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The Secretary For Justice v Tam Kit-i

Judgment Cited authorities 23 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date29 March 2023
Neutral Citation[2023] HKCFA 7
Subject MatterFinal Appeal (Criminal)
Judgement NumberFACC4/2022
CourtCourt of Final Appeal (Hong Kong)
FACC4/2022 THE SECRETARY FOR JUSTICE v. TAM KIT-I

FACC No. 4 of 2022,
FACV No. 12 of 2022,
FACC No. 1 of 2023 and
FACV No. 2 of 2023

[2023] HKCFA 7

FACC No. 4 of 2022

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2022 (CRIMINAL)

(ON APPEAL FROM CACV NO. 103 OF 2022)

________________________

BETWEEN
THE SECRETARY FOR JUSTICE Appellant
and
TAM KIT-I Respondent

________________________

FACV No. 12 of 2022

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2022 (CIVIL)

(ON APPEAL FROM CACV NO. 103 OF 2022)

________________________

BETWEEN
THE SECRETARY FOR JUSTICE Appellant
and
TAM KIT-I Respondent

________________________

FACC No. 1 of 2023

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2023 (CRIMINAL)

(ON APPEAL FROM HCMP NO. 54 OF 2011)

________________________

BETWEEN
SECRETARY FOR JUSTICE Respondent
and
TAM KIT-I Appellant

________________________

FACV No. 2 of 2023

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2023 (CIVIL)

(ON APPEAL FROM CACV NO. 103 OF 2022)

________________________

BETWEEN
THE SECRETARY FOR JUSTICE Appellant
and
TAM KIT-I Respondent

________________________

(Heard together)

Before: Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Mr Justice French NPJ
Date of Hearing: 28 February 2023
Date of Judgment: 29 March 2023

__________________________________________

JUDGMENT

__________________________________________

Chief Justice Cheung:

1. I agree with the judgment of Mr Justice Ribeiro PJ on Question 1 and with that of Mr Justice Lam PJ on Question 2.

Mr Justice Ribeiro PJ:

2. The first question which arises on these appeals is whether a restraint order (“RO”) freezing certain assets made under the Organized and Serious Crimes Ordinance[1] (“OSCO”) falls to be discharged as a matter of law where the court decides not to grant an application for a confiscation order (“CO”). The second question is whether an appeal relating to the discharge of such an RO is to be characterised for procedural and jurisdictional appellate purposes as civil or criminal.

3. Leave to appeal was granted by the Appeal Committee[2] on those two questions formulated as follows:

“What on the true construction of the provisions of [OSCO] referred to herein, was the consequence of the Judge’s decision in HCMP 1207/2014 (dated 10 August 2016) not to make a confiscation order on the basis of her conclusion that the respondent had not ‘absconded’ within the meaning of section 8(1)(a)(ii)(B)? In particular, did this in law result in the application for a confiscation order being ‘concluded’ within the meaning of section 2(16A)(a) with the consequence that the restraint order dated 30 March 2011 was discharged by operation of section 15(5)(b)?” (Question 1)

“Where a person against whom proceedings under OSCO have been instituted seeks to bring an appeal against a Judge’s refusal to discharge a restraint order, is that appeal criminal or civil in nature for jurisdictional and procedural purposes?” (Question 2)

4. This judgment deals with Question 1, while Mr Justice Lam PJ deals in his judgment with Question 2. I have had the advantage of reading that judgment in draft and respectfully agree with his reasoning and conclusion.

A. The transactions giving rise to this case

5. The present matter is connected with the case of Ao Man-long (“Ao”), formerly Secretary for Transport and Public Works in Macau, who was convicted there on 90 counts of corruption, money laundering and related offences, ultimately resulting in a sentence of 29 years’ imprisonment.

6. The respondent is Madam Tam Kit-I (“Tam”), who was employed as financial controller of a group of companies in Macau owned by Mr Ng Fok, a works contractor who had frequent business dealings with Ao. Tam became the focus of attention because of transfers between her account with the Wing Hang Bank in Hong Kong which she had opened on 1 March 2006 (“the Wing Hang Account”) and certain accounts maintained or controlled by Ao, the allegation being that the funds transferred were the proceeds of corrupt transactions involving Ao.

