Farooq Ahmad Mann (in his capacity as the private trustee in bankruptcy of Li Hua) v Xia Zheng [2025] SGHC 70

This is the application of Mr Farooq Ahmad Mann (the “applicant”) for permission to apply for a committal order against Ms Xia Zheng (the “defendant”) under O 23 r 3 of the Rules of Court 2021 (“ROC 2021”) on the basis that she has breached HC/ORC 2309/2024 (“ORC 2309”). I allow the application and accordingly grant permission to the applicant to make a committal application on most of the grounds relied upon.

Background

The applicant is the private trustee in bankruptcy of one Mr Li Hua. Mr Li and the defendant were previously married to each other.

ORC 2309 arose from my decision in HC/SUM 34/2024 (“SUM 34”) in which I granted a Mareva injunction against the defendant. The Mareva injunction was granted in support of the applicant’s application to avoid certain transfers of property from Mr Li to the defendant in the lead-up to Mr Li’s bankruptcy as they were transactions at an undervalue or fraudulent conveyances under s 361 of the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) and s 73B of the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) respectively (see Farooq Ahmad Mann (in his capacity as the private trustee in bankruptcy of Li Hua) v Xia Zheng [2024] SGHC 182). Amongst others, paragraph 2 of Annex A to ORC 2309 required the defendant to serve an affidavit of assets confirming the value, location and details of all her assets (in or outside Singapore, whether in her own name and whether solely or jointly owned) within seven days after the order was served on her.

HC/SUM 1768/2024 (“SUM 1768”), the present application, was filed by the applicant on 24 June 2024 as the defendant had missed the deadline of 23 May 2024 for serving such affidavit of assets and by her admission, her cash had also been depleted without apparent reason. The applicant filed his first affidavit in support of SUM 1768 on the same day. The summons and the supporting affidavit were e-served on the defendant’s solicitor notwithstanding that an application for permission to make an application for a committal order is made without notice.

On 16 July 2024, the defendant filed her first affidavit of assets a day before the initial hearing date for SUM 1768 (which was vacated). The defendant filed her second affidavit of assets on 11 October 2024, pursuant to the Assistant Registrar’s (“AR”) directions on 13 September and 7 October 2024. The applicant did not object to the defendant’s request to file a second affidavit of assets. In fact, it was the applicant who wanted the defendant to file a second affidavit.

On 4 November 2024, the applicant filed a supplementary affidavit pursuant to the AR’s directions on 21 October 2024. This supplementary affidavit addressed the breaches of ORC 2309 which the applicant uncovered after reviewing the defendant’s second affidavit of assets.

On 16 December 2024, the defendant filed a supplementary affidavit to address these breaches raised in the applicant’s supplementary affidavit, pursuant to the AR’s directions on 2 December 2024.

Summary of the applicant’s arguments

The applicant’s arguments are two-fold. The applicant argues that the court can grant permission for a committal application to be made on grounds of breach not raised in the original supporting affidavit, but raised only subsequently in a supplementary affidavit (ie, he can rely on new grounds raised). Furthermore, permission should be granted for the applicant to apply for a committal order as there is a prima facie breach of ORC 2309.

On the first argument, the applicant submits, in oral submissions, that there are three bases upon which the court can admit a supplementary affidavit and thus rely on new grounds to grant permission. First, the court has the inherent jurisdiction to do so under O 3 r 2 of the ROC 2021. Second, the grounds in the supplementary affidavit could not have been canvassed in the applicant’s first affidavit in support of SUM 1768. Third, granting permission to the applicant to file a supplementary affidavit encompassing new grounds for its committal application would be in line with the ideals in the ROC 2021 to achieve expeditious proceedings and the efficient use of court resources.

