• Tue
  • Sep 23, 2014
  • Updated: 9:42pm
As I see it
PUBLISHED : Thursday, 23 January, 2014, 11:39am
UPDATED : Thursday, 23 January, 2014, 11:39am

Why Hong Kong's government should apologise for failing abused domestic workers

BIO

Born in Hong Kong, Jason is a globe-trotter who spent his entire adult life in Europe, the United States and Canada before settling back in his birthplace to rediscover his roots. He is a full-time lawyer and a freelance writer who raves and rants about Hong Kong and its people. Jason is the bestselling author of HONG KONG State of Mind and No City for Slow Men. Follow him on Twitter @jasonyng.
 

The story of 23-year-old Indonesian domestic helper Erwiana Sulistyaningsih, who alleges she was tortured at the hands of her Hong Kong employer, has captured the attention of the entire city – and far beyond. Not since Edward Snowden checked into the Mira Hotel last summer has so much spotlight been thrown onto the not-so-Fragrant Harbour. Beneath the media frenzy and tabloid-style coverage, however, is the sad reality that many foreign domestic workers suffer abuse. In the past six months, a spate of cases have come to light, all of them involving Indonesian workers who have a reputation for being soft-spoken and easily intimidated.

Last September, for instance, a Hong Kong couple was jailed for falsely imprisoning their maid, beating her with a bicycle chain and scalding her with an iron. Just last week, a Chinese University professor was arrested for assaulting her 50-year-old helper. To get a sense of how common these abuse cases are, look no further than Bethune House, a shelter for foreign domestic workers that handles hundreds of assault cases every year. A recent survey by Mission for Migrant Workers found that nearly one in five domestic helpers in Hong Kong had been physically abused.

At first glance, it seems implausible that prolonged cases of domestic violence and false imprisonment can go unreported in a crowded city like Hong Kong. Many wonder why victims put up with the abuse and instead of running away the first chance they get. The answer is simple: domestic helpers in Hong Kong are trapped in a system that is stacked against them. Among the many flaws in our migrant worker policy and its execution, none puts the domestic helper in a more vulnerable position than the dual evil of unlawful agency fees and the 14-day deportation rule.

Employment Agency Fees

By law, employment agencies in Hong Kong are permitted to charge up to 10% of the migrant worker’s minimum monthly pay, or HK$401 (US$52). Back in their home countries, there are laws regulating recruitment and training fees. What happens in practice, however, is a different matter. Agencies on both ends routinely extort exorbitant amounts from migrant workers who are desperate for a job placement. The going rate in Hong Kong is HK$28,000 (US$3,600), roughly seven times the worker’s monthly salary and 70 times over the legal limit. Erwiana allegedly paid her agency HK$18,000 (US$2,300), an amount considered a bargain by the community’s standard. To avoid getting caught, crafty employment agencies accept only cash and never issue receipts.

Migrant workers pay these hefty fees by borrowing from friends and family, but more often, from moneylenders in Hong Kong. The five-figure principal, plus interest accruing at a double-digit rate (sometimes as high as 60%), forces the helper to turn over nearly all of her salary for months, sometimes even years, to pay off the debt. Illegal agency fees are the leading cause of distress for foreign domestic workers in Hong Kong, as well as the main reason why abused women choose not to flee from their House of Horrors. For once they escape, they will be out of a job and their mounting debt will go unpaid. Debt collectors and their harassment tactics will follow. One nightmare will simply give way to another.

All that is happening under the nose of our government. Despite repeated pleas from the migrant worker community to crack down on excessive agency fees, law enforcement turns a blind eye. After all, there are billion-dollar drug trades to bust and weekly anti-government protests to rein in. Who would bother with petty consumer disputes between foreign maids and their agencies? In the meantime, bureaucrats go on renewing business licenses held by unscrupulous employment agencies and moneylenders year after year. In fact, if Time magazine and the Associated Press hadn’t picked up Erwiana’s story, would Labour Secretary Matthew Cheung probably have just let the police handle the incident as a common assault case and not have said a word about punishing employment agencies?

14-day Reemployment Rule

By law, foreign domestic workers must leave Hong Kong within 14 days after their employment contract is terminated, unless a new placement is secured and a new work visa issued. The rule effectively evicts from the city any migrant worker who leaves her job, as the new work visa alone takes six weeks to process. The two-week provision is designed to achieve two objectives. First, the government wishes to deter employer-shopping and job-hopping. Even though it is perfectly normal for everyone else in Hong Kong to look for a better job and jump ship every now and then, it is not so for a migrant worker. Maids who quit and work for another home are looked upon as greedy and irresponsible.

