And a Week Went By

2 March 2009

Farewell to a Brave Friend

Vanishing, by alicepopkorn, with Creative Commons licence (Attribution 2.0 Generic)Time has stretched and bent in the Poole household recently, pushing events out of sequence and priorities in new directions. Of course, these are just perceptions, but they affect us though clocks had truly run awry. Our friend Y, who lives with us, is returning to Indonesia tomorrow after seven months that no person on this earth should be forced to endure. A domestic helper here in Hong Kong, she was beaten severely by the wife of her employer, treated with contempt by the police and dismissed as unreliable by the Department of Justice. In the last seven days she’s had to relive that in an attempt to gain recompense through the Labour Tribunal. We’ve all been living with one eye on the past, stepping cautiously through the days.

Y now has a little money, dragged out of her employer only because he forced her to work two years without a single day of rest. But justice and a sense of resolution? Well, that’s not quite possible. Y returned to the police station two days ago to retrieve money held as evidence – money, I should add, that had been ‘confiscated’ by the woman who beat her. The police would only grant the release if Y rescinded part of her original statement, and it takes no genius to imagine the legal consequence of a statement that has suddenly become a false allegation.

Nice trick boys.

Over seven months we’ve seen this woman suffer simply for doing her job, and then for standing firm and shouting NO MORE! The flight home should have been something of a release. But when she leaves tomorrow she’ll be carrying two suitcases of clothes and a whole plane-load of disdain. That’s a greater burden than anyone should bear.


And Now for the Bad News

22 January 2009

A Savage Beating Unpunished

Hope, by My Own Worst Nightmare, with Creative Commons licence (Attribution-Noncommercial-Share Alike 2.0 Generic)Hope is a fragile emotion, smashed so easily on the jagged rocks of life. In my last post I wrote with a degree of optimism that the maltreatment of domestic helpers in Hong Kong might just receive a little more attention in future, given a small increase in recent newspaper coverage. And that could still come about, because the case I’m about to describe might yet make the news. We’re working on it, and the circumstances deserve more coverage than I can attract here. But it just won’t come to the attention of the courts.

In early August last year I wrote about an Indonesian domestic helper who came to stay with me and my family after suffering repeated beatings at the hands of her employer’s wife. She was bruised from head to groin and had reported to both a local hospital and the North Lantau police station. We were confident that she would have her day in court, given the evidence of assault, an account of earlier sexual assault by her employer, and a witness not only to her condition every morning, but also to her being forced to work at another premises, outside the scope of her employment contract.

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No Offence, No Defence

14 January 2009

Further Observations on a False Accusation

289/365 banging my head against a wall, by obo-bobolina, with Creative Commons licence (Attribution-Noncommercial 2.0 Generic)What happens when justice is done but punishment is impossible? Unlike cases in which no verdict is likely or the jury finding is improbable, when a person is accused of a crime and then cleared of any wrongdoing, there is – more often than not – something of a villain lurking somewhere just out of sight. Police investigations are often dropped for lack of sufficiently relevant evidence, but when there is no evidence of any sort to consider, and seemingly never was, who censures the accuser?

I recently wrote about a domestic helper here in Hong Kong’s mild-mannered Discovery Bay who was accused of sexual assault against a boy just under 3 years of age. This might have been a community horror story had not the employer suspiciously retracted the complaint and asked the woman back to work. That’s not the sort of thing you do if a complaint is even remotely true. But the worst aspect of this little saga wasn’t anything to do with the little boy or his capricious father. No, it was the disturbing fact that the complaint was withdrawn only 2 days after it was made, and in the meanwhile the accused woman had been incarcerated.

Locked up. In detention. Deprived of her freedom.

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Undue Process

13 December 2008

How Not to Terminate a Labour Contract

Rust Never Sleeps, by Prawnchop, with Creative Commons licence (Attribution-Noncommercial 2.0 Generic)Not all processes happen by themselves – some are shaped, shifted and cajoled into being. They’re products of social interaction, and in so being are inherently tied to status inequality. Like contracts, to which they are so often linked, many social processes involve protocols in which people assume set roles, whether buttressed by necessity, convention or formal influences like the law. Exchange, for instance, is a social process in which unequal parties, a buyer and a seller, meet through necessity to solve a problem of relative scarcity. In this example the inequality doesn’t necessarily mean that one party has a good deal of leverage over the other – a buyer can be as desperate to sell, or not, as a buyer is to buy. But there are other forms of exchange, and labour exchange in particular, in which one of the parties is necessarily at a disadvantage.

In many ways that labour is exchanged, inequality of outcomes is of little consequence and indeed necessary for the continued functioning of an organisation. The firm for which I work could well gain more from the product of my labour than I do, but it also has to pay me a salary that a doctorate holder will accept. And I gain more for my efforts than I would in some other, but not all, situations. In that sense my employment is a trade off – not equal, but by no means exploitative. Both parties gain something and have to set something aside. The process is one of give and take, a constant negotiation in which my income has increased as the business for which I’m responsible has prospered.

