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

DCCC 1193/2018

[2020] HKDC 1000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1193 OF 2018

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REASONS FOR SENTENCE

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CHARGES

1.  The defendant 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.  After trial, she was found not guilty of the 1^st Charge but guilty of 2^nd to 5^th Charges.

2.  I will not repeat the facts of this case.  All the circumstances in which the victim (Mr X) was assaulted, I have referred to them in full in my reasons for verdict[1]. The convicted 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.

FACTS OF THE CASE

3.  Mr X, aged 30 at the time of the offences, was the defendant’s boyfriend.  They knew each other in April 2018 through speed dating.  All offences were taken place at the defendant’s home located in Happy Valley on various dates in August 2018.

Relating to 2^nd Charge

4.  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 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

5.  On 25 August 2018 when Mr X, 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. After that, 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

6.  On 28 August 2018 towards midnight, after the defendant learnt Mr X had signed an IOU with his aunt, 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 directly onto his thighs and using a pair of scissors to stab his chest and upper body.

Relating to 5^th Charge

7.  At around noon the next day (on 29 August 2018), the defendant again assaulted Mr X 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.  Later on that day, the defendant accompanied Mr X to see a doctor, 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. Mr X saw his aunt the next day and the above incidents were disclosed. The case was then reported to the police.

INJURIES SUFFERED BY MR X

8.  There is no dispute that Mr X was found to have the following injuries when he was medically examined on 29 and 30 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.

DEFENDANT’S BACKGROUND AND MITIGATION

9.  The defendant is currently 39 years of age.  She was a unit manager of an insurance agency before the offence earning approximately HK$50,000 per month. It was said that the defendant’s employment contract was terminated in July 2020 and she was no longer eligible working in the insurance or finance sectors.

10.  The defendant had a previous criminal record of “Assault Occasioning actual bodily harm” in July 2013 and was fine HK$5,000.  I was told that the victim was defendant’s helper.

11.  Further, it was said on her behalf that the defendant had suffered tremendous stress brought about by the wide publicity of the present proceedings.

12.  In mitigation, it was also said by the defence that there was no evidence suggesting there were permanent or debilitating injuries suffered by Mr X.  Mr Richmond, counsel for the defendant asked the court to consider the sentence in the context as a case of domestic violence in which frustration from relationship has boiled over even where there is genuine underlying affection.  Neither were the assaults more than impulsive attacks.

13.  Submitted to the court were also mitigation letters written by defendant’s parents, friends, ex-colleagues and ex-boyfriend.  They are all supportive to her and committed to assist her to the fullest in her rehabilitation.

DEFNENDANT’S MENTAL STATE

14.  I have called for a background, psychiatrist’s and psychologist’s report before sentencing.  In short, there is no psychiatric or psychological explanation or diagnosis to explain her abuse towards Mr X.

15.  The defendant has consulted two private psychiatrists after she was arrested.  She was prescribed with some medication by a Dr Cheung but the defendant complained of dizziness with muddled thoughts after taking the pills.  She therefore discontinued the medication and treatment. She also received counselling service by a Dr Miao after the arrest who opined her to have “stress reaction” in July 2020.

16.  There were two episodes of defendant’s self-harm, respectively in late 2019 and July 2020, precipitated by the stress of court hearing.  She had plans of burning charcoal in late 2019, but the idea was aborted after her father offered counselling to her.  She tried to attend some positive psychology classes and her friends and family were supportive. Her mood gradually improved.

17.  In the course of the present trial, I was told that the defendant had consumed two bottles of alcohol together with more than 20 tablets of “drugs” at home.  She was then brought to a private clinic and the trial was adjourned for a day before the defendant confirmed that she was fit to carry on with the trial.

18.  Dr Dorothy Tang of Siu Lam Psychiatric Centre opined that the defendant likely has adjustment reaction, precipitated by the stress of court hearing. Despite her self-harm gestures, no pervasive mood disturbance was reported or observed in Siu Lan Psychiatric Centre.  No impatient psychiatric management is warranted but outpatient follow up for counselling and stress coping strategy is recommended.

19.  Miss Sarina Lam, the Clinical Psychologist, said that the defendant did not suffer from major psychopathology.  She did encounter lots of adjustment issues after her present arrest resulting widespread media coverage, conviction and possible imprisonment.  Psychological follow up is recommended.

INSIGHT AND REMORSE

20.  The psychiatrist, psychologist and the probation officer said in the respective report that the defendant continued to deny the offences.  The defendant insisted that the injuries were self-inflicted by Mr X himself.  Stressing she was innocent, the defendant insisted that she was only wrong in not stopping Mr X to harm himself.

21.  It is of note that the defendant said in the above reports that in respect of her previous criminal record concerning the assault on her previous helper, she excused that she was drunk at that time and accidentally hurt her after quarrelling with her.

22.  Obviously, the defendant lacks reflection of her violent characters and behaviours towards others.  In my view, the defendant is short of insight of what she has done wrong and has not shown a shred of remorse or guilt.

