Sun Technosystems Pte Ltd v Federal Express Services (M) Sdn Bhd

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 08 November 2006
• Neutral Citation: [2006] SGCA 40
• Docket Number: Civil Appeal No 58 of 2006
• Date: 08 November 2006
• Published date: 17 November 2006
• Year: 2006
• Plaintiff Counsel: Goh Kok Leong, Quah I-Lin Anna and Gho Sze Kee (Ang & Partners)
• Citation: [2006] SGCA 40
• Defendant Counsel: Lok Vi Ming SC, Ajinderpal Singh, Lee Sien Liang Joseph and Seah Wei Hsien Mark Jerome (Rodyk & Davidson)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether sufficient for bailee to prove on balance of probability that reasonable care taken to prevent loss,Duties,Whether doctrine of fundamental breach applicable,Whether bailee entitled to rely on "events beyond our control" clause in contract of carriage between itself and bailor,Bailment,Bailees,Whether bailee required to establish precisely how loss or damage occurring,Duty of bailee in respect of goods that were hijacked

8 November 2006

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

Background

1 This is an appeal from the decision of the High Court in Smart Modular Technologies Sdn Bhd v Federal Express Services (M) Sdn Bhd [2006] 2 SLR 797 (hereafter referred to as “GD”). In the main action, the appellant, Sun Technosystems Pte Ltd (“Sun Tech”), brought an action against the respondent, Federal Express Services (M) Sdn Bhd (“FedEx (M)”), for breach of duty as carrier and/or bailee to recover the costs of the goods that the latter was to deliver to its premises in Singapore. The present appeal centred on the finding of the trial judge (“the Judge”) that there was a hijack and hence that the respondent had discharged its burden of proof as bailee to establish that the loss occurred without its negligence or default. We dismissed the appeal and now give the detailed grounds for our decision.

Factual matrix

2 Sun Tech is a Singapore-incorporated company which manufactures and supplies computer hardware systems. It purchases memory modules from Smart Modular Technologies Sdn Bhd (“Smart”), a Malaysian company, which manufactures them in its factory in Penang. When a shipment is ready, Smart, at the request of Sun Tech, contacts FedEx (M)’s Penang office and requests for transportation of the shipment to Singapore.

3 In July 2000, Sun Tech ordered 1,000 memory chips from Smart. The cost of the goods was $860,000. They were ready for shipment on 28 August 2000. On that morning, Smart contacted FedEx (M) to ask for the goods to be delivered to Sun Tech. At 11.30am, FedEx (M)’s courier from its Penang office, Mr Turairaj (“Turairaj”), arrived at Smart’s premises to pick the goods up for delivery. He issued an airway bill to Smart’s employees upon collecting the goods. It is not disputed that this airway bill constituted the contract of carriage between FedEx (M) and Sun Tech as the owner of the goods (it was acknowledged that Smart was the agent for Sun Tech in this regard). On the back of the airway bill was a clause excluding liability for loss occasioned by events beyond the control of FedEx (M) (“events beyond our control” clause) as well as a limitation clause which applied in specific circumstances.

4 Upon receiving the goods, Turairaj transported the goods in a FedEx (M) vehicle, headed for the shuttle exchange point (“shuttle point”), from where they would be taken to the air cargo terminal for storage before being delivered to Singapore. Along the way, he stopped at the premises of Acer Technologies Sdn Bhd (“Acer premises”) to make a final delivery. According to Turairaj – and this is disputed by the appellant – when he was en route to the shuttle point from the Acer premises, he was forced by four men in a car (a Proton) to stop his van along Jalan Jelawat, Seberang Jaya. Turairaj was hit on the head with a metal rod and lost consciousness. Turairaj said that when he regained consciousness, he discovered that the goods were missing from the vehicle and proceeded to make a police report at a nearby police station.

5 Turairaj was warded for severe head injuries and given 14 days of medical leave. Subsequently, the Malaysian police detained Turairaj and seven others for a period of 28 days to assist in their investigations into the hijack. Turairaj was not charged with any involvement in the incident. In fact, Turairaj continued to work in FedEx (M)’s Penang office until recently, when he was suspended from duty in connection with an unrelated matter.

Issues that arose on appeal

6 There were only two legal issues raised by the appellant in the present appeal, as follows:

(a) Whether the evidence regarding the place of the alleged hijack supports the trial judge’s finding that there was indeed a hijack. (This was the only point addressed at the appeal, although the skeletal arguments referred to both the time and place of the incident.)

(b) Whether the respondent had discharged its burden of proof as bailee in relation to the loss of goods, and was therefore entitled to rely on the “events beyond our control” clause in the airway bill.

