“The civil war ended in 2009 but Tamil people are still dying. My second brother was kidnapped and disappeared in Sri Lanka. Yesterday I saw [Lucky’s] body in a morgue after he burned to death while in exile in Hong Kong. I hadn’t seen him since I fled to England 16 years ago,” said Sivaharan who arrived from London on Sunday as a British citizen to see his brother Lucky, who tragically died in a slum fire days ago.
The resemblance with his brother Lucky is striking. And yet their fates are irreversibly worlds apart: one is a holder of a United Kingdom Passport, the other of a Death Certificate courtesy of the Hong Kong Government that failed to protect Lucky and was unwilling to support him in a dignified manner. Such a regrettable treatment by the Hong Kong government sealed his tragic fate.
Sivaharan’s gentle smile hides a broken heart. He deleted Lucky’s photo from his mobile phone as they were too painful to see. Having to identify the charred remains of his beloved brother will only worsen his nightmares. “My mother hasn’t stopped crying,” he sighs, “She thought Lucky was safe here and cannot believe she has now lost two of three sons. How can Hong Kong treat victims of war like this?”
There is no point explaining to him that Hong Kong appears to have a well-established practice of delaying the assessment of asylum case, especially when allegedly strong, to avoid acknowledging them. That would be too crass a justification for anyone to understand, particularly the relative of a victim abandoned without adequate welfare assistance to years of living dangerously in a slum. The unfairness of such a process drags it deep and swiftly into the abyss of injustice.
Nothing can bring him back to life, but the government and rule of law that failed to protect Lucky might be redeemed by bringing to justice those who participated – directly and indirectly – in his horrific death. To this end, Lucky’s brother will bring civil proceedings against the landlord of the slum, International Social Services Hong Kong (ISS-HK) for approving and renting the tin hut, the Social Welfare Department (SWD) that failed to monitor its contracted agent ISS-HK, and the Lands Department that failed to purge known slums in a timely fashion.
A successful damage claim is virtually cast-iron as Lucky was a non-refoulement claimant whose safety and well-being was entrusted entirely with the intended Defendants being the Hong Kong Government and its agents. Regrettably the government and its agents settled Lucky in an illegal and inherently dangerous slum from September 2008 to January 2015, and thus the Defendants are all responsible for his tragic death.
“I visited other slums and I am shocked,” relates Sivaharan, “Electric wires dangle by the sink and shower. It is so scary. They look nicely decorated inside, but these are death traps. The huts are tin sheets offering little protection. I feel sorry for refugees who live in such misery for years. We don’t hear about it [HK treatment of refugees] in the UK. The lives of refugees should not be endangered by a government that ought to protect them.”
An order for specific discovery is likely to reveal the extent of negligence, malfeasance and nonfeasance of each Defendant. Let’s only hope that Lucky’s dead wasn’t in vain.
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$210,000 in this case.
His Honour Judge Andrew Li
A South Asian women walked out of a supermarket without paying for several items worth less than 200$ 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?