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Grounds publishedDecided 8 Dec 2009
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Court of Appeal

Poh Soon Kiat v Desert Palace Inc (trading as Caesars Palace)

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[2009] SGCA 60Case no. CA 113/2008, SUM 5512/2008, 1309/2009, 1312/2009

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  1. Chan Sek Keong CJ (delivering the judgment of the court):

  2. Introduction

  3. [1] This is an appeal against the decision of the High Court judge (“the Judge”) in Registrar’s Appeals Nos 77 and 78 of 2008 (see Desert Palace Inc v Poh Soon Kiat [2009] 1 SLR 71 (“the GD”)). The Judge had reversed the decision of the assistant registrar (“the AR”), who had dismissed an application for summary judgment by the respondent in this appeal, Desert Palace Inc (“the Respondent”). The Respondent is the plaintiff in the originating suit, ie, Suit No 670 of 2007 (“the Singapore Action”), which is a common law action to enforce in Singapore what we shall hereafter refer to as “the 2001 California Judgment”, viz, the judgment dated 9 November 2001 of the Superior Court of the State of California for the County of Santa Clara (“the Santa Clara Superior Court”).

  4. [2] The Judge held that the 2001 California Judgment was enforceable in Singapore by way of a common law action (viz, the Singapore Action), and that such an action was not barred by either s 5 of the Civil Law Act (Cap 43, 1999 Rev Ed) (“the CLA”) or s 6(1) of the Limitation Act (Cap 163, 1996 Rev Ed) (“the LA”).

  5. Background facts

  6. [3] The Respondent operates a casino in Las Vegas, Nevada, known as Caesars Palace. The appellant, Poh Soon Kiat (“the Appellant”), was a patron of the casino on various occasions between 1992 and 1998. Sometime during that period, he obtained credit from the Respondent amounting to US$2m in order to gamble. In exchange for the chips to gamble, the Appellant signed ten “markers” (also known as “cheques”) on the understanding that, if he paid up whatever losses he incurred, the markers would be returned to him for destruction. If, however, he failed to redeem the markers, they would be retained as proof of the debt which he owed to the Respondent. The Appellant gambled and lost the US$2m worth of gambling chips, but failed to pay up.

  7. [4] In 1999, the Respondent commenced Case No A 390420 in the District Court for Clark County, Nevada, to recover the US$2m owed by the Appellant. On 29 March 1999, the Respondent obtained a default judgment against the Appellant for the sum of US$2m (“the 1999 Nevada Judgment”). On 2 June 1999, in Case No CV 782287 in the Santa Clara Superior Court, the Respondent obtained another default judgment (“the 1999 California Judgment”). This default judgment was based on the 1999 Nevada Judgment, and was for a total sum of US$2,453,126.33 plus post-judgment interest at the statutory rate of 10% per annum.

  8. [5] Subsequently, the Respondent discovered that the Appellant had, on 11 February 1999, transferred his one-third share in a property in California (“the Property”) to Surepath Development Limited (“Surepath”), a British Virgin Island company. On 14 April 2000, the Respondent and Sheraton Desert Inn Corporation (“Sheraton”), a casino operator that had also obtained a judgment against the Appellant in 1999 (“the Sheraton Judgment”), commenced Case No CV 789130 in the Santa Clara Superior Court to set aside the Appellant’s transfer of his one-third share in the Property (hereafter referred to as the Appellant’s “interest in the Property” for short) on the ground that it was a fraudulent conveyance under the law of California. On 9 November 2001, judgment in default – ie, the 2001 California Judgment – was granted to the Respondent and Sheraton. Specifically, the 2001 California Judgment stated that:

  9. (a) the transfer of the Appellant’s interest in the Property to Surepath was to be set aside;

  10. (b) the Appellant’s interest in the Property was to be sold and the proceeds applied in part or full satisfaction pro rata of the 1999 California Judgment and the Sheraton Judgment; and

  11. (c) if the sale proceeds were insufficient to satisfy both the 1999 California Judgment and the Sheraton Judgment in full, the Appellant was to remain liable for the shortfall.

  12. A total of US$130,119.35 was recovered from the sale of the Appellant’s interest in the Property and paid pro rata to the Respondent and Sheraton, leaving a balance of over US$4m (inclusive of accrued interest) due and owing to the Respondent.

  13. [6] On 19 October 2007, the Respondent commenced the Singapore Action against the Appellant based on the 2001 California Judgment to recover the sum of US$4,378,927.63. On 8 January 2008, the Respondent applied via Summons No 72 of 2008 (“SUM 72/2008”) for summary judgment for the amount claimed.

