Yap Chwee Khim v American Home Assurance Co and Others

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JC
• Judgment Date: 08 September 2000
• Neutral Citation: [2000] SGHC 185
• Court: High Court (Singapore)
• Published date: 13 March 2013
• Year: 2000
• Plaintiff Counsel: Edmond Pereira and Tan Yew Cheng (Edmond Pereira & Partners)
• Defendant Counsel: Lek Siang Pheng and Vivienne Lim (Helen Yeo & Partners)
• Citation: [2000] SGHC 185

JUDGMENT:

Grounds of Decision

1 The Plaintiff is the Executrix and sole beneficiary of the estate of the late Lim Mah Chan ("the deceased"). Her claim against the five Defendants was in respect of seven insurance policies taken out by the deceased. Five of these were travel insurance policies for a total insured sum of $800,000. The other two policies were issued by the Second Defendants – a personal accident policy issued on 22 January 1996 and renewed on 27 December 1996 for $20,000 and a life assurance policy issued on 25 January 1996 for $7,000.

2 The crux of the Plaintiff’s claim was that the 60 year old deceased died through accidental drowning in a bath tub in a hotel while on holiday in Cambodia with his nephew, Lim Chok Young, the Plaintiff’s ex-husband, and that the five Defendants breached the contracts of insurance by failing or refusing to pay the insured amounts. The Cambodian trip was a five-day tour from 30 May to 3 June 1997. On 2 June 1997, the deceased was found naked and lying face down in a filled bath tub in the hotel room by his nephew who was sharing the hotel room with the deceased.

3 The five Defendants claimed that death by accidental drowning was not proved and/or the deceased was a victim of homicide by the Plaintiff’s ex-husband and that it was therefore against public policy to allow the Plaintiff’s claim. Alternatively, they averred that the Plaintiff and her ex-husband conspired to kill the deceased in order to claim the insured amounts. The Defendants also raised several other defences relating to material non-disclosure and breach of the insurance policies.

4 It was not in dispute that, besides the seven insurance policies in issue, there was another insurance policy taken out in the name of the deceased with Great Eastern Life Insurance Co Ltd ("GE Life") for $100,000 and that the insured amount had been paid by GE Life to the Plaintiff upon a claim being made. It was also agreed that applications for three personal accident policies in the deceased’s name were made on 23 May 1997 (one week before the tour) to the American International Assurance Co Ltd ("AIA") and were rejected by AIA on 10 June 1997 (one week after the tour). These three AIA policies were for a total insured sum of $310,000.

5 For easy reference, the various policies, as tabulated by the Defendants, are listed below (in addition to the two policies issued in 1996 by the Second Defendants mentioned in paragraph 1 of this judgment):

"LIST OF TRAVEL & PERSONAL ACCIDENT POLICIES TAKEN UP ON/ APPLIED FOR MR LIM MAH CHAN JUST BEFORE THE TRIP

S/No.	Date of issue of policy	Insurer	Premium paid	Insured sum [death]
1.	21.04.97	American Home Assurance Co. ("the 1st Defendant")	S$79.00	S$200,000.00
2.	15.05.97	Union Des Assurances de Paris-IARD (now "the 4th Defendants")	S$65.00	S$200,000.00
3.	20.05.97	Great Eastern Life Insurance Co. Ltd	S$10.82 (monthly)	S$100,000.00
4.	23.05.97 (applied 19.05.97)	Winterthur Insurance (Far East) Pte Ltd ("the 5th Defendants")	S$36.00	S$100,000.00
5.	Nil (applied 23.05.97)	American International Assurance Co Ltd	$60.15 (semi-annually)	S$ 5,000.00
6.	Nil (applied 23.05.97)	American International Assurance Co Ltd	$60.15 (semi-annually)	S$ 5,000.00
7.	Nil (applied 23.05.97)	American International Assurance Co Ltd	$644.02 (semi-annually)	S$300,000.00
8.	27.05.97	QBE Insurance (International) Ltd ("the 3rd Defendants")	S$35.00	S$100,000.00
9.	27.05.97	NTUC Income Insurance Co-operative Ltd ("the 2nd Defendants")	S$60.00	S$200,000.00
			S$1,050.14	S$1,210,000.00"

THE PLAINTIFF’S CASE

6 The first three witnesses of the Plaintiff were Cambodians. They were part of an Investigation Committee formed to look into the death of the accused. The Plaintiff did not manage to file their affidavits of evidence-in-chief and they therefore testified orally. All three gentlemen spoke in the Khmer language.

7 Hun Sothy has been a police officer in Cambodia for about 17 years. His duties and training included going to study the scenes of crime and to analyse any bodies found. He explained that an Investigation Committee comprising representatives from various government departments would be established whenever there was a case involving the death of a foreign national.

8 On 2 June 1997, he received a report from the police sometime after 1 pm that a man had died in Room 505 of the Pailin Hotel. He ordered the room to be sealed.

