HKSAR v. Mak Hoi Ching also known as Mak Carmen Ka Man and Mak Ka Man

DCCC 1193/2018

[2020] HKDC 851

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1193 OF 2018

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REASONS FOR VERDICT

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CHARGES

1.The defendant (aged 37[1]) has been charged with 5 counts, namely one count of assault occasioning actual bodily harm (“the 1^st Charge”); and four counts of wounding with intent (“the 2^nd to 5^th Charges”), contrary to sections 39 and 17(a) of the Offences against the Person Ordinance, Cap 212, respectively.

2.Of all charges, the victim (“Mr X”), aged 30 at the time of the offences, was the defendant’s boyfriend.  All offences were said to have taken place at the defendant’s home located in Happy Valley.

3.The 1^st Charge is alleged to have been committed on a day unknown between May and July 2018, whereas the remaining charges all happened in August 2018 as follows:

(a)  2^nd Charge on 15 August 2018;

(b)  3^rd Charge on 25 August 2018;

(c)  4^th Charge on 28 August 2018;

(d)  5^th Charge on 29 August 2018.

PROSECUTION CASE

4.There is no dispute that Mr X was found to have the following injuries[2] when he was medically examined on 29[3] and 30[4] August 2018:

(a)  Second degree scalding with ruptured blisters on his penis;

(b)  Second degree scalding with ruptured blisters on both thighs;

(c)  Head lacerations and bilateral scalp swelling, with a scar on left temple from previous laceration injury;

(d)  Right perichondral bruising injury;

(e)  Multiple lacerations and abrasions over anterior chest and abdomen.

Relating to 1^st Charge

5.During the period from May to July 2018, the defendant assaulted Mr X on at least two occasions.  On the first occasion, the defendant banged Mr X’s head against the wall for a number of times.  Mr X testified that the assault was because the defendant was furious that his sexual performance was not up to her standard in terms of endurance.

6.On the second occasion, which was more violent, Mr X said in cross-examination, that the defendant not only banged his head against the wall but also kicked him in the head.  The reason for the assault, as far as Mr X understood, was similarly due to the defendant not being sexually satisfied during the sexual intercourse.  The banging of Mr X’s head by the defendant had resulted in Mr X having great pain and bruises on his head.

Relating to 2^nd Charge

7.On 15 August 2018 when Mr X returned to the defendant’s residence after a family dinner in which Mr X’s mother, aunt and uncle as well as the defendant and her mother were present, the defendant was very annoyed by the discussion during the dinner about her contribution to the property[5] Mr X has purchased.  Mr X was subsequently assaulted on his head by the defendant with a metal stool.  It was Mr X’s evidence that he was in great pain and his head did bleed.  However, he did not seek any medical treatment after the event.

Relating to 3^rd Charge

8.Mr X narrated that on 25 August 2018 when he, being naked as requested by the defendant, was blow-drying her hair, the defendant suddenly grabbed hold of his penis and used the hairdryer to blow hot air close to his penis.  The defendant’s act lasted for a few seconds causing him great pain.  Mr X stated that after the assault on 25 August 2018, blisters and scabs were formed on his penis.  The defendant then brought Mr X to a pharmacy and buy a burn cream to be applied on the wound.

Relating to 4^th Charge

9.On 28 August 2018 towards midnight, after the defendant learnt Mr X had signed an IOU with his aunt[6], the defendant became furious and committed a series of assaults on Mr X, including the removal of scab/blister from Mr X’s penis, pouring of boiling water from a kettle[7] directly onto his thighs and using a pair of scissors[8] to stab his chest and upper body[9].

Relating to 5^th Charge

10.At around noon the next day (on 29 August 2018), Mr X testified that the defendant again assaulted him by grabbing his head and pushing it against the wall, using scissors to stab his body and rubbing chili oil on the wounds of his chest[10]. Later on that day, the defendant accompanied Mr X to see a doctor[11], who was told that the injuries on the lower parts were scalded when Mr X was cooking.  The doctor was however not told or shown Mr X’s injuries on his chest.

11.Mr X saw his aunt the next day and the above incidents were disclosed.  The case was then reported to the police.

