Tan Boon Hai v Tan Swee Swan (a patient) defending by his guardian ad litem Tan Hee Liang and Tan Hee Joek

• Jurisdiction: Singapore
• Judge: Earnest Lau Chee Chong
• Judgment Date: 03 October 2006
• Neutral Citation: [2006] SGDC 220
• Citation: [2006] SGDC 220
• Court: District Court (Singapore)
• Plaintiff Counsel: Chelva Rajah SC with Rey Foo (K S Chia Gurdeep & Param)
• Defendant Counsel: Michael Hwang SC with Ms Chua & Mr Ang (Wong & Leow LLC)
• Published date: 01 November 2006

3 October 2006

Earnest Lau, DJ:

Background to this application

1. This action originated in the High Court as Suit No. 161 of 2005. After the writ was served, the defendant filed a stay application which was eventually dismissed by the Learned Assistant Registrar Ms Lee Kee Yeng on 15 June 2005. On 28 June 2005, the defendant filed a Notice of Appeal to the High Court (vide Registrar’s Appeal No. 164 of 2005) against Learned Assistant Registrar’s decision. Before the appeal was heard, the High Court on 23 September 2005 appointed Tan Hee Liang and Tan Hee Joek to represent the defendant in this action (in view of his unfortunate illness) as guardians at litem.

2. On 23 January 2006, this appeal went before His Honour Justice Tan Lee Meng. He recorded a consent order to transfer this action to the Subordinate Courts. The action was re-numbered as DC Suit No. 677 of 2006, and Registrar’s Appeal No. 164 of 2005 was correspondingly transferred to the District Court for hearing before a district judge in chambers.

3. On 2 August 2006, Registrar’s Appeal No. 164 of 2005 came before me. Both parties agreed I possessed the necessary jurisdiction to determine this appeal.

4. After hearing arguments, I upheld the ruling of the Learned Assistant Registrar and dismissed the application. Thereafter, the defendant applied for leave to appeal to the High Court pursuant to Order 55C Rule 2(1)(a) of the Rules of Court (vide Summons No. 11562 of 2006). On 23 August 2006, I granted leave to appeal, and now give my grounds of decision.

The law: Stay of proceedings for forum non conveniens

5. The law governing stay applications for forum non conveniens can be found in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (applied locally in Brinkerhoff Maritime Drilling Corp & Anor v PT Airfast Services Indonesia [1992] 2 SLR 776). Briefly, a stay is only granted if the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action. The defendant has the burden of proof. If there exists another available forum which is prima facie appropriate for the trial of the action, the burden then shifts to the plaintiff to show why justice requires the trial to nevertheless take place in this country.

6. Recently, our High Court emphasised the focus of the inquiry is on forum appropriateness, not practical convenience for the parties: see Q & M Enterprises Sdn Bhd v Poh Kiat [2005] 4 SLR 494and Peters Roger May v Pinder Lillian Gek Lian [2006] 2 SLR 381. To answer the question of appropriateness, one examines all relevant factors connecting the action to the forum i.e. the real and connecting factors. These factors must relate to the likely issues surfacing in the action. The cases below illustrate the prevailing judicial approach.

(a) I begin with The Hooghly Mills Co Ltd v Seltron Pte Ltd [1995] 1 SLR 773, a decision by Her Honour Justice Judith Prakash. First, she identified the respective causes of action and remedies pleaded by the parties. Next, she listed the likely triable issues which may be engendered by those legal causes, and also the evidence essential to prove those issues. From there, she assessed for connectedness with forum the usual factors such as the location of witnesses and documents pertaining to the essential evidence.

17 It appeared to me that the evidence relating to the action would be located in India, in Singapore and in Russia. As far as the plaintiffs were concerned, in relation to their action on the bill of exchange, little or no evidence would have to be produced apart from the original accepted bill and notice of protest. The defendants did not deny accepting the bill, neither had they denied dishonouring it. In those circumstances, the onus would be on them to show why the plaintiffs should not get judgment. The defendants in order to discharge that onus would rely on the evidence of their director, a Singapore resident, as to telephone conversations which he had had with the plaintiffs’ representative before he accepted the bill. They would also need the evidence of their surveyor from Russia to prove the condition of the goods on their arrival in Odessa. In relation to the defendants’ counterclaim, the evidence again would be of the Singaporean director and the Russian surveyor. The defendants might also wish to adduce the evidence of their Russian sub-purchaser to support their claim for loss of profit and an indemnity. On the other hand, the plaintiffs in order to defend the counterclaim, would have to adduce the evidence of their Indian employees/ surveyors engaged in the production and checking of the goods prior to shipment. Finally, documentary evidence as to the loss suffered by the defendants as a result of any breach on the part of the plaintiffs would be located in Singapore.

