Poon Kng Siang and Another v Tan Ah Keng and Others

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 04 October 1991
• Neutral Citation: [1991] SGHC 144
• Docket Number: Suit No 1343 of 1991
• Date: 04 October 1991
• Year: 1991
• Published date: 19 September 2003
• Plaintiff Counsel: Sarjit Kaur and Sukdave Singh (Sarjit Kaur & Co)
• Citation: [1991] SGHC 144
• Defendant Counsel: Harry Wee and Lim Seng Siew (Braddell Brothers)
• Court: High Court (Singapore)
• Subject Matter: What is material fact,Civil Procedure,Whether application to be heard at interlocutory stage or at trial,'Material fact',Court's discretion,Non-disclosure of material fact,Conduct of applicant of relevance,Discharge,Words and Phrases,Mareva injunctions

This was an application by the first and second defendants to discharge the interim Mareva injunction made by Chao Hick Tin J on 2 July 1991 restraining the first and second defendants from removing, dealing with, disposing of etc their assets within the jurisdiction. The order also froze assets of a company, PCH Investments Pte Ltd (`PCHI`), of which all the defendants are registered shareholders and the first defendant and three of the second defendants are directors, and it required disclosures of assets.

The ground of the application for discharge was non-disclosure of material facts, in that certain correspondence between the plaintiffs` solicitors and a doctor concerning the physical and mental condition of the deceased and a copy of the will of the deceased made in March 1983, were not disclosed.

I heard the application for discharge on 19 July. I allowed it, and now give my reasons.

The facts

The deceased, the late Mr Poon Chin Heong, was a businessman of considerable wealth. He had in his lifetime three wives. He died in May 1988 at the age of 88 (or 86 according to the defendants). He had altogether 12 children, three by each of the first two wives and six by the third wife.

The plaintiffs are two of the children from the first and second wives. The third wife is the first defendant, Tan Ah Keng. The six persons who are collectively sued as the second defendants are the children of the third wife, the first defen. I refer to the first defendant and the second defendants collectively as `the defendants`.

The disputes are therefore between two of the children of the first and second wives on the one side, and the third wife and her children on the other side.

As is often the case, the disputes concern the disposition of the deceased`s properties.

The deceased made a will on 9 October 1967, at the age of 67 (or 65 according to the defendants). He was then in good health. The deceased appointed the two plaintiffs as the trustees and executors of his will. Under this will, all the children by his various wives, including the plaintiffs and the second defendants, as well as the first defendant, were given varying shares of the deceased`s estate.

The deceased suffered a stroke on 2 September 1982. He was then living with the defendants at No 11 Jalan Limau Nipis, apparently away from the children of his first and second wives. He was admitted to Mount Elizabeth Hospital on the same day. He was under the general care of Dr Charles Toh, a consultant cardiologist. However, for the neurological investigations and treatment, he was referred to Dr SC Loong, a consultant neurologist. Dr SC Loong in a letter dated 16 November 1988, in response to the plaintiffs` then solicitors` request, gave a brief account of these investigations and treatment and the deceased`s progress. He said:

I first examined him on 2 September 1982 at the request of Dr Charles Toh. He was found to be drowsy and had a right hemiparesis and aphasia. These were due to a stroke. (Aphasia is a disturbance of language resulting in inability to comprehend speech or express ideas through speech.)

A CT head scan done on 3 September 1982 was normal apart from (1) an old infarct (scar) in the right cerebral hemisphere and (2) some dilatation of the ventricular system and prominence of cortical sulci consistent with normal aging atrophy.

He was treated with Instenon, Nootropil and Persantine and Minipress.

He improved gradually. Neurological exam on 9 September 1982 showed that he was less drowsy and beginning to recover his speech. He was last seen by me on 18 September 1982 when he was noted to be fully conscious. He still had a right hemiparesis. The extent of his speech recovery and his mental functions were not assessed. His condition was considered to be sufficiently stable for discharge from hospital. He was discharged by Dr Charles Toh on the same day.

1982 Powers of attorney

A month later, on 18 October 1982, the deceased executed a power of attorney by thumb-print before Mr Loh Lin Kok, an advocate and solicitor. By this instrument, he appointed the first defendant as his attorney, among other things, to act in, conduct and manage all his affairs as she thought fit with power to execute documents of all kinds.