DEFENCE CASE

12.In respect of the defence case, the defendant elected to give evidence and called no other witnesses.  The defendant denied each and every allegation against her.  In short, the defendant said that the assaults as alleged in the 1^st and 2^nd Charges did not happen at all whereas the injuries in relation to the 3^rd to 5^th Charges were inflicted by Mr X himself.

ISSUES

13.The only issues in the present case are: (1) how the above injuries were caused; and (2) by whom.  The prosecution case boils down to the credibility and reliability of Mr X’s evidence.

REMINDERS

14.I am aware that the defendant is facing a number of charges which happened within a relatively short period of time (from May to August 2018) towards the same victim.  I have reminded myself to consider the evidence of each count separately and the court can only convict if the prosecution can prove each and every element in respect of each count to the standard of beyond all reasonable doubts.

15.I am also alert to the special and intimate relationship between the alleged victim and the defendant at the material times and warn myself the possibility of fabricating evidence due to grudges or hurts.

DISCUSSION

Mr X is an honest and reliable witness

16.As I said, the whole case hinges on the credibility of Mr X.  I have scrutinized Mr X’s evidence carefully and thoroughly.  I have come to the conclusion that Mr X is an honest and reliable witness.  His testimony was clear and cogent.  He was adamant under cross-examination despite the plight and embarrassment given the nature of his evidence.  He did burst into tears on a number of times during the 4 days of lengthy evidence but he managed to compose himself and finish his evidence in a convincing manner.  He was sincere in giving evidence in court.  I accept his evidence as what has happened at the material times.

Mr X’s inaction towards the violence

17.The main challenge by the defence is that: during and after each incident in which Mr X was assaulted by the defendant, his evidence consistently showed a pattern of not:

(a)  telling anyone about the assaults;

(b)  reporting the matter to the police;

(c)  seeking immediate medical attention;

(d)  attempting to leave the defendant’s premises;

(e)  trying to break up with the defendant.

18.It may sound unreasonable at the first place for a man not to defend or protect himself having subjected to such severe degree of physical violence by his girlfriend as in the present case.  Having said that, one’s reaction to physical abuse depends very much on the personality of the respective partner and the dynamic of the relationship.

19.As emphasized by the defence, Mr X undoubtedly excelled academically when he graduated with first class honours in computer science in university and thereafter worked in an IT company earning a monthly salary of about HK$35,000 in 2018.  However, it does not necessarily mean that Mr X, given his high intellectual ability, must be a person who can discern and handle intimate relationship well.

20.There is no dispute that the defendant was the first girlfriend of Mr X after his 30 years of life.  They met each other through speed dating and entered into a relationship as boyfriend and girlfriend after going out on a few occasions.  They began to cohabit at the defendant’s residence in Happy Valley in around mid-May 2018.  Unfortunately, the relationship did not last long and deteriorated as rapidly as it developed at the initial stage.

21.As a matter of fact, Mr X was inexperienced in handling intimate relationship.  He mentioned a number of times in court that he took this first love very seriously and he never expected it would turn out like that.  When being asked by the defence why he did nothing to stop the defendant’s violent behaviour, his consistent responses were:

“Because I loved her very much …”

“I was so shocked that I just did not know how to react…”

“She promised she would never do it again and I trusted her…”

22.It is not difficult to understand, like many other domestic violence cases, that Mr X on one hand disapproved what the defendant had done to him, but on the other hand loved her so much that he wished desperately to maintain the relationship hoping the fence could be mended given time and effort.

23.As the saying goes: “There is no love like the first”.  The defendant, being the special one to Mr X, made him experience love intensely and in a way obsessively for the very first time.  Sadly, it was the excruciating pain and hurt that he ever felt in his life.  Undeniably, the attachment and intimacy was unique to and rooted in him.  That explained why the judgment of Mr X would be so clouded time and again in that he failed every time to disclose the matters to others and/or seek medical treatment.  Mr X also said that he did not want the defendant to get in trouble should he told others what had happened, including Dr Lo whom he visited on 29 August 2018 after the last incident.

24.Just like how the euphoria of falling in love is extreme, so is the subsequent heartbreak.  That easily answers why Mr X was not able to defend himself or end this relationship despite its destruction and harmfulness to him.  He said many times in court that he thought that the defendant would change as she promised and not to hurt him again.  However, the outcome was opposite to what he had expected.

