Mann Holdings Pte Ltd and another v Ung Yoke Hong [2018] SGHC 69

Introduction

As the defendant has appealed against my judgment (in Civil Appeal No. 6 of 2018), I now set out the grounds for my decision. These grounds of decision should be read in conjunction with this court’s earlier decision dated 8 June 2016 in Mann Holdings Pte Ltd v Ung Yoke Hong [2016] SGHC 112 (“the stay decision”), which related to the defendant’s unsuccessful application for a stay of proceedings on the ground of forum non conveniens. The defendant’s appeal against the dismissal of his stay application was subsequently dismissed by the Court of Appeal.

The facts

The first plaintiff is a Singapore investment company. Tan Poh Hua (‘Sam Tan”) is its director and was the person who incorporated the company. One of the first plaintiff’s investments is a Singapore company called Enviro Investments Pte Ltd (“Enviro”). Chew is a Singaporean and is also an investor in Enviro. Enviro is a wholly-owned subsidiary of a Singapore-listed company called Enviro-Hub Holdings Ltd (“Enviro-Hub”). Enviro-Hub’s business includes recycling of plastics, ferrous and non-ferrous metals, recovery and refining of platinum group metals as well as conversion of waste plastics to fuel. Ng Ah Hua (“Raymond”) is the executive chairman of Enviro-Hub and is also a substantial shareholder of the company.

The defendant is a Malaysian citizen who (together with his wife Chong Siew Choo (“Chong”)) holds 97% of the issued shares in a Malaysian company called Metahub Industries Sdn Bhd (“Metahub”). He is also Metahub’s managing director. Metahub is in the business of recycling, waste management, tin refining and manufacturing.

Around October 2014, the defendant’s brother Ung Yoke Hooi (“William”), who had known Raymond for about 30 years as a friend and business associate, contacted Raymond to tell him that the shareholders of Metahub were looking for a third party to acquire their entire 100% shareholdings in the company. Enviro’s shareholders (including the plaintiffs) commenced negotiations in or about November 2014 for the buy-out of all the shares in Metahub from its shareholders as they saw synergy in the recycling and waste management activities of the two companies. The key persons from Enviro who negotiated with the defendant on its intended purchase were Raymond and William. It was William who first introduced Raymond to the defendant some 20 years earlier.

Negotiations on behalf of Metahub were conducted by the defendant and Kevin Chee Ho Chun (“Chee”), who is a director and 1% shareholder of the company. There was a preliminary meeting between the parties on 18 November 2014 followed by two other meetings on 12 December 2014 and 14 January 2015. Negotiations between the parties continued until March 2015. Apparently Chee is legally trained as he drafted the initial sale and purchase agreement (“SPA”) for the parties as well as its numerous amended versions.

It was contemplated that should Enviro acquire Metahub, the first plaintiff and Chew would each own 20% of Metahub’s shares while William would hold 9% of the shares. In his affidavit of evidence-in-chief (“AEIC”) Raymond deposed that it was his condition that William must be involved in the acquisition if Enviro took over Metahub.

The plaintiffs contended that from the outset, they had made it clear to the defendant and Chee that neither Enviro nor Enviro-Hub were in a position to pay any deposit or make an advance payment for the proposed acquisition unless certain conditions precedent were fulfilled by Metahub, including the completion of the due diligence process by the purchasers.

The defendant however was adamant from the start of negotiations that either Enviro or Enviro-Hub must pay a deposit before he would allow a due diligence exercise to be carried out. Consequently, negotiations came to a deadlock and the impasse continued until December 2014.

Raymond deposed that on or around 16 December 2014, he was on holiday in Barcelona, Spain when Chee telephoned him pressing him to agree to Chee’s version of the draft SPA that had been emailed to Enviro on 12 December 2014, as well as to pay the initial deposit of RM5m stated in the draft. Raymond deposed he was so put off by Chee’s telephone call that he told Chee he was calling off the proposed acquisition by Enviro. The defendant subsequently telephoned Raymond to ask him to reconsider his decision to call off the acquisition.

