OCM Opportunities Fund II, LP and Others v Burhan Uray (alias Wong Ming Kiong) and Others (No 2)

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 26 April 2005
• Neutral Citation: [2005] SGHC 81
• Docket Number: Suit No 50 of 2004 (Notice of Motion No 105 of 2004)
• Date: 26 April 2005
• Year: 2005
• Published date: 03 May 2005
• Plaintiff Counsel: Davinder Singh SC, Yarni Loi and Vanita Jegathesan (Drew and Napier LLC)
• Citation: [2005] SGHC 81
• Defendant Counsel: N Sreenivasan and Collin Choo (Straits Law Practice LLC)
• Court: High Court (Singapore)
• Subject Matter: Whether discretion should be exercised,Service,Whether court having discretion to retrospectively dispense with personal service for mandatory orders as opposed to prohibitory orders,Defendants and non-party ignoring court orders on basis of belief orders wrong and should be set aside,Whether contempt of court established,Whether court having jurisdiction to commit for contempt non-party to proceedings,Non-compliance,Appropriate punishment for contempt,Personal service of orders to be enforced by committal,Whether court having discretion to dispense with penal notice,Civil Procedure,Order 45 r 7 Rules of Court (Cap 322, R 5, 2004 Rev Ed),Rules of court

26 April 2005

Belinda Ang Saw Ean J:

1 The first five defendants, namely Burhan Uray (alias Wong Ming Kiong) (“D1”), Joseph Wong Kiia Tai (alias Wong King Tai) (“D2”), Soejono Varinata (“D3”), H Sudradjat Djajapert Junda (“D4”) and Hendrik Burhan (“D5”), together with Johnson Sihombing (“JS”) (collectively “the contemnors”) have appealed against my order dated 11 January 2005 in which the contemnors were committed to prison for six months from the date of apprehension. The contemnors were deponents of affidavits of assets affirmed by them either for themselves and/or as representatives for the corporate defendants, namely PT Daya Guna Samudera Tbk (“D7”), WMP Trading Pte Ltd (“D11”), Borneo Jaya Pte Ltd (“D13”), Natura Holdings Pte Ltd (“D14”) and Handforth Profits Limited (“D15”). D1 to D5, D7, D11 and D13 to D15 are hereinafter referred to as “the majority defendants”.

History

2 I start with an explanation of how the plaintiffs’ application for the contemnors to be committed to prison or, alternatively, fined for contempt of court in failing to comply with a number of court orders came to be made. The events that developed and led to the present committal proceedings began essentially with the dismissal on 5 March 2004 of the majority defendants’ application to set aside an injunction prohibiting disposal of assets worldwide dated 19 January 2004 (“the Mareva injunction”) as well as to strike out the Writ of Summons and Statement of Claim or, in the alternative, to stay the proceedings (“the Order of 5 March 2004”). A fuller account of the setting aside application appears from my judgment in OCM Opportunities Fund II, LP v Burhan Uray [2004] SGHC 115.

3 The majority defendants were required under the terms of the Mareva injunction to, inter alia:

Disclosure of information

… inform the Plaintiffs in writing at once of all [their] assets whether in or outside Singapore and whether owned legally or beneficially by [them] and whether in [their] own name or not and whether solely or jointly owned, giving the value, location and details of all such assets.

…

EXCEPTIONS TO THIS ORDER

(1) Provided that the terms of this order which appear under the heading “Disclosure of Information” have first been fully complied with to the satisfaction of the Plaintiffs, this order does not prohibit each of the Defendants, insofar as they are natural persons, from spending a reasonable amount a week towards his ordinary living expenses, and in respect of all the Defendants, a reasonable sum on legal advice and representation. But before spending any money the Defendants must inform the Plaintiffs’ solicitors where the money is to come from.

(2) This order does not prohibit each of the Defendants from dealing with or disposing of any of its assets in the ordinary and proper course of business. Each of the Defendants shall account to the Plaintiffs weekly for any assets so disposed of and for the amount of money spent in this regard.

4 On 6 February 2004, I refused the majority defendants’ application to suspend any disclosure of assets until after the hearing and determination of their application to set aside, inter alia, the Mareva injunction. The first set of affidavits of assets was affirmed between 17 and 27 February 2004. A second set of affidavits was subsequently affirmed between 8 and 12 April 2004, some of which, inter alia, disclosed additional assets or furnished details of assets already disclosed.

5 On 1 March 2004, the plaintiffs applied to cross-examine the contemnors on the affidavits of assets. On 9 March 2004, the majority defendants (by way of Civil Appeal No 19 of 2004) appealed against the Order of 5 March 2004. Their application for an expedited appeal was refused by Chao Hick Tin JA. Notably, the plaintiffs were permitted to continue with any matters relating to securing compliance with the Mareva injunction and the majority defendants were required to file their defence.

6 On 24 March 2004, D1, D13 and D14 applied for a variation of the Mareva injunction to allow for the withdrawal of moneys to make various payments. The application was dismissed by Lai Kew Chai J. D1, D13 and D14 had not shown that there were no other assets available to meet the various payments.

