Wee Soon Kim Anthony v UBS AG

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 01 February 2006
• Neutral Citation: [2006] SGHC 18
• Plaintiff Counsel: Harish Kumar (Engelin Teh Practice LLC)
• Published date: 01 February 2006
• Court: High Court (Singapore)
• Defendant Counsel: Applicant in person
• Subject Matter: Constitutional Law,Natural justice,Bias,Whether the costs order made against the plaintiff raised issues of the judge's fairness and impartiality,Whether the judge's actions at trial gave rise to a reasonable suspicion of personal animosity to the extent that there was a real danger of apparent bias

1 February 2006

Kan Ting Chiu J:

1 The plaintiff in these proceedings, Anthony Wee Soon Kim (“the plaintiff”), had sued the defendant, UBS AG (“the bank”). The case came on before me at the first instance, when I dismissed the claim. When it went on appeal to the Court of Appeal, it met with the same result.

2 In the action before me, the plaintiff had appointed the law firm, Engelin Teh & Partners, to act for him. When the firm was converted into the law corporation Engelin Teh Practice LLC, the latter continued to act for him.

3 After the dismissal of the action, the plaintiff came back before me again on several matters, including the review of the taxation of five solicitor-and-client bills drawn up by Engelin Teh Practice LLC.

4 The plaintiff did not want me to review the taxation of those bills, and applied for me to recuse myself. When I declined to do that, he filed an appeal to the Court of Appeal against my decision.

5 In support of his application, the plaintiff deposed an affidavit on 29 July 2005 which was filed on 5 August 2005. In this affidavit, he listed two grounds of “apparent bias and/or actual bias”:

(a) “Interruptions and Judicial Remarks re Thomas Sim …”; and

(b) “Unusual Costs Orders”.

6 Thomas Sim (“Mr Sim”) was a member of Engelin Teh & Partners and subsequently Engelin Teh Practice LLC who was involved in drafting the plaintiff’s Statement of Claim against the bank. His name came up when the plaintiff was cross-examined by the counsel for the bank on inconsistencies between his pleaded case and his evidence. The plaintiff’s response was to put the responsibility on Mr Sim. He claimed that the inconsistent parts of the Statement of Claim had been drafted by Mr Sim without his instructions, and were not amended despite his specific instructions to have them amended.

7 Mr Sim was not listed as a witness at the trial. Even after his name came up, the plaintiff did not want to call him as a witness and was not prepared to waive solicitor-and-client privilege to enable him to give evidence on the preparation of the Statement of Claim.

8 I was concerned that allegations against the professional conduct of Mr Sim were made without giving him an opportunity to present his side of the events, and that I had to decide on the plaintiff’s allegations without hearing Mr Sim. The matter was discussed between counsel and myself and the upshot of that was that the plaintiff decided to call Mr Sim as a witness, and waived solicitor-and-client privilege.

9 The plaintiff set out in his affidavit extracts of the notes of evidence which he relied on as evidence of bias. I reproduce these extracts without the emphases added by him:

P1570 Verbatim Notes of Evidence

ASKW: No, Sir. My case is that it was done on the advice and the words “without my knowledge or consent” were the words of my pleader whom I assume at the material time knew what he was doing because had he known what he was doing, namely, to look at all the documents, he would not have used the words “without my knowledge or consent”.

Court: All these I take to refer to Mr Thomas Sim?

ASKW: Yes.

Court: You know, actually, it’s very strange. You are saying that he is really quite a shockingly incompetent lawyer; he’s stood the case on his head; he has drafted something to you and all this is being said almost on a daily hourly basis and it doesn’t bother any … I assume it does not bother everyone of us that Mr Sim has not even been accorded the courtesy of [being] told in a letter that “This is being said, would you like to respond?”, if nothing else, by way of letter.

Mr Singh: Your Honour …

Court: I mean ... (To Mr Davinder) Hold on. It actually disturbs me a little.

Mr Lim: Well, I mean, this …

Court: Quite aside from the fact that it also disturbs me that I am supposed to have to make a decision on this when daily, the accusations are repeated, privilege is claimed and nothing is being done, I mean, as far as I can tell.

At page 3744:

His Honour: Why did you say “obviously picked up”? Until we hear Mr Sim, we wouldn’t know.

Mr Lim: Yah, of course.

His Honour: That is what Mr Wee says, that he didn’t say that. Until we hear Mr Sim, we don’t know whether there is confusion. You are right, you know, Mr Lim, there may well be confusion but we cannot assume without hearing anybody that there is confusion just because Mr Wee says so.

At page 3752:

Mr Lim: I think at this stage whether it is long one month or not is the fact that it had been done on one month, right?

His Honour: Look, the whole issue is going to turn on who is long on tales and who is short on credibility. This is so critical in this case, his “I didn’t know, I didn’t know, I didn’t know what is a forward, I didn’t know what is a spot and I didn’t know this and that”. Surely, this is of some relevance.

Mr Lim: Yes. In some reference in terms of credibility whether what he knew or not, your Honour, but …

His Honour: Yah, that’s...