Case vs FDH accused of living outside her employer’s home junked

Shatin Magistrates Courts

A Shatin magistrate has dismissed the case against a Filipino domestic worker who was interrogated for five hours until she vomited.

Magistrate Ho Chun-yiu junked the case of “conspiracy to make or cause to be made false representations to Immigration Officer for the purpose of obtaining an entry permit” against Mary Rose T. Arugay after the prosecution decided not to pursue the case.

If the trial had proceeded, Arugay would have challenged the constitutionality of Hong Kong’s “live-in” rule for domestic workers.

“With the prosecution offering no further evidence, I find no evidence against the defendant on the charge she is facing, so the charge is dismissed,” Magistrate Ho said on June 24.

With the case dismissed, barrister Earl Deng, Arugay’s lawyer, said critics of the “live-in” rule would have to look for another case to use as a basis to challenge the rule, which requires foreign domestic workers to live in the residence of their employers.

“That will have to be challenged through other means but not through this case,” Deng said.

Deng earlier said that Arugay’s camp was prepared to present her employers, NGO representatives, and other experts to show that the “live-in” rule was unconstitutional and have her acquitted.

However, the prosecution case hit a snag after Tagalog interpreter Marcela Besley testified on May 12 that Arugay was ill when she was interrogated by an immigration officer for her two caution statements, which was the basis of the case against her.

“Arugay, Mary Rose was sick (but) officer still wants to continue,” Besley wrote in her diary, a copy of which was used as evidence in court.

After hearing this, Magistrate Ho ordered the prosecutor to seek further instructions from the Department of Justice on what to do with the case.

On June 24, the prosecutor said they were “not offering any evidence against the defendant” and so the case against Arugay was dismissed.

The judge instead bound her over for 18 months in the sum of $2,000. This means Arugay will have no criminal record in Hong Kong but she should not commit or attempt to commit any crime in for 18 months or she would have to pay the $2,000 fine.

The Filipino woman, who fought back tears when the judge announced his decision, said she accepted the bind over ruling.

“Tinatanggap ko po ang bind over,” Arugay said, clasping her hands.

Immigration agents arrested Arugay on the morning of January 28 after they caught her allegedly residing in a village house other than her employer’s home in Tin Liu Village in Ma Wan.

Her male Canadian employer was also arrested after he tried to intervene and had a scuffle with the agents. He allegedly told one of them to “F*ck off.”

Deng claimed that Arugay was initially interrogated without the presence of a lawyer or a Tagalog interpreter before her caution statement was formally taken.

And once the caution statement was taken in the presence of an interpreter, Arugay allegedly was “not allowed to change” her answers.

Worse, Arugay was allegedly denied a lawyer and was physically ill but the interrogation lasted from around 3 p.m. until 8:25 p.m. with a few breaks.

“She was physically ill and denied access to a physician. It was only until she vomited and the questions were finished that she was brought to a hospital,” Deng said.

A “senior” Immigration officer, through “a mixture of some words,” impressed upon Arugay that she would see a doctor only if she finished answering their questions, Deng added.

However, the Immigration officer who took the caution statement said Arugay was informed about her rights but she did not ask for a lawyer. She also denied that Arugay was ill or that she was interviewed before her caution statement was taken.

“She asked me, ‘If a lawyer was going to be engaged, who is going to pay for the fees?’ I replied to her, `You need to pay on your own if you want to engage a lawyer,” said the officer, surnamed Lo.

“I asked her, `Do you want to engage a lawyer?’ and she replied, `Oh nothing. Not be engaged,” she added.

Lo said Arugay also did not request for a lawyer to be present or for a phone call to her employer so that she could get a lawyer.

“If she raised that…we would have assisted her,” Lo said, adding that Arugay gave her caution statement voluntarily.

She said Arugay was not threatened, coerced, induced, or forced to answer her questions, and later, to sign her caution statement. Lo said there was also a break at around 6:15 p.m.

Lo said Arugay did not appear ill and that she also did not complain that she was too ill to continue with the interrogation. She also denied telling the Filipino woman that she could see a doctor only after they finished the interview.

Lo said they took another break at around 8:30 p.m. and did not resume because Arugay complained that she was not feeling well.

It was during this break that Arugay vomited in the toilet. Lo said she did not notice anything but Besley said she heard Arugay vomiting.

“At 9:25 p.m., I intended to resume the record of interview but the defendant told me she was not well and if we could resume after she took a rest,” Lo said.

“I stopped the record of interview and it seems my colleagues accompanied her to see a doctor,” she added.