HKSAR v. W.N.M.
Read the full judgment text of DCCC 335/2022 on BabelCite. This District Court judgment was delivered on 17 October 2023.
1. The charge sheet contains a total of 4 charges including alternative charges. D1 has pleaded guilty to Charge 2, which is the alternative charge to Charge 1. He is to be sentenced upon the conclusion of D2’s trial. D2 faced only one count of ill-treatment or neglect of child by person in charge of that child, contrary to section 27(1) of OAPO, Cap 212 (3 rd charge), and she pleaded not guilty to the charge. Upon conclusion of the trial, I now deliver the reasons for verdict.
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DCCC 335/2022 [2023] HKDC 1600 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 335 OF 2022 ________________________
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________________________ Reasons for Verdict ________________________ I. Introduction 1.The charge sheet contains a total of 4 charges including alternative charges. D1 has pleaded guilty to Charge 2, which is the alternative charge to Charge 1. He is to be sentenced upon the conclusion of D2’s trial. D2 faced only one count of ill-treatment or neglect of child by person in charge of that child, contrary to section 27(1) of OAPO, Cap 212 (3rd charge), and she pleaded not guilty to the charge. Upon conclusion of the trial, I now deliver the reasons for verdict. II. The Prosecution Case 2.Charge 3 relates to the ill-treatment or neglect of X, daughter of D2 and who was aged 5 at the material time, over a period of time from May 2020 to 6 July 2020 when the offence was unearthed. 3.Pursuant to section 65C of Cap 221, the following facts are admitted:-
X’s Evidence 4.The interview footage of X’s interview (P13) is her evidence in chief pursuant to section 79C of Cap 221. Some of the entries from the transcript of the interview are listed hereunder:-
5.Upon application and without any objection from the defence, leave was granted for X to answer a few questions as evidence in chief via television link under section 79B. 6.X said not long after being scalded, she did tell her mother about it on the same day. X told D2 that it was D1 who did it. D1 and D2 applied ointments on X’s injuries for a week. X did not take any pills or oral medication. Usually it was D2 who prepared food for her. 7.X was asked a few questions under cross-examination. X recalled that soon after X got scalded, D2 came to the toilet the second time to urinate. D2 used toilet paper to clean. D2 held the showerhead to shower X with cold water. Witness statement of Leung Kit-lum under section 65B 8.The edited witness statement of Ms Leung Kit-lum (Leung), a social worker, dated 8 July 2020, was tendered under section 65B of Cap 221 and marked as P12 with the translation as P12A. 9.She was assigned to work as the school social worker of a kindergarten in September 2019. On 15 January 2020, Leung learnt that X was transferred to another kindergarten to study. Between late-January and early February 2020, she contacted F.S.L. (D1) who told her that X was a child difficult to be taken care of. Later, Leung could not reach F.S.L. as her calls were not answered. 10.On 29 May 2020, she was able to reach D1 on the phone. Leung found it suspicious that she was told that X was transferred to a kindergarten in Kowloon Tong, but upon checking, that was not true. 11.On 3 June 2020, Leung contacted D1 but he rejected to allow Leung to talk to X via video call. Later, Leung noticed a news coverage about D1 and that raised her concern about X’s well-being. A report was made to Family and Child Protective Services Unit on 20 June 2020. 12.On 5 July 2020, Leung arranged a home visit with D2. Leung was able to see X in the flat in To Kwa Wan and discovered the scald wound. X said the wound was inflicted by herself when having a bath. X’s Medical Reports (P6, P7 and P8) 13.On 6 July 2020, upon examination, Dr Lun discovered that “there was an old scald injury with poor healing, with extensive involvement of right face and neck, right shoulder and arm, right upper back, right chest and abdomen, and left foot dorsum. No signs of active infection was over the wound.” (P6) 14.A further medical report dated 11 June 2021 was prepared by Dr Lun. X stayed in the hospital for 10 days (from 6 July to 16 July 2020) for wound management (dressing and assessment by Wound Nurse) and awaiting social investigation. Her medical condition was all along stable and required topical dressing and oral antibiotic. The physical complication she had from the scald injury was scaring with possible limitation of movement. (P7). 