TUTIK LESTARI NINGSIH v. LAW WAN TUNG

DCCJ 2197/2015

[2018] HKDC 211

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2197 OF 2015

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JUDGMENT

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Introduction

1.  The plaintiff was an Indonesian domestic helper working for the defendant from 19 April 2010 to 30 March 2011 (“the Employment Period”).  She commenced this action against the defendant on 18 May 2015 for damages for false imprisonment and common assault.

2.  The defendant has not raised limitation as a defence to the plaintiff’s claim in her defence[1]. Accordingly, limitation is not an issue in these proceedings.

The facts

3.  I would first set out the facts which are not in dispute or indisputable.

4.  The plaintiff was born in 1985.  She was employed by the defendant as an overseas domestic helper under an employment contract (“the Employment Contract”) made between them for a term of 2 years from 17 April 2010 to 16 April 2012.  The Employment Contract was terminated on 30 March 2011.

5.  During the Employment Period, the plaintiff worked for the defendant and resided at the defendant’s premises (“the Premises”) in Tai Kok Tsui.

6.  In about January 2014, the plaintiff made a report to the Hong Kong Police, saying that she was assaulted and threatened by the defendant during the Employment Period.  The police started to investigate the matter.  Later, 2 criminal charges were laid against the defendant, namely:-

(a)   common assault upon the plaintiff at the Premises on a day between 19th April 2010 and 30th March 2011; and

(b)   criminal intimidation on a day in or around August 2010 by threatening the plaintiff with injury to her person with intent to alarm her.

7.  The brief facts prepared by the prosecution in relation to the aforesaid criminal charges are as follows:-

(a)   common assault

“[The plaintiff] worked for the defendant at [the Premises] as domestic worker between 19 April 2010 and 30 March 2011. [The plaintiff] had 4 hours resting time per day and was responsible for doing cleaning work. On a day unknown between 19 April 2010 and 30 March 2011, the defendant assaulted the back of [the plaintiff]’s shoulder with a feather duster. There were other numerous occasions on which [the plaintiff] was assaulted by the defendant but [the plaintiff] could not recall the details.”

(b)   criminal intimidation

“on a day unknown in or around November 2010 at [the Premises], [the plaintiff] requested to make a telephone call to her family members. The defendant rejected [the plaintiff]’s request. The defendant threatened to kill [the plaintiff] and her family members if [the plaintiff] became disobedient. [The plaintiff] was scared and worried about her own and her family members’ safety.”

8.  On the 10 February 2015, the defendant was found guilty as charged (“the Convictions”) after trial in the District Court.[2] For the charge of common assault, the court imposed an imprisonment term of 4 months.  For the charge of criminal intimidation, the court imposed an imprisonment term of 1 year and 6 months.  Together with the sentence on other charges which were found proved in the criminal case, the defendant was finally given a sentence of imprisonment for 6 years and was fined for HK$15,000 in the criminal court.  The defendant made an application to the Court of Appeal for leave to appeal against convictions and sentence.  The application is unsuccessful.

The plaintiff’s case

9.  The plaintiff’s case as pleaded in the statement of claim is as follows:-

“……

4. At all material times during the Employment Period, the Defendant refused to allow the Plaintiff to leave the Premises unaccompanied and denied the Plaintiff any means of communication with anyone outside of the Premises including depriving her of any telephone, postal and internet connection thereby imprisoning the Plaintiff in the Premises.

5. The Defendant unilaterally terminated the Employment Contract on the 30th March 2011.

6. By reason of the matters aforesaid, the Plaintiff was imprisoned and deprived of her liberty and has suffered loss and damage.

7. During the Employment Period:-

i. The Defendant repeatedly hit and slapped the Plaintiff’s body including her face, cheeks, arms and back. The Defendant also repeatedly yelled at the Plaintiff;

ii. On a day in May 2010, the Defendant slapped the Plaintiff’s body and shoulder with her bare hands and kicked her upper thigh;

iii. On a day in the winter months of 2010 to 2011, the Defendant hit the Plaintiff on the back with the bamboo stick end of a feather duster;

iv. On a day in or around August 2010, the Defendant threatened to kill the Plaintiff after the Plaintiff asked the Defendant if she could use the phone to call home;

v. Since August 2010, the Defendant repeated her threats to kill the Plaintiff and/or family if she refused to obey the Defendant and/or if the Plaintiff told others about the Defendant’s treatment of the Plaintiff.

vi. The Defendant required the Plaintiff to work 20 hours a day and allowed her only 4 hours of rest from 6am to 10am;

vii. The Defendant locked away the Plaintiff’s phone book and luggage;

viii. The Defendant refused to allow the Plaintiff to seek medical assistance outside of the Premises when the Plaintiff requested for medical treatment for the wounds and swelling of her hands, legs and feet;

ix. The Defendant failed to pay the Plaintiff any and all of her monthly salary and the Defendant forced the Plaintiff to sign receipts to acknowledge receipt of the monies. On two occasions in or around May 2010 and June 2010, the Defendant slapped the Plaintiff when she asked for her salary and/or refused to sign the receipts; and

x. The Defendant refused to allow the Plaintiff to have her rest days and/or statutory holidays. On or around July 2010, the Defendant beat the Plaintiff when she asked for a rest day.

