A A
B B
DCCC 360/2024
C [2025] HKDC 1352 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 360 OF 2024
F F
G ---------------------------- G
HKSAR
H H
v
I CHOI KWOK WAI I
----------------------------
J J
K Before: His Honour Judge Tam in Court K
Date: 6 August 2025
L L
Present: Ms Wong Hei Man Jaime, Public Prosecutor, for HKSAR
M Ms Chong Kwan Yu Sezen, instructed by Or & Partners, M
assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1] Indecent conduct towards a child under the age of 16 years
O (向年齡在16歲以下的兒童作出猥褻行為) O
P
[2] Criminal intimidation (刑事恐嚇) P
[3] Assault occasioning actual bodily harm (襲擊他人致造成
Q Q
身體傷害)
R [4] False imprisonment (非法禁錮) R
S S
T T
U U
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A A
B B
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C REASONS FOR SENTENCE C
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D D
E 1. Mr Choi pleaded guilty before me to 4 charges on a Charge E
Sheet as follows.
F F
G 2. Charge 1 is Indecent conduct towards a child under the age of G
16 years, contrary to section 146(1) of the Crimes Ordinance, Cap 200.
H H
Particulars are that he, on 6 October 2023, at the male public toilet, Ground
I Floor, No 2 Wu Chui Road, Tuen Mun, New Territories, in Hong Kong, I
committed an act of gross indecency with or toward X, a boy of the age of
J J
10 years.
K K
3. Charge 2 is Criminal Intimidation, contrary to sections
L L
24(a)(ii) and 27 of the Crimes Ordinance, Cap 200. Particulars are that he,
M on the same date, at the same place, in Hong Kong, threatened X with M
injury to his person, with intent to cause the said X to do acts which he was
N N
not legally bound to do.
O O
4. Charge 3 is Assault occasioning actual bodily harm, contrary
P P
to Common Law and punishable under section 39 of the Offences against
Q the Person Ordinance, Cap 212. Particulars are that he, on the same date, Q
at the same place, in Hong Kong, assaulted X, thereby occasioning him
R R
actual bodily harm.
S S
5. Charge 4 is False imprisonment, contrary to Common Law
T T
and punishable under section 101I of the Criminal Procedure Ordinance,
U U
V V
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A A
B B
Cap 221. Particulars are that he, on the same date, at the same place, in
C Hong Kong, unlawfully and injuriously imprisoned X and detained him C
against his will.
D D
E Facts admitted by Mr Choi E
F F
6. X (a boy) was born in July 2013. Mr Choi was born in April
G 2002. At all material times, X was 10 years old; Mr Choi was 21 years old. G
They did not know one another before this incident.
H H
I 7. On 6 October 2023, at about 1515 hours, X was playing I
basketball with two classmates at a basketball court near No 2 Wu Chui
J J
Road, Tuen Mun.
K K
8. X was wearing short-sleeved top, a pair of shorts with
L L
underpants underneath.
M M
9. Mr Choi appeared at the basketball court and asked one of X’s
N N
classmates if he could borrow their basketball to play. He got the
O basketball and played on his own. O
P P
10. About 15 minutes later, Mr Choi asked one of X’s classmates
Q where the washroom was. He then walked away and returned after about Q
3 minutes. Mr Choi said he could not find the washroom and asked X to
R R
lead him there. X agreed.
S S
11. X and Mr Choi got to the male public toilet on Ground Floor
T T
of No 2 Wu Chui Road.
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A A
B B
C 12. Mr Choi asked X to close his eyes. X did so but only slightly, C
leaving open enough to see what was going on. Mr Choi grabbed X’s hand
D D
and took him into a cubicle before locking the door.
E E
13. Mr Choi loosened his own pants and removed his own
F F
underpants exposing his penis to full view.
G G
14. Mr Choi sat on the open toilet bowl. X was standing, facing
H H
Mr Choi.
I I
15. Mr Choi demanded X to take off his clothes. X refused. Mr
J J
Choi threatened X with death by strangling if he did not comply. Feeling
K scared, X took off all of his clothes with his back towards Mr Choi. Mr K
Choi then grabbed X’s shoulder and turned him around.
L L
M 16. Mr Choi demanded X viciously to perform oral sex on him M
with threats of death by strangling. Mr Choi pushed X’s shoulders down
N N
until X was kneeling. Feeling scared, X complied and did so for about one
O minute before stepping back. O
P P
17. Mr Choi then rubbed X’s penis for a few seconds.
Q Q
18. Mr Choi hugged X and physically made X sit on his lap. Mr
R R
Choi wrapped his right arm around X’s neck.
S S
T T
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A A
B B
19. X screamed. Mr Choi told him to stop or he would apply force
C using his right arm. Feeling scared, X stopped screaming. Mr Choi also C
put his left hand on X’s mouth, causing abrasions to X’s face and lips.
D D
E 20. Next, Mr Choi turned X around to face him. Mr Choi raised E
X’s left arm with his right hand. He licked X’s left underarm. While doing
F F
so, Mr Choi was masturbating with his left hand.
G G
21. Throughout the incident, X was detained by Mr Choi inside
H H
the cubicle without X’s consent.
I I
22. Under the pretext of checking if there was anyone in the other
J J
cubicles, X suggested going out to see. Mr Choi then released the lock and
K both left the cubicle. K
L L
23. When Mr Choi was distracted, X put back on his clothes and
M ran away. M
N N
24. At about 1550 hours, X was at home and appeared frightened
O in front of his father Y. O
P P
25. Later, X told Y what had happened.
Q Q
26. At about 2005 hours the same day, upon medical examination,
R R
X was diagnosed to be suffering from, inter alia, two abrasions on inner
S upper part of left cheek (upper one measuring 0.5cm x 0.8cm and lower S
one measuring 0.5cm x 0.5cm), an abrasion on left face just above left side
T T
of upper lip (measuring 0.3cm x 0.3cm), and two bands of abrasion on left
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A A
B B
outer upper part of face (inner one measuring 5cm x 0.3cm and outer one
C measuring 2cm x 0.3cm). C
D D
27. The medical opinion was that the abrasions on X’s face were
E evidence of recent blunt force injuries inflicted within about a day before E
the examination and could be inflicted by contact with relatively pointed
F F
objects or rough linear edges including fingernails.
