Su Sh-Hsyu v Wee Yue Chew

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 25 June 2007
• Neutral Citation: [2007] SGCA 31
• Docket Number: Civil Appeal No 106 of 2006
• Date: 25 June 2007
• Published date: 26 June 2007
• Year: 2007
• Plaintiff Counsel: Hee Theng Fong and Wendy Low Wei Ling (Hee Theng Fong & Co)
• Citation: [2007] SGCA 31
• Defendant Counsel: Lawrence Lee Mun Kong (Aptus Law Corporation)
• Court: Court of Appeal (Singapore)
• Subject Matter: Appeals,Application to set aside judgment due to absence at trial,Strict judicial policy,Order 35 r 2(1) Rules of Court (Cap 322, R 5, 2006 Rev Ed),Whether fresh evidence uncovering fraud or deception of other party admissible even though Ladd v Marshall conditions not strictly satisfied,Strong compelling grounds needed before court exercises discretion to vacate trial dates,Order 57 r 13(2) Rules of Court (Cap 322, R 5, 2006 Rev Ed),Civil Procedure,Admission of fresh evidence before Court of Appeal,Whether reasons for applicant's non-attendance deliberate and contumelious,Whether countervailing factors tilting balance in favour of setting aside judgment,Vacation of trial dates,Judgments and orders,Whether special grounds disclosed

25 June 2007

V K Rajah JA (delivering the grounds of decision of the court):

1 This appeal concerned an application by the appellant under O 35 r 2 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) to set aside a judgment entered against her in her absence. The application was dismissed by the trial judge and the grounds of her decision are reported at Wee Yue Chew v Su Sh-Hsyu [2007] 1 SLR 1092 (“the GD”). We allowed the appeal only after admitting fresh evidence and now set out our full grounds of decision.

2 The facts that give rise to the main action are hotly disputed and, on a cursory examination, there can be no doubt that one of the two parties has concocted a patent falsehood. However, since this appeal is not concerned with the merits of the main action, those facts need only be briefly dealt with.

Overview of the factual matrix

3 In or about June 2004, the appellant, through her intermediary, one Hsieh Hsi Mou (“Hsieh”), contracted to purchase the respondent’s shares (“the Shares”) in Interstellar Intereducational Pte Ltd (“the Company”). Pursuant to the agreement, the Shares were transferred on or about 25 June 2004.

4 The present tempestuous wrangling has emerged from a dispute as to whether the appellant has paid the respondent for the Shares. According to Hsieh, he met the respondent in Shanghai in June 2004 to convey the appellant’s acceptance of the purchase. At that meeting, the respondent allegedly handed Hsieh a photocopied banking slip containing the particulars of a specific account with Standard Chartered Bank in Singapore (“the SCB Slip”). The account was in the name of one “Tung Cheng Yu”. The respondent instructed Hsieh that payment for the Shares should be made by telegraphic transfer to the specified account. Hsieh wrote down the respondent’s instructions on the SCB Slip in Chinese and asked the respondent to sign on the SCB Slip to confirm that the instructions had indeed been given by the respondent. According to Hsieh, the respondent then signed on the photocopied document. Hsieh and one Shi Bi Xian (“Shi”), his business associate, also signed on the document as witnesses. In accordance with these instructions, the appellant then effected payment of the purchase price to the specified account on 28 July 2004.

5 The respondent’s version of the facts was diametrically and unequivocally different. He testified that he had never signed the SCB slip and professed not to know “Tung Cheng Yu”. Simply put, the respondent’s position was that he never received the money. He thus commenced the present action to recover the purchase price. The matter was fixed for a two-day trial commencing at 10.00am on 6 July 2006.

The trial

6 On the morning of 6 July 2006, former counsel for the appellant, Mr Foo Say Tun (“Mr Foo”), applied for an adjournment of the trial on the basis that the appellant and her two witnesses, Hsieh and Shi, were unable to be present for the duration of the trial. He produced a letter dated 5 July 2006 (“the Letter of 5 July 2006”) addressed to the Registrar explaining the reasons for the appellant’s and her witnesses’ absence. The appellant explained that both she and Hsieh were unable to attend the trial because they were engaged in last-minute meetings concerning a Shanghai university they were involved with. This was allegedly due to a variety of factors, in particular: (a) a sudden influx of admissions and related inquiries; (b) the number of applications received that year was unprecedented and totally unexpected; and (c) that was typically a busy period in the school calendar. The appellant explained that Shi was also unable to attend the trial because she too was similarly involved in the recruitment drive and thus unable to depart for Singapore.