But consider another situation, in which an employee signs a labour contract under which strict boundaries are set on pay, living conditions, movement and responsibilities. In this example the process of employment is not only more rigid, but it’s also far more significant each and every moment of the day. The employee relies on the employer’s understanding of the process, including the legal rules attached to it, to ensure that it is operating as it should. There is an element of mutual respect here, or at least the possibility, and a sense that ethics has a central role to play. Do unto others as you would have them do unto you, or whatever your religious or other persuasion might offer up.

085, by Ravages, with Creative Commons licence (Attribution-Noncommercial-Share Alike 2.0 Generic)Then, of course, there are people who just don’t care, employers whose status relative to their employees is so great that they simply destroy the process and flout the conventions. Consider this: last week a domestic helper who had been employed long term by a woman here in Hong Kong – an Australian ex-pat of significantly more wealth than her unfortunate employee – was sacked for taking out a personal loan to pay for treatment of her husband, who has cancer. The employer, as it turns out, had just lost her job (her own husband had not) and feared that she would somehow be implicated in her employee’s rather small loan (the equivalent of three months’ wages) should it not be paid.

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A Small Measure of Justice

1 December 2008

One Case Resolved, on the Face of it

The gavel, by &y, with Creative Commons licenceJustice is a slippery concept, almost at hand one moment then suddenly out of reach. As soon as you think you have it worked out a new aspect eludes you, squirting like a soap bar from your grasping hand. But there are other moments, a few minutes of grace when the legal system finally works the way social expectations direct it. At these times, even a small measure of justice is enough to move someone on to a new beginning, to shift their troubles from the bitterness of immediate experience to the sweet release of memory. Today in Hong Kong’s Labour Tribunal, things went pretty much that way.

I mentioned recently that in leaving behind the disappointment of Vicky Flores’ inquest those who had worked so hard for justice to be done needed to refocus on other tasks at hand. To move on in disappointment is to learn about assessing one task in relation to another, to gain perspective. So I helped to rewrite the statement of a woman who had been brought to Hong Kong as a domestic helper, employed for a month and then pushed out the door into compulsory illegal employment with someone else.

Welcome to Asia self-described ‘World-City’.

DOING THE DISHES, by spike55151, with Creative Commons licenceThe employer claimed that the woman needed extra ‘training’ from the employment agent, who just so happened to be her sister-in-law. So the scam played out, and another helper was hired for a month. You can probably see where this is going, and it’s not hard to imagine that it had been a successful little operation until someone had the courage, and sufficient desperation, to stand against the process, to simply say no. For her trouble, our friend received no wages for the time worked, no severance pay as prescribed under Hong Kong Law, and no ticket back to the Philippines – a condition of her contract. In the eyes of the employer, she was a runaway.

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Moving On

22 November 2008

What Comes After the Jury Finding

Run . . . by Face it, with Creative Commons licenceOne of the more difficult, but sometimes comforting, aspects of being involved in a cause is that there’s always a new case to pursue, another direction in which to channel energy. I met with fellow members of the Justice for Vicky Flores concern group last night and we decided to move on after the jury finding that put her death down to suicide. None of us could possibly draw the same conclusion given the evidence available, but we accept that the finding brings us to the end of our campaign to ensure that justice was done for the woman and her family. Procedural justice will just have to be enough this time around.

But even as we spoke of how we felt, how we failed and how we succeeded, we were aware that other people need our help as well. Some things we can’t change, but some we can. Tomorrow we’ll sort through the Labour Tribunal case of a domestic helper who was used as free labour for a month, sacked and then shifted over to the apartment of the owner of the employment agency through which she was recruited for ‘extra training’ – a clear breach of contract, amongst a few others. It just so happens that the owner of the employment agency is the sister-in-law of the employer, who has filed a counterclaim with the Labour Tribunal. Pure maliciousness is an epidemic amongst employers of foreign domestic helpers in Hong Kong.

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Vicky Flores Inquest Finding

20 November 2008

Death by Suicide

Cemetery, by Comrade_S, with Creative Commons licence The jury has given its finding at Vicky Flores’ inquest here in Hong Kong. After accepting directions from the Coroner to weigh the overall evidence and consider the reliability of the witness whose evidence I called into question in my last post, in a 4-1 majority decision they found that Vicky committed suicide. This is obviously a blow to her family, who now cannot draw from an insurance payout to cover the costs of Vicky’s funeral. It also leaves the suspicion that the jury failed to understand a wide range of Filipino cultural references, which were not explained in court.

The Coroner did direct the jury to ignore any evidence they found insubstantial, but the standard rules of hearsay clearly do not apply to jury findings in an inquest. Still, and this is a very important point to remember, the group I’ve worked with since April to push the process this far succeeded in having natural, otherwise known as procedural, justice delivered.

Now we’re at the end of the line, which has always been the major goal. Despite the jury’s finding, evidence has been very hard to come by in this case and no revelations were expected at the inquest. We expected either an open finding, meaning that the evidence could not support a substantial decision, or a finding of suicide.

