A seven-person jury – made up of four men and three women – came to a baffling conclusion in Hong Kong’s High Court last month, unanimously acquitting a couple of rapes.
Chan Chim-tak, 48, was cleared of two counts of rape and attempted rape against X, a migrant domestic worker he employed. Chan’s wife at the time, Lai Chi-san, 36, was exonerated of aiding and abetting the alleged rape and assaulting X.
Without “concrete” evidence of the assault, the prosecution’s case relied heavily on X’s testimony, so the main determination was X’s credibility. rape case – it was tried by a jury, of which we here we seek to make sense of the decision.
After observing parts of X’s cross-examination, the defense strategies can be summarized as follows: first, attack X’s inconsistencies on the sequence of events; second, a parade of victim-blaming questions, asking X “why didn’t you…”; and finally, weaponizing stereotypes of migrant domestic workers in Hong Kong.
These tactics fit neatly into what academia identifies as “rape myths”: “prescriptive or descriptive beliefs about rape that serve to deny, minimize, or justify sexual violence,” according to a study published in the European Journal of Social Psychology.
Careful examination of how rape myths influence trials is particularly important because, as Jennifer Temkin and Barbara Krahé note in Sexual assault and the justice gap“no other criminal offense…is so intimately tied to broader social attitudes and assessments of victim conduct as sexual assault.
In X’s case, the rape myths are also tied to X’s identity as a migrant domestic worker, with her race, socioeconomic status, and working relationship with the defendants also contributing to discredit her.
During the trial, the defense attorney pointed out several inconsistencies between what X said during examination-in-chief and cross-examination, and his witness statement taken by the police. These inconsistencies relate to the details of his alleged assault and the sequential order of everything that happened on that evening which, it should be noted, goes back four years.
If a slight memory lapse or confusion over what was requested, filtered through two interpreters – the trial was conducted in Cantonese and interpreted into English and then into Tagalog, X’s native language – makes X dishonest, then how do you have to be a perfect witness in order to be trustworthy? How should a member of the jury weigh these modest flaws that may well be committed by any human being on the stand, against the fact that X has already provided a plausible account in considerable detail?
Predictably, the defense attorney’s line of inquiry was also fraught with a plethora of “why didn’t you do” questions.
“Why didn’t you escape?” X actually did, twice, but the defense argued she didn’t try hard enough.
“Why didn’t you hit the accused?” X had just enough strength to cry.
“Why didn’t you cry audibly to be heard?” Psychological research has shown that “fight or flight” responses are not the only way rape victims react when assaulted; many go into shock and freeze in place.
“Why didn’t you call the police immediately afterwards and instead chose to contact your agency first?” X explained that the agency asked him to contact them first if anything happened to him. She also feared that if she called the police, the defendants would hear her.
“Why didn’t you escape that night and wait until the next day?” Again, X cogently explained that it was because the defendants could hear her if she opened the door, and she didn’t feel comfortable taking the risk for fear of retaliation.
Even if X didn’t do any of the above things, that doesn’t mean X wasn’t assaulted.
The defense attorney’s obsession with “rationality” belittles the fact that what X experienced was undeniably traumatic. It is always easy for observers, and perhaps also for members of the jury, to think “I would have been smarter, I would have been braver, I would have acted differently”, faced with a similar situation. “If she wasn’t all those things, then she must be making this up.”
But is it really so hard to believe that a person can act “irrationally” when they are afraid? And especially for migrant domestic workers – who are often expected to be subservient to their employers – power imbalance and lack of bargaining power are also crucial factors governing their actions.
It is their livelihood, their reputation and their physical safety that are at stake – they have everything to lose by making themselves known.
The case presented by the defense was that the sexual relationship between X and the defendant Chan was entirely consensual. X was paid HK$150 for it, and any involvement of the defendant in the assault was fabricated by X because they had a contentious relationship.
He conveniently starred in a disturbingly stereotypical tale of a money-hungry, disobedient and deceitful domestic worker, a portrayal no doubt amplified by similar media portrayals. We may never fully know if this bias contributed to the jury’s decision, but sitting in the witness box and being accused of a liar has undoubtedly victimized X again and again.
If there are compelling reasons for the principles of criminal justice to exist, such as having a high standard of proof, shouldn’t we place as much emphasis on ensuring a dignified trial for the victim- survivor than the guarantee of a fair trial for the accused?
Another striking part of the trial is the total annoyance of the three-way interpretation between Cantonese, English and Tagalog. If being cross-examined by the defense attorney was already taxing for the victim-survivor, imagine the whole process being extended three times.
Moreover, the very nature of a cross-examination means that the defense will put forward an assertion, often worded with complex sentence structures and double negatives, and ask the witness whether or not they agree. There are many instances where the witness asks for the statement to be repeated, before saying a “yes” or a “no”.
Although I am not in a position to judge the quality of the interpretation in this particular trial, an exchange in court revealed that the interpreter who was present when X gave his statement to the police told him not to providing too detailed a narrative because the process was “taking too long”.
This is highly unsatisfactory as what she omitted from her witness statement was later questioned by the defense attorney. If the process of obtaining witness statements is too cumbersome – and indeed it is – the responsibility to make the appropriate arrangements should rest with law enforcement, and certainly not at the expense of the quality of the evidence.
A study conducted by the Association Concerning Sexual Violence Against Women in 2017 showed that the system that governs interpreting services for ethnic minorities in Hong Kong is in dire need of reform. Thirty-five percent of respondents said that the interpreter sometimes or always added their own opinion during the interpretation, with one instance of an interpreter warning a client not to say something in court.
There was even a case where a mistranslation led to a successful appeal against a criminal conviction.
Experts in the field have long criticized the questionable recruitment process for minority language interpreters in the courts, as well as the lack of a decent accreditation system and competitive salary which contributes to their poor quality.
In July 2021, the Ombudsman published a report on his investigation into the arrangements made by the government to use external interpretation services. The Office of Constitutional and Continental Affairs later said the Ombudsman’s recommendations were generally accepted, although real improvements remained to be seen.
As for X’s case against Chan and Lai, it was almost a classic demonstration of how cultural norms and institutional shortcomings operate in a rape trial. Outdated notions of the nature of sexual assault and deep-rooted prejudices against migrant domestic workers have no place in court. Yet our systems have done little to refute them, resulting in the most dismal outcome for a woman brave enough to stand up for her own dignity.
Cherry Ng holds a law degree from Durham University. Currently part of the Equality Rights Project at the University of Hong Kong Law School, she works to raise awareness and foster knowledge exchange on gender equality, LGBT+ rights and human rights. persons with disabilities, with a particular focus on gender-based violence and the criminal justice system.
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