Maruti Shipping Pte Ltd v Tay Sien Djim and others

• Jurisdiction: Singapore
• Judge: Edmund Leow JC
• Judgment Date: 07 November 2014
• Neutral Citation: [2014] SGHC 227
• Court: High Court (Singapore)
• Hearing Date: 17 September 2014,04 February 2014,23 October 2014,10 April 2014,05 February 2014
• Docket Number: Suit No 631 of 2010 (Summons No 4809 of 2010)
• Plaintiff Counsel: Eddee Ng, Keith Tnee and Ooi Huey Hien (Tan Kok Quan Partnership)
• Defendant Counsel: A P Thirumurthy (Murthy & Co),Gan Kam Yuin (Bih Li & Lee)
• Subject Matter: Contempt of Court,Civil contempt,Civil Procedure,Anton Piller orders,Mareva injunctions
• Published date: 11 November 2014

Edmund Leow JC:

This is an application taken out by the plaintiff against the following persons to stand committed to prison and/or fined for contempt of court:¹ The first defendant, Tay Sien Djim (“Moses Tay”), who is the managing director of the second defendant, R M Martin Pte Ltd (“RMMPL”), and who holds 80% of RMMPL’s shareholding; RMMPL; and Moses Tay’s son, Tay Jiashen Martin (“Martin Tay”), who holds the remaining 20% shareholding in RMMPL and is allegedly a director of RMMPL at the material time. He is also RMMPL’s company secretary.

I will refer to Moses Tay, RMMPL and Martin Tay collectively as “the Contemnors”.

Procedural background

This case has a somewhat complicated procedural history, but which may be summarised as follows. On 19 August 2010, the plaintiff commenced an action against RMMPL for breaches of contracts and breach of trust, and against Moses Tay for inducement of breach of contract and/or knowingly assisting RMMPL to breach the trust.

On the same day, the plaintiff also applied for an Anton Piller order (“the Anton Piller Order”) against Moses Tay and RMMPL, authorising the plaintiff to enter and search the following premises: an office at Golden Agri Plaza (“the Golden Agri Premises”); and a condominium unit at Sentosa Cove (“the Sentosa Cove Premises”).

At the same time, the plaintiff also applied for a Mareva injunction (“the Mareva Injunction”) prohibiting Moses Tay and RMMPL from disposing of their assets worldwide.

Both orders were granted the next day on 20 August 2010.

On 23 August 2010, the plaintiff sent its representatives to the Golden Agri Premises and the Sentosa Cove Premises to execute the Anton Piller Order. The Anton Piller Order and Mareva Injunction were also allegedly served on Moses Tay on that day. During the period between 23 August 2010 and 1 September 2010, the Contemnors allegedly committed various breaches of court orders. To avoid repetition, I will only set out in detail the relevant facts that relate to the alleged breaches in the portion of the judgment that deals with Moses Tay’s liability (beginning at [48] below).

Several days later, on 27 August 2010, the plaintiff added Indah Resources Pte Ltd (“IRPL”) and PT Waegeo Mineral Mining (“PTWMM”) to the main action as the third and fourth defendants respectively. At the same time, the Anton Piller Order and the Mareva Injunction were extended to include IRPL and PTWMM. Orders were also made to restrain Moses Tay from leaving Singapore until further order and to direct Moses Tay to surrender his passports to the person serving the order of court on him (“the Ancillary Orders”). The plaintiff obtained an order for substituted service on Moses Tay for the Ancillary Orders on 1 September 2010.²

I will refer to the Anton Piller Order, the Mareva Injunction and the Ancillary Orders collectively as the “Orders of Court”.

After obtaining leave to do so on 5 October 2010,³ the plaintiff commenced contempt proceedings against the Contemnors on 12 October 2010:⁴ against Moses Tay for failing, neglecting and/or refusing to obey the Orders of Court. against RMMPL for failing, neglecting and/or refusing to obey the Anton Piller Order and the Mareva Injunction. against Moses Tay, as a director of RMMPL, for RMMPL’s contempt; and against Martin Tay, as a director of RMMPL, for RMMPL’s contempt.

I should mention that the plaintiff had initially also sought orders for committal and/or payment of fines against the IRPL and Martin Tay as director of IRPL, but this was withdrawn after the plaintiff entered into a settlement agreement with IRPL.⁵

The hearing for the committal proceedings was initially fixed on 13 January 2011, but it was adjourned as Moses Tay had been warded at the Institute of Mental Health (“IMH”) as he was said to be mentally unwell.⁶

On 28 March 2013, the plaintiff obtained interlocutory judgment against Moses Tay for his breach of an “unless” order requiring him to comply with an order for specific discovery,⁷ but could not proceed further as Moses Tay was declared a bankrupt on 29 August 2013.⁸

On 7 June 2013, the plaintiff entered into a settlement agreement with IRPL, as mentioned at [11] above.⁹

On 5 November 2013, the plaintiff obtained final judgment against RMMPL and PTWMM for the sums of US$3,125,986.72 and US$477,558.75 in damages respectively.¹⁰

All this while, the committal proceedings remained unheard as a result of numerous delays arising from Moses Tay’s purported mental condition. Eventually, a hearing was fixed before me on 4 February 2014. Again, Moses Tay did not appear as he had been admitted to IMH on 30 January 2014. Moses Tay’s counsel, Mr A P Thirumurthy (“Mr Thirumurthy”), sought an adjournment, but I directed that proceedings continue, for reasons which will be discussed at the appropriate juncture below. It suffices to say for now that Moses Tay has never turned up during the hearing for the committal proceedings.

