Kay Swee Pin v Singapore Island Country Club

• Jurisdiction: Singapore
• Judge: Teo Guan Siew AR
• Judgment Date: 29 August 2008
• Neutral Citation: [2008] SGHC 143
• Court: High Court (Singapore)
• Published date: 03 September 2008
• Year: 2008
• Plaintiff Counsel: S H Almenoar (R Ramason & Almenoar)
• Defendant Counsel: Ramesh s/o Selvaraj (Allen & Gledhill)
• Subject Matter: Damages
• Citation: [2008] SGHC 143

29 August 2008 Judgment reserved.

Teo Guan Siew AR:

1 This is an assessment of the amount of damages payable as a result of the invalid suspension of a club membership. It raises important and interesting issues on the law of damages, including whether intangible and non-pecuniary harm such as mental distress, humiliation and the like are recoverable in a contractual setting. It also brings into question the recoverability of exemplary or punitive damages in our private law.

Background

2 The plaintiff, Madam Kay Swee Pin (“Mdm Kay”), was a member of the prominent Singapore Island Country Club (“the SICC”). Her membership was suspended for one year from 2006 to 2007 by the club. She brought an application in the High Court for the club’s decision to be set aside, but failed. On appeal, the Court of Appeal reversed the High Court’s decision, declaring that the suspension order was invalid and ordering damages to be assessed by the Registrar.

3 The detailed facts of the case are set out in the Court of Appeal’s grounds of decision: see Kay Swee Pin v Singapore Island Country Club [2008] 2 SLR 802. As the events leading up to and following the suspension of Mdm Kay’s membership are relevant to the assessment of damages, I shall provide a brief outline of the factual matrix.

4 Mdm Kay became a member of the SICC in 1992. In her application form to be a member, Mdm Kay had stated as her spouse Mr Ng Kong Yeam (“Mr Ng”), with whom she had undergone a Chinese customary marriage in Johor in 1982. As a spousal member, Mr Ng was also entitled to enjoy the facilities of the club. They have a daughter who was able to make use of the club facilities as well as a junior member.

5 In August 2005, Mdm Kay decided to contest the elections for the Lady Captain of a lady golfer’s sub-committee. Shortly thereafter, rumours surfaced as to her marital status. The SICC membership office then requested Mdm Kay to produce her marriage certificate. She produced a certificate showing that she had married Mr Ng on 24 August 2005 in Las Vegas. Although Mdm Kay had gone through the customary marriage rites with Mr Ng in Malaysia way back in 1982, they did not have a formal marriage certificate. As such, they decided to register their marriage in Las Vegas in order to furnish the necessary certificate to satisfy the club’s membership office. Notably, Mdm Kay had not been asked to produce a marriage certificate at the point when she first applied to be a club member in 1992.

6 A few days before the election, a member of the club Mr John Lee (“Mr Lee”), the husband of the incumbent Lady Captain of the lady golfer’s sub-committee, made a complaint to the General Committee (“the GC”) of the SICC. He said that there were concerns among members as to Mdm Kay’s marital status which had to be investigated on an urgent basis especially since Mdm Kay was seeking lofty office within the club. Mdm Kay did not know about the complaint until the eve of the election when the general manager of the SICC informed her of it and warned her against running in the election. Mdm Kay nevertheless took part in the election and lost.

7 A series of events then transpired which left Mdm Kay so aggrieved that she decided to come to the courts to seek redress. On the basis that Mr Ng could not have been the husband of Mdm Kay at the time she joined the club in 1992 since their marriage certificate only came into existence in 2005, the GC decided to institute disciplinary proceedings against Mdm Kay. The charge which Mdm Kay had to answer before the SICC’s disciplinary committee (“the DC”) was that she had acted in a way prejudicial to the interests of the club by falsely declaring Mr Ng as her husband in order for him to make use of the club’s facilities. It should be mentioned that even before the DC began its proceedings, the GC did some independent research of its own to discover that Mdm Kay was actually married to one Mr Koh Ho Ping (“Mr Koh”) in 1977.

8 In the disciplinary proceedings, Mdm Kay’s defence was that even though she had only formally registered her marriage with Mr Ng in 2005, this did not mean that they were not married before then. They were clearly husband and wife for over 20 years and acknowledged by everyone to be so. They had a daughter to the marriage who was already 18 years old. As for her first marriage, Mdm Kay said that it was dissolved more than 20 years ago long before she became a member of the SICC. She could not recall the exact date of the dissolution nor did she have any documents relating to that, because it took place a long time ago and she did not want to remember such an unhappy period in her life. Significantly, Mdm Kay added that if the SICC had insisted on the submission of a marriage certificate at the time she applied to be a member in 1992, she and Mr Ng could easily have complied by registering their marriage at that time.