Whether a hijack took place

The parties’ arguments

7 The crux of the appellant’s case in the present proceedings comprised a single argument: that the hijack never took place in the first instance. In particular, counsel for the appellant, Mr Goh Kok Leong, argued that based on the evidence of Turairaj, the hijack, which was alleged to have taken place 400m from the Acer premises, could not have taken place as Turairaj had testified that he had been driving for more than five minutes. Mr Goh argued that if this were true, Turairaj ought to have travelled slightly over four kilometres from the Acer premises, which was more than ten times the distance that was alleged to have been traversed.

8 Counsel for the respondent, Mr Lok Vi Ming, argued, on the other hand, that the argument that a hijack had never taken place could not possibly arise. He pointed, inter alia, to the injuries suffered by Turairaj as well as to the thorough investigation conducted by the Malaysian police (when Turairaj, together with seven other suspects, had (it will be recalled) been detained for 28 days). Mr Lok also pointed out that at no point had the investigation been impugned by the appellant.

Our decision

9 We agree with Mr Lok. In the first instance, although the point canvassed by Mr Goh (at [7] above) was in fact part of the appellant’s closing submissions in the court below, it was not intended to prove (as it was not part of the appellant’s case) that the hijack never took place but, rather, that it was part of the appellant’s attempt to impugn the credibility of Turairaj’s testimony in relation to the alleged complicity of Turairaj in the hijack. As we shall see (at [11] below), the Judge accepted the credibility of Turairaj’s testimony.

10 Further, it was clear to us that the Judge had, in any event, considered all the relevant evidence (including that canvassed in the present appeal). The Judge did in fact address the issues of both the place as well as time of the hijack. This is evident from the following portion of the GD (at [60] and [61]):

60 First, in relation to the place of the hijack, Mr Turairaj had stated that after picking up the goods from Smart, he had gone to Acer’s premises. From there, he proceeded towards the shuttle point and en route, at about 12.25pm when he was driving along Jalan Jelawat, his van was hijacked. According to Mr Turairaj, it would normally have taken him ten to 15 minutes to get from Acer’s premises to the shuttle point. After the incident, however, Kevin Teoh had visited the place of the attack and had given evidence in Suit 260/2002 that it took about 20 or 25 minutes to drive from the place of the incident to the shuttle point. Sun Tech submitted that there was an obvious inconsistency between the evidence of Mr Turairaj and that of Kevin Teoh. Further, Mr Turairaj had also testified that the distance between Acer and the shuttle point was about 12 or 13 kilometres whilst Kevin Teoh considered it to be a distance of 16 kilometres. This disagreement, Sun Tech said, showed the lack of credibility of Mr Turairaj as a witness.

61 As for the time of the hijack, Sun Tech undertook an elaborate analysis of Mr Turairaj’s evidence to show that he could not have been at the place of the attack at 12.25pm (the time he said the attack had taken place). It argued that based on his own evidence as to his movements and the time it took to get from one point to another, at 12.25pm, Mr Turairaj should still have been at Acer’s premises and not at Jalan Jelawat. Alternatively, Sun Tech submitted, Mr Turairaj could actually have reached Jalan Jelawat well before 12.25pm, in fact, at about noon and only remained there till 12.25pm because he was waiting for the “hijackers”. Sun Tech pointed out that when, in cross-examination, it had taken Mr Ng through the various stages of Mr Turairaj’s journey on the fateful day, Mr Ng agreed that by the time Mr Turairaj left Acer, it would have been between 12.15pm and 12.30pm. Since the cut-off time for arriving at the shuttle point was 1.00pm and the time required to get there was between ten and 15 minutes, then Mr Turairaj was not telling the truth when he said he needed to rush out of Acer as he was late for the rendezvous. Mr Ng had conceded that Mr Turairaj had enough time to enable him to reach the shuttle point at 1.00pm. As such, Sun Tech submitted the irresistible inference was that Mr Turairaj was not telling the truth when he said that he had rushed out of the Acer factory in order to get to the shuttle point. Actually, it argued, he had to rush out of the Acer factory earlier to ensure that he reached the place of attack on time to meet his accomplices and thereafter carry out the alleged robbery.

11 Most importantly, this was the Judge’s finding (including the finding with respect to the credibility of Turairaj’s testimony) (see GD at [82]):

82 I accept the submissions that FedEx M made as to the speculative nature of Sun Tech’s submissions in relation to the alleged involvement of Mr Turairaj in the incident. Mr Turairaj underwent extensive investigation at the hands of the police. No charges were preferred against him. He continued to work with FedEx M without any difficulty until it was discovered that he had previously been suspected of robbery. In that case too no charges were preferred against him. Mr Turairaj has not ever been charged with any theft let alone convicted of such an offence. There were discrepancies in his evidence but I am satisfied that these were minor and did not undermine the basic truth of his story. At times Sun Tech went overboard in its submissions, for example, when it accused Mr Turairaj of living with his mistress and hatching a plot to solve his financial difficulties when such matters were never put to Mr Turairaj and Mr Ng’s investigations showed...