(a) Thus, on 21 March 2006, Tam transferred $25 million from her account with Banco Weng Hang SA in Macau to the Wing Hang Account, and that sum was further transferred on 17 June 2006 to an account with Hang Seng Bank held by Ao’s father, of which Ao was the sole authorised signatory. Those funds were eventually confiscated as a result of proceedings brought in Hong Kong by the Macau government.

(b) Then between 18 and 25 August 2006, a total of $25 million was transferred to Tam’s Wing Hang Account from an account held in the name of Ecoline Property Limited at ICBC (Asia) Ltd, Hong Kong, of which Ao was an authorised signatory.

(c) Of that sum, on 4 December 2006, $2.6 million was transferred to the account of Best Choice Ltd with Hang Seng Bank, Hong Kong, of which Ao was the sole authorised signatory. A balance of $22,400,000 thus remained in the Wing Hang Account. Two days later, Ao was arrested and in his safe were found pre-signed cheques totalling $22,400,000 drawn on the Wing Hang Account.

(d) Restraint on dealings with and confiscation of that $22.4 million balance are the subject-matter of Question 1.

B. The procedural history

B.1 Contemplated POBO proceedings

7. After Ao was arrested, the authorities in Hong Kong initially contemplated proceedings against Tam under the Prevention of Bribery Ordinance[3] (“POBO”). On 13 February 2007, they obtained an ex parte restraining order from V Bokhary J under section 14C of that Ordinance freezing the aforesaid balance in the Wing Hang Account. That order was served by ICAC officers on Tam in Macau on 23 February 2007.

8. POBO section 14C empowers the court to make an RO in relation to property in the possession or under the control of or due to a person who is “the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under” the POBO.[4] The person whose property is subject to such an order may be outside Hong Kong[5] and it is provided that the RO shall continue in force for 12 months but, on application by the Commissioner, may be extended by the court “for periods of 12 months at a time”.[6]

9. The RO against Tam was extended three times, with each fresh order being served on Tam by ICAC officers who visited her in Macau. After the first extended RO was served on Tam on 4 February 2008, she visited Hong Kong on 6 June 2008 and returned to Macau on the same day. She was placed on the Hong Kong Immigration Department’s stop list on 11 July 2008.

10. On 4 February 2009 and again on 5 June 2009, ICAC officers invited Tam to come to Hong Kong to be interviewed regarding offences concerning the Wing Hang Account but, unsurprisingly, she declined.

B.2 A shift to proceedings under OSCO

11. Having been advised that there was insufficient evidence to charge Tam under POBO but that a viable case existed under OSCO, on 12 January 2011, prosecutors obtained a warrant from the magistrate for Tam’s arrest for money laundering contrary to OSCO section 25.[7] In the paragraphs of my judgment which follow, unless otherwise indicated, references to sections are to provisions in OSCO. Section 2(15) provides that the issue of such a warrant is one means by which proceedings for an offence under that Ordinance are “instituted”.

12. Two days later, on 14 January 2011, on the application of the Secretary for Justice (“SJ”), V Bokhary J issued an RO under section 15[8] freezing the Wing Hang Account. On 30 March 2011, her Ladyship extended that Order, providing that it would “remain in force unless it is varied or discharged by a further order of the Court”. These appeals focus on that RO.

13. An OSCO RO which is issued after proceedings have been instituted is not subject to any expiry period. Nor is it necessary to apply for extensions. The power to issue an RO and its continued validity are premised on the prosecution proceedings or the application for a confiscation order not having been concluded.[9]

C. The confiscation application and the Judge’s decision

14. Some three years later, on 20 May 2014, the SJ applied under section 8(1)(a)(ii)(B) for the Wing Hang Account funds to be confiscated on the basis that Tam had absconded. Sections 8(1)(a)(ii) and 8(1)(b) materially provide:

“Where ... proceedings for one or more specified offences have been instituted against a person but have not been concluded because the person (A) has died; or (B) has absconded; and … an application is made by or on behalf of the Secretary for Justice for a confiscation order, the Court of First Instance ... shall act as follows.”

Sections 8(3) to 11 then go on to prescribe that the court “shall act” by making certain inquiries and determinations in deciding whether to grant the application.

15. On 10 August 2016, Campbell-Moffat J[10] rejected the SJ’s application for a CO, holding that Tam had not been shown to have absconded and that section 8(1)(a)(ii)(B) was not applicable. On that basis, she did not embark upon the prescribed process of inquiry and determination. However, she held that “the [RO] made under HCMP 54/2011 remains extant”.[11]

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