Anil Singh Gurm v J S Yeh & Co and another

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date07 February 2020
Neutral Citation[2020] SGCA 5
Docket NumberCivil Appeal No 164 of 2018
Date07 February 2020
Published date12 February 2020
Plaintiff CounselDeborah Evaline Barker SC, Ushan Premaratne, and Jonathan Tan (Withers KhattarWong LLP)
Hearing Date20 August 2019
Defendant CounselChandra Mohan Rethnam and Ang Tze Phern (Rajah & Tann Singapore LLP)
CourtCourt of Appeal (Singapore)
Subject MatterAttendance,Evidence,Video link,Witnesses
Judith Prakash JA (delivering the grounds of decision of the court): Introduction

In Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] 3 SLR 110 (“Basil Anthony Herman”), this court observed, at [24]–[26] that:

[E]very litigant has a general right to bring all evidence relevant to his or her case to the attention of the court. This general right is so fundamental that it requires no authority to be cited in support of it; in fact, to say that the right derives from some positive decision or rule is to understate its constitutive importance to the adversarial approach to fact-finding. The importance of the right is reflected in the fact that a litigant may pray in aid the machinery of the court to compel, on the pain of contempt, all persons who are in a position to give relevant evidence, to come forward and give it.

The general right is, of course, subject to specific limits. … The adduction of relevant evidence must, as far as practicable, take place in accordance with the rules of procedure whose purpose is to ensure the fair, economical, swift and orderly resolution of a dispute. Finally, a litigant is prohibited from manipulating the court’s machinery to further his ulterior or collateral motives in an abusive or oppressive manner.

In striking the proper balance between the general right and the specific limits, a trial judge must not only be guided by the applicable rules and decisions, but must look beyond the mechanical application of these rules and decisions, and carefully assess the interests at stake in every case to ensure that a fair outcome is reached through the application of fair processes. It should always be borne in mind that grave consequences might flow from the wrongful exclusion of evidence (such as by shutting out a witness from testifying or preventing cross-examination).

[emphasis in original in italics; emphasis added in bold italics]

The litigant’s right to bring all relevant evidence before the court is a right to physically adduce that evidence in court. Modern technology has been called in aid of litigants who for one reason or another have difficulty in bringing witnesses into the courtroom. One specific way that it has done so is to enable litigants to call witnesses to testify in judicial proceedings through live video link, thereby giving them and the court access to evidence that might otherwise be inadmissible or unavailable. That said, Singapore law does not grant litigants a right to use this technology in aid of their cases. Instead, s 62A of the Evidence Act (Cap 97, 1997 Rev Ed) (“the EA”) requires the court to grant leave before a witness may testify in local civil proceedings via video link. This does not alter the default position that a witness must be physically before the court in order to testify. Nevertheless, and for reasons that we shall come to, s 62A of the EA provides the court with a broad discretion when determining whether to grant a witness leave to testify in local civil proceedings via video link.

This appeal arose out of an application by Mr Anil Singh Gurm, the plaintiff in Suit No 580 of 2016 (“Suit 580”), for leave pursuant to s 62A(1)(c) of the EA for an overseas witness, Mr Tejinder Singh Sekhon (“Mr Sekhon”) to testify in Suit 580 via video link (“the leave application”). The High Court Judge (“the Judge”) dismissed the leave application. The Judge’s grounds are found in Anil Singh Gurm v J S Yeh & Co and another [2018] SGHC 221 (“the GD”). Having heard the parties, we allowed the appeal and granted the appellant leave to adduce Mr Sekhon’s testimony in Suit 580 via video link. We now set out the full grounds for our decision.

Facts

The appellant is a Singapore citizen and is resident here. The first respondent (and first defendant in Suit 580), J S Yeh & Co (“JSY”), is a local law firm. The second respondent (and second defendant in Suit 580), Ms Yasmin binte Abdullah (“Ms Yasmin”), is a solicitor and was employed by JSY at the material time. The appellant alleged that the respondents had been negligent in acting for him in the purchase of a local residential property.

