The Micro Tellers Network Ltd and others v Cheng Yi Han and others and another suit

• Judge: Simon Thorley IJ
• Judgment Date: 22 September 2021
• Neutral Citation: [2021] SGHC(I) 11
• Citation: [2021] SGHC(I) 11
• Defendant Counsel: the fourth defendant in SIC/S 5/2020 and the first defendant in SIC/S 8/2020 in person,the second defendant in SIC/S 8/2020 unrepresented.,Tan Hee Joek (Tan See Swan & Co),Lim Mingguan and Ngo Wei Shing (Providence Law Asia LLC),Daniel Chia and Ker Yanguang (Morgan Lewis Stamford LLC)
• Hearing Date: 06 August 2021,24 June 2021,23 June 2021,15 June 2021,16 June 2021,22 June 2021,21 June 2021,14 June 2021
• Plaintiff Counsel: Tan Gim Hai Adrian, Hari Veluri and Feng Chong We (TSMP Law Corporation)
• Docket Number: Suit Nos 5 and 8 of 2020
• Published date: 25 September 2021
• Court: International Commercial Court (Singapore)
• Subject Matter: Deceit,Tort

Simon Thorley IJ: Introduction The trial of Suit 5 and Suit 8

These two actions, SIC/S 5/2020 and SIC/S 8/2020 (“Suit 5” and “Suit 8” respectively), raise similar causes of action based on facts which, to a certain extent, overlap. They were therefore ordered to be tried together. The trial commenced on 14 June 2021 and was scheduled to last for 10 working days.

In the days leading up to the trial, the Plaintiffs in Suit 5 reached a settlement with the 2nd and 3rd Defendants in Suit 5. The 3rd Defendant, Providence Asset Management (“PAM”), is a company incorporated in the Cayman Islands. Its Managing Partner is the 2nd Defendant in Suit 5, Ling Hui Andrew (“Mr Ling”), who is a Singapore citizen.

This resulted in the 1st Defendant in Suit 5, Cheng Yi Han (“Mr Cheng”), who is also a Singapore citizen, seeking leave to issue a Third Party Notice against the 2nd and 3rd Defendants, PAM and Mr Ling. Leave was granted on the basis that any issues arising on the Third Party Notice would not be raised at the trial and that any necessary directions on the Third Party Notice would be given after judgment following the trial.

The 3rd Defendant in Suit 5, PAM, is also the 1st Plaintiff in Suit 8. The 2nd Plaintiff in Suit 8, 5 and 2 Pte Ltd (“5&2”), is a Singapore company of which Mr Ling is a director.

The 4th Defendant in Suit 5, Then Feng (“Mr Then”), is a Singapore citizen who is also the 1st Defendant in Suit 8. The 2nd Defendant in Suit 8 is Mr Then’s wife but the action against her was discontinued on 29 September 2020. Mr Then was thus the only remaining defendant in Suit 8.

At the start of the trial, oral opening submissions were first made by counsel for the Plaintiffs in both actions, followed by counsel for Mr Cheng, and then by Mr Then, who was at that time a litigant in person. The first witness to give evidence was Frederic Willy Gaillard (“Mr Gaillard”), a Swiss national resident in Singapore. Mr Gaillard provided an affidavit of evidence-in-chief (“AEIC”) in each action which were then supplemented by further AEICs in each action. He was cross-examined by Mr Then on his evidence given both in Suit 5 and in Suit 8. Following the conclusion of his oral evidence, counsel for the Plaintiffs in Suit 5 informed the court that settlement negotiations between the Plaintiffs in Suit 5 and Mr Cheng, the 1st Defendant in Suit 5, were at an advanced stage, and that he was hopeful that an agreement could be reached if the trial was adjourned until the following day. This was not opposed.

The following day, 15th July 2021, the court was informed that settlement had indeed been reached and that Mr Cheng and his counsel would play no further part in the trial. The Third Party Notice also fell away. Mr Then was thus also the sole remaining defendant in Suit 5 as he had become in Suit 8.

This change of events raised a number of considerations. First, Mr Then was acting in person and the original trial schedule envisaged that the next four witnesses to be called on behalf of the Plaintiffs in Suit 5 would be cross-examined first by counsel for Mr Cheng and then by Mr Then. The time estimate provided for cross-examination indicated that the bulk of the cross-examination would be carried out by counsel for Mr Cheng with only a small amount of time being allocated thereafter to Mr Then. As counsel for Mr Cheng would now play no further part in the trial, this meant that Mr Then would have to conduct the cross-examination himself. Since this new development only happened part way through trial, Mr Then was understandably not in a position to conduct all the cross-examination that day.

Second, the pleadings in Suit 5 were complex, involving, inter alia, an allegation of conspiracy involving Mr Then, Mr Ling and Mr Cheng, and it was unclear precisely what case would now be advanced by the Plaintiffs in Suit 5 against Mr Then following the settlement of the actions against the other Defendants in Suit 5.

Third, Mr Then indicated that although he had prepared himself to carry out his part of the cross-examination of the four Plaintiff’s witnesses in Suit 5, he was not at that time properly prepared to carry out the cross-examination of Mr Ling who was only scheduled to give evidence the following week.

