HKSAR v. MAK HOI CHING also known as MAK CARMEN KA MAN and MAK KA MAN

CACC 190/2020

[2022] HKCA 353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 190 OF 2020

(ON APPEAL FROM DCCC NO 1193 OF 2018)

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J U D G M E N T

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1.  On 25 September 2020, following a trial before Deputy District Judge June Cheung (the judge) the applicant was convicted of four charges of wounding with intent (Charges 2-5) and acquitted of one charge of assault occasioning actual bodily harm (Charge 1). She was sentenced to a total term of 3 years and 5 months’ imprisonment.

2.  The applicant originally applied for leave to appeal against conviction and sentence but subsequently abandoned her appeal against sentence.

The evidence at trial

3.  At the time of the offences, the applicant was 37 years of age and the girlfriend to the victim, X, was 30 years of age. They became acquainted with each other in April 2018 through speed dating. The applicant was X’s first girlfriend and in May 2018 they started to live together in the applicant’s home. They eventually planned to get married in 2019. Before they had started dating, X had registered to purchase a flat which was successful but he had to borrow money from a relative to make the purchase. It seems the applicant was annoyed with X as to how he would finance the purchase, although she made him transfer to her $500,000 in August 2018.

4.  The judge found that the applicant was extremely manipulative and physically abusive, while X was subservient and devoted to the applicant.[1] She further found the applicant dominated X sexually and engaged in sadomasochistic behaviour.[2]

5.  It was alleged that in May to July 2018 the applicant assaulted X because she was dissatisfied with his sexual performance. The assaults involved the applicant banging X’s head against the wall and biting his upper body until he bled (Charge 1). The judge accepted X’s account as to what had happened at the material times. However, she was not sure about which assault was committed on which occasion and acquitted the applicant on this technicality.[3]

6.  On 15 August 2018, after a family dinner, the applicant was annoyed that discussion centred on her contribution to X’s purchase of the property. She assaulted X by hitting his head with a metal stool (Charge 2). He was in great pain and bleeding from the injury but did not seek medical treatment.[4]

7.  On 25 August 2018, X was naked at the request of the applicant who suddenly grabbed hold of his penis and used a hairdryer to blow heated air onto his penis. This caused him great pain and as a result blisters and scabs were formed on his penis (Charge 3). She took X to a pharmacy where they bought cream for burns to be applied onto his wounds.[5]

8.  On 28 August 2018 at about midnight, after the applicant had learnt that X had signed an IOU with his relative, she became furious and committed a series of assaults on him, including removing his blisters and scabs from his penis, pouring boiling water from a kettle onto his thighs and using a pair of scissors to stab his chest and upper body (Charge 4).[6]

9.  At about noon on 29 August 2018, the applicant again assaulted X by grabbing his head and pushing it against the wall, using a pair of scissors to stab his body and rubbing chili oil on the wounds on his chest (Charge 5).[7]

10.  It was not in dispute that X had sustained the following injuries: second-degree scalding with ruptured blisters on his penis; second-degree scalding with ruptured blisters on both thighs; head lacerations and bilateral scalp swelling, with a scar on the left temple from a previous laceration injury; right perichondral bruising injury; and multiple lacerations and abrasions over his anterior chest and abdomen.

11.  The applicant testified in her defence and denied each and every allegation against her. She said the assaults as alleged in Charges 1 and 2 did not happen at all, whereas the injuries in respect of Charges 3, 4 and 5 were inflicted by X himself.

The reasons for verdict

12.  The judge in her reasons for verdict gave a comprehensive overview of the evidence and a detailed analysis of the issues. She soundly rejected the exculpatory evidence of the applicant, which she said consisted of lies, although she noted that parts of her evidence were incriminating and reinforced the prosecution case. She found that X was an honest and reliable witness and that his evidence was consistent and cogent.

13.  The judge was satisfied to the requisite standard that the applicant committed the assaults on X as alleged and convicted her of Charges 2 to 5.

The grounds of appeal

14.  Mr Shahmin Khattak, who appears with Mr Chan Hoi Shing Chris, for the applicant, acknowledges that the major issue at trial was whether the applicant inflicted the injuries on X, or whether he inflicted them on himself. He advances two grounds of appeal on behalf of the applicant.

15.  First, the judge erred in engaging in “propensity reasoning” to reach the verdict when considering the evidence in relation to the applicant’s sexual demand and preference, and attitude and behaviour towards X, which were not the subject matter of the charges (Ground 1).

16.  Secondly, the judge erred in rejecting the evidence of the defence expert, Dr Simon Hon King-him, a psychiatrist (Ground 2).

Ground 1

17.  It is complained in Ground 1 that the judge impermissibly engaged in “propensity reasoning”. Mr Khattak contends that as the applicant had a proclivity to engage in sadomasochism, the judge reached her verdict because the applicant was more likely to have committed the offences by reason of her character or propensity. He refers to HKSAR v Zabed Ali (2003) 6 HKCFAR 192 and HKSAR v Kwok Hing Tony [2010] 3 HLRD 761. At the leave hearing, he provided further authorities to support this ground of appeal: HKSAR v Li Sui Heung [2013] 1 HKLRD 1; HKSAR v Lau Ka Shing [2020] 3 HKLRD 110; and HKSAR v Zabed Ali [2002] 4 HKC349.

18.  As rightly pointed out by Ms Ranee Khubchandani, for the respondent, Mr Khattak has misunderstood and wrongly applied the principles in these cases.

19.  Zabed Ali concerns the exclusionary rule of evidence which bars evidence of an accused’s bad character or propensity to commit the offence in question, although such evidence might be admissible if it is relevant to an issue in the case for reasons other than to show a mere propensity to commit another offence. The other cases stress that a person’s bad character should not be the basis on which a conviction should be found. I am satisfied that this did not occur in the present case.

