state she was in despite the makeup applied to her face attracted the attention of 4 other Indonesian ladies.  They asked her questions and at first she said nothing but told them she had dermatitis.  PW2, Ms Riyanti Binit Noto Parni did not believe PW1 and probed her further.  She could tell PW1 was afraid to talk to them.  Eventually PW1 told her she was afraid to tell her anything because if she spoke of her ordeal her parents would be killed.  PW2 told her not to be afraid and tell her what happened to her.  When she found out the defendant had physically abused PW1 she urged PW1 to immediately notify the HK police at the airport but PW1 refused.  PW2 was incredibly kind to her.  She helped her on the plane which meant putting her on a luggage trolley to push her to a gate change.  She did this when she realized PW1 had trouble walking and said her feet were painful.  The airline staff managed to arrange seats on board so PW2 sat next to PW1 to Jakarta.  In Jakarta airport PW2 bought a ticket to fly with PW1 to her home in Solo.  She then took her back to her parents by taxi.  She did all this at her own expense because PW1 was in pain, unable to walk and she took pity on PW1.  When she got her home, she immediately helped PW1 get undressed and into bed.  She said PW1 was wearing an adult nappy and was very skinny.  She also took the bandages off her feet.  They were stuck fast to the open wounds; it required a lot of care and patience to take them off.  With her mobile phone, she took photographs and had photographs taken of PW1 and her wounds, Exhibit P11 (1to 18).  She then left PW1 in the care of her family and made her own way home.  She did come back to visit PW1 in hospital.  She shared some of the photos of PW1 with her friends by sending them via her mobile.

PW3

32.Ms. Lee Tze Wai worked for China Airlines as ground staff and checked in PW1 the night she left Hong Kong.  She recalls a Chinese woman in a white long coat checking in PW1.  There is no dispute that was the defendant.  PW1 said nothing during the whole process.  PW3 noticed PW1’s face, eye bags and hands were swollen.  She noticed her face was discoloured and her left eye ball had red blood spots.  She offered the assistance of staff to help PW1 get to her gate but the defendant refused on her behalf.  When they walked away after check in PW3 noticed PW1 was limping.  They walked away and out of earshot.  She saw the defendant facing PW1 and wagging her finger at her.  She said they were not near immigration and disagreed it looked like the defendant was pointing out directions to PW1.

PW4

33.Mr. Man Chi Wai was the immigration officer who checked PW1’s documents and boarding pass.  He noticed her face was discoloured and marked.  He also noticed her eyes and hands were swollen.  He assumed she had a skin disease.  Despite this he said he wouldn’t stop a person travelling even if they looked ill.  He’d only question them or stop them if he suspected they had contravened any immigration rule or law.

PW6

34.Mr. Wong Chi Kwong was the taxi driver who drove the defendant and PW1 to the airport.  He said PW1 looked so small he thought at first she was a child.  He said he noticed her limping.  He recalled wrongly that she had luggage but he explained he helped a lot of passengers going to the airport with their luggage and it was a long time ago so he may be mistaken.  He did however clearly recall there was a strong and bad odour emanating from PW1.  He described her as smelling like urine and faeces.  It was so bad he had to open his window for fresh air as he drove to the airport.

PW7

35.Mr. Chan Hon Keung lives on the same floor as the defendant and is a neighbor.  He recalls one morning in December 2013 at about 230am the doorbell rang.  He woke up to answer the door and saw PW1 standing there.  He recognized her as the defendant’s domestic helper because he had seen her throwing away rubbish in the rear stairwell.  He spoke to her through the open door but closed iron grill.  He asked her what did she want and she said she was very hungry.  She said everyone was out and there was nothing to eat.  She asked him if he could give her something to eat. He said no and shut the door on her.  She spoke in Punti well enough that he understood her.  He thought it was a prank at 230am so ignored her.  This desperate act of hers was not disputed.

PW8

36.Ms Lo Fung Chi was the manager of Chan’s Asia Recruitment agency at the material time.  She was tendered for cross-examination.  She resigned from this agency just after the police took a witness statement from her about this case.  PW8 confirmed May Chan and Tri worked there.  Tri, a Hong Kong resident had since left Hong Kong and was now in Indonesia.  She also confirmed Anjar or Jartini Sarbi, an Indonesian domestic helper hung around there when on holiday and often translated for other helpers.  These were all people PW1 referred to in her evidence.  PW8 explained how her agency had a relationship or partnership with an Indonesian agency to find helpers to come to Hong Kong.  She was shown Exhibit D7, an employment agreement made between PW1 and that Indonesian employment agency which named Chan’s Asia Recruitment Centre as PW1’s employer.  She denied all knowledge of it.  She denied all knowledge or claimed ignorance where matters of fees payable to the Indonesian agency by Chan’s or vice versa was concerned.

37.She was asked about the finance company in Hong Kong that PW1 had to pay the 6 months installment of debt owed. This was the HK$2543.00 deducted from her salary by the defendant and paid to this finance company, Niaga Finance Co. Ltd.  She was shown documents from this finance company, Exhibits D2 to D5 but had never heard of this company.  She did know that these maids when they came to Hong Kong had to pay the Indonesian agency a fee payable by 6 installments of HK$2543.00.  She said Chan’s didn’t receive part of this fee so it mattered not to Chan’s if the helper left her employment before completing the first 6 months of a contract.  It was no concern to Chan’s if they left their employment before the debt was paid.  She said she had no idea it was normal practice for the employer to pay this debt on behalf of the helper by deducting it from their salary each month.

38.She knew her agency had an agreement to supply helpers to the defendant and PW1 was the 3^rd helper they had supplied since 2011.  The first lasted 6 weeks with the defendant.  The second lasted 6 months and PW1 was the third helper supplied.  Neither the first or second helper complained to her of any physical abuse by the defendant.  She knew of the occasion when PW1 called the agency about 1 month after she started to work for the defendant.  She herself did not deal with PW1 then but said Anjar or Jartini Sarbi was sent over to Tseung Kwan O to see PW1 and deal with the problem.

39.She also confirmed that when PW1 arrived in Hong Kong the agency took her to the immigration to apply for a temporary Hong Kong ID Card.  She said the agency would have taken PW1’s passport to apply for an ID Card.  She said normally once the ID card was ready either the employer or helper would come to the agency to collect it and their passports.  It was the defence case that the agency had kept PW1’s ID card and passport.  She, the defendant had to lie to the agency saying she was taking PW1 with her to China for a trip so the agency would give her PW1’s passport and ID card so she could send her home.  PW8 denied the agency retained PW1’s documents.  PW8 said she did not know if her agency kept PW1’s passport until she went left Hong Kong.  It was put to her that her agency deliberately kept PW1’s passport to put pressure on PW1 to repay the 6 month installments.  This would be against the law so I issued her a warning against self incrimination.  After this warning she elected not to answer that specific question.

The Statement of Tri or Muh. Suhudi Tri Sagiyarti Binti, Exhibit P14

40.This Indonesian female, a Hong Kong resident was interviewed on the 12 April 2014 and gave a statement to the Labour Department pursuant to an investigation into the employment terms of PW1.  The prosecution could not tender her for cross-examination as she has left Hong Kong after her statement.  Her statement is untested.  In it, Tri told the Labour Department she was leaving Hong Kong the next day and did not know when she would return.  Her statement to the Labour Department was admitted pursuant to S65B of the Criminal Procedure Ordinance, Cap 221 and exhibited at P14.  She said she had worked for Chan’s Asia Recruitment Agency for over 5 years.  She did take a call from PW1 once in late June 2013.  She said PW1 said the defendant was too demanding and she wanted to change employers.  She did not mention she had not been paid her salary nor had any wages deducted.  Tri says she told PW1she had to give the defendant one months notice to terminate her employment or pay the defendant one month’s salary in lieu of notice.  She told PW1 to be patient and it was ok if the defendant paid her salary late so long as it was paid within 7 days from when it was due.  She said PW1 told her she was calling from the ground floor of the defendants home.

41.In paragraph 3 of P14, Tri said after she spoke to PW1 over the phone she told a May Chan of her conversation with PW1.  May Chan was the agent responsible for PW1’s employment and would follow up with PW1.  Another Indonesian domestic helper called Anjar who had a day off but was hanging around the agency happened to overhear this conversation and on her own initiative offered to go all the way to Tseung Kwan O to meet PW1 because she said she knew PW1.  Tri said after Anjar went to meet PW1 she did not know the outcome of their meeting or what happened to that employment contract until she read about this case in the newspaper.  She could not give the Labour Department any details of how to contact Anjar despite the fact she often helped their agency with translation.  PW8 confirmed this role.  PW1’s evidence was that she did not know this Anjar or Tini as she knew her, before she came to meet her on the day she ran away and took her back to the defendant’s home.

