Cases

Conflict of Laws | Criminal Procedure | Evidence

CONFLICT OF LAWS
Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 2 SLR 81

Court of Appeal - Civil Appeal No 600101 of 2001
Yong Pung How CJ, Chao Hick Tin JA and Tan Lee Meng J
22 January, 21 March 2002

Foreign judgment - Enforcement - Applicable principles - Conclusiveness of foreign judgment - When local court will refrain from enforcing foreign judgment

Foreign judgment - Enforcement - Allegation that foreign judgment procured by fraud - Approach to be taken by local court - Whether mere allegation of fraud precluded foreign judgment from being enforced locally - Circumstances in which foreign judgment may be challenged on ground of fraud

Manjit Singh and Sree Govind Menon (Manjit & Partners) for the appellant.
Siva Murugaiyan and Parveen Kaur Nagpal (Colin Ng & Partners) for the respondents.

The respondent ('Les Placements') was a Canadian company which entered into a loan agreement ('the loan agreement') with a Singapore company, Wiraco Trading Pte Ltd ('Wiraco'), in 1995. At the time of the loan agreement, the President of Les Placements was one Mr Germain Gauthier ('Germain'). Under the terms of the agreement, Les Placements was to lend Wiraco C$350,000 and the appellant ('Hong') gave Les Placements a guarantee to ensure the repayment of the loan. Wiraco subsequently defaulted in repaying the loan and Les Placements commenced proceedings against it and Hong in the Superior Court of the District of Montreal, Quebec, Canada. At the trial, Hong alleged that he had never guaranteed a loan from Les Placements to Wiraco. Instead, he claimed that either the guarantee he executed related to a personal loan from Germain to Wiraco which was never effected, or that the arrangement was that Germain was to extend a personal loan to him. The thrust of his defences was therefore that there was no privity of contract between Hong and Les Placements. The Canadian court rejected Hong's defences and held that in relation to the loan transaction, Germain was not acting for himself but on behalf of Les Placements, and that the guarantee was addressed to him as the head of Les Placements. It then held that both Hong and Wiraco were jointly and severally liable to Les Placements for C$360,645 plus interest and costs. Dissatisfied with this decision, Hong and Wiraco appealed to the Court of Appeal in Quebec but their appeal was disallowed.

Upon obtaining the judgment in Canada, Les Placements commenced a writ action in Singapore to enforce the Canadian judgment against Hong under common law. It then applied for, and received, summary judgment in its favour. Hong appealed, arguing that the Canadian judgment had been obtained by fraud because Les Placements had fraudulently failed to disclose to the Canadian court that the guarantee was addressed to Germain and not Les Placements. As such, the Canadian judgment was not conclusive and that this was so, even if the defence of fraud had been investigated into by the Canadian court and rejected. Furthermore, Hong argued that he was entitled to have the issue of fraud re-litigated in Singapore even if there was no new material before the court supporting his allegation of fraud. Finally, Hong asserted that there was, in any case, fresh material to support his allegation: the sworn statements of two witnesses which were prepared by Les Placements in the Canadian proceedings but were never produced before the Canadian court.

Held, dismissing the appeal:
A foreign judgment in personam given by a foreign court of competent jurisdiction may be enforced by an action for the amount due under it so long as the foreign judgment is final and conclusive as between the same parties. Such a foreign judgment is conclusive as to any matter thereby adjudicated upon and cannot be impeached for any error, whether of fact or of law; Godard v Gray (1870) LR 6 QB 139 and Ralli v Angullia (1917) 15 SSLR 33 followed. In respect of such an action, an application for summary judgment may be made on the ground that the defendant has no defence to the claim; Grant v Easton (1883) 13 QBD 302 followed.

A local court will only refrain from enforcing a foreign judgment if it is shown that the plaintiff procured it by fraud, or if its enforcement would be contrary to public policy or if the proceedings in which the judgment was obtained were opposed to natural justice.

