Yee Heng Khay (alias Roger) v Angliss Singapore Pte Ltd and another matter

• Court: High Court Appellate Division (Singapore)
• Judge: Belinda Ang Saw Ean JAD
• Judgment Date: 09 May 2022
• Neutral Citation: [2022] SGHC(A) 20
• Citation: [2022] SGHC(A) 20
• Docket Number: Civil Appeal No 82 of 2021 and Summons No 4 of 2022
• Published date: 12 May 2022
• Plaintiff Counsel: Arthur Yap and Ong Hui Jing (CHP Law LLC)
• Defendant Counsel: Ng Lip Chih (instructed) (Foo & Quek LLC) (instructed), Jennifer Sia Pei Ru and Rezvana Fairouse d/o Mazhardeen (NLC Law Asia LLC)
• Subject Matter: Civil Procedure,Appeals,Jurisdiction
• Hearing Date: 18 April 2022

Belinda Ang Saw Ean JAD (delivering the grounds of decision of the court):

In Angliss Singapore Pte Ltd v Yee Heng Khay (alias Roger) [2021] SGHC 168 (the “Judgment”), the trial judge (the “Judge”) found that the appellant, Mr Yee Heng Khay (“Yee”), had breached his duty of confidence in equity and in contract, and his contractual duties of loyalty and fidelity. The Judge found that Yee’s breach had caused losses to the respondent, Angliss Singapore Pte Ltd (“Angliss”), and the Judge awarded damages to Angliss. Yee appealed against the Judge’s decision. His main contention in the Appellant’s Case was that the Judgment was obtained by fraud in that not only was critical documentary evidence in the respondent’s possession concealed, but the respondent’s witnesses also committed perjury by lying on oath. Yee mounted this challenge following his successful application to adduce further evidence on appeal in AD/SUM 19/2021 (“SUM 19” and the “SUM 19 Evidence”).

Besides Yee’s appeal, there was before this court AD/SUM 4/2022 (“SUM 4”), which was Angliss’ application to adduce further evidence on appeal in response to the SUM 19 Evidence and Yee’s case on fraud.

It is important to note the following matters that transpired at the appeal. First, Yee’s counsel, Mr Arthur Yap (“Mr Yap”), sensibly did not oppose SUM 4 upon hearing this court’s observation that the further evidence sought to be adduced on appeal in SUM 4 was in response to the SUM 19 Evidence. Secondly, in light of the way the hearing proceeded, Mr Yap confirmed that fraud, including the deliberate suppression of discoverable documents, was no longer being alleged and pursued in this appeal. It would follow, logically, that perjury would no longer be pursued. Thirdly, as a newly advanced fall back, Yee sought a retrial on the basis that there was a “miscarriage of justice” in circumstances where the SUM 19 Evidence was not available before the Judge and the issue of causation was not fully and properly tried by reference to all the available evidence. The Judge was wrong to hold that Yee had caused Angliss’ loss of the distributorship agreement and Yee should not be made liable for damages in the sum of S$729,423.

We allowed SUM 4 and dismissed the appeal for the reasons below. In explaining our reasons for the dismissal of the appeal, we will first explain why we would have dismissed the appeal even if Yee had persisted with his arguments on fraud, deliberate suppression of documentary evidence and perjury. We will then explain why there is no miscarriage of justice that justified a retrial.

Brief facts and background to the appeal

Angliss is a food distributor and Yee was its former employee. Angliss contended that Yee had, without authorisation, copied and shared restricted files from its information systems. As a consequence of Yee’s misuse of confidential information, one of Angliss’ suppliers, Arla Foods Ingredients Singapore Pte Ltd (“Arla”) bypassed Angliss and entered into a distributorship agreement with another distributor, Indoguna Singapore Pte Ltd, (“Indoguna”), where Yee was employed at the time of commencement of the suit. Angliss sued Yee on four causes of action, namely, (a) breach of confidence; (b) breach of contractual duties of confidence; (c) breach of duty of loyalty and fidelity; and (d) breach of fiduciary duties. Save for the last cause of action, Angliss succeeded on the first three causes of action. The Judge found, among other things, that the relationship between Arla and Angliss was “robust”, such that but for Yee’s breaches, Angliss would have secured the Arla distributorship agreement. The Judge found that Yee had breached his duty of confidence in equity and his contractual duties of confidence, duty of loyalty and fidelity, and accordingly awarded damages to Angliss for loss of profits.

No one from Arla testified during the trial. Yee claimed that after the Judgment was rendered, he showed the Judgment to Arla who then swore an affidavit on behalf of Yee. On 20 September 2021, Yee filed SUM 19 to adduce further evidence contained in the affidavit of one Henrik Bo Peter Eidvall (“Eidvall”) of Arla. Eidvall’s affidavit sought to explain the relationship between Angliss and Arla leading up to the cessation of their over four-decade long distributorship arrangement, and also exhibited emails between Arla and Angliss from three periods: December 2016, May 2017, and January 2018 (the “Emails”). These emails were not disclosed by Angliss during the trial. On 14 December 2021, SUM 19 was allowed. Costs of SUM 19 was reserved.

