BTS Tankers Pte Ltd v Energy & Commodity Pte Ltd and others [2021] SGHC 58

Introduction

BTS Tankers Pte Ltd (“the plaintiff”) is a Singapore-incorporated company which is a ship-owner and is in the business of providing tanker shipping in Asia.

The first defendant Energy & Commodity Pte Ltd (“ECPL”) is a company incorporated in Singapore and its principal activity is said to be wholesale trading including general importing and exporting. At all material times, the sole shareholder and director of ECPL was (and still is) Vu Xuan Thu (“the Second defendant” or “VXT”).

D&N Trading & Consultancy Limited (“D&N”) is a company incorporated in the British Virgin Islands which the plaintiff alleges is controlled by VXT who it asserts is the company’s alter ego as VXT is its sole shareholder and director.

Dinh Thi Hoang Uyen (“the Fourth defendant” or “Dinh”) is the wife of VXT. She was joined as a party to these proceedings by an order of court dated 11 April 2019. Immediately thereafter on the same day, the plaintiff obtained a worldwide Mareva injunction against her under order of court 2480/2019 (“the Second Mareva order”). Prior thereto, a similar injunction had been obtained against ECPL, VXT and D&N on 15 March 2019 under order of court 1821/2019 (“the First Mareva order”). Both injunctions were for values up to USD10,291,782.00.

In fact, the plaintiff obtained innumerable orders of court against all four defendants in the course of these proceedings. Some of the orders of court obtained are the subject matter of these grounds of decision. The defendants’ attempts to set aside and/or vary the two Mareva injunctions were dismissed.

After obtaining leave of court on 28 August 2020, the plaintiff applied by way of Summons No 3689 of 2020 (“the Committal Application”) for VXT personally and as a director of ECPL and D&N together with Dinh, to be committed to prison for contempt of court in failing to comply with numerous orders of court. The plaintiff alleged that VXT failed to comply with five orders of court requiring disclosure of documents from him whilst Dinh was alleged to have failed to comply with three orders of court that similarly required disclosure from her. VXT and Dinh were unsuccessful in their attempts to set aside the various orders of court for discovery made against them.

After a lengthy hearing of both Summonses, this court granted the Committal Application (“the Committal Order”) as well as the Striking Out Application on 27 October 2020, both with suspension orders. All four defendants have appealed against my decision (in Civil Appeal No 187 of 2020) after first obtaining a stay of execution on 30 October 2020 against the same. I now set out the reasons for the orders that I granted.

The background

In the Committal Application, the plaintiff requested the court to commit VXT to prison for contempt of court for his breaches under the following orders of court (“ORC”):

(a) ORC 6803/2018 (“the First Discovery Order”) by failing and/or refusing to:

(i) Disclose D&N's OCBC Account No. ending 7301;

(ii) Disclose ECPL's accounting ledgers, record books, schedules and journals, receipts, invoices and/or vouchers showing, evidencing or recording all payments received from DDHP in respect of the cargo;

(iii) Disclose the email account: globeoiltrader@gmail.com;

(iv) Disclose the email accounts: ecoilops@gmail.com and tutppteltd@gmail.com;

(v) Disclose hard disks of computer(s); and

(vi) Make payment of the costs ordered against him in the amount of SGD31,985.18 (excluding interest that continues to accrue).

(b) ORC 7739/2018 (“the Second Discovery Order”) by failing and/or refusing to:

(i) Disclose the documents specified at Schedule 1 therein; and

(ii) Make payment of the costs ordered against him in the amount of SGD2,500.00 (excluding interest that continues to accrue).

(c) ORC 8164/2018 by failing and/or refusing to:

(i) Make payment of the costs ordered against him in the amount of SGD3,000.00 (excluding interest that continues to accrue).

(d) The First Mareva Order by failing and/or refusing to:

(i) Disclose all the assets of ECPL, himself and D&N;

(ii) Disclose the spending of ECPL, himself and D&N on “ordinary living expenses" and “legal representation" before such amounts were spent, and expenses “in the ordinary and proper course of business" monthly;

(iii) Dissipating assets subject to the order by:

(A) Selling the shares in TUTP Pte Ltd and;

(B) Diverting a sum of SGD16,251.68 from ECPL’s DBS Account No. ending 7986 into his personal UOB Account No. ending 5135;

(e) ORC 2111/2020 (“the Third Discovery Order”) by failing and/or refusing to:

(i) Disclose all his assets and those of ECPL and D&N;

(ii) Provide a monthly account (from January 2019 to 23 March 2020) of the source(s) of monies that he used/uses to pay for his living expenses in the format set out at Annex A to the order;

(iii) Provide full disclosure of the documents supporting the asset disclosures being:

(A) ECPL’s statements from the Central Provident Fund (“CPF”) Board from January 2019 to 23 March 2020;

(B) ECPL’s March 2020 statement from its OCBC Bank Account No. ending 7986;