On Raymond’s return to Singapore on or around 21 December 2014, William spoke to Raymond and apparently told him the defendant was facing cash-flow problems and that the defendant needed some short-term loans to tide him over. William added that if his brother’s problem could be resolved, the defendant would allow Enviro or Enviro-Hub to carry out the due diligence process on Metahub.

In the same month, Raymond arranged a meeting in Johor between the defendant, Sam Tan and Chew (who is a close friend of Raymond). In that meeting and at subsequent discussions, the plaintiffs claimed (but which the defendant denied) that the defendant confirmed his cash-flow problems and the fact that he needed a loan of RM5m which he represented that he would be able to repay in full after a few months.

The plaintiffs eventually agreed to extend a loan of RM4m (“the loan”) while William would separately extend a loan of RM1m, to the defendant. Raymond instructed solicitors to draft a loan agreement for the plaintiffs’ loan of RM4m.

The first draft of the loan document was prepared around 31 December 2014. The agreement itself was executed on or about 2 January 2015 (“the loan agreement”) by the defendant at Legoland theme park in Johor Bahru in the presence of Raymond and William (who witnessed the defendant’s signature).

On or about 6 January 2015, Sam Tan and Chew signed the loan agreement in Singapore on behalf of the plaintiffs. Amongst the salient provisions in the loan agreement are the following:

(a) Clause 1.2 – the loan was to be repaid in full within two months or upon completion of the acquisition of shares in Metahub whichever was the earlier;

(b) Clause 1.3 – in the event the acquisition of shares was terminated, the loan would be repaid in full immediately; and

(c) Clause 2 – the defendant would charge 20% of the shares he held in Metahub to the plaintiffs as security for the loan.

On 6 January 2015, Chew on behalf of himself and the first plaintiff remitted the loan to the defendant’s Malaysian bank account via telegraphic transfer. The defendant executed transfer forms in blank to charge 20% of his shares in Metahub to the plaintiffs. The transfer documents are currently in the custody of the Chief Financial Officer of Enviro-Hub Ms Tan Lay Mai (“Ms Tan”). Sam Tan subsequently forwarded a soft copy of the loan agreement to the defendant by email on 23 January 2015 at the defendant’s request.

According to the plaintiffs (but denied by William), Chew on behalf of William remitted RM1m to the defendant on or about 22 January 2015.

The proposed acquisition of Metahub’s shares was subsequently aborted on or around 26 March 2015, apparently due to Enviro’s inability to procure the requisite financing from either Malaysian or Singapore banks. By an email dated 27 March 2015, Sam Tan demanded repayment of the loan from the defendant.

The defendant refused to repay, contending that the loan was a non-refundable deposit for the intended acquisition of shares in Metahub and not a loan. He further ignored the letters of demand sent to him by the plaintiffs’ and William’s solicitors in April and May 2015 respectively. Instead, the defendant deposed in his second affidavit that the plaintiffs’ solicitors had no authority from William to send him the second letter of demand dated 6 May 2015 (for RM1m) and his solicitors had written to the plaintiffs’ solicitors on or about 16 September 2015 to demand an explanation. The defendant claimed he had checked with William and was told that the plaintiffs’ solicitors had not been authorised to act for William.

The defendant produced a statutory declaration from William dated 21 October 2015 wherein William declared that: (i) he had never provided Chew with money to be remitted to the defendant as a loan; (ii) that the defendant signed the loan agreement in his presence only as an acknowledgment of the requisite deposit under the SPA for the Metahub shares, as the SPA itself could only be signed after the due diligence exercise had been conducted and (iii) he was present at all the meetings between the parties and the subject of a loan to the defendant was never mentioned at all.

The plaintiffs filed their writ of summons and statement of claim in this Suit on 19 June 2015 claiming repayment of the loan pursuant to cl 1.3 of the loan agreement (at [15] above) which they alleged the defendant had breached.

As alluded to earlier in [2], the defendant unsuccessfully applied for a stay of proceedings in this Suit. When he failed in his application before this court and the Court of Appeal, he and his fellow shareholders in Metahub commenced proceedings in the Malaysian (Johor Bahru) High Court against the plaintiffs as well as against William, for their failure to complete their purchase despite the fact that the transaction was aborted and no SPA had been executed.