7 When questioned by the trial judge, Mr Foo disclosed that the appellant had initially inquired about the consequences of not attending trial on 3 July 2006. On 4 July 2006, the queries became more specific and there were further discussions regarding the possibility of vacating the trial date. Only on 5 July 2006 was he was notified that the appellant intended to engage new counsel. He was then instructed to apply for an adjournment.

8 The trial judge was not persuaded by the plausibility of the explanations tendered by the appellant at such a late juncture and rejected her application for an adjournment. The trial thus proceeded in the appellant’s absence. The respondent was called to the stand, but Mr Foo had no instructions to cross-examine him. As the appellant and her witnesses were not present, their affidavits of evidence-in-chief were not admitted in evidence. Thereafter, judgment was entered in favour of the respondent for the sum of $414,200 (“the Judgment of 6 July 2006”).

The setting-aside application

9 On 20 July 2006, pursuant to O 35 r 2 of the Rules of Court, the appellant filed Summons No 3286 of 2006 to set aside the Judgment of 6 July 2006. In her affidavit filed on 1 August 2006, the appellant explained that on or about 1 July 2006, she received an urgent notice and proxy form from Natural Beauty Bio-Technology Limited (“Natural Beauty”) to attend an important meeting from 5 to 8 July 2006 to resolve certain complex matters. She explained that Natural Beauty was unable to find anyone of sufficient seniority who was conversant both in English and its business to attend the meeting. The appellant also clarified that Hsieh and Shi were unable to attend trial because there had been an adverse commentary on 5 July 2006 in the Shanghai Morning News in relation to the Shanghai university they were involved with and Hsieh and Shi had to stay back to personally attend to the resulting contretemps. It should be noted that the reasons tendered by the appellant in her affidavit of 1 August 2006 did not exactly dovetail with the reasons earlier given in the Letter of 5 July 2006.

10 In addition, the appellant mentioned that she had mistakenly assumed that the Singapore legal system was similar to the Taiwan civil law system where an adjournment of trial dates was readily granted. To round up this montage of variegated reasons the appellant claimed that she had also incorrectly believed that, like the civil law system in Taiwan, the affidavits would “speak for themselves” in evidence and that the personal attendance of witnesses at trial was rarely needed.

11 On 28 August 2006, the trial judge dismissed the application on the basis that the appellant’s decision not to attend trial was deliberate and there were insufficient grounds to justify the appellant’s non-attendance. The trial judge held that the appellant’s decision to give preference to attending the meeting on behalf of Natural Beauty over the trial was not a good or acceptable reason for her non-attendance. The present appeal arises from this decision.

Application to adduce fresh evidence

12 Before us, counsel for the appellant first sought to adduce additional evidence in the form of Yang Chiew Yung’s affidavit filed on 8 September 2006 annexing, inter alia, a Health Sciences Authority (“HSA”) report dated 5 September 2006(“the HSA Report”). In essence, the HSA Report concludes that the respondent’s signature on the SCB Slip was genuine. Her counsel vigorously contended that this unequivocal evidence objectively supports the appellant’s version of events in relation to the payment she made for the Shares to the specified account in the name of “Tung Cheng Yu”.

13 Where parties seek to adduce fresh evidence in the Court of Appeal, the starting point for the legal assessment of the merits of the application is s 37(4) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed), which provides:

Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, such further evidence, except as to matters subsequent as specified in subsection (3), shall be admitted on special grounds only, and not without leave of the Court of Appeal. [emphasis added]

14 In a similar vein, O 57 r 13(2) of the Rules of Court echoes:

The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an examiner, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of trial or hearing) shall be admitted except on special grounds. [emphasis added]

15 It has been authoritatively established in Cheong Kim Hock v Lin Securities (Pte) [1992] 2 SLR 349 that the “special grounds” referred to in O 57 r 13(2) of the Rules of Court will only be met if the three conditions stated in Ladd v Marshall [1954] 1 WLR 1489 are cumulatively satisfied, viz,

(a) the evidence could not have been obtained with reasonable diligence for use in the trial;

(b) the evidence must be such that, if given, would probably have an important influence on the result of the case, though it need not be decisive; and

(c) the evidence must be such as is presumably to be believed or apparently credible.

16 There can be no doubt that the second condition has been satisfied in the present application. After all, the only real controversy in these proceedings is whether the appellant had paid the respondent for the Shares he transferred to her. In this regard, the HSA Report would undeniably have a crucial influence on the outcome of the matter in so far as it proves that the respondent had signed the SCB Slip and therefore had already received payment for the Shares. Similarly, the third condition has also been satisfied as the HSA Report was prepared by an independent expert from a certified public authority. Indeed, the respondent had not attacked the authenticity or credibility of the HSA Report.

17 Unfortunately for the appellant, the same cannot be said for the first condition. The appellant had, as early as 27...