Ha Chi Kut (suing as the sole executrix of the estate of Khoo Ee Liam, deceased) v Chen Aun-Li Andrew [2022] SGHC 149

Introduction

Background

The plaintiff, Mdm Ha Chi Kut (“Mdm Ha”) is the sole executrix of the estate of the late Mr Khoo Ee Liam (“Mr Khoo”), and she appeared in these proceedings in that capacity.

The defendant, Mr Chen Aun-Li Andrew (“Mr Chen”) was at the material time the director and sole shareholder of Aachen (Asia Pacific) Consultants Limited (“ACL”), a company incorporated in Hong Kong.

Taxation proceedings were commenced by Mr Khoo in September 2014, and were adjourned several times, initially for Mr Khoo to prove good service, and later because of Mr Khoo’s poor health. Mr Khoo passed away on 26 May 2015, and an adjournment of taxation proceedings “sine die with liberty to restore” was granted on 25 August 2015.

Mdm Ha obtained probate of Mr Khoo’s estate on 14 March 2016, and joined herself as a party to Action 4353 on 30 November 2018. Taxation proceedings were then restored by Mdm Ha filing a notice of intention to proceed on 15 February 2019. After service of the notice by post at Mr Chen’s Hong Kong address on 20 February 2019 was returned undelivered, Mdm Ha applied on 6 November 2019 for leave to effect substituted service by pre-paid airmail to Mr Chen’s Singapore address. Leave was granted on 13 November 2019 and substituted service was effected on 29 November 2019.

Procedural history

On 21 June 2021, Mdm Ha applied vide OS 618 for:

Order in terms was granted ex parte on 22 June 2021 (the “Registration Order”). The Registration Order was served on Mr Chen on or around 7 October 2021.

On 26 October 2021, Mr Chen applied to set aside the Registration Order. At the hearing of the setting aside application before the learned Assistant Registrar (“the AR”), Mr Chen relied on two grounds. First, more than six years had passed since the date of the foreign judgment. Second, insufficient notice was given to Mr Chen of the taxation proceedings. The learned AR rejected Mr Chen’s submissions on both grounds and dismissed the setting aside application on 13 December 2021. Mr Chen’s appeal against the AR’s decision was heard before me on 24 January 2022.

The relevant statutory provisions

On 31 December 2021, the 2020 Revised Edition of Acts (the “2020 Rev Ed”) came into force (see Revised Edition of the Laws (Section 7) Order 2021). One major change brought about by the 2020 Rev Ed is the removal of chapter numbers and the inclusion of the year of enactment in the short title of each Act. Another change involves the renumbering of sections and paragraphs, in particular where the section or paragraph numbering involved alphabetical suffixes. For example, of relevance to the present case is the renumbering of paragraphs (aa) and (b) of s 4(3) of the REFJA as paragraphs (b) and (c) respectively in the 2020 Rev Ed.

As OS 618 was filed before 31 December 2021, all references to legislation in these grounds, including references to section and paragraph numbers, are references to the version in force prior to the coming into force of the 2020 Rev Ed (unless otherwise specified).

The setting aside of the registration of a foreign judgment under the REFJA is governed by s 5(1) of the REFJA, which reads:

As provided in s 5(1)(a)(i), the registration of a judgment shall be set aside if:

(a) it is not a judgment to which Part I of the REFJA applies; or

(b) it was registered in contravention of ss 3 and 4 of the REFJA.

On whether Part I of the REFJA applies to a judgment, s 3(3) of the REFJA provides:

In relation to s 3(3)(a), the Reciprocal Enforcement of Foreign Judgments (Hong Kong Special Administrative Region of the People’s Republic of China) Order (GN No S 93/1999) (“the Hong Kong Extension Order”) is an order made under s 3(1) of the REFJA. According to the Hong Kong Extension Order,

(a) Part I of the REFJA is extended to Hong Kong; and

(b) Hong Kong’s High Court (consisting of the Court of Appeal and the Court of First Instance) and Hong Kong’s Court of Final Appeal are deemed superior courts of Hong Kong for the purposes of Part I of the REFJA.

