Tan Chin Hock v Teo Cher Koon and another and another appeal

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean JAD
• Judgment Date: 06 April 2022
• Neutral Citation: [2022] SGHC(A) 15
• Published date: 09 April 2022
• Docket Number: Civil Appeals Nos 68 and 75 of 2021
• Plaintiff Counsel: Zhulkarnain Bin Abdul Rahim, Too Fang Yi and Lum Rui Loong Manfred (Dentons Rodyk & Davidson LLP)
• Defendant Counsel: Sarjit Singh Gill SC, Probin Stephan Dass, Hoang Linh Trang and Liew Zhi Hao (Shook Lin & Bok LLP),Chai Ming Fatt James and Wong Mo Yen Angela (James Chai & Partners)
• Subject Matter: Contract,Formation,Evidence,Presumptions,Proof of evidence,Standard of proof
• Hearing Date: 07 February 2022
• Court: High Court Appellate Division (Singapore)

Woo Bih Li JAD (delivering the judgment of the court): Introduction

The appellant in AD/CA 68/2021 (“CA 68”) is Mr Tan Chin Hock (“TCH”). The respondents in CA 68 are Mr Teo Cher Koon (“Teo”) and Mr Tan Thiam Chye (“TTC”). TTC is also the appellant in AD/CA 75/2021 (“CA 75”), whilst TCH is the respondent. CA 68 and CA 75 are TCH’s and TTC’s appeals against the decisions of the trial judge (“the Judge”) in Tan Chin Hock v Teo Cher Koon and another suit [2021] SGHC 175 (“the Judgment”). The Judgment was the Judge’s decisions on two separate suits: HC/S 743/2019 (“Suit 743”) and HC/S 1089/2020 (“Suit 1089”). Suit 743 was a claim brought by TCH against Teo for damages for misrepresentation and money owing to him under an indemnity which Teo allegedly gave TCH (“the Alleged Indemnity”). Suit 1089 was a claim brought by TTC against TCH pursuant to a loan which TTC allegedly gave TCH (“the Alleged Loan”). He claimed for the sum owing under the Alleged Loan, as well as loss of profits and loss of dividends.

Both suits were heard one after the other on the basis that the evidence in one would apply to the evidence in the other and vice versa. The Judge dismissed Suit 743 and allowed Suit 1089, finding that the Alleged Indemnity did not exist, but that the Alleged Loan did. She ordered TCH to pay the sum owing under the Alleged Loan to TTC. However, she did not award TTC loss of profits or loss of dividends and ordered interest to run from the date of the writ.

Now, both TCH and TTC appeal against the Judge’s decisions. CA 68 is TCH’s appeal against the Judge’s decision that the Alleged Indemnity did not exist, and that the Alleged Loan did. On the other hand, CA 75 is TTC’s appeal against the Judgment in Suit 1089 in so far as she dismissed TTC’s claim for loss of profits and loss of dividends. Alternatively, TTC is appealing against her decision to order interest on the Sum to run from the date of the writ only instead of interest to run from 13 August 2015 (being the date the Alleged Loan was to be repaid).

Background Relevant facts

Teo is the managing-director and president of ISDN Holdings Limited (“ISDN”), a company listed on the Singapore Stock Exchange.¹ TTC is a businessman specialising in the import and export of foodstuffs, and first met Teo in or around 2010. TCH describes himself as a “businessman” and an “investor in the stock market and various business ventures”.²

Teo and TTC became acquainted in 2012 at the Riverview Hotel (“the Hotel”). Teo and TCH would meet at the Hotel several times a week from 2012 to 2013.³

TCH was also acquainted with the “Goh Brothers”, that is, Goh Yeu Toh (“GYT”) and his younger brother Goh Yeo Hwa (“GYH”).⁴ GYT was the director of a public company, Wee Hur Holdings Limited (“Wee Hur”), although by the time of trial this was no longer the case.⁵ GYH was a shareholder of Wee Hur and was also an executive director and co-founder.⁶ GYH was introduced to Teo and TTC by TCH at the Hotel.⁷

In late 2012, TCH was introduced to a project relating to a coal mine in Myanmar (“Myanmar Project”). He told Teo about the Myanmar Project and visited Myanmar on 8 January 2013 to ascertain the viability of the Myanmar Project.⁸

From February to September 2013, TCH, his brother (Tan Chin Tuan), and two of his associates, Mr Ho Siow Poh and Mr Tan Ah Ee (collectively, TCH’s “associates”), bought substantial amounts of shares in ISDN. Collectively, their shareholding in ISDN increased from about one million shares in February 2013,⁹ to 43,780,000 by 30 September 2013.¹⁰ During this period, the following occurred: On 14 March 2013, ISDN issued 36 million shares at a price of $0.24 per share (“the First ISDN Placement”).¹¹ On 21 March 2013, Teo unloaded 26 million ISDN shares that were held by a company he beneficially owned named Assetraise Holdings Limited (“Assetraise”). This was carried out in two deals (“the 2013 Deals”): (i) 14.5 million ISDN shares were transferred to GYT (“the Goh Deal”); and (ii) 11.5 million ISDN shares were transferred to TTC (“the TTC Deal”).¹² From 30 March to 1 April 2013, a second trip to Myanmar was undertaken, this time with Teo going.¹³ On 3 April 2013 ISDN carried out a second share placement (“the Second ISDN Placement”) where 23.73 million shares were issued at a price of $0.45 per share.¹⁴ From April to June 2013, ISDN made several announcements regarding projects it was going to be involved in (including the Myanmar Project), and consequently, its stock prices increased.¹⁵