(C) ECPL’s March 2018 and March 2020 statements from its DBS Bank Account No. ending 5022;

(D) The statements from his joint OCBC Account No. ending 2001 for January to August 2016, January to December 2018, January to February 2019, October to December 2019 and January to March 2020;

(E) The statements from TUTP Pte Ltd's DBS Account No. ending 6002 for January to February 2016, January to February 2017, April to December 2019 and January to March 2020;

(F) Documents evidencing how payment for his living expenses were made from January 2019 to 23 March 2020;

(G) His income tax returns and Form IR8A being the Notices of Assessments for the Year of Assessment (“YOA”) 2017 (for 2016 income), YOA 2018 (for 2017 income) and YOA 2020 (for 2019 income);

(H) His statements from the CPF Board from January 2016 to 23 March 2020;

(iv) Provide an affidavit in accordance with his disclosure requirements.

(Copies of the schedules attached to the various orders of court listed above, ie, ORC 6803/2018, ORC 7739/2018, the First Mareva Order and ORC 2111/2020, are attached as Annexures A to D to these grounds of decision respectively).

In the Committal Application, the plaintiff also requested the Court to commit Dinh to prison for contempt of court for her failure to comply with the following orders:

(a) The First Mareva Order by:

(i) Knowingly assisting and/or permitting a breach of the order by VXT by selling the shares in TUTP Pte Ltd.

(b) The Second Mareva Order by failing and/or refusing to:

(i) Disclose all her assets;

(ii) Disclose her spending fortnightly on “ordinary living expenses” and “legal representation” before such amounts were spent, and expenses “in the ordinary and proper course of business”;

(A copy of the schedule attached to the Second Mareva Order is attached as Annex E to these grounds of decision).

(c) The Third Discovery Order by failing and/or refusing to:

(i) Disclose all her assets;

(ii) Provide a monthly account (from January 2019 to 23 March 2020) of the source(s) of monies that she used/uses to pay for her living expenses in the format set out at Annex A to the order;

(iii) Provide full disclosure of the documents supporting the asset disclosures being:

(A) The statements from her joint OCBC Account No. ending 2001 for January to August 2016, January to December 2018, January to February 2019, October to December 2019 and January to March 2020 ;

(B) Documents evidencing how payment for her living expenses were made from January 2019 to 23 March 2020;

(C) Her income tax returns and Form IR8A being the Notices of Assessments for the YOA 2020 (for 2019 income);

(D) Her statements from the CPF Board from January 2016 to 23 March 2020;

(E) Documents evidencing the alleged profits she received in Vietnam for the sale of the shares in TUTP Pte Ltd and documents evidencing that those monies had been used to pay her “creditors".

(iv) Provide an affidavit in accordance with her disclosure requirements.

The Committal Application was supported by the second affidavit filed by the plaintiff’s director Vincent Andre R. Lison (“Lison”) on 12 August 2020 (“Lison’s second affidavit”). Lison’s second affidavit detailed the defendants’ breaches as set out at [9] and [10] above as well as the facts and reasons that led to the Committal Application being filed.

I should state at this juncture that the plaintiff’s claims against ECPL, VXT and D&N were inter alia for unlawful conspiracy alleging that the three defendants chartered the plaintiff’s vessel, the motor tanker Christina (“the vessel”), to smuggle cargo in particular gasoil, into Vietnam. As a result, the vessel was implicated in a criminal act under Vietnamese law. The vessel was detained in Vietnam for three years from 30 January 2016 to 28 January 2019 causing loss and damage to the plaintiff of at least USD10m. In fact, the vessel’s master was prosecuted and convicted of giving false information in the cargo import declaration form that was prepared by ECPL’s local shipping agent. The plaintiff contended that the master was duped into signing the aforesaid form.

The plaintiff’s claim against Dinh was on the basis that she held funds and assets that in truth and in fact belonged to the other three defendants or any of them. The plaintiff therefore sought inter alia a declaration against her that all her assets or a substantial part thereof are liable to execution by the plaintiff if it succeeds in its claim against VXT.

In the course of the criminal proceedings in Vietnam, a Vietnamese court had issued a decision on 21 December 2018 detailing how a Vietnamese company called Duong Dong Hoa Phu Joint Stock Company (“DDHP”) had been smuggling gasoline from foreign companies like ECPL and D&N into Vietnam from October 2015 to January 2016 and had paid D&N approximately USD9m for the smuggled gasoil. In this regard, the ex-general manager of DDHP (“the ex-GM”) had been convicted and imprisoned for his role in the smuggling operation. The ex-GM had admitted that for cargo declared to the Vietnamese customs authorities, payment by DDHP to D&N would be by letters of credit and bank transfers but for cargo that was not so declared but smuggled into Vietnam, DDHP would pay D&N in cash.

Because of what the ex-GM revealed, the plaintiff sought discovery from ECPL, VXT and D&N of all their correspondence with DDHP and their payment records. The plaintiff discovered that the few documents provided to the plaintiff by VXT were discrepant with payments received by VXT, ECPL and D&N from DDHP for the gasoil sold to DDHP.

