Re Wong Sook Mun Christina

• Jurisdiction: Singapore
• Judgment Date: 31 May 2005
• Date: 31 May 2005
• Docket Number: Originating Summons No 258 of 2005
• Court: High Court (Singapore)

Re Wong Sook Mun Christina

[2005] SGHC 100

Andrew Phang Boon Leong JC

Originating Summons No 258 of 2005

High Court

Evidence–Proof of evidence–Presumptions–Application for court declaration of presumed death of applicant's father–Application made under s 110 Evidence Act–Whether elements under s 110 satisfied–Whether burden of proving father dead resting on applicant–Whether appropriate for court to grant application–Sections 109 and 110 Evidence Act (Cap 97, 1997 Rev Ed)

The applicant's family, comprising the applicant, her mother (“the mother”) and her siblings, experienced some degree of financial hardship after the applicant's father (“the father”) abruptly left for the US in 1979 after a quarrel with the mother. With the exception of a single occasion in 1994, when the father gave the applicant's elder sister a power of attorney notarised by a notary public in relation to a petition of divorce filed by the mother, there was no further contact between the father and the family.

To assist in alleviating the family's financial situation by providing finance for the applicant's tertiary studies in the US, an appeal was made by the mother to the Central Provident Fund (“CPF”) Board for the withdrawal of the funds in the father's CPF account. As the CPF funds could only be released to a member's nominee or through the Intestate Succession Act (Cap 146, 1985 Rev Ed) in the event, inter alia, that the member was presumed to have passed away, the CPF Board indicated that it was unable to accede to the mother's request without an order of presumption of death issued by a court of law.

The applicant thus sought an order from the court declaring that the father be presumed dead. The application was made in reliance on s 110 of the Evidence Act (Cap 97, 1997 Rev Ed) (“the EA”). The applicant also filed an affidavit detailing the various efforts she had made to locate the father, which included sending letters to the father's and notary public's last-known addresses in the US as well as to the Controller of Immigration and the Singapore Embassy in Washington DC. These attempts to locate the father were unsuccessful.

Held, dismissing the application:

(1) Section 110 of the EA had to be read with s 109 of the EA. Consistent with the literal language of both provisions, s 110 was viewed as a proviso to s 109: at [12] and [13].

(2) Section 110 did not appear, in and of itself, to constitute a substantive provision that established that the person was dead, even if the prerequisites contained in that provision were satisfied. Furthermore, case law established that the provision itself only resulted in a presumption of the fact of death and did not establish the particular time at which the death itself occurred. Hence even if s 110 was sought to be invoked in a general fashion, a strict application of the principle, to the effect that the particular time at which death occurred had to be proven, might itself pose a problem. This was especially so where the applicant's father had not reached an age so advanced as to exclude the probability of survival: at [17] to [19].

(3) In order to satisfy both elements of s 110, not only must the applicant's father not have been heard of for seven years, he must also not have been heard of by those who would naturally have heard of him if he had been alive. On a practical and commonsensical interpretation of s 110, the applicant and her family, as a result of an irreparable rent in the fabric of familial relations, could not fall within the category of persons mentioned in s 110. The father was wholly and totally estranged from his family and, from his conduct, appeared to want to have nothing more to do with them: at [22] and [23].

(4) In any event, the applicant had not taken sufficient steps to ascertain whether or not her father was still alive. On a literal construction of s 110, it might be argued that the provision did not include this particular requirement. However, at common law and as a matter of both logic and common sense, such a requirement ought to be incorporated as part of s 110: at [30]and [32] to [35].

[Observation: Whilst the law might not be able to offer the applicant a solution, other plausible solutions may lie in the extra-legal sphere, such as a wise use of the Internet: at [38] and [39].

Section 110 as well as other provisions of the EA might be in need of legislative reform. In considering legislative reform of s 110, reference could be made to the proposed amendments to ss 107 and 108 of the Indian Evidence Act (which corresponded to ss 109 and 110 of the EA) in the Law Commission of India, 185th Report on Review of the Indian Evidence Act, 1872 (March 2003): at [42] and [47].

The law is ever-changing and proposed reforms in various jurisdictions are ever-increasingly accessible in a world that has become interconnected more than ever before. Where, therefore, legislative reforms or proposals in other jurisdictions were germane, they might well be considered and even adopted if to do so would enhance both the efficiency as well as fairness of the existing law in Singapore: at [50].]