Manipulative relationship

25.In assessing the reasonableness of evidence presented in the trial, the court needs to probe into the details of the relationship and avoid common stereotypes about men and women.  For example: A man must know and need sex more than a woman or a man must be the dominate one in a relationship.

26.Evidence showed that in the following several months after Mr X and the defendant became boyfriend and girlfriend, their relationship progressed into an intense yet abusive one.  They lived together at the defendant’s residence almost immediately and had sex frequently.  Mr X testified that the defendant was dominant not just in sex but more significantly in every way of his daily life.  On the evidence, it is clear that on one hand the defendant was unusually controlling while Mr X was immensely attached to and subordinate in the relationship as highlighted below:

Tattoo – May or June 2018

27.As requested by the defendant, Mr X was brought to Shenzhen to make a tattoo of a naked angel with the defendant’s name on his arm.  It is of note that the defendant did not do it on herself and excused that she would only do so after they got married.

Vasectomy – June 2018

28.In explaining why he underwent the vasectomy operation, Mr X testified that: (1) the defendant mentioned to him that she had an accident in Canada and doctor told her that should she be pregnant, she would be in life-threatening condition; (2) the defendant believed in “fung shui” that her children would not be filial and would take away her property; and (3) he loved the defendant very much.

29.This action accomplished for the defendant tells a lot about Mr X’s indulgence in the defendant and how much he was willing to sacrifice for her well-being even they had just been together for less than 2 months’ time.

Usage of “Viagra” – since June 2018[12]

30.Mr X said that he had made an online purchase of “Viagra” but it was upon the defendant’s repeated requests.  He did not think he needed it himself and further stated that: (1) he had no experience in sex before knowing the defendant but he could perform sex normally; (2) the defendant had a high demand in sex and continuously complained about her dissatisfaction because Mr X ejaculated too early; and (3) he did not want to be assaulted by the defendant again if he could not satisfy her sexually.

Sex toys – July to early August 2018

31.Mr X said the defendant is dominant in sex. However, when it was put to him that he and the defendant did practise sadomasochism (“SM”), he disagreed.

32.However, having been shown in court his naked pictures[13] taken from the defendant’s mobile phone, he recalled that there was once when the defendant brought him to a pub in Lan Kwai Fong for drinks and he was in a very drunken state after a few glasses of alcohol.  Mr X could not remember the exact date and details of the above incident, but it seemed to have happened in July to early August 2018[14].  He said that after returning to the defendant’s flat that evening, the defendant took out the SM tools from her wardrobe and used the same to mistreat him and took photos of him.  He resisted but he could not stop her as he was too drunk.  He remembered on that occasion the defendant had something clipped on his nipples and penis.

33.Mr X agreed that the defendant liked him to kiss her feet although he did not want to do it.  He did it to her because he wanted to satisfy her.   Also, he was with the defendant almost every day and he was scared that the defendant would hurt him if he did not accede to her request.  Mr X had kissed the defendant’s feet on a number of occasions as he remembered[15].

34.Mr X also said that he was at times forced to smile when the defendant took photos of him.  He said that the defendant kept all the photos and never sent any copy to him.  He was shown a photograph by the defence about him holding a sex toy in his right hand near his rectum[16]. Mr X said that the same was bought by the defendant and it was the defendant who forced him to smile in front of the camera.  Mr X said he did so as requested by the defendant because of her control over him and his fear that she would hit him.

35.The sadistic nature of the defendant’s behaviour (the defendant told the court that she did practice SM in Canada and wanted to find partners here but people are conservative in Hong Kong) is consistent with the series of violent attacks on Mr X as depicted by him.

Self-slapping in a video clip – 9 August 2018

36.On that occasion, the defendant called Mr X via video-call when she was on a business trip outside Hong Kong.  She found that Mr X was not wearing the Bluetooth earphone and the watch the defendant had given him.  The defendant was agitated at that time and asked Mr X to slap himself for 10 times.

37.Mr X refused to do so at the beginning, however the defendant became furious and asked him to double the number of slaps.  It was then in early hours of the next day he made a video slapping himself and have it sent to the defendant via WeChat.

38.All the above episodes are indicative of the defendant’s extremely manipulative personality which worsened, with the undue allowance by Mr X, to a pattern of physical abuse and violent behaviours.

