HKSAR v. CHENG KA WAI

DCCC 263/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 263 OF 2016

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REASONS FOR VERDICT

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Charges

1. The defendant pleads not guilty to Charges 1 - 8.

2. Charge 1 is Assault Occasioning Actual Bodily Harm (later amended to Common Assault); Charge 2 is Criminal Intimidation.  These two counts relate to an incident allegedly occurred in March 2011.  (Incident One)

3. Charge 3 is Assault Occasioning Actual Bodily Harm; Charge 4 is Criminal Intimidation.  Both relate to an incident allegedly occurred on 31 August 2013. (Incident Two)

4. Charge 5 is Assault Occasioning Actual Bodily Harm; Charge 6 is Criminal Intimidation; Charge 7 is False Imprisonment; and Charge 8 is Criminal Intimidation. All relate to an incident allegedly occurred on 5 April 2014.  (Incident Three)

5. In all counts except Charge 6, the alleged victim is X (the defendant’s ex-girlfriend); in Charge 6, the alleged victim is Y (X’s mother).

Dispute

6. The defendant denies he assaulted or intimidated X in the three incidents.  He also denies he restricted the movement of X or intimidated her mother Y in Incident Three.

7. In the trial, the defendant elects not to give evidence. In cross-examination, his counsel puts the Defence case as (i) Incident One did not happen; (ii) in Incident Two and Incident Three X went wild and got injured somehow in her scuffle with the defendant; and (iii) in Incident Three the defendant did not restrict X’s movement in the premises or threaten Yon the phone.

Prosecution case

8. Prosecutor has called four witnesses: X, Y, Cindy and Dr Li.

9. There are prosecution exhibits P1-P10.  Among them:

P6 is a set of 14 photographs: Photos 1-2 show X’s injuries in Incident Two while Photos 3-14 show X’s injuries in Incident Three; P6A is a working copy pen-marked by X of her injuries; P6B is a set of clearer prints without any marking.

P8(1-10) are some of the WhatsApp messages between X and the defendant [the English translation is P8A(1-20)].

X

10. X is aged 31 now.  She had worked in a fitness centre as instructor. The defendant was her manager.  They met in 2005 and became intimate in 2007. In that year, they started cohabiting.  Later, they moved to live in a Cheung Sha Wan flat (“the premises”), where the three alleged incidents occurred.

Incident One

11. X says that one night in mid-March 2011, she and the defendant had dispute in the premises about love affairs.  She accused him of having a girlfriend.  The defendant tried to hit her.  She avoided him. But he grabbed her wrists and slapped her four to five times. She was also pushed her to the floor. Afterwards, both went to sleep at different corners of the premises.

12. X says she did not check whether she had been injured, so she did not notice any marks on her body.  The next morning, she went to work. The defendant sent her a photo [P5(15)].  It was a nude photo of X taken by the defendant when the two were intimate on bed on an earlier date.  X was astonished because when the defendant took nude photos of her, he promised to delete them later. 

13. There was no message accompanying the incoming photo. X called the defendant to ask why he sent that to her.  The defendant said if she reported to the police that he had hit her, he would post the photo on the internet to shame her.  X begged the defendant to delete the photo.  The defendant just answered, “Let’s see”.

14. X says she told her piano instructor Cindy the following day.  Cindy was also a fitness student of hers and knew the defendant too.

15. X says she moved out of the premises after a month but returned by the end of April 2011.

Incident Two

16. At the small hours of 31 August 2013, in the premises, X and the defendant argued again over the latter’s unfaithfulness.  The defendant slapped and punched X’s face several times.  He also pushed her to the floor.  X requested to move out.  The defendant said if she left and called the police, he would upload her nude photos on the internet.  The defendant also demanded X to repay the money she still owed him.  He said he would make it impossible for X to get a job in the fitness business.  X was very frightened.  Afterwards the two went to sleep, again at different corners of the premises.

17. When X woke up, the defendant had left the flat.  X found her nose and lips injured.  She used her mobile phone to take two photos [P6 (1-2)] of the injuries and sent them to the defendant.  The defendant called X to ask why she sent him the photos.  He asked if she wanted to call the police.  X said she felt painful and uncomfortable.  The defendant just told her to rest at home.