From September to December 2013, a penny stock crash occurred (“the Penny Stock Crash”), and as a result, ISDN’s share price dropped.¹⁶ During this time, TCH and his associates continued to trade in ISDN shares.¹⁷ However, ultimately ISDN’s plans for the Myanmar Project did not come to fruition.¹⁸

From 13 to 17 November 2014, TTC liquidated 8 million ISDN shares at a price of $0.29 per share, receiving sales proceeds of $2,314,042.23. He did so in three tranches:¹⁹

Date of sale of ISDN Shares	Number of ISDN Shares sold	ISDN Sales Proceeds received by TTC ($)
13 November 2014	2 million	578,510.55
14 November 2014	3 million	867,765.84
17 November 2014	3 million	867,765.84
Total:	8 million	2,314,042.23

On 17 November 2014, TTC sent a message to Teo informing him that he had sold 8 million ISDN shares through the open market at a price of $0.29 per share. He then asked Teo to “make the public announcement as required”.²⁰

TTC transferred almost all of the proceeds, amounting to $2,314,041.39 (“the Sum”), to TCH and his associates over several tranches from 13–24 November 2014 (“the November 2014 Transfers”).²¹ These transfers were evidenced by payment vouchers issued by TTC (“the Payment Vouchers”) and signed by TCH.²²

Date of payment made by TTC	Name of recipient or cheque payee	Mode of payment	Amount paid ($)
13 November 2014	TCH	Cash	578,510.55
19 November 2014	Tan Kim Sing	UOB Cheque	350,000.00
20 November 2014	Tan Chin Tuan	UOB Cheque	200,000.00
20 November 2014	TCH	UOB Cheque	317,765.84
24 November 2014	Lee Kwang Hwee	UOB Cheque	300,000.00
24 November 2014	TCH	UOB Cheque	567,765.00
Total:	2,314,041.39

As can be seen, there is a very slight difference of $0.84 between the sale proceeds of $2,314,042.23 and the Sum (of $2,314,041.39) transferred by TTC to TCH and his associates. There was no explanation for this minor discrepancy which is immaterial for present purposes.

Over one year later, TCH’s lawyers sent a letter of demand dated 24 November 2015 (“the First LOD”) to Teo.²³ In the First LOD, TCH claimed that Teo had represented that investing in ISDN would be a “good investment”, and that Teo would “make good on any losses” suffered by TCH as a result of investing in ISDN. He claimed that he had incurred losses amounting to $8,985,481.85, and after taking into account the Sum paid by TTC on behalf of Teo, a further $6,671,439.62 was owing to him. After receiving the First LOD, Teo called TTC the next day and told him about it.²⁴

Teo then sent TTC a WeChat message on 26 November 2015. The English translation reads as follows:²⁵

I discussed with Kenneth, and he said that he was also helping Tarka boss solve the same problem, all related to that annoying person. He said that as long as you also send a lawyer’s letter to claim a repayment from that annoying person, his accusation will collapse. The fact is that you lent him money, but he used it to attack me. Although you did not have a contract with him, this letter proves that he took money from you, and you may still be able to get back the money that you lent him. I’m on a high-speed train now and will talk to you after 11 o’clock.

Subsequently, Teo replied to the First LOD on 6 December 2015, addressing TCH’s lawyers at the time, M/s Wong Tan & Molly Lim LLC: ²⁶

I think that [TCH] is suffering from delusion as he referred to lies as facts.

I verified with [TTC] the contents of the letter and sent a copy of the letter to him. It seems that your client is using the loan from [TTC] as a fact to request repayment from me. In other words, he attempted to blackmail me using legal means. [TTC] went overseas last night but he said that he has sent a letter of demand to your client asking for repayment of his loan. Therefore, please get your facts right before acting for [TCH].

I also reserve the right to a suit as well as submitting your letter to the police as evidence of blackmail.

Two weeks later on 20 December 2015, TTC wrote to TCH as well by way of letter.²⁷ The English translation reads:

[Teo] gave me a copy of your letter to him on 5 December, he also asked me when he gave you money through me. I told him this was a loan to you and I have a receipt as proof. I do not understand why you claimed that my loan to you was a repayment from him to you.

You should remember that you pestered me to lend you more than 2 million dollars and said that it was just to temporarily tide you over. Once your contemplated IPO is launched, you would repay me. Even though I was not convinced at that time, I still lent you more than 2 million dollars as I felt sorry for you. Now your IPO has launched and it is time you return me the money.

When will you honour your promise and repay me the full sum?

It is undisputed that TCH did not reply to either of the letters sent by Teo and TTC.

Almost four years later, TCH’s new lawyers sent a further letter of demand to Teo dated 4 July 2019 (“the Second LOD”).²⁸ The amount claimed by TCH was said to have been “recalculated” such that he only claimed $2,732,149. The Second LOD expressly rejected the allegation that the November 2014 Transfers were a loan from TTC to TCH.

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