Background to the dispute

In 2006, Mr Sekhon, who is the appellant’s cousin, sought to purchase a house in Singapore (“the Property”) for occupation by himself and his family. Being a foreigner, however, Mr Sekhon could not purchase the Property without the prior approval of the Land Dealings Approval Unit (“the LDU”) pursuant to s 3 of the Residential Property Act (Cap 274, 2009 Rev Ed) (“the RPA”), which places restrictions on foreign nationals’ ownership of local residential property. Mr Sekhon applied for permanent residency in Singapore in June 2006. Sometime during the period from July to August 2006, he engaged JSY to act as his solicitors in his application for the LDU’s approval (“the LDU application”) and his acquisition of the Property. During this period, he liaised directly with Ms Yasmin and a Ms Quah Kwee Suan (“Ms Quah”) who was also a solicitor employed by JSY at the material time. Unfortunately, Mr Sekhon did not obtain the necessary approval from the LDU and therefore could not purchase the Property in his own name.

In October 2006, Mr Sekhon approached the appellant and asked if the appellant would be willing to consider purchasing the Property as Mr Sekhon’s “nominee”. According to the appellant: he had agreed to consider Mr Sekhon’s request on the condition that participating in such an arrangement would not expose him to any risk, legal or otherwise; consequently, Mr Sekhon sought Ms Yasmin’s advice on the legality of the appellant holding the Property on his behalf, and Ms Yasmin had advised that this was an “acceptable” arrangement; Mr Sekhon then communicated Ms Yasmin’s advice to the appellant, and the appellant agreed to act as Mr Sekhon’s nominee; thereafter, both the appellant and Mr Sekhon met with Ms Yasmin in October or November 2006 and informed her that: (i) the appellant had agreed to purchase the Property on Mr Sekhon’s behalf; and (ii) Mr Sekhon would make the mortgage payments, and would be a co-borrower or guarantor for the housing loan. At this meeting, Ms Yasmin confirmed to both men that the arrangement was acceptable and that JSY would handle the necessary paperwork.

The respondents disputed this version of events, and instead contended that: After the LDU application had been turned down, Mr Sekhon informed Ms Quah that the appellant would be purchasing the Property instead in his own name. At a subsequent meeting attended by the appellant and Mr Sekhon, Ms Yasmin told the appellant that it was unlawful for him to purchase and hold the Property on Mr Sekhon’s behalf. Ms Yasmin also told the appellant that if he wished to purchase the Property, he must do so on the basis that he would be its legal and beneficial owner. She then sought and obtained the appellant’s confirmation that he was purchasing the Property “in his personal and legal capacity”.

A fresh option to purchase the Property was issued by the vendors in the appellant’s favour in November 2006. Shortly afterwards, the appellant appointed JSY as his solicitors in the Property’s acquisition. The appellant eventually acquired the Property in his own name with the transaction being completed in late December 2006. He claimed that both he and Mr Sekhon were unaware that it was unlawful for him to act as the latter’s nominee in the purchase of the Property.

According to the appellant, the Property was sold in mid-2012 for about $5.5m. The proceeds of sale were used to discharge the mortgage and pay for other related outstanding expenses, with the balance, amounting to about $3m, being returned to Mr Sekhon who by then had left Singapore for Australia.

In December 2012, the Commercial Affairs Department of the Singapore Police Force (“CAD”) commenced an investigation into the purchase of the Property and seized documents from the appellant’s house. The appellant informed Mr Sekhon of this investigation, and the two men started communicating on the steps that they should take to raise the necessary funds for the purposes of making restitution to the State. Both men hoped that the criminal investigation would be dropped after they had made full restitution to the State. They also discussed the commencement of legal proceedings against the respondents with the expectation that the respondents would indemnify them against any sum payable as restitution to the State. Mr Sekhon remitted about $2m to the appellant between May 2014 and March 2015 for this purpose. However, their relationship subsequently deteriorated as Mr Sekhon was unable to deliver on his promise to provide the appellant with sufficient funds to cover the amount that the appellant might have to pay the State under a confiscation of benefits order. The appellant has not received any further sums from Mr Sekhon.

In January 2015, the appellant was charged with an offence under s 23 of the RPA for his role in the purchase of the Property as a nominee/trustee of Mr Sekhon, a foreigner, with the intention of holding the Property on trust for the latter. He claimed trial to the charge. In July 2015, the Prosecution also informed the appellant that the proceeds from the sale of the Property (ie, $5,502,038.06) were liable to confiscation if the appellant were to be convicted on the charge.

Procedural history

As mentioned above, the appellant claimed trial to the charge. His criminal trial was originally scheduled to take place at the end of 2016. However, the appellant sought and obtained an adjournment of the criminal trial on the basis that it would be more expedient if his negligence claim against the respondents in Suit 580 was determined first. It appeared that his defence against the charge was that s 23 of the RPA required proof that he had purchased the Property on Mr Sekhon’s behalf without knowing that his...

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