On the conditions of the unlawful detention, I find that:-
(i) there was overcrowding conditions in places like the 1/F of CIC and the detention cells at Yuen Long and Tsing Yi Police Stations where the plaintiff was detained between 8 and 25 October 2006 but not at MTKDC;
(ii) the plaintiff was detained in places not designed for long-term detention between 8 October and 17 November 2006 (although the conditions in MTKDC was not as bad as those at 1/F of CIC and at the police detention cells);
(iii) he was deprived the opportunity of taking showers (save for once), change of clothing and brushing of teeth during his 44 days detention while at 1/F of CIC, police stations and MTKDC;
(iv) he had to sleep on the floor for a total of 3 nights at the Yuen Long and Tsing Yi Police Stations out of the 107 days Detention Period;
(v) some of the police cells where he had to stay overnight during the 17 nights, particularly those which were overcrowded, had foul smell due to the external flushing toilet system; and
(vi) save on a few isolated occasions, he was provided with pork-free meals during his detention.
In conclusion, I would enter judgment against the defendant in the total sum of HK$210,000 in this case.
His Honour Judge Andrew Li
The death of refugee Sivarajah Sivatharan, known as Lucy, is drawing heightened attention to a slum where SWD contractor International Social Service (“ISS-HK”) settled him in collaboration with a purported landlord whose reprehensible exploitation of refugees must end.
Lucky was a Tamil who fled the war in Sri Lanka for the safety of Hong Kong. He was registered by ISS-HK for provision of welfare in September 2008. It is unknown when ISS-HK approved the unauthorized structure in which he met a burning death on 29 January 2015, though it is reported that he lived there for three years and the oldest signed contract we obtained is dated 23 August 2013.
Over 30 refugees are presently settled in dangerous illegal structures erected on Lot 451 (rear portion) in Demarcation District 106 in the village of Ng Ka near Kam Tin. This repugnant arrangement degenerated markedly since our first report in November 2013 on “The Slum On Two Storeys”.
Documents obtained by Vision First suggest that the landlord bought this lot in late 2001 for 580,000$ after previous pig and chicken farming licenses were revoked. Around 2010 the landlord entered into a questionable, but highly lucrative arrangement with ISS-HK and, according to our calculations, earned more than 600,000$ a year in refugee rent assistance paid from the government purse.
The smug and arrogant landlord allegedly informed the Ng Ka Tsuen community chairman that he will rebuild the three burnt huts and rent them again. It is unclear whether ISS-HK will be in a position to continue its dubious relationship with this slum lord, let alone approve new shacks built over the site of the fatal accident after relevant authorities intervene.
Following the fire that took the life of Lucky, the refugees living in this slum raised a litany of grievances about the dangerous, unsanitary and inhumane conditions they endure:
- Dangerous overcrowding since 2010 pushed up occupancy from 20 to 35 refugees;
- The landlord displays good rooms to caseworkers, but lodges refugees in bad ones;
- Additional rooms were erected hazardously in empty spaces to maximize rental profit;
- Sanitary conditions are appalling with plastic bucket for showers;
- Certain rooms are little more than coffin-size cubicles on stilts with no standing space;
- Unbeknownst to ISS-HK, the landlord allocates more than one refugee per room;
- One unit with two small rooms is rented to 4 refugees forced to share 2 beds for 6000$;
- One unit with two small rooms is rented to 5 refugees for 6000$;
- Dangerous gas cylinder for cooking inside cubicle rooms with no windows;
- Appalling sanitary conditions with plastic buckets for showers;
- The landlord provided this heating devise for tenants to warm water to shower;
- Unsafe electrical works are concealed from view in closets;
- Obstructed, narrow passages would ensure a death zone in a fire at night;
- Overhead storage of flammable material present a serious fire hazard;
- Highly combustible foam-boards and plastic covers partition all cubicles;
- Lack of fire-fighting equipment and fire exits from the second storey;
- The landlord charges each refugee about 500$ on top of the 1500$ rent assistance;
- The landlord charges each refugee two months deposit on top of what ISS pays;
- The landlord overcharges refugees for electricity use using dodgy meters;
- The landlord refuses to issue receipts for the cash he collects from refugees.