On 13 January 2022, Yee filed his Appellant’s Case. The SUM 19 Evidence was the central pillar of Yee’s case. Broadly, Yee’s argument was that the SUM 19 Evidence showed that the relationship between Arla and Angliss was not “robust”, and that Angliss’ witnesses had lied on oath. As such, Angliss had committed fraud on the Judge. In short, the Judgment was obtained by fraud in light of the new evidence (ie, SUM 19 Evidence) that was concealed by Angliss. As will be explained below, Yee’s position as explained in his Appellant’s Case was that the court should proceed with the appeal in light of the SUM 19 Evidence.

On 14 February 2022, Angliss filed SUM 4 to adduce further evidence on appeal in response to the new points made by Yee in his Appellant’s Case in reliance of the SUM 19 Evidence. Specifically, Angliss sought to adduce the affidavits of Ms Ding Siew Peng Angel (“Ms Ding”) and Ms Watt Wai Leng (“Ms Watt”). Pending the hearing of SUM 4, Angliss filed its Respondent’s Case on 15 February 2022 that addressed, amongst other things, the SUM 19 Evidence.

Issues before this court

There were three main issues before this court: Should SUM 4 be allowed? How should this court proceed in light of the allegation that the Judgment was obtained by fraud? Was there a miscarriage of justice that justified a retrial?

Whether SUM 4 should be allowed

The three cumulative requirements to adduce further evidence on appeal as set out in in Ladd v Marshall [1954] 1 WLR 1489 (“Ladd v Marshall”) are well established: it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial (“First Limb”); the evidence must be such that, if given, would probably have an important influence on the result of the case, though it need not be decisive; and the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

Yee’s initial position was that SUM 4 should be dismissed because Angliss had not satisfied all three limbs of Ladd v Marshall. Angliss’ broad argument was that the further evidence directly addressed new points raised by Yee after SUM 19 was allowed. Further, even though Angliss was in possession of the Emails, Angliss did not provide discovery of the Emails simply because they were not relevant and necessary to the issues at trial.

We agreed with counsel for Angliss, Mr Ng Lip Chih (“Mr Ng”), that Angliss’ further evidence sought to be adduced in SUM 4 was intended to address new points raised by Yee in his Appellant’s Case. At this stage, we did not have to evaluate the evidential weight of the further evidence.

In our view, the Ladd v Marshall criteria did not govern and apply to the further evidence sought here on appeal. The English High Court in Bioconstruct GmbH v Winspear and another [2020] EWHC 2390 (QB) at [62.2] opined that the Ladd v Marshall criteria are not applicable in relation to further evidence in response to a new claim. Whilst the Ladd v Marshall criteria apply to preserve finality and ensure fairness (see AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2019] 2 SLR 341 at [23]–[26]), the situation here was different when Angliss was not only responding to new points made against it, but also new evidence such as Arla’s internal communication and Eidvall’s assertions in his affidavit. In context, finality was less of a concern, and it would be just to allow Angliss to respond. When we pointed this out to Mr Yap, he did not oppose the application further, and rightly so.

For completeness, we would add that where leave to adduce further evidence is granted, typically, a consequential order would be for the respondent to file affidavits in reply (see for example see AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2020] 1 SLR 1158 at [20] and JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others [2020] 2 SLR 1256 at [35(c)]). Besides, Yee’s case on appeal was significantly different from the case he ran at trial. It would be unfair or defy common sense to deny Angliss an opportunity to respond to the SUM 19 Evidence.

For the reasons above, we allowed SUM 4.

The appropriate course of action in light of the allegation that the Judgment was obtained by fraud General observations

As a starting point, the Court of Appeal in Pradeepto Kumar Biswas v Sabyasachi Mukherjee and another and another matter [2022] SGCA 31 (“Pradeepto Kumar”) stated (at [28]), that a court’s jurisdiction must be established before that court can consider what powers it possesses and may exercise. Hence, this court must first answer the anterior inquiry on appellate jurisdiction before considering what powers it may exercise and the appropriate course of action it should take.

Next, s 43(1) of the Supreme Court of Judicature Act 1969 (2020 Rev Ed) gives the Appellate Division the power to order a new trial in exercise of its civil jurisdiction: see Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] 3 SLR 110 at [53] (“Basil Anthony Herman”). Section 43(4) further provides that the court may order a new trial on limited questions without affecting other parts of the judgment. The Court of Appeal in Basil Anthony Herman noted (at [54], citing Susilawati v...