Anil Singh Gurm v J S Yeh & Co and another

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 05 October 2018
• Neutral Citation: [2018] SGHC 221
• Court: High Court (Singapore)
• Docket Number: Suit No 580 of 2016 (Summons No 1655 of 2018)
• Published date: 12 February 2020
• Year: 2018
• Hearing Date: 01 August 2018,06 August 2018
• Plaintiff Counsel: Deborah Barker SC and Ushan Premaratne (KhattarWong LLP)
• Defendant Counsel: Chandra Mohan and Ang Tze Phern (Rajah & Tann)
• Subject Matter: Evidence,Witnesses,Attendance,Giving evidence by video link
• Citation: [2018] SGHC 221

See Kee Oon J:

If a witness located overseas does not wish to attend court to give oral evidence in person because he fears prosecution in Singapore, is the fear of prosecution a sufficient reason for the court to permit that witness to give evidence by video link instead? This was the essential question before me in this summons, an application by the plaintiff for his intended witness to be permitted to testify by video link from Australia, where the witness resides.

After hearing submissions, I ruled that the fear of prosecution alone is not a sufficient reason for the court to dispense with having the witness attend in person to give oral evidence. I therefore refused the plaintiff’s application. Such a witness is not unable to come to Singapore, but is merely unwilling to do so. Further, it would be contrary to public policy to permit the witness to avoid prosecution in Singapore but give evidence that would essentially exculpate himself of any potential charges through video-link evidence, all while he remains beyond the reach of the law.

I note, however, that the foreign cases have not spoken with one voice on this particular question. This is the first occasion on which a Singapore court has been called to decide this question. It is also, to my mind, an important question upon which a decision of the Court of Appeal would be to the public advantage. I have therefore granted leave to appeal pursuant to the plaintiff’s further application in Summons 3781 of 2018 (“Summons 3781”). These are my grounds.

Background Facts

The plaintiff is a Singapore citizen. He commenced the proceedings in Suit 580 of 2016 (“Suit 580”) against the first defendant, a firm of solicitors, and the second defendant, a solicitor in working in that firm. He alleges that the defendants had acted negligently in advising him on the purchase of a property at No 62 Crowhurst Drive (“the Property”) in Singapore.¹

The plaintiff had agreed to buy the Property as the nominee of his cousin, Mr Tejinder Singh Sekhon (“Mr Tejinder”), an Australian national, in 2006 (“the transaction”). Mr Tejinder was unable to purchase the Property in his own name as he was a foreign national at the time. Section 3 of the Residential Property Act (Cap 274, 2009 Rev Ed) (“RPA”) prohibits the acquisition by foreign nationals of residential property such as the Property in Singapore unless approval is obtained from the Land Dealings Approval Unit (“LDAU”). Mr Tejinder was unable to obtain the necessary approval. Mr Tejinder approached the plaintiff to act as his nominee in the transaction.² The plaintiff agreed to do so and bought the Property in his own name.³ It was understood between the plaintiff and Mr Tejinder that Mr Tejinder was the beneficial owner of the Property, and would pay all costs and outlays incurred in purchasing the Property. Mr Tejinder bore those costs, and moved into the Property.⁴ He resided at the Property from 2007 to 2011. The Property was sold in 2011 because Mr Tejinder had decided to move back to Australia.⁵

The plaintiff was charged in January 2015 for committing an offence under s 23 of the RPA by purchasing the Property as a nominee for a foreign person, Mr Tejinder, with the intention to hold the Property on trust for Mr Tejinder.⁶

The plaintiff commenced Suit 580 in June 2016 against the defendants for negligently advising him as to the legality of purchasing the Property as a nominee for a foreign national. The plaintiff wishes to call Mr Tejinder to give evidence as a witness in this action. Mr Tejinder, however, is unwilling to come to Singapore to give evidence in person out of fear of prosecution for his role in the transaction I have described above. The plaintiff therefore applied for Mr Tejinder to give evidence by video link in Summons 1655 of 2018 (“Summons 1655”).

The parties’ cases The plaintiff’s case

The plaintiff argued that Summons 1655 should be allowed for five main reasons. First, Mr Tejinder is unable to come to Singapore. Mr Tejinder has been advised that there is a real and genuine risk that he will be prosecuted should he return to Singapore. A well-founded fear of prosecution has been accepted by foreign courts to be a legitimate reason for allowing evidence to be given by video link.

Second, there are suitable technical facilities available for Mr Tejinder to give evidence by video link from Australia, without hampering the defendant’s cross-examination of Mr Tejinder.