39.On the evidence, the defendant was easily agitated and tended to exercise violence on Mr X whenever she felt not happy about him.  At the earlier stage, the defendant banged and kicked Mr X’s head when she was not sexually satisfied.  After Mr X had made clear to her that she should not have hurt him like that and Mr X has taken Viagra as requested by the defendant, the physical abuse seemed to have alleviated for a while. However, the defendant’s manipulative and violent behaviours recurred and aggravated when the completion date of the property got closer in August 2018. Mr X’s evidence was in line with the undisputed sequence of events and the defendant’s characters as revealed clearly on the evidence.

Money & wedding

40.The enmeshment of their relationship did not just stay at emotional but also practical level which made Mr X more difficult to leave this inextricably agonizing yoke.

41.There is no dispute that Mr X has transferred HK$500,000 to the defendant on 2 August 2018.  The sum of money was originally saved by Mr X selling all his stocks and securities for the purpose of paying the deposit of purchasing the Lohas Park property in September 2018[17].

42.The reasons for the transfer of money to the defendant as testified by Mr X were that: (1) the defendant had requested him to do so for many times; (2) he was worried that the defendant would be angry and therefore assault him again; (3) he loved her deeply and did not want to disappoint her; and (4) the defendant had promised him that she would only keep the money for the time being and would give him back when he needed the money for paying the deposit in September 2018.

43.What complicated the matter more was that there had been ongoing discussion between them to get married in 2019.  Various topics about their future, eg finance, purchasing the property and wedding plan etc, were trashed out between them.  In August 2018, they even took wedding photos and arranged a dinner for family of both sides to meet.

44.Mr X said that around July or August 2018, the defendant was so keen to know the details of his purchase of the property.  She even asked about it almost every day in August when the completion date is nearer.  The defendant often threw temper over matters about the purchase of the property, finance and share of profit between him and his aunt.  The defendant also became immensely possessive that she kept telling Mr X that he and everything of him belonged to her.

45.In his evidence, Mr X did say that on 15 August 2018 after the family dinner when the defendant was so infuriated due to the discussion about her contribution to the property, she threw all his belongings outside the defendant’s premises, plonked the wedding ring and ordered Mr X to kneel down and told her the full name of his aunt who lend money to him for the deposit.  Out of the blue, the defendant hit Mr X’s head with a metal stool placed in the living room, causing him bleed heavily.  MR X was completely shocked.  He testified that he acceded to the defendant’s request because he wanted to calm her down and wished she would give him back the HK$500,000 he had transferred to her earlier in the same month.

46.It is not difficult to understand that, with all these intricate connections with the defendant as chronicled above, Mr X was reluctant to leave his fiancée or made a report against her despite her escalated physical abuses.

Seeing doctor near Mr X’s home after the assaults

47.The controlling traits of the defendant continued to be shown until the last incident before and during Mr X seeking medical treatment.  After the assaults and serious injuries suffered by Mr X on 28 and 29 August 2018, he for the first time sought medical treatment from a doctor.  Instead of seeing one near the venue of incident, ie the defendant’s residence in Happy Valley, Mr X, as requested and accompanied by the defendant, travelled across the harbour to see a family doctor, Dr Lo Yat On[18] (“Dr Lo”) that he had not visited before in Ho Man Tin.

48.Mr X said it was the defendant’s idea to find a doctor near Mr his place in Ho Man Tin and she also asked him not to show the stab wounds on his upper body otherwise the doctor might refer the case to the police.  Before seeing the doctor, the defendant and Mr X had discussed about how to reply to the doctor if they were asked how the injuries on the lower part were caused.  They came to the excuse of cooking which was not true.  At the clinic, it was mainly the defendant talking to the doctor.

49.All the above behaviours between the defendant and Mr X revealed that the relation was slanted and ferocious which threw light on why Mr X was unable to stand up for himself notwithstanding his dissent to the repeated assaults by the defendant.

Supported by Dr Lo’s evidence

50.Mr X’s evidence was supported by an independent witness, Dr Lo who medically examined Mr X on 29 August 2018 after the series of assaults by the defendant.  Dr Lo’s objectiveness was not challenged by the defence either.  The defence only asserted that Dr Lo had been mistaken on some facts.

