HKSAR v. W.N.M.

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

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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 (3^rd 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:-

(1)  At the material time, D1’s mobile phone number was 5613 3488.

(2)  D2 was born in December 1989 and has a clear record in Hong Kong.

(3)  D2 gave birth to X on 22 August 2014 in Hong Kong. X is D2’s daughter.

(4)  X’s parents got divorced in November 2019.

(5)  In November 2019, D1 and D2 became acquainted and they became lovers in December 2019. After that, X met D1 for the first time.

(6)  On 30 December 2019, D2 rented a flat in North Point for a period of 2 years from 3 January 2020. The tenancy agreement is produced as P3.

(7)  Between January 2020 and 2 July 2020, D1, D2 and X were living together in the said flat.

(8)  The flat consists of 2 bedrooms, one living room, one kitchen and one bathroom. X has her own bedroom. The sketch of the flat is produced as P4.

(9)  On 16 July 2020, a video-recorded interview with X was conducted. X referred D1 as uncle and D2 as mummy.

(10)  The redacted footage of X’s interview is produced as P13, with the transcript as P13A and the certified translation as P13B.

(11)  D2 was arrested for the present offence on 16 November 2020.

(12)  On 16 November 2020, D2’s cautioned interview was conducted voluntarily. The redacted interview footage is produced as P5, with the transcript as P5A and the certified translation as P5B.

(13)  On 6 July 2020, X was admitted to QEH and was discharged on 16 July 2020.

(14)  X was medically examined by Dr Lun Yiu-kun and he prepared 2 medical reports dated 7 September 2020 and 11 June 2021 which are produced as P6 and P7 respectively.

(15)  Dr Chiu Ka-ho prepared another medical report on X dated 14 July 2021 which is produced as P8.

(16)  On 7 July 2020, a woman police officer took 12 photos of X. The photo album is produced as P9(1)  to (12).

(17)  On 8 July 2020, police officer took a total of 29 photos of the said flat. The album is produced as P10(1)  to (29).

(18)  On 12 October 2020, a forensic examination on D1’s mobile phone was conducted. 4 photos, including 3 photos of X, were retrieved from the said phone. The album is produced as P11(1)  to (4). From the phone camera records, P11(1)  was taken at 1435 hours on 26 May 2020; P11(2)  at 1924 hours on 28 May 2020; P11(3)  at 1237 hours on 31 May 2020. On the other hand, P11(4)  was sent out at 2103 hours on 28 May 2020.

(19)  The chain of evidence of the exhibits is not contested.

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:- 

•  Entry 59 - my mummy went out to talk on the phone. Then (uncle)  scalded me.

•  Entry 203 - mummy went out to talk on the phone. After that, the bad uncle came inside and scalded me.

•  Entry 231 - (when did it happen)  in late-May.

•  Entry 277 - there was peeling after being scalded. Then (I)  was washed with cold water.

•  Entry 291 - he turned on hot water and scalded me. Then (I)  thought of turning it off. He kept pressing the button of the water heater.

•  Entry 293 - he didn’t let me turn it off.

•  Entry 307 and 309 - very painful and very scared.

•  Entry 323 and 325 - (who did you call up)  my uncle, to turn the tap off.

•  Entry 327 and 329 - (did he turn it off)  No. I was scalded.

•  Entry 331 - I had peeling after being scalded and could no longer use hot water.

•  Entry 339 - he (uncle)  went out to buy something for me to wash the wound.

•  Entry 341 - (mummy after talking on the phone)  came inside to pee.

•  Entry 347 - (did mummy help)  No. (She)  simply told me to wash the tummy with (water from)  the showerhead.

•  Entry 349 - (how was X’s skin)  still peeling.

•  Entry 359 - the right side of the body.

•  Entry 387, 389, 393 and 397 - (uncle)  to buy cream, to apply burn cream. Because the wounds would be healed only if he applied some burn cream.

•  Entry 399 - uncle said so.

•  Entry 405 - there was antibiotic. Then there was anti-inflammatory ointment.

•  Entry 411 - (uncle)  went to pharmacy to buy new ones after (the ointments)  were fully consumed.

•  Entry 413 and 415 - (who applied the ointments)  the two of them. Mummy and uncle.

•  Entry 417 - for a whole week.

•  Entry 421 - No (other treatments).

•  Entry 657 - (how long did uncle splash X)  10 seconds.

•  Entry 663 - (it)  was not turned off even after 10 seconds.

•  Entry 667, 669 and 671 - very painful. (I)  cried. I felt scared.

•  Entry 681 - (Mummy)  heard me cry.