In the present case, the applicant had filed the supplementary affidavit belatedly because the defendant’s affidavits of assets were the only sources of information on the breaches. Further, the defendant did not object to the filing of the supplementary affidavit at the case conference with the AR on 21 October 2024. The applicant argues that the overarching consideration is whether the new grounds raised would take the committal respondent by surprise and whether the court is lacking any factual material relevant to the defendant’s defence. Finally, the defendant had the opportunity to respond to these new grounds as they were set out in the supplementary affidavit and the written submissions filed for this hearing.

On the second argument, the defendant’s affidavits of assets show that there is a prima facie case of breach because the defendant disposed of assets, spent more than the sum permitted, failed to disclose her assets, improperly listed her assets as at the wrong date, and filed her affidavit of assets belatedly.

Summary of the defendant’s arguments

The defendant does not contest the filing of the applicant’s supplementary affidavit. However, the defendant argues that while the court has a residual discretion to permit additional affidavits to be filed, there is a prevailing standard of strictness that the court would apply when it comes to allowing an applicant to file a new affidavit and rely on new grounds, considering the harm or prejudice which may be caused. In the premises, the applicant should not be allowed to rely on the new grounds. In any event, there is no prima facie case of breach for the new grounds. The defendant says that she had not disposed of her assets – for instance, she kept withdrawn sums from her bank account as cash at home, and that there is no evidence that she had continued to spend above the permitted limit. Further, she denies owning some properties / assets as alleged by the applicant.

As for the original ground underlying the applicant’s application for permission (ie, that the defendant did not file her affidavit of assets in time), the defendant contends that there is no purpose or justification in the applicant bringing the application for permission since she has already filed her affidavit of assets. Moreover, the applicant waived the alleged breach when it granted the defendant various extensions of time.

The decision

I am satisfied that permission should be granted for most of the grounds relied upon by the applicant. In reaching this decision, the following were the primary issues considered:

(a) whether the applicant should be allowed to rely on the new grounds in the supplementary affidavit; and

(b) whether the application for permission should be granted.

Whether the supplementary affidavit should be admitted as evidence

Background in relation to committal proceedings

Committal for contempt of court is a two-stage process. In the first stage, an ex parte application may be made for permission to apply for a committal order (O 23 rr 3(1) and 3(2) of the ROC 2021). In the second stage, if such permission is granted, an application for committal may then be made within 14 days (O 23 r 4(1) of the ROC 2021).

The present application concerns the first stage. Under O 23 r 3(3) of the ROC 2021, the application for permission must be supported by an affidavit. This affidavit must set out the committal applicant’s name, description and address, the committal respondent’s name, description and address, and the grounds on which the committal order is sought. In other words, the affidavit must provide evidence supporting the application for permission.

The proper process for the admission of any supplementary affidavit

The issue in the present application is whether the applicant’s supplementary affidavit (besides his first affidavit in support of the application, which has already been filed) could be admitted and relied upon. While the AR had given a direction at a case conference allowing the applicant to file his supplementary affidavit, this could not be a determination by the court admitting the supplementary affidavit as evidence. Whether a supplementary affidavit should be admitted in a leave application should be determined by the court hearing the application.

Whether the supplementary affidavit should be admitted as evidence

The preliminary issue is when an applicant’s supplementary affidavit can be admitted and considered by the court in determining an application for permission, thus allowing the court to rely on new grounds contained in such an affidavit.

The applicant relies on the case of Exterian Capital Pte Ltd v Wong Jun Jie Adrian and another [2024] SGHC 254 (“Exterian Capital”) to submit that a court could grant permission to an applicant to commence committal proceedings on grounds that are outside of its ex parte summons and application. In my assessment, Exterian Capital does not assist him as the applicant in that case did not purport to rely on new grounds outside its original application. The gravamen of the applicant’s complaint in Exterian Capital was that the first defendant failed to abide by his disclosure obligations under a Mareva injunction and a proprietary injunction. While the defendant made some disclosures subsequent to the filing of the application for permission, the court found that they were inadequate and, thus, the defendant remained in contempt (see Exterian Capital at [14] and [16]–[18]). Seen in this light, there were no new grounds to speak of since the court found the defendant to be in breach of his disclosure obligations. These were the very same breaches alleged by the applicant when it first filed its application for permission.