The evidence

The plaintiffs’ evidence in support of their claim was adduced from four witnesses namely Ms Tan, Sam Tan, Raymond and Chew. The defendant testified for his defence (in Mandarin) together with his fellow shareholders from Metahub, namely Tan Hwa Yeong (“Alex Tan”) who was the marketing director at the material time, Gan Eng Leong (“Gan”) the then head of quality control and Yee Kwong Yik (“Jason Yee”) the sales director of the company at the material time. Chee and William did not testify for the defendant notwithstanding the roles they played in the aborted SPA and in the loan extended to the defendant respectively. Apparently Chee was in court on the first day of the trial of this Suit.

The plaintiffs’ case

The plaintiffs’ version has been outlined in the preceding paragraphs [3] to [15] and no further elaboration is required except with regard to certain correspondence between the parties leading to the signing of the loan agreement, to which I shall now turn.

On 30 December 2014, Raymond emailed to the defendant the draft loan agreement prepared by the plaintiffs’ solicitors and which was copied to William. There was no message attendant with the draft.

On 31 December 2014, Steven Koh, the Finance/Human Resource Manager of Enviro-Hub, emailed the draft loan agreement again to the defendant with this message:

There was no response from the defendant to the draft or either of these two emails.

On 22 January 2015, Sam Tan emailed the defendant and Ms Tan to say:

The attachment to the email was the loan agreement which by then had been signed by both sides. On the following day, Sam Tan emailed a soft copy of the loan agreement to the defendant apparently at the latter’s request. As with the earlier emails from the plaintiffs, the defendant did not respond to this message.

In tandem with the emails from the plaintiffs to the defendant on the loan agreement, there were (on a daily basis and several times a day at times) emails between Chee and Ms Tan from 19 November 2014 onwards concerning the various drafts of the SPA for the share transaction. In this connection, Chee had sent an email to Ms Tan on 9 March 2015 regarding the share transaction. It contained inter alia paragraphs 2.1.1 and 2.1.3 that state as follows:

Ms Tan replied on 9 March 2015 to Chee’s above email as follows:

On 25 March 2015, for the very first time, the defendant responded by email to Ms Tan and the plaintiffs. The lengthy email was obviously drafted on professional or legal advice because it was beautifully crafted (as the court pointed out to the defendant during his cross-examination). Although the defendant claimed that Chee (who is legally trained) had helped him draft the email, the court is more inclined to think that the language of the draft suggests that it was the work of a legal professional. In relation to the RM5m sum that he had received, the defendant’s email stated as follows:

Not surprisingly, the defendant’s email was refuted by Ms Tan in her email reply sent on the next day. The relevant extracts of her email state:

On 27 March 2015, Sam Tan sent an email to the defendant requesting repayment of the RM5m advanced to the latter. As there was no response from the defendant or payment of the aforesaid sum, the plaintiffs’ solicitors followed up with a letter of demand dated 23 April 2015.

On 24 April 2015, the defendant sent a lengthy email to Ms Tan which, judging from its language, was again probably drafted by his legal advisers. The defendant reiterated the contention in his earlier email of 25 March that Raymond had asked him to sign the loan agreement as acknowledgement of receipt of RM5m and that he had never taken a loan. Further, in his capacity as the executive chairman of Enviro-Hub, Raymond had made various representations to the defendant namely:

(a) that the share transaction would be completed;

(b) that the defendant should liquidate his stocks to pare down Metahub’s existing loans, which he did, and he had almost redeemed the banking facilities of Ambank; and

(c) that the draft SPA was not a problem and Raymond had “committed to signing dates on 12-12-2014, 18-12-2014 and in January 2015” at meetings in the presence of the defendant’s shareholders and others (including Ms Tan) prior to his departure for Italy.

