Ong Jane Rebecca v Lim Lie Hoa (also known as Lim Le Hoa and Lily Arief Husni) and Others

• Jurisdiction: Singapore
• Judge: Phang Hsiao Chung AR
• Judgment Date: 13 June 2003
• Neutral Citation: [2003] SGHC 126
• Court: High Court (Singapore)
• Published date: 27 January 2014
• Year: 2003
• Plaintiff Counsel: Andre Arul (Arul Chew & Partners)
• Defendant Counsel: Khoo Boo Jin and Daniel Tan (Wee Swee Teow & Co),C Arul and Ooi Oon Tat (C Arul & Partners),Vinodh S Coomaraswamy and Chua Sui Tong (Shook Lin & Bok)
• Citation: [2003] SGHC 126

1 This is an inquiry conducted pursuant to a judgment dated 16 July 1996.

2 The Plaintiff (Jane Rebecca Ong) is the wife of the Second Defendant (Ong Siauw Tjoan @ Sjamsudin Husni). They were married in 1982 and have 3 children. In 1988, the Plaintiff commenced divorce proceedings against the Second Defendant. A decree nisi has been obtained but not made absolute.

3 The First Defendant (Lim Lie Hoa, also known as Lim Le Hoa and Lily Arief Husni) is the mother of the Second Defendant. The First Defendant’s husband, and the Second Defendant’s father, was one Ong Seng King (also known as Ong Seng Keng, Ong Keng Seng, Ong King Seng and Arief Husni) (the “Deceased”). The Deceased was a wealthy Indonesian businessman with assets in a number of different jurisdictions. He died intestate in Jakarta, Indonesia, on 22 October 1974 at the age of 49 years. According to a petition for letters of administration filed by the First Defendant in the High Court of Singapore (Probate No 8 of 1975), the Deceased was resident in Singapore but domiciled in Indonesia at the time of his death.

4 The petition for letters of administration in Probate No 8 of 1975 was granted on 17 January 1975. As granted, the petition identified the First Defendant, the Second Defendant and the Third Defendant (Ong Siauw Ping @ Slamat Husni) as the only next of kin of the Deceased. The Third Defendant was the Deceased’s and First Defendant’s son, and the Second Defendant’s brother. As both the Second and Third Defendants were then minors, the letters of administration were granted to the First Defendant as administrator and to one Lim Lie Fong as co-administrator with her.

5 By an Order of Court dated 8 September 1975, the First Defendant and Lim Lie Fong were granted leave to amend the petition for letters of administration to include a reference to an “unborn child” as a next of kin of the Deceased. This was in fact a reference to the Fourth Defendant (Ong Keng Tong), who was born on 27 June 1975.

6 By an Order of Court dated 24 July 1978, the letters of administration granted to the First Defendant and Lim Lie Fong were revoked, and the letters of administration were instead granted to the First Defendant as administrator and to the Second Defendant as co-administrator with her. As, at law, administrators and co-administrators bear the same roles and responsibilities, I will refer to both the First and Second Defendants and Lim Lie Fong as “administrators”.

7 On 29 June 1989, the Second Defendant executed a Deed of Release in which he purported to acknowledge receiving from the administrators of the Deceased’s estate the sums of £1,018,000 and US$150,000 in full and final settlement of his interest in the estate, and purported to discharge and release the administrators of the estate of their duties and obligations.

8 On 29 August 1991, the Second Defendant executed a Deed of Assignment and a Power of Attorney in favour of the Plaintiff. Under the Deed of Assignment, the Second Defendant assigned to the Plaintiff “one-half of all his entitlement to the distributive share of the residuary estate of [the Deceased] and all other rights (if any) in or to the said Estate”. The Power of Attorney conferred on the Plaintiff powers, inter alia, to demand and sue the representatives of the Deceased’s estate for the Second Defendant’s share in the residuary estate and was declared to be “irrevocable”.

9 On 21 September 1991, the Plaintiff’s solicitors commenced this action by way of an originating summons. By an Order of Court dated 4 April 1994, the proceedings were ordered to be continued as if the matter had been begun by writ. In her Statement of Claim, the Plaintiff claimed the following relief:

(1) that the Deed of Release be set aside or declared unenforceable as against the Second Defendant and the Plaintiff;

(2) that the First Defendant pay the sums of £519,000 and US$75,000 to the Plaintiff; and

(3) that various accounts be taken and inquiries be made to determine the assets of the Deceased’s estate, the whereabouts of those assets, and the amounts due to the Plaintiff under the Deed of Assignment.