18. X says she also sent the two photos to Cindy and complained to her about this assault. 

19. Due to depression, X started seeing a psychologist Dr Chan in September 2013.

Incident Three

20. In the small hours of 5 April 2014, in the premises, the defendant told X about his new girlfriend.  The two quarreled. The defendant at one point snatched the mobile X was holding.  He squeezed her neck and slapped her no less than fifty times.  He punched and kicked her abdomen, thighs and shins.  He also stepped on her pelvis.  X begged the defendant not to hit her but to allow her to leave.  She was on the floor and tried to crawl to the doorway.  The defendant, however, pulled her back by her legs. He guarded the door and put on the locking device.  X asked the defendant to call her mother Y to come to pick her up.  The defendant then used X’s mobile phone to call Y.  X heard her mother’s voice on the phone but she did not get the conversation between Y and the defendant. The defendant appeared angry.  He told X that Y could not come to fetch her. 

21. X repeatedly asked the defendant to let her leave. She promised not to call the police. The defendant finally called his sister Kerry, who arrived an hour later at about 4:30 am. X complained the defendant had hit her but Kerry said she had not seen them fighting. Instead, Kerry accused X of hurting herself due to falling over.

22. X says she had been on the floor so far.  Only then did the defendant pick her up to put her on the bed.  Kerry applied some ointment to her bruises.  X kept on requesting to leave and promised not to call the police.  The defendant doubted but X assured him.

23. X says she managed to get back her mobile from the defendant and was finally allowed to leave. X would go to Cindy’s place. The defendant asked Kerry to follow her.  The defendant warned X that he still had her photos. If she called the police, he would upload them.  She was also told to repay the defendant the loan outstanding.  If she did not, he would make her bankrupt. Then she would be unable to work in the fitness business.  The defendant warned X that he knew where she worked and lived, so he could find her anytime and hit her again.  X promised the defendant that she would not call the police.

24. X called Cindy and headed for her place. Kerry followed her. 

25. At Cindy’s place, Kerry asked X to sign a document, which was written to the effect that the defendant had not hit her and her injuries were caused by falling over.  X said Kerry forced Cindy to write up that document for her to sign, otherwise Kerry would not leave.  After X had signed the document, Kerry left Cindy’s place at about 8:30 am.

26. X says she used her mobile to take some photos [P6 (3-6)] of her injuries. She then went to see Dr Li, who she had been consulting regularly for health and cosmetic reasons.  She complained of being assaulted.  The doctor advised her to report the matter to the police.  X said she was scared.  She refused to let Dr Li take photos of her injuries.  After visiting the doctor, X went to work.  That night, she went to her mother’s place. 

After 5 April 2014

27. On the next day (6 April 2015), X took more photos of herself [P6 (7-12)]. Three days later (9 April 2015), she took further photos [P6 (13-14)]. Her intention was to record her injuries, which she now circles in red on P6A (3-14). Some of the alleged injuries are not obvious. X attributes that to her inability to take proper shots with her mobile.

28. On 7 April 2014, X developed some photos and handed them to Dr Li.  On 12 April 2014, she got the other photos processed and gave them to the doctor as well.  She asked Dr. Li to prepare an injury report for her but she refused to let him take pictures of her injuries.

29. X says her psychologist suggested that she should seek help from professionals and the police.  So she went to a lawyer in September 2014. The lawyer accompanied her to the police on 20 October 2014. 

30. Apart from the assault and threat reports, X also told the police that the defendant was withholding her many belongings [see photos P7(1-34)]. 

31. On police request, X submitted a further psychologist report prepared by Dr Chan (MFI 2 - dated 27 November 2015; the previous one is MFI 1 - dated 5 September 2014). [As far as assault is concerned, the second report only mentions the defendant tried to hit X in the second quarter of 2014.]

32. X went to make a report of the three incidents on 20 October 2014. That was already 6 months after Incident Three; 1 year and 2 months after Incident Two; and 3 years and 7 months after Incident One. X says she had been in fear and dared not go to the police earlier.

33. X admits she on the advice of her lawyer has instituted civil proceedings against the defendant for damages. All is left to the lawyer to decide how to proceed.  X admits her lawyer recently sent out a letter to the defendant asking for settlement but no amount was fixed. So far, she has spent around $100,000 to engage lawyers.

34. X denies her motive of prosecuting the defendant is for money, or to get back the nude photos and valuable properties, or for revenge on the defendant’s having married another girl in August 2014. She says she knew nothing of the defendant’s marriage until Defence Counsel told her in court.