It was the plaintiff’s case that the dealings between the first to third defendants and DDHP were neither arm’s length nor bona fide and that their contracts with DDHP were sham documents intended to conceal the smuggling.

Consequently, the plaintiff mounted a rigorous specific discovery process against the first three defendants (essentially against VXT as the alter ego of the two corporate entities) for documents and details of contract amendments and discussions between the three defendants and DDHP that would explain the true nature of their dealings and the discrepancies in the payments.

However, VXT continued to be evasive and obstructive when it came to the further discovery sought despite two court orders that required the first three defendants to disclose their handphones, computer hard drives and email accounts for forensic examination. According to the plaintiff, the first three defendants went to great lengths and concocted (through VXT) the most absurd excuses to avoid giving disclosure.

As the various defendants’ unconvincing responses were one of the reasons that prompted this court to grant the Committal Application, it would be appropriate at this stage to look at some of the reasons/excuses that VXT (and subsequently Dinh) gave for not complying with the defendants’ discovery obligations:

(a) To avoid giving discovery of his computer hard drives, VXT claimed that he does not use a computer to run his multi-million dollar business. Instead, he claimed that he “outsources” even basic office functions such as printing and typing;

(b) When he was ordered to provide details of his outsourcing arrangements, VXT claimed there were none as everything was done verbally – he had engaged a foreign student called Jason to do the typing and printing and that person had (conveniently) left Singapore;

(c) To avoid giving discovery of his handphone, VXT claimed it was damaged and hence discarded;

(d) To avoid giving disclosure of his email databases, VXT claimed that he had forgotten the passwords to most of his accounts. There were two email accounts that were eventually disclosed and examined by the plaintiff’s computer experts. The experts found no “hits” when they looked for emails between VXT and DDHP. VXT claimed that the five emails or so that were disclosed represented the entirety of his exchanges with DDHP as the rest of their communication was verbal and that was the reason why there were no “hits” in his email accounts as he had deleted the emails after disclosing them to the plaintiff;

(e) To avoid giving discovery of ECPL’s and D&N’s accounting ledgers, records, books, journals, receipts and invoices relating to the DDHP sales contracts, VXT claimed that he did not retain any such records and depended/relied upon bank statements as his records. The bank statements were listed in VXT’s 18th affidavit filed jointly with Dinh on 15 June 2020 (“VXT’s 18th affidavit”). However, as ECPL is registered with ACRA and at the material time was a GST-registered business, the plaintiff submitted it must comply with the tax authorities’ e-Tax Guide which requires records to be kept of all business transactions. Consequently, VXT’s excuse for not providing discovery was not bona fide.

(f) To avoid giving discovery of D&N’s OCBC account that was specifically mentioned in the sales contracts, ie, OCBC Account No. ending 7301, VXT claimed that he had reached agreement with DDHP to make payments into the account of ECPL. When the plaintiff finally received the bank statements of D&N directly from OCBC, the plaintiff discovered that in January 2016 alone, D&N received six payments totalling USD1,221,757.00 from unidentified sources.

In regard to [19(f)] above, VXT subsequently changed his tune and claimed that initially, the vendor of the gasoil was D&N, hence DDHP paid the deposit to D&N. However, the vendor was later changed to ECPL and hence payments from DDHP were transferred from D&N to ECPL’s bank account.

Contrary to his earlier stance in [19(e)] that he had no records, VXT was later able to recall and set out in his 20th affidavit filed on 11 September 2020 (“VXT’s 20th affidavit”) other parties who paid ECPL for petrol purchased from D&N.

The plaintiff further alleged that both VXT and Dinh failed to comply with their disclosure obligations under the First and Second Mareva Orders (see [4] above).

In the case of VXT, the plaintiff asserted that he breached the First Discovery Order by falsely claiming that D&N’s OCBC Account No. ending 7301 did not fall within the ambit of the order despite the clear wording. The plaintiff was prompted to obtain the Third Discovery Order before it was able to obtain directly from OCBC the account statements of the said OCBC account. The account statements of the said OCBC account revealed 156 transactions with deposits totalling around USD76m in value while withdrawals amounted to around USD54m. VXT claims that those transactions were ‘unrecorded’ while there were another 58 transactions that he ‘could not recall’.

The bank statements that VXT originally disclosed were primarily loan servicing or “conduit” accounts through which large sums were deposited for 1–2 days and then withdrawn leaving a small balance on each occasion. The plaintiff applied for discovery contending that VXT and/or ECPL and D&N had not disclosed bank accounts where they kept their income or savings.

