HKSAR v. TAM KAM KONG

1998, No. 3
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Rogers, J.A. (delivering the judgment of the Court) :

1. In this case on the 15th December 1997, the Appellant pleaded guilty to an amended charge namely conspiracy to make false instruments.

2. The Particulars of Offence were :-

"TAM Kam-kong, between the 1st day of February, 1994 and the 30th day of April 1994, in Hong Kong, conspired with LEE Yip-kun Solomon, to make false instruments, namely sale notes purporting to evidence sales of fruit by Tam Kong Kee and Cheung Kong to Frenson (Hong Kong) Limited and sale notes purporting to show compensation claims against the said Frenson (Hong Kong) Limited by Tam Kong Kee and Cheung Kong for defective fruit supplied, with the intention that they or another shall use them to induce the said Frenson (Hong Kong) Limited to accept them as genuine, and by reason of so accepting them, not to do some act to the prejudice of the said Frenson (Hong Kong) Limited, namely not to ask the said LEE Yip-kun Solomon to account for part of the whole sum of money alleged by LEE Yip-kun Solomon to be owed by Tam Kong Kee and Cheung Kong to the said Frenson (Hong Kong) Limited."

3. Briefly the facts that lay behind this case were that the Appellant was a fruit dealer. He had been purchasing fruit from a company called Frenson (Hong Kong) Limited. He had dealt through one of their directors, Mr Solomon Lee. It suffices for the present purposes to say that, on the face of the documents which were available to Frenson, it appeared that the Appellant owed Frenson a substantial sum of money. Hence on the 4th July 1994 a writ was issued on behalf of Frenson against the Appellant. We have not seen the writ but according to the transcript of the evidence, the sum claimed in the writ was in the region of $17 million.

4. The Appellant apparently consulted Solomon Lee who said that he would take care of the matter on the Appellant's behalf. Thereafter, Solicitors and Counsel were instructed by Solomon Lee to act on behalf of the Appellant in the civil Action. The Appellant apparently only paid a token amount of something in the region of $5,000 to that firm of solicitors. A holding Defence was filed on behalf of the Defendant but the Action languished on until the end of that year.

5. It seems that the Appellant rethought his tactics. He approached Frenson and spoke to a Mr Mao who was the most senior person in the Company. He told Mr Mao that the culprit was Mr Solomon Lee who had defrauded Frenson of approximately $40 million. The Appellant told Mr Mao that he would be prepared to assist Frenson in providing evidence against Mr Lee but because of the difficulties that would create for him, the Appellant, he would need some form of security for himself and his family. The reason for this was that once he had provided evidence against Mr Lee it would be impossible for the Appellant to remain in the fruit business and possibly earn his living. In short he wished to have a substantial sum of money and to have his family relocated to Thailand.

6. There followed negotiations between directors and solicitors acting for Frenson and the Appellant. Those negotiations clearly reached an advanced stage. It appears that there were possibly at least 2 payments made to the Appellant totalling nearly $2 million. A formal written agreement was drawn up. We have not seen it but from the evidence it appears that it contained a number of provisions amongst them were that :-

1. The Appellant would provide evidence in the form of an affirmation for use in the civil proceedings implicating Mr Lee.

2. Payments were to be made to the Appellant.

7. But it is also noteworthy that the agreement did not provide for the curtailment of the civil proceedings against the Appellant. Those apparently were to continue and it was for the Appellant to extricate himself from those as best he could.

8. The Defendant signed the Agreement which was then sent to Frenson but for some reason, which has not fully emerged, that Company did not sign it. The Appellant however kept his side of the bargain. He made an affirmation. He made it with the assistance of a solicitor who had been found for him by Frenson's solicitors. It is also to be noted here that that solicitor considered himself as acting for the Appellant in the process of his supplying evidence to Frenson but not it seems as acting for Appellant in the civil proceedings and certainly not in settling them on the Appellant's behalf.

9. The solicitor acting for Frenson said in the course of his evidence in these proceedings that it was based on this affirmation provided by the Appellant that Frenson could plead fraud against Mr Lee; without the Appellant's affirmation Frenson had no prima facie case against Mr Lee.

10. The affirmation however, importantly for the purposes of this case contained admissions by the Appellant of conduct which gave rise to the charges in this case.

