Sutjiawang Johanis alias Tjia Eng Liong v Tjia Eng Soei

• Jurisdiction: Singapore
• Judge: MPH Rubin J
• Judgment Date: 30 April 2002
• Neutral Citation: [2002] SGHC 94
• Court: High Court (Singapore)
• Published date: 20 March 2013
• Year: 2002
• Plaintiff Counsel: Lee Mun Hooi and Ng Chon Hsing (Lee Mun Hooi & Co)
• Defendant Counsel: Francis Xavier and Jessie Tan (Rajah & Tann)
• Citation: [2002] SGHC 94

Judgment

GROUNDS OF DECISION

Overview and pleadings

1 The plaintiff and the defendant are brothers. Both of them are now in their seventies, the defendant being the younger of the two. Both of them are, as their names would suggest, Indonesians of Chinese extraction and come from a trading family. The defendant migrated to Singapore in the early seventies. He now lives in Singapore with his wife and many children. He has been a big player in the Singapore stock market, at least until 1998. The plaintiff is still based in Indonesia although he is a frequent visitor to Singapore.

2 The action before me involves a claim of over 20 million Singapore dollars. The plaintiff says that the defendant owes this amount on account of monies lent by him to the defendant and monies due to him in respect of a huge number of public listed shares bought on his behalf as well as foreign currency transactions carried out in his name by the defendant, all from monies belonging to the plaintiff. The plaintiff’s pleaded claim comprises: (a) a sum of S$1,317,158.22 being the outstanding balance of monies lent or advanced by him to the defendant; (b) a sum of S$13,738,138.69 being the value of several blocks of listed shares that belonged to the plaintiff; (c) a sum of S$4,069,000 being the proceeds of the sale of 2,145,100 listed Apollo shares sold by the defendant to which the plaintiff was beneficially entitled; and (d) for a further sum, this time, of US$750,000 due from the defendant arising from foreign currency sale and purchase carried out by the defendant in the plaintiff’s name. It must be remarked at this stage that the plaintiff almost entirely relies on the record books and entries kept by the defendant to support his claims. I will touch on this later when I deal with the evidence presented by the parties at the trial.

3 The defendant in his defence denies the entire claim of his older brother. He says that although he had bought and sold shares in the name of the plaintiff, they were not for the benefit of the plaintiff. He says that although the plaintiff did from time to time remit various sums of money to him, those remittances were in fact the fruits of the defendant’s investment in an Indonesian Bank known as P.T. Bank Pelita (‘Bank Pelita’) for which purpose the defendant forwarded a sum of Hong Kong $100,000 to the plaintiff sometime in or about 1964. The defendant claims that the said investment was by agreement between themselves, held in the name of the plaintiff and the latter held the stake and the fruits of the investment in trust for the defendant. He denies that he owes any monies to the plaintiff and counterclaims against the plaintiff for an account in respect of the defendant’s alleged investment and other consequential declarations and relief.

4 In the reply filed by the plaintiff, he avers that the sum of HK$100,000 forwarded to him by the defendant was in fact a gift from his mother and was not meant for any investment as claimed by the defendant.

5 The plaintiff’s evidence insofar as is material is as follows. He is a permanent resident of Singapore. He has three brothers and four sisters. Among the sons, he is the oldest, followed by the defendant, and two others, namely, Tjia Siong Kok alias Tjia Eng Tek (‘Eng Tek’) and Ade Sutjiawa alias Tjia Tian Su (‘Tian Su’). The family was living in a small town known as Tagulandang in Sulawesi, Indonesia where his father had a small business dealing in copra and nutmegs. When he was about 17, his father passed away and as a result he was forced to stop his education and assist his mother in the family business. At that point in time, the defendant was still in primary school in Indonesia.

6 After the defendant had completed his primary education, he also started assisting in the family business. The business was generally controlled by their mother. The other brothers also assisted in the family business after they had completed their secondary education. The family business expanded from their hometown to other towns in Sulawesi. The defendant too helped out in the family business and occasionally travelled to Surabaya to look for business opportunities.

7 Sometime in 1957, the plaintiff left his hometown to strike out on his own. In the event, he set up his own trading business primarily in the import and export of canned food, milk products and liquor (particularly specialising in Johnny Walker whiskey). He became very successful and at one stage and had a virtual monopoly of the Johnny Walker whiskey trade in Jakarta. After he left his home town, he no longer participated in nor did he continue to have any share in the family business. Equally, the businesses which he had started and was operating away from home, were entirely his own, without any family participation in them.