VXT claimed that he, ECPL and D&N have no or negligible assets. This claim did not sit well with the fact that VXT had declared that his personal/household expenses exceeded SGD25,000.00 a month. Realising his error subsequently, VXT then did a volte face and claimed that his/household expenses were paid by his wife Dinh. He deposed in his 11th affidavit filed on 24 March 2019 (“VXT’s 11th affidavit”) that he sold off his shares in TUTP Pte Ltd and his 1% interest in the couple’s matrimonial home at 33 Leonie Hill Road (“the Leonie Hill property”) to Dinh for SGD103,000.00 allegedly in order to pay off his debts.

It was VXT’s above actions that prompted the plaintiff to add Dinh to these proceedings as the Fourth defendant and thereafter to apply for and obtain the Second Mareva Order against her.

VXT’s breaches were blatant. Despite selling his two assets listed in [25] to Dinh, VXT denied that he had breached the First Mareva Order, claiming that he did it as he was in financial trouble.

In his 12th affidavit filed on 29 May 2019, he deposed to what has been set out at [19(d)] above. He did not deny that he had deleted emails between the first to third defendants and DDHP as the plaintiff alleged. He claimed that he deleted those emails because he had already forwarded those messages to his part-time assistant Emily and he knew she would have a soft copy thereafter.

VXT disclosed that ECPL held five bank accounts in Singapore (with UOB, OCBC and DBS) none of which had balances that exceeded USD5,000.00. He himself only had an account with UOB, ie, UOB Account No. ending 5135, which had a credit balance of SGD16,951.86. VXT disclosed that a sum of SGD16,251.68 in this account belongs to ECPL. This sum had been remitted to his personal account by Food Republic Pte Ltd, the food court operator for the stall that he operated. He blamed the First Mareva Order as the cause for his not being able to continue running the stall. VXT added that he has a joint OCBC Account No. ending 2001 with Dinh which had a balance of SGD9,385.00.

It was only in VXT’s 18th affidavit that he finally decided to comply with the terms of the discovery order made against him and filed his supplemental list of documents. In Schedule 1 therein, he listed Dinh’s bank statements with Eximbank for 2013–2018 together with the bank statements of ECPL’s accounts with UOB, DBS and OCBC.

Initially, after the plaintiff obtained the Second Mareva Order, Dinh went to great lengths to claim that she was a woman of substance/wealth who could afford to maintain her family and VXT in style. Her claims included having her own business with Vietnamese associates who paid her large amounts in cash which were hand-carried to Singapore and hence not reflected in her bank statements.

In Dinh’s first affidavit filed on 22 April 2019 to set aside the Second Mareva Order (“the setting aside affidavit”), she had inter alia deposed that:

(a) She had owned 99% of the Leonie Hill property since she purchased it in 2016. She paid SGD549,726.00 for the Leonie Hill property from her life savings, gifts from relatives, a bank housing loan and using her CPF savings. She alone serviced the housing loan instalments;

(b) She bought over VXT’s 1% interest in the Leonie Hill property as well as his shares in TUTP Pte Ltd in cash as he was in financial difficulties. The price she paid for his shares of SGD94,000.00 approximated the net book value of the company based on its balance sheets. However, she allowed him to continue running the company;

(c) To avoid the need to re-execute a fresh mortgage for the lending bank’s housing loan, she did not disclose to the lender the 1% interest in the Leonie Hill property that she purchased from VXT and neither was her purchase told to the Singapore Land Authority (“SLA”) nor was it reflected in their records.

In her second affidavit filed on 14 May 2019 in response to the plaintiff’s affidavit of Jesper Harum filed on 6 May 2019, Dinh claimed that she is a university graduate and has income not only from her businesses in Singapore but also from ad hoc projects with her partners in Vietnam. Her partners would bring to Singapore her share of the profits in cash. She also has rich relatives in Vietnam who are very generous with her and similarly gave her cash as gifts.

Dinh deposed that she was able to lend at least USD200,000.00 to ECPL on 5 January 2016 at the beginning of ECPL’s transactions with DDHP.

She disclosed that she had sold her shares in TUTP Pte Ltd on 19 March 2019 to one Le Ba Ngoc as the company was suffering losses and was paid the proceeds in Vietnam. The sale was after the First Mareva Order was granted (on 15 March 2019).

In her 7th affidavit filed on 17 June 2019 in support of her application for leave to appeal to the Court of Appeal (against this court’s refusal to set aside the Second Mareva Order), Dinh deposed that she had found a bank statement that showed that she received SGD370,000.00 on 5 October 2016 from a business partner in Vietnam that enabled her to make the lump sum payment for the Leonie Hill property. This fact is not relevant to the issue of VXT’s purported transfer of his interest in the Leonie Hill property to her in breach of the First Mareva Order.

In her application under Summons No 5069 of 2019 to vary the Second Mareva Order (that the Order be limited to VXT’s 1% interest in the Leonie Hill property and to his shares in TUTP Pte Ltd), Dinh filed her 8th affidavit on 8 October 2019 (“Dinh’s 8th affidavit) in which she deposed that she received at least SGD326,345.00 on or about 15 April 2016 from her sale of a previous flat she owned at Dunman Road. Again, this fact is irrelevant to the issue of VXT’s breach of the First Mareva Order by attempting to transfer his assets to Dinh.

