Lim Weipin and another v Lim Boh Chuan and others

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 30 March 2010
• Neutral Citation: [2010] SGHC 99
• Plaintiff Counsel: Irving Choh and Lim Bee Li (KhattarWong)
• Docket Number: Suit No 455 of 2008
• Date: 30 March 2010
• Hearing Date: 13 January 2010,12 January 2010,19 January 2010,16 January 2010,11 January 2010,18 January 2010,14 January 2010,15 January 2010,17 January 2010,23 February 2010
• Subject Matter: Probate and Administration,Family Law
• Published date: 05 April 2010
• Citation: [2010] SGHC 99
• Defendant Counsel: Davinder Singh SC and Shobna d/o V Chandran (Drew & Napier LLC),Chew Swee Leng (JurisOne LLP) and Sng Kheng Huat (Sng & Co)
• Court: High Court (Singapore)
• Year: 2010

Tan Lee Meng J:

The present proceedings concern the estate of the late Mr Lim Hong Choon (“LHC”), who came to Singapore in the 1940s, returned to China for good in 1959, and died there in 1981. The plaintiffs, who claim to be LHC’s children, were described by their counsel as “simple folk from a rural part of China who simply want their fair share of what had been wrongfully taken from them”. However, according to the defendants, the plaintiffs’ claim is “a tale of greed in its most unappealing form”.

The first plaintiff, Mr Lim Weipin (“LW”), and his wife, the second plaintiff, Mdm Lim Yuyan (“LY”), reside in Fujian, China. LW claims that he is LHC’s adopted son while LY claims that she is LHC’s biological daughter. On the basis that they are LHC’s children, they relied on the Intestate Succession Act (Cap 146, 1985 Rev Ed) (“the Act”) to claim two-thirds of the shares that LHC allegedly held in a partnership, Chop Hup Seng Huat (“the partnership”). They also contended that LHC’s shares in the partnership are traceable to shares in a company, Hup Seng Huat Pte Ltd (“the company”), which was set up in 1973 and is now a public listed company called “Hupsteel Limited” (“HupSteel”).

The plaintiffs asserted in their Statement of Claim that LHC’s eldest son, the late Mr Lim Tian Siong (“Siong”), impersonated LHC in 1952 in order to take over LHC’s shares in the partnership. This explains why they are suing Siong’s children, who are the 1st defendant, Mr Lim Boh Chuan (“LBC”), the 2nd defendant, Mr Lim Puay Koon, and the 3rd defendant, Mdm Lim Siew Bee. The administrators of Siong’s estate are the 4th defendants and the administrators of the estate of Siong’s wife, Mdm Goh Choon Eng “GCE”), are the 5th defendants. The plaintiffs contended that the defendants are constructive trustees of LHC’s shares in the partnership and of the shares in the company that were allegedly exchanged for LHC’s shares in the partnership.

The defendants, who did not accept that LW is LHC’s adopted son or that LY is LHC’s biological or legitimate child, resisted the claim against them on a number of grounds, including the plaintiffs’ lack of locus standi to commence the suit, lack of proof of impersonation of LHC by Siong and the fact that the claim against them is time-barred. The defendants also asserted that even if LHC had shares in the partnership, those shares have nothing to do with Siong’s shares in the company because the partnership, which continued until 1983, was not converted to the company, which was formed much earlier in 1973.

Background

Three brothers, LHC, Mr Lim Boon Kee (“LBK”) and Mr Lim Boon Wan (“LBW”), who have all passed away, came to Singapore from Fujian around 1940.

In 1947, LBK and LBW set up the partnership, which traded in iron, steel, copper and brass materials obtained from used cars, machinery and ships. It is evident from the records filed with the Registry of Business Names at the material time that LHC was not one of the founding partners of the partnership.

In 1952, a third person joined the partnership. His name was stated on the registration certificate issued by the Registrar of Business Names as “Lim Hong Choon alias Lim Tian Siong”. The plaintiffs claimed that this third partner was in fact LHC and that Siong added his name as an alias of Lim Hong Choon in order to impersonate him for the purpose of taking over his shares in the partnership. However, the defendants contended that the third partner was in fact Siong, whose alias was “Lim Hong Choon”.

At this juncture, it must be noted that the persons who have actual knowledge of the partnership’s affairs in the 1952 are dead and the plaintiffs’ claim rested on their own speculation as to why the third partner was named “Lim Hong Choon alias Lim Tian Siong”. It is also noteworthy that both LHC and Siong used a number of aliases. Siong was known as “Lim Tian Siong alias Lim Thian Siong alias Lim Thiam Siong alias Lim Hong Choon”. In its letters, the Inland Revenue Department addressed him as “Lim Thian Siong alias Lim Hong Choon”.

In 1959, LHC left Singapore and returned to China for good.

On 10 March 1970, another registration certificate of the partnership was issued by the Registrar of Business Names. The three partners were stated as LBK, LBW and Siong and their respective identity card numbers were stated in the said form under their names.