G G
28. From the inside front of the short-sleeved top (a T-shirt) worn
H H
by X was found probable salivary stain. A mixed DNA profile originating
I from Mr Choi and X was found from the stain. I
J J
29. Under caution, Mr Choi said he could not hold back his sexual
K urge so he forced a handsome guy to perform oral sex on him. K
L L
Criminal record
M M
30. Mr Choi has a clear record.
N N
O Antecedents O
P P
31. Mr Choi is aged 23 (21 at the time of the offences). Born in
Q the Mainland, he settled in Hong Kong in 2008, then aged 6, and joined the Q
local education system till completion of F3. He has previously worked as
R R
a construction worker. Before arrest, he worked as a warehouse worker for
S a few months. Mr Choi is single and lived with his mother in public S
housing in Tuen Mun. He has a half-sister who shares the same biological
T T
father.
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A A
B B
C Mitigation C
D D
32. Ms Sezen Chong of counsel assigned by the Director of Legal
E Aid mitigated on behalf of Mr Choi. The following is a summary of the E
mitigation submissions.
F F
G 33. Mr Choi’s father was a construction site worker; he passed G
away in 2019. Before being remanded in custody, Mr Choi resided with
H H
his mother (in court to give him support) who is in her 50s, also a
I construction site worker. Mr Choi has an elder half-sister who is in her I
40s. Mr Choi is close emotionally to his sister.
J J
K 34. Mr Choi used to live on the disability allowance which was K
$2,100 per month. The allowance was insufficient for his daily living. He
L L
then had to find a job. Due to his low IQ, there were not many job
M opportunities available to him. Eventually, he found a job as a night-shift M
warehouse worker. The medication prescribed to him were to be taken at
N N
night. However, due to his work, he was not allowed to fall asleep. He
O hence stopped taking medicine. After around two months at work, he O
found himself easily agitated, irritated, becoming violent and had difficulty
P P
in controlling his sex drives. After all these months in remand, he has been
Q in drug compliance and is able to control his emotions. He deeply reflected Q
his misdeed and is remorseful and regretful for the harm he caused to X.
R R
S 35. Ms Chong submitted on behalf of Mr Choi 4 mitigation letters S
all written in Chinese respectively by Mr Choi himself, his mother, his half-
T T
sister and a social worker. The contents are generally that Mr Choi
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A A
B B
apologizes to the victim; that his family will help him reform with the
C assistance of social worker. Those who wrote on behalf of Mr Choi asked C
for a chance to be given to him.
D D
E 36. Ms Chong asked for updated medical report(s) on Mr Choi’s E
mental condition before sentencing. Besides, X’s victim impact report was
F F
still outstanding.
G G
37. After the three reports (see below) have been obtained, Ms
H H
Chong made the following further submissions.
I I
38. Ms Chong referred to HKSAR v Lee Hon Wah [2011] 4
J J
HKLRD 319, at para 38 (guidelines are unhelpful), and HKSAR v Tsang
K Chiu Tak [2013] 1 HKLRD 427, at paras 8-9 (see the “Sentence” section K
below).
L L
M 39. In relation to the mental disorder of Mr Choi, Ms Chong M
submitted, by reliance on Cross & Cheung, Sentencing in Hong Kong 11ed,
N N
paras 30-226, 30-228 and 30-230, that:
O O
“If an accused suffers from a mental disorder this may be of
P relevance in two ways. First, it affects the assessment of the P
extent of the objective criminality, and second, it influences the
Q
question of whether the case requires a deterrent sentence. Such Q
a person may lack effective powers of reasoning or control. It
may render him an inappropriate vehicle for general deterrence.
R The question of whether a particular mental condition should R
reduce moral culpability or general deterrence and the extent to
which it should do so would usually depend upon:
S S
(1) The nature and severity of the symptoms;
T T
(2) Its effect on the mental capacity of the offender at the
time of the offence or at the time of sentence. There must
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A A
B be some connection between the condition and the B
commission of an offence. The nexus may be
C established by showing that it affected the offender’s C
ability to exercise an appropriate judgment in one or
more of the ways stated in R v Verdins (2007) 169 A
D Crim R 581; and D
E
(3) The nature and seriousness of the offence.” E
F 40. Ms Chong reminded the court of the application of the totality F
principle by laying emphasis on parts of paras 17-19, 21-23 of HKSAR v
G G
Ngai Yiu Ching [2011] 5 HKLRD 690 the relevant parts of which are
H reproduced immediately below: H
I I
“17. But when the prosecuting authority elects the latter course,
namely, to charge two or more offences arising from an episode
J of criminal activity, the objective is still the same; that is to say, J
the ultimate overall sentence must still reflect the overall and
K
true culpability, although the sentencing judge must take care, K
first, to pass a sentence for each individual offence that is
appropriate to that offence and the circumstances of its
L commission and, second, not to punish the offender twice for the L
same conduct.
M M
18. It was in an attempt to safeguard fairness to the offender by
ensuring that he was not punished twice for the same conduct
N that the courts developed the “one transaction” rule. In essence, N
this rule said that if the number of offences have been charged
arising from the one transaction or course of criminal conduct,
O then concurrent sentences should be imposed. O
P 19. The one transaction rule was not developed as an inflexible P
rule of law. It was never intended as anything more than a
practical rule of thumb to guide judges in the exercise of the
Q power to impose consecutive sentences so that the final sentence Q
was not one that was unfair to an offender.
R R
…
S 21. … whatever sentence is arrived at after application of the S
rule is still subject to the totality principle.
T 22. The importance of the totality principle cannot be overstated. T
It is there to ensure not only fairness to the offender, in the sense
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A A
B that he is not punished twice for the same offence and, further, B
that the sentence is not an unduly crushing punishment, but it is
C also a tool by which to ensure that “the overall effect of the C
sentences is sufficient having regard to the usual principles of
deterrence, rehabilitation and denunciation.”: R v KM [2004]
D NSWCCA 65 at para.55. D
E
23. The emphasis therefore should be on a reflection in the E
sentence of true culpability disclosed by the offences of which
the accused has been convicted…”
F F
41. Ms Chong took issue with some of the findings of the
G G
prosecution experts’ reports on Mr Choi. Defence therefore asked for
H adjournment first to 2 May 2025, which was later further adjourned to 20 H
June 2025 by way of written application, for the purpose of seeking legal
I I
aid funds to obtain defence experts’ reports.
