SIGNIFICANT DECISIONS OF THE COURT OF APPEAL
NCC International AB v Alliance Concrete Singapore Pte Ltd  SGCA 5,  2 SLR 565
Against the backdrop of the Indonesian government’s ban on the export of sand to Singapore, the main contractor for a construction project applied to court for an interim mandatory injunction to compel its supplier of ready-mixed concrete to continue its supply at the price stipulated in the contract. The Court of Appeal held that the main contractor’s application was an abuse of process because it was contrary to the arbitration agreement in the contract between the parties and there was also no pressing need for the injunction. The Court explained that it would generally play a more interventionist role in granting interim injunctions in domestic arbitration as compared to international arbitration because the Arbitration Act (Cap 10, 2002 Rev Ed) conferred the power to grant interim injunctions solely on the court. However, in situations where the court had concurrent jurisdiction with the arbitral tribunal, the court would only intervene to provide support to the arbitration, e.g., where third parties over whom the arbitral tribunal had jurisdiction were involved, where matters were very urgent, or where the court’s coercive powers of enforcement were required.
Kay Swee Pin v Singapore Island Country Club  SGCA 11,  2 SLR 802
A country club’s general committee (“the GC”) suspended the appellant for one year and fined her for allegedly making a false declaration in relation to her marriage status in an application form for club membership. During investigations, the club’s disciplinary committee (“the DC”), having heard all the evidence, had recommended that the charge be withdrawn. Yet, the GC asked the DC to re-deliberate the matter on the basis that the appellant’s marriage to her declared spouse was invalid. This was the very argument made by the complainant in an email to the GC. Also, the DC’s report was presented to the GC by a person (“R”) who had disqualified himself from the DC proceedings. The Court of Appeal stated that although the courts had traditionally let social clubs manage their own affairs as long as the clubs’ members were accorded natural justice, what natural justice required depended on the circumstances of the case. Here, because transferable membership of the club had high social and economic value and because the GC had extensive disciplinary powers, a more rigorous application of natural justice was called for. The Court found that the GC had rejected the findings and recommendations of the DC without sufficient reasons. The GC had further failed to act fairly by denying the appellant an opportunity to respond to the complainant’s email and allowing R’s participation.
The Oriental Insurance Co Ltd v Reliance National Asia Re Pte Ltd  SGCA 18,  3 SLR 121
The Court of Appeal in this case decided that the court retained a residual jurisdiction pursuant to either O 3 r 4 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) or s 392(4)(d) of the Companies Act (Cap 50, 2006 Rev Ed) to extend the time for a creditor to file its proof of debt after the court had approved a scheme of arrangement under s 210 of the Companies Act.
The Court of Appeal disagreed with the English approach embodied in the Privy Council decision of Kempe v Ambassador Insurance Co  1 WLR 271 that a scheme of arrangement derived its efficacy purely from statute and operated as a statutory contract, and thus, save in cases of obvious mistakes in the scheme documents or fraud, the court had no jurisdiction to make any alterations to the scheme, including extending the time for filing proofs of debt. The Court preferred the Australian approach that a scheme of arrangement derived its efficacy from the order of court approving the scheme and in fact operated as an order of court. It followed that a court would have the inherent jurisdiction, as well as power under the Rules of Court, to vary its own orders. The Court explained that the Australian approach was less rigid, accorded with the plain wording of s 210 and was consistent with established principles. Since the filing of a proof of debt was a step directly “in relation to a corporation” for the purposes of s 392(4)(d) of the Companies Act, s 392(4)(d) also conferred on the court jurisdiction (which was independent of the nature of the scheme of arrangement before the Court) to extend the time for filing proofs of debt. In considering whether to grant an extension of time, the court would take into account factors such as prejudice to the company and the parties to the scheme, as well as the reason behind the failure to comply with the original timeline.
