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- Significant cases & deals featuring our lawyers
Lee Eng Beng SC from the Business Finance and Insolvency Practice, Disa Sim from the Appeals & Issues Practice, and Rajah & Tann alumna Ng Kexian successfully acted for Hong Leong Finance Ltd ("HFL") in New York Morgan Stanley Asia (Singapore) Pte (formerly known as Morgan Stanley Dean Witter Asia (Singapore) Pte) and others v Hong Leong Finance Ltd [2013] SGHC 83, in resisting an application to restrain HLF's New York proceedings against the Plaintiffs. This case revolved around the Pinnacle Notes, of which the Plaintiffs (entities from the Morgan Stanley Group) were, inter alia, the arranger and issuer.
After the failure of the Pinnacle Notes, HLF, as the distributor, began proceedings against the Plaintiffs in New York. HLF's proceedings were materially identical to an ongoing Class Action in New York alleging fraud on the part of the Plaintiffs. The Plaintiffs sought to restrain HLF from continuing proceedings anywhere outside of Singapore, but this was rejected by the Singapore High Court. The Court held that the Plaintiffs had not shown that Singapore was a more appropriate forum than New York, that the New York proceedings were legitimately brought and were not vexatious or oppressive, and that it would be contrary to considerations of comity to restrain the New York proceedings.
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Elaine Tay and Wang Ying Shuang from the Commercial Litigation / Insurance Practice, and Douglas Chi from the Appeals & Issues Practice, successfully represented the Respondents in Pacific Chemicals Pte Ltd v MSIG Insurance (Singapore) Pte Ltd & Anor [2013] 1 SLR 324, in their application to strike out the Appellant's Notice of Appeal, on the basis that the Appellant had failed to seek and obtain leave of Court to appeal against an order made on an interlocutory application as required under section 34(2)(d) read with paragraph (e) of the Fifth Schedule of the Supreme Court of Judicature Act ("SCJA").
The decision of the High Court which forms the subject of appeal was made pursuant to an application brought by the Appellant-Plaintiff for a preliminary determination of issues pursuant to O 33 r 2 of the Rules of Court ("Decision"). The Decision was substantially in favour of the Respondents-Defendants. Despite the Respondents having notified the Appellant after it had filed its Notice of Appeal that the Appellant ought to have first sought leave of the High Court as required under the SCJA (recently amended in 2011), the Appellant refused to withdraw its appeal taking the position that leave was not required. The Respondents therefore made an application to strike out the Notice of Appeal.
The Court of Appeal had no hesitation in holding that although the Decision dealt with substantive rights and O 33 r 2 encompassed a wide range of situations, the application upon which the order being appealed against was made, was an interlocutory application. It followed that the Appellant had to obtain leave of Court under the recently amended provisions of the SCJA (s 34(2)(d) read with para (e) of the Fifth Schedule of the SCJA). Even though the Court of Appeal was of the view that the appeal should be heard - incidentally parties had already filed their respective Cases by the time the Respondents' striking out application was heard - the Court nevertheless recognised that the Appellant ought to regularise proceedings by obtaining the requisite leave of Court.
The Respondents' application was therefore granted. Back to Top Print
Lai Yew Fei and Alec Tan from the Commercial Litigation Practice successfully represented one of three Petitioners in a criminal revision application, Li Weiming and other matters v Public Prosecutor [2013] SGHC 69. The High Court reversed the District Court’s earlier decision to reject the application for further particulars on the charges against the petitioners.
Brief Facts
The charges related to an alleged conspiracy to defraud under section 477A of the Penal Code ("PC") ("Section 477A charge"), based on a supposedly fictitious contract between the petitioners. The Prosecution's summaries of facts in the Case for the Prosecution ("Prosecution’s Case") were "completely identical" to the corresponding charges. In particular, the following information was not disclosed: (i) the identities of the parties allegedly defrauded; (ii) the reasons why the contract was allegedly fictitious; and (iii) the details of the alleged conspiracy.