The second objective is as unspoken as it is ignoble: to put arbitrary restrictions on the domestic helper’s stay to distinguish them from other expatriates. The distinction can have far-reaching consequences. In March 2013, the Court of Final Appeal ruled that foreign domestic workers, unlike fellow expatriates who work at big banks and law firms, are not entitled to permanent residency in Hong Kong regardless of the length of their stay. Focusing on the 14-day reemployment rule, the city’s highest court found the residence of a domestic helper “highly restrictive” and therefore not “ordinary” enough to meet the constitutional requirements for permanent residency.

As a result of the 14-day rule, migrant workers who switch jobs must live abroad while their new work visas are being processed. That’s why there are now boarding houses all over Macau and Guangdong where maids-in-waiting take up temporary residence in horrid conditions. For abused helpers, the risk of not finding alternative employment, the threat of deportation and the peril of borrowing more money for another round of agency fees is enough for her to bite the bullet and remain in the torture chamber.

Other Systemic Failures

The mandatory live-in rule prohibits the domestic helper from living anywhere other than her employer’s home. The rule, based on racist and sexist assumptions about South East Asian women, is designed to prevent prostitution and other illegal activities when they are off duty. The irony is that Hong Kong is just about the least qualified place in the world to impose a cohabitation requirement. In fact, the same survey by Mission for Migrant Workers found that 30% of helpers are told to sleep in kitchens, bathrooms, hallways and closets.

Each time the government is asked to repeal the live-in rule, it will hide behind the same party line: doing so would exacerbate the city’s housing shortage and increase the cost of domestic help. It is a roundabout way of telling migrant workers to suck it up and “take one for the team.” Contrary to the government’s claim, however, killing the live-in rule is unlikely to unleash 300,000 maids into our streets, for the vast majority of helpers will choose to live with their employers to avoid high rent and a lengthy commute even if the rule is abolished. Instead, the policy change will give domestic helpers the option to seek an alternative living arrangement and sufficient physical space to mitigate the chance and frequency of violence.

The United Nations defines human trafficking as the “recruitment, transportation, transfer, harbouring of persons by the use of force or other forms of coercion… for the purpose of exploitation.” Nearly every developed country has enacted anti-human trafficking (AHT) legislation in an effort to eliminate sex exploitation and forced labour. The latter covers involuntary servitude, debt bondage and restriction of movement, terms that resonate with many domestic helpers in Hong Kong. Incidentally, in August 2013, a Hong Kong man living in Vancouver was sentenced by a Canadian court to 18 months in prison for human trafficking. The accused was caught paying his Filipino maid (whom he had brought from Hong Kong) below the local statutory minimum wage and making her work seven days a week, conditions that were mild compared to what Erwiana had allegedly experienced.

Unfortunately, Hong Kong does not have an AHT statute that imposes stiff fines and heavy prison terms to deter forced labour. There is nothing in the law book that would slap an abusive employer with anything more than a “wounding” or “intimidation” charge or punish non-compliant employment agencies beyond revoking their business licenses. The absence of comprehensive AHT laws is coupled with a police force that thinks the only form of human trafficking is prostitution. In the 2013 Trafficking in Persons Report, the U.S. State Department wrote extensively about the foreign domestic worker issues in Hong Kong and gave the city a “Tier 2” rating for “securing no forced labour convictions… against abusive employers... or employment agencies [that] have charged fees in excess of Hong Kong law.” The report is downloadable from the State Department website and for all the world to see.

It has been four decades since the first batch of foreign domestic helpers arrived in Hong Kong from the Philippines. Since then, our economy has taken off but their status and working conditions have gone the other direction. Their grievances about domestic violence and unlawful business practices have fallen on seven million pairs of deaf ears. We either brush them off as “isolated incidents” or, as some have shamelessly suggested, turn to even more docile workers from Bangladesh and Myanmar. But enough is enough – the time to take a hard look at our migrant worker policy is now.

Abused domestic workers are failed by our city in every way: by the employer and employment agency, our law enforcement and policymakers. Every safeguard in the system has failed. The same way many Hong Kongers are demanding Philippine President Benigno Aquino III apologise for the Manila hostage crisis in 2010, the migrant worker community in Hong Kong will be justified in asking C.Y. Leung for an apology for all the systemic failures that have led to the plight of so many foreign domestic workers.

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