Deputy Registrar Liu Zeming:
The Defendant, a resident and citizen of Vietnam, published a number of posts on her Facebook page in the Vietnamese language. The Plaintiffs, a Singapore company and its two locally-resident shareholders of Vietnamese descent, claimed that these Facebook posts are targeted at smearing the Plaintiffs’ reputation amongst the Vietnamese community in Singapore. The Plaintiffs commenced proceedings in Singapore and limited their claims to losses suffered here. In these circumstances, which is the forum conveniens for the Plaintiffs’ claims – Singapore or Vietnam?
This is the main question I had to answer in these two related applications. If Singapore is the forum conveniens, then a further issue I have to decide is whether certain orders granted on an ex parte basis for substituted service should be set aside for procedural irregularities and/or lack of full and frank disclosure.
Having considered parties’ submissions in detail, I am of the view that Singapore is the forum conveniens and the orders for substituted service should not be set aside. These are the grounds of my decision.
Factual and Procedural Background
Factual Background
The 1st Plaintiff (“Jarta”) in District Court Suit No 1490 of 2021 (“DC 1490”) is a Singapore company and a travel agent licensed by the Singapore Tourism Board. Jarta provides tours and travel packages for tourists in Singapore.
The 2nd Plaintiff in DC 1490 (“Jane”) is a director and shareholder of Jarta. Jane currently resides in Singapore.
The Plaintiff (“Angie”) in District Court Suit No 1448 of 2021 (“DC 1448”) is also a shareholder of Jarta. Angie is a Vietnamese citizen but resides in Singapore. Angie is a member of the Liaison Committee of the Vietnamese Community in Singapore which, according to her, is the sole community organisation established to officially represent, develop and foster the Vietnamese community living in Singapore and endorsed by the Vietnam Embassy in Singapore.
Unless otherwise specified in this judgment, I will refer to Angie, Jane and Jarta collectively as the “Plaintiffs”.
The Defendant (“Bich Ha”) in both DC 1490 and DC 1448 is the same person. She is a Vietnamese businesswoman who resides there. Bich Ha is a shareholder of the Transviet Travel Group (“Transviet”) which runs a variety of businesses in Vietnam, including travel agency and air-cargo businesses.
Bich Ha had a close personal and business relationship with one Mr. Nguyen Hai (“Hai”). Hai and Bich Ha used to live together in Vietnam and were also business partners in Transviet.
Sometime in February 2021, Hai allegedly told Bich Ha that he (i.e. Hai) wanted to pursue a serious relationship with Angie (i.e. Plaintiff in DC 1448) and admitted to having had sexual relations with Angie. Bich Ha felt betrayed by this, and suspected that Angie got close to Hai in order to procure air-cargo business from Transviet (since Hai was a shareholder of Transviet then). Bich Ha then spoke to a number of people who allegedly confirmed her suspicion regarding Angie’s intentions. Bich Ha tried to warn Hai to beware of Angie but Hai was not persuaded.
It was in this context that Bich Ha wrote 15 allegedly defamatory posts on her Facebook account between March to June 2021 (“Facebook Posts”). These Facebook Posts were written in the Vietnamese language and, by Bich Ha’s own admission, were “written in relation to Angie’s conduct”, even though Angie was not specifically named in these posts.
Angie claims that these Facebook Posts are defamatory because the gist and/or insinuation of these posts is that Angie is a dishonest and deceptive woman, a liar and/or a sexually promiscuous woman who used sexual favours to prey on wealthy men for personal gains. As for Jarta and Jane, their claims relate to five of these Facebook Posts, which allegedly contained references to either Jarta and/or “one of Jarta’s shareholders” and suggested that they engaged in bribery and/or corrupt practices.
To be clear: the matters set out in paragraph [10] above are based on Bich Ha’s account, and disputed by Angie; and the matters set out in paragraph [12] above are based on the Plaintiffs’ pleaded case in DC 1448 and DC 1490, and not admitted by Bich Ha. Specifically, although Bich Ha admits to having authored the Facebook Posts, she does not accept the accuracy of the English translations of the Facebook Posts procured by the Plaintiffs.