Y

35. That part of Incident Three relating to Charge 6 involves X’s mother Y.  As said in paragraph 20, there was a telephone conversation between the defendant and Y in the early hours on 5 April 2014.  X did not catch what was said between the two.  Thus on Charge 6, there is only Y to testify on the content of that phone call.

36. Y says that in the early hours of 5 April 2014, while she was sleeping, her mobile rang.  At that time, she was in China.  The defendant on the phone asked her to pick up X.  Y said she could not go.  Hearing X cry, Y asked the defendant if he had hit X again. The defendant said yes.  He further said he could beat X to death.  Y scolded the defendant.  The defendant warned Y not to call the police or he would beat X to death.  After that, he hung up.  Y called the defendant and X a few times subsequently but to no avail. X only called back around 9:30 am that day.  Y does not say what X told her then. 

37. Y says she got so dizzy after the defendant’s call that she fell sick. She was admitted to the hospital and stayed there for two days.  She came back to Hong Kong on 7 April 2014. Then she saw X.

38. Y says she had not told anyone about that phone call.  She did not even tell her husband, who was with her in China on 5 April 2014. She feared her husband would get angry.  Y says she was so confused then that she did not think of summoning help from relatives in Hong Kong right after the call.  She only related the matter to the police on 27 July 2015. That was 15 months later.

Cindy

39. Cindy in court only testifies about Incident Three. She says that on 5 April 2014 at 7:00 am, X called her to ask if she could come.  X arrived around 8:00 am.  The defendant’s sister Kerry also appeared.  Cindy could see X had crying eyes and injury at the mouth corner.  X complained to Cindy that the defendant had beaten her but Kerry said X had fallen over.  Kerry insisted on staying but eventually left Cindy’s place.

40. Cindy said she had advised X to go to see the doctor.  She also asked X to make a report to the police but X said she need to think about it.

41. Cindy left for work at about 8:45 am. X stayed behind.

Dr Li

42. Dr Li has been practicing medicine since 1975.  X has been his patient since 2004. He saw X a number of times in his clinic and found her injured. X requested him to prepare a medical report other injuries. He did. The report is P11 (1-13), incorporating some of the photos X supplied him. [Those photos are P6(3, 5, 6, 7, 8, 10, 11, 12, 13 and 14).]

43. The doctor says X came to his clinic on 5 April 2014.  She complained of being beaten up.  He found injuries on her face, neck and body.  The mouth corner was bleeding and required sutures. (The doctor cannot remember how many stitches.)  He wanted to take photos of the injuries but X refused.  Dr Li says the injuries were recent and probably caused by blunt force.  But he agrees they can be said to be minor. Some are not conspicuous in the photos, so the doctor marks them out on the working copies (see P11A).

Case to answer

44. Prosecutor accepts Charge 1 should be reduced to one of Common Assault because there is no evidence of actual bodily harm. Defence Counsel raises no objection. He makes no mid-stage submission on the other seven counts.

45. Charge 1 is, therefore, amended from Assault Occasioning Actual Bodily Harm to Common Assault.  The defendant still pleads not guilty. I find he has a case to answer on  Charges 2-8  and Amended  Charge 1. 

Defence case

46. The defendant elects not to give evidence. The agreed facts P12 state he has a clear record.

47. There are no witnesses for the defendant but there are defence exhibits D1-D4, which are some WhatsApp messages between X and the defendant.

48. Exhibits D1 and D2 are WhatsApp messages between X and the defendant on 31 August 2013.

49. Exhibits D3 and D4 are some of their WhatsApp communication during 4-5 April 2014.

50. Defence Counsel suggests to X:  Incident One did not happen; in Incident Two, X got emotional and threatened to harm the defendant with a cutter so he had to struggle with her to take away that weapon; in Incident Three, knowing the defendant was about to desert her, X went wild that necessitated restraint and the defendant only called the mother to pick her up ; when the mother could not come, Kerry was summoned for assistance.

Final submission

51. Both parties have prepared written submission.

52. Basically and quite rightly, both counsel say the case is about the credibility of X and Y.

53. Prosecutor points out X was indeed injured in Incident Two and Incident Three. He asks the court to give allowance for any shortcoming of X’s evidence, given that much time had lapsed between now and the said events.

54. Defence Counsel comments on the inconsistent and incredible features of the evidence given by X and Y, saying the two are incredible and unreliable. He submits the minor nature of X’s injuries illustrates her exaggeration, while the WhatsApp communication between X and the defendant speaks volume of the circumstances surrounding Incident Two and Incident Three.

