Wan Lai Ting v Kea Kah Kim

• Jurisdiction: Singapore
• Judge: Edmund Leow JC
• Judgment Date: 15 September 2014
• Neutral Citation: [2014] SGHC 180
• Plaintiff Counsel: Alina Sim (Axis Law Corporation)
• Docket Number: Suit No 320 of 2013 (Summons No 3480 of 2014)
• Date: 15 September 2014
• Hearing Date: 21 July 2014
• Subject Matter: Affidavits,Admissibility of evidence,Hearsay,Evidence,Civil Procedure
• Published date: 17 September 2014
• Citation: [2014] SGHC 180
• Defendant Counsel: Nazim Khan (Unilegal LLC)
• Court: High Court (Singapore)
• Year: 2014

Edmund Leow JC: Introduction

The Plaintiff applied to admit two affidavits of evidence-in-chief (“AEICs”) sworn by her 78-year-old mother-in-law (“Lau”) as hearsay evidence under s 32(1)(j) of the Evidence Act (Cap 97, 1997 Rev Ed) (“the EA”). The stated reason was that Lau, who lives in Hong Kong, is unfit to travel to Singapore or appear as a witness before the court. I dismissed the Plaintiff’s application after some consideration. As the application was an unusual one and raised an issue that might be of interest to practitioners, I now give the grounds for my decision.

Background facts

I will set out briefly the background facts only in so far as they are pertinent to the present application.

The Plaintiff’s husband, Henry Chow (“Chow”), was the majority owner of Carriernet Corporation Ltd (HK) (“CNET”). CNET was acquired by ArianeCorp Ltd (now known as Polaris Limited (“Polaris”)) in 2007. The Defendant was the CEO and substantial shareholder of Polaris.

The Plaintiff purports to be the beneficial owner of 15,000,000 shares in Polaris (“the Shares”). Although the registered legal owner of the Shares was one Leung Man Ha (“Leung”), who is Chow’s sister-in-law, the Plaintiff claims that Leung had transferred the beneficial interest in the Shares to her on 29 December 2006, which transfer was recorded in a document of the same date signed by Leung and witnessed by Lau (“the 29 December 2006 Document”). The Plaintiff is unable to produce the original of the 29 December 2006 Document and has only tendered a copy of it in these proceedings.

The Plaintiff’s claim against the Defendant relates to 10,800,000 of the Shares. The Plaintiff says that she had lent those shares to the Defendant but the Defendant sold them without her knowledge or consent. The Defendant then agreed to pay the Plaintiff the value of the 10,800,000 shares at S$0.10 each (for a total of S$1,080,000), and had made part payment of S$500,000. However, despite repeated requests by the Plaintiff for payment of the remaining S$580,000, the Defendant has failed, refused or neglected to pay the remaining sum. The Plaintiff is therefore suing the Defendant for the sum of S$580,000.

In his defence, the Defendant denies that he had borrowed the 10,800,000 shares from the Plaintiff. He further disputes the authenticity of the 29 December 2006 Document and alleges that the purported transfer of beneficial ownership in the shares to the Plaintiff was a sham. He says that it was part of an illegal scheme hatched by Chow, acting in concert with the Plaintiff and Leung, to circumvent SGX regulatory and disclosure requirements.

The application

On 16 July 2014, the Plaintiff filed the present application asking for two AEICs deposed by Lau on 28 May 2014 and 16 June 2014 to be admitted as documentary hearsay under s 32(1)(j) of the EA. The key points made in Lau’s AEICs were as follows: Since the sale of CNET to Polaris, the Plaintiff has been giving Lau a monthly allowance of HK$10,000. In addition, the Plaintiff and her family have paid for all of Lau’s medical and other bills. Lau instructed her son, Chow, to ensure that his brothers, sisters and their families receive their share of benefits from the sale of CNET because they had helped in starting the company. Her property was mortgaged to the bank in 2007 to raise funds. One of the reasons why the Plaintiff had to buy back the Shares of Polaris from Leung and why the latter agreed to the sale was to use the sale proceeds of the Shares to redeem Lau’s property from its mortgage and to continue funding CNET in Hong Kong. She confirms that she was the witness who signed the 29 December 2006 Document which evidenced that Leung sold the Shares in Polaris to the Plaintiff.

The Plaintiff claimed that Lau could not testify before the court because her health is frail. She produced two handwritten notes signed by one Dr Chau Hok Ping (“Dr Chau”) in Hong Kong dated 3 July 2014 and 15 July 2014 stating that: Lau had two stroke attacks one year ago; she has a mild to moderate degree of cognitive impairment with poor memory and slurring of speech; stress during the legal proceedings increases the chances of another stroke attack; she has multiple medical conditions including asthma and lower back pain; she requires a wheelchair to move around; she is “not recommended to travel outside Hong Kong”; and she is “not recommended to present herself in court case personally or through video conference”.

The Plaintiff also said that taking evidence by video link was too expensive. She produced a quotation from Succinct Communication stating that the cost for video conferencing facilities was S$1,234 per hour.

Unsurprisingly, the Defendant opposed the application. Counsel for the Defendant said that the points made in Lau’s AEICs were disputed and he needed to cross-examine Lau on her evidence. He further argued that given Lau’s admitted cognitive impairment, the reliability of her evidence is dubious.

In response, counsel for the Plaintiff contended that Lau’s cognitive impairment was only mild to moderate and she was still lucid enough to sign an affidavit. She further submitted that the court should admit Lau’s evidence as long as it was relevant; any concerns about its reliability or the Defendant’s inability to test Lau’s evidence under cross-examination should go to weight and not admissibility.

My decision Should Lau’s AEICs be admitted under s 32 of the EA?

The relevant provisions of the EA state as follows:

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant 32.—(1) Subject to subsections (2) and (3), statements of relevant facts made by a person (whether orally, in a document or otherwise), are themselves relevant facts in the following cases: … (j) when the statement is made by a person in respect of whom it is shown — (i) is dead or unfit because of his bodily or mental condition to attend as a witness; (ii) that despite reasonable efforts to locate him, he cannot be found whether within or outside Singapore; (iii) that he is outside Singapore and it is not practicable to secure his attendance; or (iv) that, being competent but not compellable to give evidence on behalf of the party desiring to give the statement in evidence, he refuses to do so; …

(3) A statement which is otherwise relevant under subsection (1) shall not be relevant if the court is of the view that it would not be in the interests of justice to treat it as relevant.

A threshold issue was whether s 32 of the EA covered situations like the present where the witness has sworn an AEIC but, for whatever reason, will not be attending court to be cross-examined. After all, the purpose of s 32 was to establish exceptions to the common law rule against hearsay, and it seemed inapt to describe affidavit evidence as hearsay. In Lejzor Teper v The Queen [1952] 1 AC 480 at 486, Lord Normand described hearsay as follows:

… It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost. …

Affidavit evidence is evidence delivered on oath by someone who has personal knowledge of the facts attested to. An AEIC, in particular, is meant to replace a witness’s evidence-in-chief at trial. It might therefore seem strange to regard it...