51.Dr Lo did not know Mr X or the defendant before 29 August 2018.  The consultation on was the first and the only time Mr X consulted Dr Lo.  Dr Lo testified that he had a clear recollection of this particular consultation due to some special observation about this couple and he was particularly concerned about the progress of Mr X’s recovery and whether he would come back for follow up.

52.It was Mr X’s evidence that he was forced by the defendant to tell Dr Lo that he was scalded while cooking and that it was him who mentioned this to Dr Lo.  However, Dr Lo said that during the consultation Mr X did not say anything apart from nodding.  Instead, it was the defendant who do the most, if not all the talking.

53.The defence complained that there was a factual contradiction between what Dr Lo and Mr X had said in court about whether it was Mr X or the defendant who had told Dr Lo the cause of the injuries.  I find this discrepancy not a material one and understandable given the fact that the incident had happened 2 years ago.  The significant part was, both Mr X and Dr Lo depicted it was that the defendant, as opposed to the injured, who was dominating the entire conversation with Dr Lo during the consultation.

54.It is worth mentioning that Dr Lo was not shown the stab wounds on Mr X’s chest.  Neither did the defendant tell Dr Lo about these most serious injuries suffered by Mr X.  The only reasonable inference is that the defendant did not want Dr Lo to find out Mr X’s other injuries, as she was worried that the doctor might alert the police.

55.Dr Lo’s evidence was consistent with Mr X’s tesitiomy and the prosecution’s theory in that:

(a)  The defendant’s controlling characters were vividly shown;

(b)  The serious injuries of Mr X were hidden from Dr Lo;

(c)  The defendant was very concerned about the recovery of Mr X’s penis;

(d)  The discussion about a property between the defendant and Mr X was overheard by Dr Lo.

56.The defence also raised the issue that Dr Lo had made no reference whatsoever to Mr X’s bruising on the left-hand side of his face, which was said by Mr X to have been caused right before Dr Lo was consulted.  There was no evidence to suggest that the bruise already appeared on Mr X’s face when he was at the clinic.  Thus, the absence of this part of observation cannot support the defence’s argument that Dr Lo was not a reliable witness.

Hot air on penis

57.On 25 August 2018, while Mr X being naked at defendant’s residence as his usual practice requested by her, was drying the defendant’s hair after her shower, the defendant all of a sudden grabbed hold of his penis and blew hot air on it with the hairdryer.  Mr X was shocked and refused by pushing her hand away.  The defendant insisted and the hot air was directed to his penis for several seconds.  The defence challenged that such narration defies all common sense and inherently improbable.

58.The way in which the assault had been committed was undoubtedly beyond logic and norms.  Such strange and uncontrolled behaviours of what might transpire in the fragile and abnormal relationship between the defendant and Mr X as highlighted above explain the physical abuses in an addictive and progressive manner.  On the other hand, the victim would inevitably become more withdrawn and receptive at the same time.  The attack on the penis was strange but not fanciful as it may sound in the first place if one looked into the matrix of their relationship in details.  Mr X said that although there was no quarrel immediately before the hot air assault, he thought it might due to the purchase of the flat as the defendant was so overwhelmed with this matter during that particular period of time.

59.The court was also reminded by the defence of the fact that Mr X was still able to dine out with the defendant in a Japanese restaurant and take photos[19] together with her subsequent to the alleged assault.  In this regard, Mr X gave the same line of explanation that he was requested by the defendant to smile in front of the camera while he was in pain, both physically and emotionally.

Lack of medical evidence

60.It was challenged by the defence that the head-bang against the wall and by the stool lacked immediate medical evidence.  Also, there was no expert evidence to demonstrate the power and the effect of the hairdryer seized and produced as exhibit in this case.  In addition, despite the fact that Mr X was attacked by chili oil, he did not mention this to the doctors at the Ruttonjee Hospital.

61.I have considered the above comments from the defence and I find them immaterial and unable to discredit Mr X at all.  I have explained in details why Mr X failed to seek medical attention after each attack.  On the evidence, the assaults by the defendant on Mr X were numerous, some major and some minor.  It is understandable why Mr X did not put much emphasis on the minor injury like the application of chili oil.  There is no reason at all for Mr X to fabricate such small details if he wanted to perfect his accusation against the defendant.  The complaint about lack of forensic evidence to prove the power or effect of hot air from the hairdryer concerned is, with respect, trifling.

