HKSAR v. CHOI KWOK WAI

DCCC 360/2024

[2025] HKDC 1352

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 360 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Choi pleaded guilty before me to 4 charges on a Charge Sheet as follows.

2.  Charge 1 is Indecent conduct towards a child under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance, Cap 200.  Particulars are that he, on 6 October 2023, at the male public toilet, Ground Floor, No 2 Wu Chui Road, Tuen Mun, New Territories, in Hong Kong, committed an act of gross indecency with or toward X, a boy of the age of 10 years.

3.  Charge 2 is Criminal Intimidation, contrary to sections 24(a)(ii) and 27 of the Crimes Ordinance, Cap 200.  Particulars are that he, on the same date, at the same place, in Hong Kong, threatened X with injury to his person, with intent to cause the said X to do acts which he was not legally bound to do.

4.  Charge 3 is Assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212.  Particulars are that he, on the same date, at the same place, in Hong Kong, assaulted X, thereby occasioning him actual bodily harm.

5.  Charge 4 is False imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221.  Particulars are that he, on the same date, at the same place, in Hong Kong, unlawfully and injuriously imprisoned X and detained him against his will.

Facts admitted by Mr Choi

6.  X (a boy) was born in July 2013.  Mr Choi was born in April 2002.  At all material times, X was 10 years old; Mr Choi was 21 years old.  They did not know one another before this incident.

7.  On 6 October 2023, at about 1515 hours, X was playing basketball with two classmates at a basketball court near No 2 Wu Chui Road, Tuen Mun.

8.  X was wearing short-sleeved top, a pair of shorts with underpants underneath.

9.  Mr Choi appeared at the basketball court and asked one of X’s classmates if he could borrow their basketball to play.  He got the basketball and played on his own.

10.  About 15 minutes later, Mr Choi asked one of X’s classmates where the washroom was.  He then walked away and returned after about 3 minutes.  Mr Choi said he could not find the washroom and asked X to lead him there.  X agreed.

11.  X and Mr Choi got to the male public toilet on Ground Floor of No 2 Wu Chui Road.

12.  Mr Choi asked X to close his eyes.  X did so but only slightly, leaving open enough to see what was going on.  Mr Choi grabbed X’s hand and took him into a cubicle before locking the door.

13.  Mr Choi loosened his own pants and removed his own underpants exposing his penis to full view.

14.  Mr Choi sat on the open toilet bowl.  X was standing, facing Mr Choi.

15.  Mr Choi demanded X to take off his clothes.  X refused.  Mr Choi threatened X with death by strangling if he did not comply.  Feeling scared, X took off all of his clothes with his back towards Mr Choi.  Mr Choi then grabbed X’s shoulder and turned him around.

16.  Mr Choi demanded X viciously to perform oral sex on him with threats of death by strangling.  Mr Choi pushed X’s shoulders down until X was kneeling. Feeling scared, X complied and did so for about one minute before stepping back.

17.  Mr Choi then rubbed X’s penis for a few seconds.

18.  Mr Choi hugged X and physically made X sit on his lap.  Mr Choi wrapped his right arm around X’s neck.

19.  X screamed.  Mr Choi told him to stop or he would apply force using his right arm.  Feeling scared, X stopped screaming.  Mr Choi also put his left hand on X’s mouth, causing abrasions to X’s face and lips.

20.  Next, Mr Choi turned X around to face him.  Mr Choi raised X’s left arm with his right hand.  He licked X’s left underarm.  While doing so, Mr Choi was masturbating with his left hand.

21.  Throughout the incident, X was detained by Mr Choi inside the cubicle without X’s consent.

22.  Under the pretext of checking if there was anyone in the other cubicles, X suggested going out to see.  Mr Choi then released the lock and both left the cubicle.