8 He said that there had never been any family arrangement, as is being alleged by the defendant, whereby the defendant would from time to time remit monies to members of the family for the purposes of investing those sums and holding them in trust for him. As regards the defendant’s claim concerning the HK$100,000, the plaintiff said that this sum was a gift to him from his mother and was never intended for any investment on behalf of the defendant.

9 The plaintiff kept in constant contact with the defendant who was residing in Singapore. Amongst all the siblings, the plaintiff was close to the defendant and had a healthy respect for the defendant’s business acumen. From about 1977, as the plaintiff’s business was thriving, upon the encouragement of the defendant, he started remitting monies to Singapore for the purposes of investing in the stock market. All the share transactions effected on his behalf by the defendant, as well as monies received and paid out, either on behalf of the plaintiff or members of his family, were duly recorded in account books kept and maintained by the defendant’s wife, The Ge Nio. These book entries were regularly shown to the plaintiff whenever he happened to be visiting and staying at the residence of the defendant at 255 Jervois Road, Singapore. The plaintiff’s youngest son, Dermawan Sutjiawang (‘Dermawan’) too visited Singapore many times to verify the accounts maintained by the defendant’s wife and was allowed access to them without any protests either from the defendant or his wife. As time went by, his investments became substantial. Since the plaintiff was not a frequent traveller those days, he even gave a power of attorney to the defendant sometime in October 1980, empowering the defendant to act on his behalf in all matters including the buying and selling of shares. He even authorised the defendant to be a signatory to his bank account (No. 23-30-954) with the ABN-AMRO Bank.

10 The defendant also on several occasions borrowed substantial sums of monies from the plaintiff for himself as well as for the defendant’s eldest son Tjia Beng Thong whom the defendant said had financial problems and needed help. Particulars of the outstanding loans, according to him had been detailed in para 3 of the statement of claim. The amount outstanding under this head is S$1,317,158.22.

11 As respects the shares purchased on the plaintiff’s behalf, the plaintiff realised to his dismay that on or about 4 September 1998, all his shares, save for two counters had been sold and disposed of without his authority. He estimates their value to be in the region of S$13,000,000 or thereabouts. In para 5 of the statement of claim the amount is quantified as S$13,738,138.69.

12 The plaintiff asserted that the defendant is to pay him a further sum of S$4,069,000 as being the amount drawn out by the defendant from the plaintiff’s ABN-AMRO bank account, where the sale proceeds of a block of 2,145,100 Apollo shares were earlier credited. The plaintiff claimed that he is the rightful owner of the said Apollo shares.

13 The plaintiff added that the defendant is also indebted to him in the sum of US$750,000. This is the nett balance from a sum of US$1,000,000 taken from his account by the defendant for trading in US Dollar currency, as could be seen from the books maintained for the plaintiff’s benefit by the defendant’s wife. In respect of all these accounting matters, the plaintiff places reliance on the books kept by the defendant’s wife. He produced a number of account books which were in the handwriting of the defendant’s wife as well as members of the defendant’s immediate family.

14 The plaintiff’s youngest son Dermawan, in his evidence confirmed that he had on several occasions gone over to the defendant’s residence to inspect the accounting records kept by his aunt, the defendant’s wife, in relation to his father’s shareholdings. He said that those records were readily made available to him by his aunt and at no stage was there any statement or indication either from the defendant or his wife that the shareholding or payments recorded in the books belonged to the defendant or that the shares recorded in those books were held in trust for the defendant.

15 Dermawan invited the attention of the court to a number of entries in the books kept by the defendant’s wife, particularly in relation to: (1) periodical Central Provident Fund payments for Dermawan’s maid’s levy; (2) periodical payments for premiums in respect of insurance policies taken out for himself, his daughter, his sisters, his brother Tony and his father; (3) periodical payments of maintenance fees payable to the management corporation in respect of an apartment at #02-02 Killiney Apartment which belonged to his side of the family; (4) periodical payments of property tax for the said Killiney Apartment; (5) various payments for his father’s personal use and expenses; and (6) other payments made for and on behalf of his father. He also highlighted an incident when the defendant’s wife corrected the book entries when Dermawan pointed out to her certain substantial errors in relation...