20.  Mr Khattak is not arguing that inadmissible evidence was adduced before the judge. In oral submission, he said there was no uncharged acts; no similar fact evidence; and no bad character evidence. His complaint is that the judge misused the evidence by treating it as bad character. I am satisfied that was not the case. The background and relationship of the two was relevant evidence in respect of the offences alleged against the applicant and was extensively canvassed during the course of the trial without objection. It was an issue that went to the credibility of the applicant and X.

21.  Kwok Hing Tony concerns the unfairness that might arise when “uncharged acts” are adduced into evidence. This did not arise in this case. There was no confusion or ambiguity as to the acts that were the subject of the offences and no uncharged acts have been identified by Mr Khattak in his submissions.

22.  The judge in her reasons for verdict addressed the nature and history of the relationship between the applicant and X, which was relevant to the background and circumstances of the offences and to the defence case that X inflicted the injuries on himself because of his sadomasochistic behaviour. It was counsel for the applicant that first raised, in cross-examination of X, the sexual behaviour of X and the applicant. It was the defence case that X inflicted the injuries, the subject of Charges 3, 4 and 5, on himself and this was tied to their participation in sadomasochism. Their relationship and sexual behaviour was an issue of contention between the parties and went to their credit. It was confirmed under cross-examination that X had no previous sexual experience and this was his first girlfriend, and that the applicant had a preference for sadomasochism and enjoyed being the dominant partner sexually.[8] It was suggested by the defence that the unusual sexual practices between X and the applicant was a case of self-inflicted harm by X.

23.  In his closing submission, defence counsel said:

“68. The Court should also appreciate that there had been rather unusual sexual practices between PW1 and D and that PW1 was fully aware that D has an interest in sadomasochism.

69. The prosecution may be correct to suggest that PW1 was a ‘prisoner of love’. It might be true that PW1 was the submissive partner in the relationship. However, that does not directly point to the fact he would tolerate alleged violence merely on the basis on his lack of experience in a relationship.

…

71. … if the prosecution is correct the PW1 being a prisoner of love, it is equally possible that PW1 did inflict self-harm either to please D or as a means to plead for D’s forgiveness, typically at the time when they were on the verge of breaking up.”[9]

24.  Counsel for the applicant stressed the applicant’s evidence that the resulting injuries on X were caused by self-harm.[10]

25.  It is also important to appreciate that it was always the case at trial that this was, as submitted by counsel for the applicant, “a typical one versus one situation.”[11]

26.  The passages of the judge’s reasons for verdict on which Mr Khattack relies to argue were instances of the judge taking into account the applicant’s bad character were matters that went to the credit of X and the applicant (as to their account of their relationship and dealings with one another) as well as evidence of the background and circumstances of the offences in question. The judge carefully analysed the evidence, accepting X’s evidence and rejecting the applicant’s as to their relationship and dealings with each other.

27.  The judge at the outset of her reasons for sentence made the point that she considered the evidence of each charge separately.[12] Having accepted the evidence of X, the judge together with other related evidence found the applicant guilty of Charges 2 and 5. It was not based on the applicant’s bad character that is now being advanced under this ground.

28.  This ground of appeal is not reasonably arguable.

Ground 2

29.  It is complained in Ground 2 that the judge improperly rejected the defence expert evidence of Dr Hon, a psychiatrist. Dr Hon stated that the purpose of his report was to provide “a description of the possible mental condition of the victim” based on collateral information from the materials supplied, consisting of statements and reports from the trial bundle. He produced his report without having examined or consulted X.[13]

30.  Dr Hon purported to address whether X would engage in self-harm based on third hand materials, making very general and qualified observations. He noted that following the assaults, X attended hospital and was diagnosed to have acute stress reaction. He further noted the observation of a general practitioner that when he consulted X, he had his head down and appeared moody, which he said could be due to depressive symptoms. He made the general comment that self-harm or suicidal behaviour was associated with despair and hopelessness in acute stress reaction and with other depressive symptoms. At the end of his report he said:

“Whether or not the victim is suffering from any psychiatric illness could not be determined merely from available information. Further interview and history taking from the victim, collateral information and mental state examination on the victim is necessary.”[14]

31.  In the following paragraph, he made a comparison of the photographs of X’s injuries within an article on self-inflicted injury and stated that some of the characteristics of X’s injury resembled that of a typical self-inflicted injury.[15]

32.  In my view, the judge rightly found no benefit from Dr Hon’s expert evidence, particularly in respect to the comparison he made of X’s injuries with an article on self-inflicted injury. She said:

“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 opinion suggested that Mr X was suffering from any mental illness before the offences. Last but not least, the main issue of the present case is credibility of witnesses. As a tribunal of fact, I consider the usefulness of expert’s opinion of either side very limited.”[16] (Citations omitted).

33.  As pointed out by Ms Khubchandani, the judge cannot be criticised for refusing to give weight to Dr Hon’s report. He had not consulted X and did not provide a proper psychiatric diagnosis of him. It would appear he was also not in a position to express an opinion as to X’s injuries as it was outside his expertise in the field of forensic pathology and was based on photographs and not a physical examination of X.

34.  This ground of appeal is devoid of merit and therefore not reasonably arguable.

Conclusion

35.  I am unpersuaded that the grounds of appeal against conviction are reasonably arguable and the application for leave is refused.

36.  The applicant is informed that she has the right to renew her application for leave against conviction to the Court of Appeal, but she is also warned that the Court of Appeal has the power to order the loss of any time which the applicant has spent in custody pending her appeal, if it were to come to the view that there was no justification for the renewal of the application.