  14. [7] In response, on 15 January 2008, the Appellant filed an application (viz, Summons No 189 of 2008 (“SUM 189/2008”)) for the Singapore Action to be either struck out under O 18 r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) or dismissed pursuant to O 14 r 12 should certain questions of law be determined in his favour. The questions raised for the decision of the court in SUM 189/2008 were as follows:

  15. (a) whether the Respondent’s claim arose out of an agreement by way of gaming or wagering, which agreement was null and void under s 5(1) of the CLA;

  16. (b) whether, in the alternative, the Respondent’s claim was for the recovery of a gambling debt, which claim was unenforceable by reason of s 5(2) of the CLA; and

  17. (c) whether the Respondent’s claim was barred by the limitation period set out in s 6(1) of the LA as more than six years had elapsed since the Respondent’s cause of action accrued.

  18. The decision of the AR

  19. [8] The AR dismissed the Respondent’s application for summary judgment (vis-à-vis SUM 72/2008) and struck out the Singapore Action (vis-à-vis SUM 189/2008). He held that the Singapore Action, being a common law action to enforce a foreign judgment, was essentially an action based on “an implied contract by the judgment debtor to pay the judgment debt” (citing the High Court’s decision in Westacre Investments Inc v Yugoimport-SDPR [2007] 1 SLR 501 (“Westacre Investments”) (as an aside, we should mention that this particular ruling of the High Court was affirmed by this court in Westacre Investments Inc v The State-Owned Company Yugoimport SDPR [2009] 2 SLR 166, although the High Court’s decision was ultimately reversed on other grounds)). In the AR’s view, a common law action on a foreign judgment would be time-barred under s 6(1)(a) of the LA after the expiry of six years from the date of accrual of the cause of action, that date being “the date of the judgment in question as that [was] the date when the judgment debt came into being”. The AR held that Singapore law, as the lex fori, was applicable to determine the nature of the Respondent’s claim and when the Respondent’s cause of action accrued for the purposes of the LA. Proceeding on that basis, he concluded:

  20. [9] In view of his decision on limitation, the AR declined to decide the other two questions that had been raised by the Appellant in SUM 189/2008, viz, whether the Singapore Action was based on an agreement by way of gaming or wagering, which agreement was null and void under s 5(1) of the CLA, and whether the Singapore Action was an action to recover a gambling debt, which action could not be brought because of s 5(2) of the CLA (see [7] above).

  21. The decision of the Judge

  22. [10] The Respondent appealed via Registrar’s Appeal No 77 of 2008 and Registrar’s Appeal No 78 of 2008 against the AR’s decision in, respectively, SUM 189/2008 and SUM 72/2008. The Judge allowed both appeals and set aside the AR’s decision. He granted summary judgment to the Respondent on the ground that the 2001 California Judgment was “a fresh judgment which imposed an obligation on the [Appellant] to pay the sums specified in that … judgment” (see the GD at [104]). The 2001 California Judgment was, the Judge stated, given by a competent court; the judgment was final and conclusive against the Appellant, and the latter had no defence to the Singapore Action. The Judge also held that an action to enforce a foreign judgment was subject to a limitation period of six years under s 6(1)(a) of the LA (id at [84]), although, in his view, the applicable limitation period should be 12 years under s 6(3) of the LA (id at [82]). Finally, he held that s 5(2) of the CLA did not apply to any action in Singapore on the 2001 California Judgment since this court had decided in Liao Eng Kiat v Burswood Nominees Ltd [2004] 4 SLR 690 (“Burswood Nominees”) that a Commonwealth judgment which was “[i]n substance … [a judgment for] a gambling debt owed to [a] casino” (see the GD at [43]) could be registered under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (“the RECJA”) notwithstanding s 5(2) of the CLA (see further [116]–[117] below).

  23. The issues on appeal

  24. [11] The Appellant has appealed against the Judge’s decision to grant the Respondent summary judgment in the Singapore Action. In his written submissions to this court, the Appellant’s counsel invited this court to make the following findings:

  25. (a) the limitation period applicable to the Singapore Action was six years under s 6(1)(a) of the LA and not 12 years under s 6(3) thereof;

  26. (b) the Singapore Action was, effectively, an action to enforce either the 1999 California Judgment or the 1999 Nevada Judgment (both of which were given more than six years ago), and was therefore time-barred;

  27. (c) the 2001 California Judgment was not a foreign judgment for a fixed sum of money which could be sued upon in a common law action, but a judgment to set aside the fraudulent transfer by the Appellant of his interest in the Property; and

  28. (d) the Respondent’s claim was in reality for a gambling debt, which claim was prohibited under s 5(2) of the CLA.