It would not go unnoticed that there is a discrepancy between the text of the Hong Kong Extension Order, which refers to “superior courts”, and the text of s 3(3)(a) as quoted at [18] above, which refers instead to a “recognised court”. This is due to amendments made to the REFJA by the Reciprocal Enforcement of Foreign Judgments (Amendment) Act 2019 (Act 25 of 2019) (the “2019 Amendment Act”), which replaced the term “superior courts” in s 3 with the term “recognised court” in order to allow for registration of lower court judgments. As the Hong Kong Extension Order predates the 2019 Amendment Act, it tracked the language of s 3 prior to the amendments made by the 2019 Amendment Act (the “2019 amendments”), which referred to “superior courts”. However, s 10 of the 2019 Amendment Act contains a transitional provision which reads:

Reading the Hong Kong Extension Order together with s 10(1) of the 2019 Amendment Act, the HKCFI would be a recognised court referred to in s 3(3)(a) of the REFJA, and a final money judgment from that court would be a specified judgment referred to in s 3(3)(a).

In relation to s 3(3)(b), s 3(2) of the REFJA provides:

As for the reference in s 5(1)(a)(i) to registration in contravention of s 4 of the REFJA, the relevant parts of s 4 read:

Although s 5(1)(a)(i) also refers to registration in contravention of s 3 of the REFJA, it will be apparent from the discussion at [18]–[21] above that the provisions of s 3 do not set out any criteria for registration of foreign judgments. Instead, those provisions determine which judgments Part I applies to. Therefore, the ground for setting aside referred to in s 5(1)(a)(i) as “the judgment is not a judgment to which this Part applies” and the ground referred to as “registered in contravention of [section] 3” are, in reality, one and the same ground.

An oddity in the paragraphing of s 4(1) of the REFJA

A matter touched upon during oral submissions concerned an oddity in the paragraphing of s 4(1) of the REFJA. Due to the manner in which s 4(1) had been divided into paragraphs (a) and (b), it appears from a literal reading of s 4(1) that the six-year time limit for registration applies only to first instance judgments and not to judgments rendered on appeal, with the consequence that an appellate judgment may be registered at any time after it is rendered. This seems to be an absurd result, as there appears to be no principled reason why the registration of appellate judgments would not be subject to any time limit while the registration of first instance judgments would. However, as the present case concerns a first instance judgment, the treatment of appellate judgments did not arise for determination. I have therefore included only some brief observations in the Annex instead of dwelling on the matter in the main body of these grounds.

Parties’ submissions

At the hearing of the appeal before me, Mr Chen abandoned the ground that he was not given sufficient notice of the taxation proceedings, and relied solely on the ground that the registration took place more than six years after the date of the judgment.

Analysis

Since Mdm Ha’s submissions were grounded partly on the position concerning enforcement of foreign judgments at common law and the legislative purpose of the REFJA, I will begin by first considering the position at common law, followed by considering the legislative history and purpose of the REFJA, before turning to evaluate the submissions made by Mr Chen for setting aside the registration.

Enforcement of foreign judgments at common law

As noted by the Court of Appeal in Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 1 SLR(R) 515 (at [12]):

As emphasised by the Court of Appeal in Poh Soon Kiat v Desert Palace Inc (trading as Caesars Palace) [2010] 1 SLR 1129 (“Desert Palace”) at [14], a foreign judgment may be enforced by an action for the amount due under it only if it is a judgment for a definite sum of money. A judgment of this nature was described in Desert Palace as a “foreign money judgment”.

Desert Palace also clarified that the applicable limitation period for an action to enforce a foreign judgment is six years, as provided in s 6(1)(a) of the Limitation Act, and not twelve years as provided in s 6(3) of the Limitation Act for an action upon a judgment. This is because the action upon a judgment referred to in s 6(3) of the Limitation Act refers only to domestic judgments, whereas a common law action on a foreign judgment is an action on an implied debt. (at [49]–[53])

The six-year limitation period provided in s 6(1)(a) of the Limitation Act commences from the “date on which the cause of action accrued”. A cause of action accrues when all the elements required to establish the cause of action are present. For an action to enforce a foreign judgment, these elements are: (a) a judgment in personam is made (b) by a foreign court of competent jurisdiction (c) for a definite sum of money (d) which is final and conclusive.