In support of his contention that there was no loan and no loan agreement, the defendant’s email had this to say:

The defendant’s case

The defendant’s defence (repeated in his affidavits) was that he was not in need of funds and he never asked the plaintiffs for a loan. Instead, the money he received from the plaintiffs was the requisite non-refundable deposit under the SPA.

The emails set out in [25] to [34] should be contrasted with the email chain which focussed on the SPA.

According to Ms Tan’s AEIC, there were no less than four drafts of the SPA that Chee prepared or Enviro-Hub amended, between 19 November 2014 and 12 December 2014. Chee forwarded the first draft SPA to Ms Tan on 19 November 2014. This was followed in rapid succession by the other drafts which were always sent to Ms Tan by email. To say that the defendant was anxious to complete the SPA as quickly as possible would be an understatement. The emails which are relevant to the court’s findings will now be elaborated upon below.

The constant tone throughout the email chain between Chee and Ms Tan was the former’s repeated chasing of the latter to approve and sign the SPA as quickly as possible as well as to pay the deposit stipulated by Metahub under cl 3.02 of the SPA. The stated consideration for the transaction was RM50m for the sale to Enviro-Hub or its special purpose vehicle (which turned out to be the first plaintiff).

Chee’s first draft SPA stipulated under cl 3.02 that the purchaser must pay a deposit of RM10m upon the execution of the SPA with the balance RM40m payable within one month from the date of approval of the transaction by the Foreign Investment Committee (“FIC”) of the Malaysian government.

The table below shows the parties’ negotiations on the draft SPA between November 2014 and March 2015:

No.

Date

Sender

Recipient

Message

More elaboration is called for regarding Chee’s email of 16 December 2014 (No 10 above) for reasons that will become apparent later. The relevant extracts of that email are as follows:

In his second email to Ms Tan on 16 December 2014, Chee corrected the selling price in his earlier message from RM30m to RM50m.

The bone of contention between Metahub and Enviro-Hub on the terms of the SPA centred on the issue of the deposit payable under cl 3.02 of the draft SPA prepared by Chee. Chee’s version of the clause was as follows:

Enviro-Hub’s amended version of cl 3.02 reads as follows:

The underlined portions of cl 3.02 above were the amendments that Enviro-Hub inserted into the draft SPA that Chee emailed to Ms Tan on 12 December 2014 the relevant portions of which message read as follows:

My decision

It is noteworthy that throughout his email correspondence, Chee referred to the various drafts that he forwarded to Ms Tan as “the final draft”. However, as the court pointed out to the defendant in the course of his cross-examination, just because Chee used the terminology “final draft” repeatedly did not mean that factually those drafts were “final”:

The court’s view is reinforced by Chee’s own words in his email dated 12 December 2014 (at [45] above) where he used the words in parenthesis “(UNLESS THERE ARE FURTHER AMENDMENTS)”, thereby recognising and accepting the possibility that Enviro-Hub would amend his draft further. After some prevarication, the defendant eventually agreed with the court that the 16 December 2014 email showed the parties were still not in agreement on the terms of the draft SPA:

While on the one hand, the defendant expected the court to recognise an unsigned draft SPA as having legal effect, he asserted on the other hand that the court should disregard the (executed) loan agreement that had been performed by the plaintiffs by their extending him the loan. It bears repeating here what I said at [44] in the stay decision:

The defendant had also overlooked an important factor. Even if arguendo, Raymond did make any or all of the representations in [33] that the defendant alleged (which the court disbelieved), those representations were not made on behalf of either or both plaintiffs and would not bind them at law.

The court was also sceptical of Chee’s email dated 16 December 2014 (at [41] above) for another reason. It is the court’s view that the statement in paragraph 1 therein was untruthful. The court took judicial notice of the fact that it is common practice in the banking industry for loans extended to corporate entities (in this case Metahub) to be secured by personal guarantees from its directors and/or shareholders. It is absurd and makes no commercial sense for a lending bank to take a guarantee from the same corporate borrower.

