Long Debbie Valerie Tenashar v Lim Fung Suan

• Jurisdiction: Singapore
• Judge: Liu Zeming
• Judgment Date: 11 February 2022
• Neutral Citation: [2022] SGDC 26
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 1634 of 2021 (Summons No 4115 of 2021)
• Year: 2022
• Published date: 18 February 2022
• Hearing Date: 04 February 2022,04 January 2022
• Plaintiff Counsel: Plaintiff in person
• Defendant Counsel: Fu Qijing, Chua Chuan Hwee, Jason (Cai Quanhui), Tongyi Tan (Attorney-General's Chambers)
• Subject Matter: Civil Procedure,Rules of Court,Striking out,Abuse of Process,Collateral attack on previous decision
• Citation: [2022] SGDC 26

Deputy Registrar Liu Zeming:

This decision concerned the Defendant’s application to strike out the whole of the Plaintiff’s claims in this action. The central issue was whether the Plaintiff’s claims constituted a collateral attack on an earlier criminal conviction against the Plaintiff. Having heard the parties, I answered the question in the affirmative and struck out the Plaintiff’s claims. As this application engaged a very specific form of abuse of process which is not frequently raised, I have decided to set out the grounds of my decision in detail.

Background

To better understand this case, one has to start with the background to the Plaintiff’s earlier criminal conviction.

The Criminal Proceedings

The Plaintiff is an individual who was placed under compulsory urine supervision from May 2019 to May 2021, under an order (the “Supervision Order”) made pursuant to Regulation 15 of the Misuse of Drugs (Approved Institutions and Treatment and Rehabilitation) Regulations (Cap. 185, Rg 3) (“MDR”).¹ The Supervision Order provided that during the period of supervision, the Plaintiff “[shall] not leave Singapore without the approval of the supervision officer”.² Approval was subsequently granted in or around June 2019 for the Plaintiff to be placed on Hair Supervision Scheme instead, but the terms of the Supervision Order was otherwise unchanged.³

The Plaintiff did leave Singapore on 4 July 2019 and was charged under the MDR for having done so without approval. The charge sheet dated 2 March 2021 in respect of DAC-9022-2020 (the “Charge”) states: ⁴

…that [the Plaintiff], on 4 July 2019 (Thursday), in Singapore, being a person subject to a Supervision Order for a period of 24 months with effect from 28 May 2019, which Supervision Order was issued under Regulation 15(2) of the [MDR], did leave Singapore without the approval of the Supervision Officer as required under the Order…

The Plaintiff claimed trial to the Charge.

The trial in respect of the Charge (as well as various other charges against the Plaintiff) (collectively, the “Criminal Proceedings”) took place between 3 and 16 March 2021.⁵ On 5 April 2021, the District Judge who presided over the Criminal Proceedings gave his oral verdict. The Plaintiff was convicted of the Charge (amongst other charges) and sentenced to two months’ imprisonment with an enhanced sentence of 72 days’ imprisonment.⁶ The Plaintiff did not appeal against her conviction or sentence in relation to the Charge.

In the Criminal Proceedings, one of the issues raised by the Plaintiff was that she in fact had approval to travel out of Singapore on 4 July 2019. That approval was allegedly granted by (amongst others) the Defendant on 4 June 2019 and permitted the Plaintiff to leave Singapore on 4 July 2019. In convicting the Plaintiff of the Charge, the District Judge specifically addressed this issue, and found that no approval was given to the Plaintiff to travel on 4 July 2019. A metaphorical note should be placed here as this point is central to my decision in this application. For this reason too, I set out below the oral verdict of the District Judge (as transcribed) on this issue in full:⁷