Possibility of self-harm

62.The defence relies on Dr Simon Hon King Him’s Psychiatric Report[20] dated 15 September 2019 and submitted that there is a real possibility that the injuries suffered by Mr X was self-inflicted.  Dr Hon made reference to all the statements and medical reports provided to the defence by the prosecution[21] when compiling his report.

63.It is Dr Hon’s opinion that, at the material time, Mr X suffered from an acute stress reaction.  In forming his opinion that Mr X had subjected himself to self-harm, Dr Hon had commented on the photographs provided to him regarding Mr X’s injuries.  At paragraph 44 of his report, Dr Hon opined that:

“… Some of the characteristics of the Victim [Mr X]’s injury resembles that of a typical self-inflicted injury, namely, localisation in body regions which are easily accessible to the dominant hand, symmetry, no defence or fixing injuries, multiple superficial scratches or cuts and grouped / parallel injuries. The lacerations were equally superficial, despite their considerable length and the curved body surface.”

These findings were based objectively on the photographs of PW1 [Mr X]’s injuries and medical textbooks, the defence submitted.

64.I do not find Dr Hon’s opinion above helpful at all for the purpose of this case.  First, he has not examined Mr X at all and I find his view speculative and superficial. Secondly, no evidence or expert’s opinion suggested that Mr X was suffering from any mental illness before the offences[22]. Last but not the least, the main issue of the present case is credibility of witnesses.  As a tribunal of facts, I consider the usefulness of expert’s opinion of either side[23] very limited.

65.Furthermore, when being asked by counsel from both sides more than once if Mr X would do anything for and asked by the defendant, he said in the negative without hesitation.  He reiterated his deep love to the defendant but insisted that he would only accede to her requests so long as it would not go too far and would not damage his body, family or finance.  It shows that although he was tolerant to the defendant’s unreasonable behaviours at times, Mr X did have his bottom-line in his mind.  He was just emotionally too weak and not determined enough to defend and protect himself.  Nonetheless, that does not mean that he would stupidly harm himself or consent to the defendant’s physical abuses on him.

66.Further, the version put forward by the defendant about Mr X’s self-harm, ie banging his head against the wall after the family dinner, pouring hot water over his body and stabbing his own chest by scissors was illogical.  The defence was suggesting that Mr X was doing those to urge the defendant not to go.  However, the defendant’s evidence did not suggest that she was breaking up with Mr X before the two incidents.  They were both staying in the same premises and the defendant even went taking wedding photo with Mr X on 28 August 2018.  Taking the defendant’s version to the highest, she was just thinking whether they should go ahead with the wedding and she said she needed to calm down after the family dinner having known he had signed the IOU.  It is totally absurd that Mr X would harm himself at such degree in such circumstances.  The defendant’s evidence was so absurd that Mr X’s self-harming actions were all done when the defendant was not seeing it (she said she was in the bedroom while Mr X was in the living room).  It defeated the whole purpose of Mr X seeking attention as alleged by the defendant.

Defendant’s evidence not credible

67.The defendant has no duty to prove her innocence.  Still, she chose to testify at trial.  Having carefully considered the defendant’s evidence, I found her evidence contrary to common sense as well as the undisputed facts of the case.  Bulk of her evidence was self-contradictory.  I am not convinced that she is being honest and telling the truth to the court.  On the whole, her evidence was not able to raise any doubts to the prosecution case.

Defendant’s “love” to Mr X

68.The defendant stressed in court how much she loved Mr X, in that she fell in love with him at first sight and found Mr X very gentle and clever.  She said she tried very hard to maintain her relationship with Mr X even though she had not been satisfied in sex and her father disapproved him.  She even intended to marry him in 2019 despite all the obstacles.  However, there were many parts of her evidence showing that her “love” towards Mr X was not that wholehearted as she asserted.  For example:

(a)  The defendant’s home key was never given to Mr X regardless of his frequent stay;

(b)  The defendant asked Mr X to do tattoo or sterilization but she did not do the same reciprocally;

(c)  The defendant had no attempts at all to stop Mr X hurting himself as she alleged or seek immediate and sufficient medical treatment for him;

(d)  Even after the last incident, the defendant would only allow Mr X to see a doctor far away from the scene and without telling the doctor the most seriously injured parts suffered by him.

