Ong Jane Rebecca v Lim Lie Hoa and Others (No 5)

• Judge: Choo Han Teck J
• Judgment Date: 16 June 2004
• Neutral Citation: [2004] SGHC 131
• Citation: [2004] SGHC 131
• Court: High Court (Singapore)
• Published date: 17 June 2004
• Plaintiff Counsel: Andre Arul (Arul Chew and Partners)
• Defendant Counsel: Khoo Boo Jin and Daniel Tan (Wee Swee Teow and Co),Arul Chandran and Ooi Oon Tat (C Arul and Partners),Vinodh S Coomaraswamy and Chua Sui Tong (Shook Lin and Bok)
• Subject Matter: Civil Procedure,Appeals,Appeal from inquiry into value of estate that was subject of action in High Court,Whether findings as to value of estate and second defendant's share therein were correct,Whether findings as to amount of money previously paid to second defendant were correct

16 June 2004 Judgment reserved.

Choo Han Teck J:

1 These appeals arose from the inquiry conducted by Assistant Registrar Phang Hsiao Chung (“AR Phang” or “the AR”). The judgment of AR Phang was delivered on 13 June 2003 (see [2003] SGHC 126). All parties appealed. The inquiry was conducted pursuant to an order of court dated 16 July 1996 in which the court directed an inquiry to determine:

(a) the assets of the estate of Ong Seng King, also spelt as Ong Keng Seng also known as Arief Husni, deceased (hereinafter called “the Estate”) and their whereabouts;

(b) the share of the second defendant to the Estate;

(c) the amount or amounts which have been received by the second defendant from the Estate;

(d) the amount still due to the second defendant from the Estate as on 29 August 1991; and

(e) the quantum of the plaintiff’s share in the second defendant’s interest in the Estate under the deed of assignment dated the 19 August 1991 duly executed by the second defendant in favour of the plaintiff.

2 Ong Seng King (“the Deceased”) died intestate in Jakarta, Indonesia on 22 October 1974 leaving much wealth in various jurisdictions. The precise value of his estate was not known. Jane Rebecca Ong, the plaintiff, was married to Ong Siauw Tjoan, the second defendant. The third and fourth defendants are the brothers of the second defendant. Lim Lie Hoa, the first defendant, is the mother of the second, third and fourth defendants. The Deceased was her husband, and the father of the second, third and fourth defendants. This action was commenced in 1991, initially in the name of the second defendant (until he was removed in 1992 as plaintiff, and made the second defendant). Jane Rebecca Ong then became the plaintiff in place of the second defendant. At that time, her marriage with the second defendant was coming to an end. In seeking her rightful share of her husband’s assets, the plaintiff had to know what he had, and that depended on what he was entitled to from his father’s (the Deceased’s) estate. The third and fourth defendants were not involved in the initial dispute, which was to seek the production of the accounts of the estate of the Deceased. The second defendant switched allegiance back and forth in the course of the protracted litigation. First, he was on the same side as the plaintiff, then he took sides with the first defendant. In the proceedings after the trial, that is, in the course of the inquiry, he reverted to the plaintiff’s side. The third and fourth defendants were joined as parties only on 22 February 2002.

3 The action was finally heard and judgment delivered by Chao Hick Tin J (as he then was) on 16 July 1996. The two principal orders made by Chao J were first, a declaration that the deed of release given by the second defendant to the Estate was null and void; and second, an order for an inquiry into the Estate and the second defendant’s share in the Estate. The full orders had been set out in [1] above. It took another seven years of squabbling before the inquiry could be held. On 13 June 2003 AR Phang delivered a lengthy judgment with the essential orders as follows:

(1) The Plaintiff shall have final judgment against the First Defendant for the sum of S$2,321,770.27 with interest as follows:

(a) Interest on the sum of S$2,321,770.27 at 6% per annum from the date of commencement of the action (21 September 1991) to 16 May 1998;

(b) Interest on the sum of S$2,271,770.27 at 6% per annum from 17 May 1998 to 19 June 1998;

(c) Interest on the sum of S$2,221,770.27 at 6% per annum from 20 June 1998 to 20 July 1998;

(d) Interest on the sum of S$2,171,770.27 at 6% per annum from 21 July 1998 to 17 August 1998;

(e) Interest on the sum of S$1,819,961.39 at 6% per annum from 18 August 1998 to 11 February 1999;

(f) Interest on the sum of S$1,444,961.39 at 6% per annum from 12 February 1999 to 9 April 1999;

(g) Interest on the sum of S$1,404,961.39 at 6% per annum from 10 April 1999 to 11 May 1999;

(h) Interest on the sum of S$1,379,961.39 at 6% per annum from 12 May 1999 to 14 July 1999;

(i) Interest on the sum of S$1,279,961.39 at 6% per annum from 15 July 1999 to 4 August 1999;

(j) Interest on the sum of S$1,219,961.39 at 6% per annum from 5 August 1999 to 3 September 1999;

(k) Interest on the sum of S$1,159,961.39 at 6% per annum from 4 September 1999 to 5 October 1999;

(l) Interest on the sum of S$1,099,961.39 at 6% per annum from 6 October 1999 to 4 November 1999;

(m) Interest on the sum of S$1,069,961.39 at 6% per annum from 5 November 1999 to 11 February 2000;

(n) Interest on the sum of S$1,051,406.60 at 6% per annum from 12 February 2000 to 3 April 2000;

(o) Interest on the sum of S$701,406.60 at 6% per annum from 4 April 2000 to 28 April 2000; and

(p) Interest on the sum of S$101,406.60 at 6% per annum from 29 April 2000 to 12 April 2001.

