Tahir v Tay Kar Oon

JurisdictionSingapore
JudgeEdmund Leow JC
Judgment Date12 April 2016
Neutral Citation[2016] SGHC 60
Plaintiff CounselDaniel Chia, Loh Jien Li and Kenneth Kong (Morgan Lewis Stamford LLC)
Docket NumberSuit No 922 of 2015 (Summons No 6252 of 2015)
Date12 April 2016
Hearing Date15 January 2016,01 March 2016,26 February 2016,11 February 2016
Subject MatterCivil contempt,Principles,Sentencing,Contempt of Court
Published date16 May 2017
Citation[2016] SGHC 60
Defendant CounselLetchamanan Devadason, Mahtani Bhagwandas and Hariz Lee (Legal Standard LLP)
CourtHigh Court (Singapore)
Year2016
Edmund Leow JC: Introduction

The Plaintiff, Tahir, applied for an order of committal against the Defendant, Tay Kar Oon. This application arose from the Defendant’s breaches of court orders for examination of judgment debtor, which were obtained as part of the process of enforcement of a judgment sum owed by the Defendant to the Plaintiff. Further breaches of a Mareva injunction, hitherto unknown to the Plaintiff, were disclosed in the course of proceedings before me.

I granted the order of committal and sentenced the Defendant to eight weeks’ imprisonment, and now give the reasons for my decision.

Factual and procedural background Settlement agreement

In 2014, the Plaintiff paid the Defendant, an art dealer who was the sole proprietor of Jasmine Fine Art, a total of USD $1,638,100.00 to purchase a sculpture known as “Couple Dancing” by the sculptor Fernando Botero (“the Sculpture”). The deal did not materialise as the Defendant failed to procure the Sculpture, and the Plaintiff commenced an action against the Defendant for the recovery of the sums paid. Parties then entered into a settlement agreement in July 2015 (“Settlement Agreement”) where the Defendant agreed to pay the sums due under the Settlement Agreement.

However, the Defendant subsequently failed to pay the sums due in breach of the Settlement Agreement. The Plaintiff then commenced another action in Suit No 922 of 2015 for the breach, but the Defendant failed to enter an appearance and so the Plaintiff obtained judgment against the Defendant in default. The High Court ordered that the Defendant pay the Plaintiff a judgment sum. Enforcement of the judgment sum proved to be difficult as the Defendant failed to pay up.

Breaches leading up to the commencement of committal proceedings

On 9 October 2015, the Plaintiff obtained an order from the High Court for the examination of judgment debtor under Summons No 4946 of 2015 (“the EJD Order”). The Defendant was ordered to attend before the Registrar on 23 October 2015 to be orally examined as to questions listed in a questionnaire (“the EJD Questionnaire”), as well as to produce relevant books or documents.

In what I will term the first breach, the Defendant failed to attend court on 23 October 2015 pursuant to the EJD Order and also failed to provide answers to the EJD Questionnaire. Though she was legally represented, her lawyers were also absent.

The Assistant Registrar hearing the case on 23 October 2015 directed that the Defendant was to comply with the EJD Order and provide answers to the EJD Questionnaire by 6 November 2015 as well as to attend court on 13 November 2015 (“23 October 2015 Directions”).

On 27 October 2015, the Plaintiff obtained an order from the High Court, under Summons No 4591 of 2015. There, the court ordered a freezing injunction on the Defendant’s assets in Singapore up to the total value of the judgment sum (“the Mareva Injunction”), and directed the Defendant to file an affidavit by 5 November 2015 disclosing all her assets in Singapore whether jointly or solely owned (“the Disclosure Order”).

In a second breach, the Defendant failed to file the affidavit by 5 November 2015 as directed by the Disclosure Order.

In a third breach, the Defendant failed to provide answers to the EJD Questionnaire by 6 November 2015 as directed by the Assistant Registrar on 23 October 2015.

In a fourth breach, the Defendant failed to turn up for the adjourned hearing on 13 November 2015. Her lawyers were again absent.

I note that all the Defendant’s court absences were unaccounted for; the Defendant failed to instruct her lawyers to seek adjournments. There was no dispute that the Defendant was made aware of all the court orders and directions issued in this regard by her lawyers.

On 13 November 2015, in a drastic turn of events, the Plaintiff discovered that the Defendant had been adjudicated a bankrupt on 11 November 2015. It was evident that apart from the Plaintiff, other creditors had also been pursuing the Defendant.

The application for leave to commence committal proceedings

This development prompted the Plaintiff to apply for leave to commence committal proceedings against the Defendant in Summons No 5872 of 2015 (“SUM 5872/2015”) on 3 December 2015. A supporting affidavit by the Plaintiff and a statement pursuant to O 52 r 2(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) were also filed at the same time. The Official Assignee was informed and did not object to the Plaintiff’s application.

The parties appeared before Chua Lee Ming JC on 17 December 2015. At the conclusion of the hearing, having noted the circumstances of the case, he allowed the Plaintiff’s application for leave to commence committal proceedings against the Defendant by way of SUM 5872/2015, for the breaches of the following Orders of Court and Court Directions: Order of Court dated 9 October 2015 under Summons 4946/2015; Court Directions under Summons 4946/2015 given on 23 October 2015; and Order of Court dated 27 October 2015 under Summons 4591/2015.