PSYCHOLOGICAL IMPACT ON MR X

23.  Mr X attended East Kowloon Psychiatric Centre on 17 March 2020 for assessment.  Dr Benjamin Lau, the Senior Medical Officer, observed that subsequent to the incidents, Mr X’s mood became low and anxious. He also had initial insomnia, reduced energy and drive, impaired concentration, intrusive recollection of the event and avoidance of Happy Valley, where he and ex-girlfriend cohabitated.  These symptoms gradually subsided after Mr X started to receive regular counselling by a social worker in Caritas Social Service. From October 2019 onwards, his mood became normal with more energy and drive. Intrusive recollection of the incidents has subsided but he still recollected about the experience when he came into contact with related cues.  He continued to worry about facing the defendant in the future as he thought she was a dangerous person.  Mental state examination revealed that Mr X was of normal mood and free of psychotic symptom. No medication was prescribed and he was subsequently referred to the clinical psychologist for psychological treatment.  Mr X suffered from partially remitted Post Traumatic Stress Disorder and the incidents in question were the main etiological factor of the disorder, as diagnosed by Dr Lau.

24.  Before the trial proceedings, Mr X applied for screen when giving evidence which was granted by the court[2].  During his evidence, he burst into tears on a number of occasions and he was observed trembling at times when uttering the details of the assaults.  Apparently, there was no serious psychotic or psychological problems after the events.  However, the emotional trauma suffered by Mr X can hardly be imagined and repaired given his characters, background and what he had experienced in this relationship.

CONSIDERATION OF SENTENCE

25.  There are no sentencing guidelines set out for the present offences.  The appropriate sentence to each case would very much depend on the specific circumstance of the case as the facts can vary infinitely.  The usual sentence of the present offence is however ranged between 3 and 12 years of imprisonment as observed by the Court of Appeal in HKSAR v Yuen Wai Kui[3] and confirmed in HKSAR v Wong Luk Sau[4].

26.  The Court of Appeal in HKSAR v Chan Chun Tat[5] provided a list of non-exhaustive factors relevant to the sentencing of the present offence as follows:

(a) The extent to which the assault was premeditated;

(b) The reasons or motivation underlying the result upon the victim;

(c) The mental or emotional state of the assailant at the time of the assault;

(d) Whether alcohol or drugs contributed to the actions of the assailant;

(e) Whether the assault was committed by the assailant alone or as part of a group;

(f) The type of weapons employed;

(g) The level of force or aggression and persistence with which the assault was pressed home;

(h) The injuries caused to the victim;

(i) The effect of the assault upon the victim and those close to him or her.

27.  I have considered all the mitigation put forward on behalf of the defendant and the mitigation letters written for her.  They are letters of support and of her good character.  I also noted the evidence of charitable donations made by the defendant.  The contents of the letters and the mitigation I have heard however do not tally with my findings that the defendant was cruel to Mr X.  The letters paint a very different picture of the defendant which portray a kind person, a loving girlfriend or daughter and a considerate friend.  However, these are letters written by the defendant’s parents and friends, it is understandable that they would see a very different side of her.

28.  It is a shame that the defendant has been adversely affected by the publicity of this trial, and I do sympathise with widespread coverage and the far reaching consequence connected to the case both to the defendant, Mr X and their respective families.  I have no doubts the defendant has fallen from grace as she previously had a promising career in the insurance industry, and the respect of her equals and peers.  The clang of prison gate is certainly something tough for her to take.

29.  I take into account the facts of each charge and the ordeal and pain, both physical and emotional, suffered by Mr X.  It is only fortunate that there are no permanent injuries suffered by Mr X and the injuries were not of the most serious types.  Of the assaults, I agree that there has been no evidence suggesting premeditation. However, the weapons used, including the metal stools on head and scissors on chest were dangerous. Further, the various ways in which Mr X was assaulted exhibited sheer insults to him and no mercy at all from the defendant, for example pouring hot water over the lower part of his body and removing scab from his penis when it was just recently burnt by the hairdryer.

30.  On the evidence, all the assaults were not provoked by Mr X.  At most, the defendant was primarily not happy about the finance arrangement of Mr X with his aunt and may be his submissive character towards them.  The degree of violence was in no way warranted and obviously the seriousness of the assaults was progressively aggravated.

31.  The seriousness of the charges and the circumstances of the offences mean an immediately custodial sentence is the only appropriate sentencing option.  I will take into account the totality principle but also that there are differing charges that took place on divers dates.  Obviously, as the defendant is convicted after trial, she will receive no discount from the starting point I consider appropriate.

SENTENCE

32.  Having considered all the circumstances and the totality principle, I impose the following sentences:

For the 2^nd Charge, I impose a term of imprisonment of 2 years, 4 months of which to be served consecutively to the sentence of 4^th Charge;

For the 3^rd Charge, I impose a term of imprisonment of 1 year, 3 months of which to be served consecutively to the sentence of 4^th Charge;

For the 4^th Charge, I impose a term of imprisonment of 2 years 6 months;

For the 5^th Charge, I impose a term of imprisonment of 2 years, 4 months of which to be served consecutively to the sentence of 4^th Charge.

33.  Therefore, there is a total sentence of 3 years and 5 months’ imprisonment for 2^nd to 5^th Charges.