Bachmeer Capital Limited v Ong Chih Ching and others

JurisdictionSingapore
CourtInternational Commercial Court (Singapore)
JudgeVivian Ramsey IJ
Judgment Date13 February 2018
Neutral Citation[2018] SGHC(I) 1
Citation[2018] SGHC(I) 1
publishedDate17 February 2018
Docket NumberSuit No 2 of 2017 (Summons No 2 of 2018)
Plaintiff CounselFoo Maw Shen, Chu Hua Yi, Ng Sook Zhen, and Michelle Lee Ying Ying (Dentons Rodyk & Davidson LLP)
Defendant Counsel7th and 8th defendants by original action and 4th and 5th defendants in counterclaim unrepresented and absent.,Abraham Vergis & Lim Mingguan (Providence Law Asia LLC),Jimmy Yim SC, Chia Voon Jiet, Andrew Lee, and Dierdre Grace Morgan (Drew & Napier LLC)
Date13 February 2018
Hearing Date29 January 2018

[2018] SGHC(I) 1

Singapore International Commercial Court

Vivian Ramsey IJ

Suit No 2 of 2017 (Summons No 2 of 2018)

Bachmeer Capital Ltd
and
Ong Chih Ching

Foo Maw Shen, Chu Hua Yi, Ng Sook ZhenandMichelle Lee Ying Ying (Dentons Rodyk & Davidson LLP)for the plaintiff by original action and the first defendant in counterclaim;

Jimmy Yim SC, Chia Voon Jiet, Andrew LeeandDierdre Grace Morgan (Drew & Napier LLC)for the first, second, fourth, fifth and sixth defendants by original action and the plaintiffs in counterclaim;

Abraham Vergis & Lim Mingguan (Providence Law Asia LLC)for the third defendant by original action;

Seventh and eighth defendants by original action and fourth and fifth defendants in counterclaim unrepresented and absent.

Case(s) referred to

Sonica Industries Ltd v Fu Yu Manufacturing Ltd [1999] 3 SLR(R) 119; [1999] 4 SLR 129 (folld)

Legislation referred to

Evidence Act (Cap 97, 1997 Rev Ed) s 62A (consd); ss 62 (2), 62A(1)(c), 62A(2) (a), 62A(2) (b)

Rules of Court (Cap 322, R 5, 2014 Rev Ed)O 109 r 6

Evidence — Witnesses — Attendance — Giving evidence by video link — Whether evidence of witnesses material

Evidence Witnesses — Attendance — Giving evidence by video link — Whether inconvenience in travelling to Singapore sufficient grounds

Evidence — Witnesses — Attendance — Giving evidence by video link — Whether quality of video link sufficient

Evidence — Witnesses — Attendance — Giving evidence by video link — Whether sufficient steps taken to secure presence in Singapore

Facts

The present dispute arose out of a collaboration between the parties to build a ski resort in Singapore code-named “Winterland”. Eventually the parties' collaboration broke down and they signed a termination agreement in May 2015. An issue arose as to communications between one side of the collaboration and a third party, Lu Jia Zui Group (“the LJZ Group”), prior to the termination.

In Summons No 2 of 2018 in the Singapore International Commercial Court, the first, second, fourth, fifth, and sixth defendants by original action (“the KOP Defendants”) applied to the court for leave for two factual witnesses to give their oral evidence by way of live video link from Shanghai, China. The relevant witnesses were Yang Xiao Ming (“Chairman Yang”) and Lee Chee Kiat (“Mr Lee”).

Held, allowing the application in part:

(1) The approach to applications to give evidence by live video link under s 62A of the Evidence Act (Cap 97, 1997 Rev Ed) was considered by the Court of Appeal in Sonica Industries Ltd v Fu Yu Manufacturing Ltd[1999] 3 SLR(R) 119. In deciding whether to grant leave for evidence to be given by video link, the court had to have regard to all the circumstances of the case, including the reasons for the witness being unable to give evidence in Singapore. The court also had to consider whether the evidence of the witnesses in this case were material to the issues at hand and the efforts taken to secure their presence in Singapore: at [8] and [9].

(2) As a preliminary point, one consideration common to whether both factual witnesses would be allowed to give evidence by video link was the quality of the video link. The court was satisfied that there was in place a video link of sufficient quality between the court in Singapore and the potential location of the witness in Shanghai. The court was also satisfied that the necessary administrative arrangements would be in place, including the presence of solicitors for both parties, access to documents and the presence of a local interpreter. The requirements of s 62A(2)(b) of the Evidence Act were therefore met: at [10] and [12].

(3) The application in respect of Mr Lee was not granted. The evidence of Mr Lee was of importance. He made the initial introduction between the first and second defendants by original action and Chairman Yang of the LJZ Group. He was also involved in subsequent discussions between them that related to one of the central issues in this case. There was no suggestion that Mr Lee was unable to attend to give evidence in Singapore. Whilst it might have been inconvenient for Mr Lee to do so, this alone was not sufficient, especially when considered against the fact that it was important that a witness gave important evidence in person so that the proceedings were conducted fairly: at [15] and [19].

(4) The application in respect of Chairman Yang was granted. A medical certificate was exhibited to show that Chairman Yang suffered from Parkinson's disease and mobility issues. Evidence was also tendered to show that his passport was held by the Chinese government and that permission was required for travel on a case-by-case basis, but that there were difficulties obtaining permission from the relevant Chinese authorities to attend despite having taken steps to do so. Whilst further evidence on Chairman Yang's medical condition would have been needed to justify him giving evidence by video link on that basis, the fact that he was unable to obtain his passport and permission to travel to Singapore was clearly sufficient. Although the party cross-examining Chairman Yang would suffer a degree of prejudice, the alternative was that Chairman Yang would not be able to give evidence. This alternative was clearly unsatisfactory given that Chairman Yang's...

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  • Anil Singh Gurm v J S Yeh & Company
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    • Court of Three Judges (Singapore)
    • 7 February 2020
    ...v Ing Yim Leung, Alexander [2011] 1 HKLRD 587 (refd) AG v Ting Choon Meng [2017] 1 SLR 373 (refd) Bachmeer Capital Ltd v Ong Chih Ching [2018] 4 SLR 29 (refd) Basil Anthony Herman v Premier Security Co-operative Ltd [2010] 3 SLR 110 (folld) Chow Kam Fai, Re [2004] 1 HKLRD 161, CFI (refd) Ch......

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