11. Unbeknownst to the Appellant, Frenson had already made a complaint to the Commercial Crimes Bureau ("CCB"). Matters were followed up and the affirmation which the Appellant had made came into the hands of the CCB. Although it was everybody's intention, apparently, that the Appellant would provide evidence against Mr Lee that never transpired. The Appellant was interviewed by the police and gave four statements but those statements interestingly did not incriminate the Appellant himself. It was discovered that Mr Lee had made his escape from Hong Kong together with his family. As a result, Mr Lee has never been charged with any offences. Although the Appellant may have had an opportunity had that happened to have given evidence against Mr Lee and then escape charges himself that never transpired. Eventually, the present charges were brought against the Appellant.

12. When the trial commenced, it appeared to all concerned that the evidence against the Appellant was primarily the affirmation which he had made in the civil proceedings. It was indicated to us that oral admissions may have also been made but we have not seen them and apparently they did not feature in the transcript. We were told by Counsel for the Appellant that he had made clear to the Prosecuting Counsel that the admission of the affirmation as evidence against the Appellant would be contested on voir dire proceedings but that if the admissions contained in that affirmation were admitted in evidence, the Appellant would change his plea and plead guilty to the charge. There was a voir dire at which a total of five witnesses gave evidence. At the conclusion of that voir dire, the Judge ruled the admissions contained in the affirmation admissible in evidence against the Appellant and that they had been made voluntarily.

13. Following that the Appellant requested through his Counsel that the amended charge be put again, which it was and the Appellant pleaded guilty. Thereafter, the Statement of Facts were read out in Court and apparently the Appellant agreed that the Statement of Facts were accurate.

14. This appeal was lodged originally on the basis that the admissions in the affirmation were wrongly admitted as they had not been made voluntarily. However, when the matter was raised this morning, difficulties in the Appellant's way became apparent since not only had he pleaded guilty but he had admitted the facts in the Statement of Facts. An adjournment was sought and granted and following the adjournment, amended Perfected Grounds of Appeal were allowed.

15. The first ground of the new Grounds of Appeal is that the plea of guilty by the Appellant was founded upon a wrong ruling of law by the learned Judge in relation to the admissibility of verbal and written confessions. Reference was made to the case of William Stuart Blackledge [1996] 1 Cr. App. R. 326.

16. The only point which has been argued in this appeal has been the first point and this decision is based upon the premise that the admissibility of the written and any oral confession is to be taken in favour of the Appellant for the purposes of this point.

17. There are two matters which arise. The first is whether the plea of guilty was indeed founded upon the ruling of law by the learned Judge and the second point which arises is whether even if the plea of guilty was so founded, whether this Court should allow the appeal in the circumstances of the present case, the Appellant having not only voluntarily pleaded guilty with full legal advice but, most importantly, having admitted the facts in the Statement of Facts is not seeking in this Court to challenge the accuracy of those facts.

18. Turning to the first point, the decision in the case of Blackledge is a decision of the Court of Appeal in England. In the course of giving the judgment, Lord Chief Justice Taylor had this to say at page 338 :

"Mr. Lawson points out that whatever view the court takes of the non-disclosure, there were here unequivocal pleas of guilty. However, it is common ground that even an unequivocal plea of guilty is not necessarily a bar to an appeal against conviction (see D.P.P. v. Shannon [1974] 59 Cr. App. R. 250 and Lee [1984] 79 Cr. App. R. 108. In Preston and others 95 Cr. App. R. 355, Woolf, L.J. said at p.381 :

In our judgment before an appellant who has pleaded guilty can rely upon an erroneous ruling on a point of law or a material irregularity, he must show that his plea 'was founded' upon the erroneous ruling of law or the material irregularity."

19. In the present case, it appears to us that this plea of guilty was not founded upon any erroneous ruling of law, if that ruling be erroneous, but may well have been consequent upon it. It appears from the facts related to us by the Appellant's Counsel that the course of conduct of the trial had been pre-arranged and that the Appellant had decided, on advice, that if the challenge to the admissibility of the statements failed, he would take advantage of a plea of guilty thus, perhaps, assisting a reduction in sentence consequent upon a guilty plea.

20. Our attention has also been drawn to the other cases of D.P.P. v. Shannon and Preston and others. In those cases, it is clear that the erroneous ruling was either made in circumstances where the defence sought to be relied on was not, as a result of the ruling, available to the Appellant or in circumstances where the Appellant was maintaining that the true facts were that he was not guilty of the offence.

21. Turning to the second point, as I have already indicated, none of the cases cited to us had been cases where an Appellant has been allowed to appeal from a conviction resulting after a guilty plea where the facts, which have been admitted, show that an offence had been constituted. In this respect, it was conceded by the Counsel on behalf of the Appellant that the admitted facts did give rise to the charge.

22. In the circumstances, I would refuse the application for leave to appeal against conviction.