Tay Kar Oon v Tahir

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date26 April 2017
Neutral Citation[2017] SGCA 31
Plaintiff CounselSalem Ibrahim, Iman Ibrahim, and Kulvinder Kaur (Salem Ibrahim LLC)
Date26 April 2017
Docket NumberCivil Appeal No 66 of 2016 (Summons No 3 and 6 of 2017)
Hearing Date19 January 2017
Subject MatterContempt of court,Civil Contempt
Published date05 May 2017
CourtCourt of Appeal (Singapore)
Citation[2017] SGCA 31
Year2017
Tay Yong Kwang JA (delivering the grounds of decision of the court): Introduction

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 against the term of imprisonment. We allowed her appeal to the extent that we set aside the imprisonment and substituted a fine. We now give our reasons.

The Respondent, Tahir, had applied to the High Court for leave to commence committal proceedings against the Appellant on the basis that the Appellant had breached various court orders by: failing to attend court to be examined as a judgment debtor on 23 October 2015 (“the first breach”); failing to file and serve an affidavit giving disclosure of her assets by 5 November 2015, as required under a Mareva injunction, the main terms of which appear at [10] below (“the second breach”); failing to provide answers to an examination of judgment debtor (“EJD”) questionnaire on 6 November 2015 as directed by the Assistant Registrar on 23 October 2015 (“the third breach”); and failing to attend court for an EJD hearing on 13 November 2015 (“the fourth breach”).

These matters were set out in a statement filed pursuant to O 52 r 5(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the O 52 Statement”). Leave to commence committal proceedings was granted to the Respondent on this basis and the committal proceedings went before the Judge. There were four hearings before the Judge. At the third hearing, further breaches of the Mareva injunction, consisting of three withdrawals of S$1,000 each from her bank account (totalling S$3,000) (“the fifth breach”), were discovered. At the final hearing, the Respondent’s counsel sought leave to withdraw the committal proceedings. While acknowledging that the fifth breach was an outstanding issue, the Respondent’s counsel also acknowledged that details of that breach had not been included in the O 52 Statement and he was willing to withdraw the proceedings on that basis.

After considering these matters, the Judge committed the Appellant to eight weeks’ imprisonment. He held that the Respondent’s wish to withdraw the proceedings did not affect the public interest in the protection of the administration of justice and the maintenance of the court’s authority. In sentencing the Appellant for her contempt, the Judge took into account the four breaches set out in the O 52 Statement as well as the fifth breach, a matter which was not raised in the O 52 Statement.

Before the Judge, the Appellant was represented by another firm of solicitors. On appeal before us, the Appellant was represented by Salem Ibrahim (“Mr Ibrahim”) of Salem Ibrahim LLC. Before the Judge and before us, the Respondent was represented by the same solicitors from Morgan Lewis Stamford LLC. The Respondent’s solicitors had earlier sought and obtained leave not to file a Respondent’s Case. At the hearing of the appeal, counsel for the Respondent, Daniel Chia (“Mr Chia”), requested and was granted permission to be excused from the hearing. The hearing of the appeal thus proceeded with the Appellant being the only party before us.

After hearing counsel for the Appellant, we allowed the appeal by setting aside the sentence of imprisonment imposed by the Judge and substituting a fine of S$10,000, in default, ten days’ imprisonment. As the Appellant had been made a bankrupt prior to the commencement of the committal proceedings, we further ordered that the S$3,000 withdrawn in breach of the Mareva injunction be paid to the Official Assignee. Both payments were to be made within seven days of the date of our judgment.

Background

The Appellant was an art dealer trading as a sole proprietor under the name of Jasmine Fine Art. In or around March 2014, the Respondent entered into an agreement to purchase from the Appellant a sculpture known as “Couple Dancing” by Fernando Botero1. Subsequently, the Respondent paid the Appellant a sum of US$1,638,100 for the sculpture and further amounts for the associated shipping costs. However, the Appellant failed to procure the sculpture.

On 25 July 2014, the Respondent commenced an action against the Appellant for the recovery of the sums paid.2 About a year later, on 15 July 2015, the parties entered into a settlement agreement on terms that the Appellant pay the Respondent the sum of US$1,638,100 and legal costs of S$14,400.3 However, the Appellant failed to comply with the settlement agreement. The Respondent therefore commenced a second action, Suit No 922 of 2015 (“S 922/2015”), on 8 September 2015 against the Appellant for breach of the settlement agreement. On 18 September 2015, judgment in S 922/2015 was entered against the Appellant as she failed to enter an appearance.

To aid the enforcement of the judgment, the Respondent filed an EJD application in Summons No 4946 of 2015 (“SUM 4946/2015”). On 9 October 2015, the Appellant was directed to attend before the Registrar on 23 October 2015 at 9.00 am to be orally examined on her assets, which would include questions listed in a questionnaire (“the EJD Questionnaire”).4 However, on 23 October 2015, the Appellant and her solicitors failed to attend the EJD hearing. The Appellant was thus in breach of the Order of Court dated 9 October 2015 (ie, the first breach). At the same hearing, the Assistant Registrar ordered the Appellant to provide answers to the EJD Questionnaire by 6 November 2015 and to attend court on 13 November 2015.

