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Domestic helpers not getting fair deal in illegal work cases

18 May 2018

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.

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