Legislative history and purpose of the REFJA

In Singapore, there are two pieces of legislation providing for the enforcement of foreign judgments by way of registration – the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (the “RECJA”) and the REFJA. The RECJA is modelled on the UK’s Administration of Justice Act 1920 (c 81) (the “AJA 1920”) while the REFJA is modelled on the UK’s Foreign Judgments (Reciprocal Enforcement) Act 1933 (c 13) (the “FJREA 1933”).

The main differences between the AJA 1920 and the FJREA 1933 are:

(a) Registration of a judgment under the FJREA 1933 is as of right if the criteria for registration are satisfied, while registration under the AJA 1920 is subject to the registering court finding it just and convenient to do so.

(b) The period for making an application for registration under the FJREA 1933 is six years after the date of the judgment while the period for doing so under the AJA 1920 is one year, although this one-year period may be extended by the registering court.

(c) A foreign judgment which is registrable under the FJREA 1933 may not be enforced by a common law action on the foreign judgment, while the alternative of a common law action on the foreign judgment continues to be available for foreign judgments registrable under the AJA 1920.

The rationale for the enactment of the FJREA 1933 as well as for the differences between the registration regimes under the AJA 1920 and the FJREA 1933 are explained in the report of the Foreign Judgments (Reciprocal Enforcement) Committee chaired by Lord Justice Greer (United Kingdom, Report of the Foreign Judgments (Reciprocal Enforcement) Committee (Cmd 4213, 1932) (Chairman: Sir Arthur Greer) (“the Greer Report”), reprinted in Butterworths Jurisdiction, Foreign Judgments and Awards Handbook (Graham S McBain consultant ed) (Butterworths, 1994) (“Butterworths Handbook”) at pp 356–422).

According to the Greer Report, when the UK government enacted the AJA 1920 to provide for reciprocal enforcement of judgments between different parts of the British Empire, a decision was made not to enact a similar statutory regime for enforcement of judgments of countries outside the British empire (at para 12). Several reasons were given for this decision including:

(a) the existing procedure for enforcing foreign judgments in England by action was found satisfactory and there was no evidence that foreign countries were dissatisfied with it; and

(b) it was comparatively rarer for British merchants to be concerned about enforcing British judgments abroad because:

However, after the enactment of the AJA 1920, the UK government received feedback concerning the unfairness arising from the fact that, while foreign judgments were easily enforceable in English courts by action, British merchants were facing difficulties enforcing English judgments in foreign countries (at para 14).

Lord Hailsham, LC appointed a preliminary committee in 1929 (also chaired by Lord Justice Greer), which recommended that the remedy was to conclude international conventions for reciprocal enforcement of judgments. For this purpose, legislation would be required. The preliminary committee further recommended that such legislation “should not depart from the substantive principles of the common law applicable to foreign judgments in general.” (at para 16)

Thereafter, Lord Sankey, LC (who succeeded Lord Hailsham) appointed the Foreign Judgments (Reciprocal Enforcement) Committee in 1931 (“the Committee”) to follow up on the recommendations of the preliminary committee. The Committee chose to embody its recommendations in the Greer Report in the form of a draft Foreign Judgments (Reciprocal Enforcement) Bill (“the Draft Bill”), draft rules of court, draft orders in council and draft international conventions to be negotiated with various countries (at para 3).

The Greer Report explained that one of the guiding principles followed by the Committee was that, in the proposed legislation, existing principles of the common law should generally be followed in matters of substance while the procedure in the AJA 1920 should generally be followed in matters of procedure (at para 18).

Clause 2(1) of the Draft Bill is in pari materia with s 4(1) of the REFJA and similarly provides for an application for registration to be made “at any time within six years after the date of the judgment” (the Greer Report at p 23, Butterworths Handbook at p 374). The following explanation for the drafting of clause 2(1) was given at Annex V of the Greer Report (the Greer Report at pp 60–61, Butterworths Handbook at p 414):

Thus, the Greer Report’s rationale for the phrase “six years after the date of the judgment” was to provide the same period as was allowed at common law for bringing an action on a foreign judgment and to ensure that the statutory regime set out in the Draft Bill would not involve a substantial diminution of the rights at common law of foreign judgment creditors.