General legal principles

The principles regarding an action for civil contempt are well established. It is aptly summarised in STX Corp v Jason Surjana Tanuwidjaja and others [2014] 2 SLR 1261 at [7] to [9] as follows:

7 An action for civil contempt is directed at a party who is bound by an order of court but is alleged to have breached the terms of that order. It is directed at securing compliance with the said order and typically falls under one of the following categories: (a) Disobedience of an order requiring an act to be done; (b) Disobedience of an order prohibiting the doing of an act; or (c) Breach of an undertaking given to court.

…

8 The standard of proof for finding contempt of court is the criminal standard of proof beyond a reasonable doubt. The threshold to establish the guilty intention necessary for a finding of civil contempt is, however, a low one – the alleged contempnor just needs to intend to do acts which are in breach of a coercive court order. His specific intention need not be shown (see Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR(R) 870 at [47]).

9 Further, it has been held that as long as there is a deliberate breach of the order, the reasons for disobedience are irrelevant in establishing liability – they are only relevant at sentencing (see Global Distressed Alpha Fund I Ltd Partnership v PT Bakrie Investindo [2013] SGHC 105 at [33]).

It must also be shown that the alleged contemnor was aware of what his obligations to the court were, as stated by the Court of Appeal in Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and others [2007] 2 SLR(R) 518 (“Pertamina”) at [51]:

51 In so far as the party to the court order is concerned, it would appear that it is only necessary to prove that the relevant conduct of the party alleged to be in breach of the court order was intentional and that it knew of all the facts which made such conduct a breach of the order (including, of course, knowledge of the existence of the order and of all of its material terms (see the English High Court decision of Re L (A Ward) [1988] 1 FLR 255 at 259)). However, it is unnecessary to prove that that party appreciated that it was breaching the order. As Sachs LJ put it in the English Court of Appeal decision of Knight v Clifton [1971] Ch 700 at 721, "[the] prohibition is absolute and is not to be related to intent unless otherwise stated on the face of the order".

While the position is a strict one, the Court of Appeal noted that where the contempt is merely technical, this can be taken into account in mitigation of the contempt (Pertamina at [61]).

I will now examine the liability of each of the Contemnors in turn.

The liability of Moses Tay for his breaches of the Orders of Court

Moses Tay is accused of breaching all the Orders of Court. His alleged breaches can essentially be classified into four categories: preventing the execution of the Anton Piller Order at the Golden Agri Premises and the Sentosa Cove Premises; withdrawing $380,000 from his OCBC account in breach of the Mareva Injunction; breaching the Ancillary Orders by failing to give up his passport and not leave the jurisdiction; and failing to comply with the disclosure requirements in the Anton Piller Order and the Mareva Injunction.

To be clear, this part of the judgment deals with the breaches of orders that were personal to Moses Tay. I will examine his liability as a director for RMMPL’s alleged breaches of the Anton Piller Order and the Mareva Injunction later (at [94] below). Before I do so, it is convenient to consider the preliminary question of whether Moses Tay should not be found liable for contempt purely on the basis that he is mentally unwell.

Preliminary issue: Moses Tay’s alleged depressive disorder

In this respect, Mr Thirumurthy made two arguments as to why Moses Tay should not be convicted as a result of his alleged depressive disorder: First, he argued that it would be unsafe to convict Moses Tay and send him to prison when he is mentally unwell and did not attend the committal hearing (as he was admitted to IMH).¹¹ Mr Thirumurthy referred to a number of medical reports which were enclosed in affidavits filed by Mr Thirumurthy himself.¹² In essence, the argument is that it would be highly prejudicial for Moses Tay to be convicted in absentia. Secondly, he submitted that it is possible that Moses Tay could have been mentally unwell even before December 2010, when he was first diagnosed in IMH.¹³ He said that if Moses Tay was indeed suffering from severe depression before the Orders of Court were served on him, then Moses Tay “cannot be blamed for failing to understand court orders or failing to comply with them”.¹⁴ In essence, the argument is that Moses Tay’s mental state at the time of the breaches was such that it would negate Moses Tay’s mens rea for contempt of court.

The plaintiff, on the other hand, submitted that Moses Tay’s alleged...