Guillaume Levy-Lambert v Goh See Yuen Pierre

• Jurisdiction: Singapore
• Judge: Loo Ngan Chor
• Judgment Date: 15 November 2010
• Neutral Citation: [2010] SGDC 482
• Court: District Court (Singapore)
• Hearing Date: 15 November 2010,11 November 2010
• Docket Number: District Court No. 303 of 2009 J
• Plaintiff Counsel: Paul Tan / Pak Waltan (Samuel Seow Law Corporation)
• Defendant Counsel: Alfred Tan (Alfred Tan & Co.)
• Published date: 22 February 2011

District Judge Loo Ngan Chor: Brief background:

The plaintiff and the defendant were in a homosexual relationship for a very brief interval said to have been from about June 2008 to August 2008.

The pleaded case and the affidavits of evidence in chief of the parties ranged wide over the points and counter-points of the relationship of the parties and the propriety of the use of various sums of money in a bank account and a supplementary credit card. These arguments have become irrelevant because I eventually proceeded to hear the parties on a preliminary issue. What serves, for the limited purpose of lending context to the preliminary issue, is the brief background set out under this sub-heading.

It is common ground that the plaintiff had started a DBS bank account no. 109-XXXXXX-X in the joint names of himself and the defendant. He deposited a sum of $180,000.00 into the bank account said to be on or about 9th July 2008. The defendant did not pay anything into the account.ⁱ At the same time, the plaintiff also obtained a supplementary American Express credit card no. 377XXXXXXXXXXXX for the defendant’s use.

The plaintiff says that the defendant made unauthorised withdrawals from the account on 5th and 18th August 2008 totalling $86,909.54 leaving the account with a balance of $646.46.ⁱⁱ.

The plaintiff says that the account contained “trust monies” impressed with an express or resulting trustⁱⁱⁱ and sued for the return of the unauthorised withdrawals and another sum of $50,000. The plaintiff also claimed for sums the defendant incurred on the credit card without the plaintiff’s authority. The defence says that the funds in the bank account were not trust monies but were a gift by the plaintiff to the defendant. The defence also argues that the bank account and the credit card monies were tainted by an illegal contract in that the parties’ relationship involved offences of unnatural sex prohibited by s377A of the Penal Code.

The preliminary issue:

At a pre-trial conference, I suggested to counsel that the case seemed to be amenable to resolution based on a preliminary issue involving the effect of illegality to be defined and an agreement as to essential facts. Each party came into court with his own preliminary issue but without any agreement on any essential facts.

Mr Alfred Tan (“DC”), who acted for the defendant, framed the preliminary issue thus:

“The defendant is raising an objection in law that the statement of claim be struck out as the illegality is patent on the face of the pleadings and the plaintiff’s own bundle of documents.”^iv

The nine facts on which the DC relied were identified.^v

Although the DC did not state definitively, for the purpose of his view of the preliminary issue, what was the illegality of which he complained, I have taken him to mean that there was a “contract/transaction” which was illegal because the parties had agreed to cohabit in a homosexual relationship which would involve unnatural sex.^vi My understanding just stated arose from the pleaded position of the defence.^vii

Mr Paul Tan (“PC”), acting for the plaintiff, submitted that the court should “make a preliminary finding of law on the following issues: The unauthorised sum of $86,909.54 monies withdrawn from the joint account by the defendant without the plaintiff’s consent; The unauthorised cash advance of $9000 obtained by the defendant from the Amex Card without the plaintiff’s consent; The unauthorised expenditure of $610 from a Prada outlet from the Amex Card; The charges incurred by the plaintiff arising from the defendant’s default and wrongful use of the Amex Card.”^viii

PC submitted that if the court would make a preliminary finding of law on those issues (of what, in my view, were issues of) fact, the plaintiff would not press his claim on “all the heads of claims by trial.”^ix

Having discerned that both counsel wished for the matter to proceed by way a preliminary issue, I suggested and obtained their agreement to the following preliminary issue:

Are (1) the DBS autosave bank account number 109-XXXXXX-X and (2) the sums incurred in respect of DBS American Express Treasures Card number 377XXXXXXXXXXXX tainted by any operative illegality so that the plaintiff’s claim for the amounts of $86,909.40 and $10,230.02 must automatically fail? If the answer to the question is yes, the statement of claim would be dismissed. If the answer to the question is no, there would be judgment in favour of the plaintiff for $97,139.42.