Medical evidence

42.There were many undisputed medical reports produced by the prosecution and the 2^nd admitted facts P17 dealt with the production of these reports.  After the production of the agreed reports, 4 of these medical specialists gave evidence.  P17 sets out the chronological order of the dates of the examinations of PW1 by various experts and the dates of their subsequent report or reports.  The fact x-rays were taken, CT scans and an MRI were performed in the Indonesian hospital was not disputed and agreed in the 1^st admitted facts, P16, specifically paragraphs 7 to 10.

43.It is an admitted fact that upon admission on the 11 January 2014 to a hospital in Solo PW1 was examined by a doctor who made the following findings;

PW1 had swelling and bruises over both eyes,

PW1 had some old scars on her forehead,

PW1 had 2 cracked and fractured upper front teeth,

PW1 had swollen and hands and feet and red dots on her face.

The same doctor 6 days later examined PW1 again and found an old wound behind her left ear and an old wound on her back above her hip.

44.On the 15 January 2014 the hospital did a CT scan on PW1’s head.  The resultant medical report is P18 and P18A.  The same doctor did a Brain MRI Scan on the 22 January 2014, Exhibit P19 and P19A.

45.On the 24 January 2014 a Senior Forensic Pathologist from the Department of Health of Hong Kong arrived in the Indonesian hospital to observe the examination of PW1 by the chief of Forensic Medicine of the Central Java Police Force.  Dr Chiao Wing Fu compiled a report based on that examination and it is marked as P20 dated the 12 February 2014.  This report includes the photographs taken of PW1 under his direction.  Dr Chiao, PW14, gave evidence during the course of the trial.  Part 2 on page 3 of his report sets out his 31 observations or findings.  He supports many of the physical and visible findings with photographic evidence in his report. His conclusions are on page 14.

46.An Indonesian Radiologist performed a sinus par nasal CT scan on PW1 on the 4 March and his report is marked P21 and P21A.

47.A dermatologist, Dr Ho King Man, gave his expert opinion on behalf of the Department of Health of Hong Kong in 3 reports.  The 1, dated 13 March 2014, marked P22 was complied without examining PW1 but from other medical reports and photographs of PW1.  On the 8 April 2014 he actually examined PW1 and compiled a 2^nd report dated the 16 April and marked P23. This same dermatologist compiled a supplementary and 3^rd report dated the 28 November 2014 marked P24 after being shown the photographs taken by PW2’s mobile and seen in P11.  Dr Ho, PW15 gave evidence during the course of the trial.

48.Dr Lee Wing Yan Michael, PW16 an associate consultant in Neurosurgery at the Pamela Youde Nethersole Eastern Hospital also gave evidence.  Like Dr Ho, he compiled his first report, marked P25 and dated the 17 March 2014 without examining PW1.  He based it on medical reports and tests he was given to review by the police.  Subsequently he personally examined PW1 on the 9 April 2014 and compiled a 2^nd report; P26 dated the 17 April 2014.

49.On the 10 April PW1 was examined by Dr Chow Shu Kit, the consultant Ear, Nose and Throat (ENT) surgeon also from the Pamela Youde Nethersole eastern hospital.  His report is dated the 15 April 2014 and marked P27.  One of his findings was that PW1’s nasal septum was slightly deviated to the right side.  He found she had no fracture in her skull or facial bones, including the nose.

50.Also on the 10 April 2014, PW1 was examined by a consultant oral and maxillofacial surgeon at Princess Margaret Hospital, Dr Yau Chuen Kam.  His report with accompanying photographs is dated the 23 April 2014 and marked P28.

51.The last medical report relied on by the prosecution is P29 and dated the 3 April 2014.  Dr Cheung Chi Yan Tom is the clinical assistant professor of the department of imaging and interventional radiology at the faculty of medicine of the Chinese university of Hong Kong.  This Radiologist, PW17 also gave evidence during the course of the trial.

The medical witnesses

52.PW1 had been told by hospital doctors in Indonesia she had had her nose broken.  As a result of the findings of the Indonesian medical experts but before all the Hong Kong doctors reports were obtained the prosecution were under the impression that PW1 suffered a fractured nasal bone and deviated nasal septum.  Hence Charge 2 was a Section 19 offence.  It is clear from further medical examination, tests and findings in fact the nasal septum deviated slightly to the right and there was no evidence of any broken bones in her nose, jaw or face.  A deviated septum is not an uncommon finding amongst the general population and not necessarily as a result of a trauma or assault to the nose or face.  That is accepted by both parties.

53.PW14, Dr Chiao, in his medical report, Exhibit P 20, said that:-

(i) “The linear pinkish scar on internal surface of upper lip could have been caused by blunt force impact on the upper lip against the underlying hard teeth several weeks to a few months before the examination. Together with the fractured medial incisors, (PW1) could have received forceful blunt force impact over her mouth several weeks to a few months before the examination as she alleged.” (paragraph 6 ‘(IV) Discussion’) The prosecution says this finding supports PW1’s evidence in relation to Charge 1. He said in oral evidence that if punched in the mouth or lips the teeth could have fractured as a result of a fist if the force was hard enough. He also said the fractured teeth and scar inside the lip could have been caused on 2 separate occasions.

(ii) “The localized swelling of eyelids and nose was a local tissue reaction and could have been caused by various stimulation or trauma.” (paragraph 3 ‘(IV) Discussion’) The prosecution says this finding supports PW1’s evidence in relation to Charge 2. Although Dr Chiao revised his observation that the ‘reported underlying bony injury and deviated nasal septum, which together with the swelling of eyelids and nose could have been caused by forceful blunt force impact over the region’ when he took into account the medical opinion of Dr Chow Shun-kit, Specialist in Ear, Nose and Throat, at paragraph 2(iii) and (v) of Exhibit P 27 and the radiological findings of PW17 Dr Cheung Chi-yan, Tom in Exhibit P 29 seen after he wrote his report. Dr Chiao said that his findings that the swelling of the eyelids and nose could have been caused by various stimulation and trauma still stand. However if the septum was not deviated the trauma would only have been a few days prior to examination.

(iii) The slightly pinkish scar on the left lateral side of scalp, although non-specific in nature with regard to the causation, is consistent with the accounts of (PW1), (paragraph 2 ‘(IV) Discussion’) i.e. that she was hit on the head by blunt force. The prosecution says this finding supports PW1’s evidence in relation to Charge 3. Dr Chiao said the injuries could be consistent with PW1’s account of a blow to the top of her head but added with regard to causation there are many alternative explanations.

(iv) Dr Chiao in his evidence also said that linear pinkish scar on internal surface of upper lip could also have been caused by the metal tube (Exhibit P10a) as shown to him, by putting it into PW1’s mouth and twisted around it for 5 – 6 seconds. The prosecution says this finding supports PW1’s evidence in relation to Charge 4.

54.The Prosecution submitted that whilst the medical evidence may not be conclusive evidence on the causation of the scars and the exact timing of the infliction (whether by blunt force impact or, as alleged by the Defence by accident or pre-existing before her employment), it is Dr Chiao’s evidence that the injuries found are unlikely to be self-inflicted since self-inflicted injuries are usually over small areas, or over the limbs accessible to that person and the subject would avoid sensitive areas such as the mouth, eyes, face and ones private parts.  He also said if PW1 was very clumsy and often fell one would see injuries to prominent and protruding areas like elbows, knees, cheeks and the head.  Dr Chiao did not rule out her fractured teeth and scar on the internal surface of her upper lip were caused by her banging her mouth accidentally.  He also agrees that some pinkish scars could be over 7 months old.  He says the time range is large and not conclusive.

55.PW15 Dr Ho King-man, Specialist in Dermatology and Venereology in his three medical reports, Exhibit P 22, P 23 and P 24, all concluded that the healing wounds, scars of the body, hands and feet on PW1 could possibly have been caused by assaults or insults as she alleged.  He agreed with Dr Chiao’s assessment.  He concluded in his report and he confirmed it in court that the hand and feet dermatitis was severe.  The hand dermatitis was highly consistent with using detergents and bleach whilst cleaning without gloves for some period of time.  He said it was highly unlikely fresh water would have caused such a severe condition.

