Employer cleared, DH gets suspended sentence on illegal work

A Hong Kong employer has been acquitted by the Shatin Court of conspiracy to breach immigration rules while her Filipina helper has been given a three-month jail sentence suspended for three years.

The two cases had been tried separately in Shatin, but the court had delayed the sentencing of Cecelia Guevarra until Feb 5 pending the outcome of the employer’s trial.

Cecelia Guevarra was found guilty

The employer, May Lui, was cleared of two counts of “conspiracy to breach of condition of stay” filed against her by prosecutors from the Immigration Department.

Lui hugged relatives and broke into tears after Magistrate Winnie Lau exonerated her because the prosecutors were not able to prove her guilt beyond reasonable doubt.

Guevarra, Lui’s domestic helper for eight years, pleaded guilty in June 7 to two counts of “breach of condition of stay” and “making false representation to an immigration officer lawfully acting …in the execution of Part III of the Immigration Ordinance”.

She faced two more charges of breach of condition of stay and another of making a false statement but these were withdrawn later by the prosecution.

The prosecution cited as basis for the two conspiracy charges the latest two work contracts that Lui and the Filipina had signed, which stated the maid was to work in her employers’ house at all times.

Guevarra was arrested on May 8, 2016 while she was inside her employer’s office in Central. The case dragged on for several months as the Immigration officers also filed a complaint against her employer and wooed the Filipina to testify against Lui.

In her reason for verdict, Magistrate Lau said that defendant Lui elected not to give evidence and, so, it was the prosecution’s responsibility to justify its case and prove she was guilty of the charges beyond reasonable doubt.

 

Employer May Lui walks free from the same case.

The prosecution presented Guevarra and a local woman who was a former office staff of Lui as its witnesses.

Lau said Guevarra testified she worked in Lui’s Central office for one and a half hours three times a week between June 2015 and Dec 2015. She said she had spent 30% to 40% of her time working in the office during that period.

The helper also admitted she owed Lui $20,000 and had not yet repaid it.                              

The magistrate said Guevarra’s evidence was contradicted by the second witness, who said Lui moved to her Central office only in November 2015.

Lau said that piece of evidence already contradicted Guevarra’s claim that her employer moved to Central on Feb 6, 2016.

“I’m not satisfied that the prosecution had established beyond reasonable doubt that the defendant was guilty. Defendant, I acquit you of both charges,” Lau declared.

On Feb 5, the prosecutor told Magistrate Lam Tsz-kan that Guevarra pleaded guilty to the charges eight months ago and helped the prosecution investigate and build a case against Lui.

Lam noted the help Guevarra extended in the investigation of Lui and said he accepted that the maid had followed orders to perform illegal work.

“I’ve considered the facts of the case and accepted the mitigation that you have a clear record and was just following orders,” the magistrate said.

He sentenced Guevarra to 6 weeks in jail for each of the two breach of condition charges and 3 months for making false representation to an immigration officer.

Guevarra told The SUN she was happy with the sentence but had to go to Immigration on Feb 6 and find out whether she could look again for an employer.

Domestic helpers not getting fair deal in illegal work cases

By Vir B. Lumicao

Cynthia Abdon-Tellez

Foreign domestic workers seem to be getting the short end of the stick in Hong Kong courts for offenses they commit in partnership with, or on orders by their employers.

An NGO officer said such unequal treatment of migrant workers in court used to be blatant in the past but decreased when the judicial system came under criticism from workers’ rights advocates. Now, it seems the inequity is returning, she said.

Cynthia Abdon-Tellez, general manager of Mission for Migrant Workers, said Hong Kong courts are missing the point. The main issue in the play of employer-employee relations according to her is, who makes the decision?

“It’s the employer, definitely”, she told The SUN. “Hindi naman kadarating mo lang dito para sabihin mo na ‘Ma’am, sa labas na lang ako matutulog ha.’ Hindi naman e, kasi kung ano yung i-provide sa iyo yun ang tatanggapin mo.”