15.A supplementary medical report dated 14 July 2021 was prepared by Dr Chiu (P8). Dr Chiu was of the view that the caretakers of X should seek immediate treatment after the incident. The delay in proper scald wound management might result in wound infection and poor wound healing. From the observation during her admission to QEH on 6 July 2020, which is around 2 months after the incident, the scald wound was not healed and there were multiple blisters and serous discharge. There was also superimposed infection to the wound. It showed that the wound care was inadequate. The wound only improved after proper management by the wound nurse. A course of oral antibiotic was also given for the wound infection. X’s wound was extensive, involving a large area over right upper chest, back and shoulder area. X did not receive proper and adequate treatment for the scald injury, which resulted in persistent discharge and poor wound healing around 2 months after the incident. The wound should be handled by medical professionals. The welfare of X was compromised as she did not receive timely wound management after the injury. D2’s Video-recorded interview on 16 November 2020 (P5, P5A and P5B)
III. The Defence’s Case 16.There was no half-time submission. The Court ruled that there is a prima facie case against D2. D2 elected to give evidence, and called 2 witnesses. D2’s Evidence 17.Usually D2 would test the water temperature before showering X. She was the only one helping X to shower. On the day in question, while D2 was showering X in the bathroom, she went to answer a phone call. 18.While D2 was answering the call, she heard D1 saying “don’t touch the water button”. When she returned to the bathroom, she saw X scalded. She was quite scared. She believed D1 has switched to cold water and by then X was holding the showerhead. D1 then left the bathroom and said he needed to buy some medicines to clean X’s wounds. 19.D2 took the showerhead from X, and tried to cool X down. She was sitting on the toilet bowl next to the showering area. Contrary to what was said by X, D2 did not urinate at that time. 20.D2 does not have any medical knowledge. She could not recall the actual date of the tragic scalding incident, but believed it was at the end of May. She was too frightened. 21.D1 returned home in about 10 minutes after buying some stuff from the pharmacy shop. D2 claimed that D1 stopped her from seeking medical treatment for X. D1 told her that first-aid should be applied first. D1 also said that because of the COVID pandemic, it was risky to go to the hospital. D1 also mentioned about D2’s fight for X’s custody with her ex-husband. D2 was frightened that she could not see her daughter again. 22.D2 said she believed that D1 did talk to his doctor friend about the way to treat X and the doctor friend would follow-up. 23.D2’s education level was up to Form 5 and worked in the beauty care field. There was a pharmacy store nearby. D1 came back with bandages, gauze, saline, ointments, medical cotton and Panadol for fever. Photo P11(1) is the burning cream that D1 bought. D2 said there was another ointment which contained steroids. D2 did not know why D1 took the photo. 24.D1 also asked D2 to take a photo of X’s injuries with D1’s phone. D2 did not know why, but D2 thought the photo was to be sent to the landlord of the flat. D1 wanted to tell the landlord that X got injured because of the malfunctioning of the heater. D2 said the photo was taken one day after the incident. D2 said the doctor friend that D1 talked to is called Dr Lo. D1 talked to Dr Lo to see if the way D1 handled the wound was okay. 25.D2 also said that D1 told her that he was a practicing barrister returning from Canada. D2 met D1 on a social internet platform called “UpLive” back in November 2018. D2 was the host of this platform. In December 2019, D2 started to live with D1 together in Stanford Hotel. 26.D2 brought along her jewellery to the hotel room. D1 told D2 that D2’s jewellery was contaminated with evil spirit. D1 would take the jewellery to see his “Mao Shan” master or grand master for purification. D2 agreed, and she did not see those jewellery again. 27.D1 and D2 moved to the flat in North Point in January 2020. In late January, D1 told D2 that there were signs of unauthorised usages of D2’s credit cards. He asked D2 to hand over all her credit cards to him. 28.D1 was arrested on 2 July 2020. The Police found a hidden compartment on the ceiling of the flat. D2 recovered 2 of her credit cards. D2 then checked via online banking and found there were cash advance withdrawals, and there were loans of over $200,000. D2 believed D1 got the PIN of her online banking. D1 at one time, told D2 to go to each bank to ask the bank to resend the password to D2. 29.During the COVID outbreak, D2 lost her job later while D1 said that he worked from home. 30.D2 said after having a relationship with D1, she cut her ties with her friends and even family members. D1 cancelled D2’s IG and Facebook accounts and even changed D2’s phone number. D1 also alleged that he was involved in a lawsuit and asked D2 to pay his legal fee of $14,000. D2 gave the money to D1. D2 did not get any fee note. 31.D2 also said because of clogging of the drainage pipe, she had to pay compensation of $30,000 to the neighbours affected. D2 gave the money to D1. 