Zhongguo Remittance Pte Ltd v Samlit Moneychanger Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Koh Jiaying
• Judgment Date: 31 March 2020
• Neutral Citation: [2020] SGDC 73
• Court: District Court (Singapore)
• Docket Number: District Court Summons No. 1913 of 2019 in District Court Suit No. 3198 of 2017
• Year: 2020
• Published date: 09 April 2020
• Hearing Date: 19 July 2019,05 August 2019,24 September 2019,21 June 2019,26 September 2019
• Plaintiff Counsel: Kevin Kwek/Jason Yan (Legal Solutions LLC)
• Defendant Counsel: Balakrishnan s/o Nagamuthu/ Si Hoe Tat Chorng (Actus Legal LLP)
• Subject Matter: Contempt of Court,Civil Contempt
• Citation: [2020] SGDC 73

District Judge Koh Jiaying: Introduction

The Plaintiff and the 1st Defendant are companies carrying on the business of providing remittance services, located within People’s Park Complex. The Plaintiff has outlets at unit numbers #02-100, #02-105, #02-106, #02-K90 and K91 and #03-14.¹ The 1st Defendant operates from unit #01-36 and the 2nd and 3rd Defendants are its employees.²

The Plaintiff’s pleaded case, as set out in the Statement of Claim filed on 3 November 2017, was that the 1st to 3rd Defendants unlawfully conspired to injure the Plaintiff by unlawful means, namely by harassing the Plaintiff’s employees and that the 2nd and 3rd Defendants (whether as individuals or as the 1st Defendant’s officers, agents and/or employees) performed acts of harassment against the Plaintiff’s employees.³ The 1st to 3rd Defendants denied the claim, and averred, among other things, that the 1st Defendant’s employees had committed various acts of harassment, and/or intimidation and that Mr Jed Huang, the Chief Executive Officer of the Plaintiff, had attempted to procure the 1st Defendant to agree to an unlawful price-fixing arrangement with the Plaintiff.⁴

On 3 July 2018, the Plaintiff and the 1st to 3rd Defendants entered into a consent judgment (“Consent Judgment”).⁵ The full terms of the Consent Judgment are set out below:

“By consent, it is this day adjudged that

1. The Plaintiff, by itself or through its officer(s), employees(s) and/or agent (s), shall be restrained from performing acts or communicating words, which a reasonable person would know to be threatening, abusive, harassing, intimidating and/or insulting towards the 1st, 2nd and/or 3rd Defendants, including their officer(s), employee(s) and/or agent(s); 2. The Plaintiff, by itself or through its officer(s), employee(s) and/or agent(s), shall be restrained from going to the 1st, 2nd and/or 3rd Defendants (sic) premises to solicit for business; 3. The 1st, 2nd and 3rd Defendants, by themselves individually or through its officer(s), employee(s) and/or agent(s), shall be restrained from performing acts or communicating words, which a reasonable person would know to be threatening, abusive, harassing, intimidating and/or insulting towards the Plaintiff, including their officer(s), employee(s) and/or agent(s); and 4. The 1st, 2nd and 3rd Defendants, by themselves individually or through its officer(s), employee(s) and/or agent(s), by itself or through its officer(s), employee(s) and/or agent(s), shall be restrained from going to the Plaintiff’s premises to solicit for business.”

On 10 May 2019, the Plaintiff was granted leave of court to apply for an order of committal against the 2nd and 3rd Defendants for their failure, neglect and/or refusal to comply with paragraph 3 of the Consent Judgment. On 23 May 2019, the Plaintiff filed the present application seeking an order of committal against the 2nd and 3rd Defendants (“the Defendants”).

The Defendants’ position is as follows: The Consent Judgment has not been endorsed with a penal notice as required pursuant to Order 45 r 7(4) of the Rules of Court. The Consent Judgment was recorded pursuant to a settlement agreement between the Plaintiff and the 1st to 3rd Defendants (“Settlement Agreement”), which provided (in Clause 8) that any future dispute arising between the parties shall be submitted for mediation and parties may proceed to resolve the dispute in court and/or through the law enforcement agencies if mediation fails (“Mediation Clause”). The 2nd and 3rd Defendants did not receive any request or notification of mediation. Accordingly, the Court should not exercise its discretion to enforce the order notwithstanding the absence of a penal notice⁶; There must be at least a reasonable doubt as to whether any and all of the alleged incidents were either contrived or greatly exaggerated by the Plaintiff and their witnesses.⁷

