A Hong Kong man who brought his Filipino maid with his family when they moved to Canada, continuing to pay her under the terms of her SAR contract, has been sentenced to 18 months’ jail for human trafficking.
Prosecutors hope that the precedent-setting sentence, handed down in the British Columbia Supreme Court in Vancouver on Tuesday, will deter other would-be traffickers. Franco Orr Yiu-kwan, who was led from court in handcuffs, continues to deny wrongdoing and plans to appeal.
Prosecutors said Orr kept Sarmiento as a virtual slave, forcing her to work 16 hours a day, seven days a week, for almost two years. But Orr, 50, claimed that the maid, Leticia Sarmiento, begged that he bring her to Canada when the family moved to Vancouver in September 2008.
“This is the first conviction in Canada for an offence of human trafficking under section 118 of the Immigration and Refugee Protection Act,” said prosecutor Peter LaPrairie in an interview prior to sentencing. “So yes it does create a precedent. Deterrence is always a consideration for would be offenders.”
Orr was also convicted in June of one immigration offence and two labour offences, with six-month terms for those charges to be served concurrently. Orr’s partner, Nicole Huen Oi-ling, 36, was acquitted of all three offences.
Orr and Huen, whose three children were cared for by Sarmiento, said they acted only in the maid’s interests. Their lawyer, Nicholas Preovolos, questioned the severity of the trafficking charge, which carried a potential life sentence.
At the sentencing hearing, Preovolos asked for a conditional sentence, while prosecutors sought five to six years’ jail.
Judge Richard Goepel told Orr on Tuesday that “individuals cannot be allowed to disregard the immigration laws of this country with impunity”. However, he said that the crime was “at the lower end of the continuum” because the Crown did not prove that Sarmiento had been subjected to humiliating or degrading treatment. Goepel said there was a “lack of significant aggravating factors”, and that Orr’s profit motive in underpaying Sarmiento was “relatively modest”.
Sarmiento was initially paid C$500 (HK$3,744) a month, in line with the HK$3,470 minimum allowable wage for foreign maids in Hong Kong but well below British Columbia’s general minimum hourly wage of C$10.25 (HK$76.74). The couple later gave the maid a 40 per cent pay rise, to C$700 (HK$5,241), and Sarmiento continued to send money back to her family in the Philippines, with whom she was in regular contact.
Outside court on Tuesday, Sarmiento tearfully told reporters that she rejected the judge’s assessment of her conditions. “I didn’t see all my family for seven years. I feel great now because I know I have freedom here in this country,” she said.
She plans to apply for permanent residency in Canada and hopes her family can join her.
Far from keeping Sarmiento prisoner, Orr and Huen claimed that they tried repeatedly to get her to leave Canada after her six-month tourist visa expired. They said they booked her flights out of the country, but she refused to go because she wanted to live in Canada.
Preovolos provided police and witness testimony that there were no locks on the family home – a basement apartment in Huen’s parents’ house - that would have prevented anyone inside from leaving, contrary to the maid’s claims that a keypad device kept her locked in. The court also heard that Sarmiento was sometimes left alone, for instance, waiting in a shopping mall while the family went to a movie.
LaPrairie said Sarmiento’s movements within the community did not necessarily indicate a lack of coercion or victimisation. “We had an expert witness testify about the means of control that victims often face in situations like this,” LaPrairie said. “The expert provided testimony concerning victimology and why persons in this type of situation are often not in a position to seek assistance even if they are out in public with their abusers.”
Sarmiento’s claim that the couple confiscated her passport was undermined by a bank employee who testified that the maid used her passport in a failed attempt to open a bank account.
Preovolos said Sarmiento had previously been fired as a maid in Hong Kong and was worried she would not find another job there. He said she was well aware that she was in Canada illegally and launched her complaint against the couple in a last-ditch attempt to stay, but LaPrairie rejected this.
“The evidence at trial was that Ms Sarmiento discovered the true state of her immigration status after being taken out of the home by the police and meeting with Canada Border Services Agency. The jury clearly accepted this evidence,” LaPrairie said.