Lee Chez Kee v Public Prosecutor  SGCA 20,  3 SLR 447
In this case, the Court of Appeal clarified, inter alia, the meaning of s 34 of the Penal Code (Cap 224, 1985 Rev Ed). The appellant appealed against his conviction and sentence for murder under s 302 read with s 34 of the Penal Code in connection with the robbery-cum-murder of a university professor more than a decade ago. There were two main issues before the Court of Appeal. The first issue was whether the statements of the appellant’s dead accomplice, Too Yin Sheong, who was convicted of and subsequently executed for murder arising from the same episode, should be admitted against the appellant. The second issue was whether the evidence, considered in its totality, warranted the maintenance of the conviction and the sentence of the appellant. The Court of Appeal was split on both issues. On the first issue, Justice V K Rajah and Justice Choo Han Teck opined that the statements were not admissible under s 378(1)(b)(i) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) as that particular section had to be read with s 30 of the Evidence Act (Cap 97, 1997 Rev Ed). Justice Woo Bih Li dissented from this holding and thought that the intention of Parliament was to admit the confession of an accomplice under s 378(1)(b)(i) of the Criminal Procedure Code. On the second issue, the Court of Appeal was unanimous in its restatement of the law on s 34 of the Penal Code. Justice Rajah, in his written judgment, wrote that s 34 required the secondary offender to subjectively know that one of his party was likely to commit the criminal act constituting the collateral offence in furtherance of the common intention of carrying out the primary offence. However, while Justice Rajah and Justice Woo would have maintained the appellant’s conviction (and sentence) based on this reading of s 34 after reviewing the existing evidence adduced against him, Justice Choo stated that he would have sent the matter back to the High Court for a re-trial.
Man Mohan Singh s/o Jothirambal Singh & Another v Zurich Insurance (Singapore) Pte Ltd (now known as QBE Insurance (Singapore) Pte Ltd) and Another and Another Appeal  SGCA 24,  3 SLR 735
The appellants lost their only children – two sons – in a car accident caused by a negligent driver (“the Driver”). They sued the Driver for, inter alia, the cost of fertility treatment that they underwent in their attempts to conceive another child.
In dismissing the claim, the Court of Appeal held that first, the prerequisite of factual foreseeability was not met. A negligent driver who caused death might not know that the victims constituted all the living children of the parents, and even if he had that knowledge, he should not be expected to know that the parents might be of such age or have such medical condition that they would resort to assisted reproduction by medical means to fulfil their desire to replace their deceased offspring.
Furthermore, the appellants’ claim did not meet the requirements for imposing a duty of care on the Driver. Applying stage one of the duty of care test enunciated by the Court of Appeal in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency  4 SLR 100 (“the Spandeck test”), there was insufficient legal proximity between the appellants and the Driver at the material time. The Driver could not be regarded as having assumed the broad duty of ensuring that the appellants would not be rendered childless by his negligent driving, and it could not be said that the appellants had relied on him to assume that level of legal responsibility.
In the Court’s view, the appellants’ claim also failed stage two of the Spandeck test because of policy concerns. Defendants should not be liable for the cost of “replacing” a loved one since there was no fundamental or legal right to “replace” a deceased person. The courts also had to be cautious about holding a defendant liable for a plaintiff’s subjective post-accident choices.
Lian Kok Hong v Ow Wah Foong and Another  SGCA 30,  4 SLR 165
In this decision, the Court of Appeal clarified when the limitation period would commence in relation to a claim for breach of contract that purportedly resulted in latent damage.
The appellant engaged a contractor (“the Contractor”) to build a house. The appellant later sought to terminate the contract, and subsequently did so on the advice and certification of the respondent. The Contractor disputed the validity of the termination certificate and initiated arbitration proceedings in March 1999. The arbitrator ruled against the appellant, making an interim award in 2003 and a final award in 2006. The appellant then brought this suit against the respondent, more than six years after his cause of action in contract and in tort had accrued. The issue before the Court of Appeal was whether the appellant’s action was time barred under s 24A(3)(b) of the Limitation Act (Cap 163, 1996 Rev Ed) (“the Act”).