32.After D1 was arrested, D2 felt suspicious and checked her account. She made a report to the police. D1 was convicted of certain criminal charges. 33.D2 did borrow money in the sum of $30,000 from her friend, Coty So. D2 also believed that D1 would pay for the rent of the flat. However, D1 said he was suspended from practising since February 2020. 34.Coty later came to visit D2 and saw D1. D1 told Coty that she was likely to be haunted and needed to see his “Mao Shan” master to exorcise ghost inside her. At the end, Coty was asked to pay $20,000. Coty found it too pricey and eventually Coty gave $5,000 to D1. 35.D2 also said D1 was the god son of a big brother of a triad society. After D1 was arrested, D2 discovered a sheet of paper (MFI-1) in which the phone number of Mr Chow, a social worker, was written. D2 called Chow immediately. D2 had lost the contact list as D1 changed D2’s phone. D2 said she and D1 brought X to school every morning of the school days. 36.D2 did not contact her mother too, as D1 said D2’s mother was helping her ex-husband to fight for the child’s custody. D2 later discovered that D1 was lying. 37.D2 said at times D1 treated her badly and D2 was assaulted both physically and sexually. But D2 did not make a report to the police. 38.Under cross-examination, D2 said she has been working for 12 years. It was D1 who made the arrangement to transfer X to the kindergarten in North Point. D1 accompanied D2 to the phone service centre to change the phone number. Usually, D2 worked from 12 noon to 9 pm at a beauty shop and D1 called her all the time. D2 believed that D1 was protecting her. 39.D2 could get a few thousand dollars per month through her platform at “UpLive” on the internet. At D1’s suggestion, D2 used D1’s phone to take a photo of X, P11(4), as D1 said, the landlord needed to be told of the incident and there was a problem of the heater. From the record, the phone was taken on 28 May, but the photo was taken about 3 days after the incident. Hence, D2 agreed that the incident was probably happened on 25 May. 40.D2 felt very bad to see X got hurt. She was frightened and did not know how to handle it. She was worried about the time for X’s recovery. D2 did not contact her ex-husband about the incident. However, D1 had talked to D2’s ex-husband about the maintenance payments. In January 2020, X’s custody was granted to D2, but after February, D1 said D2’s ex-husband tried to get X’s custody back. D1 would ask a lawyer to handle the matter but D2 could not contact the lawyer. D2 did not tell her ex-husband the new address in order to cut off the link. D2 said D1 told her that her ex-husband had touched X’s private parts. D1 also told D2 that her ex-husband taught X to touch D1’s private parts in order to gain favour from men. Hence, D1 suggested to approach Leung, the social worker. D2 did ask X about this matter in January 2020, and X said he tickled her. D2 did not report to the police saying that D1 said they did not have solid proof which made it ‘meaningless’ to report. D2 thought there may be misunderstanding. 41.D2 sought advice from Leung who told D2 to buy books to tell X what part of her body could not be touched and the way to protect X. That’s a kind of general sex education to a 5 year-old girl. Leung did not make a report to the police. 42.D1 gave D2 cash at irregular intervals. But D2 found out that the money was from her bank account. She did not ask D1 about the source of money. D2 gave 2 sums of money ($30,000 and $14,000) to D1. D2 said she and D1 went to goldsmith shops and used her new credit card to buy gold jewellery and then resold the same for cash in another shop. 43.At one time, D2 was contacted by her elder brother. D2 also contacted her mother once. D2 and X moved to live with her mother in To Kwa Wan in July 2020. 44.D2 said she arranged Leung’s home visit. D2 left her new contact number to the principal of the kindergarten and expected the principal to contact Leung. At that time, D2 realised that she was defrauded. She was confused and needed Leung’s help. 45.Back to the scalding incident, D2 maintained that a large part of X’s skin got red and the skin peeled off the next day. D2 did not know X’s wound was so serious. D2 agreed that X needed immediate medical treatment. D2 said at that time, X did not say D1 scalded her but just that uncle told her not to mess around with the water switch. When X was brought to the hospital, X told D2 that she did not mess around with the water switch and it was uncle who turned on the hot water switch. She agreed that X was telling lies to protect D1. 