10 In a judgment dated 16 July 1996, Chao Hick Tin J declared the Deed of Release executed on 29 June 1989 to be void and unenforceable. His Honour further directed that an inquiry be held to determine:

(1) the assets of the estate of the Deceased and their whereabouts;

(2) the share of the Second Defendant in the estate;

(3) the amount or amounts which have been received by the Second Defendant from the estate;

(4) the amount still due to the Second Defendant from the estate as on 29 August 1991; and

(5) the quantum of the Plaintiff’s share in the estate under the Deed of Assignment.

11 The First and Second Defendants appealed against these orders. By a written judgment dated 16 April 1997 (reported as Lim Lie Hoa v Ong Jane Rebecca [1997] 2 SLR 320), the Court of Appeal dismissed the First and Second Defendants’ appeals with costs.

12 The Plaintiff, the First Defendant and the Second Defendant were the only parties to this action up to 21 February 2002. By an Order of Court dated 22 February 2002, the Third and Fourth Defendants were added as parties to this action on their own application.

Preliminary Issues

13 Before dealing with my findings on the inquiry, I think it is appropriate to deal with two discrete preliminary issues that have a bearing on the outcome of this case.

The Fourth Defendant’s Parentage

14 First, both the Plaintiff and the Second Defendant attempted to introduce evidence to suggest that the Fourth Defendant was not a son of the Deceased. The object of this exercise was to enlarge the Second Defendant’s share of the Deceased’s estate by shutting out the Fourth Defendant from his claim as a beneficiary.

15 I did not allow the Plaintiff and the Second Defendant to embark on this line of inquiry. Nor did I allow any cross-examination on this matter. In my opinion, an investigation into the Fourth Defendant’s parentage clearly fell outside the scope of the inquiry ordered pursuant to the judgment dated 16 July 1996.

16 Although the Plaintiff did allege, at paragraph 11(1)(b) of her Statement of Claim filed on 13 April 1994, that the Fourth Defendant was “not entitled as a beneficiary as he [was] not a lawful issue of [the Deceased]”, this allegation was made merely to support her contention that the First Defendant had acted in breach of trust and/or in breach of her fiduciary duties as an administrator or trustee. At the trial, the Plaintiff did not seek any relief in the nature of a declaration as to whether the Fourth Defendant was a beneficiary of the Deceased’s estate. In her Defence filed on 25 April 1994, the First Defendant denied the Plaintiff’s allegation at paragraph 11(1)(b) of the Statement of Claim. In his Defence filed on 15 June 1995, the Second Defendant stated that this allegation was “not admitted”. When Chao Hick Tin J ordered the inquiry on 16 July 1996, the Fourth Defendant had not even been made a party to this action. It was therefore inconceivable that His Honour could have intended the inquiry to encompass matters that would have been adverse to the rights of the Fourth Defendant, such as an investigation into the Fourth Defendant’s parentage. On the contrary, Chao J described the Fourth Defendant as “another younger brother of the second defendant” at page 8 of His Honour’s unreported judgment dated 16 July 1996.

17 The Plaintiff and the Second Defendant also faced an evidential problem. Section 114 of the Evidence Act (Cap 97, 1997 Ed) provides as follows:

Birth during marriage conclusive proof of legitimacy

114. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

18 The Deceased died on 22 October 1974. The Fourth Defendant was born on 27 June 1975, well within 280 days after the marriage between the First Defendant and the Deceased was dissolved by the latter’s death. By virtue of section 114 of the Evidence Act, this was to be treated as conclusive proof that the Fourth Defendant was a legitimate son of the Deceased, unless it can be shown that the First Defendant and the Deceased “had no access to each other” at any time when the Fourth Defendant could have been begotten. There was no admissible evidence of this nature adduced by either the Plaintiff or the Second Defendant to justify embarking on such an investigation. It was not sufficient for them to make bare allegations, whether by themselves or through acquaintances, that the First Defendant and the Deceased did not appear to be on good terms with each other at the time when the Fourth Defendant was conceived. They had to show that the First Defendant and the Deceased “had no access to each other” at all material times.

19 In Probate No 8 of 1975, the First Defendant declared the Fourth Defendant to be a next of kin and beneficiary of the Deceased. Letters of administration were granted to the First and Second Defendants on the basis that the Fourth Defendant was one of the Deceased’s three sons. The Second Defendant consented to acting as a co-administrator on that basis. The Second Defendant also signed a power of attorney for an application for resealing the Singapore grant of letters of administration in Hong Kong. In that power of attorney, the Second Defendant acknowledged the Fourth Defendant to be a “natural and lawful son” and “next of kin” of the Deceased who was entitled to a share in the Deceased’s Hong Kong estate. The Second Defendant’s allegations about the Fourth Defendant’s parentage were therefore clearly suspect.

Law governing the distribution of the Deceased’s estate

20 The second...