  29. [12] For completeness, we should mention that, prior to the hearing of the appeal proper, three applications were made to this court, namely:

  30. (a) Summons No 5512 of 2008 (“SUM 5512/2008”), which was the Respondent’s application for certain paragraphs of the Appellant’s written case for this appeal to be struck out;

  31. (b) Summons No 1309 of 2009 (“SUM 1309/2009”), which was the Appellant’s application for leave to adduce additional evidence at the hearing of the appeal; and

  32. (c) Summons No 1312 of 2009 (“SUM 1312/2009”), which was an application by (likewise) the Appellant for leave to amend his defence.

  33. We heard SUM 5512/2008 on 4 February 2009. At that hearing, the Respondent withdrew this summons. As for SUM 1309/2009 and SUM 1312/2009, they were heard on 28 April 2009 together with the appeal proper. We treated both applications as withdrawn for reasons which we shall elaborate on below (at [15] and [21] vis-à-vis, respectively, SUM 1312/2009 and SUM 1309/2009).

  34. Whether the 2001 California Judgment was a foreign judgment which could be sued upon in Singapore

  35. The law on the enforceability of foreign judgments in Singapore

  36. [13] We propose to consider, first, the third finding which the Appellant’s counsel invited this court to make (see sub-para (c) of [11] above). This centres on the question of whether the 2001 California Judgment was a foreign judgment that could be sued upon under Singapore law. The law on the enforceability of foreign judgments in Singapore is not in doubt, and is summarised in, inter alia, Dicey, Morris and Collins on The Conflict of Laws (Sir Lawrence Collins gen ed) (Sweet & Maxwell, 14th Ed, 2006) (“Dicey, Morris and Collins”) at vol 1, para 14-020 as follows:

  37. [14] An in personam final and conclusive foreign judgment rendered by a court of competent jurisdiction, which is also a judgment for a definite sum of money (hereafter called a “foreign money judgment”), is enforceable in Singapore unless:

  38. (a) it was procured by fraud; or

  39. (b) its enforcement would be contrary to public policy; or

  40. (c) the proceedings in which it was obtained were contrary to natural justice.

  41. Thus, in Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 2 SLR 81, this court stated (at [12]):

  42. [15] In this connection, the Appellant applied to this court via SUM 1312/2009 for leave to amend his defence to plead that the 2001 California Judgment was not a foreign money judgment (see [12] above). We declined to hear this application and treated it as withdrawn. In our view, it was an unnecessary application as, in summary judgment proceedings, “[a] defendant may raise defences in his affidavit even if they are not referred to in the pleaded defence” (see Singapore Civil Procedure 2007 (G P Selvam chief ed) (Sweet & Maxwell Asia, 2007) at para 14/2/12) and is “bound by the four corners of his pleadings [only] at the trial of the action but … not … [in] the O. 14 [ie, summary judgment] proceedings” (ibid).

  43. The Judge’s ruling

  44. [16] The Judge held that the 2001 California Judgment was a fresh foreign money judgment and could therefore be sued upon for the amount specified therein. In this regard, he accepted the unchallenged expert evidence of the Respondent’s witness, James Arlen Stearman (“Stearman”), a California attorney and former judge pro tempore for the Orange County Superior Court, California. At [104] of the GD, the Judge said:

  45. The submissions of the parties on appeal

  46. [17] The Appellant submitted that the lex fori, ie, Singapore law, should be applied to determine the real substance of the 2001 California Judgment, having regard to, inter alia, Star City Pty Ltd v Tan Hong Woon [2002] 2 SLR 22 (“Star City (CA)”), Burswood Nominees ([10] supra) and Murakami Takako v Wiryadi Louise Maria [2007] 4 SLR 565 (“Murakami Takako”). Based on such an approach, the Respondent would be seeking to enforce a debt created by either the 1999 California Judgment or the 1999 Nevada Judgment (in respect of which a claim would be barred by limitation regardless of which of the two judgments was relied on), and not the 2001 California Judgment. The Appellant further argued that, even if Californian law were applicable, the Respondent’s expert evidence (ie, Stearman’s evidence) would not assist the court, and that an examination of the 2001 California Judgment would show that it was a judgment to set aside the sale of the Appellant’s interest in the Property and not a fresh foreign money judgment based on either the 1999 California Judgment or the 1999 Nevada Judgment.

  47. [18] The Respondent’s case was basically a reiteration of what was found by the Judge, with the additional argument that the 2001 California Judgment was a foreign money judgment as the Santa Clara Superior Court had ordered the payment of a definite sum of money which could be ascertained by a simple arithmetical calculation (citing Dicey, Morris and Collins ([13] supra) at vol 1, para 14-020 and Beatty v Beatty [1924] 1 KB 807).