To the extent that the applicant can be said to have relied on new grounds, Exterian Capital would also not assist the applicant in the present case as the first defendant in Exterian Capital did not object to the applicant’s reliance on such grounds. In other words, whether the applicant could rely on new grounds was not an issue before the court.

The defendant relies on the Court of Appeal decision in Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1 (“Mok Kah Hong”) which concerned O 52 r 2 of the Rules of Court 2014 (“ROC 2014”). O 52 r 2 of the ROC 2014 was the predecessor to O 23 r 3 of the ROC 2021, governing applications for permission to apply for a committal order. In that case, the Court of Appeal emphasised that strict compliance with the provisions governing the contents of the originating summons, statement and affidavit was required, with a review of these documents to ensure such compliance: Mok Kah Hong at [62]. The defendant argues that Mok Kah Hong stands for the proposition that a committal applicant cannot rely on the grounds that are not contained in the statement under O 52 r 2(2) of the ROC 2014, and thus, those that are not in the supporting affidavit under O 23 r 3(3) of the ROC 2021. Reliance was placed on Neo Chin Heng v Good Year Contractor Pte Ltd [2024] 4 SLR 1102 (“Neo Chin Heng”), which held that pre-ROC 2021 case law concerning the requirements of the statement referred to in O 52 r 2(2) of the ROC 2014 remained applicable to the supporting affidavit required by O 23 r 3(3) of the ROC 2021 (see Neo Chin Heng at [8]).

I am of the view that Neo Chin Heng is not authority that the court cannot allow, or can only allow on a very limited basis, further supporting affidavits containing new grounds for a committal application. That issue did not arise in Neo Chin Heng – it was mainly concerned with the requirement for particularity in the supporting affidavit, as the applicant rightly points out. In any case, in the pre-ROC 2021 era, permission was granted on occasion for an applicant to rely on additional grounds not contained in the statement under O 52 r 2(2) of the ROC 2014, although this was exceptional (see Tahir v Tay Kar Oon [2016] 3 SLR 296 at [16] and Tay Kar Oon v Tahir [2017] 2 SLR 342 at [43]), and reference was made to documents other than a statement, although this was limited to documents forming part of the notice (Mok Kah Hong at [65]).

Additionally, it is important to note that the procedural requirements under the ROC 2014 were different. Under the ROC 2014, committal for contempt of court was also governed by a two-stage process (see O 52 rr 2 and 3 of the ROC 2014). However, the application for permission to apply for a committal order had to be supported by a statement (O 52 r 2(2) of the ROC 2014) setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought. Additionally, there also had to be an affidavit filed when the application was made, verifying the facts relied on (O 52 r 2(2) of the ROC 2014).

As such, the main point of deviation between O 52 r 2(2) of the ROC 2014 and O 23 r 3(3) of the ROC 2021 is that under the old rules, the complaint had to be laid out in the statement. This played a crucial role, being analogous to a criminal charge (Mok Kah Hong at [61]). The affidavit required under O 52 r 2(2) of the ROC 2014 only served to verify the truth of the contents of the statement (Mok Kah Hong at [66]).

In comparison, the ROC 2021 removed the requirement for a statement, leaving the basis for the application for permission to be covered in the supporting affidavit (O 23 r 3(3) of the ROC 2021). The contents of the affidavit should lay out the grounds, giving notice to the defendant of the allegations with sufficient particularity so that the defendant can present her case at the committal hearing proper (Neo Chin Heng at [9] and [11]). It would seem clear then that the process under the ROC 2021 is intended to be simplified and less strict as compared to the process under the ROC 2014. An affidavit in support of the application is a simpler, less formal document than the old O 52 r 2(2) statement: the procedure under O 52 r 2(2) of the ROC 2014 required the affidavit to verify or attest to the contents of the statement, while the affidavit in support of the application under O 23 r 3(3) of the ROC 2021 fulfils a different function, providing the grounds or bases for the application for permission, in the same way that affidavits-in-support operate in relation to other applications.