Defendant’s sex need

69.The defendant attempted to describe a picture that she was not that demanding in sex as testified by Mr X, which was doomed to fail as such a version was contrary to her own and Dr Lo’s evidence:

(a)  She admitted practicing SM in Canada before and wanted to do the same in Hong Kong too but find people here very conservative.

(b)  She did not deny having SM tools stored in her home as testified by Mr X.

(c)  Dr Lo said the defendant had asked in the clinic when Mr X’s penis can be “used” again, as they were going to Okinawa soon.

70.On the evidence, the defendant’s extraordinary demand in sex and her preference in SM were consistent with the defendant’s sadistic behaviour in many ways towards Mr X and supported his version that all the injuries were brutally caused by the defendant out of anger.

Contrary to Dr Lo’s independent evidence

71.The defendant’s evidence on what had happened in Dr Lo’s clinic was very different from Dr Lo’s version.  The defence said that Dr Lo was mistaken which was firmly disagreed by Dr Lo.  Dr Lo said that he was “impressed” by the nature and seriousness of Mr X’s injuries and the fact that a female would be so concerned about sex.  Dr Lo also overheard the defendant saying the consultation fee was expensive and the conversation between the defendant and Mr X about purchase of a flat.  These all made him leave a clear memory on this particular consultation.

72.Dr Lo said it was the defendant who told him Mr X got scalded accidentally when cooking but the defendant said it was Mr X himself telling Dr Lo. 

HK$500,000 as a gift to defendant

73.The defendant’s answer as to why Mr X would give her the HK$500,000 was equally unconvincing.  In respect of the HK$500,000 transferred from Mr X to the defendant on 2 August 2018 near the completion of the property, the defendant said Mr X gave her the money as a gift to please her father.  On the other hand, the defendant said both Mr X and the defendant intended to emigrate to Canada or England to avoid her father and her family.  In that case, the HK$500,000 would be of great help to this plan.  It would be nonsensical to say that the couple would choose to please her father with money, contradicting to the defendant’s own version of planning to elope and ignore the family objection.

74.Also, it is a fact that Mr X, given his salary and the imminent completion date of the property, he could not afford to give this amount as an outright gift.

Foregoing the deposit

75.The evidence shows that the decision to buy the property was made up in March 2018 before they met and there has been on-going arrangement for months on Mr X’s side to complete the purchase.  Mr X just managed to settle the finance to pay the deposit by selling all his stocks and securities and borrowing money from his aunt.  It would be irrational that he, in contrast, had decided to forego the deposit as alleged by the defendant without telling anyone, particularly his aunt.  Since Mr X’s aunt has contributed to the purchase of the property, be it legally or morally, his aunt shall have a share or interest of the Lohas Park property.  It is wholly illogical to say that Mr X suddenly did not want to pursue the purchase without any sound reasons.

Downplaying her knowledge and interest in Mr X’s money and property

76.In examination-in-chief of the defendant, she has given quite a detailed analysis as to the financial capability of Mr X and reviwed his income and future earning ability and then came to the conclusion that investing in the property was not a wise decision.  Despite all the detailed consideration, the defendant stated she has no knowledge about the price of the property.

77.On the evidence, by the time Mr X decided to sell the property, Mr X would have earned at least HK$2 million[24].  On the other hand, it could also be a heavy financial burden for them after marriage if the property market plunged.  It is impossible to believe that the defendant, in her position, would not have knowledge of the subject property price and to give financial advice to her client, here her then fiancée.

78.Dr Lo also remembered that the defendant had said to Mr X something about purchase of a flat: “you have to speak to certain person clearly otherwise he or she would misunderstand he or she has helped you”.

79.Dr Lo as an independent witness, with no personal dealing with the fiancée or Mr X, would have no incentive to lie and he would not have any prior knowledge about any property dispute between the defendant and Mr X.  What Dr Lo said if not really mentioned by him, it could only be a made up story by him which coincidentally matches with the prosecution case by Mr X.  It is obvious that the defendant had mentioned the property deal in Dr Lo’s clinic.  That tallied with what was said by Mr X that the defendant’s mind was indeed occupied with matters concerning the property.