56.PW16, Dr Lee Wing Yan Michael agreed with Dr Chiao’s assessment that PW1’s CT Scan and tests showed an acute subdural hematoma at the back of her head and there was very mild left side scalp swelling, at the front of head.  His opinion is that the timing of that head injury was between the mid to end of December 2013 and the 15 January 2014.  This injury is not the subject of any charge.  He says if it was caused by an accidental fall the force must have been of a significant magnitude to cause the hematoma.  In his opinion and having eliminated other reasons for such a cranial injury he opined it was caused by a head injury.  He agrees with the subsequent medical opinion of Hong Kong medical experts that PW1 did not suffer any fractured bones in her face or nose.  He specifically recalled PW1 telling him she had been assaulted when something was put in her mouth but he did not record it down as he was concerned with her head injury only.  He did not write down everything she told him as his report was not a police statement.

57.PW17, Dr Cheung Chi Yan Tam, a radiologist read the CT scan and MRI Films of PW1 and said he measured her hematoma to be 7cm long, more than 2cm wide and 3 to 4mm thick.  He said thickness reduces with time.  He said the location of the subdural hematoma at the back of the head and the swelling in the forehead area indicated the head trauma was to the front of the head, forehead.  It meant it was not an injury from a bang to the back of the head.  He expected the location of the trauma was the forehead.

Charges 7 and 8 in relation to victim 2 – PW9

58.nbsp;      PW9, Tutik Lestari Ningsih worked for the defendant between April 2010 and 30 March 2011.  This is not disputed.  It was her first job in Hong Kong.  Her daily duties were only to clean the house.  The defendant gave her strict instructions on how long and how many times she should clean each room per day.  She had a notebook to refer to with instructions on how to clean, where to clean and for how long.  She had to clean certain places multiple times a day like the bathrooms and bedrooms.  The bathroom the children used had to be cleaned again every time it was used.  At one stage she had to keep a minute record of her cleaning schedule in a notebook, marked as MFI -1. She had to work 20 hours each day and she slept between 6 am to 10 am every day.

59.PW9 said that when the defendant was not satisfied with her performance, she would become angry.  The defendant slapped her with bare hands on her body, mainly on the shoulder and kicked her upper thigh.  The first time the defendant hit her was in May 2010.

60.PW9 remembered on an evening in winter, she was sick, felt very tired and fell asleep inside the defendant’s husband study, a separate room with TV or computer monitors.  The family was out at the time but when the defendant returned home she found PW9 asleep in the study and hit her on the back with a feather duster, with the bamboo stick end not the feathered end. PW9 apologized for falling asleep but said she felt unwell, the defendant scolded her.  She did not know if the assault left any mark on her back as she could not see for herself.  This is the allegation of Common Assault relied on by the prosecution to prove Charge 7.

61.PW9 recalled asking the defendant to allow her to call home.  This was about 3 months after she began to work there.  The defendant refused and said that there was an agreement that she would not take holidays and would not use the phone.  PW9 said that she was not aware of the agreement and she was told by the defendant that the agreement was between the employment agency and the defendant.  PW9 was not allowed to contact her family at all during the course of her employment.  She owned no mobile telephone and did not know how to use the Hong Kong telephone.  She had her phone book and luggage locked away by the defendant therefore had no access to any phone numbers.  On that occasion, the defendant threatened PW9 for the first time.  This is the allegation of criminal intimidation relied on by the prosecution to prove Charge 8.  (The particulars of Charge 8 were amended unchallenged after the oral evidence of PW9 when she said she was first threatened in August 2011).  The defendant said if she insisted on using the phone or talked to anyone, she would kill her.  PW1 was afraid. 

62.Since then, the defendant threatened her many times and PW9 repeated the threat in Cantonese.  Words to the effect of “If you don’t obey me, I would kill you.  If you speak to others, I could find you since my husband worked in Indonesia.”  PW9 then demonstrated the defendant had drawn a finger across her throat; a gesture of cutting her throat.

63.PW9 denied the relationship between the defendant and PW9 was cordial.  She agreed the defendant produced a birthday cake on her birthday in March 2011 (shortly before she left the employment) and took a photograph with her and the birthday cake.  She said she did not know why the defendant had bought a cake and when it was cut she was told to go straight back to work. She recalls crying.

64.She described leaving the house when she was sent out by the defendant only once or twice in her whole employment.  When she did she was told by the defendant not to speak to anyone as she had someone follow her.  PW9 believed her.  She was suddenly told in March 2011 that the contract was ended. She was told the day she left.  She was told to change and pack her belongings and go downstairs to be picked up by the agent.  She was very happy to leave.  She said she later found out her family were looking for her through the recruitment agency as she had not contacted them once since leaving Indonesia.  She had wanted to leave earlier but the defendant had asked her to wait until she found a replacement.  She wrote a resignation letter at the request of the defendant a few months beforehand, Exhibit D22 and D22A.  She wrote in Indonesian that she would wait for the defendant to find a new helper.  She also added she wanted to resign as she could not stand to work for the defendant any longer. 

65.On the day she left a Clara Ho of her employment agency picked her up, PW13. PW9 recalls telling Clara Ho the defendant assaulted and threatened her but only after they left the defendant’s home.  She did not dare say anything in front of the defendant because of her threats.  Ho told PW9 it was not the first time and she would find PW9 a new job whilst she went to Macau to wait.  PW9 did not go back to Indonesia between contracts; she waited in Macau in accommodation arranged by this employment agency.  Her passport was produced during the trial to prove this.

66.She agreed she only made a complaint against the defendant after reading the media reports concerning PW1.  She did not complain to the police previously because of the threats from the defendant.  She said she felt if she did not make a report then the defendant may do the same thing to other helpers.  She was no longer afraid of the defendant by then.

Charges 9 and 10 in relation to the 3^rd Victim – PW10

67.PW10 worked for the defendant from the 5 August 2011 to the 4 December 2011, only 4 months.  This was not disputed.  This domestic helper contract was her 2^nd in Hong Kong.  Her contract ended the same day she was assaulted by the defendant and she left the house to make a police report.

68.She gave evidence of only being allowed to sleep for 3 hours a day and having to clean for the rest of the time.  She was allowed to sleep between 9 am and 12 noon.  She had been slapped by the defendant on the nose in the bathroom for not cleaning properly.

69.On one occasion in December at about 2am, she was accused by the defendant of not properly cleaning the kitchen.  The defendant scolded her and grabbed her, twisting her arm inwards.  After she twisted her arm the defendant threatened to have PW10 arrested and put in prison and also threatened to kill PW10.  This was not the first time she had threatened the defendant with the same fate when she was accused of not cleaning or working properly.  She said the defendant threatened her in punti repeating it in court and demonstrated the defendant drawing her finger across her throat when she threatened PW10.  Several hours later PW10 ran away and met another domestic helper near her home.  With this stranger she went to the Indonesian consulate. She then made a police report and was accompanied back to the defendant’s home with a police officer.

70.The police took her home and there was an ambulance at the building.  She was examined in the ambulance but refused to go to the hospital.  Upstairs in the defendants home the defendant insisted she stay but PW10 refused and packed her belongings to leave immediately.  Whilst the police were there an agent came from the employment agency to deal with the issue.  She did tell the police she did not wish to pursue the matter any further as she was frightened the defendant would find her after she left.  She was afraid no one would help her, despite the fact she had made a police report.

71.PW11 was the woman police officer who accompanied PW10 home after she made a police report against the defendant.  She sad PW10 said the defendant had grabbed her arm during a dispute.  She said PW10 did not want to pursue the matter and that PW10 had not told her the defendant had threatened to kill her.  In cross-examination she agreed the defendant apologized to the defendant for grabbing her arm once earlier during a dispute.

72.PW12 was the ambulance man who examined PW10.  He said her complaint was vague and she said she was dizzy and she had a pain in her hand.  He was not entirely sure what she said but he said he did not actually communicate with her.  His superior spoke to her in detail not him.  He carried out the simple tests such as testing her blood pressure.  He had no memory of it but agreed that according to records made there was no superficial injury on PW10.