J J
42. Defence reports (one psychological and the other psychiatric)
K K
on Mr Choi have now been obtained and copied to the court. Generally,
L L
they echoed what has been said in the prosecution reports. For details, see
M
below. M
N N
43. Ms Chong submitted a further letter dated 19 June 2025
O written in Chinese by the same social worker. The letter outlined the O
rehabilitation plan for Mr Choi upon release from prison.
P P
Q 44. Ms Chong asked for a further adjournment to 6 August 2025 Q
so that the social worker who did not have time to go through the defence
R R
reports in detail may have an opportunity to do so and where appropriate
S devise a proposal to reduce Mr Choi’s chance of re-offending upon release. S
The proposal came in the form of a letter dated 30 July 2025 written in
T T
Chinese by the same social worker. By and large, it repeated what was
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A A
B B
written in the earlier letter dated 19 June. There were a few additions
C relating to provision of psychiatric medical service, religious service, C
vocational training partner service and riddance of alcoholic habits service.
D D
Ms Chong submitted that with these additional services, and more
E importantly Mr Choi’s acceptance of them, the chances of re-offending E
would be reduced.
F F
G 45. Prior to the present hearing on 6 August 2025, Ms Chong has G
filed a third set of written mitigation submissions. The following is a
H H
summary of the mitigation submissions.
I I
46. First of all, Ms Chong made further submissions on R v
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Verdins (2007) 169 A Crim R 581 which essentially were the holdings on
K 581 of the report. K
L L
47. After summarizing the important assessment results and
M diagnoses in the two defence reports, and repeating the second sentence in M
para 5 of the prosecution psychiatric report (by Dr Dorothy Tang) on Mr
N N
Choi, Ms Chong submitted that due to his medical/mental condition, in
O particular his bipolar affective disorder, attention-deficit hyperactivity O
disorder and atypical autism, Mr Choi had difficulty controlling his
P P
hypersexuality or impulsive sexual urge; that his low IQ inhibited him from
Q reasoning, effective problem solving or accessing support; that his poor Q
drug compliance also exacerbated his condition; that at the material time
R R
of the offence (sic), he was suffering from hypomania; that all these could
S have contributed to the offence (sic); the proper drug adherence and S
chemical treatment could have prevented Mr Choi from re-offending; that
T T
Mr Choi is determined to turn over a new leaf by receiving all kinds of
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A A
B B
treatment including chemical castration which could have eliminated his
C paedophilic tendency. C
D D
48. Ms Chong further submitted that, by reason of the aforesaid,
E Mr Choi’s offending is related to his medical/mental condition; that by E
reason of the nexus between his medical/mental condition and the offence
F F
(sic), his moral culpability in the offence (sic) is reduced and the
G considerations for general deterrence and specific deterrence in sentencing G
in this kind of offence are less relevant in Mr Choi’s case; that his need for
H H
treatment and rehabilitation assume a greater role in the sentencing.
I I
49. Ms Chong then referred to Secretary for Justice v Lam Yu Wai
J J
[2015] 1 HKLRD 400 (copy supplied by the court for defence’s comment).
K Ms Chong submitted that in that case, the respondent pleaded guilty to K
indecent conduct towards a child under 16; that the facts were that the
L L
respondent lured a boy aged 5 from a video games arcade to a staircase and
M forced the child to perform oral sex for him; that the respondent was aged M
41, had 22 previous convictions including three similar convictions and
N N
was most recently sentenced to 3 years and 9 months on a plea of guilty;
O that expert psychological and psychiatric evidence revealed the respondent O
had paedophilic tendency and a very high risk of reoffending; that he had
P P
superficial remorse; that the respondent was mildly mentally handicapped
Q with full scale IQ score of around 64; that the boy had suffered only minor Q
trauma.
R R
S 50. Ms Chong further stated that upon a review of sentence by the S
Secretary for Justice, the Court of Appel ruled that a starting sentence
T T
should not be lower than 6 years; that the Court found that the respondent’s
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A A
B B
low IQ was not related to his offences and that a deterrent sentence was
C warranted as he had multiple past similar convictions. Ms Chong said that C
the sentence there was reviewed to one of 6 years and reduced to 4 years
D D
for his guilty plea.
E E
51. Ms Chong submitted that the facts of Lam Yu Wai are
F F
comparable to those of the present case; that Mr Choi in the present case
G has less culpability than the respondent in Lam Yu Wai in that: G
H H
(a) Mr Choi has a clear record;
I I
(b) The victim in the present case is not as young as the
J J
victim in Lam Yu Wai;
K K
(c) Mr Choi’s offending is related to his medical/mental
L L
condition; and
M M
(d) Mr Choi’s risk of reoffending could have been
N N
eliminated by proper drug adherence and that he has
O evinced a determination to comply with treatment, even O
to the extent of receiving chemical castration.
P P
Q 52. Ms Chong concluded by submitting that a starting point of not Q
more than 5 years’ imprisonment is appropriate in the present case.
R R
S S
T T
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A A
B B
Prosecution Reports
C C
53. Proceedings were adjourned for obtaining three reports,
D D
namely a Victim Impact (psychological) Report of X, a psychological
E report on Mr Choi, and an updated psychiatric report on Mr Choi. E
F F
54. In relation to X, the report found that although he had
G emotional disturbances and acute stress reactions mainly in the first few G
weeks after the index crime, he has largely revovered from this traumatic
H H
incident and resumed normal personal functioning; that there is no
I indication that he has been suffering from any significant or debilitating I
psychological disturbances and symptoms from the index incident at this
J J
stage.
K K
55. In relation to Mr Choi, the psychological report opined that
L L
following the onset of Bipolar Affective Disorder, his impulse control
M became problematic; that he experienced uncontrollable sexual urges, and M
tended to be indiscriminate in his sex partners; that he was highly suspected
N N
to have paedophilic tendency; that the index offence was his random act to
O fulfil his sexual impulse while the victim was his convenient target; that he O
disregarded the consequences and the harm done to the victim; that the
P P
unpredictability and unscrupulousness of his offending behaviour posed
Q great danger to the potential victims of prepubescent children and teenagers; Q
that his risk of sexual recidivism was Very High. Long term intensive
R R
psychological treatment combining psychiatric intervention was highly
S recommended. S
T T
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A A
B B
56. In relation to Mr Choi, the psychiatric report opined that he
C has mental and behavioural disorder due to use of alcohol, harmful use, C
with history of bipolar affective disorder and attention deficit and
D D
hyperactive disorder; that he is also impressed to have pedophilic tendency;
E that outpatient follow-up for medication treatment and intense E
psychological service for impulse control is recommended.