Absence of Penal Notice

In respect of the issue of the penal notice, the Defendants submit that the Settlement Agreement envisaging a different recourse for any breaches (i.e. mediation) should be taken into consideration.⁸

The Plaintiff, on the other hand, submits that it is just in the circumstances for the Court to exercise its discretion to dispense with personal service and the penal notice as the Defendants clearly had notice of the Consent Judgment and were aware of the terms of the orders, and the Defendants also had the benefit of legal advice and were alive to the consequences of non-compliance. The Plaintiff further submits that there is no dispute arising between the parties “as depicted in Clause 8 of the Settlement Agreement”, the Consent Judgment does not make any mention of parties having to submit to mediation before commencing committal proceedings, and in any event, that the present committal proceedings are not the appropriate forum to raise such procedural objections. According to the Plaintiff, these issues should have been dealt with by the Defendants taking out an application to set aside the leave granted to the Plaintiff to commence committal proceedings under O 32 r 6 and/or to stay the committal proceedings and proceed to mediation.⁹

I do not agree with the Plaintiff’s submission that the present committal proceedings are not the appropriate forum to raise these objections. It is trite law that the threshold for granting leave to apply for an order for committal under O 52 r 2 is that of a prima facie case of contempt. The court then decides at the second stage, after the leave stage, on the substantive merits of the committal application: see Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1 at [58]¹⁰. Given that the issue of the absence of a penal notice would be directly relevant to whether contempt can be established, it would be extremely unfair and in my view, a fundamental breach of justice if the alleged contemnor is precluded from raising such an issue at the second stage of contempt proceedings. The Court is therefore fully entitled at this stage of committal proceedings to consider the Defendants’ objection in respect of the absence of a penal notice.

An order of court may not be enforced by an order of committal unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question and there is endorsed on the copy of the order served a penal notice in Form 81 of Appendix A of the Rules of Court.¹¹ The Defendants do not dispute that the Consent Judgment was served on the Defendants via their then-solicitors and the Defendants therefore had notice of the same.¹² The issue is therefore whether the Court should exercise its discretion to enforce the Consent Judgment under Order 45 r 5 by an order of committal notwithstanding the absence of the penal notice. Order 45 r 7(6) provides that “[a]n order requiring a person to abstain from doing an act may be enforced under Rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this Rule if the Court is satisfied that, pending such service, the person against whom or against whose property it is sought to enforce the order has had notice thereof either (a) by being present when the order was made; or (b) by being notified of the terms of the order, whether by telephone, telegram or otherwise.”

In Allport Alfred James v Wong Soon Lan [1992] 2 SLR(R) 100, the Court of Appeal stated that if the relevant order has been served personally but the copy served does not contain the penal notice, then the service of the order has not been effected in accordance with O 45 r 7. The Court of Appeal exercised its discretion under O 45 r 7(6) to enforce the order as the respondent knew fully well the terms of the order and throughout had the benefit of legal advice, and there could be no excuse for the respondent not understanding the terms of the order.¹³ Similarly in this case, the Defendants knew fully well the terms of the order, especially given that it was a consent judgment, and had the benefit of legal advice. However, the only issue is whether the Mediation Clause would militate against the exercise of my discretion under O 45 r 7(6), because it was clear to parties that non-compliance of the Consent Judgment would not lead to court proceedings (i.e. committal proceedings) due to the Mediation Clause. In this regard, in Ang Boon Chye and anor v Ang Tin Yong [2011] SGHC 124, the High Court noted that one of the exceptional circumstances in which the defendant can intervene and object to the plaintiffs’ application for leave to apply for an order of committal, is where the plaintiffs had undertaken not to take out committal proceedings.¹⁴

For completeness, the relevant portion of the Mediation Clause is set out below: “8. …Any future dispute arising between the parties, including but not limited to disputes arising out of or in connection with this Settlement Agreement, such as any question regarding its existence, validity or termination, shall be submitted for mediation. The aggrieved party shall submit a request to the Singapore Mediation Centre for mediation within 21 days of the dispute arising. Such party to the mediation must be represented by a representative who has the authority to negotiate and settle the dispute. Unless agreed by the parties, the mediator shall be appointed by the Singapore Mediation Centre. The mediation shall take place in Singapore in the English language and the parties agree to be bound by any settlement agreement reached. Should the parties fail tor (sic) reach a settlement through mediation, then the parties may proceed to resolve the dispute in through (sic) the courts and/or the law enforcement agencies of the Republic of Singapore. For avoidance of doubt, the parties shall be deemed to have failed to reach a settlement if either party serves written notice terminating the...