23.  When Mr Choi was distracted, X put back on his clothes and ran away.

24.  At about 1550 hours, X was at home and appeared frightened in front of his father Y.

25.  Later, X told Y what had happened.

26.  At about 2005 hours the same day, upon medical examination, X was diagnosed to be suffering from, inter alia, two abrasions on inner upper part of left cheek (upper one measuring 0.5cm x 0.8cm and lower one measuring 0.5cm x 0.5cm), an abrasion on left face just above left side of upper lip (measuring 0.3cm x 0.3cm), and two bands of abrasion on left outer upper part of face (inner one measuring 5cm x 0.3cm and outer one measuring 2cm x 0.3cm).

27.  The medical opinion was that the abrasions on X’s face were evidence of recent blunt force injuries inflicted within about a day before the examination and could be inflicted by contact with relatively pointed objects or rough linear edges including fingernails.

28.  From the inside front of the short-sleeved top (a T-shirt) worn by X was found probable salivary stain.  A mixed DNA profile originating from Mr Choi and X was found from the stain.

29.  Under caution, Mr Choi said he could not hold back his sexual urge so he forced a handsome guy to perform oral sex on him.

Criminal record

30.  Mr Choi has a clear record.

Antecedents

31.  Mr Choi is aged 23 (21 at the time of the offences).  Born in the Mainland, he settled in Hong Kong in 2008, then aged 6, and joined the local education system till completion of F3.  He has previously worked as a construction worker.  Before arrest, he worked as a warehouse worker for a few months.  Mr Choi is single and lived with his mother in public housing in Tuen Mun.  He has a half-sister who shares the same biological father.

Mitigation

32.  Ms Sezen Chong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Choi.  The following is a summary of the mitigation submissions.

33.  Mr Choi’s father was a construction site worker; he passed away in 2019.  Before being remanded in custody, Mr Choi resided with his mother (in court to give him support) who is in her 50s, also a construction site worker. Mr Choi has an elder half-sister who is in her 40s.  Mr Choi is close emotionally to his sister.

34.  Mr Choi used to live on the disability allowance which was $2,100 per month.  The allowance was insufficient for his daily living.  He then had to find a job.  Due to his low IQ, there were not many job opportunities available to him.  Eventually, he found a job as a night-shift warehouse worker.  The medication prescribed to him were to be taken at night.  However, due to his work, he was not allowed to fall asleep.  He hence stopped taking medicine. After around two months at work, he found himself easily agitated, irritated, becoming violent and had difficulty in controlling his sex drives.  After all these months in remand, he has been in drug compliance and is able to control his emotions.  He deeply reflected his misdeed and is remorseful and regretful for the harm he caused to X.

35.  Ms Chong submitted on behalf of Mr Choi 4 mitigation letters all written in Chinese respectively by Mr Choi himself, his mother, his half-sister and a social worker.  The contents are generally that Mr Choi apologizes to the victim; that his family will help him reform with the assistance of social worker.  Those who wrote on behalf of Mr Choi asked for a chance to be given to him.

36.  Ms Chong asked for updated medical report(s) on Mr Choi’s mental condition before sentencing.  Besides, X’s victim impact report was still outstanding.

37.  After the three reports (see below) have been obtained, Ms Chong made the following further submissions.

38.  Ms Chong referred to HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, at para 38 (guidelines are unhelpful), and HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, at paras 8-9 (see the “Sentence” section below).

39.  In relation to the mental disorder of Mr Choi, Ms Chong submitted, by reliance on Cross & Cheung, Sentencing in Hong Kong 11ed, paras 30-226, 30-228 and 30-230, that:

“If an accused suffers from a mental disorder this may be of relevance in two ways. First, it affects the assessment of the extent of the objective criminality, and second, it influences the question of whether the case requires a deterrent sentence. Such a person may lack effective powers of reasoning or control. It may render him an inappropriate vehicle for general deterrence. The question of whether a particular mental condition should reduce moral culpability or general deterrence and the extent to which it should do so would usually depend upon:

(1) The nature and severity of the symptoms;

(2) Its effect on the mental capacity of the offender at the time of the offence or at the time of sentence. There must be some connection between the condition and the commission of an offence. The nexus may be established by showing that it affected the offender’s ability to exercise an appropriate judgment in one or more of the ways stated in R v Verdins (2007) 169 A Crim R 581; and

(3) The nature and seriousness of the offence.”

