Goh Yong Hng v Cheong Yen Teng (Zheng Yanping) (m.w.) and Another

[2] The husband filed the petition in these proceedings on 1 July 2002. He sought a divorce on the ground that his marriage with the respondent wife had broken irretrievably in that she had committed adultery with the co-respondent and he found it intolerable to live with her. Particulars of the alleged adultery were given. The first was that the wife and the co-respondent had committed adultery on 9 May 2002 in a flat in Bishan. The second particular was that on 15 May 2002, the co-respondent had impliedly admitted committing adultery with the wife in that he had volunteered to pay all the fees of the investigators.

[6] The district judge made the following orders:

The husband appealed against the first of those orders. He wanted the co-respondent to pay all of the investigation costs.

[8] The judge noted that the law relevant to the application was as set out in Halsbury’s Laws of England (4 Ed) para 970 which states:

She rejected the argument put forward by the co-respondent that the marriage had broken down before the adultery and therefore that he should bear no responsibility for its breakdown. Further, she distinguished the case of Tan Kay Poh v Tan Surida & Anor [1988] SLR 983 where Chao Hick Tin JC had refused to make an order for costs against the co-respondent. In that case it was clear that the wife had left the matrimonial home due to unhappiness with the husband before her adulterous relationship with the co-respondent started. In this case, the husband had asserted that the marriage was happy and the co-respondent’s assertions to the contrary were uncorroborated. The parties were still living together at the time of the adultery and nothing much turned on the fact that the wife had not contested the divorce petition – it might simply have been because she had no defence to it.

[10] The judge then held that it appeared from the evidence that the private investigators had gathered the necessary evidence of adultery on 9 May, the day after they were instructed. They had, however, continued to conduct surveillance on Friday, 10 May and Monday, 13 May. In her view, the work undertaken on these two days was not really necessary since the relevant evidence had already been obtained by 9 May. Mr Philip Tan had also attended the meeting of the parties held on 15 May. He was instructed to record the meeting on video but the judge was doubtful as to whether the video recording was in fact made as there was no reference to it in either the PI report or the husband’s affidavit. As for Mr Tan’s court attendance on 24 September for which an invoice for $600 was rendered, the court’s record showed that the total time occupied for the divorce petition was just ten minutes. This meant that the private investigator spent less than ten minutes on the stand and was only required to produce the photograph of the wife given to him for identification purposes and his two investigation reports.

[11] The judge went on to hold that, having regard to the very short duration of the investigations, which were completed after three days of surveillance (the last two of which were not really necessary), the private investigator’s observer’s status at the meeting and the brevity of his second report, the very few photographs that were produced and his very brief court appearance as a formal witness, fees of $8,780 were excessive. The investigator had charged $8,100 for the investigation and attendance at the meeting. The amount was unjustifiable as the assignment was not complex and no obstacles were encountered during the investigations. In her view, a sum of $4,390 equivalent to 50% of the amount charged was reasonable and would more appropriately reflect the work done in obtaining evidence of the adultery. Since the wife was a willing party to the adultery, she ordered that the co-respondent should pay the husband 25% of the original fee of $8,780 ie 50% of the amount that she considered was a reasonable fee.

[12] Counsel for the husband pointed out that the private investigators had rendered three invoices, the first for $7,170 for the surveillance, the second for $1,010 for the meeting and video recording and the third for $600 for the court attendance.

[14] As for the meeting on 15 May 2002, the judge was wrong to infer that there was no recording when actually there was. The sum of $1,010 was reasonable considering the urgency of the matter and that services were rendered after official hours. As for the court attendance fee of $600, whilst the hearing may have taken ten minutes the judge failed to take into account the waiting and travelling time which would have easily totalled one and a half to two hours.

[15] Counsel for the co-respondent submitted that the judge’s decision should be upheld. She endorsed the reasoning of the judge and also repeated the arguments that had been made on behalf of the co-respondent below ie that he was not responsible for the breakdown of the marriage and that it was heading for divorce when he was unwittingly drawn in and used as an excuse for the petition to be presented. Counsel submitted also that the disbursements incurred by the private investigator were inflated and unnecessary and that the court attendance fee was very high.

[19] As regards the issue of reasonable fees for the surveillance, an examination of the invoice shows that six operatives were employed in the surveillance on the 9 of May, three on the 10 of May and six on the 13. From the report, the surveillance on 9 May took place between 10 o’clock in the morning and around 7.30 in the evening. The surveillance on the 10 May took place between 11am and 6.15pm whilst on the 13 of May, operations started at 9am and ended at 9.10pm. Thus, both the manpower employed and the time taken were substantial. The firm charged $7,500 for the services of the operatives, $140 for disbursements incurred in conducting searches on, amongst other things, vehicles and property, and $30 for six video prints. After deducting a discount of $500 the amount of the bill was $7,170. The co-respondent did not adduce any evidence to assist the court in determining whether the bill was reasonable or not in relation to the fees generally charged by private investigators or in relation to the number of operatives used for the surveillance. In these circumstances, the only material before the court on which to assess the reasonableness of the bill was that in the bill itself and in the report. Based on the details in these documents, it does not appear to me that the quantum was excessive. Neither does it appear that the disbursements were excessive or unreasonable. There was no reason to impugn the total bill of $7,170.

[20] The second bill was for a sum of $1,010 and was in respect of the covert video recording made on 16 May 2002. The judge appeared to consider that there was no evidence that such a recording was actually made. The second report issued by the investigation firm, however, stated expressly that the husband had asked for his meeting with the wife and the co-respondent to be recorded, covertly, on video. It was also noted that the objective of the meeting was to see what the co-respondent would say when the allegation of the adultery was made and that Mr Tan’s presence as a witness was required. The co-respondent did not challenge the fact of the video being made. If he had, the husband could have produced the video and any further evidence he considered necessary to substantiate the reasonableness of the private investigation firm’s bill for that service. To the extent that the judge considered the investigator’s fees to be excessive because she did not believe in the existence of the videotape, I consider that she was in error. As for the amount charged for that service, it does seem to be on the high side bearing in mind the fees charged for three days of surveillance and that the meeting was not a very long one and Mr Tan turned up in the middle of it.

[21] As regards the third bill of $600 for court attendance, the only objection to this is that it seems high for ten minutes work. In this connection, I accept the submission made on behalf of the husband that ten minutes in court does not mean that only ten minutes of Mr Tan’s time was taken up. He could very well have been out of the office for up to two hours. If he was, it would mean he charged approximately $300 per hour.