LBK died on 11 July 1973, after which another registration certificate dated 19 July 1973 was issued by the Registrar of Business Names in respect of the change of members of the partnership. LBK was named as the withdrawing partner and his estate was listed as the new partner.

On 31 July 1973, LBW and Siong incorporated the company. Both of them were the subscriber shareholders and initial directors of the company. The company’s shares were allowed in the following proportions: 700 for LBW and his family, 700 for LBK’s family and 600 for Siong. It is common ground that LHC was no longer in Singapore at the material time and that he did not work in or for the company.

Although the plaintiffs claimed that the partnership was converted to the company, the fact is that the partnership continued to operate after the company was formed. In fact, on 20 September 1974, one year after the company was formed, the partnership was renamed “Hup Seng Huat” and it continued to operate on its own and it even sold a property to the company in 1975.

On 26 February 1981, LHC, who had suffered a stroke in 1974, died intestate in China. No registration certificate to reflect a change of partners in the partnership was filed after his death.

On 27 June 1983, almost ten years after the company was formed, the partnership was finally terminated.

On 23 August 1983, Siong, who had a relatively short life, died intestate in Singapore. His wife, GCE, and his children inherited his assets. GCE passed away intestate on 26 July 1992.

In 1994, the company became a public listed company named Hup Seng Huat Co Ltd. In 2005, the company’s name was changed to “Hupsteel Limited” (“HupSteel”).

On 8 June 2003, LHC’s brother, LBW, who had been quite generous to the plaintiffs, passed away.

The 1st defendant, LBC, said that LW tried to borrow a few million dollars from him in 2003. LW admitted that he asked LBC for a loan and that he told LBC that he owed a few million dollars to someone in China. LBC contended that after he refused to lend LW any money, the plaintiffs resorted to intimidation, blackmail and the institution of the present proceedings.

In 2006, the plaintiffs instructed a Chinese law firm, Beijing Zhong Ji (“BZJ”), to act for them. BZJ sent a letter to LBC on 12 September 2006, which included the following paragraphs:

As Mr Lim Hong Choon’s son, Lim Tian Siong, disregarded morality and law, revised and distorted the company registration documents, passed himself off as his father, and snatched Mr Lim Hong Choon’s share and property in Chop Hup Seng Huat and Hoe Seng Huat. He even used the illegal income to establish other company and get a huge sum of wealth. After Lim Tian Siong … died, Mr Lim Boh Chuan applied to receive inheritance by judicature channel and became the real occupant of Lim Tian Siong’s huge sum of illegal wealth ….

We hope Mr Lim Boh Chuan and Lim Puay Koon contact our lawyer ZhangYing within 10 days after [receiving] our letter of demand and to consult and discuss with each other to get a good way to settle the historical problem, and to avoid using the media report or judicature channel to settle the problem, which is disadvantageous for all parties.

LBC instructed Shook Lin & Bok (“SLB”) to reply to BZJ on 29 September 2006. In its reply, SLB stated that its client denied the allegations in BZJ’s letter of 12 September 2006. However, BZJ continued to make similar allegations in their subsequent letters to SLB on 16 October 2006, 14 November 2006 and 21 November 2006.

LBC and LPK regarded the allegations in BZJ’s letters of 12 September 2006, 16 October 2006, 14 November 2006 and 21 November 2006 as defamatory. They applied for an injunction restraining the plaintiffs from publishing defamatory statements “similar to the words and meaning contained in 4 letters issued under the letterhead of the plaintiffs’ Beijing solicitors dated 12 September 2006, 16 October 2006, 14 November 2006 and 21 November 2006”. The injunction was granted by Justice Lai Siu Chiu on 1 December 2006. BZJ declined to accept service of the injunction on the plaintiffs’ behalf.

In July 2008, the plaintiffs instituted the present action against the defendants.

The Expert Witnesses

The plaintiffs and the defendants called expert witnesses on Chinese law to testify on a number of issues relating to Chinese law.

The defendants’ expert witness, Mr Zhang Zhiqiang (“ZZQ”), who is from Jingtian & Gongcheng Attorneys, was a rather helpful witness.

The plaintiffs’ expert witness was Mdm Zhang Ying (“ZY”), a director of BZJ. In her curriculum vitae that was furnished to the court, she had stated that English is one of her “working languages” and that she is able to “provide legal services in Chinese (Mandarin), English and French”. Remarkably, when questioned, ZY categorically denied that English was one of her “working languages” and she insisted on testifying in Mandarin with the assistance of a court interpreter.

ZY did not fulfil her duty to the court as an expert witness. In Pacific Recreation Pte Ltd v Technology Inc [2008] 2 SLR(R) 491, the Court of Appeal pointed out (at [60]) that an expert’s duty to the court is of such central importance that O 40A r 2(h) of the Rules of Court makes it a requirement that the expert report contains “a statement that the expert understands that in giving his report, his duty is to the Court and that he complies with that duty”. The Court of Appeal endorsed (at [73]) GP Selvam J’s statement in Ganapathy...