40.  Ms Chong reminded the court of the application of the totality principle by laying emphasis on parts of paras 17-19, 21-23 of HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 the relevant parts of which are reproduced immediately below:

“17. But when the prosecuting authority elects the latter course, namely, to charge two or more offences arising from an episode of criminal activity, the objective is still the same; that is to say, the ultimate overall sentence must still reflect the overall and true culpability, although the sentencing judge must take care, first, to pass a sentence for each individual offence that is appropriate to that offence and the circumstances of its commission and, second, not to punish the offender twice for the same conduct.

18. It was in an attempt to safeguard fairness to the offender by ensuring that he was not punished twice for the same conduct that the courts developed the “one transaction” rule. In essence, this rule said that if the number of offences have been charged arising from the one transaction or course of criminal conduct, then concurrent sentences should be imposed.

19. The one transaction rule was not developed as an inflexible rule of law. It was never intended as anything more than a practical rule of thumb to guide judges in the exercise of the power to impose consecutive sentences so that the final sentence was not one that was unfair to an offender.

…

21. … whatever sentence is arrived at after application of the rule is still subject to the totality principle.

22. The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment, but it is also a tool by which to ensure that “the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.”: R v KM [2004] NSWCCA 65 at para.55.

23. The emphasis therefore should be on a reflection in the sentence of true culpability disclosed by the offences of which the accused has been convicted…”

41.  Ms Chong took issue with some of the findings of the prosecution experts’ reports on Mr Choi.  Defence therefore asked for adjournment first to 2 May 2025, which was later further adjourned to 20 June 2025 by way of written application, for the purpose of seeking legal aid funds to obtain defence experts’ reports.

42.  Defence reports (one psychological and the other psychiatric) on Mr Choi have now been obtained and copied to the court.  Generally, they echoed what has been said in the prosecution reports.  For details, see below.

43.  Ms Chong submitted a further letter dated 19 June 2025 written in Chinese by the same social worker.  The letter outlined the rehabilitation plan for Mr Choi upon release from prison.

44.  Ms Chong asked for a further adjournment to 6 August 2025 so that the social worker who did not have time to go through the defence reports in detail may have an opportunity to do so and where appropriate devise a proposal to reduce Mr Choi’s chance of re-offending upon release.  The proposal came in the form of a letter dated 30 July 2025 written in Chinese by the same social worker.  By and large, it repeated what was written in the earlier letter dated 19 June.  There were a few additions relating to provision of psychiatric medical service, religious service, vocational training partner service and riddance of alcoholic habits service.  Ms Chong submitted that with these additional services, and more importantly Mr Choi’s acceptance of them, the chances of re-offending would be reduced.

45.  Prior to the present hearing on 6 August 2025, Ms Chong has filed a third set of written mitigation submissions.  The following is a summary of the mitigation submissions.

46.  First of all, Ms Chong made further submissions on R v Verdins (2007) 169 A Crim R 581 which essentially were the holdings on 581 of the report.

47.  After summarizing the important assessment results and diagnoses in the two defence reports, and repeating the second sentence in para 5 of the prosecution psychiatric report (by Dr Dorothy Tang) on Mr Choi, Ms Chong submitted that due to his medical/mental condition, in particular his bipolar affective disorder, attention-deficit hyperactivity disorder and atypical autism, Mr Choi had difficulty controlling his hypersexuality or impulsive sexual urge; that his low IQ inhibited him from reasoning, effective problem solving or accessing support; that his poor drug compliance also exacerbated his condition; that at the material time of the offence (sic), he was suffering from hypomania; that all these could have contributed to the offence (sic); the proper drug adherence and chemical treatment could have prevented Mr Choi from re-offending; that Mr Choi is determined to turn over a new leaf by receiving all kinds of treatment including chemical castration which could have eliminated his paedophilic tendency.