As a result of the Defendant’s abusive behavior towards the Plaintiff, the Plaintiff suffered bruises and pains on the shoulders, headaches, grazes and cuts on the arms and legs and swelling to her arms and legs as well as fear, distress, helplessness and misery.

8. The Plaintiff claims aggravated damages and/or exemplary damages for the circumstances of the wrongful imprisonment and deprivation of liberty.

9. The Plaintiff intends to rely on [the Convictions] as evidence in this action.

10. The Plaintiff is entitled to and claims interest upon damages as may be awarded to her at such rate and for such period as the Honourable Court deems fit pursuant to Sections 49 and 50 of the District Court Ordinance (Cap. 336).

11. AND THE PLAINTIFF CLAIMS AGAINST THE DEFENDANT FOR:-

a) Aggravated and/or Exemplary Damages;

b) Damages;

c) Interest;

d) Costs; and

e) Further and other relief as this Honourable Court deems fit.”

10.  In the statement of damages, the plaintiff pleaded:-

“B. Compensatory and Aggravated Damages for False Imprisonment

1. The Plaintiff commenced work with the Defendant on 19th April 2010. At the material time, the Plaintiff had only newly arrived in Hong Kong from Indonesia. She was foreign to the city and culture.

2. During her employment with the Defendant, the Plaintiff was required to work long hours and was subjected to immense physical and mental stress and abuse.

3. The Plaintiff was repeatedly assaulted by the Defendant as pleaded in paragraphs 7(i) to 7(iii) of the Statement of Claim filed herein. The Defendant also repeatedly threatened to kill the Plaintiff and/or her family if the Plaintiff was to tell anyone about the ill-treatment or refused to obey the Defendant’s instructions as pleaded in paragraphs 7(iv) to 7(v) of the Statement of Claim filed herein. The Defendant was convicted of one count of criminal intimidation in the related criminal trial DCCC421/2014 & 651/2014 (consolidated) and the said conviction is relevant to the claim for compensatory and aggravated damages for false imprisonment.

4. The Plaintiff was released by the Defendant on 30th March 2011. During the span of her employment with the Defendant between 19th April 2010 and 30th March 2011, the Plaintiff was falsely imprisoned and lived in oppression for a total of 346 days. She was deprived of her freedom of movement and her general liberties, and in particular, her right to leave the Defendant’s residence and seek medical treatment.

5. In the circumstances, the Plaintiff claims a sum of HK$100,000 under this head.

C. Aggravated Damages for Common Assault

6. The Plaintiff repeats the particulars as pleaded in paragraphs 7(i) to 7(iii) and 8 of the Statement of Claim filed herein. She suffered bruises and swelling to her back, legs and arms. The Plaintiff has fully recovered from her physical injuries over time. She not only suffered physical pain but also humiliation, distress and insult to her pride and dignity on a repeated basis throughout her employment with the Defendant.

7. The Defendant was convicted of one count of common assault in the related criminal trial DCCC421/2014 & 651/2014 (consolidated) and the said conviction is relevant to the claim for aggravated damages for common assault.

8. The Plaintiff claims for a sum of HK$70,000 under this head.

Summary

9. The Plaintiff’s claim is summarized as follows:-

I.	Compensatory and Aggravated
	Damages for False Imprisonment	HK$100,000
II.	Aggravated Damages for Common
	Assault	HK$70,000
		HK$170,000”

11.  Accordingly, the plaintiff is claiming for compensatory and aggravated damages for false imprisonment in the sum of HK$100,000, and aggravated damages for common assault in the sum of HK$70,000.

12.  Mr Ching, solicitor for the defendant, mounts a challenge against the plaintiff’s pleadings and submits:-

(a)   Imprisonment must be a total restraint of one’s liberty for some period.  A partial restraint of his will does not constitute an imprisonment[3].

(b)   The matters concerning false imprisonment as pleaded are confined to those set out in §4 of the statement of claim, for “[b]y reason of the matters aforesaid” is stated in §6 of the statement of claim.

