‘Stay-out’ FDH avoids prison after saying her employer made her do it

http://hongkongnews.com.hk/news/stay-out-fdh-avoids-prison-after-saying-her-employer-made-her-do-it/

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It was her employer’s idea.

A 41-year-old Filipino domestic worker avoided being imprisoned for four months after she was arrested in North Point for not living in her employer’s residence.

Shatin Magistrate Ho Chun-yiu suspended the four months jail sentence he imposed on Felomina L.B. for two years after she pleaded guilty to the charge of conspiracy to defraud Immigration officials.

This means that, if she does not commit a crime in the next two years, she would not have to serve out her jail sentence.

“I want to tell you that the offense you are facing is a very serious one….(but) in this case, the offer to stay out was made by the employer,” Judge Ho said on December 18.

“I accept that there is no evidence that you were working outside your contractual address. In other words, the damage is minimal,” the magistrate said.

“I also appreciate that you frankly told investigators about your agreement with your employer,” he added.

Felomina was arrested during a raid at around 12:56 a.m. on February 17 last year at her room in a flat along Chun Yeung Street in North Point.

A check with her contract showed that she should have been living with her employer in their flat along King’s Road, also in North Point.

The Filipino started working with her employer, surnamed Tang, on June 16, 2012. But before her contract was signed, her employer told her that she would have to sleep outside their flat.

For this reason, the employer gave her an additional $1,900 on top of her basic salary, Felomina’s lawyer told the court.

“From 12 a.m. to 9 p.m., she worked in her employer’s household. After that, she had to leave because her employer’s family needed privacy,” the lawyer said.

The domestic worker immediately told investigators about this agreement after her arrest. At first, her lawyer told the court that sleeping outside the home of her employer did not violate the clause of her contract which said she should “reside” in her employer’s house.
“Sleeping is not residing. She still spent much of her time working in her employer’s home,” the lawyer said.

However, Judge Ho pointed to the fact that the domestic worker had already admitted to sleeping outside her employer’s residence.

He added that he usually gave a “suspended sentence” to domestic workers who were told by their employer to sleep outside their home. After hearing this, Felomina decided to change her plea from “not guilty” to “guilty.”

The defendant, who has a son aged 25 and a daughter aged 23 back in the Philippines, had been working as a domestic worker in Hong Kong since 2003.

She said she was still employed by the Tangs but might now look for another employer. Her employer’s sister attended the court hearing.

Judge Ho asked if Felomina’s boss had been charged but the prosecutor said the employer was still under investigation.

The is a case at magistrate court with no binding effect (NO reference value that if another one committed the same, the stayed out helper can be sentenced the same).

And each case has its unique scenario merits the consequences.

Back to square one, both sides should adhere to the laws and what has been duly signed on the green contract.

FDHs were allowed to enter Hong Kong since the 1970’s to take up full-time domestic duties due to the shortage of local full-time live-in domestic helpers and in order to relieve housewives from household chores for taking up employment. This is in line with the
well-established principle that non-local persons are admitted for employment only if the jobs concerned are not readily taken up by the local work force.


Under existing immigration policy, FDHs are admitted into Hong Kong to work for a specific employer at a specified residence under a standard two-year contract. FDHs are normally permitted to stay for a period of two years commencing on the date on which the helper arrives in Hong Kong. The terms and conditions of employment are contained
in the standard Employment Contract . 

The Contract was last reviewed and revised in April 2003 to incorporate a mandatory live-in requirement so as to better reflect the policy intention to admit live-in FDHs to make up for the shortage of local workers who are willing to provide such services.

In this case the employer should be taken to court also not just the DH
many cases here in hk where the DH is at fault and never the employer which tells me which side the government is on.

I think in this case the employer is going to be punished harder than the helper.

I just checked with immigration dept, the officer said if the helper is not sleeping in employer's place during holiday is also illegal (as it was written in the employment contract that the helper has to sleep every day in employer's place). Anything happen to the helper during sleeping out e.g. accidents, rapes, injury... the employer has to take responsibility for it and insurance company will not compensate as they know it is illegal and against the contract. Please check with immigration if anyone have any queries about it: tel: 28294141

I also know the laws thanks for your comments.

Hmmm ilegal to sleep outside during holiday im just know it now thanks sist ..