F F
G Defence Reports G
H H
57. Defence have obtained and supplied to the court a copy of one
I psychological report written by Dr Sammy Cheng and one psychiatric I
report written by Dr Chung See Yuen both on Mr Choi.
J J
K 58. Dr Cheng has, inter alia, the following psychological K
conclusions and opinions on Mr Choi:-
L L
M (a) He has full-scale IQ of 78; M
N N
(b) He has bisexual orientation;
O O
(c) He has pedophilic tendency;
P P
Q (d) His insight into his current offense (sic) is limited and Q
partial; and
R R
S (e) His reoffending risk is “Well Above Average” and S
“High”.
T T
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A A
B B
59. Dr Chung has, inter alia, the following psychiatric opinions
C on Mr Choi: C
D D
(a) He has suffered from the following mental disorders:
E E
(i) Bipolar affective disorder;
F F
G (ii) Alcohol use disorder; G
H H
(iii) Borderline intellectual functioning – this has not
I impaired his understanding of the offence (sic) I
and his capacity to plead;
J J
K (iv) Attention deficit hyperactivity disorder; and K
L L
(v) Atypical autism;
M M
(b) He has paedophilic tendency;
N N
O (c) He was displaying some mild symptoms of bipolar O
affective disorder at the time of the offence (sic);
P P
Q (d) The adverse effects of the alcohol should have been Q
largely alleviated as the offence (sic) occurred several
R R
hours after the drinking;
S S
(e) He was displaying some symptoms of hypomania and
T T
was under the influence of alcohol at the time of the
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A A
B B
offence (sic); these symptoms are mild; his judgment,
C awareness of the circumstances and self-control were C
mildly impaired at the time of the offence (sic);
D D
E (f) His risk of reoffence is high; and E
F F
(g) He has not displayed symptoms on hormonal
G irregularities. G
H H
Sentence
I I
60. In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, the Court
J J
of Appeal has the following observations:
K K
“8. The Court of Appeal reiterated in many recent cases that the
L Court had to protect innocent trusting children and prevent these L
vulnerable persons from sexual abuse which would cause them
physical and psychological trauma. In cases involving sexual
M M
assault on a child, it was necessary for the Court to adopt
deterrent sentences to deter others from committing similar
N offences. Such deterrent sentences were to show the abhorrence N
of members of the public to crimes of this nature and to redress
the grievance suffered by the victims and their families.
O O
9. The Court of Appeal pointed out that when the Court dealt
P with offences of sexual assault on a child, the factors that it P
needed to take into consideration included:
Q (1) The age difference between the defendant and the victim; Q
(2) The relationship between the defendant and the victim,
R R
including whether the defendant had taken advantage of
his position or status to commit the offence and whether
S there was a breach of trust in the case; S
(3) Whether the defendant had used threats or inducements
T to make the victim succumb; T
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A A
B (4) The number of occasions of committing the offences and B
the duration of the offences;
C C
(5) Whether inappropriate and unnecessary violence was
used by the defendant to cause harm or discomfort to the
D victim; D
E
(6) Whether any safety measures were taken by the E
defendant in sexually abusing the victim in order to
avoid transmitting any venereal disease to the victim or
F getting her pregnant; F
(7) Whether the sexual abuses have caused physical or
G G
psychological trauma to the victim;
H (8) Whether the offences have impact on the family H
members of the victim;
I (9) Whether the defendant was involved in other I
inappropriate behaviour such as inviting other people to
J watch or take photos or videos of the offence he J
committed; and
K (10) Whether the defendant is psychologically imbalanced K
and paedophilic and the likelihood of re-offending.”
L L
61. The Court of Appeal case of HKSAR v Lee Kwok Wai [2012]
M M
2 HKLRD 239 (brought to the attention of the court by prosecution) was
N one such case expressly referred to in Tsang Chiu Tak. N
O O
62. Putting everything in context, I intend to adopt a global
P starting point for all 4 charges in the case of Mr Choi. Bearing in mind the P
Tsang Chiu Tak observations and what Ms Chong said especially those
Q Q
contained in her third mitigation submissions, I will adopt a global starting
R point of 5 years and 6 months’ imprisonment. I am aware that this is a R
severe starting point of sentence for a first offender with some mental issue.
S S
But such are the circumstances of the present case with its distasteful
T features that it really cannot be helped. Furthermore, because of Mr Choi’s T
paedophilic tendency and his risk of re-offending being assessed as high or
U U
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A A
B B
very high, the public has to be protected from him for as long as the law
C could allow for. C
D D
63. Mr Choi pleaded guilty to the offences in good time. He shall
E be entitled to the full 1/3 sentencing discount. There are no other E
mitigating factors of weight to justify any other sentence reduction.
F F
G 64. I should mention that for Charge 1, I have derived great G
assistance from the case of Lam Yu Wai (supra). There, the Court of
H H
Appeal said that even on a review, the starting point could not be lower
I than 6 years. I have noted the similarities and the differences in the facts I
as compared with the present case. For Charge 1 alone, with the facts of
J J
false imprisonment built in, but with the facts of AOABH and criminal
K intimidation left out, I would have adopted a starting point of 5 years and K
3 months’ imprisonment.
L L
M 65. In the premises, I will make the sentences of Charge 1 and M
Charge 4 (false imprisonment) run concurrently.
N N
O 66. I will impose sentences for the individual charges and make O
appropriate orders in line with totality to arrive at the final sentence of 44
P P
months’ imprisonment for Mr Choi.
Q Q
(Mr Choi, please stand)
R R
S 67. For Charge 1, the sentence is 42 months’ imprisonment. S
T T
68. For Charge 2, the sentence is 16 months’ imprisonment.
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A A
B B
C 69. For Charge 3, the sentence is 6 months’ imprisonment. C
D D
70. For Charge 4, the sentence is 12 months’ imprisonment.
E E
71. I order that the sentences of Charges 1 and 4 are to run
F F
concurrently. I further order that one month of the sentence on Charge 2,
G and one month of the sentence on Charge 3, are each to run consecutively G
to the concurrent sentences of Charges 1 and 4. The aggregate sentence
H H
for Mr Choi is therefore 44 months’ imprisonment.
