Chen Aun-Li Andrew v Ha Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased)

• Judge: Kannan Ramesh JAD
• Judgment Date: 01 December 2022
• Neutral Citation: [2022] SGHC(A) 41
• Citation: [2022] SGHC(A) 41
• Published date: 06 December 2022
• Docket Number: Civil Appeal No 31 of 2022
• Plaintiff Counsel: Soo Ziyang Daniel (Selvam LLC)
• Defendant Counsel: Tan Kai Liang, Mak Sushan Melissa and Jonathan Kenric Trachsel (Allen & Gledhill LLP)
• Subject Matter: Conflict of Laws,Foreign judgments,Enforcement
• Hearing Date: 01 December 2022
• Court: High Court Appellate Division (Singapore)

Debbie Ong Siew Ling JAD (delivering the judgment of the court ex tempore):

This is an appeal against the decision of the Judge of the General Division of the High Court (the “Judge”) in Ha Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased) v Chen Aun-Li Andrew [2022] SGHC 149 (the “GD”), which upheld the registration of a foreign judgment, referred to as the “Collective Judgment” as it comprised two components:¹ An order dated 30 April 2013 of the Court of First Instance of the Hong Kong Special Administrative Region (the “HKCFI”) – this is an order that the costs of the main action, ie, Action No 4354 of 2003 (“Action 4354”), and the counterclaim are to be paid to (the late) Mr Khoo Ee Liam (“Mr Khoo”), to be taxed if not agreed. This order is referred to as the “Cost Order”. A cost certificate dated 13 May 2020 which is the taxing master’s cost certificate – the costs were taxed at the sum of HK$15,280,877.12. This is referred to as the “Cost Certificate”.

Background

The appellant, Mr Chen Aun-Li Andrew, was the director and sole shareholder of Aachen (Asia Pacific) Consultants Limited (the “ACL”), a company incorporated in Hong Kong.² ACL commenced legal proceedings in Hong Kong against Mr Khoo in Action 4354; Mr Khoo filed a counterclaim against ACL. The HKCFI dismissed ACL’s claims and found in favour of Mr Khoo’s counterclaim.³ Mr Khoo then successfully applied to join the appellant as a party to Action 4354 for the purpose of costs. This was granted as part of the Cost Order.⁴ As the parties were unable to agree on costs, the matter was set down for taxation. Thereafter, Mr Khoo passed away and the respondent, Mdm Ha Chi Kut, obtained an order to be made a party to Action 4354 in her capacity as the sole executrix of Mr Khoo’s estate.⁵ The costs of Action 4354 and the counterclaim were then taxed, and the Cost Certificate was issued.⁶

Pursuant to s 4(1) of the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (the “REFJA” or “Act”), the respondent applied to register the Collective Judgment in Singapore on 21 June 2021.⁷ The Collective Judgment was registered on 22 June 2021.⁸ The appellant subsequently applied to set aside the registration of the Collective Judgment pursuant to s 5(1) of the REFJA.⁹ The assistant registrar dismissed the application and the appellant appealed against this decision.¹⁰ In the General Division of the High Court, the Judge dismissed the appeal. A judgment creditor may apply to have the judgment to which the REFJA applies registered at any time “within 6 years after the date of the judgment”: s 4(1)(a) of the REFJA. The registration of a judgment may be set aside if the registering court is satisfied that the judgment “was registered in contravention of sections 3 or 4” of the REFJA: s 5(1)(a)(i) of the REJFA. The Judge determined the date of the Collective Judgment to be 13 May 2020, ie, the date of the Cost Certificate: [74] of the GD. Thus, the application for the judgment to be registered was made within the time required in s 4(1)(a) of the REFJA, and there was no basis to set aside its registration.

Parties’ submissions

The appellant submits that the “sole issue on appeal is whether the date of the “judgment” for the purposes of section 4(1) read with section 5(1)(a)(i) of the REFJA is the date of the 2013 Order (i.e. 30 April 2013), or the date of the 2020 Certificate (i.e. 13 May 2020).” [emphasis in original]¹¹ From his appellant’s case, however, his core argument is essentially that the relevant date of the judgment for purposes of s 4(1)(a) is that of the Cost Order (ie, 30 April 2013) because it was a "money judgment" which could be registered under the REFJA.

In this appeal, the appellant submits that the Judge erred in relying on the legislative history of the REFJA prior to the 2019 amendments to the Act. The REFJA was amended by the Reciprocal Enforcement of Foreign Judgments (Amendment) Act 2019 (Act 25 of 2019) (the “2019 Amendment”), which took effect on 3 October 2019. He argues that “Parliament clearly intended to depart from the common law position in relation to the enforcement of foreign judgments when enacting the [2019 Amendment]”, which amended the REFJA.¹² He contends that the purpose and legislative object of the REFJA had changed because of the 2019 Amendment, and the REFJA should be construed on its own terms without reference to the meaning borne by the words prior to 2019.¹³ He further submits that the Cost Order was a “money judgment” as it obliged him to pay a sum of money although the quantum was not defined.¹⁴ His submission is therefore that the relevant judgment for the purposes of s 4(1) is the Cost Order which application for registration must be made within six years of the date of its issue, ie, 30 April 2013. Further, even if the Cost Order and Cost Certificate could be said to have merged, the relevant date for the application of registration was 30 April 2013.¹⁵

The respondent contends that the judgment which may be registered under the REFJA is a “final money judgment” and the Cost Order was not such a judgment.¹⁶ She submits that the Collective Judgment only became final and conclusive as to the amount payable at the point when the Cost Certificate was issued.¹⁷ Since the relevant judgment is the Collective Judgment and not the Cost Order, the date of the judgment must be 13 May 2020, as it was only at this point that the Collective Judgment came into being.¹⁸

Decision

The appellant gives hardly any reasons or evidence to support his argument that the 2019 Amendment changed the legislative object and purpose of the REFJA. There is no explanation or evidence, such as material from the Parliamentary debates, supporting his contention that Parliament intended to depart from the common law position in relation to the enforcement of foreign judgments.

Contrary to the appellant’s argument, we observe that the Parliamentary debates show that the 2019 Amendment to the REFJA in fact sought to “supplement the existing regime, to further strengthen Singapore’s value proposition for litigants considering where to resolve their disputes”: Singapore Parliamentary Debates, Official Report (2 September 2019) vol 94, (Mr Edwin Tong Chun Fai, Senior Minister of State for Law (for the Minister of Law)).¹⁹ A reading of the Parliamentary debates affirms that it was not the aim of Parliament by way of the 2019 Amendment to replace or oust the common law regime but to “expand and modernise the framework by adding … four more types of judgments in civil proceedings into the fold recognised by REFJA”: Singapore Parliamentary Debates, Official Report (2 September 2019) vol 94, (Mr Edwin Tong Chun Fai, Senior Minister of State for Law (for the Minister of Law)).²⁰

The enforcement regime under the REFJA was based on and intended to replace the common law action on a foreign judgment. Hence...