The Court of Appeal recently made a significant ruling in a case involving a Filipina domestic helper who was a victim of human trafficking and forced labor. The court stated that the victim, referred to as CB, had been forced to engage in sexual acts by her elderly male employer. CB had challenged the police's decision to only charge the employer with two counts of indecent assault, excluding the more serious offenses of trafficking in persons and forced labor.
CB's legal counsel from Patricia Ho and Associates praised the Court of Appeal's ruling, stating that it would provide valuable guidance to law enforcement and the Department of Justice in similar cases.
According to CB, she experienced repeated sexual assault and exploitation by her employer, identified as "Z," between September 2018 and April 2019. With the assistance of a non-governmental organization, CB filed a complaint against Z in December 2019.
CB provided evidence, including videos and photos, to support her claims. The videos depicted her massaging and engaging in sexual acts with Z, as well as two other foreign domestic helpers named Janice and Chris who were also providing sexual services to the employer. CB also provided photos showing her massaging a naked Z and various tools used during the acts, as well as a page from a photo album found in Z's bedroom showing Asian women in compromising positions.
During the investigation, a woman constable concluded that CB was a victim of human trafficking, but a senior inspector disagreed. The police ultimately charged Z with only two counts of indecent assault, prompting CB's solicitors to question why Z was not charged with human trafficking offenses. The police did not respond to their inquiry.
Feeling aggrieved by the police's decision, CB sought a judicial review and named the Commissioner of Police, Secretary for Justice, and Secretary for Security as respondents. In April 2022, Judge Russel Coleman granted CB's application for judicial review and declared that the failure to consider CB a victim of trafficking in persons and/or forced labor was linked to the absence of specific legislation criminalizing forced labor.
The Court of Appeal rejected the argument that CB willingly continued to work for Z without threats, emphasizing the vulnerability of female foreign domestic helpers in Hong Kong. The court recognized the challenging circumstances these workers face, including language and cultural barriers, isolation from family and friends, and dependence on their employers for basic necessities and continued residency in Hong Kong.
In its ruling, the Court of Appeal criticized the police officer, Wan, for considering irrelevant factors and reaching an irrational conclusion that CB was not a trafficking victim. The court also noted that the police made mistakes by accepting a self-serving letter from Janice and failing to investigate Chris, solely based on her lack of complaint.
However, the Court of Appeal disagreed with Judge Coleman's assertion that these law enforcement errors were a result of the absence of specific legislation criminalizing human trafficking and forced labor. The court stated that such operational failures were not a widespread phenomenon but rather an aberration.
CB was represented by Senior Counsel Abraham Chan and Albert Wong from Patricia Ho and Associates, while the appellants were represented by Jin Pao, SC, and Martin Ho, on behalf of the Department of Justice.
上诉法院揭露菲律宾妇女被雇主强迫进行性行为
上诉法院最近对一起涉及人口贩运和强迫劳动受害者的菲律宾家庭佣工的案件做出了重大裁决。 法院称，被称为CB的受害人是被年长的男性雇主强迫进行性行为的。 CB 对警方仅指控雇主两项非礼罪（不包括更严重的人口贩运和强迫劳动罪）的决定提出了质疑。
CB 的 Patricia Ho and Associates 法律顾问对上诉法院的裁决表示赞赏，表示该裁决将为执法部门和司法部处理类似案件提供宝贵的指导。
据 CB 称，她在 2018 年 9 月至 2019 年 4 月期间多次遭受雇主“Z”的性侵犯和性剥削。在非政府组织的协助下，CB 于 2019 年 12 月对 Z 提出了投诉。
CB 提供了包括视频和照片在内的证据来支持她的说法。 这些视频描绘了她与Z以及另外两名外籍女佣Janice和Chris进行按摩和发生性行为，他们也为雇主提供性服务。 CB 还提供了照片，显示她按摩裸体的 Z 和在表演过程中使用的各种工具，以及在 Z 卧室发现的相册中的一页，显示亚洲女性处于妥协的姿势。
在调查过程中，一名女警员得出结论，CB 是人口贩运的受害者，但一名高级督察不同意。 警方最终只对 Z 指控两项非礼罪，这促使 CB 的律师质疑为什么 Z 没有被指控人口贩卖罪。 警方没有回应他们的询问。
CB对警方的决定感到不满，寻求司法复核，并指定警务处处长、律政司司长和保安局局长为答辩人。 2022 年 4 月，拉塞尔·科尔曼法官批准了 CB 的司法审查申请，并宣布未能将 CB 视为人口贩运和/或强迫劳动的受害者与缺乏将强迫劳动定为刑事犯罪的具体立法有关。
上诉法院驳回了CB自愿继续为Z工作而不受威胁的论点，并强调了香港女性外籍家庭佣工的脆弱性。 法院认识到这些工人面临的挑战性环境，包括语言和文化障碍、与家人和朋友的隔离，以及依赖雇主提供基本必需品和继续在香港居住。
上诉法院在裁决中批评万警官考虑了无关因素，得出了CB不是人口贩卖受害者的非理性结论。 法院还指出，警方接受了珍妮丝的一封自私的信件，而仅仅因为克里斯没有投诉而没有对她进行调查，这是错误的。
然而，上诉法院不同意科尔曼法官的说法，即这些执法错误是由于缺乏将人口贩运和强迫劳动定为刑事犯罪的具体立法造成的。 法院表示，这种操作失误并非普遍现象，而是一种异常现象。
CB 的代表为 Patricia Ho and Associates 的高级大律师 Abraham Chan 和 Albert Wong，而上诉人的代表则为代表律政司的 Jin Pao, SC 和 Martin Ho。
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