73.PW13, Ms Clara Ho worked at May’s Choice Recruitment agency when she placed both PW9 and PW10 with the defendant as domestic helpers.  She does not recall their names nor any of the many helpers she found the defendant.  She did not recall any details related to the employment of PW9 and PW10 with the defendant.  She had in fact known the defendant since 2004 and placed many helpers with her over the course of years.  She recalls she had to sometimes go the defendant’s home to deal with complaints but cannot recall the details of those complaints.  She did not recall having to go to the defendants to deal with a complaint that involved the police and PW10.  She did not recall having to go the defendant’s home to fetch a helper as the contract had ended, like PW9.  She did recall that no helper ever told her the defendant had physically abused them.  She recalled the defendant asking her to book PW1 an air ticket home in January 2014 because she has connections.  She did not arrange the employment of PW1 with the defendant but arranged her passage home at the defendants request.

THE DEFENCE CASE

74.The defence case was a denial of all the allegations made by the 3 victims.  It was put to the 3 victims that they had fabricated the allegations of assault to frame the defendant.  They had hidden agendas to benefit from their allegations.  Their evidence was farfetched.  If they had been treated in the manner they allege they would have complained or left the premises or run away.  They would have made a report much earlier to the police.  The defendant elected not to give evidence after I ruled there to be a case to answer for all charges.  However, the defence did call 4 witnesses.

75.The first defence witness was the defendant’s 18 year old son.  He is still a student and was living at home during all material times.  He recalls all 3 victims working for his mother.  He can recall over 10 helpers working for his mother.  He confirmed his father worked in the financial field and kept strange and odd working hours.  When PW9 worked for his mother he recalled his father was not home all week but at least 3 to 4 days per week. He had a study at home he worked from.  The photo album D6 were photographs of their previous home in Tai Kok tsui and his father was still living there.  When he moved to Tseung Kwan O with his mother and sister, his father would come there less frequently.

76.He said his mother’s relationship with PW9 and PW10 was normal and he did not witness any violence or hear any threat of violence towards either helper.  He does recall his mother scolding them for not working properly but she only raised her voice on those occasions.  He said both helpers left the house and were allowed out.  He did not know their working hours in his home.  He says his mother’s standard of cleanliness is very high in part due to his allergy to dust.  D23 is a doctor’s confirmation this witness had his allergies tested when he was 11 years old in 2007.  He is allergic to house dust mites.

77.He said he recalled a celebration of PW9’s birthday at home where there was a cake with candles and photographs taken.  He said it was a happy occasion.  PW9 left very soon after but has no idea why she left without completing her contract.  He was abit surprised to see she had written in her resignation letter of December 2010, D22 that she could not stand working for his mother.  He also said he never saw a feather duster in the house when they lived in Tai Kok Tsui.

78.He said PW1 was quiet and she was allowed to go in and out of the house.  He said he saw her go outside to the rear stairs to throw away rubbish.  He did communicate with her and would speak to her in Punti to give her orders.  Her movements were not restricted.  He never saw her have difficulty opening and closing the front door.  He heard his mother tell PW1 the numerical code to the combination lock of the front door once.  The code was necessary to open it from the outside.  She wanted to work on her rest days for extra money.  When she did she did not work the whole day and was in her room resting.  She did not complain to him that his mother had ever ill treated her.  He did not see his mother abuse her nor hear her threaten PW1.  He did not see her with any scratches on her during the time she worked for them.  He does recall his mother scolding her but her manner was quite gently towards PW1.  The week before she left she spent mostly in her room resting.  He was home and saw her before she left for the airport with his mother.

79.He acknowledged there were cameras all over the house except for his mother’s bedroom, the children’s bedroom and the bathrooms.  He said they were connected to his mother’s notebook computer and they could use mobile phones to view the footage of the cameras.  He said they were installed to watch their valuables when they had workmen renovating the flat.  He then said they were there before they moved in.  He also said the cameras were used seldom after they moved in and then he said some did not work after his mother asked him to view the footage.

80.He said he recalled an incident at home in the summer holidays of 2013 at about 12 midnight or 1am when he heard a bang and saw that PW1 was lying between the toilet bowl and the wall in the bathroom.  She said she was OK and got up herself.  He then left her to carry on working.  He said it was not a serious fall and he saw no visible injuries.  He knew she worked through the night cleaning but did not know when she slept.

81.He noticed the week before she left Hong Kong her hands were chapped and her feet were weeping or seeping liquid.  He noticed there were plastic bags wrapped around her feet.  He did not agree her face and her eyes were swollen or bruised.  He was not alarmed by her physical appearance when she was taken to the airport.  His mother told him PW1 was not well.  He did not ask PW1 himself.  His mother told him PW1 refused to see a doctor in Hong Kong but wanted to go back to Indonesia to see a doctor.

82.The second defence witness was the defendant’s 16 year old daughter.  She recalled both PW9 and PW10.  She said the relationship between the helpers and her mother was a normal employer and employee relationship.  She never saw her mother use violence towards them or threaten them with violence.  The same applies to PW1.  She did hear her mother scold helpers in connection with their work.  Not one helper ever complained to her that her mother had abused them.  She has no idea why PW9 and PW10 left.

83.She recalled an incident just before PW1 left in January 2014 where she witnessed her slump back against the sliding bathroom door and bang her head.  She did not fall to the ground.  PW1 looked fine so she did nothing.  She did not appear to hurt herself.  She only saw PW1 fall this once.  She nonetheless told her mother and elder brother about it.  She had no idea why PW1 left but was told by her mother that PW1 was leaving the job because she felt unwell.

84.She noticed PW1’s feet and hands were dry and she had cracked skin.  She saw PW1 with plastic bags on her feet in the house.  Her mother told her that PW1’s feet were weeping liquid.  She said PW1’s appearance when she arrived was the same as when she left.  She said in her impression she looked more or less like she did in the photo of her in her CV, Exhibit D1 when she left.  She then corrected herself by saying she did not pay attention to PW1’s appearance.

85.The third defence witness was a Mr. Chan Ka Chun Vincent.  He was a tutor hired by the defendant to come to her home to tutor her children but mainly her son.  He came more often when exams were pending.  He recalled seeing PW1 working there.  He never saw the defendant assault PW1 nor did he hear her threaten or scold PW1.  She spoke gently to PW1 and not aggressively.  He’d see PW1 going from room to room cleaning.  In November, December 2013 and January 2014 he noticed PW1 looked skinnier, darker and her head, face and eyes were swollen.  He saw her feet were weeping but wrapped in plastic bags and her hands were dark.  He thought she was sick.  He did not talk to her nor did she complain to him but he did not feel she looked like she had been beaten.  He said when asked to look at photograph 8 of P11 that he thought she looked ill in it.

86.The last and fourth defence witness was a friend of the defendant’s son, DW1.  He said he visited their home 3 times in November and December 2013.  He knew they had a domestic helper there.  He only saw her on the 22 December when he wanted to use their toilet.  DW1 very politely asked the helper to come out of the bathroom so he could use it.  He walked past her in the corridor as she came out and he went in.  He said he did not notice her feet because he was not paying particular attention nor did he look at them but if there had been anything unusual about them he would have noticed them.  If she had plastic bags on her feet he would have heard them.  He did not notice anything unusual about her face on that day.

87.There was a statement of a Mr. Kan King Chiu agreed and admitted under S65B of the Criminal Procedure Ordinance, Cap 221.  He was a security guard who worked at the address in Tai Kok Tsui where the defendant lived.  The purpose of his statement was to rebut the evidence of PW9 who said the defendant’s husband was never home.  She did however also say he did work from home.  Mr. Kan’s statement said between April 2010 to the end of 2011 he saw the defendant’s husband coming in and out of the building.  He said he came in and out about 10 times a month on average.

88.Although the defence did not challenge the medical evidence they submit the evidence is not supportive of PW1’s evidence.  They don’t challenge the findings made by the various doctors but stress that causation of the scars and wounds was not determined.  Alternative possibilities exist other than the accusations of PW1.  The doctors are unable to neither date the scars nor determine what caused them.  They only say it is possible PW1 is telling the truth, not that it is conclusive.  The only determinative timeline is when the cranial injury or the hematoma occurred and that injury is not the subject of a charge.

LEGAL ISSUES

Uncharged acts

89.PW1’s evidence of assaults by and threats from the defendant is not limited to the charged acts but also other uncharged acts.  To a lesser extent the same applies to the other 2 victims.  PW1 said once the defendant started to hit her, the assaults were almost on a daily basis.  The threats were made often.  PW1 described assaults with numerous household items, her bare fists, palms and incidents such as pulling her off ladders as she cleaned.  PW1 was unable to give exact dates of assaults and how some of her injuries were inflicted except to say it was at the hand of the defendant. This is as opposed to those events which were charged where PW1 was able to give more particulars.  It has been the prosecutions position from the beginning that the numbers of times specified in the charges were not the total times PW1 was physically assaulted by the defendant.

