Hi-Tech Rubbers v Dai Ichi Intertrade Pte Ltd

• Jurisdiction: Singapore
• Judge: Kevin Kwek
• Judgment Date: 07 May 2018
• Neutral Citation: [2018] SGDC 133
• Court: District Court (Singapore)
• Hearing Date: 04 May 2018,25 April 2018
• Docket Number: DC 1006 of 2014/Summons 1414 of 2018
• Plaintiff Counsel: Ms. Eileen Yeo (Advocatus Law LLP)
• Defendant Counsel: Mr. Manimaran s/o Arumugam (Mani & Partners)
• Subject Matter: Section 62A Evidence Act,Evidence by Live Video Link
• Published date: 01 November 2018

District Judge Kevin Kwek: The Application

Summons 1414 of 2018 (“Summons 1414”) is an application filed by the Plaintiff under Section 62A(1) of the Evidence Act for leave to adduce at the trial of this suit, the evidence of two of the Plaintiff’s witnesses, one Mr. Krishnapillai Jayakumar Nair (“Mr. Nair”) and one Mr. Ganesh Meenakshi Sundaram (“Mr. Ganesh”), by way of live video link from India.

At the pre-trial conference (“PTC”) on 28 March 2018, parties confirmed their availability on 7 May 2018 for the first day of trial. At the PTC, Plaintiff Counsel indicated that the Plaintiff would be making an application under Section 62A(1) of the Evidence Act. Summons 1414 was subsequently filed on 12 April 2018 and affidavits exchanged prior to the substantive hearing of Summons 1414 on 4 May 2018.

I dismiss the application and set out my reasons below.

The Parties

The Plaintiff is a sole-proprietorship, having its registered address in Tamilnadu, India and is in the business of manufacturing retreaded tyres. It is owned by Mr. Nair. Mr. Ganesh is an employee of the Plaintiff.

The Defendant is a private limited company incorporated in Singapore. It is in the business of general wholesale trade. The Defendant also trades in iron, steel, agro products and timber. The two directors of the Defendant are Mr. Somasunthram Niranjan Nanthagopan (“Mr. Niranjan”) and Mr. Thayapari Niranjan.

The Main Dispute in Suit 1006 of 2014

According to the Plaintiff, it was agreed that the Defendant would provide rubber that was of the type and quality as a sample provided by the Defendant. This was in the form of lumps or briquettes, with about 2% moisture and consisted mainly of Grade A and Grade B Styrene and Butadiene Rubber (“SBR”) with any Grade C SBR making up a maximum of about 10% to 15% of the rubber being delivered (the “Agreed Rubber”).

The first seven transactions between the parties were uneventful. The dispute arose in the eighth transaction sometime in October 2010. According to the Plaintiff, the goods delivered pursuant to the eighth transaction did not match the description of the Agreed Rubber and consisted of Grade C material with a lot of white clay powder and water (the “Defective Rubber”).¹ The Defective Rubber was sent to Japan Polymer Analytical and Research Laboratory India Private Limited for testing. The laboratory confirmed that the rubber was “not in useable condition”².

The Writ of Summons was issued by the Plaintiff on 8 April 2014. In the Statement of Claim (Amendment No. 2) filed on 6 September 2017, the Plaintiff claimed for damages arising from the Defendant’s breach of the agreement consisting of (i) US$27,313 for the amount paid by the Defendant for the Defective Rubber; (ii) INR 560,867 in wasted costs and expenses for the transport of the Defective Rubber to the Plaintiff’s factory; and (iii) US$66,848.70 in wasted costs incurred in obtaining the Agreed Rubber from alternative sources.

The trial is fixed for 7 May 2018.

Giving Evidence By Way of Live Video Link

Pursuant to Section 62A(1)(c) of the Evidence Act, a person may, with leave of Court, give evidence through a live video or live television link in any proceedings, other than proceedings in a criminal matter, if the witness is outside Singapore. Mr. Nair and Mr. Ganesh stated in their affidavits that they were advised that “applications [to adduce evidence by way of live video link] are generally allowed as long as the witness is outside Singapore”.³

With respect, I disagree. Mr. Nair and Mr. Ganesh are outside of Singapore so Section 62A(1)(c) of the Evidence Act is satisfied. But this is not the end of the matter. In determining whether leave should be granted, the Court must have regard to all the circumstances of the case, including the three factors set out in Section 62A(2) of the Evidence Act i.e. the reasons behind the witness being unable to give evidence in Singapore; the administrative and technical facilities and arrangements made at the place where the witness is to give his evidence; and whether any party to the proceedings would be unfairly prejudiced.

