By
The SUN
 |
| The truth about Lorain Asuncion's death 5 years ago may soon be found |
More than five years since Lorain E. Asuncion was
found dead after falling from the apartment building in Shenzhen where her
employer’s father lived, a case filed by her sister seeking employees' compensation over
the death is about to be heard.
In a decision handed down on Friday, Oct. 14, District
Court Judge KC Chan granted an application by Jenevieve Asuncion Javier to
allow her and two other relatives to give testimony in the case via video link,
despite the opposition by Lorain’s employer, Gu Huai Yu.
But in allowing the application, Judge Chan directed Javier
to take care of arranging the video links for her and her two witnesses, and
that a video clip of each of the facilities that they will use be provided
before the pre-trial review to ensure they provide an atmosphere of solemnity
to the occasion.
He also ruled that Gu, within reasonable bounds, may ask the witnesses to move the camera
around to show the surroundings to ensure that there are no persons or “undesirable
matters present” which may affect the fairness of the trial.
Apart from Javier, who lives in the Philippines, the
two other witnesses are her two aunts, Susan Dichosa Escorial and Justina Yap
Escorial, who both moved to Alberta, Canada after working as domestic helpers in
Hong Kong.
All three cited the great cost it would entail if they
were to fly to Hong Kong to give evidence, especially amid the current travel
restrictions due to the pandemic.
In his ruling, Judge Chan said the main issues at the
trial would be (a) whether the incident occurred in the course of employment,
and (b) whether Lorain fell down accidentally or committed suicide.
Lorain was found dead on July 24, 2017, having fallen
from a multi-storey residential building in Shenzhen. She was then 28 years
old.
Javier, as applicant, claims that Lorain had told her
and their two aunts that she was taken occasionally by her employer to work in
the Mainland, and that the deceased was not inclined to commit suicide.
Gu maintains Lorain occasionally went to the Mainland
as a “travel companion of his family” and that just before her death, had asked
to be taken across the border to be such a “travel companion.”
The insurer, Blue Cross (Asia-Pacific) Insurance
Limited was named as second respondent, but denies liability on the ground,
among others, that the incident occurred outside the territorial coverage of
the insurance. The proceedings against the insurer has been stayed for the time
being.
Based on her witness statement submitted to the court,
Javier, who is 34, is expected to give evidence on Lorain’s personal
background, employment history and state of mental health. She will also speak
about conversations she had with Lorain, particularly those just before she
died.
Susan, who is 53, was the one who communicated with
Lorain the most. She had included in her witness statement 27 pages of screen
captures of messages she had with the deceased from mid-October 2016 to July
18, 2017, or six days before Lorain was found dead.
Justina, who is 39, wrote about meetings she had with
Lorain in April, May and June of 2017 - and particularly the one they had on July
22, 2017, which was the day before the deceased went to Shenzhen and two days
prior to the discovery of her death.
All said they could not afford to travel to Hong Kong
to give evidence during the trial.
Javier, who lives in the Philippines, is a full-time
mother taking care of her children. Her husband is a farmer earning about
Php30,000 a month (about HK$4,300). The cheapest estimate for her trip,
including air ticket and hotel accommodation for seven days, would cost about
HK$,800 which her family cannot afford.
Susan and Justina now both live in Alberta, Canada.
Susan is a live-in caregiver while Justina works as a meat-packer and looks
after two teen-age children who are attending school. Both say they cannot get
off work, and pay the estimated $15,800 needed for flights and hotel
accommodation in Hong Kong.
Judge Chan found these grounds reasonable, especially
since Legal Aid would not cover the costs of their travel to and from Hong
Kong.
“I consider the costs estimated by the 3 witnesses are
very modest (if not under-estimates) and without any exaggerations,” said the
judge.
“Their personal circumstances deposed to in the
Affidavit are detail. Moreover, from
what they say in their witness statements it seems to me that they enjoyed a
close relationship with the Deceased, such that I am inclined to accept what is
said in the Affidavit that the 3 witnesses all wish very much to attend trial
to seek justice and remedy for the death of the Deceased.”
Refusing leave would stifle the applicant’s claim,
added the judge.
Further, he said the court has already had many opportunities
of receiving evidence and observing witnesses by video-link and has become
experienced and apt in assessing witnesses through this medium.
The judge ordered Gu to pay the costs of the
proceedings, saying he should not have contested the application in the first
place.
Evelyn Tsao, of Patricia Ho & Associates, on
directions by Legal Aid, acted for the applicant while Toni Y T Chan,
instructed by Francis Kong & Co, Solicitors, appeared for Gu.
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