Re Maneerat Wongdao Mrs Maneerat Ng

• Jurisdiction: Singapore
• Judge: Tan Siong Thye J
• Judgment Date: 04 January 2018
• Neutral Citation: [2018] SGHC 6
• Plaintiff Counsel: Low Jianhui (Dew Chambers)
• Published date: 25 January 2018
• Subject Matter: Presumption of continuance of life,Presumption of death,Evidence,Presumptions
• Docket Number: Originating Summons No 1225 of 2017
• Court: High Court (Singapore)
• Hearing Date: 14 November 2017
• Date: 04 January 2018

Tan Siong Thye J: Introduction

This is an ex parte application in Originating Summons No 1225 of 2017 (“OS 1225”) by one Maneerat Wongdao Mrs Maneerat Ng (“Maneerat”) for a declaration that her husband, Ng Siang Chun (“Ng”), is to be presumed dead pursuant to s 110 of the Evidence Act (Cap 97, 1997 Rev Ed) (“the EA”). After hearing Maneerat’s submissions, I dismissed her application. I now give my reasons.

Facts leading to the application

Maneerat is a Thai national and a Singapore Permanent Resident staying in Singapore. She is a housewife while Ng runs a business dealing in sound systems. Ng would travel to Thailand regularly for both business and pleasure, usually alone. He would sometimes stay in Thailand for weeks. During his travels he would usually keep in contact with Maneerat and their two daughters to keep them updated.¹

On or about 3 June 2006, Ng left for Thailand again for a business trip. He did not say how long he would be there, but Maneerat expected the trip to be short as Ng only brought limited personal belongings. Initially, Maneerat gave him 100,000 baht (about S$4,730) to purchase stock for his sound systems business. In September 2006, she remitted an additional S$1,800 to Ng as the latter informed her that he needed more money. During this period, Maneerat had intermittent contact with Ng.²

Several months later, Maneerat received no further news from Ng. She was worried and consulted her father-in-law, Ng Chay Tong (“Ng’s father”).³ Although Ng no longer lived with his father, he still visited the latter on weekends.⁴ On 15 February 2007, Ng’s father made a police report when he learnt from Maneerat that she had not heard from Ng since September 2006 (“the first police report”).⁵ Ng’s father said, inter alia, to the police that he “suspect[ed] that [Ng] do [sic] not want to return to Singapore due to outstanding loans taken from Singapore banks”,⁶ but did not provide further information about these loans. Ng’s father did not attempt to contact Ng as he relied on Maneerat to do so. According to Ng’s father, he has not received any news from the police since.⁷

On 21 June 2012, a second police report was made, this time by Maneerat. She had not received any news from the police since the first police report, but lodged a second report as she “needed to renew [her] [Permanent Residency] and the Immigration and Checkpoints Authority of Singapore recommended that [she] lodge a police report so that they can process [her] renewal application”.⁸

On 16 December 2015, Maneerat and her son-in-law, Ter Wee Cher (“Ter”), placed two advertisements in the newspapers – one in Singapore and one in Thailand. At the time, Ter was about to marry Maneerat’s daughter. As her daughter was a minor at that time, the consent of both parents was needed and Maneerat hoped that Ng would respond to the advertisements. Unfortunately he did not.⁹

On 3 April 2017, Maneerat lodged a third police report.¹⁰ In her police report, Maneerat stated that she was lodging the report “for the lawyer’s [action], to declare that [Ng] has passed away”. But she noted that she “[did] not have any evidence of his death”.¹¹ On 22 May 2017, her lawyers wrote to the Ministry of Defence and the Immigration & Checkpoints Authority (“the ICA”) to inquire about Ng’s whereabouts. Again, she explained that she needed the information to apply for a declaration to presume Ng’s death.¹² The Ministry of Defence did not reply. However, the ICA replied that they could not provide any information because the information in its possession was solely for its function as an immigration authority. In August, Maneerat wrote to Sengkang Neighbourhood Police Centre, Ang Mo Kio Police Division Headquarters, Bedok Police Divisional Headquarters and the Attorney-General’s Chambers with the same request. No substantive information was provided about Ng’s whereabouts.¹³

Maneerat then brought this application on 30 October 2017.

Issues

The sole issue before the court was whether the declaration under s 110 of the EA should be granted. I shall first consider the approach to be taken under s 110 as indicated in OS 1225 before explaining why I dismissed the application.