I do not think it is at all speculative for this court to surmise that the defendant, in his capacity as the director and majority shareholder of Metahub (with or without his wife), would have given a personal guarantee in this case to CIMB Bank for the loan extended to the company. I have no doubt too that CIMB Bank was putting pressure on the defendant to repay the loan extended to Metahub, totally or partially. That would explain why Chee stopped chasing Ms Tan relentlessly to sign the SPA and to pay a deposit after the defendant received the loan in early January 2015. It is equally likely that the defendant utilised the loan (and the further RM1m from William) to repay and/or reduce Metahub’s outstanding liability to CIMB Bank and/or to its other bankers.

In this regard, Chee’s message to Ms Tan of 27 February 2015, which was re-sent by Chee to Ms Tan on 4 March 2015 when she did not respond, is telling:

The above email reveals a number of interesting facts. First, it was surprising that someone like Chee, who had been so heavily involved in the drafting and negotiations of the SPA since the very beginning, was not apprised of the status of the SPA between the two parties. Second, Chee’s email was even more surprising given his earlier email of 16 December 2014 set out at [41] above. By 16 December 2014 if not earlier, Enviro-Hub had made it plain to the defendant that the payment of any deposit was subject to fulfilment of the Conditions Precedent in cl 3.03 of the draft SPA.

Clause 3.03(i) (as amended by Enviro-Hub) reads as follows:

It was clear from Enviro-Hub’s proposed amendment of cl 3.03 that there would not be payment of any deposit to Metahub without conditions, contrary to the defendant’s pleaded case. Why would Enviro-Hub do a volte face subsequently? In any case, it was not Enviro-Hub that extended the loan to the defendant.

It was not in dispute that even though the draft SPA never progressed to the stage of being signed, the due diligence exercise on Metahub was carried out. This was due to the signing of the loan agreement – in exchange for the plaintiffs’ monies, the defendant allowed the due diligence exercise to be carried out, and this was done by Enviro-Hub in January 2015.

One of the reasons that the SPA was aborted (according to the plaintiffs) was Metahub’s refusal to provide a forecast for their business. This was evidenced in Chee’s email to Ms Tan dated 16 December 2014 where he said inter alia that:

The terms of the draft SPA were never agreed between the parties. Yet, the defendant expected this court to give credence to the various drafts of that agreement but ignore a signed loan agreement for which he had received valuable consideration from the plaintiffs. As was said by the court in Foo Jong Long Dennis v Ang Yee Lian Lawrence & Another [2016] 2 SLR 287 (at [81]):

In the face of the (signed) loan agreement, the onus was on the defendant to prove that the agreement was not to have any legal effect. However, the defendant failed to discharge that burden of proof.

It would be appropriate at this juncture to consider the defendant’s testimony which the court did not find satisfactory on the whole.

Earlier (at [30] and [33]), the court had observed that the defendant only responded to the emails concerning the loan on 25 March 2015 after his receipt of the plaintiffs’ monies. The court had questioned the defendant on his previous silence to all the emails from Enviro-Hub regarding the loan agreement. The following exchange took place between the defendant and the court in the course of his cross-examination:

Indeed, the defendant’s answers in cross-examination were patently untrue as can be seen from another exchange between him and the court during his cross-examination:

The plaintiffs had relied on the case of Pender Development Pte Ltd and another v Chesney Real Estate Group LLP and another [2009] 3 SLR(R) 1063 (“Pender”) in their submissions. The facts there were somewhat similar to this case. Bravo Building Construction Pte Ltd (“Bravo”) alleged that an executed loan agreement between the parties pursuant to which it received $8.284m from Chesney Real Estate Group LLP (“Chesney”) was not enforceable because the sum was not really a loan but a deposit under a broader agreement (ie, a second marketing agreement) made between Chesney and its associated company Pender Development Pte Ltd. The judge has this to say in the following paragraphs:

As was pointed out by the court to the defendant (at [60] above), the defendant should have responded to the emails emanating from Enviro-Hub set out at [25] to [27] to refute that the sum advanced to him was a loan. That would have been a common-sensical response by anyone in the defendant’s position if there was indeed no loan. If not, the defendant should have at the very least (with Chee’s assistance) emailed Raymond and/or Enviro-Hub to record Raymond’s assurance(s) that the loan agreement was only meant to be an acknowledgment of receipt of RM4m deposit. The defendant took neither course of action.