In the meantime, on 17 September 2015, the Respondent filed Summons No 4591 of 2015 (“SUM 4591/2015”) for a Mareva injunction against the Appellant prohibiting the disposal of assets up to the total value of US$1,638,100 and S$14,400. On 27 October 2015, Kan Ting Chiu SJ granted the Respondent’s application (“the Injunction Order”). Under the Injunction Order, the Appellant was to furnish an affidavit by 5 November 2015 disclosing all her assets in Singapore (“the Disclosure Affidavit”). In breach of the Injunction Order, the Appellant failed to file the Disclosure Affidavit by 5 November 2015. She was thus in breach of the Injunction Order (ie, the second breach).

The Appellant also breached the court directions given by the Assistant Registrar on 23 October 2015 on two counts. First, she failed to provide answers to the EJD Questionnaire by 6 November 2015. Second, she failed to attend the EJD hearing on 13 November 2015. This constituted the third breach and the fourth breach, respectively.

On 17 December 2015, Chua Lee Ming JC (as he then was) granted the Respondent leave to commence committal proceedings in respect of the four breaches detailed above. Although the Respondent also sought to bring committal proceedings in connection with the Appellant’s alleged attempt to sell a certain property, Chua JC did not grant leave in connection with those allegations.5

As mentioned earlier, there were four hearings in total before the Judge. At the first hearing on 15 January 2016, the Appellant admitted liability for her acts of contempt for which leave had been granted. The Judge found her guilty of contempt on the matters raised in the O 52 Statement and adjourned the matter for two weeks to give the Appellant an opportunity to purge her contempt by complying with the orders, and for both sides to prepare their submissions on sentencing.6

Prior to the second hearing on 11 February 2016, the Appellant completed the EJD Questionnaire and Disclosure Affidavit. The Judge, however, took the view that several parts of the EJD Questionnaire were incomplete and that full disclosure of the Appellant’s assets had not been made. This included missing bank statements from the Appellant’s accounts in Overseas Chinese Banking Corporation Ltd (“OCBC Bank”) and United Overseas Bank Ltd (“UOB Bank”) that covered the period when the Injunction Order was in force.7 The Judge granted a final adjournment of the matter for the Appellant to purge her contempt.8

At the third hearing on 26 February 2016, the Appellant disclosed the missing bank statements from her OCBC Bank account. These statements showed that the Appellant was in breach of the Injunction Order as she had made three withdrawals of S$1,000 each (totalling S$3,000) on 28 October 2015, one day after the grant of the Injunction Order (ie, the fifth breach). As the Appellant was not able to procure the missing statements from her UOB Bank account by the third hearing, a short adjournment was granted for her to do so.9 It should be noted that there was no record of the Appellant or the Appellant’s counsel being questioned by either the Judge or the Respondent’s counsel on the fifth breach or any explanation by her concerning the same during the third hearing.10

On 1 March 2016, the Appellant returned for the fourth and final hearing. At this hearing, the Respondent’s counsel informed the Judge that the Appellant had disclosed her UOB Bank statements as well as correspondence between the freight forwarder and agent in connection with the sculpture.11 Based on this and the Appellant’s undertaking to co-operate with the Respondent, the Respondent’s counsel informed the Judge that he was prepared to withdraw the committal proceedings with the Judge’s leave. However, if the Judge was not minded to grant leave, the Respondent’s counsel indicated that he was no longer seeking a custodial sentence. The Respondent’s counsel acknowledged the Appellant’s breaches of the Injunction Order but noted that “these were not covered by our original statement”.12 Following this, the Appellant’s counsel made submissions in mitigation. The Judge concluded the proceedings, stating:13

There is a public interest in making sure that people follow orders. Having said that, she is not on trial for defrauding...

To continue reading

Request your trial
12 cases
  • Li Shengwu v The Attorney-General
    • Singapore
    • Court of Appeal (Singapore)
    • 1 April 2019
    ...of the O 52 statement itself: at [66]. This Court then cited Mok Kah Hong for this proposition in our decision in Tay Kar Oon v Tahir [2017] 2 SLR 342 at [29]. The attribution of the label “quasi-criminal” to both civil and criminal contempt arises out of substantive similarities in how bot......
  • BNX v BOE and another appeal
    • Singapore
    • Court of Appeal (Singapore)
    • 26 June 2018
    ...the evidence must be apparently credible, although it need not be incontrovertible (credibility or reliability). See Tay Kar Oon v Tahir [2017] 2 SLR 342 (“Tay Kar Oon”) at [28], Sanum Investments Ltd v Government of the Lao People’s Democratic Republic [2016] 5 SLR 536 at [27], Mykytowych,......
  • PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 30 January 2018
    ...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 Oon v Tahir [2017] 2 SLR 342 (refd) Facts Oxel Systems Pte Ltd obtained judgment in a counterclaim against the second and third defendants in the counterclaim, Paulus......
  • Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co)
    • Singapore
    • Court of Appeal (Singapore)
    • 23 July 2019
    ...apply with full rigour in the context of contempt proceedings, given the quasi-criminal nature of such proceedings (Tay Kar Oon v Tahir [2017] 2 SLR 342 at [29]). Judicial review The English Court of Appeal in R v Secretary of State for the Home Department ex parte Momin Ali [1984] 1 WLR 66......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT