Chan Chin Cheung v Chan Fatt Cheung and Others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 11 December 2009
• Neutral Citation: [2009] SGCA 62
• Date: 11 December 2009
• Subject Matter: Civil Procedure,Stay of proceedings
• Docket Number: Civil Appeal 148 of 2008
• Published date: 15 December 2009
• Defendant Counsel: Lim Shack Keong and Loo Sai Fung (Drew & Napier LLC)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Sarbit Singh Chopra and Cheryl Monterio (Lim & Lim)

11 December 2009 Judgment reserved.

Chao Hick Tin JA (delivering the judgment of the court):

Introduction

1 This is an appeal by Chan Chin Cheung (“the appellant”) against a decision of the High Court Judge (“the Judge”) made on 29 August 2008, wherein the Judge allowed the respondents’ appeal (in RA 284 of 2008) and ordered, inter alia, a stay of the current Singapore proceedings pending the outcome of certain proceedings in Malaysia. The Singapore proceedings were instituted by the appellant to claim damages for alleged defamatory statements made by the respondents, as trustees of an estate, in their circulars issued to beneficiaries where they informed the latter of certain matters relating to the estate and which concerned the appellant. The Malaysian proceedings concerned, inter alia, allegations of the failure of the trustees to discharge their duty to the beneficiaries.

2 We turn now to set out the facts leading to these proceedings.

The facts

3 According to the appellant, he is the half brother of the first and second respondents (ie, Chan Fatt Cheung and Chan See Chuen). The third respondent, Chan Chee Chiu, is the son of another brother of the appellant named Chan Chor Cheung. The appellant and the respondents are beneficiaries under the will (“the Will”) of their late father and grandfather, Chan Wing (“the deceased”) who died on 27 February 1947. The estate comprised assets in Singapore, Malaysia and Hong Kong. At present, there are 16 beneficiaries to the estate and of these beneficiaries eight reside in Singapore, two in Malaysia, and the others elsewhere.

4 The respondents are the current trustees of the deceased’s estate. The appellant was dissatisfied with the respondents’ management of the estate and thus commenced three suits in Malaysia against the respondents as trustees of the deceased’s estate (collectively “the Malaysian proceedings”).

5 The dispute between the parties centered on the implementation of clause 14 of the Will which provided that the income of the deceased’s estate, after paying certain expenses, was to be divided among his “sons and grandsons”. After the death of the last survivor of the deceased’s wives and sons, the remainder of the estate was to be divided among the deceased’s “grandsons” then living. On 1 May 2001, the appellant wrote to the respondents, requesting that they obtain DNA certification that all “grandsons” listed as beneficiaries were biological sons of their respective fathers. The respondents replied, stating that the legitimacy status of each grandson was to be determined based on the conventional legal method and not through DNA analysis, and they invited the appellant to share any special information as to why the DNA method was superior to the conventional method. On 25 May 2001, the appellant repeated his request to the respondents. The respondents, by a letter dated 10 June 2001, informed the appellant that the estate’s lawyers had unanimously opined that for a grandson to qualify as a beneficiary under the Will, he had to be born to a son of the deceased and that son’s legally wedded spouse. The respondents pointed out that they had previously rejected two claims by persons purporting to be grandsons of the deceased, and thus not entitled under the Will, on the basis that they did not satisfy this legal requirement. The respondents accordingly asked the appellant to disclose any legal documents which questioned the legitimacy of any of the twelve “grandsons”.

6 On 1 March 2002, the appellant wrote to the respondents claiming that he had two sons who qualified as beneficiaries in their capacity of “grandsons” under the Will. The appellant enclosed DNA tests which confirmed that he was the biological father of the two boys. Their birth certificates also stated that they were born to the appellant and one Mdm Chan Ah Mooi. As far as the respondents were aware, the appellant was married to one Mdm Lee Moi Yin and from that marriage the appellant has two daughters but no son. The respondents thus informed the appellant that this was the first time that they had been told of the existence of the appellant’s two sons, and requested that the appellant furnish the marriage certificate between himself and Mdm Chan Ah Mooi. The appellant did not do so, and instead, within two weeks of the respondents’ request, chose to file a suit (“the first Malaysian suit”).

7 In the first Malaysian suit, the appellant sued Chan Chak Cheung (who has since passed away) and the second respondent, claiming that they had failed to furnish him with information relating to the estate’s accounts despite his requests. Accordingly, he asked for an account of the deceased’s estate and for the conduct of an investigative audit.

