Goh Yeow Hwee v Tan Buck Chye

CourtDistrict Court (Singapore)
JudgeLeslie Chew
Judgment Date26 December 2008
Neutral Citation[2008] SGDC 378
Citation[2008] SGDC 378
Published date05 June 2009
Plaintiff CounselPauline Tan/ L. Devadason (P. Tan & Company)
Defendant CounselHri Kumar Nair S.C./Benedict Teo/Kristine Ang (Drew & Napier LLC)

26 December 2008

District Judge Leslie Chew:

Factual Background

1. The action is a claim by the Plaintiff based on misrepresentation. The Plaintiff claims that the Defendant sold him a painting which purportedly was a Chinese brush painting by an apparently renowned Chinese painter, Li Keran. The case came up for hearing on 11 Dec 2008.

2. At the commencement of the trial and after the documents were marked, Defendant Counsel rose to make an application. Plaintiff Counsel applied under O 33 r 2 of the Rules of Court (‘ROC’) for a preliminary issue to be tried. Counsel submitted that this issue if decided in his client’s favour, would dispose of the entire action. This would then render the trial unnecessary and would save time and expense.

3. The preliminary issue or question which Defendant wanted the court to determine was this: Whether the statement of Li Xiaoke which is found at PBD 46 – 47 and BA 35 – 36 (Affidavit of Goh Yeow Hwee) (‘the Statement’) is admissible? This being a pure question of law eminently amenable to a resolution under the procedure laid down in O 33 ROC. The Statement in its translated form reads as follows:

“The painting “Qun Feng Die Cui tu” is a fake, trying to imitate my late father’s mountains and rivers in wash painting, named “Shui Mo Sheng Chu Se Wu Gong. The Position of its calligraphy is not correct and there is no sequence in the use of the Chinese ink.”

4. Defendant Counsel then further submitted that if this court finds that the Statement is not admissible, the court should dismiss the claim pursuant to O 33 r 5 ROC.

5. Plaintiff Counsel in response submitted that the application should not be granted since in this case, the court cannot rule on the admissibility of the Statement without first hearing all the Plaintiff’s witnesses.

6. Based on the application made under O 33 r 2, I could have first dealt with the question of whether I would accede to the application before dealing with the substantive arguments. Neither Counsel invited me to do so. Accordingly, the hearing proceeded on the substantive merits of the application by the Defendant under O 33 r 2 as well.

The Defendant’s Contentions

7. The Defendant’s contentions may be said to be fairly straightforward based on the combined effect of the Evidence Act (Cap. 97) (‘EA’) and the Rules of Court (‘ROC’) as well as generally with respect to the law relating to expert evidence.

8. Defendant Counsel’s submissions may be summarized as follows:

a. The Statement which the Plaintiff relies on is essentially the evidence of an expert witness. The maker, Li Xiaoke (‘Li’) has however not been called. He has not also deposed in an affidavit.

b. The Plaintiff has failed to comply with O 40A ROC with respect to the calling of an expert witness. Indeed in the Order of Court dated 22 July 2008 made pursuant to the usual summons for directions, there was no indication that an expert witness was being called on behalf of the Plaintiff.

c. There are therefore no details or particulars that would have been filed pursuant to O 40A ROC before the court.

d. It is a trite point of law and the Plaintiff accepts this, that Li’s evidence is hearsay evidence and therefore inadmissible. Indeed they are attempting to rely on s 32 EA.

e. In relation to the admissibility of the Statement, Defendant Counsel argued that s 47 EA and not s 32 EA applies to the Statement. The issue Counsel submitted relates to the authenticity of the Painting.

f. The Statement is clearly opinion evidence and is therefore inadmissible save as expert evidence under s 47 EA.

g. S 32 EA does not apply. Even assuming the Plaintiff can satisfy the preconditions laid down in s 32 EA , he must still satisfy one of the limbs in that provision. The most plausible would be s 32 (b). Here the Plaintiff must show that Li made the Statement ‘in the course of his business’. There is no evidence before this court which supports this contention, assuming arguendo s 32 EA applied.

The Plaintiff’s Contentions

9. Plaintiff Counsel’s main contention, in the first instance, is that this court cannot possibly decide the question or issue as a preliminary issue under O 33 r 2 until and unless it has heard all the evidence from the Plaintiff’s witnesses.

10. Additionally, Counsel also submitted that this court ought to let the matter proceed because for example, Li may well be called and may turn up. Counsel submitted from the bar that Plaintiff is trying to procure Li’s attendance.

11. On the substantive merits of the Defendant’s application, Plaintiff Counsel contended as follows:

a. The Plaintiff is able to show that Li made an oral statement as to the authenticity of the Painting to Poly Auction House which has acknowledged Li as the authority on Li Keran’s paintings.

b. Li had made the oral statement and the Statement in the course of his ordinary business. In essence, therefore the oral statement and the Statement by Li would be admissible under s 32 (b) EA. There is no doubt the two statements were made by Li in the ordinary course of business within the meaning of s 32 (b) EA.

c. Referring to the Statement...

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