The Petitioners therefore sought, inter alia, further particulars from the Prosecution in light of the Prosecution's failure to provide adequate particulars "in support of the charge" as required under section 162(b) of the Criminal Procedure Code ("CPC"). The application was dismissed by the District Court and the Petitioners subsequently applied to the High Court for a revision of the District Court's Order.
The Prosecution argued that: (i) the disclosed facts satisfied the requirement of section 162 of the CPC, notwithstanding the omission of the defrauded parties' names or the basis of the fraud; (ii) even if there was non-compliance, the court had no jurisdiction to order further particulars; and (iii) recourse for breach of section 162 of the CPC should be left to the trial judge who could draw the necessary adverse inferences.
Holding
Jurisdicton to Revise
The Court rejected the Prosecution's argument that it had no jurisdiction to revise a court order which was not made at a Criminal Case Disclosure Conference ("CCDC") under a literal reading of section 404 of the CPC. Reiterating the principle that the court should look at substance rather than form, the Court held that since the order arose from an application made to the District Court in respect of the CCDC process, that particular application should be regarded as a continuation of the CCDC. Therefore, any consequential order made would naturally fall under the High Court's revisionary powers.
Consequence of Non-Compliance
Although a literal reading of section 169 of the CPC suggests that the court may only draw adverse inferences or order a discharge not amounting to an acquittal ("DNAQ") in cases of non-compliance, the Court held that the consequences prescribed in section 169 are not exhaustive because a holistic reading of section 404(3) and section 404(5) of the CPC clearly demonstrates that the court's revisionary powers are wider than the remedies available under section 169 of the CPC. Therefore, the court has the jurisdiction to order further particulars even though such a remedy is not expressly provided under section 169 of the CPC.
What Constitutes an Adequate Summary of Facts in the Context of the Section 477A charge
The Court stated that a charge must contain all the essential ingredients of the alleged offence, in particular, the time and place of the alleged offence, the person or thing against whom the alleged offence was committed and details as to how the alleged offence was committed. The summary of facts tendered by the Prosecution must reinforce the particulars contained in the charge and offer further notice and clarity of the case which the Defence is to answer, so as to present a more complete picture of the primary offence before it can be considered to be "in support of the charge" pursuant to section 162(b) of the CPC.
Except for particulars of the conspiracy which were found to be sufficiently disclosed in the statements in the Prosecution's case, the Court held that particulars of (i) the party against whom the petitioners had allegedly conspired to defraud and (ii) how the contract was fraudulent, had to be provided; otherwise, the omission of these particulars from the Prosecution's summary of facts could not be viewed as being "in support of" the Section 477A charge faced by each of the petitioners and unfairly prejudice the position of the petitioners who would be vulnerable to surprises at the trial.
Identity of Defrauded Party
After reviewing Indian authorities and academic commentaries on India's equivalent of section 477A of the PC, the Court concluded that where a Section 477A charge is involved, the Prosecution must present a specific case as to the nature of the accused's fraudulent intention, including the person who was the object of the fraudulent intention in order to establish an "intent to defraud", which was an essential ingredient of the Section 477A charge.
Although the explanatory note in section 477A of the PC does not require any particular victim of the alleged fraud to be named in the charge, the Court held that the explanatory note is only applicable in cases where the deception is directed indiscriminately at the general public. Unless there was an alleged "general intention" to defraud, the parties against whom the "particular intention" to defraud were directed had to be identified.
Significance
This is possibly the first case in Singapore in which the High Court considered the provisions of the new CCDC regime. This decision highlights that the CCDC provisions in the CPC should not be interpreted literally. The general statutory purpose of the CCDC provisions must be borne in mind when interpreting the CCDC provisions, i.e. the CCDC regime is intended to move the criminal discovery process towards greater transparency and parity between the parties so as to help them prepare for trial. Any attempt to construe the provisions contrary to the CCDC's statutory objective in order to gain a strategic advantage in the trial would not find favour with the court.
Note: We had reported this case in the January/February issue of our Newsbytes, before the grounds of decision was delivered on 27 March 2013.
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