Procedural Background
Bich Ha filed similar applications in DC 1448 and DC 1490 to set aside the service of the originating processes on her: Summons No. 4631/2021 (“Sum 4631”) is Bich Ha’s application filed in DC 1448 to set aside DC/ORC 2950/2021 (granting leave for serve out of jurisdiction) and DC/ORC 3548/2021 (granting leave for substituted service). Summons No. 4632/2021 (“Sum 4632”) is the Bich Ha’s application filed in DC 1490 to set aside DC/ORC 3828/2021 (granting leave for serve out of jurisdiction) and DC/ORC 3636/2021 (granting leave for substituted service). (DC/ORC 2950/2021 and DC/ORC 3828/2021 shall collectively be referred to as the “Service Out Orders” and DC/ORC 3548/2021 and DC/ORC 3636/2021 shall collectively be referred to as the “Sub Service Orders”)
The table below sets out the main events leading up to each of Sum 4631 and Sum 4632. As the dates on which these events took place are not material for the present purposes, they are omitted. ![]()
Parties’ Positions
The parties’ positions in these applications are relatively straight-forward.
The Defendant says that the service of originating processes on her should be set aside for the following reasons: First, the Service Out Orders should be set aside because Singapore is not the proper forum for the claims in DC 1448 and DC 1490. Instead, these claims should be determined in the Vietnamese courts. Various reasons were cited but the primary ones are that (i) the Facebook Posts are written in the Vietnamese language and the Vietnam courts would be better placed to interpret them; and (ii) a few of the witnesses which Bich Ha intends to call are in Vietnam. Second, even if Singapore is the proper forum for the claims, the Sub Service Orders should be set aside because the Plaintiffs have not taken sufficient effort to ascertain the Defendant’s residential address in Vietnam with a view to effecting personal service on her in Vietnam. Further, the Plaintiffs failed to make full and frank disclosure of certain matters when it applied for the Sub Service Orders.
The Plaintiffs unsurprisingly submit that the Service Out Orders and the Sub Service Orders should not be set aside. They gave the following reasons: First, Service Out Orders should stand because Singapore is the proper forum for the claims. The Plaintiffs and their witnesses are all resident in Singapore. More importantly, the Facebook Posts are targeted at smearing the Plaintiffs’ reputation amongst the Vietnamese population in Singapore, and damage is suffered here. The fact that the Facebook Posts are written in Vietnamese is a non-issue, since English translations can be easily procured. As for the Defendant’s professed intention to call witnesses in Vietnam, the Plaintiffs say that (i) these are not material witnesses; and (ii) the Defendant has not shown that these witnesses are unwilling to give evidence in Singapore. Second, the Sub Service Orders should stand because the Plaintiffs took reasonable steps to ascertain the Defendant’s residential address before making applications for the Sub Service Orders. Further, the Plaintiffs had disclosed all material facts known to them at the time of these applications. In any event, the manner of substituted service proved effective in bringing the proceedings to the Defendant’s notice, and the Sub Service Orders should not be set aside for minor procedural irregularities.
Given the parties’ positions, the following issues arose for consideration: Whether Singapore is the more appropriate forum (compared to Vietnam) for the resolution of the dispute in DC 1448 and DC 1490 (the “Forum Issue”)? If Singapore is not the more appropriate forum, then the Service Out Orders should be set aside. If Singapore is the more appropriate forum, then whether the Sub Service Orders should nonetheless be set aside (the “Sub Service Issue”) because: The Plaintiffs failed to show that it was “impracticable” to effect personal service on the Defendant in Vietnam; and/or The Plaintiffs failed to make full and frank disclosures when obtaining the Sub Service Orders.
My Decision
The law
The applicable legal principles for determining whether Singapore is the appropriate forum for the purposes of service out are well established: When a foreign defendant is sued in Singapore and the plaintiff applies for leave to serve the originating process out of jurisdiction, the plaintiff must show (amongst others) that Singapore is the proper forum: see Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 (“Zoom”) at [70]. The burden of proving that Singapore is the proper forum lies on the plaintiff when the foreign defendant (having been served out of jurisdiction) comes to Singapore to contest the jurisdiction of the Singapore court: see Zoom at [71] and [72]. The test in determining whether Singapore is the proper forum is the first stage of the test set out under Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”): see Oro Negro Drilling Pte Ltd and others v Integradora de Servicios Petroleros Oro Negro SAPI de CV and others and another appeal (Jesus Angel Guerra Mendez, non-party) [2020] 1 SLR 226 (“Oro Negro”) at [80(c)]. Under this test, Singapore would be the proper forum if it had the most real and substantial connection with the disputes raised: see JIO Minerals FZC v Mineral Enterprises Ltd [2011] 1 SLR 391 (“JIO Minerals”) at [38]. The...