The migrants rights advocate said that even when it comes to illegal work, it is usually the employer who demands that the helper work in his office, shop or in his parents’ home, and all the worker can do is follow this order for fear of losing her job.

In March, a Filipina helper was convicted after pleading guilty to “breach of condition of stay” and “making false representation to an immigration officer” after her arrest in May 8, 2016 while working in her employer’s office.

Cecelia Guevarra’s sentencing was postponed after she agreed to testify against her employer, May Lui, who was also arrested but pleaded not guilty to the offence of abetting her maid’s illegal work.

In her testimony against Lui, Guevarra said she was ordered by the employer to work in her office as a cleaner. The Filipina said that between June 2015 to Dec 2016, she spent 30% to 40% of her work time at Lui’s office.

Cecelia Guevarra

But a former office staff of Lui contradicted Guevarra’s evidence, saying the employer moved to Central in November 2015, instead of Feb 6, 2016 as the Filipina had claimed.

On the basis of this testimony, Magistrate Winnie Lau acquitted Lui on Feb 2, saying Guevarra’s evidence was unreliable.

Three days later, another magistrate, Lam Tsz-kan sentenced Guevarra to six weeks in jail for two charges of breaching her condition of stay and three months for false representation, with the sentences suspended for three years.

Another case in which the worker and her employer were sentenced unevenly involved maid Diana Segui and her employer Caroline Sia, who had evaded arrest for months.

Segui was convicted on July 2015 by Magistrate Andrew Ma after she pleaded guilty to “making a false representation to an Immigration officer” for agreeing to live outside her employer’s home. She was sentenced to four months in jail, suspended for three years.

Barely two weeks later, Sia received a far more lenient sentence of two months in jail suspended for a year after she pleaded guilty in a separate trial to “conspiracy to make a false representation to an Immigration officer”.

In recent years, there had been other similar cases. In one, the helper was ordered by the employer to wash the dishes in his restaurant or mind his vegetable stall. The maid got arrested and ended up in jail while her employer was not even charged at all.

Abdon-Tellez noted that some magistrates appear unhappy with the unfair application of the law, including one in Shatin Court who often scolded immigration prosecutors in illegal work cases.

She remembered the magistrate saying, “You’re not looking at the play of power in the employer-employee relation. I always remind you that in cases like this, especially illegal work, the breach doesn’t happen without the employer’s command. But it’s the worker that you arrest.”

The magistrate reportedly said his hands were tied during sentencing because the prosecutors did not consider who the real decision-maker was in such relationships.

Abdon-Tellez called for law enforcers to address the disparity, saying that in reality, the helper often does not have any choice but to follow the illegal orders of her employer, as she has mouths to feed and debts to pay back home.

DH to help probe on boss’ role in illegal work

A Filipina domestic helper who is facing three counts of violating Hong Kong immigration rules for working in her employer’s office is willing to help investigators looking into her boss’ complicity in the case.

Cecelia Guevarra was set to execute a statement at the Immigration Department to shed more light on her case, her counsel told the Shatin court on June 7.

The lawyer presented a letter from Father John Wotherspoon, a correctional chaplain, who asked the court to consider the defendant’s statement about her employer, Lui Pui May Lee’s complicity in violating immigration rules.

Guevarra pleaded guilty on June 7 to two counts of breach of condition of stay” and one count of “making a false representation to an immigration officer.

She originally faced two more charges of breach of condition of stay and another of making a false statement but these were withdrawn by the prosecution.

The helper was arrested on May 8 while working illegally in her employer’s office. She was hired by Lui to work as a domestic helper in June 2011. Her contract stated she was to work at her employer's house in Kowloon.

The defense lawyer applied for 3,000 bail for the helper but Magistrate Lam Tsz-kan said he could reduce this to $1,000 if the  defendant could provide the court within 24 hours an address where she would stay.

The magistrate adjourned the hearing to June 28.—VBL