(c)   The crux of the false imprisonment as pleaded in §4 of the statement of claim is that the defendant refused to allow the plaintiff to leave the Premises unaccompanied.  This does not constitute imprisonment.

(d)   What is implied in the plaintiff’s statement of claim is that the plaintiff was allowed to leave the Premises accompanied.  There was no total restraint of her liberty.  Hence, there has not been any imprisonment.

(e)   Not allowing the plaintiff to have any telephone, postal and internet connection per se does not amount to total restraint of personal liberty and is not imprisonment.

(f)   The particulars of false imprisonment given in the statement of damages must be read subject to the statement of claim, ie the plaintiff was only not allowed to leave the Premises unaccompanied.

(g)   The defendant has never been prosecuted or convicted of the offence of “false imprisonment”.

(h)   As to common assault, the plaintiff does not claim any ordinary damages but only aggravated damages.  Aggravated damages can only be awarded if there is injury to the plaintiff’s proper feelings of pride and dignity[4].

(i)   As pleaded in §6 of the statement of damages, the plaintiff is only relying upon the particulars given in §7(i) to (iii) in the statement of claim in support of the claim for aggravated damages for common assault.  There is no or no sufficient plea in relation to any alleged injury to the plaintiff’s pride and dignity in the plaintiff’s pleadings.  

13.  With respect, I am unable to accept these submissions.

(a)   Mr Tony Ko, counsel for the plaintiff, refers me to Clerk & Lindsell on Torts (22^nd Edition), §15-23, in which a succinct summary of the law concerning false imprisonment can be found:-

“False imprisonment is “the unlawful imposition of constraint on another’s freedom of movement from a particular place”.  The tort is established on proof of: (1) the fact of imprisonment; and (2) the absence of lawful authority to justify that imprisonment. For these purposes, imprisonment is complete deprivation of liberty for any time, however short, without lawful cause.  Even confining an individual in a doorway for a few seconds without lawful authority would amount to a false imprisonment.  In the context of someone who is mentally ill, the Supreme Court has ruled that the question of whether that person has been deprived of his or her liberty for the purposes of s 64(5) of the Mental Capacity Act 2005, means that he or she “was under continuous supervision and control and was not free to leave”.  Whether the same test for “deprivation of liberty” will be applied to the common law on false imprisonment remains to be seen.  But what at least is certain is that a prisoner need not be placed under lock and key for the purposes of this tort.  It is enough that his movements are simply constrained at the will of another.  The constraint may be actual physical force, amounting to a battery, or merely the apprehension of such force, or it may be submission to a legal process.  A mere partial interference with freedom of movement does not amount to an imprisonment.”

(b)   Mr Ko reminds me that when one’s movements are simply constrained at the will of another, there is imprisonment.  I further notice that complete deprivation of one’s liberty for any period, however short, would be sufficient to constitute imprisonment.

(c)   The purpose of pleadings is to fairly and precisely inform the other side of the stance of the pleading party so that the other side can do proper preparation to meet the pleaded case at trial, and time and effort would not be expended unnecessarily on other issues[5]. Bearing this in mind, the pleaded case of a party is the case set out in his pleadings, and the pleadings should be read as a whole fairly and reasonably.

(d)   Reading the plaintiff’s pleadings as a whole fairly and reasonably, in my view, particulars of the matters pleaded in §4 of the statement of claim are given in §7 of the same pleading.  In my judgment, it would not be right to only look at §4 of the statement of claim in considering the plaintiff’s claim in relation to false imprisonment.

(e)   That the plaintiff might leave the Premises accompanied does not necessarily mean that there was definitely no imprisonment.  What is important is during the Employment Period, whether the plaintiff’s movements had been constrained at the will of the defendant.  As to this, particulars have been given in §7 of the statement of claim.  In my judgment, if those particulars are proved, there would be false imprisonment.  By refusing to allow the plaintiff to leave the Premises to seek medical assistance, and by refusing to allow the plaintiff to have any rest day and statutory holiday and requiring her to work 20 hours on each and every day, all these are complete deprivation of the plaintiff’s liberty and no doubt are imprisonment. 

(f)   That the defendant has never been prosecuted and convicted of the offence of “false imprisonment” is not a matter concerning the plaintiff’s pleadings.