The fact that the defendant took steps to comply with the terms of the loan agreement further undermined his case (see [29] of Pender quoted above). The defendant had apparently provided security for the loan by way of a legal charge of 20% of the total number of shares in Metahub, pursuant to cl 2 of the Loan Agreement. Clause 2.3 states:

There was evidence before the court that:

(a) the defendant delivered to Raymond and Ms Tan two undated share transfer forms each for 100,000 shares, one in favour of the first plaintiff and the other in favour of Chew. 200,000 shares equated to 20% of the total shares in Metahub. The defendant’s signatures on the two forms were not witnessed nor were any seals affixed;

(b) a written waiver of pre-exemption rights was given by two shareholders of Metahub namely Alex Tan and Jason Yee. Similar waiver letters from Chong and Chee were unsigned; and

(c) there was an undated resolution of Metahub’s shareholders signed by the defendant, Alex Tan and Jason Yee (but not signed by Chee) approving the transfer of 100,000 shares each to the first plaintiff and Chew from the defendant.

It was obvious that the defendant had deliberately furnished half-completed security documents to the plaintiffs in purported compliance with cl 2 of the loan agreement. When questioned as to why the plaintiffs did not take steps to have the defendant rectify the omissions in the share transfer forms, Ms Tan replied in cross-examination that when she requested for the share certificate from the defendant, he declined to do so, saying that the said certificate comprised his entire shareholding (ie, 590,001 shares) and not only the 200,000 to be charged to the plaintiffs.

In cross-examination, Chew acknowledged that the administrative paperwork on the security documentation could have been better handled. He viewed the charge of 20% of the defendant’s shares as added comfort and ancillary to the loan agreement upon which he primarily relied to hold the defendant liable for the loan. In answer to the court’s question, Chew admitted that he did not wish in any case to end up as a minority shareholder in an unlisted company (Metahub).

The shortcomings on the part of the plaintiffs were also acknowledged in their closing submissions. The plaintiffs submitted (and the court accepted) that just because the paperwork on the taking of securities was incomplete, that did not mean that the loan agreement itself was a sham.

There was one other aspect of the defendant’s testimony which undermined his credibility. The defendant’s case that the loan was a non-refundable deposit under the SPA was re-iterated throughout his defence (amendment no.1) as seen in the following paragraphs therefrom:

Yet, when he was cross-examined, the defendant appeared to suggest that the non-refundable deposit was in fact refundable under certain conditions. His confusing testimony was clarified in re-examination in the following extracts:

Taken at face value, the above testimony completely undermined the defendant’s case as he had consistently maintained that the conditions precedent were not acceptable to him (and recorded accordingly in Chee’s email to Ms Tan of 16 December 2014).

Not only was the defendant’s above evidence inconsistent with his pleaded case, the defendant also often took great liberties with the truth, sometimes to an absurd extent. One instance of this was his evidence regarding the telephone conversation that took place between him and Raymond set out at [10] above (“the Barcelona call”).

In his AEIC, Raymond deposed that after Chee’s call, the defendant telephoned him and attempted to persuade Raymond to change his mind on Enviro-Hub’s calling off the acquisition. Raymond told the defendant he would reconsider the matter after his return to Singapore which was around 21 December 2014.

After his return to Singapore, Raymond spoke to William who informed him that the defendant was facing financial difficulties and needed funds to tide him over. That conversation eventually led to the signing of the loan agreement between the plaintiffs and the defendant.

I note that the Barcelona call was not mentioned at all in the defendant’s AEIC. When cross-examined by Mr Joseph Tay on the Barcelona call, the defendant said that it was Raymond who called him not vice versa. Next, the defendant claimed that Raymond called to complain about Chee whom he wanted to be taken off the transaction. This was due to Chee’s mistake in putting RM30m instead of RM50m as the selling price in his email of 16 December 2014, even though Chee immediately corrected his error in a second email to Ms Tan later that same day.