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The Colours of Justice

19 November 2008

Observations at an Inquest*

Gavel, by noyava, with Creative Commons licenceBrown and beige are the colour scheme of bureaucracy. They combine to imply formality, procedure – the dull grind of life. Within them lies a nostalgia for fashion since past, a hint of the 1970s almost 40 years on, a sort of resistance to trends, to things of the moment. Bureaucracy resists change, remains outside the flow of happenstance, because it directs the momentum of society, modulates what is acceptable, determines the limits of permissibility. The Coroner’s Court in Hong Kong is brown and beige, with a touch of olive to induce a sense of refrain – nothing too bright, too noticeable, too complicated will happen here. All is sombre. It’s a place where people often cry, because death is a burden for the living.

An inquest is a difficult time – it revives the life of a person past, disgorges detail best left at peace. But the necessity of finding a reason for a previously unexplained death dictates witnesses, questions, counter-questions, a solemn jury, a stern Justice and associated personnel. It has a colour of its own, a sort of grey, a mood that pervades each step of the process. Old friends speak in fits and starts, new friends speculate, lawyers direct recollections toward possible evidence of suicide or its lack; all done subtlety, moving around the subject as though it wasn’t quite there.

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Rights and Wrongs

26 October 2008

A Revised Legal Manual for Domestic Helpers

The extent to which individuals are protected from wrongdoing is not always sufficiently addressed in all societies. Some dither with human rights, others are slow to enact civil rights. In each case the individual is at risk not only from the state, but also from other individuals. Consider a work environment in which basic rights such as time to rest, sickness leave, sufficient accommodation and a clearly defined minimum wage are sometimes withdrawn, arbitrarily. This is a situation that involves both government regulation and employer responsibility – each party can be held responsible, to a certain extent. But who should be pursued for recompense, and in what direction should that pursuit head?

Knowing your rights is often more difficult than it seems, especially for people who work long hours, live in their place of employment and often suppose that the government will not help, simply because it’s not their government. That’s a fact of life for many foreign domestic helpers in Hong Kong. James Rice set out to set out to provide a remedy for this situation in the first edition of his manual Take Your Rights Seriously, and he’s now offering the second edition online at no charge. You can download it from the sidebar at the right. Read the rest of this entry »


Success, of Sorts

20 October 2008

A Change of Status in the Vicky Flores Case

Sometimes success can bring a little melancholy, a pause to recall what else could have happened when everything you’ve done has really been in defence of something second best. Just over six months ago Vicky Flores disappeared from Discovery Bay here on Lantau island in Hong Kong. Her body washed up near a ferry pier on the other side of the island a few days later. From the outset it seemed that the police were not culturally competent enough to investigate the case, and were lacking in enthusiasm under any circumstance. A week passed before they bothered to interview neighbours. The death of a Filipino domestic helper in Hong Kong is not always a cause of urgent concern.

In the intermission, as the Justice for Vicky concern group has asked, agitated, accused, coordinated and waited, our primary aim has been to achieve just what the title suggests – Justice, in whatever form it may come. The police seem to have passed an open finding to the Coroner’s Court, which is hardly satisfactory but far superior to their earlier inclination towards suicide with some sort of fanciful ‘occult’ involvement.

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At the Edge of Reason

16 October 2008

One Woman’s Unwilling Plight

Panic can be either public or personal. When it’s public it always involves some sort of herd-like behaviour, with private fears cascading into common action, usually without a great deal of logic behind it. When we talk of market panic we actually mean the mass-panic of market participants – people selling or buying on barely distinguishable good or bad news. There’s a sort of wilfulness about it. But personal panic is most often far more logical. It’s what happens when all avenues of alternative action have been blocked, or seemingly so, and there is little information with which to make adequate decisions about the immediate situation. It doesn’t usually involve not knowing what to do and finding comfort in moving with the human herd; it’s a form of alienation at the end of a logic process.

Personal panic is the stop sign at the edge of reason, the last chance not to plunge into abject, annihilating fear.

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Credibility on Trial

2 October 2008

Untoward Words at Law

Manslaughter trials are intricate, terrible things, charged with emotion and ruled by the unrelenting logic of the law. The precision with which probative evidence is accepted or rejected can determine not only the verdict but also the possibility of being granted leave to appeal that verdict and the sentence imposed. Everything hinges on credibility – in the eyes of the law and in the minds of the jury. But less informative evidence, what you might call the background of each case, is scrutinised less thoroughly.

In determining the mental state of a manslaughter suspect, psychiatrist or psychologist reports are generally used to buttress more substantial evidence in one way or another. They’re not necessarily subjected to the rigours of cross examination, at least in their entirety. But what if there’s something wrong with one of those reports? Not overwhelmingly wrong, just somewhat untoward?

Consider the case of Chan Ka Fai, who killed his mother in Hong Kong earlier this year. At trial he pleaded not guilty to murder but guilty to manslaughter on the ground of diminished responsibility. Following the offence he had tried to kill himself, and when finally judged fit to explain his actions various psychiatric reports and a psychologist’s report indicated that he was suffering from avoidant personality disorder. He was duly found guilty of manslaughter and sentenced to eight years in prison.

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