GBN v GBO

• Jurisdiction: Singapore
• Judge: Clement Julien Tan Tze Ming
• Judgment Date: 28 April 2017
• Neutral Citation: [2017] SGDC 143
• Published date: 07 June 2017
• Court: District Court (Singapore)
• Year: 2017
• Docket Number: District Court Suit No. 841 of 2017, DC/SUM 1082/2017
• Plaintiff Counsel: Mr Andrew John Hanam (M/s Andrew LLC)
• Defendant Counsel: Mr Alphonso Ang Cheng Ann / Ms Cheah Shu Xian (M/s A.Ang, Seah & Hoe)
• Subject Matter: Injunctions - Interlocutory injunction - Mandatory injunction - Tort - Conversion
• Citation: [2017] SGDC 143

District Judge Clement Julien Tan Tze Ming: Introduction

The plaintiff’s son is a student at a well-known secondary school in Singapore (the “School”). The defendant is the Principal of the School.

The plaintiff filed this application seeking an interim mandatory injunction that the defendant deliver up the Apple iPhone 7 (the “Phone”) which was confiscated from the plaintiff’s son on 21 March 2017. This is also one of the two main reliefs sought by the plaintiff in the main action, the other being damages in respect of the tort of conversion.

Background facts

The facts leading up to this application are largely undisputed. The plaintiff claims to own the Phone, which he lent to his son to use.

According to the defendant, he was informed on 20 March 2017 by the Level Dean of Secondary 2 of an incident that took place on 8 March 2017 during which the plaintiff’s son and his friend had flouted school rules by using the Phone during school hours.

On 21 March 2017, the defendant followed up on the matter and asked to see the plaintiff’s son and his friend. The plaintiff’s son admitted to using the Phone during school hours and to lending it to his friend to use on 8 March 2017. The plaintiff’s son also admitted that he was fully aware that the consequence of using a mobile phone during school hours would be the confiscation of the mobile phone for three months.

The plaintiff’s son was brought to the school reception area where the SIM card was removed from the Phone and returned to him. The Phone was confiscated and locked up together with other confiscated phones in the School’s general office, and a “Receipt for Confiscated Items” (the “Receipt”) was issued to the Plaintiff’s son. On the Receipt, it is stated that:

The item(s) mentioned above may be retrieved after 3 months from the date of confiscation. In the event of [sic] the retrieval date falls on November / December school holidays, the pupil may claim his property on the last week of Term 4.

That same evening (i.e., on 21 March 2017), the plaintiff sent an email to the defendant requesting the return of the Phone. In the email, the plaintiff stated as follows:-

I am writing to you to request that the phone be returned to [my son]. Firstly, it is my mobile phone and your retention of the phone amounts to the tort of conversion. Secondly, a 3 month confiscation is disproportionate to the offence. Thirdly, [my son] has assured me that he will not break this rule again. Fourthly, [my son] thought that he was allowed to use the phone as his classes had ended for the day.

He needs his mobile phone for a number of reasons and it is not acceptable that it be taken away.

The plaintiff did not receive a response to his email. On 23 March 2017, the plaintiff issued a letter of demand to the defendant. The letter of demand was issued by the plaintiff’s law firm. In the letter of demand, the plaintiff wrote as follows:-

On 21 March 2017, you took the Telephone from a student … with intent to keep it for 3 months. The Telephone is the property of our client … and we demand that the Telephone be handed over to our office by Friday, 24 March 2017, 4pm, without any damage.

The plaintiff also stated in the letter of demand that he would commence legal action against the defendant if the Phone was not returned by the stipulated date. Again, the plaintiff did not receive any response from the defendant.

The plaintiff commenced legal proceedings against the defendant on 29 March 2017. On 30 March 2017, the plaintiff filed this application for an interim mandatory injunction.

I heard the application on 28 April 2017 and dismissed the same. My reasons are set out below.

My decision

The test for the grant of an interim mandatory injunction is set out in Tiananmen KTV (2013) Pte Ltd and others v Furama Pte Ltd [2015] 3 SLR 433 at [18] to [22] (“Tiananmen”), which is as follows:- there must be a serious question to be tried; the balance of convenience lies in favour of the grant of the injunction; and the court will grant an interim mandatory injunction only in a clear case where special circumstances exist.