There were two distinct views as to how a domestic court should treat a foreign judgment where fraud was raised in relation to that foreign judgment, the English position as enunciated in Abouloff v Oppenheimer & Co (1882) 10 QBD 295 and the Canadian-Australian approach laid down in Jacobs v Beaver Silver Cobalt Mining Co (1908) 17 OLR 496 and Keele v Findley (1990) 21 NSWLR 444. Under the former approach, so long as fraud was alleged, the defendant was entitled to reopen the issue of fraud even though no new evidence was produced and even though the fraud might have been, and was, alleged in the foreign proceedings. The latter approach allowed the examination of the merits of the foreign judgment only if extrinsic fraud was alleged or if the defendant had discovered evidence of intrinsic fraud after the foreign judgment was passed. The latter approach is consistent with the approach taken by courts when facing an allegation of fraud vis-à-vis domestic judgments.

The approach adopted in Abouloff had less to commend itself as it would only encourage endless litigation. It is of paramount importance that there should be finality. That said, the rule against re-opening issues is not absolute. As established in the body of law governing the re-litigation of issues already adjudicated upon by domestic courts, there are exceptions but these are subject to safeguards. There is no logical reason why a different rule should apply in relation to a foreign judgment. It is also vitally important that no court of one jurisdiction should pass judgment on an issue already decided upon by a competent court of another jurisdiction. This is the doctrine of comity. After all, two tribunals, both acting conscientiously and diligently, could very well come to a different conclusion on the same facts. There is no question of which is more correct. To seek to make such an evaluation would be an invidious exercise and could lead to the undesirable consequence of encouraging judicial chauvanism.

On the other hand, the approach taken by the Canadian-Australian cases and Ralli v Angullia is preferable since it is more in line with the principles of conflict of laws and treats foreign judgments in the same way as domestic judgments. It is consonant with the doctrine of comity of nations. It avoids any appearance that this court is sitting in an appellate capacity over a final decision of a foreign court. Applying this approach, where an allegation of fraud had been considered and adjudicated upon by a competent foreign court, the foreign judgment may be challenged on the ground of fraud only where fresh evidence has come to light which reasonable diligence on the part of the defendant would not have uncovered and the fresh evidence would have been likely to make a difference in the eventual result of the case.

Hong had objected to the admission of the two sworn statements in the Canadian proceedings and now sought to rely on them to show that the Canadian judgment was obtained by fraud. He knew of the existence of the statements and of what the two persons stated therein. There was therefore no new evidence of fraud. In any case, even if the statements were admitted in the Canadian proceedings, they would not have made a difference to the court's verdict since they did not really indicate that there was any evidence of fraud. On the contrary, Hong's actions led to an irrefutable inference that there was no fraud and that he had in fact agreed to guarantee the loan from Les Placements to Wiraco.

CRIMINAL PROCEDURE

Public Prosecutor v Luan Yuanxin [2002] 2 SLR 98

High Court - Magistrate's Appeal No 12 of 2002
Yong Pung How CJ
26 March, 2 April 2002

Sentencing - Criminal intimidation - Aggravated form of criminal intimidation - Threat to cause death with use of weapon - Aggravating factors - Whether sentence of two months' imprisonment manifestly inadequate - Relevance of victim's fear for safety in sentencing - Penal Code (Cap 224) s 506

Sentencing - Voluntarily causing hurt - Strangulation and biting - Use of considerable degree of force - Intent to cause serious injury - Family violence - Whether maximum sentence warranted in circumstances - Penal Code (Cap 224) s 323

Peter Koy (Deputy Public Prosecutor) for the appellant.
Respondent in person.

The respondent pleaded guilty to one charge for criminal intimidation and two charges for voluntarily causing hurt punishable under s 323 of the Penal Code (Cap 224). On 1 September 2001, the respondent had threatened to kill his wife ('the victim') while brandishing a cleaver and standing within striking distance from her. The next day, he attempted to strangle her with a copper wire. He also bit the victim on her right hand and her back in a bid to make her release her grip on the wire. The victim had slipped her right hand between the wire and her neck in order to prevent the wire from further tightening against her neck. A fourth charge relating to voluntarily causing hurt by using both his hands to strangle the victim, an offence punishable under s 323, was taken into consideration in sentencing. The district judge sentenced the respondent to two months' imprisonment on the charge of criminal intimidation, two months' imprisonment on the charge of strangling the victim with a copper wire and one month's imprisonment on the charge of biting the victim on her back and on her right hand. The sentence of imprisonment for strangling the victim was to be consecutive to the sentence for criminal intimidation, thereby making a total term of imprisonment of four months. The prosecution appealed on the ground that the sentences passed were manifestly inadequate.