7 On 25 May 2004, I granted the plaintiffs’ application to cross-examine the contemnors. I had refused an earlier application to stay the hearing of the application for cross-examination of the deponents of the affidavits of assets pending the hearing and determination of Civil Appeal No 19 of 2004. I should mention that I ordered cross-examination as the affidavits of assets were, as I found them, simply “holding affidavits” in that the material contained in them did not satisfy the requirements of the disclosure order. They were wholly inadequate and lacking in particulars. A fuller account of my decision appears from my judgment in OCM Opportunities Fund II, LP v Burhan Uray [2004] 4 SLR 74 at [43], [48]–[49].

8 On 26 May 2004, the majority defendants (by way of Civil Appeal No 34 of 2004) appealed against my order for cross-examination. On 31 May 2004, the majority defendants applied for a stay of the cross-examination pending the hearing and determination of Civil Appeal No 34 of 2004. The stay application was on 11 June 2004 dismissed by V K Rajah JC (as he then was) sitting as a single judge in the Court of Appeal. On 5 July 2004, the majority defendants applied to discharge or vary the decision of Rajah JC in that they wanted the cross-examination stayed pending the hearing and determination of Civil Appeal No 34 of 2004, or in the alternative, for an expedited hearing of Civil Appeal No 19 of 2004. On 23 July 2004, Chao Hick Tin JA dismissed the application for an expedited appeal. The application for a discharge or variation of Rajah JC’s order was subsequently withdrawn.

9 I now come to the events leading to the default judgment of 1 September 2004. The contemnors did not turn up in court on the day fixed for cross-examination. A peremptory order was sought and granted on 30 August 2004 in which the contemnors were given another opportunity to appear in court for cross-examination, failing which the Defence of the majority defendants would be struck off and default judgment entered against them. On the adjourned hearing on 1 September 2004, the contemnors again did not attend court for cross-examination. Consequently, default judgment for damages to be assessed was duly entered against D1 to D5, D7 and D11. In default, it was also declared that the assets of D13, D14 and D15 were the beneficial property of D1 to D5, D7 and D11. The permanent injunction obtained on 1 September 2004 was effectively a continuation of the Mareva injunction until the judgment sum after assessment was paid in full.

10 Eventually, Civil Appeal No 19 of 2004 came up for hearing on 23 September 2004. Counsel for the plaintiffs, Mr Davinder Singh SC, urged the Court of Appeal not to hear the appeal as the majority defendants were in contempt of court for violating the peremptory order of 30 August 2004. Agreeing with Mr Singh, the Court of Appeal declined to hear the appeal of the majority defendants but agreed to hear the appeal of Joseph Siswanto (“D6”). As for Betty Pai (“D12”), who was unrepresented and absent at the hearing, her appeal was dismissed. Civil Appeal No 19 was adjourned at the request of Mr N Sreenivasan, counsel for the majority defendants and D6. At the adjourned hearing on 24 November 2004, the majority defendants’ appeal was dismissed without consideration of the merits.

11 As for Civil Appeal No 34 of 2004, it was deemed withdrawn pursuant to O 57 r 9(4) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) as the majority defendants had not filed the Appellants’ Case, the Record of Appeal and the Core Bundle by 6 September 2004.

12 On 22 October 2004, MPH Rubin J granted the plaintiffs leave to commence committal proceedings.

Committal proceedings

13 Briefly, in the statement made pursuant to O 52 r 2(2) of the Rules of Court, the plaintiffs made the following allegations against the contemnors:

(a) failure to inform the plaintiffs of all the majority defendants’ assets, whether in or outside Singapore and whether owned legally or beneficially by them and whether in their own name or not and whether solely or jointly owned giving the value, location and details of all such assets by way of affidavit in compliance with the Mareva injunction;

(b) failure to comply with Exception (1) of the Mareva injunction (see [3] above);

(c) failure to comply with Exception (2) of the Mareva injunction (see [3] above);

(d) failure to attend court for cross-examination pursuant to the order for cross-examination dated 25 May 2004;

(e) failure to attend court for cross-examination pursuant to the peremptory order dated 30 August 2004;

(f) continued breaches of the Mareva injunction as set out in sub-paras (a), (b) and (c) above pursuant to the permanent injunction obtained under the Judgment dated 1 September 2004.

14 Except for JS, all the majority defendants did not file an affidavit to resist the committal proceedings. It should be noted that an adjournment of the committal proceedings was granted on 12 November 2004 to enable the majority defendants to file their affidavits by 8 December 2004. In the result, D1 to D5 had not given an explanation for the non-compliance with the orders of court. JS, who filed an affidavit on 7 December 2004, explained that his non-attendance in court for the cross-examination was due only to the fact that his appointment as attorney of D7 was revoked on 11 August 2004 and as such he was no longer authorised to attend court on D7’s behalf. On his role, he explained that he was previously asked by D7 to file the necessary affidavits on its behalf “in compliance with the [Mareva] injunction as well as the applications that had been taken out in the action”. He was then given a power of attorney on 2...