HKSAR v. Tsang Cheuk-sze, Candy

DCCC868/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 868 OF 2009

----------------------

----------------------

------------------------

Reasons for Sentence

------------------------

1.Miss Tsang Cheuk-sze, Candy is the 1st defendant in the present case. She faces four counts of theft. She pleads not guilty but is convicted of all four charges after trial. The particulars of the charges are fully set out in the charge sheet, and the court is not going to repeat them here now.

2.Her husband, Mr Yeung Wai-ming, Thomas, is the 2nd defendant in the case and he is charged jointly in three of the four counts of theft with the 1st defendant. He pleads not guilty and is acquitted of all the three charges after trial.

Facts Found

3.According to the facts found by the court during trial, the 1st defendant was a sales executive and then sales manageress of the Dandelion Fine Arts (“Dandelion”), a gallery operated by the West Coast International Trading Limited (“West Coast Trading”), a subsidiary of the West Coast International Limited (“West Coast”).

4.At the material times of the first three charges of theft, which were 10 February, 12 March and 5 June 2007 respectively, the 1st defendant was the sales manageress of Dandelion responsible for the running of the gallery. She made use of her position and the lax supervision of the gallery by West Coast Trading, stole from the gallery the three oil paintings detailed in the three charges and sold them through the 2nd defendant to the Chelsea Art Company. The three oil paintings were “The Young Shepherd” by Ai Xuan, “Water Village” by Chen Yi-fei, and “Wind Blowing Over One’s Shoulder” also by Ai Xuan, and they were respectively sold for $408,000, $530,000 and $462,000.

5.From 23 November 2004 to 24 November 2005, the 1st defendant submitted claims to West Coast Trading for reimbursements of entertainment expenses incurred in having meals with a Japanese customer, Mr Ikejiri. The meals were, however, taken by the 1st defendant with her colleagues or friends, and the claims were false. The total amount of money the 1st defendant obtained was $7,287.

6.After the arrest, the 1st defendant made confessions in the video-recorded interviews which were admitted into evidence during the trial after a voir dire by way of alternative procedure.

Criminal Record

7.The 1st defendant has a clear criminal record.

Background Report

8.According to the background report of the 1st defendant obtained by the court, the 1st defendant is aged 39 and is married to the 2nd defendant. Her parents divorced when she was young and she was brought up by her father and stepmother. The 1st defendant did not get along well with her stepmother, and being torn between her natural parents amid the marital conflicts, the 1st defendant also fell out with her mother when she was studying Form 5. The 1st defendant completed secondary education but failed in two out of the five subjects she took in the Hong Kong Certificate of Education Examination in 1988. She had developed a successful career as a secretary in various companies before she joined Dandelion.

9.Her duties in Dandelion included helping Professor Cheung Ng-sheong, an eminent economist, in delivering and collecting art pieces across the Hong Kong-China border. She suffered back injuries during her work and had been on sick leave for six months before she quitted the job in December 2008. She received compensation of $170,000 for the injuries.

10.The 1st defendant found love and care in her husband and his family in her early childhood, and she and the 2nd defendant got married 14 years ago. Her husband had run a snack shop, but business was sluggish and the shop was later closed down.

11.According to the 1st defendant, the money she obtained from the sale of the three paintings had all been used for loan repayment and litigation fee. She is a regular donor to charitable causes. The separation of the 1st defendant from her husband due to her present incarceration has caused much anxiety and depression to both of them. The 1st defendant asks for a chance of early reunion with her fragile husband to start anew.

Mitigation

12.Counsel for the defence submits that this is not a straightforward case of breach of trust. In the mind of the 1st defendant, her boss was Professor Cheung and she theoretically owed the trust to him only. Counsel points out that trust between employee and employer runs both ways: from the employee to the employer and vice versa. The employee has to trust the employer but in the present case, Professor Cheung himself was not trustworthy. He had asked the 1st defendant to do things which she should not be doing and had made promises to her. Because of all this and the role of Professor Cheung as well as the setup of West Coast, counsel submits that the offences in the present case do not amount to a breach of trust.

13.Counsel asks the court to consider two points. Firstly, the defendant, while working for Dandelion, had been earning more money than she had ever been; and, secondly, she had run out of her depth before she realised that herself. Counsel stresses that a long custodial sentence is not appropriate in the present case.

14.Regarding the value of the oil paintings, counsel for the defence submits that values of art fluctuate. Although the buyer of the paintings from the 1st defendant had resold them at much higher prices, the court should consider the prices at which the paintings were sold by the 1st defendant to the buyer.

Sentence

15.With due respect to the counsel for the defence, the court must point out that this is a clear case of breach of trust. The 1st defendant must no doubt be fully aware that she was working for Dandelion even if Professor Cheung gave her orders and was her de facto boss. It is part of the facts found by the court during trial that the three oil paintings belonged to West Coast Trading at law no matter it had the ownership of them or otherwise. Being the manageress responsible for the running of the gallery, the 1st defendant no doubt must be in breach of trust to West Coast Trading when she stole the paintings from the gallery. Even if the paintings did belong to Professor Cheung as alleged by the 1st defendant, the 1st defendant was still in breach of trust to steal them without the consent of Professor Cheung. This was so even if Professor Cheung was not trustworthy and was not a boss to be trusted.

16.The false claims for entertainment expenses by the 1st defendant were equally a clear case of a breach of trust. The court has much sympathy for the work that the 1st defendant had to do for Professor Cheung in delivering and collecting art pieces across the Hong Kong and China border. This might be work she should not be doing, but the court must point out that this counts very little towards mitigation.

17.The court considers that the sentencing guidelines laid down by the Court of Appeal in the case of HKSAR v Cheung Mee Kiu CACC99/2006 a useful reference for the present case. According to these guidelines, if the amount of money stolen through breach of trust is $1 million to $3 million, the normal starting point is 3 to 4 years’ imprisonment.

18.The court accepts the submission of the defence counsel that the values of art fluctuate. The court has in fact found during trial the evidence of the buyer of the three oil paintings that he had paid a reasonable price for the paintings to be trustworthy. The court therefore takes the amount of money obtained by the 1st defendant through the sale of the three paintings as the total value of the oil paintings she had stolen. The value was therefore $1.4 million.

19.The court is of the view that the sentences of the three charges relating to the three oil paintings are best dealt with by way of a global sentence. The court is also of the view that the guidelines in the case of HKSAR v Cheung Mee Kiu should be applied in the present case. The starting point in accordance with these guidelines would be one of about 3 years 2 months’ imprisonment. Taking into consideration the clear record of the 1st defendant and the errands given to her by Professor Cheung which were of doubtful legitimacy, the court adopts a starting point of 2 years 9 months’ imprisonment.

20.The court considers that there is no further ground of mitigation which would justify a further reduction in the sentence. The 1st defendant is accordingly sentenced to 2 years 9 months’ imprisonment for each of Charge 1, Charge 2 and Charge 3 which are to run concurrently.

21.As regards Charge 4, the court adopts a starting point of 6 months’ imprisonment. After considering all the mitigating factors of the 1st defendant, the court sentences her to 5 months’ imprisonment in respect of Charge 4. Having considered the nature of the case and the totality principle, the court orders 3 months of the sentence of Charge 4 to run consecutively to the sentences of Charge 1, 2 and 3. The defendant is to serve a total of 3 years’ imprisonment.