8 In the second and third Malaysian suits, the appellant sought the removal of the respondents’ as trustees, and an order that he and his two sons be appointed in their stead. The second Malaysian suit was instituted against Chan Chak Cheung and the second respondent on the basis that they were statutorily incapable of being trustees pursuant to s 40(1) of the Trustees Act 1949 (Malaysian Act). The third Malaysian suit was instituted by the appellant and his two sons, Chan Kam Yew and Chan Kam Ming (collectively “the appellant’s sons”) against the three respondents. The third Malaysian suit has been dismissed by the Malaysian court. The sons have since filed an appeal, and this appeal is understood to be pending.

9 After the respondents had filed their defence in the Malaysian proceedings, they periodically sent circulars to all the beneficiaries of the deceased’s estate to update them on the developments in the Malaysian proceedings (“the circulars”). The appellant took objections to several statements in those circulars and instituted Suit 559 of 2007 (“the Singapore action”) on 31 August 2007, alleging that the respondents had defamed him. The allegedly defamatory statements in the circulars were in the main the following:

(a) [The appellant’s] 2 alleged sons claimed to become “Beneficiaries of [the estate of Chan Wing] as well as for inheritance” – Shows greed, personal gain & ulterior motive. Both not qualified to be Beneficiaries.

(b) [The plaintiff’s] mental instability is best defined in the Oxford Dictionary as, quote:-

1 “paranoia”: – mental derangement with delusions of grandeur, persecution, etc, abnormal tendency to suspect & mistrust of others.

2 “schizophrenia” – mental disorder marked by disconnection between intellect, emotions etc & actions.

(c) It is to be noted that Suit S-22-799-2003 [second Malaysian suit] and Suit S1-24-1252-2005 [third Malaysian suit] are very similar in nature. Both had petitioned the Court to remove “serving Trustees” & to appoint [the appellant] or “his 2 alleged sons” to replace the removed Trustees.

(d) [The appellant] is both dishonest & untruthful.

(e) [The appellant] is most unsuitable to serve as a trustee of the [estate]. He had misappropriated money from both of our family companies; Chan Wing Holdings “CWH” in 1973 & from Happy Homes “HH” in 1974. [The appellant] only returned the money misappropriated from [the estate] in 1975 despite constant demands from Members of the Companies. Despite all demands, the money taken from HH was returned after he was sued in High Court, commercial Division in Suit C8 of 1983. Currently, [the appellant] is also sued for a debt, money allegedly owing by him to his niece in case S3-22-1124-2004.

The list of perjuries committed [the appellant] alone speaks volumes on his character and suitability to be a trustee.

(f) [The appellant] is malicious, vindictive & and is full of hatred.

(g) [The appellant] is consumed by greed, self interest, conflict of interest & contempt for all members of the family.

(h) [The appellant] contemptuously sponsored his 2 alleged sons to become beneficiaries of the [estate] & claimed inheritance knowing that they are not qualified to claim as such. When rebuffed, [the appellant] demands a DNA test for all grandsons & threatens. To take revenge, he filed 3 High Court Cases (“grand schemes”) in anger & in rapid succession.

(i) [The appellant] is an unreliable witness and his word is worthless.

It should be noted that none of the words complained of by the appellant appear to concern his conduct in Singapore.

10 In their defence, the respondents admitted to making and publishing those statements in the circulars but pleaded justification in defence. The respondents argued that the ordinary and natural meaning of the words the appellant took issue with meant, inter alia, that the appellant had made false statements under oath; made false reports to the authorities; taken monies from two family companies without proper authorisation; and had commenced the Malaysian proceedings in bad faith (and in doing so, was motivated by personal interests). The respondents claim to have been justified in making those statements on the ground that they are true in substance and fact (see [9] and [10] of the respondents’ defence filed in the present proceedings).

11 On 29 November 2007 the appellant made an application to the Kuala Lumpur High Court to stay the first Malaysian suit pending the disposal of the Singapore action. In his supporting affidavit, he informed the Malaysian court that he would commence a fresh action in Singapore to have the same issues as those in the first Malaysian suit determined together with the Singapore action. He decided to proceed in this way because he thought that the Singapore action would be heard before the first Malaysian suit could be heard, and that the Singapore action was likely to bring into focus the same factual issues raised in the first Malaysian suit. In this regard, it is significant to note that while the appellant thought that the Malaysian court has “better jurisdiction” over the claim in the first Malaysian suit, but in order to “avoid duplicity, multiplicity and prejudice”, he was...