A Penhas Deceased, Re [1947] MLJ 78 (refd)

China Insurance Co (Singapore) Pte Ltd v Liberty Insurance Pte Ltd [2005] 2 SLR (R) 509; [2005] 2 SLR 509 (refd)

Chipchase v Chipchase [1939] P 391 (refd)

East Punjab Province v Bachan SinghAIR 1957 Punjab 316 (refd)

Gun Soon Thin, Re [1997] 2 MLJ 351 (refd)

Kamtabai v UmabaiAIR 1929 Nagpur 127 (refd)

Lal Chand Marwari v Mahant Ramrup GirAIR 1926 PC 9; (1926) TLR 159 (folld)

Lim Ah Khee v Legal Representative of the Estate of Ong Koh Tee, deceased [1994] 2 SLR (R) 212; [1994] 2 SLR 769 (refd)

Matthews, In the Goods of [1898] P 17 (refd)

N Prem Ananthi v Tahsildar, CoimbatoreAIR 1989 Mad 248 (refd)

Narayan Bhagwant v Shriniwas Trimbak (1905) 8 Bombay LR 226 (refd)

Osman bin Bachit, Re [1997] 4 MLJ 445 (folld)

Phené's Trusts, In re (1870) LR 5 Ch App 139 (refd)

Prudential Assurance Company v Edmonds (1877) 2 App Cas 487 (folld)

R Muthu Thambi v K Janagi [1955] MLJ 47 (refd)

Shankareppa v ShivarudrappaAIR 1963 Mysore 115 (refd)

Surjit Kaur v Jhujhar SinghAIR 1980 P & H 274 (refd)

Watkins, Re, Watkins v Watkins [1953] 2 All ER 1112 (refd)

Watson v England (1844) 14 Sim 28; 60 ER 266 (refd)

William Lancelot Walker, In the Estate of [1909] P 115 (refd)

Evidence Act (Cap 97,1997 Rev Ed)ss 109, 110 (consd);ss 93, 94

Intestate Succession Act (Cap 146, 1985Rev Ed)

Evidence Act1872 (India)ss 107, 108

Raymond Lam Kuo Wei (Drew & Napier LLC) for the applicant.

Andrew Phang Boon Leong JC

Introduction

1 The law exists in order that justice can be achieved. Not justice in the abstract but, rather, in the context of the very real and complex world where much injustice would otherwise abound. In few other disciplines are ideal and actuality so inextricably linked. Unfortunately, however, there will always be a tension or gap between ideal and actuality. This occurs because the various facets of the law that have been fashioned to aid the courts in the goal of achieving justice are necessarily limited in a number of ways.

2 One main limitation is this. It is that each proposition or set of propositions of law cannot, by their very nature, encompass every possible factual scenario that arises for decision by the courts. On occasion at least, the factual matrix is simply not covered by the principle at hand. Under such circumstances, other legal principles or even extra-legal assistance must be sought.

3 Unfortunately, this was one instance where the legal principle or rule concerned could not aid the court. As we shall see, this was not because of any inherent defect as such within that particular principle or rule. It was simply not intended to cover the situation in question. That rule was to be found in s 110 of the Evidence Act (Cap 97, 1997 Rev Ed). Before proceeding to consider it, however, it would be appropriate to set out the legal issue arising from a comparatively simple factual matrix.

The factual matrix and legal issue

4 The legal issue arose from a less than ideal fact situation. In many ways, it was quite tragic. It had its roots in familial disharmony and, ultimately, fragmentation. Such situations are especially painful because they involve human relationships that are intended to connect intimately. These relationships - between husband and wife, between parent and child, as well as between and amongst siblings - are the microcosm as well as foundation of community itself.

5 Unfortunately, the ideal of community was, in this particular instance, not to be. We begin with a husband and a wife who were married on 2 December 1963. There were three offspring of the marriage - two daughters and a son. The husband left for the US in an apparently abrupt manner after a quarrel that he had, presumably, with his wife. This took place in 1979. He did not leave any forwarding address or contact number; he only stated that he was leaving for the US. Over a quarter of a century has passed. That is a long period of time, by any stretch of the imagination. However, there was, with one exception, no contact between the husband and his wife and/or his children all this while. The exception occurred in 1994 when, out of the blue, the husband gave the eldest daughter a power of attorney. The power of attorney originated in the State of New York and was dated 25 March 1994. This did not confer any benefit on the family as such. It was related to the matrimonial property and was, presumably, intended to bring to an end an unhappy marital relationship. The husband and his wife were then in the midst of divorce proceedings initiated by the wife in 1993, and which are...