For the first time in Dinh’s 8th affidavit, she deposed that her mother Hoang Thi Cham (“the Mother”) was paying the monthly mortgage instalments and household expenses as she was not doing well.

The plaintiff subsequently applied in Summons No 5267 of 2019 (“Summons 5267”) on 22 October 2019 for a discovery order against all four defendants in aid of the two Mareva Orders. The plaintiff wanted discovery from Dinh of all her income/funds, her income sources, details of all her businesses, her accounts with OCBC, UOB and Exim Bank etc. It was a very comprehensive discovery request.

On 15 November 2019, Dinh filed her 9th affidavit in response to Summons 5267 where she inter alia deposed that:

(a) her employer (TPDN where she is a director since 2017) does not pay her a salary but only her CPF contributions;

(b) she no longer had businesses in Vietnam and had closed her Vietnamese bank account;

(c) she did not keep track of money she received from her rich relatives;

(d) the source of money for her expenses was/is the Mother. Before the Second Mareva Order, the Mother would pass the money to her. After the Second Mareva Order, the Mother paid the expenses directly or passed the money to Dinh’s children, niece and nephew;

(e) she had already given discovery to the plaintiff of her bank account(s);

(f) she did not have a safe deposit box;

(g) she had given discovery of her income tax returns;

(h) she would not give discovery of her CPF account as the money therein belongs to her and cannot be seized by her creditors;

(i) her company TPDN is dormant and has no bank account/statements;

(j) she does not own shares and hence does not have a Central Depository (“CDP”) account;

(k) she has no rental income and does not own credit cards;

(l) it was the Mother who paid the plaintiff the costs of SGD6484.40 ordered against her after the Second Mareva Order took effect.

It is noteworthy that when she was faced with Summons 5267 (see [39] above), Dinh suddenly became impecunious overnight and the Mother became the financier of her family’s household expenses and housing loan.

In VXT’s 20th affidavit, he had deposed that he was unable to furnish more details of D&N’s payments from unidentified sources or unrecorded transactions because they were not inter-company transactions. In his earlier affidavit filed on 13 June 2018, VXT deposed in regard to the discrepancies the plaintiff had noted between payment records and proforma invoices, that sometimes DDHP paid less than the amounts in the proforma invoices. Because of the shortfall in payments, he claimed that DDHP still owed money to the first three defendants.

VXT added (in VXT’s 20th affidavit) that he was unable to provide his CPF statements which were more than 15 months old as the CPF system did not allow for such earlier retrieval. Both VXT and the Fourth defendant initially took the position (presumably on legal advice) that they were not obliged to disclose their CPF balances as the law stipulated that their CPF funds were not available for satisfaction of judgment creditors’ claims.

At the hearing on 23 October 2020 (“the first hearing”), counsel for the plaintiff (“Mr Yap”) informed the court that contrary to what VXT claimed in VXT’s 20th affidavit, he had applied online to obtain his own CPF statements for a ten year period and he encountered no difficulties in retrieving his CPF statements for the years going back to 2010. Hence, Mr Yap submitted that VXT and Dinh both lied in their respective affidavits filed on 11 September 2020.

Mr Yap’s action in [44] as well as the contents in Lison’s second affidavit (which set out VXT's and Dinh’s breaches of the various orders of court) galvanised VXT and Dinh into action. The couple hastily filed a joint affidavit on 26 October 2020 (before the second hearing the following day) where they deposed that they were indeed able to retrieve their CPF statements (which they exhibited) for the years 2016 to 2019. VXT added that although he had sold his 1% interest in the Leonie Hill property to Dinh, he nevertheless continued to allow his CPF contributions to be used to service the housing loan. VXT treated it as an advance to Dinh, knowing that his CPF contributions would be refunded to him when the Leonie Hill property is sold. VXT and Dinh concluded the joint affidavit on 26 October 2020 by stating in paragraph 8:

Mr Yap submitted that VXT had been lying in all his previous affidavits where he said that no payments were ever made into D&N’s bank account by DDHP. In VXT’s 11th affidavit, he had stated at paragraph 13:

Mr Yap pointed out that the OCBC bank statements of D&N that the plaintiff obtained directly from the company’s bankers showed “staggering amounts” withdrawn including USD290,000.00 and USD300,000.00 on 4 and 11 January 2016 respectively. In a joint affidavit filed on 25 June 2020, VXT and Dinh had deposed that the aforesaid two sums were deposited into ECPL’s bank account. While there appeared to be corresponding deposits into ECPL’s DBS Account No. ending 5022, VXT and Dinh deposed that those deposits into ECPL’s account were from DDHP and not D&N. When the plaintiff pointed out this inconsistency in Lison’s second affidavit, VXT deposed in VXT’s 20th affidavit that payments by DDHP were made into D&N’s bank account, before being transferred to ECPL’s bank account. In so deposing, VXT contradicted his original statement in VXT’s 11th affidavit that all payments by DDHP went into ECPL’s bank account (see also [19(f)] and [20] above).

