Mak Chik Lun and Others v Loh Kim Her and Others and Another Action

JudgeBelinda Ang Saw Ean J
Judgment Date25 September 2003
Neutral Citation[2003] SGHC 220
Citation[2003] SGHC 220
Defendant CounselRandhir Ram Chandra and Nicole Tan (Haridass Ho and Partners),Low Woon Ming (W M Low and Partners),Hri Kumar and Wilson Wong (Drew and Napier)
Published date03 October 2003
Plaintiff CounselK Shanmugam SC, Christopher Anand Daniel and Esther Ling (Allen and Gledhill)
Date25 September 2003
Docket NumberSuits Nos 203 and 249 of 2002
CourtHigh Court (Singapore)
Subject MatterLoans outside Singapore,Mischief,Statutory Interpretation,Moneylenders Act (Cap 188, 1985 Rev Ed) ss 2, 3,"Business of moneylending" -Whether overseas transactions relevant,Loans of money,Credit and Security,Definitions,Construction of statute,"Moneylender",Scope of Moneylenders Act (Cap 188, 1985 Rev Ed),Moneylenders Act (Cap 188, 1985 Rev Ed),Money and moneylenders

1 The Plaintiffs in suit no. 203 of 2002 are suing the Defendants for breach of a Deed of Settlement dated 4 April 2001. The Defendants say the Deed of Settlement is unenforceable as the subject matter of the Deed of Settlement relates to a loan transaction made in December 1998 that contravenes the Moneylenders Act (Cap.188). It is alleged that the 1st Plaintiff, Mak Chik Lun (“Mak”), carries on business as a moneylender without holding a licence. Consequently, by virtue of s15 of the Act, no contract for the repayment of money lent by an unlicensed moneylender shall be enforceable.

2 The Defendants have filed several affidavit of evidence-in-chief to show that Mak is in the business of moneylending. In brief, they are in respect of loans purportedly made:

(a) on or about 25 January 1996 through Mak’s Hong Kong company Tai Ping Yeung to Huaiji County, Guangdong Province a sum of HK $10 million;

(b) on or about 19 March 1996 through Mak’s Company in China, Zhong Yue Resources (Heshan City) Limited Company to Marine Product Board of Heshan City a sum of 800,000 Renminbi;

(c) on or about 6 March 1998 by Mak to Loh Nee Peng a sum of 5 million Renminbi;

(d) in or about August 1999, Mak through his wife Lo Pui Ling, the 2nd Plaintiff, to Marubeni Auto (China & Asia) Ltd a sum of DM 250,000; and

(e) in or about November 1999, by Mak to the 1st Defendant, Loh Kim Her a sum of S$1.5 million.

3 On the 8th day of trial, an application was made by Counsel for the Plaintiffs, Mr. K. Shanmugam SC, to exclude the affidavits of Tam Wo Ping, Wu De Liang, Feng Gua Qi and Chen Gua Biao on the ground that they are not relevant as a matter of law and hence should not be admitted in evidence. The affidavits deal with three loans extended by Mak in China.

4 Mr. Shanmugam’s contention is that the Moneylenders Act applies to moneylending activities in Singapore. When a Court is considering if a lender comes within the definition of “moneylender”, and in showing that there was a system and continuity in the “carrying on the business of moneylending” only the alleged moneylending activities within Singapore should be taken into consideration. In addition, only transactions existing at the date of the transaction to be impugned could be looked at. In the context of the foreign loans, two were before and one came after the loan in these proceedings.

5 Mr. Shanmugma referred me to Tozer Kemsley & Millbourn (A/Asia) Pty Ltd v Point [1961] NSWR 466, Walton v Regent Insurance Ltd [1962] 79 WN 644 and The Law of Money Lenders in Australia and New Zealand by Clifford L. Pannam (1965) p45 to support his argument that evidence of transactions entered outside the jurisdiction should be disregarded. The rationale for this is founded on the presumption that statutes have no extraterritorial effect unless expressly provided by Parliament to have such a reach. See Public Prosecutor v Taw Cheng Kong [1998] 2 SLR 410; Public Prosecutor v Pong Tek Yin [1990] SLR 575 and Parno v SC Marine Pte Ltd [1999] 4 SLR 579. The Court of Appeal in Taw Cheng Kong at 432 approved the general rule of construction referred to in the speech of Lord Russell CJ in R v Jameson [1896] 2QB 425 at 430 where his Lordship stated:

“…One other general canon of construction is this – …an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting. That is a rule based on international law by which one sovereign power is bound to respect the subjects and the rights of all other sovereign powers outside its own territory.”