18 My conclusion was that this too was a neutral factor. The Russian evidence was irrelevant for the purpose of deciding the forum since the Russian witnesses would have to travel whatever the result of this application. There was no preponderance of evidence located either in Singapore or in India. Counsel for the defendants tried to persuade me that there was more evidence in India than in Singapore but I could not accept that. The only relevant evidence in India would be as to the specifications of the goods that were shipped and their condition on shipment. This evidence would come from the plaintiffs themselves and not from third parties. Further, it was in fact more important for the plaintiffs than for the defendants to adduce this evidence and if there was any difficulty in procuring it such difficulty would result in prejudice to the plaintiffs rather than to the defendants. I could not see any evidence in India which the defendants themselves would wish to adduce. Their case, both in relation to the defence and to the counterclaim, depended on evidence located in Russia and Singapore. If specific Indian evidence on which they wished to rely existed, it was up to the defendants to disclose it since they were the party propounding this as a factor pointing to India as the appropriate forum. They did not do so preferring to rest on the plain statement ‘the said transaction took place in India’. That fact, in my view, was not sufficient to discharge the onus of proof on the defendants since it was only a partial truth, the transaction relating to the acceptance contract having taken place in Singapore and the defendants’ main witness on whose evidence they would rely to establish essential details about both contracts being here in Singapore.

(b) The Hooghly Mills case was followed in Yeoh Poh San & Another v Won Siok Wan [2002] SGHC 196 where Her Honour Justice Belinda Ang remarked that connecting factors must bear reference to the likely issues in dispute.

18. I was not satisfied that the parties’ own connecting factors with Malaysia were of sufficient weight to enable me to disregard the factors that so clearly point to Singapore as the appropriate forum. There is undoubtedly a tenable Malaysian flavour as far as the parties’ own connection with Malaysia is concerned. But more importantly, the subject matter of the dispute itself has no connection with Malaysia. It must be remembered that the court is required to consider what forum the issues have the closest connection with and will not simply weigh factors without reference to the likely issues. See The Hooghly Mills Co Ltd v Seltron Pte Ltd [1995] 1 SLR 773.

(c) Other High Court cases have also emphasised that only connecting factors material to the claim should be considered. Mere literal or factual geographical connectors are inconclusive: see the Court of Appeal decision in The "Rainbow Joy" [2005] 3 SLR 719:

52 In the circumstances of this case, it was quite clear to us that the judge was correct in holding that the Philippines would be the more appropriate forum to determine the claim. Nothing material in the case linked it to Singapore. The only link the appellant had with Singapore was the fact that he joined the vessel in Singapore and that he returned to the Philippines via Singapore. However, these circumstances were wholly irrelevant to the claim. Neither was the fact that the writ was served on the vessel in Singapore of any real relevance. Moreover, no security was obtained in Singapore. What is more material are these. First, the entire crew of the vessel, including the appellant, are Filipino and presumably reside in that country. Second, the medical witnesses will also be from the Philippines, other than the ophthalmologist from Yangon, whose evidence may or may not even be necessary. Third, the employment contract is governed by Philippine law. The Philippines has specifically enacted laws to protect its citizens who are serving on foreign vessels. Hong Kong law will only come into the picture if it is shown to be more advantageous to the appellant and this has not been shown as yet. Fourth, the hearing of the claim in the Philippines will also avoid the need for having interpretation, especially for those lower rank staff, if any, who may be able to speak only in Tagalog. Fifth, a performance bond has been furnished by Cleene Maritime to the Filipino authorities. Sixth, the respondent has also agreed to submit to the jurisdiction of the Philippines. To our mind, the case has overwhelming connection with the Philippines. Thus the appeal had to be dismissed.

(d) Consider also the judgment of His Honour Andrew Phang JC (as he then was) in Q & M Enterprises Sdn Bhd v Poh Kiat [2005] 4 SLR 494 where he said that connecting factors must carry ‘legal significance’:

21 It is, indeed, clear that the majority of the real and close connecting factors were located in Malaysia. These include the underlying transaction upon which the defendant is basing his defences, the material witnesses as well as the documents of ACT (which...