(g)   In respect of the claim for aggravated damages for common assault, it has been pleaded in §7 of the statement of claim that by reason of the matters set out in that paragraph (including §7(i) to (iii)), the plaintiff suffered “… as well as fear, distress, helplessness and misery”.  Further, it is pleaded in §2 of the statement of damages that during the Employment Period, the plaintiff “… was subjected to immense to immense physical and mental stress and abuse”.  It is also pleaded in §6 of the statement of damages that as a result of the assault as pleaded in §7(i) to (iii) of the statement of claim, the plaintiff suffered “… humiliation, distress and insult to her pride and dignity on a repeated basis throughout her employment with the Defendant”.  In my view, that the assault has caused injury to the plaintiff’s pride and dignity has been clearly pleaded.

14.  In my judgment, there is no merit in the defendant’s challenge against the plaintiff’s pleadings.  I would proceed to consider whether the plaintiff’s case is proved.  The plaintiff has filed witness statements and given evidence in the trial in support of her case.

The defendant’s case

15.  The defendant has filed a defence, in which she simply put forward a non-admission and requires the plaintiff to prove the plaintiff’s case. 

16.  The defendant has also filed a witness statement, in which she goes one step further by denying the plaintiff’s case.  In her witness statement, the defendant says, inter alia, that she has never hit or slap the plaintiff in any way, she has never refused to allow the plaintiff to go out to seek medical assistance, and she has never refused to allow the plaintiff to have any rest day or statutory holiday.

17.  At the beginning of the trial, Mr Ching informs me that the defendant has chosen not to give evidence in the trial.  After hearing the plaintiff’s evidence and after Mr Ko closing his case, I ask Mr Ching whether the defendant would give evidence.  Mr Ching again tells the court that the defendant would not give any evidence.

18.  Since the defendant has not confirmed her witness statement on oath in the trial and has not been subject to cross-examination, I attach no weight to the matters said in the defendant’s witness statement.

Evaluating the evidence

19.  In evaluating the evidence given by the plaintiff, I bear in mind the guidance given by DHCJ Eugene Fung SC in Hui Cheung Fai and another v Daiwa Development Limited[6], in which the learned judge said:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce) ……

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”

20.  Further, it is well known that when a party without a proper explanation fails to call a witness who he might be reasonably expected to call, the court may draw an adverse inference against the party that the evidence of the witness may not help the party’s case[7].

21.  Mr Ching submits that the only effect of the defendant electing not to give evidence in the trial is that her witness statement should be disregarded, and no adverse inference should be drawn against the defendant.  Mr Ching’s submissions cannot be correct.  In fact, submissions of this kind were made in Telings International Hong Kong Ltd v John Ho and Others[8] and were rejected by the Court of Appeal.  In that case, Le Pichon JA said:-

“78. I turn now to consider the question of the effect of the plaintiff failing to call any witnesses. In his written submissions, [counsel] took the bold stance that

“[n]o adverse inference could be drawn from the fact that the witnesses were not called.  If the witness is not called, these statements are simply disregarded.”

79. I cannot accept [counsel]’s submission. It is contrary to the well-established maxim, omnia praesumunter contra spoliatorem, sometimes referred to as the principle in Armory v Delamirie (1722) 1 Str 505. In Hong Kong and Shanghai Banking Corporation v Chan Yiu Wah [1988] 1 HKLR 457, Fuad JA expounded that principle (at 467). That passage is quoted in full in my judgment in Tullett & Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKC 713 at 723B-E:-

“285. Failure to produce evidence, as indicating unfavorable tenor of evidence: (1) In general. … The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.

[Armory v Delamirie] this has been a recognised principle.”

See also Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434 at 443I-444B.

80.   While the judge referred (at §73) to:-

“the practice that where a litigant chooses not to call evidence, the court is entitled to be bold and can draw from the facts or reasonable inferences as to what facts may have been withheld”

and professed to have borne that in mind, it would appear that he did not find it necessary to apply the maxim by reason of his rejection of the testimony of the defence witnesses.

81.   However, in thus rejecting the testimony of the defendants, the judge appears to have evaluated their evidence in isolation, without weighing it against any reasonable adverse inference to be drawn from the failure of the plaintiff to call any oral evidence on any particular matter or issue.  Using what appears to be a broad brush approach, the judge simply rejected the defendants’ evidence in its entirety. In a case such as this, where the plaintiff has failed to call relevant witnesses to give evidence notwithstanding the highly complex and at times wholly unexplained factual backdrop, such an approach serves to emasculate the evidential maxim and cannot be correct.  In my view, every reasonable inference adverse to the plaintiff and in favour of the defendants should be drawn in determining each and every disputed fact.”

22.  The Convictions and the facts in relation thereto are indisputable facts and the plaintiff is entitled to rely upon the same.

