Sonica Industries Ltd v Fu Yu Manufacturing Ltd

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 30 August 1999
• Neutral Citation: [1999] SGCA 63
• Docket Number: Civil Appeal No 110 of 1999
• Date: 30 August 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Jimmy Yim SC and Arul Rammiah (Drew and Napier)
• Citation: [1999] SGCA 63
• Defendant Counsel: Tan Kok Quan SC and Kannan Ramesh (Lee & Lee)
• Court: Court of Appeal (Singapore)
• Subject Matter: Attendance,Witnesses,Evidence,Giving evidence via video or television link facilities,ss 62A(1), 62A(2) & 62A(5) Evidence Act (Cap 97),Whether leave should be granted to allow overseas witnesses to give evidence using video or television link facilities in Technology Court

(delivering the grounds of judgment of the court): This was an appeal against the decision of the High Court, in which the trial judge disallowed the plaintiffs` application for leave to allow two of their witnesses, Mr Koji Kawamura and Mr Paul Lee, to give evidence at the trial through the use of live video or television link facilities in the Technology Court. We allowed the appeal in relation to the evidence to be given by Mr Kawamura but not in relation to that to be given by Mr Paul Lee. We now give our reasons.

The facts

The main action relates to the plaintiffs` claim against the defendants for damages for breach of contract. The cause papers were not before us. It appeared that the plaintiffs claimed that by a contract made between the plaintiffs and the defendants, the latter agreed to supply and deliver 87,500 units of Sonica Image Vision 1785 OSD monitors (`the monitors`) and that the monitors were intended for resale and delivery by the plaintiffs to their customer in the United States of America, namely, Kanematsu USA Inc (`Kanematsu`). It was alleged that there was a breach of the contract by the defendants in that they failed to meet their delivery obligations to the plaintiffs which then led to Kanematsu cancelling their orders placed with the plaintiffs. The plaintiffs alleged that as a result they suffered loss of profits on the Kanematsu contract. In addition, Kanematsu, in a faxed letter to the plaintiffs dated 15 January 1999, threatened to claim against the plaintiffs the loss and damage it had suffered and the plaintiffs sought an indemnity from the defendants in this respect.

Prior to the event that gave rise to this appeal, the parties, on 28 May 1999, appeared before the assistant registrar on an application by the plaintiffs for an extension of time for filing the affidavit of evidence-in-chief of Mr Kawamura. At the hearing the learned assistant registrar made an order dispensing with Mr Kawamura`s affidavit of evidence-in-chief, and granted leave to Mr Kawamura to give oral evidence at the trial of the action. The learned assistant registrar also ordered the plaintiffs` solicitors to file and serve a detailed statement of the evidence to be given by Mr Kawamura by 11 June 1999, failing which the order would be struck out. This was duly complied with by the plaintiffs` solicitors.

The trial of the main action began on 12 July 1999. However, Mr Kawamura was not present in Singapore to give oral evidence. Instead, at the trial the plaintiffs made an application for leave to allow Mr Kawamura to give evidence through the use of live video or television link at the Technology Court. The plaintiffs also applied for the evidence of another witness, Mr Paul Lee, to be similarly given. The grounds of the applications were that these two witnesses were outside of Singapore and were unable to come to Singapore to give oral evidence at the trial of the action.

We deal first with the application with respect to Mr Kawamura`s evidence. Mr Kawamura was, at all material times, the manager of Kanematsu`s computers and communications division. Since business dealings between Kanematsu and the plaintiffs began in 1994, Mr Kawamura had always been the main person who dealt with the plaintiffs on behalf of Kanematsu. According to the plaintiffs, Mr Kawamura was acquainted with the contract said to have been made between the plaintiffs and Kanematsu, and was willing to give evidence in relation to it. His evidence on this aspect was relevant in ascertaining the measure of damages, should the plaintiffs succeed in their claim against the defendants on liability.

In addition, the plaintiffs alleged that Mr Kawamura`s evidence would establish another point. They said that two key officers of the defendants, Mr Stephen Ho and Mr Ivan Tan, went to Sunnyvale, California, to meet with Mr Kawamura and at the meeting they threatened Mr Kawamura about giving evidence for the plaintiffs in this suit. According to the plaintiffs, these improper threats were made in the presence of Mr Paul Lee, whose evidence was also sought to be given through live video or television link. Mr Paul Lee`s evidence pertained only to the credibility of Mr Kawamura and the defendants` witnesses in relation to the alleged threat to Mr Kawamura.

Decision below

The trial judge refused the plaintiffs` application for leave to allow Mr Kawamura and Mr Paul Lee to give evidence via live video or television link. The plaintiffs immediately appealed against his decision. The appeal was expedited under O 57 r 20 of Rules of Court and was heard before us.

The appeal

The general principle is that the evidence of a witness is to be given orally and in person in open court. This principle, subject to a number of exceptions, is found in O 38 r 1 of the Rules of Court which provides:

Subject to these Rules and the Evidence Act (Chapter 97), and any other written law relating to evidence, any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by examination of the witnesses in open court.

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