90.The medical evidence points to many other injuries PW1 described as inflicted by the defendant which are not related to the charged acts.  The prosecution says the medical evidence supports her evidence of the uncharged acts and proves they did occur.  In P20, Dr Chiao listed in Part 2 page 3 under “Observations” some 20 odd injuries.  He matches the scars with photographs in his report.  These include but are not limited to:-

(a) An area of multiple small irregular pinkish scars covering 12 cm x 4 cm on her forehead.

(b) A slightly pinkish scar, about 10 cm x 5 cm on the left lateral aspect of the scalp.

(c) A linear pinkish scar, about 4 cm long on left lateral side of the head just behind the left ear.

(d) A localized small subconjunctival hemorrhage with tinge of yellowish discolouration at margin at outer eye white of left eye.

(e) Swelling of eyelids and nose bridge, a bit more prominent over left side.

(f) A pinkish scar about 2 cm x 1 cm on the tip of her nose.

(g) A linear pinkish scar, about 1 cm long, on left internal surface of upper lip near midline.

(h) Transverse fractures of both medial incisors of upper jaw near their incisal surfaces with some dark discolouration on lingual surfaces near the fractured sites.

(i) About 6 hyper pigmented small scars, up to 2 cm x 0.5 cm in size, almost at the same level of the front of her middle neck.

(j) 2 hyper pigmented scars about 1.5 cm x 1 cm each, on the front of her left shoulder.

(k) 2 closely grouped oval pinkish scars about 2 cm across on top back of her left shoulder.

(l) A discoid (round) pinkish scar about 1 cm across the back of her left shoulder.

(m) A linear pinkish scar about 2 cm x 0.5 cm on the back of her left shoulder.

(n) A linear pinkish scar about 1.5 cm x 0.5 cm on the front of her upper chest.

(o) An interrupted longitudinal pinkish scar about 10 cm x 2 cm on the right lower back near her midline.

(p) Scars and scabbed wounds on her kneecaps.

(q) A cerebral edema.

91.I will refer here to the state of PW1’s hands and feet and to some extent her knees.  Her knee wounds and scars she attributes to having to kneel for long periods of time and often when cleaning; not to any assault by the defendant. The photos show the terrible state her extremities were in when she left Hong Kong.  Her evidence is that they became this way from constant immersion in water, bleach and cleaning detergents; not as a result of any assault by the defendant.  She was not allowed to wear gloves when working.  The defendant gave her creams that did nothing to improve them and she wrapped PW1’s feet in plastic bags so the floor would not get dirty from her weeping open wounds.  The medical evidence is clear that she suffered from severe dermatitis with complications.  Although there is a finding of scars on her hands.  Those scars PW1 said were caused by the defendant not the skin condition.  

92.The dermatologist says in his report P23 that the repeated immersion of unprotected hands in water with bleach or detergent added over a period of time is notoriously known to cause and/or aggravate hand dermatitis.  He also says her feet condition may have started as dermatitis and then she suffered a secondary infection which complicated the dermatitis. He described her feet as having ulcers on them and being in a serious condition.  If they were covered in plastic bags then bacteria could grow and make the condition worse.  That could also be the cause of the bad smell emanating from her.  Unsightly and as horrific as they were, the condition of her extremities were not as a result of any physical assault by the defendant and not the subject of any charge.

93.The prosecution seek to admit the evidence of the uncharged acts relying on the authority of HKSAR v Kwok Hing Tony [2010] 3 HKLRD 769.  At paragraph 16, page 776 the Court of Appeal sets out the principles of law on evidence of uncharged acts.  The admissibility of uncharged acts depends on the individual circumstances of each case.  The court may admit such evidence when it is to prove the setting and context in which the offences occurred or to explain the defendant’s confidence in repeating the offence or to explain unusual acts on the part of the victim, such as a lack of surprise or fear or the lack of complaint or acts of acquiescence or to explain why the victim is unable to recall the specific date and details of the offence charged.  Such evidence is admissible where without it the court or jury would have an incomplete or incomprehensible account of the events.  Here the prosecution submits such evidence explains the confidence of the defendant in repeating the offences and why the victim did not complain and subsequently endured many months of abuse.  The frequency of assaults alleged and the period of time during which PW1 was assaulted would explain why PW1 was unable to be more specific with dates and details of the charged offences.

94.However, the court should refuse to admit such evidence if it is clear the prejudicial effect on the defendant outweighs its probative force.  If it is admitted the standard of proof required for this evidence of uncharged acts should be beyond reasonable doubt.  I have to be sure the uncharged acts did actually occur.  If admitted the court must remind itself that it is not evidence the defendant committed similar offences or that the defendant is the sort of person with a propensity to commit the offence.

95.The defence did not during the trial nor did they during final submissions challenge the admissibility of this evidence of uncharged acts (despite saying otherwise in their written submissions D25) but reminds the court it is not evidence of propensity on the part of the defendant to commit these offences.  The defendant must be able to distinguish the acts with which she has been charge with from those uncharged acts.  If not she may not be able to present a defence corresponding to the charges and that would be unfair to the defendant.  That is not the case here nor what is submitted by the defence.

96.I agree with the prosecution and applying the legal principles find the evidence admissible in order to get a proper picture about the characters involved in the case; the account would be incomplete or incoherent without it.  I will refer to whether the standard of proof has been satisfied in my findings.

Similar fact evidence

97.The prosecution does not seek to apply the principle of similar fact evidence to the evidence of PW1, PW9 and PW10.  The prosecution and the defence discussed it before evidence was called and both sides were clear this was not a principle applicable here.  This is a case where every charge must be considered separately and independently.  They do not stand or fall together.  I make mention of it to show I have considered the evidence and the principle and conclude that this is not a case where it should apply despite the parties view and consensus.

The elements of the offences

98.There is no legal challenge by the defence that the elements of the charges have not been made out even if I accepted the prosecution’s evidence except where charges 2 and 10 are concerned.  After the prosecution case closed the defence submitted there was no case to answer for charges 2, 9 and 10.  It was submitted that PW10’s evidence was so unreliable that there was no case to answer for charges 9 and 10.  It was submitted that for charges 2 and 10, on the prosecutions own evidence there was only enough evidence to support lesser alternative charges not the substantive charges.  The evidence for charge 2 was at most an assault occasioning actual bodily harm (S39 of the offences against the person’s ordinance) as the elements of a grievous bodily harm charge were not made out.  The same applies for charge 10; the evidence was at most a common assault offence and not an assault occasioning actual bodily harm.  At that stage I rejected the submission and found a prima facie case to answer for all charges applying the test of R v Galbraith [1981] 73 Cr App R 124.

99.In final submissions, the defence adopted and renewed their previous submissions made.  The prosecution did not strenuously argue otherwise.  Ms Lai for the prosecution just stopped short of conceding this point for charges 2 and 10.  They are offences with alternatives open to the court; alternatives according to S51 (2) of the Criminal Procedure Ordinance, Cap 221.

My findings

100.The prosecution must prove each and every charge to the appropriate standard, beyond reasonable doubt.  The defendant has no obligation or onus to prove her innocence.  The defendant is a woman with a clear record.  I have taken that into account and directed myself in accordance with requisite directions set out in the authority, Tang Siu Man v HKSAR 1998 1 HKC 371.  The defendant elected as is her right, not to give evidence.  The failure of the defendant to give evidence is no evidence of her guilt.  It proves nothing.  The defence called witnesses other than the defendant.

PW1

101.The prosecution and defence reduced final submissions into writing, P30 and D25 respectively and supplemented them orally.  I have considered their submissions in depth and at length.  I have also reviewed the evidence of all the witnesses in light of the submissions.  The prosecution submits PW1, PW9 and PW10 were reliable and credible witnesses.  In Annex 1, the elements and facts relied upon for charges 1 to 6 is set out for ease of reference.  Where the witnesses are shown to contradict themselves or omit details in their statements only to reveal them in oral evidence for the first time, the contradictions and omissions are not material.  Their explanations reasonable and understandable.  If they are not always articulate in their answers or clear in their oral evidence, this should not be an automatic indication of untruthfulness or evasiveness.  Ms Lai sets out what supports PW1’s evidence as well as the other victims evidence and details why their evidence is credible.  She submits the defence witnesses either do not advance the defence case or are untruthful.