I I
J J
K ( Isaac Tam ) K
District Judge
L L
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DCCC 360/2024
C [2025] HKDC 1352 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 360 OF 2024
F F
G ---------------------------- G
HKSAR
H H
v
I CHOI KWOK WAI I
----------------------------
J J
K Before: His Honour Judge Tam in Court K
Date: 6 August 2025
L L
Present: Ms Wong Hei Man Jaime, Public Prosecutor, for HKSAR
M Ms Chong Kwan Yu Sezen, instructed by Or & Partners, M
assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1] Indecent conduct towards a child under the age of 16 years
O (向年齡在16歲以下的兒童作出猥褻行為) O
P
[2] Criminal intimidation (刑事恐嚇) P
[3] Assault occasioning actual bodily harm (襲擊他人致造成
Q Q
身體傷害)
R [4] False imprisonment (非法禁錮) R
S S
T T
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A A
B B
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C REASONS FOR SENTENCE C
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D D
E 1. Mr Choi pleaded guilty before me to 4 charges on a Charge E
Sheet as follows.
F F
G 2. Charge 1 is Indecent conduct towards a child under the age of G
16 years, contrary to section 146(1) of the Crimes Ordinance, Cap 200.
H H
Particulars are that he, on 6 October 2023, at the male public toilet, Ground
I Floor, No 2 Wu Chui Road, Tuen Mun, New Territories, in Hong Kong, I
committed an act of gross indecency with or toward X, a boy of the age of
J J
10 years.
K K
3. Charge 2 is Criminal Intimidation, contrary to sections
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24(a)(ii) and 27 of the Crimes Ordinance, Cap 200. Particulars are that he,
M on the same date, at the same place, in Hong Kong, threatened X with M
injury to his person, with intent to cause the said X to do acts which he was
N N
not legally bound to do.
O O
4. Charge 3 is Assault occasioning actual bodily harm, contrary
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to Common Law and punishable under section 39 of the Offences against
Q the Person Ordinance, Cap 212. Particulars are that he, on the same date, Q
at the same place, in Hong Kong, assaulted X, thereby occasioning him
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actual bodily harm.
S S
5. Charge 4 is False imprisonment, contrary to Common Law
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and punishable under section 101I of the Criminal Procedure Ordinance,
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A A
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Cap 221. Particulars are that he, on the same date, at the same place, in
C Hong Kong, unlawfully and injuriously imprisoned X and detained him C
against his will.
D D
E Facts admitted by Mr Choi E
F F
6. X (a boy) was born in July 2013. Mr Choi was born in April
G 2002. At all material times, X was 10 years old; Mr Choi was 21 years old. G
They did not know one another before this incident.
H H
I 7. On 6 October 2023, at about 1515 hours, X was playing I
basketball with two classmates at a basketball court near No 2 Wu Chui
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Road, Tuen Mun.
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8. X was wearing short-sleeved top, a pair of shorts with
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underpants underneath.
M M
9. Mr Choi appeared at the basketball court and asked one of X’s
N N
classmates if he could borrow their basketball to play. He got the
O basketball and played on his own. O
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10. About 15 minutes later, Mr Choi asked one of X’s classmates
Q where the washroom was. He then walked away and returned after about Q
3 minutes. Mr Choi said he could not find the washroom and asked X to
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lead him there. X agreed.
S S
11. X and Mr Choi got to the male public toilet on Ground Floor
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of No 2 Wu Chui Road.
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C 12. Mr Choi asked X to close his eyes. X did so but only slightly, C
leaving open enough to see what was going on. Mr Choi grabbed X’s hand
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and took him into a cubicle before locking the door.
E E
13. Mr Choi loosened his own pants and removed his own
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underpants exposing his penis to full view.
G G
14. Mr Choi sat on the open toilet bowl. X was standing, facing
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Mr Choi.
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15. Mr Choi demanded X to take off his clothes. X refused. Mr
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Choi threatened X with death by strangling if he did not comply. Feeling
K scared, X took off all of his clothes with his back towards Mr Choi. Mr K
Choi then grabbed X’s shoulder and turned him around.
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M 16. Mr Choi demanded X viciously to perform oral sex on him M
with threats of death by strangling. Mr Choi pushed X’s shoulders down
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until X was kneeling. Feeling scared, X complied and did so for about one
O minute before stepping back. O
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17. Mr Choi then rubbed X’s penis for a few seconds.
Q Q
18. Mr Choi hugged X and physically made X sit on his lap. Mr
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Choi wrapped his right arm around X’s neck.
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T T
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19. X screamed. Mr Choi told him to stop or he would apply force
C using his right arm. Feeling scared, X stopped screaming. Mr Choi also C
put his left hand on X’s mouth, causing abrasions to X’s face and lips.
D D
E 20. Next, Mr Choi turned X around to face him. Mr Choi raised E
X’s left arm with his right hand. He licked X’s left underarm. While doing
F F
so, Mr Choi was masturbating with his left hand.
G G
21. Throughout the incident, X was detained by Mr Choi inside
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the cubicle without X’s consent.
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22. Under the pretext of checking if there was anyone in the other
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cubicles, X suggested going out to see. Mr Choi then released the lock and
K both left the cubicle. K
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23. When Mr Choi was distracted, X put back on his clothes and
M ran away. M
N N
24. At about 1550 hours, X was at home and appeared frightened
O in front of his father Y. O
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25. Later, X told Y what had happened.
Q Q
26. At about 2005 hours the same day, upon medical examination,
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X was diagnosed to be suffering from, inter alia, two abrasions on inner
S upper part of left cheek (upper one measuring 0.5cm x 0.8cm and lower S
one measuring 0.5cm x 0.5cm), an abrasion on left face just above left side
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of upper lip (measuring 0.3cm x 0.3cm), and two bands of abrasion on left
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outer upper part of face (inner one measuring 5cm x 0.3cm and outer one
C measuring 2cm x 0.3cm). C
D D
27. The medical opinion was that the abrasions on X’s face were
E evidence of recent blunt force injuries inflicted within about a day before E
the examination and could be inflicted by contact with relatively pointed
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objects or rough linear edges including fingernails.