23.  The defendant has filed a witness statement in which she denies everything said by the plaintiff, including the assaults and the imprisonment mentioned by the plaintiff.  However, the defendant has chosen not to confirm the witness statement on oath and not to give any evidence in the trial.  No explanation, let alone proper explanation has been offered as to why the defendant does not give evidence in the trial.  In these circumstances, I draw an adverse inference against the defendant that the denials in her witness statement are not the truth.

24.  At the beginning of the trial, Mr Ching has indicated that the defendant would not give evidence.  After hearing the plaintiff’s evidence and after the close of the plaintiff’s case, I ask Mr Ching whether the defendant would give evidence.  Mr Ching says that the defendant would not give evidence.  This is an important episode.  If the defendant considers that any matter mentioned by the plaintiff in her oral evidence in court is a recent invention and that matter has never occurred, the defendant should come forward and deny that on oath. However, in reply to the enquiry made by this court after the close of the plaintiff’s case, the defendant still chooses not to give any evidence.  This has a bearing in assessing whether the plaintiff has made up any story as alleged by Mr Ching in his cross-examination and final submissions.

25.  In her witness statements, the plaintiff says:-

(a)   During the Employment Period, she was forced to work for about 20 hours each day from 10 am to 6 am of the next morning.  She was physically and mentally exhausted by repeating the same routine every day.  Her hands and feet were swollen due to overworking.

(b)   She tried to ask for time off but was refused by the defendant.  Even when she was sick, the defendant would not allow her to go out to see doctor and only bought her some medicine.

(c)   The defendant often scolded her and hit her on her legs and back either with the defendant’s bare hands or a feather duster if the defendant was not happy with the plaintiff’s work.  The defendant also kicked the plaintiff on the plaintiff’s legs on a few occasions.

(d)   Apart from the HK$6,000 given to the plaintiff at the end of the Employment Period, no wages were paid to the plaintiff.  Further, no holiday was given to the plaintiff.  The defendant forced the plaintiff to sign some papers confirming that the plaintiff had received wages and compensation for holidays by slapping her.

(e)   The defendant threatened to kill the plaintiff and her family if the plaintiff told anyone the defendant’s abusive behaviours.  The defendant told the plaintiff that the defendant’s husband had many connections in Indonesia and could easily locate the defendant’s family.  The plaintiff had no choice but to follow the defendant’s commands, for the defendant would have beaten the plaintiff had the plaintiff disobeyed, and the plaintiff also feared that the defendant would harm the plaintiff’s family.

(f)   The defendant did not allow the plaintiff to make any phone call to the plaintiff’s family in Indonesia.  The defendant was always violent towards the plaintiff.

(g)   The plaintiff’s personal belongings and luggage were locked by the defendant and the key was kept by the defendant.  Although the defendant and her family sometimes would go out for dinner, the defendant would always lock the door from outside and the plaintiff was unable to leave the Premises.  The plaintiff had never been given the keys to the Premises.

(h)   The plaintiff’s sister-in-law found the agency in Hong Kong and demanded to see the plaintiff and threatened to make a report to the Hong Kong Police. The agency eventually picked up the plaintiff from the Premises on 30 March 2011.

(i)   During the whole Employment Period, the plaintiff only left the Premises on two occasions, namely (i) the first time was that the defendant asked the plaintiff to accompany her outside and pick up some items at night, and (ii) the second time was that the defendant asked the plaintiff to go downstairs to pick up somethings, but the defendant warned the plaintiff that the plaintiff must return as soon as possible and the defendant was tracking the plaintiff.

(j)   Before the plaintiff leaving the Premises, the defendant again threatened the plaintiff not to tell anyone what happened during the Employment Period, otherwise the defendant would kill the plaintiff and her family.

(k)   The plaintiff was given HK$6,000 in cash by the defendant before the plaintiff leaving the Premises.

(l)   All the matters in relation to the Convictions are true.

(m)   After several years, the plaintiff learned from the newspapers that another Indonesian domestic helper, known as Erwiana Sulistyaningsih, was abused by the defendant after the plaintiff leaving the employment.  The plaintiff finally found the courage to report her case to the police.  She did not want to see another domestic helper falls to be the victim of the defendant.

26.  Mr Ching submits that the cross-examination has revealed that the plaintiff is not a truthful and reliable witness.  Mr Ching submits:-

(a)   Under cross-examination, the plaintiff has agreed that from time to time there would be visitors coming to the Premises.  Mr Ching has asked the plaintiff why she did not try to leave the Premises on those occasions.  The plaintiff’s answer is that she could not do so, for the defendant would lock the plaintiff inside a small room and require her to work in that room when there were visitors in the Premises.  Mr Ching submits that the plaintiff’s answer is a recent invention.