However, where a reasonable explanation is given, I do not think the courts would be overly strict as regards admitting the supplementary affidavit(s). If, for instance, the supplementation is needed because new information was obtained, that would be reason enough for the court to grant permission. The defendant highlights that there is language in the cases on O 52 r 2 of the ROC 2014 which pointed towards a very punctilious requirement (see, eg, the Malaysian Federal Court’s decision in Tan Sri Dato’ (Dr) Rozal Ismail v Lim Pang Cheong @ George Lim [2012] 3 MLJ 458 at [37]). However, I do not understand O 23 r 3 of the ROC 2021 as continuing that requirement. Furthermore, much of the language in the ROC 2014 cases equated the statement under O 52 r 2(2) of the ROC 2014 to criminal charges, but criminal charges have not, at least since the 1990s, been so frozen on conception that amendments were ruled out: criminal charges are amended, not perhaps with abandon, but with sufficient liberality to allow the substance of the matter to be prosecuted properly in court. What matters is whether the accused in a criminal case is prejudiced by not being aware of what is being alleged. So here too, in the context of the commencement of committal proceedings, the focus should be on whether the defendant will be prejudiced in not knowing what is being asserted as the act of contempt, and not being able to properly defend against the alleged grounds of contempt. The processes of the court should also be respected and not invoked on insufficient bases: in both criminal and civil matters, abuse and ill-preparedness will be penalised in various ways.

Such an approach did, I think, underlie the decision in cases such as Aero-Gate Pte Ltd v Engen Marine Engineering Pte Ltd [2018] SGHC 267 (“Aero-Gate”), which the applicant relies upon, in which apparently findings were made although they were not included in the statement under O 52 of the ROC 2014. In any event, I do not see that the court would be constrained from adopting the approach outlined here under O 23 r 3 of the ROC 2021. This is especially so given that the state of the law has changed from one requiring a statement to one requiring simply a supporting affidavit, which signals a broader approach.

I am also fortified in my conclusion by the differences in the wording of the provisions dealing with the grounds which a committal applicant may rely upon. In O 52 r 5(3) of the ROC 2014, it was stated that no grounds were to be relied upon except those set out in the statement, except with the permission of the court hearing the committal application. However, in the equivalent provision of O 23 r 7(3) of the ROC 2021, it is simply stated that the committal applicant must rely on only the grounds set out in the supporting affidavit. This, to my mind, signals a looser approach toward the grounds on which an applicant is permitted to rely and is in line with the broader approach I view the ROC 2021 as encompassing.

Here, sufficient reasons have been shown to allow the supplementary affidavit to be admitted and considered by the court. The facts asserted were not known previously – most of the breaches eventually discovered pertain to the contents of the defendant’s affidavits of assets. These were that the defendant had withdrawn monies just two days after ORC 2309 was passed, exceeded the limit on the amount she was allowed to spend, and failed to disclose all the assets she had in her first and second affidavits of assets. Without the affidavits of assets, the only breach that the applicant could have known of at the time that he applied for permission to commence committal proceedings, was that the defendant had not filed her affidavit of assets by the deadline stipulated in ORC 2309.

Allowing the supplementary affidavit to be admitted so that the applicant may rely on new grounds therein would also be in line with the ideals in O 3 r 1(2) the ROC 2021, as it would ensure fair access to justice as well as expeditious proceedings for both sides. The defendant is not prejudiced as she was given the opportunity, and did in fact, respond to the new grounds in both her own supplementary affidavit and written submissions. Conversely, the applicant will be prejudiced if his supplementary affidavit is not admitted. He will have to take out a new committal application and waste much precious time and resources (on his, the court’s and the defendant’s ends), when the same result could be achieved by admitting his supplementary affidavit and allowing the defendant to respond.