46.From late-May to July, D2 assisted in cleaning X’s wound. At the beginning, it was about two times a day. D2 agreed that she should have called 999 when D1 was out to buy stuff from the pharmacy shop that day. 47.Later, D2 added that she also got some syrup for treating X’s fever as she found X had a fever on the night of the incident. D1 told her that the syrup contained anti-inflammatory effect. D2 also said D1 did not allow her to leave the flat even though D1 did not lock her up. D1 told D2 that he had asked some of his “kids” stationed around the flat to monitor D2. D2 was frightened and dared not to leave the flat. Literally, D1 falsely imprisoned her. About one week after the incident, D2 wanted to take X to see a doctor as X’s injuries were serious. 48.On 9 June 2020, D2 agreed that she had a staycation holiday with D1 and X in a hotel. D2 could not recall who took the photos (P14(1) to (17)). It could be X. D2 took a photo of X when she was having a bath in the hotel. D2 saw D1 pay the hotel bill with cash. Later, D2 discovered that cash advance was extracted from D2’s credit cards. 49.D2 did not mention the name of Dr Lo in her VRI. She did not send photos of X’s injury to Dr Lo and thought D1 had done so. D2 did not tell D1 to send Dr Lo to see X. D2 saw X’s condition improved later. 50.When D1 was arrested on 12 July 2020, D2 still did not take X to see a doctor. D2 agreed that from the photos of X taken at the time X was admitted into the hospital, X was still far from recovery. In July, all classes in schools in Hong Kong were suspended. D2 did not agree that she failed to provide proper medical treatment to X. She thought the treatment was proper. 51.D2 said when she re-entered the bathroom upon hearing X scream, D1 did explain to her before D1 left the flat to buy medication. D1 said X messed around with the water switch. He told X not to do so. As X got scalded, D1 had to go out to buy medicine. D1 told D2 to cool X down with cold water. DW1 Chow Cheung-shun 52.He knew D2 for more than 6 years. In mid-January 2020, a man called him saying that he was D2’s fiancée and a barrister. That man alleged that DW1 had raped D2 and destroyed her family. That man called him frequently, nearly 6 times a day. He asked DW1 to go out, and eventually DW1 blocked the phone. DW1 then made a report to the police a few days later. DW1 was unable to reach D2. DW1 did not know anything about “UpLive”. DW2 So Ching-han, Coty 53.DW2 was the former colleague of D2 for some 7 years. In January 2020, DW2 lost contact of D2. In April 2020, D2 contacted DW2 by WhatsApp and indicated that she wanted to borrow $30,000 because her kid had clogged the toilet. DW2 gave the money to D2’s boyfriend. 54.Later DW2 went to D2’s flat in North Point to have a meal. D2’s boyfriend claimed to be a lawyer and knew something about Mao Shan Taoism. Later, DW2 got a WhatsApp message from D2 (with D2’s phone number 70738219) who said D1 said a ghost was stalking DW2. 55.DW2 was asked to pay $20,000 to exorcise the ghost, but eventually DW2 paid $2,000. IV. Analysis of Evidence 56.All along, the Prosecution has the onus to prove the case against D2 who has no duty to prove anything. D2 has a clear record in Hong Kong. That means she has a good character and her credibility is higher while her propensity to commit any crime is lower. The fact that D1 has pleaded guilty to one of the charges will not adversely affect the court’s assessment of D2’s case and/or cause any bias against D2. 57.D2 was charged with Charge 3. It was alleged that between May 2020 and 6 July 2020, D2 together with D1, wilfully ill-treated or neglected X in a manner likely to cause X unnecessary suffering or injury to her health, namely, by failing to provide adequate or proper medical treatment to X. 58.Defence counsel for D2 said it is not in dispute that X was injured by D1 in the shower incident that happened in late May 2020. It is not in dispute that neither D1 nor D2 took X to the hospital and/or any medical doctor for treatment during the period. 59.Defence counsel stressed that the court needs to assess the state of mind of D2 at the relevant time, in particular, the “dynamics of the relationship between D1 and D2”. It was submitted that D2 was simply a gullible single mother. From the moment D2 met D1, D1 had already put up a fake persona with sinister and dishonest intentions. “The power of imbalance within this relationship stemmed from the very beginning” when D1 proclaimed that he was a barrister returning to Hong Kong to work. D2 had an abundance of misplaced trust in D1. D1 deliberately cut off D2’s ties with other contacts, including D2’s family members. D1 claimed that he was the god son of a big brother of some kind of a society, and had connection with a master of Mao Shan Taoism. D1 cheated D2 financially and sentimentally. D1 manipulated D2, and D2 was frightened to leave the flat. D1 controlled D2 “psychologically through her belief of supernatural and through constant digital and physical monitoring of her ongoing”. 