Having considered the legislative history and purpose of the FJREA 1933 and, by extension, of the REFJA, including the rationale for the six-year limit for registration of a foreign judgment, I turn now to consider the structure of the enforcement regime under the REFJA.

Structure of enforcement regime under the REFJA

After the 2019 amendments, which came into force on 3 October 2019, the REFJA now provides for enforcement of both money judgments and non-money judgments. A money judgment is defined in s 2(1) of the REFJA simply as “a judgment under which a sum of money is payable …” while a non-money judgment is defined simply as “a judgment that is not a money judgment …”. Section 4(3A) of the REFJA provides that a non-money judgment may be registered only if the registering court “is satisfied that enforcement of the judgment would be just and convenient”. No such restriction applies to money judgments, which remain registrable as of right if the criteria for registration are satisfied.

The REFJA as it stood prior to the 2019 amendments (the “pre-2019 REFJA”) only allowed for registration of money judgments. This arose from the fact that, back then, s 3(2) of the REFJA read:

The effect of s 3(2)(b) in the pre-2019 REFJA was that a judgment had to be one under which a sum of money was payable in order to be registrable. The 2019 amendments took this requirement out from s 3(2) and folded it into the newly created definition of “money judgment” referred to at [49] above.

The 2019 amendments provided a framework for non-money judgments to be registered under the REFJA but did not have the effect of making non-money judgments of all descriptions immediately registrable. This is because, after the 2019 amendments, s 3(1) of the REFJA now provides:

Thus, it is envisaged that, under the 2019 amendments, a particular description of judgments will be registrable under the REFJA only if it is specified in an order made by the Minister under s 3(1) of the REFJA. As explained by the Minister during the second reading debates on the 2019 amendments (Singapore Parliamentary Debates, Official Report (2 September 2019), vol 94 (Mr Edwin Tong, Senior Minister of State for Law)):

As noted at [20] above, arising from s 10(1)(d) of the 2019 Amendment Act, final money judgments of the HKCFI are, upon the commencement of the 2019 Amendment Act, deemed to have been specified pursuant to an order made under s 3(1) of the REFJA for enforcement under the REFJA. After the 2019 amendments, no orders had been made under s 3(1) of the REFJA to extend Part I of the REFJA to non-money judgments of any description from Hong Kong. It therefore remains the case, to this day, that the only judgments from Hong Kong that may be registered under the REFJA are money judgments.

Expert opinion on Hong Kong law

Mdm Ha filed an opinion from a Hong Kong law expert, Mr Kenneth Sit, which made two main points:

(a) The 2013 Order could not be enforced in Hong Kong before the amount of costs was quantified and certified after taxation proceedings. In support, the expert cited a passage from Hong Kong Civil Procedure 2022 (Hon Mr Justice Fok PJ gen ed) (Sweet & Maxwell, 2021) (ie, Hong Kong’s equivalent of the White Book) at para 45/1/2, which reads:

(b) The 2013 Order “only became final and conclusive and enforceable as an order for the payment of money upon the completion of the taxation proceedings” with the 2020 Certificate.

The opinion of Hong Kong law experts is relevant for two reasons. First, it is relevant for the purpose of Mdm Ha’s submission based on s 4(3)(b) of the REFJA (at [29] above), as that submission turns, in part, on whether the 2013 Order could be “enforced by execution in the country of the original court”. Second, it is relevant for the purpose of determining whether and when a foreign judgment is final and conclusive under s 3(2)(b). This is because a foreign judgment will not be regarded as final and conclusive for the purpose of enforcement in this jurisdiction if it is not considered final and conclusive under the laws of the country in which the foreign judgment was given (see Nouvion v Freeman (1889) LR 15 AC 1 at 9, 13 and 18, Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 919 and Berliner Industriebank Aktiengesellschaft v Jost [1970] 3 WLR 743).

Mr Chen did not file an expert’s opinion. Instead, Mr Chen urged me to give little weight to Mr Sit’s opinion because it “did not set out any legal analysis, nor cite any authorities, for [its] conclusion”. Despite the foregoing criticism, I note that Mr Chen did not dispute Mr Sit’s opinion on enforceability (as summarised at [53(a)] above).