48.  Ms Chong further submitted that, by reason of the aforesaid, Mr Choi’s offending is related to his medical/mental condition; that by reason of the nexus between his medical/mental condition and the offence (sic), his moral culpability in the offence (sic) is reduced and the considerations for general deterrence and specific deterrence in sentencing in this kind of offence are less relevant in Mr Choi’s case; that his need for treatment and rehabilitation assume a greater role in the sentencing.

49.  Ms Chong then referred to Secretary for Justice v Lam Yu Wai [2015] 1 HKLRD 400 (copy supplied by the court for defence’s comment).  Ms Chong submitted that in that case, the respondent pleaded guilty to indecent conduct towards a child under 16; that the facts were that the respondent lured a boy aged 5 from a video games arcade to a staircase and forced the child to perform oral sex for him; that the respondent was aged 41, had 22 previous convictions including three similar convictions and was most recently sentenced to 3 years and 9 months on a plea of guilty; that expert psychological and psychiatric evidence revealed the respondent had paedophilic tendency and a very high risk of reoffending; that he had superficial remorse; that the respondent was mildly mentally handicapped with full scale IQ score of around 64; that the boy had suffered only minor trauma.

50.  Ms Chong further stated that upon a review of sentence by the Secretary for Justice, the Court of Appel ruled that a starting sentence should not be lower than 6 years; that the Court found that the respondent’s low IQ was not related to his offences and that a deterrent sentence was warranted as he had multiple past similar convictions.  Ms Chong said that the sentence there was reviewed to one of 6 years and reduced to 4 years for his guilty plea.

51.  Ms Chong submitted that the facts of Lam Yu Wai are comparable to those of the present case; that Mr Choi in the present case has less culpability than the respondent in Lam Yu Wai in that:

(a) Mr Choi has a clear record;

(b) The victim in the present case is not as young as the victim in Lam Yu Wai;

(c) Mr Choi’s offending is related to his medical/mental condition; and

(d) Mr Choi’s risk of reoffending could have been eliminated by proper drug adherence and that he has evinced a determination to comply with treatment, even to the extent of receiving chemical castration.

52.  Ms Chong concluded by submitting that a starting point of not more than 5 years’ imprisonment is appropriate in the present case.

Prosecution Reports

53.  Proceedings were adjourned for obtaining three reports, namely a Victim Impact (psychological) Report of X, a psychological report on Mr Choi, and an updated psychiatric report on Mr Choi.

54.  In relation to X, the report found that although he had emotional disturbances and acute stress reactions mainly in the first few weeks after the index crime, he has largely revovered from this traumatic incident and resumed normal personal functioning; that there is no indication that he has been suffering from any significant or debilitating psychological disturbances and symptoms from the index incident at this stage.

55.  In relation to Mr Choi, the psychological report opined that following the onset of Bipolar Affective Disorder, his impulse control became problematic; that he experienced uncontrollable sexual urges, and tended to be indiscriminate in his sex partners; that he was highly suspected to have paedophilic tendency; that the index offence was his random act to fulfil his sexual impulse while the victim was his convenient target; that he disregarded the consequences and the harm done to the victim; that the unpredictability and unscrupulousness of his offending behaviour posed great danger to the potential victims of prepubescent children and teenagers; that his risk of sexual recidivism was Very High.  Long term intensive psychological treatment combining psychiatric intervention was highly recommended.

56.  In relation to Mr Choi, the psychiatric report opined that he has mental and behavioural disorder due to use of alcohol, harmful use, with history of bipolar affective disorder and attention deficit and hyperactive disorder; that he is also impressed to have pedophilic tendency; that outpatient follow-up for medication treatment and intense psychological service for impulse control is recommended.

Defence Reports

57.  Defence have obtained and supplied to the court a copy of one psychological report written by Dr Sammy Cheng and one psychiatric report written by Dr Chung See Yuen both on Mr Choi.

