HKSAR v. Tsang Kwong Kan and Others

DCCC 73/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 73 OF 2015

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Reasons for Sentence

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1.I have convicted the 2nd and the 3rd defendants of charge 1 and the 3rd defendant of charge 2 after trial. I do not intend to repeat the facts of the case, I gave full details in my Verdict. I will deal first with the defendants’ background.

2.The 2nddefendant is 62 years old, as is now the 3rd defendant.  Both the defendants until now have had clear records.  The 2nd defendant is single.  She was educated up until Form 3.  She worked and helped in the family business, a jade shop in the jade trade for many years and was a Director of Maryo with her half-brother, the deceased.  I have had letters of mitigation from the 2nd defendant’s mother, friends and sister.  I have taken into account the contents.

3.The 3rd defendant is divorced.  He was educated up until Primary 6 level.  His antecedent sets out that he worked as a logistic worker in a cold storage business as well as a worker at a fish market and is now retired.  Mr Wu described him as alone and retired without the means to support himself or any savings to speak of.

4.In this case, the conspiracy to defraud Maryo involved an amount of $10.13 million.  This case stemmed from firstly greed and secondly a sense of grievance fostered by many years of civil litigation.  The decisions went against the 2nd defendant’s family.  From P55, the statement provided by the 2nd defendant, it is clear that she still, despite the court rulings, was of the view that her family, her mother, were still entitled to the assets of Maryo and other assets.  Maryo had up to $13 million in assets at one time before litigation started and by the time the legal beneficiary determined by the courts could call herself the legal owner of Maryo, Maryo only had a few thousand dollars left in its account.

5.I am sure the 2nd defendant with the 3rd defendant planned to dissipate the assets of Maryo through what they thought looked like a legitimate sale and purchase agreement.  The 2nd defendant decided that Maryo would buy jade for $12 million from the 3rd defendant. The 3rd defendant supplied the jade but I am sure he did knowing it was not worth that amount.  The defendants could not have made this conspiracy work without each other.  The defendants needed each other, the jade, the cash and the paperwork to appear bona fide. 

6.On the face of it, therefore, the defendants’ conspiracy led to a loss of $10.13 million for Maryo, a very large sum of money, and on the face of it, it could only have been for their benefit.  The plan was elaborate and well thought out.  On those facts, it is a very serious case that merits a term of imprisonment.  As far as the loss is concerned, Maryo recovered, it seems, $7.8 million.  The loss, therefore, is reduced to $2.2 million. 

7.It has been submitted in mitigation that the jade was seized and last year worth between $500,000 and $1.5 million as assessed by Professor Ou Yang and Mr Chung.  It has been submitted that this could mitigate the loss further.

8.As far as motive is concerned, as I have said, greed must be an essential element.  However, as Mr Cheng has put it, this case has an unusual background.  There is a history, in fact a sad history.  Family disputes between two connected families spanning a long time came to a head when the deceased died intestate.  Therefore this lead to a fight was Maryo’s two properties and other properties in the deceased’s name, a valuable estate. This led to a bitter, protracted and contentious litigation.  It is still ongoing but it seems that the estate was lost to Madam Leung; the 2nd defendant’s family did not benefit.

9.As I have said, there is evidence that the 2nd defendant was very aggrieved.  The decision must have been a bitter pill to swallow.  She chose not to swallow it but through illegal means take what she considered theirs, or rather, deprive PW4 of Maryo.  Hence the 2nd defendant, I found, must have been blinded by greed and anger. 

10.For the 3rd defendant, I am not sure what motivated him to conspire with the 2nd defendant but it must have been either a financial benefit or a misplaced loyalty.  Mr Wu has submitted that for the 3rd defendant I should differentiate his role to that of the 2nd defendant. However, I disagree, they could not have made this conspiracy work without each other.

11.Against this background are two defendants in their sixties with previous clear records.  It has been submitted that delay in charging the defendants is a factor I should take into account.  All defendants were arrested in July 2012 but released not long after whilst the investigation continued.  They were not arrested again until two years later and charged. The trial commenced just one year from that date.  It seems no real blame can be apportioned to any party but time was required to investigate and find experts to value the jade here.  Nonetheless, there was a long period of time between the first arrest and to trial and I will take that into account.

12.Ultimately, I am still of the view that despite the delay, mitigation and history of the case, a term of imprisonment is appropriate.  Obviously those factors will mean I will reduce the starting point to reflect them.  Additional factors will include the defendants’ age and previous clear records.  However, I cannot ignore the loss suffered, the amounts involved in this case, modus operandi of the conspiracy and that greed had to have played a factor. 

13.Therefore I take for charge 1 a starting point of 4 years’ imprisonment.  I reduce that starting point by 1 year to reflect the mitigation put forward, the history behind this conspiracy, the age of the defendants and their previous clear records.  I have decided to reduce this starting point by a further 4 months to reflect the delay in charging and bringing this case to court.  That reduces the starting point to 2 years and 8 months.

14.Both defendants have been convicted after trial.  I see no reason to reduce it any further. 

15.Therefore, for charge 1, the 2nd and the 3rd defendant, you are sentenced to 2 years and 8 months’ imprisonment.

16.Charge 2 arises from charge 1 and I agree with Mr Wu’s submission that it should be a concurrent sentence.  I impose the same sentence.  For charge 2, the 3rd defendant is sentenced to 2 years and 8 months to be served concurrently to charge 1.