As for the opinion summarised at [53(b)] above, I share Mr Chen’s concern that Mr Sit may not have properly distinguished the concept of finality and conclusiveness, on the one hand, from the concept of enforceability on the other hand. I therefore found this part of the opinion to be not entirely helpful. However, this does not pose a serious obstacle for the resolution of the present case, as it appears from parties’ submissions that it was not disputed that:

(a) prior to the issuance of the 2020 Certificate, the 2013 Order was final and conclusive as to liability for costs but not final and conclusive as to the amount of costs to be paid; and

(b) the 2013 Order became final and conclusive as to both liability and amount upon the issuance of the 2020 Certificate.

Evaluation of Mr Chen’s main submission

Having laid the foregoing groundwork, I now turn to evaluate Mr Chen’s main submission.

According to Mr Chen, the issue is whether the 2013 Order was “at the time of its issuance, a judgment within the meaning of s 4(1) of the REFJA” [emphasis added]. If so, the “date of the judgment” for the purpose of calculating the six-year period allowed for registration would be the date on which the 2013 Order was issued. The reasoning of this submission takes the following route:

(a) For a judgment to come within s 4(1), it has to be “a judgment to which this Part applies” (meaning Part I of the REFJA).

(b) Section 3(3) defines “a judgment to which this Part applies”, and one element of that definition (as provided in s 3(3)(b)) is that it has to be a judgment within s 3(2) of the REFJA.

(c) Section 3(2) provides that a judgment of a recognised court is within s 3(2) if it is final and conclusive as between the parties to it, unless it is an interlocutory judgment.

(d) Since Mr Chen’s liability to pay costs was finally determined by the 2013 Order, and the 2013 Order was not an interlocutory order, it was beyond question that the 2013 Order was “final and conclusive as between the parties to it”. The fact that the amount of costs has not been quantified does not prevent the 2013 Order from being final and conclusive.

(e) Since the 2013 Order was final and conclusive at the date of its issuance, it was a judgment within s 4(1) of the REFJA from the date it was issued. The “date of the judgment” for the purposes of s 4(1) would therefore be the date on which the 2013 Order was issued.

There are at least two problems with this line of reasoning. First, in so far as Mr Chen’s reasoning is premised on whether the 2013 Order was a judgment within the meaning of s 4(1) of the REFJA at the time of its issuance, the analysis should be based on the text of the REFJA prevailing at the time the 2013 Order was issued, and not based on the text of the REFJA after the 2019 amendments (the “post-2019 REFJA”). Second, Mr Chen’s analysis using the text of the post-2019 REFJA is, in any event, flawed because it focused on only one criterion – whether the 2013 Order was final and conclusive – while ignoring other relevant statutory criteria that had to be fulfilled.

In relation to the first problem identified in the preceding paragraph, as noted at [50] above, from its enactment in 1959 until the 2019 amendments, the REFJA provided only for the registration of money judgments. Prior to the 2019 amendments, the criteria to be met for a judgment to come within s 4(1) were set out in s 3(2) of the pre-2019 REFJA, which read:

Thus, for a judgment to come within s 4(1) of the pre-2019 REFJA, the criteria to be met would be:

(i) the judgment is of a superior court of Hong Kong (s 3(2) chapeau);

(ii) it is final and conclusive as between the parties to it (s 3(2)(a));

(iii) there is payable thereunder a sum of money (s 3(2)(b)); and

(iv) it is given after the coming into operation of the Hong Kong Extension Order (s 3(2)(c)).

Thus, the phrase “there is payable thereunder a sum of money” (found in clause 1(2)(b) of the Draft Bill, s 1(2)(b) of the FJREA 1933 and s 3(2)(b) of the pre-2019 REFJA) is intended to refer to money judgments capable of being enforced by way of common law action on the foreign judgment. As noted at [32] above, such judgments must be judgments for definite sums of money. At the time of its issuance, the 2013 Order was not a judgment for a definite sum of money. Instead, to adopt the words of Mann QC in Chohan (see [37] above), the 2013 Order was, at the time of its issuance, a foreign judgment relating to money which “cannot be enforceable in this jurisdiction until it is reduced to an actual money judgment, that is until the amount is finally quantified”. Therefore, the 2013 Order was not a judgment within the meaning of s 4(1) of the pre-2019 REFJA at the time of its issuance, and would not become a judgment within the meaning of s 4(1) until the amount of costs was quantified.