Indeed, the plaintiff’s skeletal submissions pointed out that more than USD250m flowed through just three (out of 21) bank accounts which VXT operates/operated from 2016 to 2019 namely ECPL’s DBS Account No. ending 5022, D&N’s OCBC Account No. ending 7301 and TUTP’s DBS Account No. ending 6022.

In Lison’s affidavit filed on 8 October 2020 (“Lison’s third affidavit”), he had exhibited VXT’s tax returns for the Year of Assessment 2017. It was noted therefrom that VXT earned SGD166,000.00 in 2016. VXT had initially resisted producing his 2020 tax returns but did so after the plaintiff filed the Committal Application. His tax returns for 2018 showed that he earned SGD156,000.00 in 2017 whilst his 2020 tax returns showed that he earned SGD99,393.00 in 2019. Yet, throughout his affidavits, VXT claimed to be “impecunious”. Moreover, the living/household expenses of VXT and the Fourth defendant were inconsistent with his professed impecuniosity. Indeed, the expenses served to support the plaintiff’s contention that VXT had failed to disclose hidden sources of income.

In VXT’s 20th affidavit, he further deposed that he had been employed by a Vietnamese company called Investment Mining Port Joint Stock Company (“IMPJSC”) since 1 May 2019 but of his salary of SGD8,000.00, he was only paid his CPF contributions of SGD2,220.00 and not the difference of SGD5,780.00. VXT claimed that it was due to the fact that he had not been able to develop the businesses of IMPJSC or find investors for them in port management, mining and manufacturing of gloves. He deposed that he expected to be paid his outstanding salary once he concluded a ‘deal’ for his employer with a Malaysian glove manufacturer.

In the same vein, the Fourth defendant deposed that her employer (between 1 July 2019 and May 2020) a shipping company called Vietnam Gas and Chemicals Transportation Corporation, did not pay her monthly salary of SGD6,000.00 but only her CPF contributions of SGD2,220.00 each month using AXS machines.

Similarly, Dinh refused to produce her 2020 tax returns before the Committal Application was filed. Dinh’s tax returns were also exhibited in Lison’s third affidavit. Her tax returns showed that she earned SGD60,000.00 in 2013 as well as in 2014, SGD82,000.00 in 2015, SGD122,000.00 in 2016, in 2017 and in 2018 and SGD72,000.00 in 2019.

Presumably, in a bid to avoid committal, VXT’s 18th affidavit was in purported compliance with the terms of the discovery order made against him in that he filed his supplemental list of documents (see [30] above).

The Committal Application

The law

The law on contempt by disobedience of court order under s 4(1)(a) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (“the AJPA”) provides:

Sections 4(3)(a) and 4(7) of the AJPA go on to state:

Section 6 of the AJPA applies to contempt by corporations. It states under s 6(2) of the AJPA:

Order 45 r 5(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules Of Court”) was also relied on by the plaintiff. It states:

As VXT is the director and/or alter ego of ECPL and D&N, he would be personally liable for contempt of court by the two corporate entities. It was also this court’s view that neither VXT nor Dinh could invoke the (only) defence set out under s 21 of the AJPA. It states:

The burden of proof that the plaintiff must discharge in the Committal Application is set out under s 28 of the AJPA. It states:

The punishment for contempt of court is set out under s 12 of the AJPA and includes fines as well as terms of imprisonment.

The court’s findings

There was little doubt from the numerous affidavits filed in these proceedings that the plaintiff had discharged the requisite burden of proof to warrant the court making a finding that VXT and the Fourth defendant were in contempt of court.

The history of the events that led the plaintiff to file the Committal Application are set out in paragraphs 18 to 28 of Lison’s second affidavit while paragraphs 29 to 58 of his same affidavit set out the various orders of court and the timelines for compliance that the defendants had repeatedly and intentionally breached. It would not be necessary to repeat those paragraphs in Lison’s second affidavit as the breaches by VXT of the First Mareva Order and by the Fourth defendant of the Second Mareva Order were set out earlier at [9] and [10] respectively.

The purpose of committal proceedings is twofold – (i) to ensure compliance with orders of court (see O 45 r 5(1) of the Rules of Court at [56] above) and (ii) to punish the offender for his contempt (see O 52 r 1 of the Rules of Court). Committal proceedings are usually a remedy of last resort when all other attempts to make the offender comply with orders of court fail, which was the case here (see Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1 (“Mok Kah Hong”) at [96]).