G G
28. From the inside front of the short-sleeved top (a T-shirt) worn
H H
by X was found probable salivary stain. A mixed DNA profile originating
I from Mr Choi and X was found from the stain. I
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29. Under caution, Mr Choi said he could not hold back his sexual
K urge so he forced a handsome guy to perform oral sex on him. K
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Criminal record
M M
30. Mr Choi has a clear record.
N N
O Antecedents O
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31. Mr Choi is aged 23 (21 at the time of the offences). Born in
Q the Mainland, he settled in Hong Kong in 2008, then aged 6, and joined the Q
local education system till completion of F3. He has previously worked as
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a construction worker. Before arrest, he worked as a warehouse worker for
S a few months. Mr Choi is single and lived with his mother in public S
housing in Tuen Mun. He has a half-sister who shares the same biological
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father.
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C Mitigation C
D D
32. Ms Sezen Chong of counsel assigned by the Director of Legal
E Aid mitigated on behalf of Mr Choi. The following is a summary of the E
mitigation submissions.
F F
G 33. Mr Choi’s father was a construction site worker; he passed G
away in 2019. Before being remanded in custody, Mr Choi resided with
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his mother (in court to give him support) who is in her 50s, also a
I construction site worker. Mr Choi has an elder half-sister who is in her I
40s. Mr Choi is close emotionally to his sister.
J J
K 34. Mr Choi used to live on the disability allowance which was K
$2,100 per month. The allowance was insufficient for his daily living. He
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then had to find a job. Due to his low IQ, there were not many job
M opportunities available to him. Eventually, he found a job as a night-shift M
warehouse worker. The medication prescribed to him were to be taken at
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night. However, due to his work, he was not allowed to fall asleep. He
O hence stopped taking medicine. After around two months at work, he O
found himself easily agitated, irritated, becoming violent and had difficulty
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in controlling his sex drives. After all these months in remand, he has been
Q in drug compliance and is able to control his emotions. He deeply reflected Q
his misdeed and is remorseful and regretful for the harm he caused to X.
R R
S 35. Ms Chong submitted on behalf of Mr Choi 4 mitigation letters S
all written in Chinese respectively by Mr Choi himself, his mother, his half-
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sister and a social worker. The contents are generally that Mr Choi
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apologizes to the victim; that his family will help him reform with the
C assistance of social worker. Those who wrote on behalf of Mr Choi asked C
for a chance to be given to him.
D D
E 36. Ms Chong asked for updated medical report(s) on Mr Choi’s E
mental condition before sentencing. Besides, X’s victim impact report was
F F
still outstanding.
G G
37. After the three reports (see below) have been obtained, Ms
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Chong made the following further submissions.
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38. Ms Chong referred to HKSAR v Lee Hon Wah [2011] 4
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HKLRD 319, at para 38 (guidelines are unhelpful), and HKSAR v Tsang
K Chiu Tak [2013] 1 HKLRD 427, at paras 8-9 (see the “Sentence” section K
below).
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M 39. In relation to the mental disorder of Mr Choi, Ms Chong M
submitted, by reliance on Cross & Cheung, Sentencing in Hong Kong 11ed,
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paras 30-226, 30-228 and 30-230, that:
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“If an accused suffers from a mental disorder this may be of
P relevance in two ways. First, it affects the assessment of the P
extent of the objective criminality, and second, it influences the
Q
question of whether the case requires a deterrent sentence. Such Q
a person may lack effective powers of reasoning or control. It
may render him an inappropriate vehicle for general deterrence.
R The question of whether a particular mental condition should R
reduce moral culpability or general deterrence and the extent to
which it should do so would usually depend upon:
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(1) The nature and severity of the symptoms;
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(2) Its effect on the mental capacity of the offender at the
time of the offence or at the time of sentence. There must
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B be some connection between the condition and the B
commission of an offence. The nexus may be
C established by showing that it affected the offender’s C
ability to exercise an appropriate judgment in one or
more of the ways stated in R v Verdins (2007) 169 A
D Crim R 581; and D
E
(3) The nature and seriousness of the offence.” E
F 40. Ms Chong reminded the court of the application of the totality F
principle by laying emphasis on parts of paras 17-19, 21-23 of HKSAR v
G G
Ngai Yiu Ching [2011] 5 HKLRD 690 the relevant parts of which are
H reproduced immediately below: H
I I
“17. But when the prosecuting authority elects the latter course,
namely, to charge two or more offences arising from an episode
J of criminal activity, the objective is still the same; that is to say, J
the ultimate overall sentence must still reflect the overall and
K
true culpability, although the sentencing judge must take care, K
first, to pass a sentence for each individual offence that is
appropriate to that offence and the circumstances of its
L commission and, second, not to punish the offender twice for the L
same conduct.
M M
18. It was in an attempt to safeguard fairness to the offender by
ensuring that he was not punished twice for the same conduct
N that the courts developed the “one transaction” rule. In essence, N
this rule said that if the number of offences have been charged
arising from the one transaction or course of criminal conduct,
O then concurrent sentences should be imposed. O
P 19. The one transaction rule was not developed as an inflexible P
rule of law. It was never intended as anything more than a
practical rule of thumb to guide judges in the exercise of the
Q power to impose consecutive sentences so that the final sentence Q
was not one that was unfair to an offender.
R R
…
S 21. … whatever sentence is arrived at after application of the S
rule is still subject to the totality principle.
T 22. The importance of the totality principle cannot be overstated. T
It is there to ensure not only fairness to the offender, in the sense
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B that he is not punished twice for the same offence and, further, B
that the sentence is not an unduly crushing punishment, but it is
C also a tool by which to ensure that “the overall effect of the C
sentences is sufficient having regard to the usual principles of
deterrence, rehabilitation and denunciation.”: R v KM [2004]
D NSWCCA 65 at para.55. D
E
23. The emphasis therefore should be on a reflection in the E
sentence of true culpability disclosed by the offences of which
the accused has been convicted…”
F F
41. Ms Chong took issue with some of the findings of the
G G
prosecution experts’ reports on Mr Choi. Defence therefore asked for
H adjournment first to 2 May 2025, which was later further adjourned to 20 H
June 2025 by way of written application, for the purpose of seeking legal
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aid funds to obtain defence experts’ reports.
