Yee Heng Khay v Angliss Singapore Pte Ltd

JurisdictionEngland & Wales
CourtHigh Court
JudgeBelinda Ang Saw Ean JAD,Woo Bih Li JAD,Quentin Loh JAD
Judgment Date09 May 2022
Docket NumberCivil Appeal No 82 of 2021 and Summons No 4 of 2022
Yee Heng Khay (alias Roger)
and
Angliss Singapore Pte Ltd and another matter

[2022] SGHC(A) 20

Belinda Ang Saw Ean JAD, Woo Bih Li JAD and Quentin Loh JAD

Civil Appeal No 82 of 2021 and Summons No 4 of 2022

Appellate Division of the High Court

Civil Procedure — Appeals — Leave — Admission of further evidence on appeal — Further evidence in response to new points and evidence — Whether further evidence should be allowed

Civil Procedure — Appeals — Setting aside and retrial — Alleged miscarriage of justice due to evidence unavailable to trial judge — Whether judgment should be set aside for retrial — Section 43 Supreme Court of Judicature Act 1969 (2020 Rev Ed)

Civil Procedure — Appeals — Setting aside and retrial — Judgment allegedly obtained by fraud — Appropriate course of action to be taken — Section 43 Supreme Court of Judicature Act 1969 (2020 Rev Ed)

Civil Procedure — Appeals — Setting aside and retrial — Judgment allegedly obtained by fraud — Whether judgment should be set aside for retrial — Section 43 Supreme Court of Judicature Act 1969 (2020 Rev Ed)

Held, granting the application and dismissing the appeal:

SUM 4: Further evidence on appeal

(1) The requirements to adduce further evidence on appeal as established in Ladd v Marshall[1954] 1 WLR 1489 (“Ladd v Marshall”) did not govern and apply to the further evidence in SUM 4, as the requirements were not applicable in relation to further evidence in response to a new claim: at [14].

(2) Whilst the Ladd v Marshall criteria applied to preserve finality and ensure fairness, the situation here was different when Angliss was not only responding to new points made against it, but also new evidence. In context, finality was less of a concern, and it would be just to allow Angliss to respond. 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: at [13] and [14].

Judgment obtained by fraud

(3) A court's jurisdiction had to be established before that court could consider what powers it possessed and could exercise. In this case, the court had to first answer the anterior inquiry on appellate jurisdiction before considering what powers it could exercise and the appropriate course of action it should take. Section 43(1) of the Supreme Court of Judicature Act 1969 (2020 Rev Ed) gave the Appellate Division of the High Court the power to order a new trial in exercise of its civil jurisdiction, while s 43(4) further provided that the court could order a new trial on limited questions without affecting other parts of the judgment: at [16] and [17].

(4) A party seeking to set aside a judgment by adducing fresh evidence to show that the earlier court was fraudulently deceived could adopt one of two alternative procedures. He could appeal and seek on appeal, to adduce the fresh evidence (the “appeal route”). Alternatively, he could bring a fresh action in which the relief sought was the setting aside of the judgment fraudulently obtained: at [18].

(5) The case authorities had established that the preferred practice was for the party seeking to impugn the judgment to bring a fresh action to set aside the judgment on the basis of fraud. The reason was that fraud was a serious allegation, and the court was required to look into all the particulars of the fraud, examine all the affidavits and apply the strict rules of evidence. The court should not find fraud merely upon the basis of affidavit evidence and this was not surprising since the threshold for establishing fraud, which was rooted in dishonesty, was a high one: at [19].

(6) Within the appeal route, there were two identifiable settings or scenarios depending on the facts and circumstances: at [23].

(7) The first was where the appellate court was able to determine the issue of fraud since fraud was admitted so that the incontrovertible conclusion was that the respondent deliberately misled the court at the trial and procured his judgment by fraud. In the event the appeal was allowed, the extent to which the judgment was set aside (after the issue of fraud was determined) would depend on the relief sought by the parties as well as whether, on all the evidence placed before the appellate court, it was possible within the appeal proceedings for the appellate court to adjudicate on the merits of the appeal. Another way was to allow the appeal and order a retrial where the fraud was either admitted or the evidence of it was incontrovertible, and where the appellate court was in no position to evaluate the new evidence and, in particular, the effect of the new evidence on the relevance and weight of the rest of the evidence: at [24].