(2) It is declared that the Plaintiff shall be entitled to a one-twelfth share of the Deceased’s interest in the piece of land in Cibenong, a one-twelfth share of the Deceased’s interest in the jute plantation in Lampung and a one-twelfth share of the Deceased’s interest in a bank account in the United States of America.

The plaintiff and the second defendant were dissatisfied with the finding of the value of the Estate and the second defendant’s share therein. The first, third and fourth defendants were dissatisfied with the AR’s findings as to the amount of money previously paid to the second defendant. These thus constitute the appeals before me.

4 The plaintiff’s counsel, in a lengthy submission, listed three broad grounds for her appeal with eight stated reasons in respect of the first ground. The three areas of appeal are – firstly, that AR Phang “wrongly valued the Estate as at 29 August 1991 at too low a figure”; secondly, he “wrongly construed the payments by the 1^st Defendant to the Plaintiff of the monies under the 6 April 2001 Order of Court of Justice Lai Kew Chai as being an interim payment when it was in fact a payment to the Plaintiff out of the 2^nd Defendant’s share in the Estate”; and thirdly, that AR Phang “though more or less was correct on the issue of costs of the Plaintiff being borne by the 1^st Defendant, he erred in that the Plaintiff was clearly entitled to more than 50% of the costs and/or disbursements she incurred in relation to the photocopying and binding of the bundles of documents (howsoever called) tendered in Court”.

5 In addition to the above grounds, Mr Andre Arul, counsel for the plaintiff, also submitted that the assistant registrar was wrong to have “placed the onerous burden of having to prove that disputed assets do belong to the Estate on the Plaintiff”. I shall deal with this point straightaway. Unlike a trial proper where there is both a legal and evidential burden to discharge, in an inquiry where the court or tribunal is charged with the duty of enquiring into the evidence with the objective of answering specific questions or terms of reference for or under which the inquiry was held, the duty of the court or tribunal is to receive such evidence as it thinks necessary and relevant. The notion of a legal burden does not exist, as conceptually, there is no partisan party to prove a cause. There is only the evidential burden and that rests with whoever has evidence that the court regards as relevant. In any other instance, the evidential burden of proof lies with he who asserts. That was the approach the assistant registrar adopted and I am of the view that he was correct. He had placed the burden of proving that assets which the plaintiff claimed to have belonged to the Deceased on the plaintiff. This burden should not be placed on any other party in such an inquiry. The first defendant, as administratrix, was of course obliged to produce the Estate’s accounts, but an assertion by any other party will have to be proved by that party, evidentially. If he (or she) had done enough, the administratix might then be obliged to adduce rebuttal evidence, and the court makes the final determination. That is how the process works.

6 Next, also as a preliminary point, Mr Andre Arul submitted that the plaintiff was prejudiced because the assistant registrar denied the plaintiff’s application to put relevant documents into evidence. Counsel submitted that those documents were vital in proving that the disputed assets belonged to the Estate. Counsel’s specific complaint concerned evidence which had been scanned and stored into six compact disks. He alleged that AR Phang had ordered that the plaintiff produce the documents in a single bundle the following day. All the evidence here related to documents seized pursuant to an Anton Piller order. Mr Andre Arul submitted that the AR’s order was unfair to the plaintiff who was “a lay person and with rather limited resources, particularly being in another country”. In the present case, the circumstances do not justify this criticism of the assistant registrar. The plaintiff was represented at the material time by Mr Andre Arul himself. Given the history of this long saga and Mr Andre Arul’s experience and knowledge of the disputes connected to it, I do not think that it was right to say that the assistant registrar’s orders in respect of the production of the documents were either unfair or as Mr Andre Arul argued, “in total disregard of [Justice Chao’s orders] dated 29 October 1996”.

7 Mr Andre Arul also argued that the plaintiff was prejudiced because AR Phang did not allow the plaintiff sufficient time to cross-examine the witnesses. He also argued that “AR Phang had adopted an unnecessarily strict approach of insisting that every point be specifically put to [the first defendant] and that she be questioned as regards every document relied on by the Plaintiff and relying unduly on the rule in Browne v Dunn [(1893) 6 R 67] to disregard any evidence not so put before [the first defendant]”. Mr Andre Arul then made the point that “a great many of the assets the...