Refugees raise doubts about ISS caseworkers systemically approving countless tenancy agreements for such apparent unauthorized structures. Especially when refugees report they are rarely: (i) visited in the rooms; (ii) asked to supply proof of ownership as required by SWD; (iii) asked how many of them are allocated to each cubicle. (iv) this obviously poses challenges to confirm the existence of basic functional facilities for cooking and washing and the overall safety of the cubicles.
Vision First urges relevant authorities, including the Social Welfare Department and Lands Department, to urgently clamp down on this dangerous slum and provide refugee tenants with the means to effectively compete in the rental market without having to resort to renting a room in another slum.
The least owed dearly departed Lucky is that his friends do not fall from the pan into the fire.
Tracing back along the path that led us to discover the entrapment of hundreds of refugees in makeshift, decadent and dangerous slums, some photos, that in hindsight fill us with emotions, testifies to a bitter end that might have been avoided.
On 23 August 2013 we first met Lucky, a quiet Sri Lankan refugee later risen to prominence in the news for his tragic end in the flames that destroyed the shack where he lived.
The photos below show the decorum, sought after by an individual who did not surrender to living as an animal in a converted pigsty. Basic furniture, collected from the waste of our consumerist society, cleaned and tidied for functional use hide the precariousness of a structure that an indecent toilet and metal walls cannot deny. Really it is hard to comprehend how such structures were officially approved for human living.
On our first encountered we were welcome by a man who had heard of the advocacy of Vision First and showed us our website as a way to prove that he was a keen supporter. Too many times his complaints had been ignored by others, taken as the rattle of a disbeliever in the moment of episcopal blessing – a mortal heresy.
Lucky was condemned to believing he was a reject for he was taken as a liar, a reality refugees endure, at times passively, by withdrawing in the comfort of the simple huts they call home, to which they grow attached, caring for its cleanness, refusing to be thrown in the rental market without having the means to compete for proper housing.
Today we contemplate these photos, before and after a tragedy that could have been avoided had there been a willingness to treat everyone with sympathy and dignity irrespective of immigration status. Regrettably it is too late for Hong Kong to offer Lucky the respect he was due. Rest in peace, brother!
Good evening Vision First. I got my new Immigration paper and I have to report with my son every two weeks at CIC detention. My officer said he will proceed the papers for the Education Bureau for my son’s school. Thank you so much for giving us strength to insist on our rights and to have hope to fight every day. We owe you a lot.
I am one of hundreds of failed domestic workers who cannot return to their country because they have big problems. We are refugees because we must stay in Hong Kong to save our lives. I come from a village in the Philippines where I was married and had a child. When I had problems with my husband I came to work in Hong Kong.
My husband will never forgive that I separated from him and I give birth to a child from another man. Nobody can change his mind to take revenge on me. His mother is very close friend to council district and municipal authority members. He and his brother are working for the municipal government. His position is TASK FORCE and they have big connection with our mayor.
They are doing violence to their enemies because they have power. They always deny they are doing this, but they do it again and again. In the Philippines it’s big danger to be a witness and hard to ask the police to help if nothing bad happens first. Also it is hard to hide in another place, because every village report new people and it is hard to hide from my husband’s friends.
He will know that I am somewhere. I must protect my son all the time because he wants to kill us both. My country is not safe and not easy to ask to anyone for help. I am scared to face him and I am more scared what will happen to me and my son’s life.
Since I married him I feel not happy for his being strict and jealous. But I try to work it out with my family. When I gave birth to my first child, I was wishing he will change, but no, he get worse. One night he took a knife and kept stabbing my pillow and searching my house. And then he bought a gun. When he knew I am seeking help from my family, he tell them he never respect them and kept making trouble with them.