•  Entry 683 - (She)  immediately hung up and came in to see what was happening to me.

•  Entry 689 - I held the showerhead on my own, turned the tap on to get cold water for splashing over the wounds.

•  Entry 693 - He went out to buy things to help me treat.

•  Entry 719 - He turned the tap to get cold water for me. After that, (he)  let me hold the showerhead myself and then (I)  sat down. I splashed (water)  over myself and he went out to buy cream.

•  Entry 721 - when she was having a pee, it was still cold water.

•  Entry 725 - (when mummy came in)  he immediately changed to cold water.

•  Entry 755 - (mummy)  held the showerhead with her hand and splashed (water)  over my wounds.

•  Entry 757 - She could splash (water)  even though she was sitting down.

•  Entry 985 - Uncle told me to hold the showerhead to splash (water onto)  the wound.

•  Entry 1023 - (uncle)  he did it on purpose (to scald).

•  Entry 1035 and 1037 - He didn’t really want to scald me. And then he turned the hot water on again, splashed (water onto)  my body and scalded me.

•  Entry 1039, 1041 and 1043 - He did not want to scald me . And then he turned the hot water on to scald me.

•  Entry 1045 - He accidentally turned (it)  on and scalded me, and then I was scalded.

•  Entry 1049 and 1051 - he said that I was disobedient. I was naughty and did bad things.

•  Entry 1059 - I vomited the food.

•  Entry 1103 - (He)  scald me for being naughty.

•  Entry 1111 - He still held the tap and not letting me turn (it)  off.

•  Entry 1113 - I wanted to turn (it)  off and he would not let me turn (it).

•  Entry 1179 and 1181 - It hurts a lot. (I)  was very frightened, and felt very angry.

•  Entry 1299 and 1347 - (uncle)  he hit me a lot. He often hit me. He would hit even when she (mummy)  was there.

•  Entry 1411, 1413 and 1415 - (uncle hit X)  the belly button, with fist, with great force. Often.

•  Entry 1441 - sometimes mummy was there.

•  Entry 1475 - (uncle hitting X)  I don’t count how many times, only know that there had been many times.

•  Entry 1491 and 1493 - I did ask him not to hit, (but)  he still hit. He didn’t listen.

•  Entry 1797 - I did ask him to let me eat, but (he)  didn’t let (me)  eat.

•  Entry 1807 and 1809 - (did X tell uncle she was hungry)  Yes. He didn’t let me eat.

•  Entry 1817 - I was afraid that he wouldn’t let me eat again. So I didn’t tell her (mummy).

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)

•  Entry 72 - she, F.S.L. and X lived together in the flat she rented.

•  Entry 86 and 90 - X was moved to a kindergarten in North Point in mid-January 2020.

•  Entry 104 - it was F.S.L. who prepared for the school transfer procedure.

•  Entry 130 - F.S.L. mentioned to her that her ex-husband kissed X’s private parts. Hence she sought assistance from school-based social worker of the kindergarten in North Point.

•  Entry 160 - (I)  would teach her (X)  how to bath herself.

•  Entry 172 - I did teach her how to operate (the heater). She knows how to operate it herself basically.

•  Entry 182 - I was answering a phone call. Once (I)  heard what happened, I immediately hung up and went back to the bathroom to see what was going on. I saw (my)  daughter had probably got scalded. I immediately took the showerhead and turned on cold water in order to cool her down. F.S.L. said immediately ‘I go to buy medicine’ and rushed out. I did not know what to do, but to cool her down with cold water continuously. About 10 minutes later, F.S.L. came back with different kinds of medicine saying he had to give her a treatment like that.

•  Entry 184 - I did ask F.S.L. if we should take X to the hospital for medical treatment. F.S.L. said he knew how to do first-aid and we should give her treatment first. He has already bought the medicine and all sorts of stuff.

•  Entry - F.S.L stopped her from doing so (taking X to hospital).

•  Entry 192 - F.S.L. told her that he could be able to handle it. He kept telling me that my ex-husband was fighting for the custody of my child. And if you now take her to (the hospital), it is very likely that you may be charged with child abuse, child neglect. It is certain that you can’t see your daughter again.

•  Entry 194 and 196 - I was scared by him, by his words. Regrettably, when I wanted to do that, he basically, for a long time, didn’t let us go out during that period of time.

•  Entry 198 - he basically didn’t let us go out. He was keeping me under 24-hour surveillance at that time. It is impossible for me to take my daughter to the doctor by myself.