Now, for the 1st charge of absconding, or---or of leaving Singapore without the permission of…her supervision officer, this charge is based on the validity of the Supervision Order, which is exhibit P2. Now I find that this was indeed a validly issued order, and this fact of the order and service was not challenged by the accused [i.e. the Plaintiff]….Now in this order, it’s stated under part D of the---of this part that the accused not to leave Singapore without the approval of the supervision officer. Okay. It’s not disputed from the ICA records, P8, that the accused did leave Singapore on 4th of July to Malaysia and returned to Singapore on 7th of July 2019 through the Woodlands Checkpoint. This fact is accepted. The only issue of fact is whether approval has been given by a supervision officer, or any other CNB officer that is authorised to give such permission. The accused says that approval has been given to her to travel on 4th of June in a meeting with CNB officers and that such approval was a continuous approval. However, the email correspondence which…supported the oral testimony of the CNB officers, that the approval was for one-time travel and the accused was expected to report for her---and supervision on 18th of June 2019 and any further travel needs to be---she will need further approval. The accused clearly [inaudible] that she had not received the approval and was merely insistent that the documentation which she had submitted was good enough to obtain such approval. However the consistent reply by CNB is that such documentation was not sufficient and no approval has been granted. By the agreements that this accused---that no approval has been given is overwhelming, right? The strongest evidence in the form of contemporaneous email documents, right, particularly the one dated 28th of June 2019 from Leslie Lee to her, that she must submit her application for travel with supporting documents and that she should not leave without…CNB’s approval. At---sorry, without CNB’s explicit written permission. And the replies is that she had already sent all her documentation, but again, Leslie Lee had replied on 1st July that CNB do not accept her screenshots as sufficient for her travel application. The email messages presented a very clear picture. The accused knew she had yet to obtain the approval and was very upset that the CNB was not accepting her documents in the form of screenshots in support of application. I want to make this point clear particularly to the accused. This trial is not about whether CNB has exercised their discretion correctly in not granting her approval to travel. The matter I’ll decide is whether such approval was given and clearly it was not. I therefore find that this 2nd charge of absconding, the Prosecution has proven its case beyond reasonable doubt….

[emphasis added in bold]

As mentioned, the Plaintiff did not appeal against her conviction on the Charge.

The present civil proceedings

On 27 July 2021, the Plaintiff commenced the present proceedings (the “Suit”) against the Defendant, who is at all material times a director at the enforcement division of the Central Narcotics Bureau (“CNB”).⁸

The Plaintiff’s claim in the Suit, as pleaded, was that “[o]n the day 4 June 2019, [the Plaintiff] was given approval to travel for her work as a touring artiste by [the Defendant]” ⁹ and as a result of the Defendant’s negligence, the Plaintiff was “charged in court and imprisoned for not having travel approval, when she did in fact have travel approval prior to her travelling out of the country”. ¹⁰

The Defendant’s defence was largely along the lines as the findings of the District Judge in the Criminal Proceedings, namely that although an one-time travel approval was granted to the Plaintiff on 4 June 2019, that only permitted the Plaintiff to travel overseas between 4 June 2019 to 18 June 2019.¹¹ The Plaintiff’s subsequent travel on 4 July 2019 was not approved and she was accordingly duly charged and convicted of the Charge.¹² The Defendant denied any wrong-doing.¹³

The striking out application

On 14 October 2021, the Defendant made the present application to strike out the whole of the Plaintiff’s claims in the Suit (the “Striking Out Application”).

Parties’ Positions and Issues The Defendant’s Position

The Defendant’s primary ground for the Striking Out Application was that the Suit constituted a collateral attack on the decision in the Criminal Proceedings, and therefore amounted to an abuse of the processes of the court.¹⁴ This was because the District Judge had already heard and decided in the Criminal Proceedings that the Plaintiff did not have approval to travel out of Singapore on 4 July 2019. In raising and attempting to relitigate this issue in this Suit, the Plaintiff was mounting a collateral attack on the decision made in the Criminal Proceedings, and this ought not be allowed.¹⁵

Alternatively, the Defendant submitted that the Suit ought to be struck out because: the Plaintiff’s claims were “plainly unsustainable” as it was clear beyond question that the Plaintiff did not in fact have approval to travel out of Singapore on 4 July 2019;¹⁶ and/or that the Plaintiff had demonstrated a lack of seriousness or good faith in her conduct of the Suit, in that the Plaintiff had on different occasions oscillated between wanting to discontinue the Suit, to continue the Suit, to commence a fresh proceeding or to submit her claims to “international arbitration”.¹⁷ The lack of seriousness was also evidenced by the fact that many of the documents which the Plaintiff sought to rely on in the Suit and in this Striking Out Application appeared to be of questionable origin and authenticity.¹⁸

The Plaintiff’s Position

The Plaintiff did not dispute the fact of the Criminal Proceedings, nor her conviction of the Charge. The Plaintiff also accepted that in convicting her of the Charge, the District Judge found that the Plaintiff did not have approval to leave Singapore on 4 July 2019. In fact, the Plaintiff acknowledged that the purpose of the present Suit was for the court to revisit this issue (i.e. whether the Plaintiff had approval to leave Singapore on 4 July 2019) and hopefully arrive at a different conclusion. The Plaintiff explained that the reason why she commenced this Suit instead of filing an appeal in the Criminal Proceedings was because she believed that the evidence given by some of the witnesses in the Criminal Proceedings were “corrupt”. As such, the Plaintiff did not believe there was any utility in her filing an appeal in the Criminal Proceedings, or seeking “judicial review” of that decision.

As for the Defendant’s submissions that her claims were “plainly unsustainable” or...