Serious question to be tried

In determining whether there is a serious question to be tried, the court has to ascertain if the plaintiff has any prospect of succeeding in his claim for a permanent injunction at trial. In my view, the answer to this is in the negative.

The plaintiff’s case is that by confiscating the Phone, the defendant had committed the tort of conversion. This is the only cause of action pleaded in the Statement of Claim and relied on by the plaintiff at the hearing.

On the plaintiff’s case as it stands, he would not succeed in obtaining a permanent injunction at trial because the only remedy available in the tort of conversion is damages. The relief of delivery up which the plaintiff seeks is available in the tort of detinue but not in the tort of conversion. This distinction was drawn in Antariksa Logistics Pte Ltd and others v McTrans Cargo (S) Pte Ltd [2012] 4 SLR 250 at [156] to [158], where the court held as follows:- [156] I awarded damages to be assessed to the Group B Plaintiffs. I did not award delivery up to the 4th, 7th, 8th, 12th and 15th Plaintiffs because the Plaintiffs ran their entire cause of action in conversion rather than detinue (as would be explained below). Strictly, the relief of delivery up is not available in a claim for conversion. The only remedy for a claim in conversion at common law is an award of damages. Diplock LJ in General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644 at 649 noted that “the action in conversion is a purely personal action and results in a judgment for pecuniary damages only”. At common law, the courts may only order the specific delivery of an asset for an action of detinue … [157] In seeking the remedy of delivery up, Mr Kwek relied primarily on authorities based on the position in England following the enactment of the Torts (Interference with Goods) Act 1977 (c 32) (UK) (“the 1977 TIGA”). By virtue of the 1977 TIGA , the tort of detinue was abolished in England with the remedies for detinue being made available for the statutory tort of conversion, in particular delivery up … [158] There is no equivalent statutory reform in Singapore. As a result, the position in Singapore is that the tort of detinue still had to be pleaded if a plaintiff seeks the remedy of delivery.

[Emphasis in bold added]

Hence, even if the plaintiff succeeds in establishing his claim in the tort of conversion at trial, he will not be able to get an order for delivery up.

I turn now to address the merits of the claim. The defendant counsel submitted that the plaintiff’s claim is frivolous and vexatious. As the Principal of the School, the defendant is responsible for overseeing the discipline of the students in the School and therefore has the authority to confiscate the Phone. In this regard, the defendant relied on Regulation 83 of the Education (Schools) Regulations (Cap. 87, 2013 Rev. Ed.) which provides as follows:-

The principal for every full-time primary or full-time secondary school shall be responsible for the discipline of the pupils of the school whether on the school premises or off the school premises in such circumstances as to permit the pupils to be identified as pupils of the school.

Further, both the plaintiff and his son were notified and aware of the rule prohibiting the use of mobile phones during school hours and the consequence of flouting this rule. The defendant counsel drew my attention to a letter dated 3 January 2017 (the “3 January Letter”) issued by the defendant to all staff, students, parents and guardians of the students of the School welcoming them to the new school year. A hard copy of the letter was given to the students to be handed to their parents or guardians. The 3 January Letter was also posted on the School’s website. In the 3 January Letter, the defendant highlighted, amongst other things, the need for students to be responsible and abide by the School’s practices, rules and code of behaviour. The rule on the use of mobile phones was specifically dealt with in the said letter. The relevant extract of the 3 January Letter states as follows:-

School Practices and Rules

With about 1400 students, we would need every one of them to be responsible and abide by the school’s practices, rules and code of behaviour. Your son/ward would have been briefed about these expectations today and to support his adherence, these are found in the Student Handbook he received. Space does not permit me to highlight all of them, but I would like to draw your attention to our requirement for a student to lock his handphone or any other electronic devices in his locker from the beginning of the school day till after school (which includes Academic Coaching or detention classes). CCTVs have been placed to monitor the locker areas for security purposes.

We would prefer that your son/ward does not bring handphones or other unauthorized electronic devices...