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Hksar v Tam Kam Kong

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date22 April 1998
Subject MatterCriminal Appeal
Judgement NumberCACC3/1998
CourtCourt of Appeal (Hong Kong)
CACC000003/1998 HKSAR v. TAM KAM KONG

CACC000003/1998

1998, No. 3
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

BETWEEN
HKSAR
AND
TAM KAM KONG

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Coram : Hon. Power, V.-P., Leong and Rogers, JJ.A. in Court

Date of Hearing : 22 April 1998

Date of Judgment : 22 April 1998

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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...

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