6 As a general rule, a domestic legislation is to be interpreted as limited to the regulation for the activities (in this case moneylending activities) taking place within the jurisdiction. The Moneylenders Act falls into this category. The scheme of the Moneylenders Act is to regulate moneylending transactions in Singapore, the licensing of moneylenders and their activities as a licensed moneylender. The Act imposes criminal sanctions on those who carry on the business of moneylending without licence. Apart from a criminal sanctions, the law would not assist the unlicensed moneylender in the recovery of a loan made in contravention of the Act.

7 It is not disputed that...

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14 cases
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    • Singapore
    • Court of Appeal (Singapore)
    • 19 May 2014
    ...in Singapore has not provided a clear answer to this question. In Mak Chik Lun and others v Loh Kim Her and others and another action [2003] 4 SLR(R) 338 Belinda Ang J appeared to suggest that the lender bears the burden of proving that he is an “excluded moneylender”. Ang J said (at [11]):......
  • Empire International Holdings Ltd v Mok Kwong Yue and Another
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    • High Court (Singapore)
    • 28 September 2004
    ...does not apply to the transactions presently being considered because no loans were made in Singapore: see Mak Chik Lun v Loh Kim Her [2003] 4 SLR 338. In any case, the question of moneylending did not arise because Mok accepted that Empire, an investment and holding company, was an investo......
  • E C Investment Holding Pte Ltd v Ridout Residence Pte Ltd and another (Orion Oil Limited and another, Interveners)
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    • High Court (Singapore)
    • 15 September 2010
    ...This is a rebuttable presumption and the onus is on the lender to rebut the same: Mak Chik Lun and Ors v Loh Kim Her and Ors [[2003] 4 SLR(R) 338 at In Litchfield v Dreyfus [1906] 1 KB 584, Farwell J also said at 589: But not every man who lends money at interest carries on the business of ......
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    • High Court (Singapore)
    • 29 December 2010
    ...Yew v Chee Soon Juan [2003] 3 SLR (R) 8; [2003] 3 SLR 8 (refd) Litchfield v Dreyfus [1906] 1 KB 584 (refd) Mak Chik Lun v Loh Kim Her [2003] 4 SLR (R) 338; [2003] 4 SLR 338 (refd) Miles v New Zealand Alford Estate Co (1886) 32 Ch D 266 (refd) Nissho Iwai International (Singapore) Pte Ltd v ......
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3 books & journal articles
  • Contract Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2003, December 2003
    • 1 December 2003
    ...9.86 On a more specific level, Belinda Ang Saw Ean J had occasion, in the Singapore High Court decision of Mak Chik Lun v Loh Kim Her[2003] 4 SLR 338, to consider the topic of moneylending transactions in the context of the local Moneylenders Act (Cap 188, 1985 Rev Ed); reference may also b......
  • Contract Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2015, December 2015
    • 1 December 2015
    ...on the business of a moneylender. This was because (applying the test laid down by Belinda Ang Saw Ean J in Mak Chik Lun v Loh Kim Her[2003] 4 SLR(R) 338) there was no evidence of any system and continuity in the transactions, or that he was lending to all and sundry so long as he regarded ......
  • THE NEW MONEYLENDERS ACT 2008
    • Singapore
    • Singapore Academy of Law Journal No. 2009, December 2009
    • 1 December 2009
    ...Act 2008 (No 31 of 2008) s 5(1). See also Subramaniam Dhanapakiam v Ghaanthimathi[1991] SLR 432 at [10]—[11]; Mak Chik Lun v Loh Kim Her[2003] 4 SLR 338 at [10]. 28 Newton v Pyke [1908] 25 TLR 127; followed in Singapore in Subramaniam Dhanapakiam v Ghaanthimathi[1991] SLR 432 at [6]; Tan Si......

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