•  Entry 200 - I did tell him that her (X’s)  injuries were serious and I worried about her. He said it was during epidemic outbreak, and it is risky to go to the hospital. It may cause even bigger trouble.

•  Entry 202 - He said he had a friend who was a doctor. He made a phone call and talked to his friend who was a doctor. At that time, I deeply believed that there was a doctor to follow-up on her condition. I actually believed that there was appropriate medical treatment for my daughter. So I did not put up any resistance to have further actions.

•  Entry 204 - at that time, I thought (X’s injuries)  it was serious. After a few days, I found that he (D1)  handled or gave first-aid skilfully. She really got better gradually day by day. I gradually felt relieved.

•  Entry 206 - he bought some medicine, that is, painkillers, anti-inflammatory drugs and the like. We promptly gave her treatment and cooled her down with cold water at once.

•  Entry 208 - burn cream and anti-inflammatory ointment were immediately applied on her wounds. Her wounds were cleansed with saline, and bandaging and the like were done every day and sometimes even twice a day.

•  Entry 210 - I assisted F.S.L.

•  Entry 212 - I don’t have any knowledge, no first-aid training. I found him very skilful, and strongly believed that he had the knowledge.

•  Entry 220 - Actually I am the one who is mainly responsible for taking care of her.

•  Entry 224 - (after F.S.L. was arrested)  It’s me who took the initiative to contact the principal and social worker of the kindergarten in North Point to seek help. So the social worker suggested a home visit.

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:- 

(1)  There was no urgency for D2 to stop showering X when D2’s phone rang. She could have finished showering X and returned call later.

(2)  The flat in North Point is a small apartment. D2 must have noticed that D1 went into the small bathroom when D2 left the bathroom. At that time, X was naked. D2 said she was the only one giving X a shower. D2 never confronted D1 why the latter entered the bathroom when X was having a shower.

(3)  The scalding incident was a tragic episode for X for the first time, and yet D2 forgot what date it was.

(4)  When D2 returned to the bathroom, she did not scold D1 for what happened, in particular, why D1 entered into the bathroom and why D1 showered X.

(5)  D2 believed what D1 said. At one stage, D2 said she heard D1 telling X off for messing around both the shower switch in the living room when she was answering the call. Later, D2 said D1 told her about that in the bathroom. And D2 said X also said so. However, D2 said she only found out X was lying in early July when X was admitted into the hospital.

(6)  In the beginning, D2 said D1 went out for about 10 minutes and bought bandages and ointment or burn cream. A photo of the burn cream was taken. And later D2 said D1 got some syrup for treating fever as X did have a fever at a later stage. D2 did not mention about the syrup in her VRI.

(7)  D2 said when she returned to the bathroom and seeing X’s skin got reddish, she showered X with cold water until D1 returned home. D2 said on the first day of the incident, X’s skin did not peel off. It would be unreasonable if D2 showered X for some 10 minutes when D2 at that time had no clue when D1 would return.

(8)  D2 thought D1 was calling his doctor friend for medical advice. If what was said by D1 was true, it would be absurd to see if a doctor was told that a child got scalded severely and yet, did not tell D1 to take the child to the A&E of a hospital or even call 999 for ambulance.

(9)  D2 said she was convinced that D1 had first-aid and did handle X’s wound professionally. That does not mean D2 cannot seek proper medical advice.

(10)  D2 said they cleansed or treated X’s wounds twice a day in the beginning and later once per day. And yet, D2 discovered that X had a fever a few days later, hence the need to give X some syrup. That indicated that X’s condition was not improving at all.

(11)  D2 said she trusted D1 because the latter was a barrister and knew first-aid. On the other hand, D2 said she was unduly influenced by D1 saying that she might get problems with the custody of X and the police might be involved for a case of child abuse. D2 literally said her mind was usurped by D1 in every manner. D2’s contact with her friends and family was cut off by D1 with the change of the phone. And yet D2 can still go to work for some 9 hours during a working day. She could have spoken to her colleagues.

(12)  X is D2’s only daughter. D2, who had been working for over 10 years. It is unacceptable and unbelievable for the defence to say simply that it was because of D2’s stupidity, naivety and misplace of her trust that caused D2 to act in an innocent and misguided manner.

(13)  D2 claimed that she was under D1’s total control during the material period. The photos of the staycation show otherwise. At the very least, D2 had means and opportunities to seek help if she wants. D2 was not detained or false imprisoned by D1.

(14)  D2 said D1 asked her to take a photo of X’s injury with the intention to send it to the landlord, not to D1’s friend, Dr Lo. That photo was sent out later. It was an absurd and ridiculous move if what was said is true.

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.