Goh Yeow Hwee v Tan Buck Chye
| Jurisdiction | Singapore |
| Judge | Leslie Chew |
| Judgment Date | 26 December 2008 |
| Neutral Citation | [2008] SGDC 378 |
| Court | District Court (Singapore) |
| Published date | 05 June 2009 |
| Year | 2008 |
| Plaintiff Counsel | Pauline Tan/ L. Devadason (P. Tan & Company) |
| Defendant Counsel | Hri Kumar Nair S.C./Benedict Teo/Kristine Ang (Drew & Napier LLC) |
| Citation | [2008] SGDC 378 |
| 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, Counsel posed the rhetorical question: Is it an opinion or a statement of fact? It can be both. Counsel referred to and relied on the commentary by Professor Jeffrey Pinsler in Evidence, Advocacy and the Litigation Process (2nd Edition) at 135 - 136 and the case of Sim Cheng Soon
d. Plaintiff Counsel, relying on Prof Pinsler’s views stated in the above text, argued that opinion evidence may be admitted if they consist of inferences made or drawn from the witness’ perception of those facts. The legal basis, being that such evidence may be admissible on common law principles by relying on s 2(2) EA.
e. Further, Plaintiff Counsel pointed out that all the case authorities cited by parties show that the cases were decided after a full hearing.
My Decision
12. O 33 r. 2 ROC permits the court to “… order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, … to be tried before, at or after the trial of the cause…”. It is not in doubt that the scope of the rule is designed to cover the application made by the Defendant in this hearing.
13. The rationale however of O 33 r 2 is to enable the court to try issues or questions that have arisen in the matter before the court, expeditiously, where such disposal will in turn yield substantial saving in time and expense. Thus it has been observed by the Court of Appeal in Federal Insurance v Nakano Singapore
“…we may state as a general rule that the court will not exercise its power under O 33 r 2 to order a preliminary point of law to be tried unless the trial of that issue will result in substantial saving of time and expenditure in respect of the trial of the action…”
14. As already noted, before me Defendant Counsel characterized the issue as this:
“Whether the statement of Li Xiaoke which is found at PBD 46 – 47 and BA 35 – 36 (Affidavit of Goh Yeow Hwee) is admissible?”
Counsel for the Plaintiff did not object to this characterization.
15. The implications of the determination of the preliminary issue, are obvious from the contentions raised by both sides. Although Counsel for the Plaintiff urged the Court to hear all the witnesses who will testify on behalf of the Plaintiff before it should rule on this issue of admissibility, arguing that the court could not do otherwise, with respect Counsel did not show me anything compelling on behalf of Plaintiff.
16. I accepted Defendant Counsel’s submission that the Plaintiff’s case is clearly based on the claim that the Painting was a fake or not genuine. This was, as Counsel for Defendant puts it, the threshold Defendant must cross to even begin to make his claim based on the alleged misrepresentations of the Defendant. I say no more save to add that, that seemed obvious to me. Thus, if I were to rule that the Statement was not admissible then it is as Defendant Counsel submitted, a case where the Plaintiff has no admissible evidence whatsoever to found their case in misrepresentation. If there is not even any prima facie evidence of the Painting being ‘fake’ as claimed in the Statement, before the court, then if the trial were to proceed as Plaintiff Counsel suggested, it would lead to unnecessary time and expense being incurred when the court at the end of the day were to reach the same conclusion on a determination of the preliminary issue.
17. For the reasons I have stated, I found that the application by Defendant...
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