Re Soo Ngak Hee

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 26 August 2010
• Neutral Citation: [2010] SGHC 256
• Published date: 31 August 2010
• Docket Number: Originating Summons No 778 of 2010
• Year: 2010
• Hearing Date: 10 August 2010,24 August 2010
• Subject Matter: Evidence
• Plaintiff Counsel: Lim Hui Min (Legal Aid Bureau)
• Citation: [2010] SGHC 256
• Court: High Court (Singapore)
• Date: 26 August 2010

Judith Prakash J: Introduction

This matter came before me on the application of Mr Soo Ngak Hee (the “Applicant”) for a declaration that his younger brother, Mr Soh Ngak Wee (“SNW”) be presumed dead. The application was made on the basis that SNW had disappeared and had not been seen by any member of his family since April 2001. I granted the application and now wish to give the reasons for my decision.

Facts

The facts stated in this judgment are taken from the affidavits filed by the following members of SNW’s family: his mother, Mdm Ong Ah Kiau, his sisters Ms Soh Geok Cheng and Ms Soh Moey Khia, and the Applicant himself.

SNW was born on 19 November 1953. After completing his education, he worked as a manual labourer. Prior to the year 2000, SNW was working in a shipyard and, for a while, he was living in rented accommodation with a friend. He was not married. Sometime in 2000, SNW suffered a stroke and fell and had trouble walking thereafter. As a result, he lost his job and did not manage to find another one. He then moved back to live with his parents. From then on, he was unemployed and was supported by his siblings.

A few months after losing his job, on 28 October 2000, SNW was admitted to the Institute of Mental Health by the police when he was found making a lot of noise in a public place. He was apparently stressed and depressed about a prospective change of residence. The Applicant took SNW out of the hospital three days later as the family felt that he would be better off at home. About two months later, SNW and his parents moved to Block 264, Jurong East Street 24, #04-521, Singapore (“the flat”). The flat is held in the joint names of Mdm Ong and SNW.

On 14 March 2001, Mdm Ong and SNW made joint wills. This was done at SNW’s suggestion. In both wills, Ms Soh Geok Cheng was appointed sole Executrix and Trustee. In his will, SNW stated that upon his death, his share in the flat should be given to Mdm Ong but that if Mdm Ong should predecease him, then the flat should be given to Ms Soh Geok Cheng. Mdm Ong’s will stated that upon her death, the flat should be given to SNW but if he should predecease her, then it should go to Ms Soh Geok Cheng.

According to Mdm Ong, SNW left home on 14 April 2001 at about 7.30am and did not return that night or thereafter. Subsequent checks revealed that he had not taken any of his personal belongings with him, including his passport. He had with him only the clothes on his back, his IC and whatever little cash he then had in his wallet.

A week after SNW’s disappearance, Mdm Ong contacted the Applicant and told him that SNW had been missing for a week. The Applicant began searching for SNW. Acting on a tip from two of SNW’s friends, the Applicant visited the Jalan Bahar cemetery. SNW had a vegetable plot there which he tended daily. The Applicant did not find SNW at the cemetery although he noted that the latter’s motorcycle had been abandoned there. The Applicant walked around the cemetery for a few hours but there was no trace of SNW.

SNW did not return home or contact any of his siblings over the next few weeks. On 24 May 2001, the Applicant made a police report about SNW having gone missing. The police refused to accept the report until they had confirmed that SNW was not in prison, in any hospital or the Institute of Mental Health. The police made immediate checks with these institutions and then informed the Applicant that SNW could not be located in any of them. Until today, the police have not been able to trace SNW.

In July 2007, the Applicant placed an advertisement in the Lian He Zao Bao newspaper in an attempt to trace SNW. There was no response to this advertisement. The Applicant also returned to the cemetery about seven years after SNW’s disappearance. He found that the land had been cleared for redevelopment and the motorcycle had disappeared.

In his affidavit made in July 2010, the Applicant stated that there were no further avenues that he could pursue to search for SNW. None of the members of SNW’s family had had any contact with SNW for the past nine years. They had absolutely no knowledge of his whereabouts.

The Applicant was of the view that it was abnormal for SNW to have ceased contact with his siblings and his parents (SNW’s father died only in 2009). SNW had relied on his family for financial support and was close to Mdm Ong. There were no family quarrels and thus it was very strange that he had not contacted them in the previous nine years and had not enquired about Mdm Ong to whom he was close. This opinion was echoed by SNW’s two sisters who both described him as being a quiet and home-loving person.

The Applicant explained the reason for the application. As Mdm Ong is now 84 years old, the Applicant wished to obtain an order for presumption of death so that in the event of her demise, the flat would not be left in limbo with SNW as the permanently absent owner of the flat.

On the above facts, the question that I had to answer was whether there was sufficient evidence for me to make an order that SNW be presumed to be dead.

The Evidence Act

There are two sections in the Evidence Act (Cap 97, 1997 Rev Ed) (“the Act”) which deal with the presumption of death, viz, ss 109 and 110. These provide:

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 Re Wong Sook Mun Christina [2005] 3 SLR(R) 329; [2005] SGHC 100 (“Christina Wong”), the High Court held that s 110 is a proviso to s 109. Section 109 applies to impose the burden of proof on an applicant who asserts that a person is dead, if that person has been alive within the past 30 years (as in the present case). However, if such person has not been heard of for seven years by those who would naturally have heard of him, s 110 would then apply to shift the burden of proof back to any person who asserts that the person concerned is still alive. If there is no one interested in asserting that the person concerned is alive, however, s 110 can apply in order to establish the presumption of the fact of death, though not to establish the particular time of death: Christina Wong at [14] - [19]. Christina Wong followed the approach taken in the Malaysian case of Re Osman bin Bachit [1997] 4 MLJ 445 (“Osman bin Bachit”).

Therefore, in a case where the alleged deceased has not been heard of for seven years by persons who would naturally have heard of him, an applicant for a declaration of death can rely on s 110 to...