Two-year jail sentence for trafficking Indonesian maid overturned on technicality

A man who allegedly forced an indentured female employee to eat a spoonful of salt as punishment, saw his conviction for human trafficking overturned on a technicality.

Harish Daswani, 45, was accused in 2014 of trafficking Oriance Kelin from Indonesia for the purposes of exploitation, causing her to fear violence, threatening her and failing to comply with employment law.

Court reports from the time state that Kelin was allegedly insulted, beaten up, and forced to eat a spoonful of salt after the meal she had cooked was deemed “too salty”.

The woman had been brought from Indonesia via the Homemade recruitment agency in Singapore to care for Daswani’s father. She said her promised €770 monthly salary never materialised. And while admitting that he had never paid Kelin any wages, Daswani told the prosecuting inspector that he had transferred around €1,200 for her flights and to cover a loan she had. Daswani claimed Kelin had not given him her bank details, and that she preferred not to be paid in cash.

In November 2019, Daswani was found guilty of human trafficking and causing the woman to fear violence, and condemned to imprisonment for two years, with a €5,000 fine. A protection order was imposed in favour of Kelin.

But on appeal, Daswani’s lawyers argued that the prosecution had failed to prove that the allegations of human trafficking had taken place in the period mentioned in the summons. “[The] only acts that should have been considered by the Court were those allegedly committed between 8 June, 2013 and 8 June, 2014. Had the prosecution wanted to charge applicant with acts committed before that period it should have stated ‘on the 8th June, 2014 and in the preceding months and years’,” they argued.

Daswani’s counsel argued that the offence of human trafficking had to establish the “behaviour which facilitates” this, and that it would have to precede the recruitment or transportation of the person.

Daswani had admitted that Kelin would work seven days a week, but was allowed Sunday mornings off up till 2pm. The woman had never worked more than 40 hours per week, he claimed, due to the minimal nature of the tasks she had been given to do.

But he admitted that he had slapped Kelin once, yet his lawyers argued that any alleged mistreatment happened after the alleged offence of human trafficking, and was not to be taken into consideration under the human trafficking charge.

Madam Justice Consuelo Scerri Herrera observed that it was “amply clear” that the relationship between the Daswani family and Kelin had deteriorated when it transpired that her behaviour was not only unsuitable to her employer’s requirements, but that it could potentially endanger his elderly father’s life.

In a 63-page judgment, the judge noted that even though one of the payments towards Home Maid Agency PTE Ltd took place while Kelin was already in Malta – and therefore during the period mentioned in the charge sheet – arrangements and therefore the behaviour facilitating the entry were made prior to the date in the charge sheet.

“Even though the complainant continued residing with the accused, his wife and the father of the accused throughout the period mentioned in the charge sheet… the behaviour facilitating the entry and residence took place before the complainant arrived in Malta and therefore not in the period mentioned in the charge sheet.”

The court upheld the first ground of appeal and said the first court could not have found guilt of the first charge in view that not all the elements of the offence took place in the period mentioned in the charge sheet.