The following extracts from the defendant’s evidence shows inter alia why the court found the defendant to be an untruthful witness:

The court had no doubt that Raymond’s testimony on the Barcelona call, and in general, correctly reflected what transpired between him and the defendant. No one in Raymond’s position as executive chairman and shareholder of Enviro-Hub would have been so foolhardy as to make any or all of the representations alleged by the defendant. It bears remembering that while the defendant was desperate to sell off his shares in Metahub, Enviro-Hub was neither overly enthusiastic nor similarly desperate to take over the company.

I turn next to an incident that cast the defendant in an even worse light. The defendant had applied on 16 November 2017 via Summons No. 5261 of 2017 (“the Summons”) to give his evidence by video-link pursuant to s 62A of the Evidence Act (Cap 97, 1997 Rev Ed).

The Summons was supported by the defendant’s 8th affidavit filed on 16 November 2017 where he inter alia deposed as follows:-

The (undated) English translation exhibited in the defendant’s 8th affidavit of the letter dated 2 October 2017 from the Malaysian tax authorities (“the tax letter”) read as follows:

Mr Tay, counsel for the plaintiffs, had on 23 November 2017 (in the course of the defendant’s cross-examination) informed the court that the defendant’s English translation of the tax letter may be incorrect. The court after looking at the actual tax letter in the Malay language, agreed. Questioned by Mr Tay and then the court, the defendant’s lame excuse (which the court did not accept) was that he had engaged “a general translator”.

To ensure that the court’s understanding of the tax letter in Malay was correct, one of the Supreme Court’s Malay interpreters translated the tax letter, and the interpreter’s translation reads as follows:

The defendant’s translated version of the tax letter as shown in [80] was clearly selective and deliberately left out the underlined last lines of paragraphs one and two.

It was obvious that the defendant would go to any lengths (including lying in his 8th affidavit as can be seen from the foregoing) in order to avoid coming to Singapore to testify for this case, for reasons best known to himself. It was untrue that he would not be allowed to leave Malaysia unless he paid his outstanding tax. He only needed to put up security for the outstanding tax in order to leave Malaysia.

There is one final issue the court has to address before concluding these grounds of decision. As observed at [23], the defendant had not called either Chee or William as his witnesses. Yet, on the first day of trial (according to Mr Tay and which the defendant’s counsel confirmed), Chee was sitting in court in the public gallery. Chee was not material to the plaintiffs’ claim based on the loan agreement but he was a crucial witness for the defendant’s defence which was entirely based on the draft SPA which Chee had prepared. Indeed, in the defendant’s 2nd affidavit filed on 23 October 2015 in support of his stay application, he admitted as much at paragraph 42:

When the court questioned the defendant’s counsel on Chee’s voluntary presence in court notwithstanding the fact that he was not the defendant’s witness, no satisfactory explanation was provided. When he was questioned by the court, the defendant’s explanation that

was equally unconvincing. Not only did Chee not refuse – he turned up in court without (it seems) being asked to do so.

In the defendant’s closing submissions he sought to rely on this court’s stay decision (at [47] and [56]) as an excuse for not calling Chee or William to testify. His reliance on the court’s comments is disingenuous. This can be seen from the following paragraphs of the stay decision:

It can be seen from the above extracts from the stay decision that the court made no reference at all to Chee. Just like his explanation for Chee’s absence, the defendant’s explanations during cross-examination on William’s absence were equally unconvincing:

Even if the court did not draw an adverse inference against the defendant for not calling Chee to testify, such an adverse inference must be and was drawn against the defendant for William’s absence from court, pursuant to s 116(g) of the Evidence Act in the light of the defendant’s evidence set out in [88]. Section 116(g) of the Evidence Act states:

Conclusion

Due to the findings set out earlier, the court was of the view that the defendant’s testimony was not credible and he had failed to discharge the burden to prove that the draft SPA was an enforceable agreement while the signed loan agreement was not to be given effect. The plaintiffs on the other hand, had proven their case that the sum transferred to the defendant was a loan and not a non-refundable deposit. Accordingly, the court awarded judgment to the plaintiffs on their claim.