In Mok Kah Hong, the Court of Appeal held at [85]–[86] (citing Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and others [2007] 2 SLR(R) 518 at [31]–[32] and [51]):

The appellate court at [110] of Mok Kah Hong had this to say:

The extenuating circumstance raised by the Court of Appeal in Mok Kah Hong (see [64] above) was absent in this case nor can it be said that the contempt of court committed by VXT and Dinh were “wholly or substantially attributable to an honest and reasonable failure” to understand their discovery obligations (see s 21 of the AJPA at [57] above). To borrow the words of the appellate court at [111] in Mok Kah Hong, VXT and Dinh had a history of acting in flagrant disregard of orders made by the court. Almost all the egregious factors which were employed by the courts to impose a stiff sentence on the contemnors in the cases cited herein can be found on the facts of this case.

Another case that the plaintiff relied on where the contemnor was sentenced to a term of imprisonment was OCM Opportunities Fund II, LP and others v Burhan Uray (alias Wong Ming Kiong) and others [2005] 3 SLR(R) 60 (“OCM Opportunities”). As in this case, OCM Opportunities involved various breaches of a Mareva injunction that had been obtained by the plaintiffs against the defendants. In holding that all five heads of contempt as set out by the plaintiffs had been proven beyond reasonable doubt, Belinda Ang J made the following helpful observations at [37]:

This court had also sentenced a contemnor to a term of imprisonment of three months in Toyota Tsusho (Malaysia) Sdn Bhd v Foo Tseh Wan and others [2017] 4 SLR 1215 (“Toyota Tsusho”) for his flagrant disregard of his discovery obligations in a Mareva Order that the plaintiff obtained against him.

There is great similarity in the conduct of the contemnors in Mok Kah Hong, OCM Opportunities and Toyota Tsusho and in this case. At the risk of repetition, VXT and his wife Dinh intentionally refused to comply with any/all of the orders listed at [9] and [10] above. At every turn, they were bent on ensuring that the plaintiff would not be able to recover a single cent of their claim for damages. To achieve their aim, the couple were prepared to and did lie brazenly in order to avoid giving discovery of their and the assets of ECPL and D&N. They acted in contumelious disregard of their discovery obligations not once or twice but on multiple occasions and maintained their lies repeatedly as can be seen in the paragraph below. To add insult to injury, their counsel invited the plaintiff to institute committal proceedings against the two defendants for such breaches.

If not for the gravity of the matter and the serious implications arising therefrom, the extent of the couple’s lying would be laughable. It was naive and/or disingenuous of VXT and Dinh to expect the court to believe the following claims, all of which were mere bare assertions:-

(a) VXT conducted his multi-million dollar business without any documentation whatsoever save for bank statements as he outsourced the paperwork (see [19(a)], [19(b)] and [19(e)] above);

(b) VXT’s handphone was damaged and he had discarded it (see [19(c)] above);

(c) VXT had forgotten the password(s) to his email account(s) and/or emails were deleted and/or there were no emails because all his communication was oral including agreement on contracts and/or variation of contracts (see [19(d)] above);

(d) Payments for gasoil supplies from DDHP went into the bank account of ECPL instead of D&N (see [19(f)] and [20] above);

(e) VXT and Dinh’s claim that the Mother paid for the couple’s household expenses of more than SGD25,000.00 per month. It is noteworthy that the monthly mortgage instalment alone is SGD14,000.00. Dinh had claimed parent relief for the Mother in her 2020 tax returns. When Lison’s third affidavit pointed this out, Dinh sought to explain she had made a mistake and would correct it;

(f) Dinh’s claim that her rich relatives came to Singapore carrying bags of cash to pass to her without details of the currency involved and the frequency of such visits. It should be noted that the Vietnamese currency Dong approximates VND17,000.00 to SGD1.00 and the equivalent of SGD25,000.00 would be VN425,000,000.00;

(g) Dinh’s claim that like VXT, she suddenly became impecunious overnight when the plaintiff applied for discovery against her pursuant to the Second Mareva Order;

(h) The couple’s common assertion that their employers do not pay/have not paid their salaries but only their CPF contributions which was done via AXS machines without the issuance of receipts. Such employers would have been prosecuted by the Ministry of Manpower.

The plaintiff had produced evidence that proved beyond a reasonable doubt all the lies of the couple made under oath. In particular, VXT’s claims that D&N did not receive payments from DDHP (see [46] above) were refuted by the bank statements of D&N that the plaintiff obtained directly from OCBC.

The couple was also proven to have lied in their claim that they were unable to obtain their CPF transactions statements from the CPF Board (see [43] –[45] above).

As Mr Yap pointed out at the first hearing, the plaintiff’s request for the couple’s CPF transactions (not contributions) history was not intended to seize their CPF contributions but to verify who and to what extent the couple had used their CPF contributions to pay for the Leonie Hill property and/or to service the mortgage instalments. It was also to verify if the CPF contributions were ‘voluntary’ as the couple claimed.

VXT had a food court business which generated income which he failed to disclose. In fact, he committed a further breach by diverting a sum of SGD16,251.68 paid by the food court operator into ECPL’s bank account (frozen by the first Mareva Injunction) to his own UOB account. This showed that he was a man who clearly defied court orders.