(b)   In respect of the “feather duster episode” which is the subject matter of the conviction of “common assault”, Mr Ching submits that the “whip marks” left on the plaintiff’s back as a result of this assault is a recent invention made up by the plaintiff in this case.  There is no mention of these whip marks in the criminal proceedings.  The plaintiff only mentioned this for the first time in her supplemental witness statement dated 26 September 2017 filed in this case.

(c)   Apart from the “feather duster episode”, during cross-examination, the plaintiff mentions for the first time that the defendant has assaulted her by using a ruler for not less than 5 times and by using a cleaning cloth for more than 2 times.  All these have never been mentioned in the criminal proceedings.  Mr Ching submits that all these are stories made up by the plaintiff.

(d)   There are incidents of assaults in the plaintiff’s witness statements in this case which have not been mentioned in the criminal proceedings, namely (i) “pinching”[9], (ii) hitting the plaintiff when refusing to allow the plaintiff to take leave[10], (iii) hitting the plaintiff when the plaintiff tried to tender resignation in December 2010[11], and (iv) kicking the plaintiff at the plaintiff’s knee[12]. Mr Ching submits that all these are likely to be recent inventions. 

27.  I have carefully considered the plaintiff’s evidence and the points made by Mr Ching.  In my judgment, Mr Ching’s points are not valid criticism.  I am of the view that the plaintiff is an honest and reliable witness and I accept her evidence in its entirety.

(a)   As to why she did not tell that she would be locked in a small room when there were visitors in the Premises in the criminal proceedings, the plaintiff has given an answer during cross-examination, ie question on this point has not been asked in the criminal proceedings.   I have gone through the statements given by the plaintiff to the police and the transcripts of the plaintiff’s evidence in the criminal trial.  The plaintiff’s answer is factually correct. Further, in the criminal trial, during the plaintiff’s evidence-in-chief, senior counsel for the defendant made an objection and said that evidence not relating to the charges laid against the defendant should not be led.  The prosecutor noted the objection.  Since no charge of “false imprisonment” has been laid against the defendant in the criminal proceedings, it is not a surprise that no question concerning false imprisonment has been asked in the criminal proceedings.

(b)   By reason of the conviction of the “common assault” in the criminal proceedings, it is an indisputable fact that the “feather duster episode” did occur.  As to whether the assault caused any injury to the plaintiff, this question has not been asked by the police.  In the criminal trial, during the cross-examination of the plaintiff, the exchanges on this point between the plaintiff and the senior counsel for the defendant are as follows:-

“Q. When you were struck with the feather duster, did it cause any sort of mark or injury?

A. I do not know, but my back feel hurt and I can’t see my back.

Q. I mean, nobody took any picture or anything like that, of any injury?

A. No one.”

Reading these exchanges, it is not clear when the plaintiff was saying “I do not know, but my back feel hurt and I can’t see my back”, she was referring to which point of time. When the plaintiff is giving evidence in this trial, she explains that immediately after being hit by the feather duster, she did not know whether the assault has caused any harm to her, for she was wearing clothes and she could not see her back.  It was only until the next day in the morning, when she was having shower in the bathroom, she saw from the mirror that there were whip marks on her back.  The plaintiff’s explanation is logical and in accordance with common sense.  I accept her explanation.

(c)   In her first statement given to the police on 19 January 2014, the plaintiff mentioned that the defendant hit her numerous times, and the defendant hit her or scolded her nearly every day, and she could not remember the exact dates and times.  In the same statement, the plaintiff was asked whether the defendant had ever hit her with any weapon or hard object.  The plaintiff answered that there was only one such incident, and that was the feather duster episode.

(d)   During cross-examination, Mr Ching asks the plaintiff whether the defendant has ever used any object to hit her, apart from a feather duster. The plaintiff says that the defendant always used bare hands to assault her, but occasionally the defendant also used a ruler and a cleaning cloth.  Mr Ching asks the plaintiff to specify how often the defendant would use a ruler and a cleaning cloth to assault the plaintiff.  After several exchanges, the answer given by the plaintiff is a few times. 