60.On the day of the shower incident, D2 was scared but was dissuaded by D1 from taking X to the hospital or to call 999. D2 firmly believed that D1, after consulting his doctor friend Dr Lo, could treat X properly. Defence counsel submitted that “at no point did D2 intentionally withhold medical treatment from X in order to cause her further suffering”. 61.The defence submitted that D2 was credible and reliable when testifying in court. D2 was naïve as she placed her trust in D1, a bad man, and her stupidity caused her to act in an innocent but misguided manner. 62.So much blame was put on D1 for being manipulative, cunning, deceitful and greedy partner of D2 at the material time. D1 literally controlled D2’s life during the material period. 63.There is no slightest doubt that D1 showered X with hot water which caused extensive scalding of X, especially, the right side of her body. The photos taken by D2, one or two days after the incident as said by D2, speak volumes of the sufferings and pain of X. X’s skin was literally peeled off from her body. The scars as evidenced by the photos taken in early July can still demonstrate the extensive scalding effect of the burns. 64.D2’s attempt to put the blame on D1 in order to exonerate her role in this tragic incident is an affront to common sense and right conscience. The evidence of DW1 and DW2, in my view, is of little assistance to D2’s defence. I also believe that it was the initiative of Leung, the social worker, to bring this incident to light. 65.D2 may well be sentimentally attached to D1 and was willing to be manipulated by D1. That does not mean she was not in a position to exert her maternal care and love to her only daughter X, aged about 5 at that time. 66.D2 gave evidence in court. I find her evidence not credible and take the view that she is not a reliable witness. The following points, which are not exhaustive, can support my finding:-
67.As D2 is not a credible witness, the court has to rely on those evidence put forward by the Prosecution to see if D2 did ill-treat or neglect X. D2 was the one having the custody, charge and care of X. 68.Given the medical examination of X on 6 July 2020, it is without doubt that X was having unnecessary suffering or injury to her health since late May 2020 when the scalding incident occurred. Not only X was not receiving proper medical care and treatment, X could have permanent scarring and/or further complications regarding body movement. 69.X said when D2 returned to the bathroom right after X was being scalded, D2 went to urinate. I accept this piece of evidence. That also shows that D2’s cold reaction to X suffering. 70.When X’s condition was not improving, D2 did not take X to the hospital or to see a doctor. It is common sense that if a child got burnt severely and when her skin started to peel off, it can raise an alarm, not to mention that X was having a fever a few days after the incident. As Dr Chiu has remarked in his report (P8), “the delay in proper scald wound management might result in wound infection and poor wound healing”. When X was admitted to the hospital, the scald wound was not healed and there were multiple blisters and serous discharge. There was also superimposed infection to the wound. 71.That was over one month after the scalding incident. How could a reasonable person still feel that X was alright or improving? How could a mother still feel that X was not suffering, especially in those early days right after the tragic incident? 72.I am of the view that the theft of jewellery, the fraudulent use of D2’s credit cards and the so-called legal fee and repair costs, as alleged by D2, together with the alleged abuses towards D2 by D1, could never be used to exonerate D2’s responsibility towards X. 73.Taking the totality of evidence as a whole, I find that D2, being the mother of X, wilfully ill-treated and neglected X in a manner likely to cause X unnecessary suffering or injury to her health in that she failed to provide adequate and proper medical treatment to X during the period between late May 2020 and 6 July 2020. 74.D2 did not provide immediate and proper medical care to X on the day when X was scalded. D2 did not take X to the hospital or to see a doctor from late May to 6 July 2020. D2 did not make a report to the social worker and/or the principal of X’s kindergarten in time, even though strictly speaking D2 did not have the duty to do so at that time. Had the social worker failed to spot the injury on X at the home visit, this offence might not be discovered, and justice would not be done to X. V. Conclusion 75.I find the Prosecution has proved the case beyond reasonable doubt against D2. I convict D2 of Charge 3.
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Cases cited in this judgment
Further hearings and rulings under DCCC 335/2022