Held, allowing the appeal and enhancing the sentences:
A threat to cause death is contemplated by s 506 to be an aggravated form of criminal intimidation which attracts a much harsher punishment. Such a threat when made in all seriousness by someone who is not clearly incapable of carrying out the threat is something that should never be taken lightly. This is particularly so when a weapon is used by the accused as part of the threat since the presence of a weapon serves not only to make the threat more menacing, but also goes towards proving the maker's intent to cause alarm to his victim.

While the victim's subjective apprehension of fear is not crucial to the substantive offence of criminal intimidation as all that needs to be shown is that the victim had some objective basis for being alarmed (see Ramanathan Yogendran v PP [1995] 2 SLR 563), it remains a relevant factor for the purposes of sentencing. The victim in the present case had clearly feared for her safety as evinced by her leaving the house shortly after the incident to look for the police. The fact that the victim was in fear of her safety is an aggravating factor that goes towards the seriousness of the offence.

The fourth charge that was to be taken into consideration for the purposes of sentencing, related to the respondent's attempt to strangle the victim with his hands some ten minutes before he made the threat to kill her. This was a further aggravating factor which also ought to be taken into consideration by the district judge. All in all, the imposition of a proportionately higher sentence of two years' imprisonment was clearly warranted.

The respondent's acts relating to his two charges for voluntarily causing hurt were violent and vicious and involved some degree of premeditation. The injuries sustained by the victim showed the considerable amount of force the respondent had used on the victim as well as his intention to cause the victim serious injury. Furthermore, the attack was carried out in front of the respondent's eight-year-old daughter who had to witness this violent attack on her mother by her own father.

Given the aggravating circumstances of this case, the court had no qualms imposing the maximum sentence of one year's imprisonment for both the respondent's charges under s 323. There is a need to deter anyone else who might resort to such violence in view of the deplorable increase in the number of cases involving family violence.

The two sentences for criminal intimidation and voluntarily causing hurt by strangulation were ordered to run consecutively, making a total sentence of three years' imprisonment.

Ang Kah Kee v Public Prosecutor [2002] 2 SLR 104

High Court - Criminal Motion No 1 of 2002; Magistrate's Appeal No 202 of 2001
Yong Pung How CJ
29 January, 26 February, 27 March 2002

Appeal - Fresh evidence - Adducing fresh evidence on appeal - Whether medical reports could have been obtained with reasonable diligence at trial - Whether refusal to admit fresh evidence would lead to miscarriage of justice - Criminal Procedure Code (Cap 68) s 257(1)

Quek Mong Hua and Julian Tay (Lee & Lee) for the applicant/appellant.
Ivan Chua Boon Hwee (Deputy Public Prosecutor) for the respondent.

The complainant, Umi Kulsum binti Nurudin ('Umi'), an Indonesian national, worked as a domestic maid in the household of the accused, Ang Kah Kee ('Ang') and his wife, Mdm Serene Eng Choo Hwee ('Mdm Eng').

About five days after she started work, Umi was allegedly punched, once, in her right eye, by Ang at or around 10pm on the night of 20 April 2000. According to Umi, this was because Ang thought that she had failed to obey his clear instructions to carry the baby out of the bedroom. He was also unhappy with the way she worked. Umi continued with her task of mopping the floor after the alleged incident. After that, she took a shower and then went to bed.

At 3.30am the next morning, Umi woke up. She packed up some belongings in a bag and was determined to escape from the flat. She claimed to be in grave fear of being hit again. As she had no keys to the front door, Umi climbed out of the fifth-storey window and suspended herself from the metal protruding normally used to hold drying poles. Letting go of her grip, she plunged 13m onto the ground below and suffered numerous cuts and bruises all over her body, including a fractured hip. She got up and started walking aimlessly until she finally decided to approach one Mr Salleh at around 6am. She was taken to the home of this good Samaritan's nephew. In the evening, she finally revealed to Mr Salleh's relatives that she had been punched by her employer. The police were called in.

