HKSAR v. LAW WAN TUNG

DCCC 421 & 651/2014
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 421 & 651 OF 2014 (CONS)

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Reasons for Sentence
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1. The defendant has been charged with 21 offences. She pleaded guilty to Charge 21 on the first day of trial. After trial, she was convicted of Charges 1 to 8, 11 to 20. The defendant was acquitted of Charges 9 and 10.

2. Charges 1 to 8 involve either physical abuse of PW1 and PW9 or the criminal intimidation of the two same victims.  Charges 11 to 20 involve the failure of the defendant to pay wages, grant a statutory holiday and a rest day to PW1. 

3. The defendant was the employer of both victims. They were employed as domestic helpers.  Both having arrived here from Indonesia for what was their first job overseas as a domestic helper, and the defendant was their first employer.  PW9 worked for the defendant between April 2010 to March 2011.  PW1 worked for the defendant between June 2013 to 9 January 2014 in different premises to where PW9 worked. 

4. I will not repeat the facts of this case.  All the circumstances in which the victims were assaulted or intimidated; I have referred to them in full in my verdict.  At the hand of the defendant, I am sure PW1 suffered broken teeth, punches to her face and body, scratches all over, and blows to the head.  Many of these assaults were with household items.  I am sure she was pulled or pushed off a ladder and on one occasion had a vacuum cleaner tube pushed into her mouth, causing her lip to tear and bleed.

5. I am sure she was subject to humiliation for falling asleep on the job.  On one occasion she was stripped and put under a shower with a fan deliberately pointed at her as a punishment.  I believe she became so desperate she once knocked on the neighbour’s door after 2 am to ask for food because she was hungry.  Sadly, she was not taken seriously. 

6. I believe she suffered over a period of months, not days, almost daily with varying degrees of force and frequency.  The prosecution’s case was strong, and the medical evidence and photographs were supportive of PW1’s evidence.  Ignoring the dermatitis and the state of her hands and feet, the evidence of scars over her body plus subdural haematoma and mild left-side scalp swelling was damning evidence.

7. The condition of PW1’s extremities, not subject of any charge, however, did show how she was treated and what little care, concern or kindness the defendant showed her.  They were as a result of cleaning incessantly for hours everyday for months without the protection of gloves.  I am sure the defendant insisted on cleaning detergent and products being used which caused the severe dermatitis.  PW1’s sore feet would have been exacerbated by the plastic bags tied around them to keep the floor clean. 

8. In addition, I am sure she was given little rest, sleep and nutrition which left her a shadow of her former self by January 2014.  It is a sad comparison, the photographs of her in January 2014 compared to her application form photograph posing in a maid’s uniform.  What this meant was that by January 2014, PW1 was unable to physically work any longer.  She was then sent home with less than HK$70 in her pocket. 

9. With every passing day or assault, the defendant, I am sure, got bolder and more abusive because the threats she made to PW1 were effective.  They silenced or broke PW1 and she became totally subservient.  Defendant would have become confident that she would not be exposed because PW1 was not allowed out nor able to communicate with others. She had no way to seek help or attempt to escape.  The defendant was the only adult in the house and therefore not at risk of exposure. 

10. The risk came when it was time to send PW1 home.  The defendant tried to minimise the risk by personally escorting her to the airport departure gate.  Before that, she dressed her, bandaged her feet, put makeup on her discoloured face and made her wear an adult nappy.  She threatened her at home and again at the airport to reinforce the danger to PW1’s family if she exposed the defendant.

11. If it had not been for PW2 and her persistence, the defendant may have got away with this cruelty.  PW2 showed great perception and kindness when she spoke to PW1 and subsequently took her all the way home to her parents.  It is heartening to know people like PW2 exist; willing to reach out and capable of such acts of selflessness and generosity. 

12. When PW9 worked for the defendant, the defendant’s husband was living under the same roof sometimes, or at least he was around sometimes.  PW9, I am sure, was hit for falling asleep on the job and threatened by the defendant.  She was terminated without warning but was happy to go. 