(e)   I am not surprised that the plaintiff did not mention that she had been hit by the defendant by using a ruler and a cleaning cloth in the criminal proceedings.  Reading the plaintiff’s evidence in the criminal proceedings as a whole, the plaintiff was saying that she was assaulted by the defendant nearly on daily basis, but she could not tell the details due to lapse of time, and the only specific incident she could remember was the feather duster episode. Naturally one would not say much in respect of matters which he or she does not have a clear memory.  Mr Ching submits that these “ruler” and “cleaning cloth” incidents are recent inventions made up by the plaintiff when she is giving evidence in the witness box for the purpose of exaggerating the seriousness of the assault and obtaining more damages.  I do not agree.  Firstly, the plaintiff does not shy away from the fact that she does not have a clear memory of these “ruler’ and “cleaning cloth” incidents.  Secondly, the plaintiff emphasizes that the defendant usually assaulted her by using bare hands.  If the plaintiff really wants to exaggerate the matter, she would not emphasize this.

(f)   In respect of the discrepancies between the plaintiff’s evidence in the criminal proceedings and in this case mentioned in Mr Ching’s submissions, in my judgment, all these are trivial matters.  It is important to note that in the criminal proceedings, the plaintiff did not say the feather duster episode was the only assault. The plaintiff in fact said there were numerous other assaults but she was not able to recall the details.

(g)   Further, if there is anything in the plaintiff’s witness statements which are untrue, the defendant can certainly give evidence in the trial to refute those untrue allegations.  If the plaintiff has made up any new story while she is giving evidence in the witness box, after hearing the plaintiff’s evidence, the defendant can certainly seek leave to give evidence to rebut the plaintiff.  However, the defendant elects not to give any evidence in this trial.  In these circumstances, it would be difficult for Mr Ching to say that the plaintiff’s evidence or any part thereof is not the truth.

Liability

28.  Based upon the evidence accepted by this court, I find that the plaintiff has proved her case against the defendant.

29.  Although the defendant has not been prosecuted for committing any offence of false imprisonment, that does not prevent this court from making a finding on the claim of false imprisonment made by the plaintiff in this case. I am satisfied that satisfactory evidence has been adduced by the plaintiff to prove the claim of false imprisonment.

30.  I find that during the whole Employment Period, the plaintiff only left the Premises on two occasions in the circumstances as described by the plaintiff in her evidence.  On these two occasions, the plaintiff was asked to go out and pick up somethings.  She was accompanied by the defendant in the first time, and was warned that she must return as soon as possible and she was tracked in the second time.  I find that the plaintiff’s movement were constrained by the defendant on these two occasions.  By reason of the repeated assaults and the intimidations exerted by the defendant on the plaintiff, the plaintiff’s movement was clearly under the constraint of the defendant and the plaintiff could only do what the defendant commanded her to do on these occasions.  In my judgment, by refusing to allow the plaintiff to leave the Premises to seek medical assistance, by refusing to allow the plaintiff to have any rest day and statutory holiday and by requiring she to work 20 hours on each and every day and not allowing the plaintiff to leave the Premises, the defendant has completely deprived the plaintiff’s liberty.  No doubt that the defendant did not have any authority to detain the plaintiff, and the imprisonment is certainly false.  I hold that the defendant is liable to the plaintiff for false imprisonment.

31.  I find that during the Employment Period, the defendant did repeatedly assaulting the plaintiff, including assaulting the back of the plaintiff’s shoulder with a feather duster at one time.  I hold that the defendant is liable to the plaintiff for common assault.

32.  Accordingly, there shall be judgment against the defendant on liability.

Quantum

33.  Although the plaintiff uses the term “compensatory and aggravated damages for false imprisonment”, Mr Ko has made it clear in his written opening submissions that what is claimed by the plaintiff is aggravated damages for false imprisonment.  The plaintiff also claims “aggravated damages for common assault” in the statement of damages.  In other words, in respect of both false imprisonment and common assault, the plaintiff is claiming aggravated damages. It is not in dispute that aggravated damages can only be awarded if there is injury to the plaintiff’s proper feelings of pride and dignity[13].

34.  Mr Ko submits that aggravated damages are justified in this case:-

(a)   The defendant has continuously assaulted and threatened the plaintiff and depriving the plaintiff’s liberty for nearly one year.  The defendant’s acts are seriously wrong, and these wrongful acts have continued for a long period.

(b)   What has been done by the defendant against the plaintiff are cruel and inhuman.  The purpose of doing all these is to subdue the plaintiff and to make the plaintiff completely submitting to the defendant’s authority.

(c)   The defendant refused to allow the plaintiff to seek medical care from professionals so that the defendant’s abusive behaviours would not be revealed. These are cruel and selfish acts.

(d)   A foreign domestic helper is entitled to trust that her employer would treat her reasonably, including to give her due respect, sufficient rest time and holidays.  The defendant has breached the trust reposed by the plaintiff on the defendant.

(e)   The defendant denies everything at all times.  As a result of this, the plaintiff has to testify in the criminal proceedings and in this case, recalling all the painful and traumatic experience during the Employment Period.

