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Eleven Bangladeshi refugees unfairly prosecuted by ICAC launch defense

Oct 14th, 2016 | Advocacy | Comment

Vision First joins the “Eleven Bangladeshi Refugees” to express our sincerest gratitude to barristers Robert Connelly and Robert Tibbo, as well as solicitor Jonathan Man of law firm Ho Tse Wai, who offered pro bono assistance in their defense against fraud charges brought by the ICAC.

It is unfortunate that Hong Kong suffers from the lack of structured pro bono legal services enjoyed by impoverished defendants in more advanced jurisdictions. While legal firms eagerly step forward after (paid) certificates are issued, it is quite another story when defendants wish to select competent lawyers other than those instructed by the Duty Lawyer Services. 

On 13 October 2016, the Eleven Bangladeshi Refugees appeared in a pre-trial review at Tsuen Wan Magistrates’ Court before Acting Principal Magistrate Hon. Cheang Kei-hong. They were answering fraud charges relating to rent allowances paid when they lived in refugee slums. Details of the alleged fraud may not be mentioned at this stage, though Vision First believes that the refugees were the victims of a complex scam that spread far beyond the eleven unauthorized structures they inhabited.

The defense informed the court that an application will be made to permanently stay proceedings as the prosecution of the defendants is an abuse of process of the court on grounds that will be put forward at a later date. Further, since there will be a constitutional challenge as part of the stay application, the point was raised by defense counsel that Magistrates’ Courts do not have jurisdiction to adjudicate upon constitutional challenges and that such cases should be moved to the District Court where competent jurisdiction exists.

The defense requested the translation into English of several witness statements made in Chinese as well as full and frank disclosure of unused materials, including but not limited to ISS-HK case files, communications within and between ISS-HK and the Social Welfare Department and the minutes of ISS-HK Board Meetings for the period in question, during which time Mrs. Regina Leung (Wife of Chief Executive C.Y. Leung), Mrs. Anne Marden and Mr. Tam Yiu-chung (former head of the DAB party) were all on the board. The learned Magistrate Cheang ordered that the defense make detailed written requests for full disclosure to the prosecution by no later than 19 October 2016.

It is interesting that to-date only 11 (eleven) refugee tenants have been charged by the ICAC while no landlord(s), agent or employee of ISS-HK has been brought to justice. A general observation ought to be made: Tenancy Agreements require the signatures of both tenants and landlords, whether the latter are genuine property owners or not, and due diligence on the underlying documents is expected from experienced case workers.

A six-month adjournment was requested to secure the documents by way of full disclosure by the prosecution in order to fully prepare the defense cases and to have an expert report on the complex circumstances that resulted in hundreds of refugees living in inhuman and degrading chicken and pig farm slums. One must ask what role was played by the Social Welfare Department, ISS-HK case workers, ISS-HK accommodation unit staff and managers entrusted with the welfare of these 11 (eleven) Bangladeshi Refugees.

The prosecution suggested 3 (three) months would be sufficient, however the learned Magistrate Cheang allowed 4 (four) months, fixing the next pre-trial review for 26 January 2017 with a provision to change the date if both parties agree it is necessary.

It should be noted that the ICAC took 3 (three) years to investigate this complex situation and surely the defendants deserve adequate time to prepare for trial. When the doors of justice are swung wide open on the full complexity of this problem, it is likely that a picture will emerge which is quite different from the keyhole image presented by the current charge sheets.

The Slum Under the Tree where several of the Eleven Bangladeshi Refugees resided. It was inspected and approved by ISS-HK case workers as well as Programme Director Mrs. Adrielle Panares. (Photo by Billy H C Kwok)

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