Chua JC also ordered the Plaintiff to amend certain paragraphs of the statement tendered pursuant to O 52 r 2(2) of the ROC.

First hearing – the order of committal

Upon the court granting leave to the Plaintiff to commence committal proceedings, the Plaintiff filed Summons No 6252 of 2015 (“SUM 6252/2015”), for the Defendant to be sanctioned with a fine and/or committed to prison for contempt of court.

The parties appeared before me on 15 January 2016 for the hearing of SUM 6252/2015. The Defendant finally turned up in court, and admitted liability for her acts of contempt on the stand during cross-examination by the Plaintiff’s Counsel.

The principles regarding an action for civil contempt are well established. The standard of proof is the criminal standard of proof beyond a reasonable doubt, but the threshold for establishing the guilty intention necessary for a finding of civil contempt is a low one – it only has to be shown that the contemnor intended the acts that were in breach of the court order. The reasons for the disobedience are irrelevant in establishing liability.

I was satisfied beyond a reasonable doubt that she was guilty of contempt on all the breaches of orders and court directions for which leave was granted. The Defendant was clearly aware of the orders and directions, and had intentionally breached them by not turning up for court hearings and not filing the affidavits required of her within the time specified. She could only feebly answer that she had overlooked it or was not in the mood to read anything. I thus found her guilty of contempt of court.

The Defendant’s Counsel sought an adjournment so that the Defendant could file the asset disclosure affidavit and completed EJD Questionnaire, and attempt to purge her contempt as mitigation. The Defendant’s Counsel also claimed that the Defendant had mental issues and needed medical attention. The Defendant’s description of her situation also left me with the impression that she had mental issues and needed to seek medical help. Given that the Defendant may not have fully understood the implications of the case against her, I granted an adjournment of two weeks for the Defendant to comply with the orders and purge her contempt, as well as for both parties to make sentencing submissions.

I also noted that while there was a money dispute in the background and the Defendant was an impecunious debtor in the sense that she was a bankrupt, this was not a case where the committal proceedings were taken out for a default in the payment of a monetary judgment.

Second hearing – failure to purge the contempt

By the second hearing before me on 11 February 2016, the Defendant had sent the Plaintiff the asset disclosure affidavit and the completed EJD Questionnaire. However, several parts of the questionnaire were incomplete. The Defendant gave no plausible explanation for not completing the questionnaire, and on cross-examination by the Plaintiff’s Counsel it appeared that she was not truthful even in the answers that she had provided. Her flimsy responses gave me the impression that she had only seen the Questionnaire for the first time at the hearing.

It was ludicrous that she answered no in court to the question of whether she had any creditors, when she was a bankrupt. The Defendant’s responses were nonsensical in relation to what she had done with the sums that the Plaintiff was trying to recover from her. The Defendant effectively cherry-picked the questions that she wished to answer. In relation to her absence at the EJD hearings, the Defendant was unable to proffer any satisfactory explanation. It was clear that her lawyers had informed her of these hearings, but she appeared to wilfully turn a blind eye to them with the feeble excuse that she was not in the mood to respond. I noted that she did not seek medical attention for whatever mental issues that she claimed to be having at the last hearing. She claimed that she did not want to take medication and described her condition merely as not feeling like talking, and freely admitted in court that she made an appointment to see a doctor but did not go. I inferred that the claim at the last hearing, that she had mental issues, was plainly frivolous and not backed up by any evidence. It was an excuse contrived to delay the matter.

The Defendant also produced the statements from two OCBC bank accounts of Jasmine Fine Art, her sole proprietorship, generally spanning the period between January 2014 and December 2015. Curiously, she left out several statements of OCBC Account No [XXX] for the months of May 2015 to November 2015, for reasons that would become apparent only later in the proceedings. The Defendant also produced the UOB bank account statements of Jasmine Fine Art but in a piecemeal fashion covering select months from March 2015 to...

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3 cases
  • PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 30 January 2018
    ...Ltd v Aurol Anthony Sabastian [2013] 1 SLR 245 (refd) STX Corp v Jason Surjana Tanuwidjaja [2014] 2 SLR 1261 (refd) Tahir v Tay Kar Oon [2016] 3 SLR 296 (refd) Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR 870 (refd) Tan Khee Eng John, Re [1997] 1 SLR(R) 870; [1997] 3 SLR 382 (refd) Tay Kar Oo......
  • PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd and others
    • Singapore
    • High Court (Singapore)
    • 30 January 2018
    ...disobedience of an EJD order by failing to attend an EJD hearing amounts to a contempt of court. For example, in Tahir v Tay Kar Oon [2016] 3 SLR 296 (“Tay Kar Oon (HC)”), the defendant breached an EJD order by failing to attend court. Although she was legally represented, her lawyers were ......
  • Tay Kar Oon v Tahir
    • Singapore
    • Court of Appeal (Singapore)
    • 26 April 2017
    ...Civil Appeal No 66 of 2016 was an appeal against the decision of the Judicial Commissioner (“the Judge”) in Tahir v Tay Kar Oon [2016] 3 SLR 296 where he committed the female Appellant, Tay Kar Oon (or Jasmine Tay), to eight weeks’ imprisonment for contempt of court. The Appellant appealed ......

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