102.The defence set out why they say the victims are exaggerating and cannot be found reliable.  Their poor evidence indicates their intention to frame the defendant is deliberate and self serving.  The defence says the medical evidence does not conclusively support PW1’s allegations.  In fact it could support the defence case that PW1 was clumsy and the injuries were either caused accidentally, for example as witnessed by DW2 or were pre-existing scars or wounds sustained prior to employment in Hong Kong.

103.As I identified earlier, the sole issue in this case is the credibility of witnesses.  The defence questioned PW1’s integrity.  They questioned why if what she alleges the defendant did to her and said to her is true did she not complain to anyone, fight back, just leave the premises or go to the police.  It is a legitimate approach to such a story that is akin to keeping and abusing a modern day slave.  In cross-examination it was put to PW1 during the time she lived there she had opportunities to leave and just walk out like she said she did after the first month.  It was suggested there were opportunities to tell visitors to the house, use the house phone and ask for help.  She spoke to her father once in Indonesia and could have told him and got help from him without the defendant being to understand what she was saying despite being within ear shot.

104.Whether it is even a plausible scenario would depend on the victim, her constitution, her background and whether it is credible she would endure such abuse for so long.  To consider these questions and more importantly her answers is to first consider PW1 herself; where she comes from and why she was in Hong Kong working.  Ms. Erwiana described herself as a simple village girl, coming from a village where her parents are farmers.  She did study and graduate from senior school.  She had had one job in a restaurant before she signed up with an agency to come to Hong Kong to work as a domestic helper.  Before she was sent here, she was taught to clean and carry out domestic duties, even to speak some rudimentary Cantonese.  Her first job was with the defendant.  She is far from a worldly person and was not sophisticated.  Without meaning any disrespect, Ms. Erwiana is a simple young lady trying to financially better her life and that of her family like many others working away from home as domestic helpers in countries unfamiliar to them and in cultures different to their own.  

105.Her evidence she believed the cameras all over the house could see and hear her every move shows her lack of sophistication.  Her evidence she did not know how to operate the combination front door lock properly and that it had a lock button on the inside shows her lack of sophistication.  The fact she believed the defendants threats shows she is a simple timid girl.  The fact she signed whatever she was told to sign was because she felt she had no choice.  The fact she did not complain, fight back or try to run away again after her failed attempts I believe is because she believed the threats of the defendant and was convinced she was under surveillance at all times.  They made her compliant and more subservient.  I am sure the more subservient she was meant the defendant repeated the abuse with confidence there would be no repercussions.

106.After careful considering Ms. Erwiana’s evidence, her answers under days of cross examination and her demeanor I am sure she was telling the truth.  I am sure she was not framing the defendant because she had a hidden financial agenda or personal vendetta. Despite the final  submissions of the defence which included a list of discrepancies, prior inconsistent statements and list of exaggerations, I do not find any material discrepancies in her evidence that are so serious it leads me to doubt the veracity or probity of her evidence. She was asked to recall daily occurrences that took place over a period of 7 months in 2013 and was asked minute details.  Her mistakes were minor, omissions understandable and I did not find her evasive.

107.I bore in mind this is a case where credibility was the sole issue and there were no independent witnesses but the specificity and the diversity of the details of the individual incidents of assaults charged lead me to be sure Ms. Erwiana did not fabricate her evidence in order to frame the defendant. The medical and photograph evidence are capable of supporting her version of events.

108.PW1 knew no one in Hong Kong and had no contact with any other Indonesian helpers who she could have talked to.  I am sure she had no contact with anyone outside of the house because she was not allowed to leave.  Her attempt to run away ended in futility with her agency bringing her back to the defendant.  She had no contact with her family except a limited monitored telephone call made under threat months after she arrived here.  This meant she was completely isolated and helps explain why this abuse could go on for so long without her retaliating or anyone knowing.  She was desperate enough to knock on the door of a neighbor at 230am because she was starving and ask for food but she did not complain to him about any abuse out of fear. The evidence of the neighbour with regard to this event went unchallenged.

109.I am sure the defendant threatened PW1 not long after she first ran away.  The threat may seem farfetched to most but to PW1 I can see why she believed it was a genuine threat to the safety and wellbeing of her parents. PW1 knew the defendant had a husband as she had seen wedding photographs in the house but had never seen him.  She was told by the defendant her husband worked in Indonesia. That would explain his absence to her and she had no reason to doubt he was not there. The defendant told PW1 her husband was rich, had many friends in Indonesia and would have her parents killed if PW1 made trouble or told anyone about the abuse she suffered.  If the defendant was able to physically abuse her then her parents may too be in danger.  I am sure PW1 believed the threats and still believed them when she refused to report the matter to the airport police despite the urging of PW2.  She just wanted to get home to check her family was safe.  She did not want to take any chances and this is indicative of her belief and fear.  There were many threats over a long period of time and she can’t understandably recall the dates, times and circumstances in which they were uttered.

110.They are not subject to a charge but I admit them into evidence as proved beyond reasonable doubt.  There was no challenge to the admissibility of this evidence so long as it was not for the purpose of proving propensity on the part of the defendant.  I admit this evidence only for the purpose of proving the setting and context in which the charges took place.  They also help to explain why PW1 did not complain, run away, tell anyone, retaliate but instead became even more subservient.  She had no fight in her.  This in turn explains why the defendant was confident in continuing the verbal and physical abuse over a sustained period of time.  The defence submit at paragraph 187 of D25 PW1 was deliberately vague as to time and dates of the threats and assaults by the defendant it was done deliberately “to complicate matters by creating as many uncharged offences as possible”.  I reject this submission and in fact, find as the assaults were so frequent and over a long period of time it explains why PW1 is unable to recall the specific dates and details of the offences charged.  This is another one of the reasons why I admit the evidence of the uncharged acts, following the authority of HKSAR v Kwok Hing Tony.  I have considered the prejudicial effect of this evidence on the defendant but do not find it outweighs its probative force.

111.Where charge 6 is concerned, PW1 can recall the threat being repeated at home before she left for the airport and again at the airport.  I am sure the defendant would have been at pains to ensure PW1 did not speak to anyone before she left Hong Kong and would have threatened her again with the same threat that had been so effective for so many months.

112.When PW1 left Hong Kong she was a shadow of her former self; one only has to compare her photograph on her Application form of Exhibit D1 to the photographs of P11 and P4.  Even if one ignores the photographs and evidence of the hand and feet dermatitis she had swollen eyes and face as well as scars and old and fresh wounds all over her body.  This includes a subdural hematoma.  I am sure the scars were not as suggested acne scars, accidentally inflicted or sustained before she started working for the defendant.  With respect, they are desperate and fanciful suggestions.  I am sure they were injuries inflicted over time by the defendant.  The medical evidence is not evidence of causation but does not discredit or cast doubt on the allegations of PW1.  Clearly, as I said earlier, it is capable of supporting it.  The evidence of frequent abuse other than those subject to a charge I am sure is true and fact; proved beyond reasonable doubt.  They prove the setting and context in which the charges took place.  As I said, they help explain why the defendant was confident in continuing the verbal and physical abuse.  The fact PW1 could no longer walk properly and work anymore forced the defendant to send her home.

113.The defendant had to send PW1 home as she could not take her to the doctors or hospital as that would risk exposing her abuse.  Her subsequent actions do not sit well with the suggestion she was a kind concerned sympathetic employer.  I reject the submission PW1 refused to see a doctor as suggested by the defendant because she did not have a HK ID card and that for the same reason she did not want a day off and go out.  The defendant arranged a ticket home for PW1 without consulting the employment agency that provided PW1.  She put make up on her face to hide her swollen and dark eyes.  She bandaged PW1’s feet, put shoes on her and made her practice walking before taking her to the airport.  She put her in an adult nappy so she would not have to walk to the toilet and risk others seeing her injuries and painful feet.  She tried to minimize this risk with the nappy and only letting her leave with a light rucksack that only had a few items in it.  PW1 would have been unable to carry anything heavier in her condition.  She was unable to take any of her belongings home except for one piece of batik cloth.  Lastly she took PW1 to the airport herself by taxi, checked her in and walked her to the immigration checkpoint where she had to leave PW1.  I am sure she did all she could to ensure PW1 spoke to no one before she went home.  PW1 only told PW2 at the departure gate because PW2 was persistent in her questions when she could see PW1 was hiding something, scared and hurt.