58.  Dr Cheng has, inter alia, the following psychological conclusions and opinions on Mr Choi:-

(a) He has full-scale IQ of 78;

(b) He has bisexual orientation;

(c) He has pedophilic tendency;

(d) His insight into his current offense (sic) is limited and partial; and

(e) His reoffending risk is “Well Above Average” and “High”.

59.  Dr Chung has, inter alia, the following psychiatric opinions on Mr Choi:

(a) He has suffered from the following mental disorders:

(i) Bipolar affective disorder;

(ii) Alcohol use disorder;

(iii) Borderline intellectual functioning – this has not impaired his understanding of the offence (sic) and his capacity to plead;

(iv) Attention deficit hyperactivity disorder; and

(v) Atypical autism;

(b) He has paedophilic tendency;

(c) He was displaying some mild symptoms of bipolar affective disorder at the time of the offence (sic);

(d) The adverse effects of the alcohol should have been largely alleviated as the offence (sic) occurred several hours after the drinking;

(e) He was displaying some symptoms of hypomania and was under the influence of alcohol at the time of the offence (sic); these symptoms are mild; his judgment, awareness of the circumstances and self-control were mildly impaired at the time of the offence (sic);

(f) His risk of reoffence is high; and

(g) He has not displayed symptoms on hormonal irregularities.

Sentence

60.  In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427, the Court of Appeal has the following observations:

“8. The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.

9. The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:

(1) The age difference between the defendant and the victim;

(2) The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3) Whether the defendant had used threats or inducements to make the victim succumb;

(4) The number of occasions of committing the offences and the duration of the offences;

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6) Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7) Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8) Whether the offences have impact on the family members of the victim;

(9) Whether the defendant was involved in other inappropriate behaviour such as inviting other people to watch or take photos or videos of the offence he committed; and

(10) Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.”

61.  The Court of Appeal case of HKSAR v Lee Kwok Wai [2012] 2 HKLRD 239 (brought to the attention of the court by prosecution) was one such case expressly referred to in Tsang Chiu Tak.

62.  Putting everything in context, I intend to adopt a global starting point for all 4 charges in the case of Mr Choi.  Bearing in mind the Tsang Chiu Tak observations and what Ms Chong said especially those contained in her third mitigation submissions, I will adopt a global starting point of 5 years and 6 months’ imprisonment.  I am aware that this is a severe starting point of sentence for a first offender with some mental issue.  But such are the circumstances of the present case with its distasteful features that it really cannot be helped.  Furthermore, because of Mr Choi’s paedophilic tendency and his risk of re-offending being assessed as high or very high, the public has to be protected from him for as long as the law could allow for.

63.  Mr Choi pleaded guilty to the offences in good time.  He shall be entitled to the full 1/3 sentencing discount.  There are no other mitigating factors of weight to justify any other sentence reduction.

64.  I should mention that for Charge 1, I have derived great assistance from the case of Lam Yu Wai (supra).  There, the Court of Appeal said that even on a review, the starting point could not be lower than 6 years.  I have noted the similarities and the differences in the facts as compared with the present case.  For Charge 1 alone, with the facts of false imprisonment built in, but with the facts of AOABH and criminal intimidation left out, I would have adopted a starting point of 5 years and 3 months’ imprisonment.

65.  In the premises, I will make the sentences of Charge 1 and Charge 4 (false imprisonment) run concurrently.

66.  I will impose sentences for the individual charges and make appropriate orders in line with totality to arrive at the final sentence of 44 months’ imprisonment for Mr Choi.

(Mr Choi, please stand)

67.  For Charge 1, the sentence is 42 months’ imprisonment.

68.  For Charge 2, the sentence is 16 months’ imprisonment.

69.  For Charge 3, the sentence is 6 months’ imprisonment.

70.  For Charge 4, the sentence is 12 months’ imprisonment.

71.  I order that the sentences of Charges 1 and 4 are to run concurrently. I further order that one month of the sentence on Charge 2, and one month of the sentence on Charge 3, are each to run consecutively to the concurrent sentences of Charges 1 and 4.  The aggregate sentence for Mr Choi is therefore 44 months’ imprisonment.