The Court stated the applicable principles as to the requisite knowledge under s 24A(4) of the Act. Reasonable belief, rather than absolute knowledge, was held to be enough to start the limitation period running. The claimant need not know the details of what had gone wrong so long as he knew or might reasonably know the factual essence of his complaint. The facts establishing a possible complaint must be sufficiently serious for someone to actually invoke the court process given the assumptions in s 24A(4)(d). Additionally, the Court clarified that s 24A(3) applied to both latent and non-latent damage and that damage was latent when it was discovered or could only be discovered at a date later than the date of accrual of the damage. In this instance, the Court held that the limitation period commenced in July 2001 during the arbitration proceedings because the appellant would have had the requisite knowledge by that time.
Family Food Court (a firm) v Seah Boon Lock and Another (trading as Boon Lock Duck and Noodle House)  SGCA 31,  4 SLR 272
In this case, the Court of Appeal considered the question of whether an agent could recover substantial damages for losses suffered, not personally by him, but only by his undisclosed principal who had not intervened. The Court noted that the English courts had formulated two exceptions (referred to as “the narrow ground” and “the broad ground”) to the general rule that a plaintiff could only recover nominal damages for a breach of contract where he had suffered no loss, which, could possibly avail the agent in a situation involving an undisclosed principal. The narrow ground allowed a plaintiff to recover substantial damages on a third party’s behalf, and it applied where it was in the contracting parties’ contemplation that the proprietary interest in the contractual subject matter might be transferred from the plaintiff to a third party after the contract had been entered into. The broad ground allowed the plaintiff to recover substantial damages for his own loss on the basis that the plaintiff had an interest in the contract being performed (i.e., the performance interest).
The Court concluded that the narrow ground would be inapplicable in an undisclosed principal situation as the very existence of the undisclosed principal would be unknown to the defendant to begin with. As for the broad ground, the Court noted that there were both arguments for and against its application to an undisclosed principal situation, but was of the opinion that there was no need to determine conclusively which set of arguments should prevail. In most cases, the civil procedure rules relating to joinder of parties (see O 15 rr 4 and 6 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed)) would render the potential difficulties vis-à-vis the extent of damages recoverable by an agent a moot point as the court could simply order the undisclosed principal to be joined as a party to the proceedings and award the full measure of damages to it.
Tan Chor Jin v Public Prosecutor  SGCA 32,  4 SLR 306
The accused in this case had discharged a firearm and killed a man after ransacking the deceased’s home for valuables. He pleaded, inter alia, the defences of intoxication and the right of private defence. He also claimed that the trial judge had wrongly denied his request for a counsel to be appointed. The Court of Appeal clarified a longstanding ambiguity, i.e. it held that the concept of “insanity” in s 85(2)(b) was distinct from the concept of “unsoundness of mind” in s 84 of the Penal Code (Cap 224, 1985 Rev Ed). The Court also clarified that there were six requirements which had to be met before the defence of the right to private defence of the body could succeed. Finally, the Court considered if an accused’s right to counsel could ever be waived or taken away.
Lai Shit Har & Another v Lau Yu Man  SGCA 33,  4 SLR 348
In this case, the Court of Appeal held that a winding-up application aimed at delaying or derailing a suit brought by a company which was to be wound up was an abuse of process. As a secondary matter, the Court also dealt with the duty of a judge to evaluate the merits of a winding-up application. The Court held that although the statutory ground for winding up a company might have been technically established, the courts retained a residual discretion to consider all the relevant factors, including the utility, the propriety and the effect of a winding-up order as well as the overall fairness and justice of the case, before deciding whether or not to wind up the company. The inquiry would be a brief one in most cases, but in appropriate cases, for example where the factual matrix gave rise to issues of fact and law relating to whether the applicant had caused the company to suspend its business or whether the company had a bona fide claim against the applicant, the court was duty-bound to evaluate the evidence and weigh all the relevant factors before coming to a decision on the winding-up application.