55. Defence Counsel says Cindy and Dr Li cannot take the prosecution case further as these two did not witness the alleged incidents. 

Discussion

X

Incident One

56. At first, X says that nude photo P5 (15) was taken within a week before the alleged assault in Incident One. But during cross-examination, she changes to say that night she had sex with the defendant and P5 (15) was taken together with the other photos [P5 (12-14 and 16-17)].  After sex, they argued and she was assaulted.  X tells Defence Counsel that she can now remember Incident One took place on 18 March 2011.

57. Apparently, X did not tell the police on which date Incident One occurred. That is why Charge 1 is framed as “…on a day unknown in March 2011…”. If X could tell from P5 (15) that this incident occurred on the same day as that photo was taken, i.e. 18 March 2011, she would have told the police so. It is said Incident One took place in 2011. That was five years ago. It is difficult to believe X can be certain of the date now when she failed to do so previously.

58. Initially, X testifies that she did not notice any mark of injury on her body.  However, when Defence Counsel queries why she told police her wrists got bruised, X changes to say it was actually redness. She explains she mixed up bruises with redness.

59. I do not think X, appearing in court as a highly emotional person but nonetheless sensitive and astute, would mix up redness with bruises.  More importantly, she at first testifies she did not notice any injury on her body at all.

60. X’s evidence on Incident One is shifting.  I do not find her explanations satisfactory. She seems to be ready to make up for any deficiency of her testimony. Her evidence is unreliable.

Incident Two

61. During cross-examination, X agrees that night (the small hours of 31 August 2013) she had been arguing with the defendant on the phone while he was out and she was in the premises. The defendant was made to wait downstairs in the car for some time before he was allowed to come up. (See Exhibit D1 for their communication then,)  This is quite different from her earlier testimony, which gives the court an impression that prior to the argument she and the defendant had been staying at home uneventfully until they had dispute over love affairs.

62. X first answered Defence Counsel that she cannot remember if she had sent any photo to the defendant before he came up.  But when shown that photo with the accompanying WhatsApp messages on page 1 of D2, she had to agree that she faked wrist-cutting suicide that night in order to have the defendant’s attention.

63. X also admits she sent the defendant those photos [see page 2 of D2].  The female next to X was defendant’s new girlfriend (who got married with the defendant a year later in August 2014).  The defence case is that these photos were sent by X when they were still in argument but before any scuffle. X disagrees. She says she sent them to the defendant only after she had been assaulted. One wonders why X would send such photos to the defendant afterwards rather than before or during their argument. The defence version makes more sense.

64. X changes the context of Incident Two significantly.  She did not tell the police or say in chief-examination anything about her fake suicide. That fake act is highly relevant to the circumstance and can reflect her emotional state that night. I do not accept it is an inadvertent omission.  I am sure it is a deliberate withdrawal of facts by X. Apparently she is minded to only tell a simple one-sided story until being exposed or challenged by photo/WhatsApp evidence, which she can hardly dispute.

65. If X had been assaulted and threatened, one would expect her subsequent WhatsApp communication in Exhibit D1 with the defendant to be filled with accusation and blame.  While X sent the defendant two photos showing her injured lips and nose, she only complained of pain without stating the cause. Instead they talked a lot about an expensive watch, which X wanted to have then. There was only one short sentence of complaint at 12:57:34 that day (Exhibit D1; page 12) “你打到我甘傷” [translation: you beat and hurt me so badly].  The defendant, however, made no admission. The two then talked about money, unfaithfulness, goods, etc.

66. X says that at 10:48:01 (Exhibit D1; page 8) the defendant expressed “sorry” for what he did. But the phrase actually reads “喺入面我真係睇唔到Sorry”, which in the context means the defendant was sorry only for not being able to see the injury inside her lower lip. (X had sent him a photo at 10:44 to show her injury there [page 3 of D2].)

67. It is significant to note at 14:05:07 that day (D1; page 13), X said “一睇就知道打交，成個豬頭，你什麼時侯可以拿给我？” [translation: “know at a glance that it was a fight; whole head swollen; when can you take that (expensive watch) to me?] Instead of referring what happened earlier that day as an assault, X called it a fight. That is close to the defence suggestion that X was emotional and violent in Incident Two so much so the defendant had to struggle with her to take away the cutter she held. Of course, X denies that.

Incident Three

68. X complains she was severely attacked this time including being slapped with force for no less than 50 times.  If that were so, one would expect her to have a very swollen face with obvious marks.  But the clear photos in P6B show that was not the case.  Even though Dr Li says he saw bruises on X’s face during consultation, they were unconspicuous in the photos.