Furthermore, there are no procedural breaches by the applicant. Accordingly, I admit the supplementary affidavit and allow the applicant to rely on the grounds contained in it.

The contents of the supporting affidavit

Affidavits of evidence of course narrate the facts as known to the deponent. Affidavits supporting an application are not just about narration alone, however, and where they are to provide the factual grounds or bases for an application, they should ensure that they identify and encapsulate these grounds in a readily identifiable way. It would thus generally be helpful in affidavits under O 23 r 3(3) of the ROC 2021 to capture in a summary somewhere the grounds or bases for the committal application, ideally enumerating these so that the court and opposing parties are able to see clearly what the assertions are. This is not to reintroduce the formality or structure of the statement under O 52 r 2(2) of the ROC 2014, but to encourage applicants to be clear in what they should cover in their supporting affidavit.

Whether the application for permission should be granted

The court would look to the cases decided under O 52 r 2 of the ROC 2014, which remain useful guidance (Neo Chin Heng at [8]) – these include Mok Kah Hong, BMP and Ang Tin Yong v Ang Boon Chye and another [2012] 1 SLR 447 (“Ang Tin Yong”).

The principles that govern such a decision can be summarised as follows. The court does not conduct a trial of the issues, and substantive matters should be left to the committal hearing proper (Mok Kah Hong at [58]). What must be made out is a prima facie case of contempt. What this means is that there is some evidence presented by the applicant showing contempt of court, with nothing in that evidence that would point against it being accepted, such as inherent implausibility or inconsistency (see, eg, Goh Yihan J’s examination of the definition of “prima facie” in Mak-Levrion Kah Kay Natasha (alias Mai Jiaqi Natasha) v R Shiamala [2024] 4 SLR 616 at [16], though that was in the context of an application to obtain a summary judgment). Evidential arguments raised by the defendant in a contested ex parte hearing should generally be postponed to the committal hearing proper (see Neo Chin Heng at [10] and BMP at [19]). The defendant may, however, raise matters which go the existence of a purpose in pursuing the committal application (see BMP and Ang Tin Yong). This would include compliance with the order of court in the meantime.

Grounds of prima facie breach

The five grounds of breach of ORC 2309 that the applicant alleges are that the defendant has: (a) disposed of assets (the “first ground”); (b) spent more than $12,000 (the maximum amount permitted under ORC 2309) every month (the “second ground”); (c) failed to disclose all the assets she had as at 9 April 2024 (the “third ground”); (d) only listed her assets as at the time of filing the first affidavit of assets (the “fourth ground”); and (e) filed her affidavit of assets belatedly (the “fifth ground”).

Applying the above principles to the aforementioned grounds, I am of the view that, at this stage, a prima facie case is made out for all of them, save for the fifth ground.

(1) The first ground

The first ground relates to the defendant’s withdrawal of a sum of $20,580 from her bank account on 11 April 2025. The applicant submits that the withdrawal violates the prohibition in paragraph 1(a) of Annex A to ORC 2309, which states:

The applicant submits that the defendant has since taken inconsistent positions on the whereabouts of the sum. While the defendant concurs that this sum was withdrawn, she submits that it was held in cash.

In my view, whether or not this sum is held in cash or otherwise is irrelevant to the breach of the prohibition in the injunction. The very withdrawal of such sum would clearly fly in the face of paragraph 1(a)(ii) of Annex A to ORC 2309, which prohibits a disposal of assets in any way. A prima facie breach is thus made out on the first ground.

