The law of torts … Damages awarded for assault, battery and false imprisonment in a Sydney brothel … Judicial trigger warning for sensitive readers … Blacklisting … Fellatio … Nudity … Expletives … Kicking … The works … Janek Drevikovsky reports on a fracas
The decision, handed down by Judge Len Levy SC, concerned a tort-claim by a young man who was assaulted, humiliated and unlawfully detained by the proprietors of an inner Sydney brothel.
The brothel-owners earlier pleaded guilty to criminal charges arising from the “fracas”. Even so, they denied liability when their victim sued in tort.
At the top of his reasons, the judge warned readers to expect “reference to matters of a sexual nature”.
“If potential non-party readers consider that such references may cause them offence, they should consider reading no further than this point,” His Honour said.
The defendants were husband and wife duo, Chao Chang and Xiao Hu, co-owners of the brothel where the assault occurred. Their company, Bossie Chau, was joined as vicarious tortfeasor.There were problems with the defendants’ testimony. Ms Hu confessed she had coordinated her testimony to align with her husband’s. The pair had also lied to police while under interrogation.
The judge therefore preferred the testimony of Mr Fung, whom he considered a reliable witness.
Mr Fung had been a repeat customer at the defendants’ first brothel, Ginza Club. But in December 2017, Mr Fung was blacklisted from that establishment. This was common ground.
In May 2018, the defendants opened a second brothel, called 278 Club, situated on Redfern’s Cleveland St.
In June 2018, Mr Fung paid a visit to 278 Club. His Honour accepted Mr Fung did not know the brothel was owned by the same people who owned Ginza Club.
Mr Fung therefore had no reason to think he was unwelcome at the new bordello.
Upon arrival, the receptionist offered him a range of prostitutes. He selected a woman called “Joy” – a name His Honour described as a “nom de bordel”.
Mr Fung paid his $240 and proceeded into a private room.
What happened next was a matter of dispute. The defendants said they heard Joy calling out “Fuck, get off me”. They then rushed into the room and, so they claimed, found Mr Fung attempting sex without a condom.
The defendants entered the room because they did not want the plaintiff to be there. The story about Joy shouting for help was “a contrivance”.
Once in the room, Mr Chang asked Mr Fung why he was “back again”, and then slapped him. Stark naked, Mr Fung reached out an open-hand to defend himself, but was met with kicks and punches from both defendants.
In the witness box, Mr Chang conceded he had punched the plaintiff some 10 to 15 times and there was a “dramatic demonstration” showing just how:
“He made repeated downward and forceful movements with his closed fist moving up and down rapidly beside him in a pumping action,” HH said.
“[The accompanying] words ‘fuck you, fuck you, fuck you‘ were delivered by Mr Chang with considerable expressive emphasis, in a violent manner, and in syncopation with his described physical demonstration.”
Eventually, the plaintiff collapsed. Ms Hu then ordered the plaintiff to kneel and, when he refused, kicked him twice “in the guts”.
The kicks forced Mr Fung to his knees, upon which all of the brothel’s prostitutes were called into the room. Mr Fung, still nude, was forced to “kowtow” to each in turn.
Eventually, Mr Fung was allowed to leave. Badly injured, he was picked up by police and taken to Royal Prince Alfred Hospital.
Self-defence also failed, since there was no element of self-defence in the defendants’ conduct, the judge held.
The judge found Mr Fung suffered ongoing pain when moving his eyes, lasting facial numbness and post-traumatic stress. The whole experience had been “harrowing, scarifying” and “humiliating”.
For non-economic loss, including aggravation, the judge made an award of $75,000, and a further $25,000 in exemplary damages.
For past loss of earnings, the judge ordered $12,600 in damages, and for future loss of earnings, $30,000.
The plaintiff would also be out-of-pocket for past and future medical expenses, and the total damages bill was subject to interest. The final tally was $154,857.65.
The defendants were also ordered to pay costs.