9 To the DC, the material issue was whether Mdm Kay had been divorced from her first husband at the time when she joined the club. Based on documents from the Supreme Court registry (which interestingly were obtained by the GC), Mdm Kay’s divorce petition was filed in 1982, with the decree nisi and decree absolute granted on 28 November 1983 and 2 March 1984 respectively. This showed that Mdm Kay was already divorced from Mr Koh at the time of joining the SICC. On that basis and also in view of her customary marriage to Mr Ng in Malaysia, the DC recommended that the charge be withdrawn. It must be noted that the DC specifically stated in its findings that it was unable to confirm whether Singapore law recognised the Malaysian customary marriage between Mdm Kay and Mr Ng in 1982 in light of the fact that Mdm Kay’s divorce was only completed in 1984.

10 For some reason, Mr Lee came to know about the DC’s findings and recommendations even before the GC met to deliberate on the same. He sent an email to the President of the SICC, who then forwarded it to the GC. In the email, Mr Lee essentially set out his own interpretation of the disciplinary matter. He asserted that as Mdm Kay was still lawfully married to Mr Koh when she went through the customary rites with Mr Ng in Johor, it was obvious that not only was the customary marriage of 1982 void but there was also a contravention of the Penal Code. Mr Lee then proceeded to frame the issue before the GC as follows: whether Mdm Kay was a married woman within the meaning of the laws of Singapore and of Malaysia when she applied to join the club and included Mr Ng as a spousal member.

11 In its deliberations, the GC appeared to have assumed that the DC had found Mdm Kay not guilty of the charge because the DC was satisfied that there had been a valid customary marriage between Mdm Kay and Mr Ng. That was incorrect, as the DC had specifically said it was unable to determine the issue of the validity in Singapore of that customary marriage in Johor. As the Court of Appeal noted at [30] of its decision, such an assumption “completely changed the basis of the DC’s finding that [Mdm Kay] was not guilty as charged. The DC’s finding was not based on the customary marriage being valid, but on its being satisfied on the evidence that the appellant had given a credible explanation as to why she could not have made or intended to make a false declaration as to her marital status to cheat the Club”. Proceeding on that erroneous assumption, the GC decided that Mdm Kay could not have validly married Mr Ng in 1982, based on essentially the same reasoning as put forth by Mr Lee, viz that the second marriage was invalid since the first was not yet dissolved. Accordingly, the GC remitted the case back to the DC with the direction that the DC makes its recommendations based on the fact that Mr Ng was not a spouse of Mdm Kay at the time of her application, and to take into account any relevant mitigating factors.

12 Eventually, the DC recommended that Mdm Kay compensate the SICC for the green fees which the club could have collected from her for Mr Ng’s golf games, totalling $12,500. The GC adopted that recommendation, but in addition decided to suspend Mdm Kay’s club membership for one year.

13 When Mdm Kay saw notices of her suspension posted all over the club premises, she wrote to the GC expressing her shock at not being first informed of the suspension before the notices were put up. In the letter, she said that she and her husband had been seriously maligned because they were clearly validly married in Malaysia in 1982. The SICC replied to say that it was not the club’s practice to put up suspension notices only after the member in question had been notified. Extremely upset, Mdm Kay wrote a second letter to the GC setting out her arguments as to why there had been a serious miscarriage of justice, notable of which was that she could not have a false declaration when she did not know at the point of making that declaration that it was false, since she believed in good faith that she was validly married to Mr Ng at that time. She pointed out that no one had ever suggested that their marriage was invalid until the impending election for the Lady Captain. Moreover, she asserted that they were financially strong and having paid $190,000 for the membership, would not go to the extent of lying just to save some green fees which they could well afford.

14 Receiving no response from the SICC, Mdm Kay wrote a third letter requesting that the club’s annual general meeting (“AGM”) pass a resolution to revoke her suspension. When the club rejected that request, Mdm Kay wrote a fourth letter stating that the club’s rules allow the AGM to discuss any matter where seven clear days’ notice was given. The SICC replied to say that her request was out of order, and since during the period of suspension she was not permitted to enter the club’s premises, she would not be allowed to participate in the forthcoming AGM.

15 These events culminated in Mdm Kay’s application...