35.  I agree.  In my judgment, by reason of the matters set out above, the plaintiff’s proper feelings of pride and dignity has been injured and it is right to award aggravated damages to the plaintiff.

36.  In respect of aggravated damages for false imprisonment, Mr Ko refers me to several cases.  I am of the view that the following cases are appropriate comparable:-

(a)   Erwiana Sulistyaningsih v. Law Wan Tung[14] -  This is a case in which another Indonesian domestic helper sued the defendant for assault, battery, and false imprisonment.  The domestic helper in that case claimed, inter alia, aggravated damages for imprisonment in the sum of HK$100,000.  The court held that during the employment period of over 7 months, the domestic helper suffered from extensive abuse at the defendant’s hands.  The plaintiff was also not allowed to leave the defendant’s flat.  The court allowed the claim for aggravated damages for false imprisonment in full.

(b)   Faridha Sulistyoningsih v. Mak Oi Ling Karen[15] - In this case, an Indonesian domestic helper sued her former employer for, inter alia, compensatory and aggravated damages for false imprisonment.  During the employment period of about 4 months, the domestic helper was physically assaulted and mentally tortured by her former employer.  Further, the domestic helper was detained in the former employer’s residence throughout the employment save and except a few occasions during the first month of the employment when the former employer took the domestic helper to the supermarket.  The court awarded HK$60,000 for compensatory and aggravated damages for false imprisonment.

37.  In this case, the plaintiff has been wrongfully detained by the defendant for almost one year, during which the plaintiff was continuously abused by the defendant.  In the light of the cases mentioned above, I am of the view that the plaintiff’s claim for a sum of HK$100,000 under this head is a very reasonable claim.  I allow this claim in full.  There would be an award for aggravated damages for false imprisonment in the sum of HK$100,000.

38.  In respect of aggravated damages for common assault, Mr Ko again refers me to some cases.  In my view, the following are the suitable comparable:-

(a)   Erwiana Sulistyaningsih v. Law Wan Tung^[16] -  In this case, the Indonesian domestic helper also claimed against the defendant for aggravated damages for common assault in the sum of HK$80,000.  The court allowed the claim in full.

(b)   Faridha Sulistyoningsih v. Mak Oi Ling Karen^[17] - In this case, the Indonesian domestic helper also claimed against the former employer for aggravated damages for assault, and the court allowed HK$50,000 under this head.

(c)   Achacoso Warly Cabaneros v. Liu Man Kuen[18] – In this case, a foreign domestic helper claimed against her former employer for a serious assault. While the domestic helper was employed by the former employer, on one day, while the domestic helper was ironing clothes, the domestic helper accidentally damaged a grey tank-top.  The former employer was extreme angry and ordered the domestic helper to put her hands on the iron board. The domestic helper did so.  The former employer then held the domestic helper’s hands down firmly with her right hand and then took the hot electric iron with her left hand and drew the iron across the back of the domestic helper’s hands.  The former employer then spoke harshly to the domestic helper and then left the flat.  The former employer later was charged and convicted of the offence of inflicting grievous bodily harm and was given a sentence of 18-month imprisonment.  The court awarded aggravated damages for the assault in the sum of HK$50,000.  

39.  In this case, the defendant has repeatedly assaulted the plaintiff for almost one year.  While there is no evidence showing that any assault has inflicted any serious injury on the plaintiff, the repeated assaults have lasted for a long period.  In the light of the authorities set out above, I am of the view that the plaintiff’s claim for HK$70,000 under this head is reasonable and appropriate, and I allow this claim.  There would be an award for aggravated damages for common assault in the sum of HK$70,000.

40.  Accordingly, the total of the damages awarded to the plaintiff is HK$100,000 + HK$70,000 = HK$170,000.

41.  Mr Ko submits that there should be interest on the damages awarded at the rate of 2% from the date of the writ until the date of judgment and thereafter at judgment rate until full payment.  Mr Ching does not dispute this.  I accept Mr Ko’s submissions.

Conclusion

42.  For the reasons above, I give judgment to the plaintiff.  I order that the defendant do pay to the plaintiff HK$170,000 as damages together with interest at the rate of 2% per annum from the date of the writ to the date of this judgment, and thereafter at the judgment rate until full payment of the judgment sum.

43.  I further make a costs order nisi that costs of these proceedings (including all costs reserved, if any) be to the plaintiff, with a certificate for counsel, to be taxed if not agreed.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

44.  Lastly, it remains for me to thank Mr Ko and Mr Ching for the assistance provided to this court.