HK$500,000 not returned to Mr X

80.When being asked by the prosecution about why after the termination of the intimate relationship between Mr X and the defendant, knowing that Mr X did not earn much and could not afford buying the property, she never returned the HK$500,000 which belonged to Mr X.  She claimed that it was a gift to her and transferring money without permission would commit money laundering.  This answer was totally absurd.

81.The defendant emphasized in court that she did not want or ask for the transfer of money but it was Mr X who insisted to do so in order to pleasing her father.  With her “logic” above, Mr X was committing money laundering too when he was transferring the large sum of money to her without her consent.  As the relationship had come to an end, the defendant had no reasons at all to keep the money which belonged to Mr X, and she knew well that was a huge amount to Mr X without which, the preliminary deposit would need to be forfeited and the transaction could not be completed.  That would cause a great financial loss to Mr X and his family. The defendant was obviously lying with a view to covering up her greediness and disregard for Mr X.

Mr X hurting his own penis for better blood circulation

82.Regarding the incident occurred on 25 August 2018, the defendant asserted that It was Mr X who applied heat with a hairdryer to assist the circulation of blood in his genitals.  She claimed that Mr X was upset about his sex performance and learnt from the internet that this method may help.  When the defence said that Mr X’s version about the defendant’s assault on his penis by blowing hot air could not be more bizarre, I agree with the submission made by Mr Raffel of the Prosecution that the defendant’s version was even more ridiculous.  It was particularly so when Mr X had been taking Viagra upon the defendant’s request.  It would be impossible for Mr X not to use Viagra before trying such a weird way to treat his “erectile dysfunction”[25].

Mr X’s self-harm by banging his head and scratching his upper body with scissors

83.This version by the defendant was again senseless and contrary to her own story.  In the defendant’s own evidence, Mr X was trying so hard to please her father or they talked about relocating in elsewhere, what is the point for Mr X to keep hurting himself?

84.According to the defendant’s assertion, Mr X was sacrificing everything for her, his health, his money, his property and even hurting his own body to seek her attention and mending the relationship, why would he abruptly turn his back against the defendant and frame her up?  The defendant’s version was simply not making sense at all.

85.All in all, the defendant was telling a pack of lies and her exculpatory part of evidence could not raise any doubt on Mr X’s evidence.  Some part of the defendant’s evidence was incriminating and reinforced the prosecution case particularly the defendant’s preference in SM as well as her ruthless and abusive attitude to Mr X.

CONCLUSION

86.To sum up, the court was impressed by Mr X as an honest and reliable witness.  His evidence was consistent and cogent.  Despite the embarrassment and difficulty, Mr X managed to went through the pain and gave a coherent account of what he had gone through over a period of several months from April to August 2018, which was like a rollercoaster taking him to the highest with most spectacular height but dropping to the bottom in the blink of an eye.  Some parts of the evidence may sound unbelievable at the beginning but it became all explainable and justifiable as his story developed.

1^st Charge

87.I accept what Mr X has told the court as what actually happened at the material times.  Nonetheless, as the 1^st Charge covers two months concerning a number of assaults on Mr X’s head as well as defendant’s bites on Mr X’s body on different days, Mr X’s evidence in this connection was not very accurate, understandably due to the long lapse of time, the circumstances under which the assaults were committed and the comparatively minor injuries.  The court is not sure about which assault was committed on which occasion that may result in duplicity. As such, I, with reluctance, have to acquit the defendant of the 1^st Charge on technicality.

2^nd to 5^th Charges

88.However, Mr X said that after the earlier assaults in the initial stage of their relationship, there was no major assaults for a few months until August 2018 when their relationship turned bumpy approaching the completion of the property which got on the defendant’s nerves.

89.In respect of the following four incidents occurred in August 2018, Mr X’s evidence was clear and supported by consistent medical findings of injuries and Dr Lo’s objective observation as analysed above.  I am sure the defendant has committed all the assaults with intent as depicted by Mr X causing all the concerned injuries described in the 2^nd to 5^th Charges respectively.  I am satisfied that the prosecution has proved all the elements of the 2^nd to 5^th Charges to the standard of beyond all reasonable doubts.  I convict the defendant of the 2^nd to 5^th Charges accordingly.