Carona Holdings Pte Ltd and Others v Go Go Delicacy Pte Ltd  SGCA 34,  4 SLR 460
This is an important Court of Appeal decision dealing with the scenario where a defendant did not file its defence pending its application for a stay in favour of arbitration. The Court of Appeal held that the filing of a stay application did not stop the time for service of the defence from running. Ordinarily, a defendant should not be compelled to file its defence while its stay application was pending. The Court of Appeal clarified that where a defendant wished to invoke an arbitration clause to resolve its dispute with the plaintiff, the correct procedure was as follows: (1) if the parties could not agree on a stay in favour of arbitration, the defendant should file its stay application within the time limited for filing its defence; (2) the stay application should include a prayer asking for all proceedings in the action (including the filing of the defence) to be stayed until the stay application had been disposed of; (3) the stay application and the default judgment application should be heard together, with the stay application being dealt with first; and (4) if counsel sought to abuse the process or behaved unreasonably, costs sanctions could be imposed on the party at fault. The Court of Appeal further emphasised that an application for an extension of time would not be treated as a “step in the proceedings” if it was made to protect the defendant’s position in the event the defendant’s stay application was refused.
Public Prosecutor v UI  SGCA 35,  4 SLR 500
In this case, the Court of Appeal explained the significance of precedent cases in sentencing and set out its views on the role of forgiveness in sentencing. In respect of sentencing precedents, the Court held that it would not be proper for a trial judge to depart from such precedents without, at the very least, giving cogent reasons as to why they should not be applied in the case before him. First, a lower court should respect the guidance given by a higher court in similar cases, even though the Judge might not personally agree with the views of the higher court. Secondly, like cases should be treated alike. The corollary of this principle was consistency in sentencing, which was achievable only by a lower court adhering, over a period of time, to sentencing guidelines or benchmarks set by a higher court.
In respect of the role of forgiveness in sentencing, the Court expressed the general rule that forgiveness should be given little regard in sentencing. In coming to this conclusion, the Court explored the philosophical concept of forgiveness and agreed with legal scholars that forgiveness was an internal change on the part of the individual victim that did not bring about any external or public consequences. In other words, one might forgive, but this should not necessarily impinge on the punishment to be meted out. The Court did not close the door completely on forgiveness being a mitigating factor, however, and referred to two exceptions formulated by the English Court of Appeal, the first being situations where the sentence aggravated the grief of the victim and the second being situations where the victim’s forgiveness provided evidence that his or her psychological and/or mental suffering as a result of the offender’s criminal conduct must be very much less than would normally be the case.
CIMB Bank Bhd v Dresdner Kleinwort Ltd  SGCA 36,  4 SLR 543
Pursuant to a written agreement, the respondent paid the appellant nearly US$8.2 million for the purchase of promissory notes. The respondent accepted the appellant’s assertion that the appellant’s employee had lacked the requisite authority to execute the agreement on behalf of the appellant, the effect being that there was no contract between the parties under which payment could have been made by the respondent. One of the issues before the Court of Appeal was whether the respondent’s claim for recovery of the sum paid under the non-existent contract was governed by the express choice of law clause therein.
In the Court’s view, the mere fact of a contract being void did not assist in determining whether the choice of law clause in the contract still had a role to play in consequential restitutionary issues. A contract could be void for a variety of reasons or circumstances. There was a need to examine the factual circumstances of each case to determine the cause of the contract being void.
Since it was common ground that there was no contract between the appellant and the respondent, the choice of law clause in the non-existent contract should not have any lingering effect on the respondent’s unjust enrichment claim. Clause 2(c) of Rule 230 in Dicey, Morris and Collins, on The Conflict of Laws (Sweet & Maxwell, 14th Ed, 2006) (“Dicey, Morris and Collins”), viz, “[the proper law of the obligation] is the law of the country where the enrichment occurs”, would apply. However, Dicey, Morris and Collins also stated that the place of enrichment might not always be the place with which the claim for restitution had the closest connection. Therefore, the Court of Appeal further considered the place where the appellant allegedly “changed its position in good faith” as well as the location of witnesses and documents.
Mercurine Pte Ltd v Canberra Development Pte Ltd  SGCA 38,  4 SLR 907
The Court of Appeal discussed the appropriate legal tests to be applied in assessing whether to set aside a default judgment.
In relation to an application to set aside a regular default judgment, the Court of Appeal stated that the appropriate test was that which was laid down in Evans v Bartlam  AC 473, i.e., whether the defendant could show a prima facie defence that raised triable or arguable issues, and not the “real prospect of success” test enunciated in Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc  2 Lloyd’s Rep 221.