Caselaw makes it clear that the couple’s bald assertions and denials of commission would not suffice to excuse them from their breaches of the orders of court. In Mok Kah Hong at [112], the Court of Appeal rejected the explanation of the contemnor as “no documentary evidence was adduced in support of his bald assertion”. In other contexts, the court has rejected bald assertions unsubstantiated by evidence (see Wong Ser Wan v Ng Bok Eng Holdings Pte Ltd and another [2004] 4 SLR (R) 365 at [30], cited with approval in the Court of Appeal decision of Ng Bok Eng Holdings Pte Ltd and another v Wong Ser Wan [2005] 4 SLR (R) 561 at [24]) and exaggerated claims with no documentary evidence provided in support (Sun Electric Pte Ltd v Menrva Solutions Pte Ltd [2020] 4 SLR 978 at [137]).

In submissions, Mr Yap cited the cases referred to at [62] [66] and [67] above as well as Maruti Shipping Pte Ltd v Tay Sien Djim and others [2014] SGHC 227, Precious Wishes Limited v Sinoble Metalloy International (Pte) Ltd [2000] SGHC 5, Technigroup Far East Pte Ltd and another v v Jaswinderpal Singh s/o Bachint Singh and others [2018] 3 SLR 1391 and Cartier International BV v Lee Hock Lee and another application [1992] 3 SLR(R) 340 to give an indication of the range of prison terms imposed by courts (three to eight months) for contempt of court. The plaintiff submitted that the appropriate punishment in this case would be a jail term of between six to eight months.

It bears repeating that VXT and Dinh deliberately and continuously breached the various court orders that were the subject of the Committal Application. Obviously, they had no compunctions of lying to the extent they did throughout the affidavits that they filed in these proceedings. Their egregious conduct was hardly inadvertent as they claimed (see [45] above).

Notwithstanding the court’s dim view of their conduct, the court nevertheless still afforded VXT and Dinh an opportunity to make good their obligations of disclosure. Hence the court made the following orders in regard to VXT for the Committal Application:

(a) VXT is committed to seven months’ imprisonment for contempt of court but the committal order is suspended for seven days provided VXT complies with all his disclosure obligations under the orders of court 6803/2018, 7739/2018, 1821/2019 and 2111/2020 by 5 pm of Monday 2 November 2020;

(b) VXT is to pay the plaintiff the outstanding costs amounting to SGD37,485.18 by 5 pm of Friday 6 November 2020.

(c) VXT together with the other three defendants (on a joint and several basis) is to pay the plaintiff the costs of this application fixed at SGD16,000.00 excluding disbursements which are to be paid on a reimbursement basis.

As for Dinh, the court made the following order:

Based on all the authorities cited, the court was of the view that seven months’ and five months’ imprisonment were appropriate for VXT and Dinh respectively.

The Striking Out Application

In regard to the Striking Out Application, the plaintiff cited the appellate court’s decision in Mitora Pte Ltd v Agritrade International (Pte) Ltd [2013] 3 SLR 1179 (“Mitora”) for the guiding principles when such a draconian sanction should be imposed.

In this connection, it should be noted that D&N did not file a defence at all to the plaintiff’s statement of claim. ECPL’s defence and counterclaim (Amendment No 1) filed on 12 March 2020 either denied or put the plaintiff to strict proof of its allegations. ECPL’s counterclaim was for USD423,000.00 for the demurrage it paid for detention (for which it claimed it was not contractually liable to the plaintiff). VXT’s defence (Amendment No 2) filed on 12 March 2020 either (i) did not plead to the plaintiff’s allegations, (ii) denied the allegations and/or (iii) put the plaintiff to strict proof. As for the Fourth defendant’s defence filed on 23 June 2020, she essentially denied the plaintiff’s allegations.

The court is mindful that the Striking Out Application did not involve the defendants’ non-compliance with an “unless order” which non-compliance would have been an even more serious breach on the part of VXT and Dinh.

The appellate court had in Mitora at [35]–[41] set out the criteria when a court would exercise its power to strike out pleadings for breach of an “unless order”. The guiding principle was that of proportionality. The onus was on the defaulting party to demonstrate that the breach had not been intentional and contumelious. As observed in [65] earlier, neither VXT nor Dinh could avail themselves of the defence set out in s 21 of the AJPA nor the extenuating factor the Court of Appeal raised in Mok Kah Hong.

Even so, the court did not grant the Striking Out Application immediately – instead, it made an “unless order” as follows:

Instead of complying with the directions made under the Committal and Striking Out Applications, VXT and Dinh as well as the other two corporate defendants chose to appeal.

Annex A: ORC 6803/2018 made in Registrar’s Appeal No 200 of 2018

Annex B: ORC 7739/2018 made in Summons No 5022 of 2018

Annex C: ORC 1821/2019 made in Summons No 1142 of 2019

Annex D: ORC 2111/2020 made in Summons No 5267 of 2019

Annex E: ORC 2480/2019 made in Summons No 1859 of 2019