As was made known to the parties, the preliminary issue was intended by me as an issue of law, or at the very least, an issue of mixed law and fact, with the latter only involving issues of fact that were not disputed.

In response to my queries, the DC confirmed that the defendant would drop his defence of a gift in respect of the monies in the account and the PC confirmed that the plaintiff would drop his claims for sums above $97,139.42.^x Both counsel did not wish to lock in any basic facts and were satisfied with the preliminary issue as framed by me.

I indicated that the DC would first submit, followed by the PC, with the DC having a right of reply. I structured the parties’ submissions in this way because the preliminary issue went to the outcome of the defence such that if answered in the negative, the defendant would have judgment entered against him.

Submissions for the defendant:

The DC’s submission was that the bank account was a creature of, and inextricably linked with the illicit contract or transaction between the parties. As I mentioned at [8] above, the illicit contract or transaction to which the DC referred was the agreement of the parties to cohabit together as “lovers”, which entailed intercourse of a typed prohibited by s377A of the Penal Code.

The DC submitted that the court should make a finding whether the bank account was necessary to bring into fruition the illicit relationship. He submitted that the plaintiff’s starting the bank account was an offence of procuring unnatural intercourse within the meaning of, and an offence under, s377A of the Penal Code.

It was submitted that it was incontrovertible that a transaction is an illegal transaction “if it involves reprehensible conduct when its formation, purpose or performance involves the commission of a legal wrong.”^xi

The DC cited Bigos v Bousted (1951) 1 AER 92 where the defendant proceeded with his counter-claim for the return of certain share certificates. He had given these share certificates to the plaintiff as security for his contract with the plaintiff which was found to be in contravention of the Exchange Control Act 1947. Pritchard J found that “the agreement relating to the deposit of the share certificate was one which sprang from and was the creature of the main illegal agreement and was tainted with the same illegality which was attached to the agreement.” The parties being in pari delicto, the court would not assist the defendant.^xii

Thus, the DC’s argument went, the “opening of the bank account in July 2008, sprang from and was a creature of the illegal agreement and as the law could not enforce the original illegal contract, so neither would the courts allow the parties to enforce rights under the account, which by the original bargain, was tainted with illegality.”^xiii

Submissions for the plaintiff:

The PC pointed out that s377A of the Penal Code criminalises the acts set out in that provision but not homosexual relationships as such. The PC explained that the Government has publicly declared that while s377A remained an offence within the Penal Code, this was only so that the criminal law did not race ahead of broad societal norms, which remained largely conservative. That notwithstanding, homosexuality is a reality that the Government recognised. He pointed out that a number of Ministers of the Government have openly declared that s377A offences would not be prosecuted except in cases where there were unusually aggravating factors.

The PC submitted that the parties’ homosexual liaison “is not a sexual transaction”, as the defendant alleged. He submitted that one’s “desire to provide for a loved one in a relationship cannot be illegal or is deemed for an illegal purpose just because it is a ‘same-gender’ relationship!”^xiv

The PC argued that the trusts which impressed the bank account were not themselves illegal and that the defendant was not arguing the contrary. Citing in support Tinsley v Milligan [1994] 1AC 340, American Home Assurance Co v Hong Lam Marine Pte Ltd [1999] 2 SLR(R) 992 and Chee Jok Heng Stephanie v Chang Yue Shoon [2010] 3 SLR 1131, the PC argued that the plaintiff, in prosecuting his claim for the sums in the bank account, ^xv“is not relying on any alleged illegal transaction or purpose for the enforcement of the same.”

Analysis:

I do not propose to deal with any question whether the bank account was the subject of an express trust. This would have entailed an examination of the evidence which, in the nature of the preliminary issue approach I took, was not gone into at all. It would also be apparent, from [8], [15] and [19] above, that the parties were not in agreement over the question of fact whether the bank account was meant as to entice the defendant into the relationship; the defendant took this stand but the plaintiff insisted that the bank account was the product of love and not intended to induce the defendant.

What of the resulting trust? I am free to deal with this issue given that the DC agreed that the defendant would abandon his defence of a gift should I find that there was no operative illegality. The issue of a gift was the defendant’s counter to the plaintiff’s allegation inter alia of a resulting trust. This further meant that the defendant implicitly agreed that the monies in the joint bank account which were in issue, were provided by the plaintiff alone. In Lau...