Setting aside ex debito justitiae, i.e., as of right (“the ex debito justitiae rule”), remained the starting point in assessing an application to set aside an irregular default judgment because litigants were expected to observe procedural rules. However, this starting point could be departed from where there were proper grounds for doing so. The key question for the court would be whether there had been such an egregious breach of the rules of procedural justice as to warrant setting aside the irregular default judgment as of right.
Where an irregular default judgment was not set aside as of right, the Court had to go on to consider whether to nonetheless set it aside on some other basis apart from the ex debito justitiae rule. At this juncture, one of the most crucial factors would be the merits of the defence. Should the Court find that the defendant was “bound to lose” if the default judgment was set aside and the matter re-litigated, the Court should ordinarily uphold the default judgment, subject to any variation which the court deemed fit to make and/or any terms which it deemed fit to impose.
For both regular and irregular default judgments, the defendant’s delay in making the setting aside application was a relevant consideration.
“The Vasiliy Golovnin”  SGCA 39,  4 SLR 994
This case concerned the arrest by two banks of a vessel, The Chelyabinsk, in Togo and the subsequent arrest by the same banks of her sister ship, The Vasiliy Golovnin, in Singapore. The owner of the two vessels managed to set aside the arrest of The Vasiliy Golovnin and strike out the banks’ writ by showing, inter alia, a lack of disclosure of material facts by the banks at the ex parte arrest hearing and the lack of an arguable case. However, the ship-owner was not awarded damages for the arrest. The banks and the ship-owner appealed to a High Court Judge, who dismissed both appeals. The ship-owner and one of the banks then appealed to the Court of Appeal. The Court of Appeal reiterated that in an arrest application, the plaintiff must show a “good arguable case” to sustain the arrest application. Further, in an ex parte application, the plaintiff had a duty to make full and frank disclosure of all material facts. The Court of Appeal reiterated that the threshold of disclosure was also important viz, the facts must be presented to the eyes and/or the ears of the judge. The Court found that the banks had not only failed to disclose certain material facts, but had also failed to expressly draw another material fact to the Assistant Registrar’s attention at the ex parte arrest hearing. The Court awarded damages to the ship-owner for wrongful arrest, highlighting at least three reasons why the banks’ arrest of the ships had been initiated “unwarrantably” or with “little foundation”: first, the bank unreasonably persisted in arresting the sister ship in Singapore after its claim had been disposed of in Togo; second, the Court found that the breach of contract claim was entirely without substance or any foundation whatsoever; and third, the banks failed to disclose material facts at the ex parte hearing. Lastly, the Court of Appeal also observed that it was necessary for a plaintiff who intended to rely on an arbitration agreement to disclose this to the court in an ex parte arrest application.
Mohammed Ali bin Johari v Public Prosecutor  SGCA 40,  4 SLR 1058
The appellant appealed against both his conviction and sentence under s 300 of the Penal Code (Cap 224, 1985 Rev Ed) for having murdered the deceased, who was the two-year old daughter of his wife. The issues to be decided before the Court of Appeal were: (a) whether the appellant had sexually assaulted the deceased; (b) whether the appellant had caused the death of the deceased; (c) whether the evidence at trial supported the appellant’s allegation that he had been deprived of self-control by grave and sudden provocation; and (d) whether the trial judge had engaged in excessive judicial interference.
In dismissing the appeal, the Court of Appeal held that there was overwhelming objective evidence that the appellant had inflicted the sexual injuries on the deceased. While motive was not an essential element of the crime, it could bolster the inference that an intention to commit the offence was existent. Given the lack of independent eyewitnesses at the scene, ascertaining whether the appellant had sexually assaulted the deceased, thus providing a motive for the appellant to kill her, was an important issue that should have been addressed. The Court of Appeal further observed that there were two limbs to s 300(c) of the Penal Code. The first related to the ascertainment by the court of the intention of the accused in so far as the inflicting of the specific injury which the victim had suffered was concerned. Such intention was to be ascertained on a subjective basis, based on the available objective facts and evidence. Once the first limb had been satisfied, the second aspect of the inquiry for the court was to ascertain on an objective basis whether that particular injury was sufficient in the ordinary course of nature to cause death. Both limbs were, therefore, equally important and should not be conflated. The Court of Appeal also clarified that the test to be applied where an accused relied on the defence of provocation comprised two distinct elements which must both be proved: first, a subjective requirement that the accused was deprived of his self-control by provocation; and, second, an objective requirement that the provocation was grave and sudden.