One day he tried to rebuke my niece until they hit each other and he got hurt. He bring that problem to the court and until now that problem is not closed, because we don’t have lawyer so we just using the court lawyer. That moment I decided to separate from him slowly. But I was scared because in everyday of my life in the Philippines he kept on following and trapping me everywhere. Every time I kept screaming, even in my work place where he disturb my boss.
But one night that I will never forget he stopped me in the street corner. He was there waiting for me and he pull me … I try to be brave, but when I see his gun pointed at me … I got hurt. I knew that he can kill me anytime. I complained many times to the police and the council but they could not do anything.
That was three years ago when I decided to work abroad to escape from him. But he took my child from my parents and threatened me, so I have no choice but to send him some money. He took opportunity again to disturb me and he took all the details of where I am working and even make me frightened in Hong Kong. He took my son and never let me see him again.
In Hong Kong I got three employers but felt no good with any employer, it’s because I still feel fear and anger. When I got boyfriend and had my second son, it seemed to change my feelings. I told my family what happened and suddenly my husband went to their house and kept shouting that he know all about me even my son. He is still angry and still not stop to search for me and my son. He told my parents he has a photo of my son and he will kill us both. He still wants to take revenge so I am scared.
A South Asian women walked out of a supermarket without paying for several items worth less than 200$ in her recycling bag. Two shop attendants readily intercepted her outside and accused her of shoplifting. The police were called in to handle the matter and she was arrested. Several months later in a magistracy court, the 54 year old woman was convicted of theft and sentenced to 6 months jail.
The magistrate was convinced there was criminal intention (mens rea) by the plain facts that she had removed items from shelves, placed them in a bag and walked by cashiers without paying. CCTV recorded such actions without evidence of suspicious behaviour, such as acting furtively, glancing around before stealing, resisting interception and admitting guilt to be ‘given a second chance’.
On 29 January 2015 barrister Mark Sutherland, a non-executive director of Vision First, made submissions in favour of the appellant in the high court. He underlined the mental state of a woman who suffered persecution before seeking refuge in Hong Kong in 2004. Such traumatic experiences resulted in PTSD that worsened severely as she felt an outcast, immiserated and marginalized refugee for over a decade. The prohibition from working denied her a dignified life.
A report by clinical psychologist Dr. Parul Batra, also a non-executive director of Vision First, described the severe depression and mental disorder of a disoriented and confused lady disconnected from society who had never received any psychological support. The court heard that the appellant suffered from memory loss, flashbacks, trouble concentrating and ‘non-insane automatism’, i.e. performing acts without the conscious control of the mind.
In addition, while shopping the lady had received a distressing phone call informing her that her husband, also a refugee in Hong Kong, had suffered an accident and had been admitted to hospital. More doubts where raised about her criminal intention by the fact that when she was stopped she calmly stated, “I forgot to pay” without resistance, justification or other behaviour typical of thefts.
Mr. Sutherland objected to the lower court magistrate having drawn adverse inferences from the woman having entered HK as a domestic helper before seeking asylum. The court was reminded that every asylum seeker must either enter illegally or overstay a visa before raising a claim. The defense reiterated that while asylum claims are pending assessment, and until all legal remedies are fully exhausted, nobody is allowed to make any comments on why and how claimants seek asylum.
In the high court, the Honourable Judge Tallentire confirmed the conviction, but reduced the previous sentence from six to three months. It is regrettable that lower court magistrates put little weight on psychological reports and show no sympathy for asylum seekers painted with one brush, often meting out decontextualized sentences as per guidelines that only dehumanize offenders. Culpability aside, a six month sentence recalls the banning to Australia of those guilty of stealing bread in 19th century England. If only such custom were maintained today!
On a general note, it is important to have regard of the matters that refugees analyze: (a) shoplifting is punished by a fine or a few months jail; (b) selling small amounts of drugs is punished by 6 to 8 months jail; (c) common theft is punished by 6 to 8 months jail; (d) working is punished by 15 months jail for pleading guilty and 22 months for pleading not guilty. Could sentencing guidelines be blamed for criminalizing destitute refugees denied viable pathways to live in dignity?