9 When he arrived at the hotel at about 2 pm, some members of the Investigation Committee were there. They waited for the rest to arrive before entering the hotel room.

10 He interviewed Lim Chok Young, a chambermaid of the hotel and an employee from the photography shop near the hotel. The timing of the incident as told by the latter two was consistent with that narrated by Lim Chok Young. The Investigation Committee examined the bedroom and the bathroom and found nothing unusual. There was nothing present at the scene that could have been used as a weapon. There was no sign of forced entry or of struggle. The floor in the bathroom was slippery because it was wet. The water level in the bath tub was very low because the water had been flowing slowly into the drainage hole. There was no blood stain in the bedroom or in the bathroom.

11 The deceased’s body (now clothed) had been placed on the bed earlier. It was moved by the Investigation Committee to the floor. They examined the body and found a scratch mark on the left cheek measuring 1 cm long and 0.5 cm wide. There was no blood seen at the scratch. Another similar scratch mark was found on the right arm of the deceased near the wrist.

12 Based on all the above, the Investigation Committee concluded that the deceased had died from drowning. The investigations concluded at about 5 pm that day.

13 The translated report of the Investigation Committee stated as follows:

NATION RELIGION KING

Police Technical and Criminal Office
No. 088/97 S.N.R

Phnom Penh, 02 June 1997

At 13h30, received from Mr. Houy Song, Chief of Criminal Section, 7 Makara District, reported that a dead man, which happened at 12h15, on 02 June 1997, in the room 505, Pailin Hotel, Preach Monivong Street, Sangkat Orussei IV, 7 Makara District.

Composition of the Committees are:

- Mr. Chim Panna + Mr. Sann Sopat + Mr. Try Sovannara
- Mr. Houy Song, Chief of Criminal Section, 7 Makara District
- Mr. So Vandy, Deputy Chief of Immigration Section
- Mr. Sou Sara, Chief of Police Section, Orussei IV
- Mr. Lek Se, Forensic medical doctor of Phnom Penh city
- Mr. Thoung Ramy, Representative of Procurator of Phnom Penh City.

The Witness:

- Mr. Lim Chok Young, Nephew of the dead

The Committees started to examine at 14h00, on 02 June 1997.

- The accident place : changed

The Committees examine the place :

In the room 505, Pailin Hotel, Preach Monivong Street, Sangkat Orussei IV, 7 Makara District.

The view around the room :

I. The North part of the accident room is room No. 506

II. The South part of the accident room is room No. 504

III. The East part of the accident room is Preach Monivong Street

IV. The West part of the accident room is an exit-way

We examined the accident place in the bath tub.

This bath tub is 1,70m long, 0,50m wide, 0,40m tall, 0,40m deep with water and without cover. Wee asked, Mr. Lim Chock Young, sex : male, age : 44, tourist, staying in the hotel in the accident room, who is the nephew’s corpse, was known that the victim was died in this bath tub. Around the accident place we found nothing or anything else to be noticed.

Examine the body’s corpse : Mr. Lim Mah Chan, sex : male, age : 64, tourist, Nationality : Singaporean, staying in room 505, Pailin Hotel (holder of passport No. 07099840, arrived in Phnom Penh on 30-05-97), the corpse is white (color), rather thin, 1,63m tall and his clothes was changed already.

Examine the scratches on the body corpse

- There are 2 small scratches on the left cheek, 1c.m long and 0.50c.m wide.

- There is a scratch on the wrist (right hand) 1c.m long and 0,50c.m wide.

- When we press his abdomen, there was some water coming out from his mouth.

- Besides these, nothing else to be noticed.

For envestigation the Committee has :

I. Make photo :

The accident room and the corpse.

II. Draw the plan of :

The accident place and make note on the scratches.

The committee has finished the examination at 17h00, on 02 June 97. After read the note, the above Committees signed as follow :

Participants	Responsible examine	Reporter
Mr. Houy Song	Mr. Prach Nhat	Mr. Chim Panna
Mr. So Vandy
Mr. Sou Sara	Witness
Mr. Lek Se	Mr. Lim Chok Young
Mr. Thoung Ramy.		"

14 Although the above report did not state what the Committee’s findings were, Hun Sothy explained that they found no foul play and concluded that the deceased had slipped, fallen into the bath tub and drowned. They left the report containing the Committee’s conclusions to the medical specialist, Dr Lek Se.

15 Under cross-examination, Hun Sothy said that Lim Chok Young did tell them that he had tried to resuscitate the deceased after he was removed from the bath tub but could not recall what exactly Lim Chok Young had said. Asked how the deceased could have ended up lying face down in the bath tub, he replied that it all depended on whether the deceased fell into the bath tub face up or face down. The Committee was informed that the deceased was naked and lying face down in the water. He could not recall whether Lim Chok Young said anything about the position of the deceased’s right arm when he was found in the bath tub.

16 Hun Sothy emphasized that the Committee’s conclusion was a collective one made after all the individual members, who were specialists in their own field, had expressed their opinion. They felt that the scratch...