Third, the plaintiff would be prejudiced should Summons 1655 be refused. Mr Tejinder is a key witness for the plaintiff’s case, as he was the main point of contact with the defendants at the material time.

Fourth, the defendants would suffer no prejudice if Summons 1655 is allowed. The defendants would not be taken by surprise by the evidence Mr Tejinder will give by video link. This was because Mr Tejinder had affirmed an Affidavit of Evidence-in-Chief (“AEIC”), which had been available to the Defendants for almost five months. To the contrary, the defendants might instead be prejudiced if Summons 1655 is not allowed. This was because the court might still decide to admit Mr Tejinder’s AEIC without the defendants being given the opportunity to cross-examine him.

Fifth, the plaintiff insisted that no collateral purpose was being pursued in Summons 1655. The defendants’ contention that Mr Tejinder’s evidence was being obtained to be used in ongoing criminal proceedings was speculative and baseless. The evidence Mr Tejinder would give by video link would be inadmissible in the criminal proceedings anyway.

The defendants’ case

The defendants argued that Summons 1655 should be dismissed for five main reasons. First, the defendants submitted that there was no principled basis upon which the court could grant the application, as the plaintiff had not offered any sound reason why Mr Tejinder could not give his evidence in Singapore. Mr Tejinder was not unable to come. He was merely unwilling to do so. Moreover, his unwillingness to come was founded on a speculative and unsubstantiated fear that he might possibly be charged should he return to Singapore. But the plaintiff had offered no basis for this fear.

Second, the court would be acting contrary to judicial policy and public policy by permitting Mr Tejinder to avoid criminal prosecution and the reach of the law in Singapore. This was especially egregious because Mr Tejinder’s evidence would in effect serve to exculpate himself for the very same offence he sought to avoid being charged for in Singapore.

Third, the court would be permitting an abuse of its process in allowing the plaintiff to rely on Mr Tejinder’s evidence in the criminal proceedings, when the plaintiff would not otherwise have been able to do so.

Fourth, the plaintiff would not be unfairly prejudiced if Summons 1655 was dismissed. Mr Tejinder’s evidence was neither material nor necessary to resolving the key issue in Suit 580, which concerns the exact nature of the advice the defendants gave to the plaintiff concerning the purchase of the Property. Mr Tejinder could offer no relevant evidence on that question.

Fifth, the defendants would be unfairly prejudiced if Summons 1655 was allowed. This was because the defendants’ lawyers and the court would be denied the crucial advantages of assessing Mr Tejinder’s evidence in person, in particular in its appreciation of Mr Tejinder’s demeanour in assessing his credibility. The defendants’ lawyers would also be disadvantaged in their cross-examination of Mr Tejinder because of the degree of detachment between the court and the witness that comes about when evidence is given by video link.

Issues to be determined

The issue to be determined in this application was whether Mr Tejinder should be allowed to give evidence by video link from Australia. The essential underlying question, however, was the one I have identified above – whether Mr Tejinder’s fear of prosecution is a sufficient reason for the court to find that in all the circumstances video-link evidence should be allowed.

The Law

The court is empowered by s 62A of the Evidence Act (Cap 97, 1997 Rev Ed) to allow for evidence to be given by video link. Section 62A is an important provision, and I set it out the relevant sub-sections here:

Evidence through live video or live television links

62A. – (1) Notwithstanding any other provision of this Act, a person may, with leave of the court, give evidence through a live video or live television link in any proceedings, other than proceedings in a criminal matter, if – (a) the witness is below the age of 16 years; (b) it is expressly agreed between the parties to the proceedings that evidence may be so given; (c) the witness is outside Singapore; or (d) the court is satisfied that it is expedient in the interests of justice to do so. (2) In considering whether to grant leave for a witness outside Singapore to give evidence by live video or live television link under this section, the court shall have regard to all the circumstances of the case including the following: (a) the reasons for the witness being unable to give evidence in Singapore; (b) the administrative and technical facilities and arrangements made at the place where the witness is to give his evidence; and (c) whether any party to the proceedings would be unfairly prejudiced.

I note at the outset that the defendants did not challenge the adequacy or suitability of the administrative and technical facilities the plaintiff was prepared to arrange for Mr Tejinder to give evidence by video link. I also did not find any reason to doubt that those facilities would have been adequate had I allowed the summons. I therefore do not need to speak further about s 62A(2)(b) of the Evidence Act.

Instead, the parties focussed their arguments on the other two limbs of s...