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42. Defence reports (one psychological and the other psychiatric)
K K
on Mr Choi have now been obtained and copied to the court. Generally,
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they echoed what has been said in the prosecution reports. For details, see
M
below. M
N N
43. Ms Chong submitted a further letter dated 19 June 2025
O written in Chinese by the same social worker. The letter outlined the O
rehabilitation plan for Mr Choi upon release from prison.
P P
Q 44. Ms Chong asked for a further adjournment to 6 August 2025 Q
so that the social worker who did not have time to go through the defence
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reports in detail may have an opportunity to do so and where appropriate
S devise a proposal to reduce Mr Choi’s chance of re-offending upon release. S
The proposal came in the form of a letter dated 30 July 2025 written in
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Chinese by the same social worker. By and large, it repeated what was
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written in the earlier letter dated 19 June. There were a few additions
C relating to provision of psychiatric medical service, religious service, C
vocational training partner service and riddance of alcoholic habits service.
D D
Ms Chong submitted that with these additional services, and more
E importantly Mr Choi’s acceptance of them, the chances of re-offending E
would be reduced.
F F
G 45. Prior to the present hearing on 6 August 2025, Ms Chong has G
filed a third set of written mitigation submissions. The following is a
H H
summary of the mitigation submissions.
I I
46. First of all, Ms Chong made further submissions on R v
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Verdins (2007) 169 A Crim R 581 which essentially were the holdings on
K 581 of the report. K
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47. After summarizing the important assessment results and
M diagnoses in the two defence reports, and repeating the second sentence in M
para 5 of the prosecution psychiatric report (by Dr Dorothy Tang) on Mr
N N
Choi, Ms Chong submitted that due to his medical/mental condition, in
O particular his bipolar affective disorder, attention-deficit hyperactivity O
disorder and atypical autism, Mr Choi had difficulty controlling his
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hypersexuality or impulsive sexual urge; that his low IQ inhibited him from
Q reasoning, effective problem solving or accessing support; that his poor Q
drug compliance also exacerbated his condition; that at the material time
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of the offence (sic), he was suffering from hypomania; that all these could
S have contributed to the offence (sic); the proper drug adherence and S
chemical treatment could have prevented Mr Choi from re-offending; that
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Mr Choi is determined to turn over a new leaf by receiving all kinds of
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treatment including chemical castration which could have eliminated his
C paedophilic tendency. C
D D
48. Ms Chong further submitted that, by reason of the aforesaid,
E Mr Choi’s offending is related to his medical/mental condition; that by E
reason of the nexus between his medical/mental condition and the offence
F F
(sic), his moral culpability in the offence (sic) is reduced and the
G considerations for general deterrence and specific deterrence in sentencing G
in this kind of offence are less relevant in Mr Choi’s case; that his need for
H H
treatment and rehabilitation assume a greater role in the sentencing.
I I
49. Ms Chong then referred to Secretary for Justice v Lam Yu Wai
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[2015] 1 HKLRD 400 (copy supplied by the court for defence’s comment).
K Ms Chong submitted that in that case, the respondent pleaded guilty to K
indecent conduct towards a child under 16; that the facts were that the
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respondent lured a boy aged 5 from a video games arcade to a staircase and
M forced the child to perform oral sex for him; that the respondent was aged M
41, had 22 previous convictions including three similar convictions and
N N
was most recently sentenced to 3 years and 9 months on a plea of guilty;
O that expert psychological and psychiatric evidence revealed the respondent O
had paedophilic tendency and a very high risk of reoffending; that he had
P P
superficial remorse; that the respondent was mildly mentally handicapped
Q with full scale IQ score of around 64; that the boy had suffered only minor Q
trauma.
R R
S 50. Ms Chong further stated that upon a review of sentence by the S
Secretary for Justice, the Court of Appel ruled that a starting sentence
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should not be lower than 6 years; that the Court found that the respondent’s
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low IQ was not related to his offences and that a deterrent sentence was
C warranted as he had multiple past similar convictions. Ms Chong said that C
the sentence there was reviewed to one of 6 years and reduced to 4 years
D D
for his guilty plea.
E E
51. Ms Chong submitted that the facts of Lam Yu Wai are
F F
comparable to those of the present case; that Mr Choi in the present case
G has less culpability than the respondent in Lam Yu Wai in that: G
H H
(a) Mr Choi has a clear record;
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(b) The victim in the present case is not as young as the
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victim in Lam Yu Wai;
K K
(c) Mr Choi’s offending is related to his medical/mental
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condition; and
M M
(d) Mr Choi’s risk of reoffending could have been
N N
eliminated by proper drug adherence and that he has
O evinced a determination to comply with treatment, even O
to the extent of receiving chemical castration.
P P
Q 52. Ms Chong concluded by submitting that a starting point of not Q
more than 5 years’ imprisonment is appropriate in the present case.
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S S
T T
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B B
Prosecution Reports
C C
53. Proceedings were adjourned for obtaining three reports,
D D
namely a Victim Impact (psychological) Report of X, a psychological
E report on Mr Choi, and an updated psychiatric report on Mr Choi. E
F F
54. In relation to X, the report found that although he had
G emotional disturbances and acute stress reactions mainly in the first few G
weeks after the index crime, he has largely revovered from this traumatic
H H
incident and resumed normal personal functioning; that there is no
I indication that he has been suffering from any significant or debilitating I
psychological disturbances and symptoms from the index incident at this
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stage.
K K
55. In relation to Mr Choi, the psychological report opined that
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following the onset of Bipolar Affective Disorder, his impulse control
M became problematic; that he experienced uncontrollable sexual urges, and M
tended to be indiscriminate in his sex partners; that he was highly suspected
N N
to have paedophilic tendency; that the index offence was his random act to
O fulfil his sexual impulse while the victim was his convenient target; that he O
disregarded the consequences and the harm done to the victim; that the
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unpredictability and unscrupulousness of his offending behaviour posed
Q great danger to the potential victims of prepubescent children and teenagers; Q
that his risk of sexual recidivism was Very High. Long term intensive
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psychological treatment combining psychiatric intervention was highly
S recommended. S
T T
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B B
56. In relation to Mr Choi, the psychiatric report opined that he
C has mental and behavioural disorder due to use of alcohol, harmful use, C
with history of bipolar affective disorder and attention deficit and
D D
hyperactive disorder; that he is also impressed to have pedophilic tendency;
E that outpatient follow-up for medication treatment and intense E
psychological service for impulse control is recommended.
