Fan Ren Ray and others v Toh Fong Peng and others

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 03 December 2020
• Neutral Citation: [2020] SGCA 117
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 50 of 2020
• Published date: 06 December 2020
• Year: 2020
• Hearing Date: 03 December 2020
• Plaintiff Counsel: Tan Chuan Thye SC, Shaun Ou (Rajah & Tann Singapore LLP) (instructed) and Robert Raj Joseph (Gravitas Law LLC)
• Defendant Counsel: Muthu Kumaran s/o Muthu Santha (Kumaran Law)
• Citation: [2020] SGCA 117

Andrew Phang Boon Leong JA (delivering the judgment of the court ex tempore): Introduction

This is an appeal against the decision of the High Court Judge (“the Judge”) in Toh Fong Peng and others v Excelsior Capital Finance Ltd and others [2020] SGHC 51 (“the Judgment”).

Facts

The seven named respondents and 546 other individuals (collectively, “the Participants”) were participants in a network marketing scheme (“the Scheme”) owned and operated by a network marketing business in Malaysia (“the Malaysian Business”). Under the Scheme, the Participants could earn fixed returns and commissions by purchasing and selling financial products on online platforms known as “Web Shops”. These returns and commissions were reflected as credits that were stored in “E-Wallets” maintained on the Web Shops.

Each of the Participants had entered into the Scheme through an oral agreement (“Contract”) with a representative of the Malaysian Business. As the Malaysian Business did not have a separate legal personality, the Contracts were effectively concluded between the Scheme participants on one hand, and the owners of the Malaysian Business on the other.

The respondents, representing the Participants, alleged that the appellants were the owners and operators of the Malaysian Business, and that the appellants had breached three terms of the Contracts, namely: a term which obliged the Malaysian Business to allow the Participants access to the Web Shops (“the Access Obligation”); a term which obliged the Malaysian Business to effect the Participants’ redemption of their Web Shop credits for cash (“the Redemption Obligation”); and a term which obliged the Malaysian Business to insure 60% of the principal sum invested under certain financial products known as “silver packages” (“the Insurance Obligation”).

In the proceedings below, the appellants’ primary defence was that the Malaysian Business was in fact owned by the first respondent (“Ms Toh”). It was not suggested by any party that Ms Toh might be a co-owner of the Malaysian Business together with any of the appellants. The parties’ positions as to ownership were thus binary: Liability for breach of the Contracts, if established, would fall only on the appellants or on Ms Toh, to the exclusion of any other entity or individual.

The decision below

After a close examination of the evidence before him, the Judge found that the appellants were the owners and operators of the Malaysian Business. Accordingly, in respect of the respondents’ claim for breach of the Access Obligation by the appellants, the Judge entered interlocutory judgment with damages to be assessed. The Judge also allowed the fourth respondent’s claim for breach of the Redemption Obligation. Finally, the Judge entered interlocutory judgment in favour of the third respondent in respect of his claim for breach of the Insurance Obligation, with damages to be assessed. The respondents’ remaining claims were dismissed.

Issues

On appeal, the appellants’ case essentially rests on two planks: first, that the Judge evinced a fundamental misappreciation of the facts in finding that it was the appellants, and not Ms Toh, who owned the Malaysian Business, second, that the respondents’ claim against the appellants cannot be allowed because the Contracts are unenforceable for illegality.

We do not think the...