Before dealing with the second problem identified at [59] above, it would be useful to clarify that, although questions concerning the status of the 2013 Order at the time of its issuance must be answered according to the law in force at the time the 2013 Order was issued, questions concerning the correctness of the Registration Order would have to be answered according to the law in force at the time OS 618 was filed. For this reason, it remains relevant and meaningful to consider the second problem with reference to the text of the post-2019 REFJA.

Turning to the second problem, it may be recalled that the relevant provisions in the post-2019 REFJA which define the judgments that Part I applies to are ss 3(2) and 3(3), which read:

These two subsections require the following four criteria to be met:

(i) the judgment is of a recognised court of Hong Kong (s 3(2) chapeau);

(ii) it is given after the coming into operation of the Hong Kong Extension Order (s 3(2)(a));

(iii) it is final and conclusive as between the parties to it (s 3(2)(b)); and

(iv) it is a judgment specified in the Hong Kong Extension Order (s 3(3)(a)).

For the reasons given at [59]–[64] above, Mr Chen’s main submission, as summarised at [58] above, was misguided and could not be accepted by the court.

My decision

Having explained the difficulties with Mr Chen’s main submission, I will now set out my decision.

I agreed with Mr Chen’s submission that:

(a) the 2020 Certificate is not a judgment as it did not contain any direction or order for payment of costs, and merely quantified the amount of costs payable pursuant to the 2013 Order; and

(b) it is therefore incapable of being registered independently of the 2013 Order.

But that submission does not bring Mr Chen very far, as Mdm Ha did not attempt to register the 2020 Certificate own its own. Instead, Mdm Ha sought to register the 2013 Order and the 2020 Certificate collectively. Mdm Ha’s treatment of the 2013 Order and the 2020 Certificate collectively in this manner is consistent with Mr Chen’s submission that the 2020 Certificate merged with the 2013 Order. The dispute between parties was whether, pursuant to such merger, the date of this merged or collective judgment (the “Collective Judgment”) should, for the purposes of s 4(1) of the REFJA, be regarded as 30 April 2013 or 13 May 2020.

Since OS 618 was filed on 21 June 2021, the application for registration was made within six years of the date of the judgment. The Registration Order was therefore not made in contravention of s 4 of the REFJA, and consequently not liable to be set aside.

The foregoing conclusion, arrived at through textual analysis of the REFJA, is also borne out by a purposive interpretation of the REFJA. As provided in s 9A(1) of the Interpretation Act (Cap 1, 2002 Rev Ed), an interpretation that would promote the purpose or object underlying a written law is to be preferred to an interpretation that would not promote that purpose or object. As noted at [45] above, one key object or purpose of the provisions of the FJREA 1933 (and consequently of the REFJA) is that the existing principles of the common law on enforcement of foreign judgments should be followed in matters of substance. Further, as noted at [47] above, the object and purpose of the phrase “six years after the date of the judgment” was to provide the same period as was allowed at common law for bringing an action on a foreign judgment. It was also to ensure that the registration regime under the FJREA 1933 (and consequently of the REFJA) would not involve a substantial diminution of the rights at common law of foreign judgment creditors. This was because one effect of the FJREA 1933 (and the REFJA) was to remove the option of enforcement at common law for judgments to which the FJREA 1933 (or the REFJA, as the case may be) applies (see s 6 of the FJREA 1933 and s 7(1) of the REFJA).

In coming to the foregoing decision, there was no need for me to rely on Mdm Ha’s submission based on s 4(3)(b) of the REFJA (see [29] above). As such, I express no definite views on it.

Conclusion

Annex : The paragraphing of s 4(1) of the REFJA

Thus, as originally drafted, s 4(1) contained an ambiguity, in that the phrase “within 6 years” could be read either as applying to both the phrase “after the date of the judgment” and the phrase “after the date of the last judgment given in those proceedings”, or as applying only to the phrase “after the date of the judgment”. If the former reading is adopted, the six-year limit would apply to the registration of both first instance judgments and appellate judgments. If the latter reading is adopted, the six-year limit would apply only to the registration of first instance judgments, with the consequence that there would be no time limit for the registration of appellate judgments.