(8) The second was where the evidence on the issue of fraud did raise questions, but it did not lead to the incontrovertible conclusion that the respondent deliberately misled the court at the trial and procured his judgment by fraud. Within this second scenario, the appellate court might prefer the traditional approach that required a new action for fraud, or make what was now known in England as the “Noble-Owens order”. The approach taken in Noble v Owens[2010] 3 All ER 830 (“Noble v Owens”) was that a new action for fraud was not always necessary and directions for the issue of fraud to be determined first were made within the appeal proceedings. The issue of fraud could be referred to and determined by the same trial judge within the same set of proceedings: at [25] and [27].

(9) Yee's position, which was to proceed with the appeal, would require the court to allow the appeal on the basis of: (a) evidence not presented before the Judge; (b) evidence not tested by cross-examination; and (c) arguments not made before the Judge. This placed the court effectively in the position of a court of first instance, and was at odds with the exercise of appellate jurisdiction: at [31] and [32].

Miscarriage of justice

(10) Even though the SUM 19 Evidence was allowed to be adduced, this did not detract from the fact that Yee was the author of his earlier decision not to call Arla to testify at the trial. The consequence of that decision was the exclusion of information Arla had given his former solicitors as early as 3 May 2018 and before the trial in February 2021. As such, Yee's contention – that the SUM 19 Evidence (which comprised the excluded information provided on 3 May 2018) would have made a difference to the issue of causation and that there would be a miscarriage of justice if a retrial was not ordered – was ill-founded: at [41].

(11) Yee did not identify exactly how and where any miscarriage of justice had occurred. He also did not show that if the Judge had the SUM 19 Evidence before her, her decision would have been so different: at [44].

[Observation: Yee would traditionally have needed to commence a fresh action to prove fraud in order to set aside the judgment below. However, there were advantages to a Noble-Owens order. But, since allegations of fraud were no longer pursued by Yee, there was no need to decide on the applicability of Noble v Owens in Singapore and its appropriateness as a course of action in the context of this case: at [36].]

Case(s) referred to

AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2019] 2 SLR 341, CA (refd)

AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2020] 1 SLR 1158, CA (refd)

Basil Anthony Herman v Premier Security Co-operative Ltd [2010] 3 SLR 110 (refd)

Bioconstruct GmbH v Winspear [2020] EWHC 2390 (QB) (folld)

BNX v BOE [2018] 2 SLR 215 (refd)

Ching Chew Weng Paul v Ching Pui Sim [2011] 3 SLR 869 (refd)

Clone Pty Ltd v Players Pty Ltd [2018] HCA 12 (refd)

Dale v Banga [2021] EWCA Civ 240 (refd)

Floorweald Ltd v Francesca Elu (17 May 2019, HC) (UK) (refd)

Jason William Gann v Joseph Hosny [2015] VSCA 43 (refd)

JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd [2020] 2 SLR 1256 (refd)

K Ramalingam a/l Krishnamoorthy v Mohammad Razin bin Abdullah [2017] 3 MLJ 103 (refd)

Ku Chiu Chung Woody v Tang Tin Sung [2003] HKEC 727 (refd)

Ladd v Marshall [1954] 1 WLR 1489 (distd)

Li Shengwu v AG [2019] 1 SLR 1081 (refd)

Mary Mavris v Marina Xylia [2017] EWHC 2949 (Ch) (refd)

Noble v Owens [2010] 1 WLR 2491; [2010] 3 All ER 830 (refd)

Pradeepto Kumar Biswas v Sabyasachi Mukherjee [2022] 2 SLR 340 (refd)

Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur [2016] 3 MLJ 1 (refd)

Su Sh-Hsyu v Wee Yue Chew [2007] 3 SLR(R) 673; [2007] 3 SLR 673 (refd)

Sunbreeze Group Investments Ltd v Sim Chye Hock Ron [2018] 2 SLR 1242 (refd)

Susilawati v American Express Bank Ltd [2009] 2 SLR(R) 737; [2009] 2 SLR 737 (refd)

Takhar v Gracefield Developments Ltd [2020] AC 450 (refd)

Facts

The respondent (“Angliss”) was a food distributor, and the applicant (“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's suppliers, Arla Foods Ingredients Singapore Pte Ltd (“Arla”), bypassed Angliss and entered into a distributorship agreement with another distributor, Indoguna Singapore Pte Ltd, where Yee was employed at the time of commencement of the suit.

The first instance judge (the “Judge”) found that Yee had breached his duty of confidence in equity and contract, and his contractual duties of loyalty and fidelity. The Judge also 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 and thereby Yee's breaches had caused losses to Angliss. The Judge therefore awarded damages to Angliss for loss of profits.

Yee's main contention on appeal was that the judgment below was obtained by fraud in that not only was critical documentary evidence in the...

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