“A Matter of Witness Credibility” — Bias in the Courtroom
[Kirpach, 2019][1]
“I do not find her to be a credible witness.”
This is a statement heard far too often by foreign domestic workers (“FDWs”) in Hong Kong courts. Earlier this year, an employer was acquitted of six counts of indecent assault against an FDW, X, on the ground that the victim never protested against the defendant’s actions. The victim testified that she was afraid of losing her job at the time of the assaults. Despite this, the magistrate chose not to believe the victim in light of inconsistencies in her account and the fact that threats of termination only came after the first instance of assault.[2]
As a matter of law, prior inconsistent statements are admissible to determine the credibility of witnesses.[3] However, judges are not entitled to conclude that a witness is more or less reliable due to his/her social or professional background.[4] Even though judges may adhere to these requirements, it is argued that the rules of evidence still fail to protect FDWs as bias and prejudice taint the fair imposition of these standards.
As can be observed from the case of X, judges impose an unreasonably high standard on FDWs, expecting them to be completely accurate in their recollection of events. Any inconsistency becomes a warrant for discrediting the entire testimony. Moreover, it seems that judges’ failure to understand the social realities of FDWs in Hong Kong makes them unable to understand why, for instance, they may remain silent when facing abuse.
FDWs’ social identity as women and ethnic minorities might be the reason judges are prejudicial in the way they impose standards of credibility. In fact, race has been seen to affect the assessment of witness credibility in other jurisdictions as well.[5][6] The same can arguably be said to be true for Hong Kong courts, given that dismissive attitudes towards FDWs are widespread in the city. For instance, a study of Hong Kong press publications revealed that FDWs’ testimonies were generally doubted more than those of their employers, who faced less scrutiny from the press.[7]
These hidden biases in the way the rules of evidence operate leave FDWs inadequately protected by Hong Kong’s justice system. What good is a framework of rights if even the institutions giving effect to these protections are plagued by prejudice?
Daria Kirpach, ‘Illustration - Woman Speaking’ <https://www.sciencemag.org/news/2019/04/archaeological-society-tries-stem-continuing-controversy-over-metoo-scandal> accessed November 18, 2019
Chris Lau, 'Man Touched Domestic Helper’S Breast To Inspect Her ‘Sweat Problem’ But Hong Kong Court Rules That Contact Alone Does Not Prove Him Guilty Of Indecent Assault' South China Morning Post (2019) <https://www.scmp.com/news/hong-kong/law-and-crime/article/3012596/man-touched-domestic-helpers-breast-inspect-her-sweat> accessed 18 November 2019.
R v Funderburk [1990] 1 WLR 587; Section 14 of the Evidence Ordinance (Cap. 8)
Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600
Sheri Lynn Johnson, 'The Color of Truth: Race and the Assessment of Credibility' (1996) 1(2) Michigan Journal of Race & Law 261
Judith Resnik, 'Continuing barriers to women's credibility: A feminist perspective on the proof process' (1993) 4(2) Criminal Law Forum 327-353
Hans J. Ladegaard, ‘Demonising The Cultural Other: Legitimising Dehumanisation Of Foreign Domestic Helpers In The Hong Kong Press’ (2013) 2(3) Discourse, Context & Media 131.