(2) The second ground

The second ground concerns whether there was expenditure of more than the permitted level of $12,000 a month under paragraph 1(a)(ii) read with paragraph 3 of Annex A to ORC 2309, which in turn states that:

The applicant has adduced evidence of the amounts spent, referring to several statements made by the defendant. First, the defendant stated that she had $164,000 cash as at 9 April 2024, but only had $80,000 in cash at May 2024. Second, the defendant stated that she had disposed of almost all the remaining proceeds of the sale of her properties, ie, $2,401,521.16 after deducting the expenses listed in the defendant’s first affidavit of assets. Third, the defendant also stated that her children’s and the household expenses amounted to $10,000 to $13,000 every month.

The defendant argues that she made loans to one Ms Lee King Anne with the proceeds from the sale of the properties and kept the rest of the sum as cash at home, expending them prior to ORC 2309. Additionally, the defendant has limited her monthly household expenses to $10,000, well below the limit in ORC 2309. However, the applicant points out that the defendant excludes several items from her “household expenses”, namely, the monthly payments for her car loan and monthly mortgage payments for the property she is staying in.

I find that the applicant’s evidence does, on its face, show expenditure of more than $12,000, regardless of the justifications given by the defendant as to how moneys were spent or accounted for. That spending of the sum is, in itself, a prima facie case of breach.

(3) The third and fourth grounds

The third ground relates to the failure to disclose all her assets as at 9 April 2024, which was the date of ORC 2309. The applicant argues that the defendant failed to declare (a) her shares in two companies which she had admitted to owning, (b) all her sources of funds, (c) a food stall reflected as her registered address, (d) a property in the Jing’an district of Shanghai, China, and (e) her bank account in China, to which rental proceeds from the Jing’an property were paid. This is a breach of paragraph 2 of Annex A to ORC 2309 which states:

The fourth ground is similar in that it relates to the defendant’s act of improperly listing her assets as at 29 June 2024 (in her first affidavit of assets), which was after the date of ORC 2309, and her failure to disclose assets that were only revealed later in her second affidavit of assets and supplementary affidavit. These likewise breach paragraph 2 of Annex A to ORC 2309.

The defendant denies owning the food stall and any bank accounts in China. She says that the food stall is not her asset as it is being leased by a company. The lease had also ended in October 2024. She also argues that it has not been proven that any bank accounts in China existed, let alone that they were used to collect rental proceeds. As the Jing’an property was disclosed in her second affidavit of assets, there is no purpose or justification in maintaining the application for permission.

In my view, a prima facie case is made out on the third and fourth grounds. At the outset, I must stress that any testing of the evidence should take place later in the proceedings, with this stage of the proceedings being concerned with whether a prima facie case of breach has been established (see above at [35]). I accept that, at the very least, the defendant has not disclosed her ownership of the shares and the sources of her funds, even if the other planks of the applicant’s claim fall short.

(4) The fifth ground

The fifth ground of breach also concerns paragraph 2 of Annex A to ORC 2309. The obligation to file the affidavit of assets appears to have been satisfied, albeit belatedly. I do not see a substantive reason for this to proceed to a committal hearing. There may have been a delay, but the breach was cured within slightly under two months with the defendant’s filing of her first affidavit of assets (see above at [5]) and any consequences would be relatively minimal, especially in comparison to the breach on other grounds. There is no practical reason to allow this ground to proceed further.

For completeness, I add that the applicant’s supporting affidavits contain sufficient particulars for the defendant to meet the charges against her. The defendant only disputes the applicant’s fulfilment of this requirement to the extent that he relies on new grounds in his supplementary affidavit. I have, however, already dealt with that above (at [17]–[33]). In so far as the particulars in both of the applicant’s affidavits are concerned, I am satisfied that they contain sufficient information for the defendant to understand the facts the applicant will be relying on in his committal application. This must be so, since the defendant wanted to, and did, file a reply affidavit to clarify “factually inaccurate allegations” in the applicant’s supplementary affidavit.

Conclusion

For these reasons, permission for the applicant to make an application for a committal order on the basis of the first to fourth grounds is granted.