Bachmeer Capital Limited v Ong Chih Ching and others

• Judge: Vivian Ramsey IJ
• Judgment Date: 13 February 2018
• Neutral Citation: [2018] SGHC(I) 1
• Citation: [2018] SGHC(I) 1
• Defendant Counsel: 7th 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)
• Published date: 17 February 2018
• Hearing Date: 29 January 2018
• Plaintiff Counsel: Foo Maw Shen, Chu Hua Yi, Ng Sook Zhen, and Michelle Lee Ying Ying (Dentons Rodyk & Davidson LLP)
• Date: 13 February 2018
• Docket Number: Suit No 2 of 2017 (Summons No 2 of 2018)
• Court: International Commercial Court (Singapore)
• Subject Matter: Evidence,Witnesses,Attendance,Giving evidence by video link

Vivian Ramsey IJ: Introduction

This decision deals with an application to hear the evidence of two witnesses by video link.

By Summons No 2 of 2018 dated 19 January 2018, the 1st, 2nd, 4th, 5th, and 6th defendants by original action (“the KOP Defendants”) applied 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”).

The application was supported by the fifth affidavit of Russell Lee Pynn (“Mr Pynn”), an investment executive of the fourth defendant by original action.¹ The plaintiff by original action, Bachmeer Capital Limited (“the Plaintiff”), objected to the evidence being given by video link and filed the third affidavit of Wang Xuan setting out the basis of their objection. In reply, the KOP Defendants filed the first affidavit of Andrew Lee, their solicitor.

On 27 January 2018, I determined the application in respect of Mr Lee’s evidence without a hearing, dismissing that application. I adjourned the application in respect of Chairman Yang’s evidence until the first day of the trial, 29 January 2018. Having heard further argument, I adjourned the application and gave leave for the KOP Defendants to file a further affidavit from Chairman Yang dealing with an issue relating to the retention of his passport by the relevant Chinese authorities.

The KOP Defendants served the second affidavit of Chairman Yang and the sixth affidavit of Mr Pynn on 1 February 2018. Having given the Plaintiff the opportunity to make further submissions, I then ruled on 2 February 2018 that Chairman Yang should give oral evidence by live video link from Shanghai, China during the trial. I indicated that I would give my reasons in due course. Mr Lee came to Singapore and gave his evidence in person on 6 February 2018 and Chairman Yang gave his evidence by live video link on 7 February 2018. I now set out my reasons for dismissing the application in respect of Mr Lee and granting the application in respect of Chairman Yang.

The law

Section 62A of the Evidence Act (Cap 97, 1997 Rev Ed) allows evidence to be given by video link if the court so orders. It provides:

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. (3) The court may, in granting leave under subsection (1), make an order on all or any of the following matters: (a) the persons who may be present at the place where the witness is giving evidence; (b) that a person be excluded from the place while the witness is giving evidence; (c) the persons in the courtroom who must be able to be heard, or seen and heard, by the witness and by the persons with the witness; (d) the persons in the courtroom who must not be able to be heard, or seen and heard, by the witness and by the persons with the witness; (e) the persons in the courtroom who must be able to see and hear the witness and the persons with the witness; (f) the stages in the proceedings during which a specified part of the order is to have effect; (g) the method of operation of the live video or live television link system including compliance with such minimum technical standards as may be determined by the Chief Justice; and (h) any other order the court considers necessary in the interests of justice. (4) The court may revoke, suspend or vary an order made under this section if — (a) the live video or live television link system stops working and it would cause unreasonable delay to wait until a working system becomes available; (b) it is necessary for the court to do so to comply with its duty to ensure that the proceedings are conducted fairly to the parties thereto; (c) it is necessary for the court to do so, so that the witness can identify a person or a thing or so that the witness can participate in or view a demonstration or an experiment; (d) it is necessary for the court to do so because part of the proceedings is being heard outside a courtroom; or (e) there has been a material change in the circumstances after the court has made an order. (5) The court shall not make an order under this section, or include a particular provision in such an order, if to do so would be inconsistent with the court’s duty to ensure that the proceedings are conducted fairly to the parties to the proceedings.

…

Order 109 r 6 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) allows the court to give relevant directions. It provides:

Directions for and conduct of hearing (O. 109, r. 6)

6.—(1) Despite Rules 2(1) and (6), 3(1), 4(1) and (7) and 5(1), the directions which the Court may give under Rule 2(7)(a), 3(3)(a), 4(8)(a) or 5(3)(a) include directions on one or more of the following matters: … (f) subject to section 62A of the Evidence Act (Cap. 97), the giving of evidence through a live video or live television link; …

The approach to applications to give evidence by live video link under s 62A of the Evidence Act was considered by the Court of Appeal in Sonica Industries Ltd v Fu Yu Manufacturing Ltd [1999] 3 SLR(R) 119. In that case, the witnesses were outside Singapore, satisfying the requirement under s 62A(1)(c) of the Evidence Act. The Court of Appeal then considered the relevant matters under s 62(2) to determine whether to grant leave. It assessed the relevance of the evidence of the two witnesses and, in particular, the efforts which had been made to secure the attendance of...