F F
G Defence Reports G
H H
57. Defence have obtained and supplied to the court a copy of one
I psychological report written by Dr Sammy Cheng and one psychiatric I
report written by Dr Chung See Yuen both on Mr Choi.
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K 58. Dr Cheng has, inter alia, the following psychological K
conclusions and opinions on Mr Choi:-
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M (a) He has full-scale IQ of 78; M
N N
(b) He has bisexual orientation;
O O
(c) He has pedophilic tendency;
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Q (d) His insight into his current offense (sic) is limited and Q
partial; and
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S (e) His reoffending risk is “Well Above Average” and S
“High”.
T T
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A A
B B
59. Dr Chung has, inter alia, the following psychiatric opinions
C on Mr Choi: C
D D
(a) He has suffered from the following mental disorders:
E E
(i) Bipolar affective disorder;
F F
G (ii) Alcohol use disorder; G
H H
(iii) Borderline intellectual functioning – this has not
I impaired his understanding of the offence (sic) I
and his capacity to plead;
J J
K (iv) Attention deficit hyperactivity disorder; and K
L L
(v) Atypical autism;
M M
(b) He has paedophilic tendency;
N N
O (c) He was displaying some mild symptoms of bipolar O
affective disorder at the time of the offence (sic);
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Q (d) The adverse effects of the alcohol should have been Q
largely alleviated as the offence (sic) occurred several
R R
hours after the drinking;
S S
(e) He was displaying some symptoms of hypomania and
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was under the influence of alcohol at the time of the
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B B
offence (sic); these symptoms are mild; his judgment,
C awareness of the circumstances and self-control were C
mildly impaired at the time of the offence (sic);
D D
E (f) His risk of reoffence is high; and E
F F
(g) He has not displayed symptoms on hormonal
G irregularities. G
H H
Sentence
I I
60. In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, the Court
J J
of Appeal has the following observations:
K K
“8. The Court of Appeal reiterated in many recent cases that the
L Court had to protect innocent trusting children and prevent these L
vulnerable persons from sexual abuse which would cause them
physical and psychological trauma. In cases involving sexual
M M
assault on a child, it was necessary for the Court to adopt
deterrent sentences to deter others from committing similar
N offences. Such deterrent sentences were to show the abhorrence N
of members of the public to crimes of this nature and to redress
the grievance suffered by the victims and their families.
O O
9. The Court of Appeal pointed out that when the Court dealt
P with offences of sexual assault on a child, the factors that it P
needed to take into consideration included:
Q (1) The age difference between the defendant and the victim; Q
(2) The relationship between the defendant and the victim,
R R
including whether the defendant had taken advantage of
his position or status to commit the offence and whether
S there was a breach of trust in the case; S
(3) Whether the defendant had used threats or inducements
T to make the victim succumb; T
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A A
B (4) The number of occasions of committing the offences and B
the duration of the offences;
C C
(5) Whether inappropriate and unnecessary violence was
used by the defendant to cause harm or discomfort to the
D victim; D
E
(6) Whether any safety measures were taken by the E
defendant in sexually abusing the victim in order to
avoid transmitting any venereal disease to the victim or
F getting her pregnant; F
(7) Whether the sexual abuses have caused physical or
G G
psychological trauma to the victim;
H (8) Whether the offences have impact on the family H
members of the victim;
I (9) Whether the defendant was involved in other I
inappropriate behaviour such as inviting other people to
J watch or take photos or videos of the offence he J
committed; and
K (10) Whether the defendant is psychologically imbalanced K
and paedophilic and the likelihood of re-offending.”
L L
61. The Court of Appeal case of HKSAR v Lee Kwok Wai [2012]
M M
2 HKLRD 239 (brought to the attention of the court by prosecution) was
N one such case expressly referred to in Tsang Chiu Tak. N
O O
62. Putting everything in context, I intend to adopt a global
P starting point for all 4 charges in the case of Mr Choi. Bearing in mind the P
Tsang Chiu Tak observations and what Ms Chong said especially those
Q Q
contained in her third mitigation submissions, I will adopt a global starting
R point of 5 years and 6 months’ imprisonment. I am aware that this is a R
severe starting point of sentence for a first offender with some mental issue.
S S
But such are the circumstances of the present case with its distasteful
T features that it really cannot be helped. Furthermore, because of Mr Choi’s T
paedophilic tendency and his risk of re-offending being assessed as high or
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A A
B B
very high, the public has to be protected from him for as long as the law
C could allow for. C
D D
63. Mr Choi pleaded guilty to the offences in good time. He shall
E be entitled to the full 1/3 sentencing discount. There are no other E
mitigating factors of weight to justify any other sentence reduction.
F F
G 64. I should mention that for Charge 1, I have derived great G
assistance from the case of Lam Yu Wai (supra). There, the Court of
H H
Appeal said that even on a review, the starting point could not be lower
I than 6 years. I have noted the similarities and the differences in the facts I
as compared with the present case. For Charge 1 alone, with the facts of
J J
false imprisonment built in, but with the facts of AOABH and criminal
K intimidation left out, I would have adopted a starting point of 5 years and K
3 months’ imprisonment.
L L
M 65. In the premises, I will make the sentences of Charge 1 and M
Charge 4 (false imprisonment) run concurrently.
N N
O 66. I will impose sentences for the individual charges and make O
appropriate orders in line with totality to arrive at the final sentence of 44
P P
months’ imprisonment for Mr Choi.
Q Q
(Mr Choi, please stand)
R R
S 67. For Charge 1, the sentence is 42 months’ imprisonment. S
T T
68. For Charge 2, the sentence is 16 months’ imprisonment.
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B B
C 69. For Charge 3, the sentence is 6 months’ imprisonment. C
D D
70. For Charge 4, the sentence is 12 months’ imprisonment.
E E
71. I order that the sentences of Charges 1 and 4 are to run
F F
concurrently. I further order that one month of the sentence on Charge 2,
G and one month of the sentence on Charge 3, are each to run consecutively G
to the concurrent sentences of Charges 1 and 4. The aggregate sentence
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for Mr Choi is therefore 44 months’ imprisonment.
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K ( Isaac Tam ) K
District Judge
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