Ang's defence was essentially one of denial. He denied hitting Umi. He also tried to suggest several reasons why Umi might have wanted to run away from the flat.

Ang was charged with and convicted for voluntarily causing hurt to a domestic maid. He was sentenced to three months' imprisonment. He appealed against conviction and sentence, and also filed a criminal motion to adduce fresh expert medical evidence to show that the bruise around Umi's eye was more likely to be due to the fall rather than a punch.

Held, dismissing the motion but allowing the appeal against conviction and sentence:
The criminal motion to adduce the two medical reports was denied because it was clearly open to the defence during the trial to call the doctors as expert witnesses. As such the requirement of non-availability was not satisfied.

The court may allow evidence to be admitted at the appeal stage notwithstanding its availability at trial, if, in extenuating circumstances, the rejection of such evidence would result in a miscarriage of justice; Lee Yuen Hong v PP [2000] 2 SLR 339, Chan Chun Yee v PP [1998] 3 SLR 638 followed. The facts of the present case, however, did not fall within this narrow exception because the defence had been content at trial to rely on the evidence of the existing medical witnesses called by the prosecution. Even if its own expert witness did not want to testify, it was open to the defence to seek other experts or simply to subpoena the reluctant expert witness from the Centre for Forensic Medicine, under s 180(m)(i) of the Criminal Procedure Code.

Umi alleged that she was punched once at 10pm on 20 April 2000. After the incident, she continued with her chores, took a shower, and then went to bed. Ang continued reading newspapers and watching television. Five and a half hours later, when Ang and the family were sound asleep, Umi woke up and escaped through the window. From all the circumstances, it could not be said that Umi was in grave fear of being hit again.

The burden of finding a plausible explanation for Umi's dramatic behaviour of jumping out of a fifth storey window did not lie with Ang. In any case the theories advanced by the defence, when viewed altogether, did not seem all that implausible.

In view of all the circumstances, Umi's act of escaping through a fifth-storey window was clearly illogical. It demanded the almost impossible to expect the defence to cough up an explanation that was commensurate with the drastic nature of her actions. When an act was clearly not logical or rational, it would be a fallacy to persist in making logical connections and extensions out of it.

The finding that the medical evidence showed that the racoon bruise was a result of the punch rather than the fall was clearly wrong. At best, the expert testimonies of the two doctors were equivocal about the cause of the bruise. Umi had fallen from a height of 13m and sustained no less than 26 injuries all over her body, including a minor bruise over her left eye. Clearly there was a real possibility that she could have sustained the racoon bruise under her right eye from the fall.

Taking into account the surrounding circumstances, inadequate significance had been ascribed to the fact that Umi did not complain to Mr Salleh that she had been punched by her employer. She was the one who had approached Mr Salleh for help. He could communicate with her in a common tongue and had gone out of his way to provide her food and a temporary shelter. The explanation that Umi proffered was not a good enough reason to explain her reticence; Tang Kin Seng v PP [1997] 1 SLR 46 followed.

The fact that the credibility of Ang and Mdm Eng had been seriously discounted did not prevent the defence from successfully arguing that it had cast reasonable doubt over the prosecution's case. This was because an acquittal followed either from successfully arguing an affirmative defence, which Ang had failed to do here, or by casting reasonable doubt over the prosecution's case by pointing to inherent flaws or improbabilities in its logic and evidence; Tan Buck Tee v PP [1961] MLJ 176 followed.

EVIDENCE
Ang Kah Kee v Public Prosecutor [2002] 2 SLR 104

High Court - Criminal Motion No 1 of 2002; Magistrate's Appeal No 202 of 2001
Yong Pung How CJ
29 January, 26 February, 27 March 2002

Burden of proof - Whether burden on defence to explain complainant's seemingly illogical and irrational behaviour

Complaints - Reticence in making complaint - Effect of - Assault - Reluctance to tell good Samaritan about alleged assault - Whether explanation reasonable in light of all circumstances

See CRIMINAL PROCEDURE.