The Court of Appeal laid down the applicable principles in dealing with allegations of judicial interference. First, the system which the courts were governed by under the common law was an adversarial as opposed to an inquisitorial one, and examination and cross-examination of witnesses were primarily the responsibility of counsel.
Secondly, the judge must be careful not to descend (and/or be perceived as having descended) into the arena, thereby clouding his vision and compromising his impartiality as well as impeding the conduct of the trial by counsel and unsettling the witness concerned. However, the Judge was not obliged to remain silent and could ask witnesses or counsel questions if, inter alia: (a) it was necessary to clarify a point or issue overlooked or left obscure, or to raise an important issue overlooked by counsel; (b) it enabled him to follow the points made by counsel; (c) it was necessary to exclude irrelevancies and/or discourage repetition and/or prevent undue evasion and/or obduracy by the witness concerned; and (d) it served to assist counsel and their clients to be cognisant of what was troubling the judge, provided it was clear that the judge was keeping an open mind and had not prejudged the outcome of the particular issue or issues. What was crucial was not just the quality but also the qualitative impact of the judge’s questions or interventions. Each case was fact-specific as well as context-specific and no blanket set of rules could be laid down. The ultimate question for the court was whether there had been a possibility of a denial of justice to a particular party.
Amendments to the Rules of Court
The Rules of Court (Amendment) Rules 2008 were gazetted on 17 October 2008 and scheduled to come into effect on 1 January 2009. The main amendment under these Rules was to introduce hearing fees for hearings relating to assessment of damages, taking of accounts and making of inquiries before Registrars in the High Court.
Changes to the Supreme Court Practice Directions
Four Practice Directions were issued by the Supreme Court in 2008.
Practice Direction No. 1 of 2008 related to the citation of judgments by advocates and solicitors in oral and written submissions used in all hearings (whether in open court or in chambers) in the Supreme Court. It provided guidance on: (a) the extent to which it would be necessary to deploy both local and foreign judgments in support of counsel’s case; and (b) the practice of citing such judgments.
Practice Direction No. 2 of 2008 consolidated various miscellaneous amendments to The Supreme Court Practice Directions (2007 Ed). Some of these amendments related to the practice of counsel mentioning for counsel of other parties, pre-action discovery against network service providers, and the filing and service of skeletal arguments at least 10 days before the hearing. It also clarified that, with effect from 1 September 2008, all ex parte applications for interim injunctions (except for Mareva injunctions and search orders) as well as all applications for an inquiry on the mental state of a person and the appointment of a committee of person and/or estate under the Mental Disorders and Treatment Act (Cap 178, 1985 Rev Ed) would be heard by Registrars instead of Judges. These changes took effect on 1 September 2008.
Practice Direction No. 3 of 2008 was enacted in response to the abolition of estate duty for all deaths occurring on or after 15 February 2008. Consequently, amendments had to be made to the procedure for applying for a grant of probate, a letter of administration or the resealing of a grant of probate or letter of administration issued by a foreign court, in respect of all deaths occurring on or after 15 February 2008. In addition to the supporting documents required under paragraph 129(2)(b) of The Supreme Court Practice Directions, a Schedule of Assets listing out the property comprising the estate of the deceased now has to be filed. This Practice Direction took effect on 18 September 2008.
Practice Direction No. 4 of 2008, which came into effect on 15 October 2008, concerned the use of the practising certificate electronic filing system (PC E-filing System) by practitioners. In particular, it complemented the changes introduced by the Legal Profession (Modified Application of Act for International Services) Rules 2008 and set out the applicable process for solicitors registered under s 130N of the Legal Profession Act (Cap 161, 2001 Rev Ed) to apply for their practising certificates.
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