I now turn to address the application in respect of each witness.

Mr. Nair

Mr. Nair has stated that he should be allowed to give evidence by way of video link for the following reasons. He is a citizen and resident in India. As it is not mandatory for Indian citizens to own a passport, he does not have one in his possession. It is therefore not possible for him to travel to Singapore to attend the trial.⁴ He is not a material witness and that the management of his sole-proprietorship (i.e. the Plaintiff) is left to his brother Mr. Vijaya Kumaran Nair Krishna Pilla (“Mr. Vijaya”). He does not have personal knowledge of the disputed transaction and that Mr. Vijaya and Mr. Ganesh are best suited to give evidence at the trial.⁵ Giving evidence by video link would lead to cost savings for the parties.⁶

I am not persuaded by Mr. Nair’s reasons. First, one of the factors that the Court has to consider is whether sufficient steps have been taken by the applicant to secure the presence of the witness in Singapore (Sonica Industries Lt v. Fu Yu Manufacturing Ltd [1999] SGCA 63 (“Sonica Industries”); Bachmeer Capital Limited v. Ong Chih Ching and Ors [2018] SGHC(I) 1 (“Bachmeer Capital”)).

Mr. Nair’s explanation as to why he cannot attend the trial in Singapore is that he does not have a passport as it is not mandatory for citizens of India to have passports. Mr. Nair did not taken any steps to obtain a passport. Mr. Nair’s inaction is rather perplexing given that this suit was initiated by him (albeit in the name of his sole proprietorship) and it is his case to make. Mr. Nair commenced this suit on 8 August 2014 - almost 4 years ago – he ought to have known that he would have to testify to prove his claim against the Defendant, and yet, based on the evidence before me, no efforts were made by him to apply for a passport. In addition, Mr. Nair’s Affidavit of Evidence-in-Chief (“AEIC”) was affirmed on 8 October 2016. The Order of Court naming Mr. Nair as one of the Plaintiff’s witnesses of fact who would be giving evidence at trial was dated 28 February 2017.

It is evident from the dates set out in the preceding paragraph that Mr. Nair has had more than sufficient time to apply for a passport and yet it appears that nothing was done from August 2014 to the date of this application. Instead, this application was made only 3 weeks before the trial and without any explanation as to its belatedness. There is simply no evidence before this Court that sufficient steps had been taken by the Plaintiff to secure Mr. Nair’s presence in Singapore.

In determining an application under Section 62A(1) of the Evidence Act, the Court also has to consider the administrative and technical facilities and arrangements made at the place where the witness is to give his evidence. In Bachmeer Capital, there was evidence before the Singapore International Commercial Court (“SICC”) that a video link of sufficient quality could be established between the Court in Singapore and the International Financial Centre in Shanghai. The SICC granted the order after video link tests were conducted between Shanghai and Singapore and after steps were taken to resolve a connection issue which arose out of the technical limitations of the codec being used (Bachmeer Capital at [10] and [11]). The SICC was also satisfied that the necessary administrative arrangements would be in place at trial, including the presence of solicitors for both parties, access to documents and the presence of a local interpreter (Bachmeer Capital at [12]).

In contrast, the Plaintiff in this case has not satisfied the Court that the necessary administrative and technical facilities and arrangements have been made. In his first affidavit filed in support of this application, Mr. Nair merely stated that “[t]he Plaintiff is able to make arrangements for my evidence to be adduced by live video-link from India at our office, and would be able to arrange for a video conference to adduce my evidence”. Unsurprisingly, the Defendant opposed the application on the basis that the Plaintiff had provided such scanty information.⁷ Subsequently, the Plaintiff attempted to provide further details of this in its reply affidavit:

“The Plaintiff is able to make arrangements for my evidence to be adduced via video-link using platforms such as Skype from our office in India, or if need be, from the office of our solicitors in India.”

Save for the above, no further details were forthcoming. When Plaintiff Counsel was queried on this, she submitted that while it was ideal for arrangements to be made before...