Following submissions, I concluded that it was necessary that the Statement of Claim in Suit 5 should be amended so as to make clear what case was being raised against Mr Then, now the only defendant, and that the AEICs served on behalf of the Plaintiffs in Suit 5 should be amended so as to exclude matters which were now irrelevant. This necessarily meant that the trial of Suit 5 could not continue as planned.

Counsel for the Plaintiffs in Suit 8 however invited the court to continue with the trial of Suit 8. This was not opposed by Mr Then, provided that he had a proper opportunity to prepare his cross-examination of Mr Ling. This was a course that was acceptable to counsel for the Plaintiffs in Suit 5. Accordingly, I directed that Suit 5 should be adjourned and that a case management conference for further directions in that action should be held after Judgment in Suit 8 but that Suit 8 should proceed after an appropriate adjournment to enable Mr Then to prepare the cross-examination of Mr Ling.

The remainder of this Judgment is therefore directed solely to the facts and issues arising in Suit 8. It is based and based only on the evidence adduced in Suit 8 and nothing that I say or conclude can have any effect on the now separate trial of Suit 5. Whilst separate trials are undesirable, in the circumstances, this was the only way forward that was fair to all parties.

The Continued Trial of Suit 8

The trial of Suit 8 resumed the following Monday, 21 June 2021. Mr Then had retained new counsel, Mr Tan Hee Joek (“Mr Tan”), to act on his behalf. Mr Tan made it plain that his involvement was limited to cross-examining Mr Ling in relation to what has been referred to as the “Walkers Professional Services Issue” (see [35] below) and that Mr Then would otherwise be conducting his own defence. Counsel for the Plaintiffs (in Suit 8) did not object to this course.

Mr Ling then gave evidence by way of his AEIC in Suit 8 and was cross-examined by Mr Tan and Mr Then for a period of some 2.5 days finishing in the evening of Wednesday 23 June 2021. This concluded the Plaintiff’s evidence. Mr Then was scheduled to give evidence on the following two days.

However, on the morning of Thursday 24 June 2021, Mr Then (by then acting in person again) submitted that the Plaintiffs had not made out a case that he was required to answer on the basis of the evidence that had been adduced on their behalf. There were then adjournments during which the authorities on “No case to answer” in a civil trial were reviewed so that the court could be satisfied that Mr Then was fully aware of the consequences of the decision he was proposing to make.

Following those adjournments, Mr Then confirmed that he was submitting that there was no case to answer and gave an undertaking that he would not call any evidence in support of his case. Thereupon, the trial was adjourned for written closing submissions to be prepared.

No Case to Answer in Civil Cases

Civil disputes are determined in relation to any cause of action pleaded by a plaintiff on the basis of the pleadings and the evidence adduced before the court. The legal burden of proof lies on the plaintiff and will only be discharged if the court is satisfied that the plaintiff has proved its case.

In a trial where evidence is adduced both by the plaintiff and by the defendant, the evidential burden, which is initially placed on the plaintiff to adduce sufficient evidence to prove its case, may shift to the defendant to adduce evidence to rebut the plaintiff’s evidence. The court then assesses all the evidence to determine whether, on the balance of probabilities, the plaintiff has proved its case.

It is however always open to a defendant, having heard the evidence adduced on behalf of the plaintiff, to elect to call no evidence on the basis that the plaintiff’s evidence is insufficient to transfer the evidential burden onto the defendant so that the plaintiff has failed to prove its case. Hence the expression “No case to answer”: see O 35 r 4(3) and O 110 r 3(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).

This is plainly a bold step for a defendant to take and is not a frequent occurrence in civil proceedings. Once made, the defendant cannot thereafter seek to call evidence. The ultimate decision rests on the judicial assessment of the plaintiff’s evidence alone.

The authorities in relation to “No case to answer” are summarised in Jeffrey Pinsler, Singapore Court Practice (LexisNexis, 2021) at para 35/4/10: Submission of no case. At the conclusion of the plaintiff’s case, the defendant may submit that there is no case to answer. In other words, the defendant alleges that the plaintiff has not adduced the requisite evidence to establish the legal elements of his claim. The judge would sustain a plea of no case to answer if the plaintiff’s case has no basis or is ‘so unsatisfactory or unreliable that the court is able to find that the burden of proof on the plaintiff has not been discharged’. See Lim Eng Hock Peter v Lin Jian Wei [2009] 2 SLR(R) 1004, at [209]; Central Bank of India v Hemant Govindprasad Bansal [2002] 1 SLR(R) 22, at [21] and [25]; Hemant Govindprasad Bansal v Central Bank of India [2003] 2 SLR(R) 33 and Sukhpreet Kaur Bajaj d/o Manjit Singh v Paramjit Singh Bajaj [2008] SGHC 207, at [10]. Such a submission is rarely made because the judge will require the defendant to undertake not to call any evidence in the event that the submission is not upheld. In Ho Yew Kong v Sakae Holdings Ltd and other appeals and other matters [2018] SGCA 33, at [70], the Court of Appeal explained reason for this approach:...