69. Dr Li found certain injuries on X which he recorded in P11. I do not doubt his findings.  Yet the doctor describes the injuries as mild. That is not consistent with the alleged severity of X’s account.  I am sure X has much exaggerated about Incident Three.

70. X says there were some WhatsApp messages from the defendant after 5 April 2014 but she had deleted those which she found insulting.  As a result, the court is deprived of the chance to fully know what the two said after Incident Three. I am sure if there were any records of the defendant’s admission, X would have kept them.  But there is none.  It is true X once blamed the defendant for hitting her (9 April 2014; 18:29) [page 2 of P8; translation on page 4 of P8A] but there was no admission from the defendant. 

71. According to X, the defendant attacked and threatened her not once, not twice but thrice. Incident Three is said to have occurred on 5 April 2014. The defendant should be the last person X would like to thank then. But at 09:22 on 30 April 2014 (twenty five days after this alleged incident), X sent the defendant the following message:-

“真的過去了，感謝你的包容及照顧，我希望處理好自己，過普通的生活” (page 5 of P8 )

[translation: “It ‘s really over. Thank you for your tolerance towards (me) and taking care (of me). I wish to resolve my (problems) and lead an ordinary life.” (page 10 of P8A)]

It is baffling that X should thank the defendant, who is said to have mercilessly assaulted and threatened her earlier that month, and also twice previously.

Y

72. The defendant does not dispute he made a phone call to Y in the early hours of 5 April 2014.  He, however, disagrees he threatened her.

73. According to Y, the defendant voiced a big threat that made her sick, so much so that she had to be admitted to hospital for two days. It is then beyond comprehension that she would choose (i) not to tell her husband, who was with her then in China, (ii) not to summon help from relatives in Hong Kong to assist X, and (iii) to divulge it to the police only in July 2015 (some fifteen months later). That is illogical and incredible. I also doubt if the defendant would, as Y claims, blatantly admit on the phone that he had hit her daughter. According to X, the defendant was always concerned of her making a report to the police, why should he admit his misdeed to one more person Y to increase his own worry?

74. The evidence of X and Y is not satisfactory, individually or taken together.  Nor is X’s explanation for her deferred report of Incident Three (6 months after occurrence), more deferred for Incident Two (after 1 year and 2 months) and much deferred for Incident One (after 3 years and 7 months).

75. In relation to Incident Two and Incident Three, there is no dispute that X had those injuries on her body as evidenced by the photos and Dr Li’s finding. However, there is no corroboration to X’s testimony as to how the injuries came about.

76. The minor injuries in relation to Incident Three were not consistent with X’s allegation of the ferocious attack she describes. They only point to her exaggeration.

77. The fake wrist-cut in Incident Two; and in Incident Three the need to call X’s mother plus the summon of Kerry to follow X are all consistent with the defence suggestion that X was highly emotional in these two incidents. In relation to Incident Two; X in her WhatsApp talked of a fight (see para. 67). It is reasonable to suspect on each of these two occasions there was some kind of scuffle between X and the defendant, despite X’s denial. I am afraid X has not related to the court all of Incident Two and Incident Three. Her injuries could have been resulted from circumstances which she fails to disclose. Most likely, X has told the police and the court an edited version that cannot be safely relied upon.

78. X’s brief account on Incident One is also unreliable (see paras. 56-60.)

79. The relationship between X and the defendant was a long one, and a difficult one.  X sounds as a highly prejudiced witness. Her long feud with the defendant has been known to her mother. Y apparently has formed the view that the defendant was the culprit and had treated her daughter badly.

80. X’s testimony on the three incidents is not as reliable as it should be.  Nor is Y’s evidence in relation to that phone call. It is dangerous to convict the defendant on such evidence.

81. I am not prepared to speculate X’s motive(s) for her much deferred complaints: whether she filed the reports because she wants justice, or to get back her nude photos plus the many properties still with the defendant plus monetary damages, or merely to seek revenge on the man’s lust, unfaithfulness, marrying someone else, etc. [X says she knew the defendant got married only when Defence Counsel told her in court. I find it difficult to believe she knew nothing of that marriage, which took place two months before she went to the police in October 2014.]  

82. All in all, I cannot be satisfied that prosecution have proved Charges 1-8 beyond reasonable doubts.  The defendant is acquitted of all the charges.