13. Defendant’s attitude towards PW1 and PW9 was contemptible.  She ill-treated PW9 and to a much larger and longer extent, PW1. I find the defendant had no compassion towards them; people she considered beneath her.  Of that, I am convinced.  In my opinion, therein lies the root of her problem.  The contempt is evidenced by the lack of wages paid to PW1; in fact she was not allowed a day off or allowed to go out.  She thought she would get away with this abuse.  The defendant also thought she would get away with not paying PW1 for her work done.

14. The threats to kill PW9 and the threats to kill PW1’s parents are made all the more serious because of the relationship between the witnesses and the defendant.  To them, she was a person in authority.  They believed her threats and they were plausible to the witnesses.  It led to PW1 being helpless for a long period of time as I am sure the impact of the threats weighed heavily upon her.  I take a very serious view of this charge.

15. It is regrettable that such conduct, attitude, physical and mental abuse described by PW1 and PW9 is conduct not rare and, sadly, often dealt with in the criminal courts.  In my view, such conduct could be prevented if domestic helpers were not forced to live in their employers’ homes.  They have no choice and this rigidity fuels such cases where domestic helpers are unfortunate enough to be employed by a bully.  A choice would make all the difference and may lead to a decline in the number of such cases. 

16. Another issue that must be addressed and has been highlighted by this case is the manner in which domestic helpers from Indonesia are charged significant fees by an agency at home, and their only means to repay it is to have it deducted from their wages in Hong Kong for a period of months.  It is so organised and sophisticated the debt is ostensibly transferred to a legitimate finance company in Hong Kong; a company, I am sure, set up for this sole purpose.  There must be an element of exploitation here.

17. Without a doubt, agencies in Hong Kong and employers must agree to assist in the collection of the debt by directly deducting it from the helpers’ wages.  As PW1 said, she knew she owed the debt in order to get a job in Hong Kong.  She knew it would be deducted from her wages for six months, and it was well over half her monthly wages.  She also knew the defendant would pay it on her behalf.  However, she did not decide upon or agree to this arrangement.  The matter was decided for her and she had no say in it.

18. This deduction in this manner is illegal and the legislation is in place to protect such vulnerable persons.  In reality, it is hard to detect.  What may happen is the domestic helpers may become trapped when they are unable to leave or change employers because the debt has yet to be paid off.  It could lead to their agencies turning a blind eye even if their safety or health is in danger because the domestic helper has to work to pay off the debt.  It is time both Hong Kong and Indonesian authorities address this practice and investigate it vigorously. 

19. Mr Harris and Mr Wong have defended the defendant in the most experienced and professional manner throughout the trial and have now mitigated to the best of their abilities.

20. The defendant is now in her 40s and had until this trial a clear record.  I know from the facts that she is born in Hong Kong and from the reports she had an unremarkable childhood in an intact family.  She left school without finishing her secondary education but trained as a beautician and made it a career until she became a full-time mother.  She married in 1995 and had two children; they are now 16 and 18 years old.

21. Apparently, her husband is still in her life but by the time PW1 was employed by the defendant, she and her children had moved to Tseung Kwan O to be closer to her daughter’s school.  Her husband did not live in the premises.  PW1 never met the defendant’s husband nor did he come to the premises.  But from the mitigation, they had dinner once a week, and the defendant was satisfied with her marital relationship.

22. In 2007 when her son was 11 years old, he was diagnosed as having an allergy to dust mites.  Apparently, this led to the defendant’s standards of cleanliness to escalate dramatically.  By the time PW1 worked for the defendant, the premises were cleaned for up to 20 hours a day. Many of the cleaning jobs were repeated throughout the day.  It could only be described as an obsessive practice.

23. I did call for two reports before today, and the psychiatrist is of the opinion that defendant exhibits no psychiatric symptoms.  The psychologist’s report was in more detail, and the psychologist revealed she had contacted the defendant’s husband.

24. The psychologist says in the report that the defendant continued to deny the offences so was obviously reserved and guarded in disclosing information regarding herself and the offences.  The psychologist says, at paragraph 14: “Her denial is consistent with her presentation in the personality profile analysis as she is very careful in describing any problematic symptoms or behaviours that she may have an attempt to provide a positive self presentation.  Thus, the present assessment does not have sufficient evidence to determine if she has any psychological personality problem or to comment on her risk of recidivism.” 

25. The psychologist concludes that despite the defendant’s denial of childcare stress or emotional distress, her overall presentation suggests that she has heavy childcare burdens with limited social and marital support.

