Soft-hearted boss or cruel abuser? Hong Kong emigrant jailed for human trafficking
Hong Kong couple thought they were doing their maid a favour by taking her to Canada, but now one of them has been jailed for human trafficking
As far as Franco Orr Yiu-kwan and his wife could see, their only crime against their Filipino maid was being "too soft-hearted".
But a Canadian jury begged to differ, convicting Orr, 50, of human trafficking in a landmark case. On Tuesday, the former Hong Kong businessman was sentenced to 18 months' jail for human trafficking.
It is Canada's first successful trafficking prosecution under immigration law as opposed to previous cases brought under the criminal code, mainly involving sex slaves.
Orr had brought maid Leticia Sarmiento with his family when they moved to Canada in 2008, continuing to pay her under the terms of her SAR contract.
Prosecutors, who said her conditions amounted to slavery, hope that the precedent-setting sentence handed down in the British Columbia Supreme Court will deter other would-be traffickers. Orr, led from court in handcuffs, plans to appeal.
The court was told that Orr and his wife, Nicole Huen Oi-ling, 36, made Sarmiento work 16 hours a day, seven days a week, for 21 months. But Orr claimed that the maid begged to be brought to Canada when the family moved to Vancouver in September 2008, and that she was allowed to come and go as she pleased.
"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 prior to sentencing. "So yes, it does create a precedent. Deterrence is always a consideration for would-be offenders."
Orr was also convicted of two labour and immigration offences, earning six-month sentences to be served concurrently. Huen was acquitted of all offences.
The couple, whose three children were cared for by Sarmiento, said they thought they were doing a good deed when they brought her to Canada. "The only thing we are guilty of is being too soft-hearted," Huen told reporters outside the court after her husband's conviction in June.
Their lawyer, Nicholas Preovolos, had 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 a month, in line with the HK$3,470 minimum allowable wage for foreign maids in Hong Kong at that time, but well below British Columbia's general minimum hourly wage of C$10.25 (HK$76.75). The couple later gave her a 40 per cent pay rise, raising her salary to C$700, 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 mild assessment of her work 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.
Orr and Huen claimed that they tried repeatedly to get Sarmiento 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. They said she only called police in June 2010 as a last-ditch bid to stay in Canada.
Preovolos provided police and witness testimony that there were no locks on the family home that would have prevented anyone inside from leaving. The court also heard that Sarmiento was sometimes left alone, for example while the family went to watch a film.
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 all along, 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.