The approach under s 110 of the EA The relationship between ss 109 and 110 of the EA

The starting point is s 110 of the EA itself. However, s 110 is not the only section which deals with an application for the court to declare someone dead or alive. Section 109 is also relevant. Hence, I shall set out both these sections in full:

Burden of proving death of person known to have been alive within 30 years

109. When the question is whether a man is alive or dead, and it is shown that he was alive within 30 years, the burden of proving that he is dead is on the person who affirms it.

Burden of proving that person is alive who has not been heard of for 7 years

110. When the question is whether a man is alive or dead, and it is proved that he has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. In discussing the approach to be taken under these sections, I shall refer to the person who is alleged to be dead or alive as “the subject”, and the person applying for the declaration as “the applicant”.

The following decided cases suggest that these sections work in tandem and that s 110 is a “proviso” to s 109: In Re Wong Sook Mun Christina [2005] 3 SLR(R) 329 (“Christina Wong”), Andrew Phang Boon Leong JC (as he then was) stated that s 109 places the burden of proving that the subject is dead on the applicant (at [14]), unless s 110 applies to “relieve” the applicant of that burden (at [15]). In Re Soo Ngak Hee [2011] 1 SLR 103, Judith Prakash J (as she then was) cited Christina Wong for the proposition that s 109 prima facie places the burden of proof on the applicant to show that the subject is dead, but where the applicant shows that the subject has not been heard of for seven years by those who would naturally have heard of him, then s 110 would “shift” the burden of proof back to a person who asserts that the subject is alive (at [15]). In Re Kornrat Sriponnok [2015] 3 SLR 465, Choo Han Teck J similarly noted that s 109 places the burden of proving the subject’s death on the person asserting, but s 110 also “shifts” the burden of proof from the person asserting death to the person alleging that the subject is alive (at [4]–[5]).

The same position is also taken by several academic authors. For instance, Professor Jeffrey Pinsler SC in his book on evidence law opines that s 109 is a “presumption of the continuance of life”. In other words, once it is shown that the subject is alive within the last 30 years, the applicant must prove that the subject is dead. However, the “presumption of the continuance of life in s 109 may be countered by the presumption of death under s 110” if the applicant proves that those who would naturally have heard of him have not within the last seven years. When the “presumption of death” applies, the party alleging that the subject is alive must prove that he is alive (Jeffrey Pinsler, Evidence and the Litigation Process (LexisNexis, 5th Ed, 2015) at para 12.052).

Professor Pinsler’s position is consistent with the Indian authors who have analysed the precursors to ss 109 and 110, which have the same wording as these sections. In the seminal Indian text of Sudipto Sarkar & V R Manohar, Sarkar’s Law of Evidence, Vol 2 (Wadhwa Nagpur, 16th Ed, 2007) at p 1694, the authors also note that s 107 (the precursor to s 109) deals with the presumption of continuation of life and s 108 (the precursor to s 110) the presumption of death. The authors further describe s 108 as “enact[ing] a proviso” to s 107 by specifying that when a person is absent for seven years, he can be presumed to have died and the burden “shifts” to those who assert that he is alive to prove that he is alive. The authors explain that both sections are deduced from the presumption that a person who is alive within 30 years of the application date continues to be alive unless the presumption of “continuation” is no longer applicable by virtue of the seven-year silence period. In other words, the two sections work hand in hand.

An even more explicit position was taken in Y V Chandrachud & V R Manohar, Ratanlal & Dhirajlal’s The Law of Evidence (Wadhwa Nagpur, 22nd Enlarged Edition, 2006) at p 1149. The authors of this Indian text state that the two sections “must be read together because the latter [ie, s 110] is only a proviso to the rule contained in the former [ie, s 109] and both constitute one rule when so read together”.

From the above authorities, we can glean the following approach to be taken for an application to declare that the subject is dead under ss 109–110: The starting point is s 109. If there are facts to show that the subject was alive within the last 30 years, then the subject is presumed to be alive. The applicant must then prove that the subject is dead (contrary to this presumption). One of the ways to prove that the subject is dead is by showing that he has not contacted persons he would naturally be expected to contact in the last seven years. But even when this is shown, the subject will not have been proven to be dead. Rather, this only raises a presumption of death under s 110, which can still be rebutted by any interested person. Once the presumption of death under s 110 is raised, the burden of rebutting that presumption by proving that the subject is alive falls on any party who wishes to do so under s 110. Of course, apart from using the presumption of death in s 110, there are also other ways of proving that the subject is dead. One example is if the applicant has affirmative evidence of the subject’s death. This was what happened in Lim Ah Khee...