26. In short, there is no psychiatric or psychological explanation or diagnosis to explain her abuse towards PW1 and, to a lesser extent, to PW9 earlier.

27. Mr Harris puts forward the defendant’s son allergy as the trigger or genesis to her obsession with cleanliness which I accept is very plausible and likely, but it in no way can excuse her abuse or conduct. 

28. I have received letters from the defence.  They are letters of support and of her good character.  And I have heard of the evidence of charitable donations made by the defendant.  The contents of the letters and the mitigation I have heard does not tally with my findings that the defendant was a bully.  The letters paint a very different picture of the defendant.  They portray a kind person, a loving mother and a considerate friend.  However, these are letters written by the defendant’s equals and her peers; they would see a very different side of her. 

29. In my opinion, her contempt was reserved for those she saw as beneath her.  As I have said, it is significant she was the only adult in her household where the offences took place against PW1.

30. It is a shame that the family of the defendant has been adversely affected by the publicity of this trial, and I sympathise with those innocent parties unconnected to the case. 

31. I have been referred to several authorities by the defence.  Mr Harris has suggested that the facts here do undoubtedly point to a bad case but it is not the worst of its kind.  The items used to hit PW1 and PW9 were ordinary household items often at hand or around the house.  They were not weapons per se.  Other abuse cases have involved weapons such as cutters and hot irons.

32. I have been referred to in particular HKSAR v Tai Chi Wai and Au Yuk Shan, CACC355/2013.  In that case an Indonesian domestic helper was abused by her employers, tortured and abused over a period of two years.  She was abused with a bicycle chain, hot iron and a cutter.  I have been referred to the sentences imposed and upheld by the Court of Appeal.

33. Mr Harris has also pointed out that fortunately PW1 has not suffered any lasting permanent physical disabilities or obvious mental consequences as a result of her ordeal. 

34. I have taken everything into account said in mitigation on the defendant’s behalf.  I am sure the defendant has fallen from grace, she previously had a clear record, and the respect of her equals and peers.  I take into account the facts of each charge and the ordeal suffered over many months by PW1 and the physical state in which she arrived home.  This necessitated a long stay in hospital, and I am sure even longer to fully recuperate. 

35. The seriousness of the charges and the circumstances of the offences mean a lengthy term of imprisonment is entirely appropriate.  I will take into account the totality principle but also that there are differing charges that took place over a period of time and involved two victims. Obviously, as the defendant is convicted after trial, she will receive no discount from the starting point I consider appropriate. 

36. Defendant, please stand up.  I impose the following sentences.  For Charge 1, I impose a term of imprisonment of 2 years.  For Charge 2, I impose a term of imprisonment of 1 year.  For Charge 3, I impose a term of imprisonment of 1 year.  For Charge 4, I impose a term of imprisonment of 4 years.  For Charge 5, I impose a term of imprisonment of 9 months.  For Charge 6, I impose of term of imprisonment of 3 years and 6 months. 

37. I will say at this stage that for Charge 1, of the 2 years, 6 months will be served consecutively to Charge 4; Charge 2, of the 1 year, 2 months will be served consecutively to Charge 4; for Charge 3, of the 1-year imprisonment, 2 months will be served consecutively to Charge 4; for Charge 5, of the 9 months, 2 months will be served consecutively to Charge 4; for Charge 6, of the 3 years and 6 months, 6 months will be served consecutively to Charge 4.

38. For Charge 7 and 8 which relate to PW9, for Charge 7, I impose a term of imprisonment of 4 months’ imprisonment.  For Charge 8, I impose a term of imprisonment of 1 year and 6 months. 

39. Here, I will order that for Charge 7, of that 4 months, 2 months will be served consecutively to Charge 4.  For Charge 8, of the 1 year and 6 months, 4 months will be served consecutively to Charge 4. 

40. Charges 11 through to 18 relate to PW1, for each charge, I will impose a term of imprisonment of 4 months.  I will order that all sentences for Charges 11 to 18 will run concurrently to Charge 4. 

41. For Charge 19, Charge 20 and Charge 21, for each charge I impose a financial penalty of $5,000.

42. Therefore, there is a total sentence for Charges 1 through to 21 of 6 years’ imprisonment and a $15,000 fine.