A few days later, on the advice of another solicitor, Miss Wee Hong Lin of another firm whom he had previously consulted on the formation of PCHI, that this power of attorney was not sufficient to carry out his intentions, the deceased executed a much more comprehensive power of attorney drafted by Miss Wee. This document, running five pages long, is dated 21 October 1982. He again appointed the first defendant as his attorney. He gave her power, inter alia, to conduct and manage all his affairs, to deal with his investments, to operate his banking accounts and to execute documents of all kinds. This document was executed by thumb-print before Miss Wee Hong Lin.

1983 Will

A few months later, on 7 March 1983, the deceased executed a will by thumb-print in the presence of Miss Wee Hong Lin and Dr Charles Toh, the doctor who had taken care of him.

He appointed as executrices and trustees of his will his daughters Lee Huan and Lee Kheow, two of the second defendants. He revoked all his former wills and gave his entire estate to the first defendant.

According to the defendants, the deceased had made another will in or about 1979, but this will was destroyed when the will of 7 March 1983 (`the 1983 will`) was made.

The 1983 will was prepared by Miss Wee Hong Lin according to the instructions, she says, of the deceased. According to Miss Wee, because of the deceased`s advanced age, she suggested to the deceased that the will should be executed before a doctor. Miss Wee says `An appointment was made for 7 March 1983 to see Dr Charles Toh at his clinic. I explained the will to Mr Poon Chin Heong before Dr Toh, and he agreed to the contents. Mr Poon then affixed his thumb-print and Dr Charles Toh and I witnessed his execution.`

Incorporation of PCH Investments Pte Ltd

In July 1982, that is some two months before the deceased suffered the stroke, PCHI was incorporated. Miss Wee Hong Lin, who undertook the incorporation, says that the deceased came to her in June. He wanted to incorporate a holding company to which he could transfer all his assets, and this was for the purpose of reducing or eliminating estate duty payable when he died. Miss Wee says that she had several meetings with him in the deceased`s Teochew dialect, a dialect which she is conversant in, and the deceased instructed her that he wanted all the shares in the company to be held by the second defendants. No provision was made for any of the children of the first or second wife.

PCHI was thus incorporated on 3 July 1982. The latest Registry of Companies instant search computer print-out shows that the defendants are the shareholders of the company. It also shows what I have stated earlier that the first defendant and three of the second defendants are directors. None of the children from the first or the second wife is included as director or shareholder. The issued and paid-up capital is $1,999,000.

Cutting-off of children of the first and second wives

By the formation of the company in July 1982, the execution of the powers of attorney in October 1982 and the execution of the 1983 will, the way was open for the plaintiffs and other children from the first and second wives to be cut off from participation in the deceased`s estate, and for the deceased`s entire estate to fall to the first and second defendants.

After his discharge from the hospital in September 1982, large quantities of shares that the deceased owned in certain listed companies, ie OCBC, Robinson, Tractors Malaysia, and Prima, were transferred to various parties, with the bulk to PCHI.

As of 30 June 1983, PCHI had a fully paid-up capital of $1,999,000, with quoted investments with a market value of $3,858,213. The balance sheet also shows a sum of $331,607 owed to directors.

When the estate duty affidavit was filed after the deceased`s death in May 1988, it showed a net estate of only $13,010.78.

Action and application for injunction

The plaintiffs, in addition to challenging the probate of the 1983 will, instituted the present suit.

Among the remedies they seek are a declaration that the two powers of attorney and the 1983 will are void, and a declaration that the 1967 will should prevail to all intents and purposes.

The writ was issued on 28 June 1991. On the same day, the plaintiffs filed the ex parte application for the injunction in question. Two affidavits were filed in support of their application. In the main affidavit of the plaintiffs, that was filed on 6 June 1991, they make many allegations of fraud against the defendants. They allege, in gist, that the two powers of attorney were the instruments by which the defendants converted and stole the deceased`s properties, and the defendants directly and through PCHI were the recipients of the fruits of the fraud.

The plaintiffs allege in this 6 June 1991 affidavit that the deceased was in no physical or mental condition to have voluntarily executed the two powers of attorney. They allege that the deceased could not have been in a position to give instructions for the drawing-up of any power of attorney.

They describe in some detail the deceased`s physical condition while at the hospital and at his residence. They say:

We visited our late father at the hospital and at his residence. He could not talk. He certainly was immobilized and in a coma. It was later ascertained he was paralyzed on the right side of his body and he therefore could not write his name or place his thumb-print voluntarily on any piece of paper. At home he was moved from his upstairs bedroom to the ground floor and kept in a bed there. All the times I met him he was lying in bed. Dribble and saliva would ooze from his mouth when he sat up. He could not control his bowel

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