114.Much is made of the fact there is video footage of PW1 walking unaided into the lift and then a short clip of her walking out of the defendant’s building, Exhibit D17.  There is CCTV footage of her following the defendant walking slowly but unaided in the airport presumably to the check in desk, Exhibit D18.  I do not find these clips discredit her evidence she could hardly walk when she left Hong Kong.  I do not find they prove she exaggerated her condition.  Just the photos of her feet would explain why she could hardly walk.  I am sure her fear of the defendant gave her the will to walk when told or forced to walk. PW6, the taxi driver saw her limp, the check in ground staff PW3 saw her limp and by the time she got to the gate and met PW2 she could hardly walk.  By then she did not have the defendant there to force her to walk or intimidate her.  I do not doubt PW2 pushed her to the new gate on a luggage trolley.  There is no need to nor do I believe them capable of fabricating evidence of that nature.

115.It was suggested by the defence to witnesses that the employment agency that arranged this employment contract, Chan’s Asia Recruitment Centre had kept PW1’s passport and in order to send her home the defendant had to lie to the agency to get it back.  She had to tell them she needed it to take PW1 to China with her on a trip.  Why lie?  Why not say she was unfit to continue her employment and that PW1 resigned from her job?  I am sure the defendant wanted to hide the fact she was sending PW1 home to minimize the risk of exposure. I don’t doubt she had to ask for it and the agency had kept PW1’s passport to make sure the 6 months agency fees debt was paid up. However if the agency knew PW1 was no longer working for the defendant they would have got involved or in contact.  

116.Apparently, PW1 signed D16 a resignation form in English and Indonesian produced to her by the defendant.  She writes she wants an early termination of her contract and would pay the defendant one month’s salary in lieu of notice.  I believe PW1 when she said the defendant made her sign it and dictated to her what to write.  I am sure instead of offering to leave and pay a month in lieu of notice PW1 actually asked to no avail to be paid all her salary owed.

The defence witnesses

117.The first 2 witnesses were the defendant’s teenage children.  The prosecution submits their credibility is highly questionable.  Their evidence relating to PW1 is just that when it is clear parts of their evidence contradicts facts not even in dispute.  Both witnesses did not agree PW1’s eyes and face were swollen and bruised or discoloured when she left Hong Kong.  DW2 went as far as to say she looked the same when she left as she did when she arrived 7 months earlier.  Then when questioned about this statement she said she did not pay attention to PW1’s appearance.  That I found firstly unbelievable and then evasive.  Even DW3 the 20 year old tutor noticed by the winter that the domestic helper looked different, her skin and hands were discoloured, her face, eyes, in fact her whole head looked swollen and her feet were wrapped in plastic bags.  In his opinion, she looked ill not that she had been beaten.  He saw her go from room to room cleaning when he was in the flat.  I don’t believe he as a visitor, noticed the changes but the children who lived there did not.  I do not place weight on their evidence.

118.DW1 was specifically asked about the cameras in almost all the rooms.  His answers were convoluted, cagey, and seemed desperate.  He clearly tried to suggest they were not there for the purpose of monitoring PW1 at home.  He then tried to suggest they were not all functioning when pressed further.  

119.The evidence of DW3 and DW4 does not assist the defence case nor discredit or contradict the prosecution case.  They never saw the defendant abuse PW1 but then neither did the children who lived there.  PW1 said the defendant never hit her in front of the children.  The defendant certainly would not have abused her in front of visitors if she did not abuse her in front of her own children.  DW4 saw PW1 fleetingly on the 22 December for the first and only time.  He said he did not look at her feet but if she had plastic bags tied to them he would have noticed.  He also did not notice anything unusual about her face.  Yet, it was not disputed PW1 wore plastic bags on her feet and DW3 who was there more often than DW4 noticed the changes to PW1’s face and extremities from November 2013.

Unpaid wages, no rest day and no statutory holiday – charges 11 to 20

120.I believe PW1 was not paid any salary whilst she worked for the defendant.  I repeat, after careful consideration I believe her evidence in its entirety.  I am sure PW1 had no say as to how the agency debt was paid for the first 6 months.  I am sure it was arranged that the defendant paid it but this was not arranged between her and PW1.  I am sure that matter was taken out of PW1’s hands and her control; it was not her decision.  PW1 knew the defendant paid it but did not ask the defendant to pay it for her.  The prosecution rightly submits that to deduct the salary of an employee in this manner for this reason is illegal.  To deduct this debt payable by PW1 to a finance company in Hong Kong for 6 installments from her salary is not one of the exemptions under S32(2) of the Employment Ordinance, Cap 57.  It is precisely this type of scenario and person the law seeks to protect.  I refer to paragraph 53 to 55 of P30, the prosecutions submission.  There is no reason why PW1 could not have paid her debt to the agency herself every month after she had received her salary.

121.PW1 was shown receipts in cross examination from Wellcome supermarket and Mannings store, D8 and D9.  She agreed she signed on them against items the defendant bought on her behalf which she was told would be deducted from her salary.  She said she signed many such receipts.  If she was paid her salary monthly and was allowed out on her rest days or at all then she would have bought her own toiletries and necessities. The defendant would not have had to buy things for her.  I believe PW1 when she said she was not allowed to go out and that is why the defendant did this.  She did not have to pay for these items as and when they were bought because she was told the costs were deducted from her salary.  I am sure she was told she had to pay for all the breakage and damage caused by her.  

122.There may be legitimate deductions that could have been made from PW1’s wages that include breakages and items bought on her behalf by agreement but they were not substantiated. I am sure the defendant did not intend to pay any wages so legitimate deductions do not come into consideration as reasonable excuses. I am sure PW1 was not paid any money during her term of employment.  I am sure the signed receipts purporting to show payment were just for show.  PW1 would not have resisted or refused to sign or write anything PW1 ordered her to write.  Such was the hold PW1 had over her.  Hard as it is to believe or imagine I am sure it is the truth.  I am sure the defendant willfully and without reasonable excuse failed to pay wages due to PW1 from June 2013 to January 2014.

123.I am sure PW1 worked every rest day and every statutory holiday because she was for want of a better word, a prisoner in those premises.  The defendant would not have risked letting her out on her own in case she told anyone or ran away.  She would have been a liability to the defendant.  Even DW1 said the defendant did not go out on rest days or holidays because his mother told him PW1 wanted to work to earn extra money.  He said on those days she did not work much but rested in her room.  I reject that evidence as highly unlikely to be true in the circumstances.  When asked if he saw her leave home, rather tellingly his answer was yes, she would go out to throw the rubbish in the rear stairwell.

124.The prosecution rightly point out for charge 19, failing to grant a statutory holiday, even if the defendant had actually paid PW1 any money for that days work it would be illegal and contrary to S40A(1) of the Employment Ordinance as no payment can be made in lieu of the granting of a holiday.  PW1’s evidence was she worked that day as usual and was not paid for it.  For PW1 there was no option to have a day off as she was so entitled.  I believe her.

PW9 - charges 7 and 8

125.I remind myself that the evidence of each witness must be considered separately and independently.  I observed the demeanor of PW9 as she gave evidence and she was not always a fluent and articulate witness but I say from the outset that I found her credible.  I believe her evidence and I am sure the defendant caught her asleep when she was meant to be working and assaulted her with a feather duster.  I do not believe she fabricated this assault to frame the defendant.  I am also sure the defendant threatened PW9 to keep her quiet and in line.  I am sure PW9 was scared to run away because of the threat and she had no contact numbers anyway as the defendant had taken away her telephone book and locked her luggage away.  

126.PW9 I am sure was genuinely shocked to be told on the day she left the defendant’s employment that she had to pack up as she was being picked up.  I am sure she was happy too.  The suggestion their relationship was normal and cordial is unbelievable, especially in light of what PW9 wrote in Indonesian on the resignation letter.  She had written that she could not stand working for the defendant.  I am sure, for whatever the defendant’s reasons, the birthday celebration was staged and not a genuine gesture.  The fact the agent could arrange a new employer after a short stay for PW9 in Macau is entirely plausible and common place.  I do not believe PW13, the agent who supplied many helpers to the defendant conspired with PW9 to end her contract with the defendant and find a new job.

127.There were some discrepancies but none so major or serious I doubted PW9’s credibility.  She was giving evidence of matters from several years ago and did not relate them to anyone in authority in detail until she went to the police in 2014.  The fact she did not report it to the police until after she read of PW1’s case in the media is not surprising.  The same applies to PW10.  It is not uncommon for this to happen where other victims of a crime come forward at a later stage when an identification or an arrest made.  I bear this situation in mind but the most important thing is to test the veracity of their evidence and apply the requisite standard of proof.  The defence witnesses do not discredit the evidence of PW9.  The fact DW1 does not recall a feather duster is not strong evidence that discredits PW9. He was a young teenage who would not have noticed the cleaning materials the maids used around the house.

PW10 - charges 9 and 10

128.Again I consider Ms. Nurhasanah, this victim’s evidence on its own and not in any way relate it to the evidence of PW1 or PW9. The defence was unsuccessful in their submission that after the prosecution’s case there was insufficient prima facie evidence where these charges were concerned.  At this stage where the standard of proof is much higher I consider their adopted submission again.  This witness in cross-examination was led to contradict herself and contradictions were shown between her oral evidence and witness statements. There were some contradictions on material matters.  These include details of the assault and the events of the day after.  She was a poor witness but this does not necessarily make her a dishonest witness; her evidence when considered as a whole was just not reliable enough to prove the prosecution’s case beyond reasonable doubt.  I am sure there was a dispute or an incident that led to her going to the police and terminating the contract, I am just not convinced so I am sure the allegations of the charges were made out.

The employment agency witnesses

129.PW8 arranged for PW1 to work for the defendant. PW13 arranged PW9 and PW10 to work for the defendant.  There is a witness statement from an Indonesian employee of Chans Asia Recruitment Agency, P14.  PW8 resigned from her job just after the police interviewed her.  The Indonesian female employee left Hong Kong the day after she was interviewed and it seems has not returned since.  Her statement is not tested. 2 of these agents gave evidence but I place little if any weight on their evidence.  They gave answers that were measured and deliberate.  Deliberate in that they were given to distance themselves from any wrong doing where the victims were concerned.  

130.PW13 was vague and recalled little detail, not even when she once had to deal with PW10 and the police at the defendant’s home.  She only recalled clearly not one helper had ever complained to her that the defendant had assaulted them.  This directly contradicts PW9’s evidence that when she had left the defendant’s home she told PW13 about the abuse.  There was an entire conversation at dinner after she left the defendant’s home with an Indonesian interpreting for her.  I am sure PW13 was told but her contradiction is self serving to absolve her of any blame or wrong doing.  She deliberately distanced herself from any complaint of ill treatment.

131.PW8 declined to answer the question when it was put to her that her agency kept the travel documents of PW1 to ensure she repaid the agency fee debt from the first 6 months of her salary.  They kept it to put pressure on PW1.  She refused to answer after a warning that she may incriminate herself depending on the answer she gave.  I placed no weight on her evidence. 

Elements of charge 2 (S 19 wounding)

132.I have said I have found PW1 a credible witness; however, I have to apply this evidence to each charge and determine if the ingredients or elements of each charge are proved to the appropriate standard.  The only charge where I find the elements not all proved is charge 2.  The defence submits this must be right if the witness is found credible. The prosecution does not vehemently disagree.  Her evidence of this incident does not go so far as to prove a S19 wounding offence.  She was punched hard in the nose during an assault and it was particularly painful.  She said her nose hurt and there was dried blood in her nasal passage.  She found it hard to breath for a while through the left nostril.  This cannot be defined as really serious bodily injury as required for a S19 wounding offence.  The prosecution was led to believe by the Indonesian doctors her nose had been broken.  However after charges were laid the medical opinion changed.  The radiologist opined there was mild deviation of her nasal septum to the right.  There is no evidence this was as a result of a punch.  The accepted medical opinion is that this can be quite a common anatomical variant.  Even though I accept the evidence from PW1 of this assault I cannot find charge 2 proved but there is an alternative; a verdict of assault occasioning actual bodily harm contrary to S39 of the same Ordinance is an available alternative.

Conclusion

133.After careful consideration of PW1’s evidence, I accept it in it’s entirety and despite the defendant’s clear record I am sure the defendant did assault, wound and threaten PW1 as charged. The prosecution has proved beyond reasonable doubt that in early July 2013 the defendant intentionally punched PW1 in the mouth fracturing 2 of her front teeth, unlawfully and maliciously inflicting grievous bodily harm.  The injury I would define as really serious bodily harm.  The defendant is convicted of charge 1.

134.The prosecution has proved beyond reasonable doubt that the defendant on a date in the summer months of 2013, between July 2013 and October 2013 did intentionally punch PW1 in the nose during an assault on her.  The punch caused her nose to bleed and caused her to have difficulty breathing for a period of time.  These facts I do not find sufficient to prove a wounding charge and I acquit the defendant of charge 2 as it is but do convict her of a lesser charge, assault occasioning actual bodily harm, contrary to S39 of the same Ordinance.  This is done pursuant to S51 (2) of the Criminal Procedure Ordinance Cap 221.

135.The prosecution has proved beyond reasonable doubt that the defendant on a date in the summer months of 2013, between July 2013 and October 2013 did intentionally hit PW1 over the head causing her to fall to the ground and lose consciousness.  The defendant is convicted of charge 3.

136.The prosecution has proved beyond reasonable doubt that the defendant in the late summer of 2013, between the months of September and October 2013 did unlawfully and maliciously insert or push a metal tube of a vacuum cleaner into PW1’s mouth with intent to cause her grievous bodily harm.  The twisting action resulted in a bleeding torn lip and a permanent scar.  The defendant is convicted of charge 4.

137.The prosecution has proved beyond reasonable doubt the defendant assaulted PW1 when she made her stand naked and wet against her will in the bathroom for hours with a fan turned on and pointed in her direction during the winter time. This was on a date between the 30 December 2013 and the 3 January 2014.  PW1 recalled it was the last assault and the date to be about 1 week before she left Hong Kong.  The defendant is convicted of charge 5.

138.The prosecution has proved beyond reasonable doubt the defendant threatened PW1 on the 9 January 2014 at her home. Specifically, she threatened the safety of her parents if PW1 told anyone of her ordeal at the hands of the defendant or caused the defendant any trouble.  I am sure PW1 believed this threat just as she had believed the many previous similar threats made over a period of 6 months.  I am sure to PW1 the threat was plausible and credible. The defendant is convicted of charge 6.

139.After careful consideration of PW9’s evidence I accept in its entirety and despite the defendant’s clear record I am sure the defendant did assault and threaten PW9 as charged.  The prosecution has proved beyond reasonable doubt the defendant did intentionally hit PW9 once with a feather duster across her back when she found her asleep whilst working. I am sure PW9 was telling the truth even though she could not be more specific with a time frame.  The defendant is convicted of charge 7.

140.PW9 could recall that she wanted to call her parents about 3 months after she started work in Hong Kong.  She had not been in contact once with them so her recollection of this incident would be strong.  She was told by the defendant that it was not allowed and was threatened for the first time.  The prosecution has proved beyond reasonable doubt the defendant threatened to kill PW9 if she insisted on using the phone or talked to anyone.  I believe PW9 was scared by the threat.  The defendant is convicted of charge 8.

141.The prosecution has proved beyond reasonable doubt that the defendant willfully and without reasonable excuse failed to pay PW1 her $3,920 monthly wage for the months of June to December 2013 not just before the due date but at all.  I am also sure that the defendant failed to pay her the pro rata wage of $1,390.97 for the period of 30 December 2013 to the 9 January 2014.  The defendant is convicted of charge 11 through to charge 18.

142.The prosecution has proved beyond reasonable doubt the defendant without reasonable excuse failed to grant PW1 a statutory holiday, the 1 January 2014.  The defendant is convicted of charge 19.

143.The prosecution has proved beyond reasonable doubt the defendant without reasonable excuse failed to grant PW 1 rest day on the 5 January 2014, a Sunday.  The defendant is convicted of charge 20.

144.Despite my suspicions, the prosecution is unable to prove beyond reasonable doubt the defendant assaulted and threatened PW10 and the defendant is acquitted of charges 9 and 10.

145.Accordingly and despite her clear record, Ms. Law Wan -tung is convicted of charges 1 to 8 and 11 to 20 after trial.  She is acquitted of charges 9 and 10.