  48. The Respondent’s expert evidence

  49. [19] In our view, the issue of whether the 2001 California Judgment was a fresh foreign money judgment should be determined according to Californian law (see Carl Zeiss Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853 at 927, Colt Industries Inc v Sarlie (No 2) [1966] 1 WLR 1287 at 1293 and Beatty v Beatty at 816). Accordingly, we now examine the expert evidence on Californian law.

  50. [20] In his affidavit filed on 20 May 2008, Stearman stated (at paras 13–22):

  51. (a) Under Californian law, the 2001 California Judgment had the effect of creating “a fresh judgment which impose[d] an obligation on the [Appellant] … to pay the sums specified in that [j]udgment” [emphasis in original omitted] – this obligation being “independent and irrespective of any proceedings in the State of Nevada and independent of any judgments obtained [previously]” [emphasis in original omitted].

  52. (b) The right to maintain a separate action on a Californian judgment had long been recognised in California according to Suzette Thomas v Clyde Thomas 14 Cal 2d 355 (1939) at 358, a decision of the Supreme Court of California. With regard to the 2001 California Judgment, which, in Stearman’s view, was “a judgment … rendered in an action on a prior judgment” (the prior judgment being the 1999 California Judgment), according to Arnold J Provisor v Levada Nelson 234 Cal App 2d Supp 876 (1965) at 880, the Californian courts would regard the 2001 California Judgment as, in effect, an extension of the 1999 California Judgment.

  53. (c) The fact that the 1999 Nevada Judgment had “expired” would not affect the enforceability of the 2001 California Judgment. The case of W L Weir v Bill Corbett 229 Cal App 2d 290 (1964) indicated that “a California judgment based on a sister-state judgment ha[d] a continued and separate life of its own that [could] still be enforced even if the sister-state judgment ha[d] expired” [emphasis in original omitted].

  54. (d) For enforcement purposes, the 2001 California Judgment was valid for ten years pursuant to California’s limitation legislation, and an action to enforce that judgment could be commenced in California at any time within ten years of the entry of the judgment. The case of United States Capital Corporation v Albert Nickelberry 120 Cal App 3d 864 (1981) indicated that “a judgment creditor [was] entitled as a matter of right to a judgment on the original judgment provided the second action [was] commenced within the [statutory limitation period] (that is, ten years …)”. Furthermore, according to that same case, the effect of bringing an action on an earlier judgment before the limitation period had expired was to extend the earlier judgment and also any lien that might be incidental to it.

  55. (e) The 2001 California Judgment was therefore:

  56. [21] The Appellant did not adduce any expert evidence to contradict the evidence of Stearman. But, prior to the hearing of this appeal, the Appellant applied via SUM 1309/2009 to admit the expert evidence of one James H Broderick Jr (“Broderick”), a lawyer from California, on the nature and effect of the 2001 California Judgment under the law of California. Like the earlier-mentioned application for leave to amend the defence (ie, SUM 1312/2009), we decided that SUM 1309/2009 was also an unnecessary application and treated it as withdrawn. In our view, it was not apparent from the Appellant’s submissions that the evidence of Broderick would add anything to what this court could have ascertained from its own examination of: (a) the court papers filed in the Santa Clara Superior Court for Case No CV 789130 (“the CV 789130 court papers”), which were exhibited in Stearman’s affidavit filed on 20 May 2008; and (b) the case law that formed the basis of the propositions made by Stearman (see also s 40 of the Evidence Act (Cap 97, 1997 Rev Ed) and the decision of this court in Pacific Recreation Pte Ltd v S Y Technology Inc [2008] 2 SLR 491). In this connection, we should restate the rule of prudence which the court should apply in deciding whether or not to accept expert evidence on any matter before it, including matters of foreign law. To this, we now turn our attention.

  57. The rule of prudence with regard to expert evidence

  58. [22] In Saeng-Un Udom v PP [2001] 3 SLR 1, this court observed that a judge must not blindly accept expert evidence on any matter merely because that evidence was not contradicted (at [26]–[27]). In Sakthivel Punithavathi v PP [2007] 2 SLR 983 (“Sakthivel Punithavathi”), V K Rajah JA reiterated this rule (at [76]) as follows:

  59. [23] This rule of prudence is especially relevant where the expert is appointed by the party seeking to rely on his evidence and not by the court, as it is merely common sense that no party would call an expert to testify against its own case. As regards the particular substance of the expert evidence in question (such as evidence on foreign law), the court should carefully consider the factual or other premises on which the expert based his opinion. The court should examine the correctness of the expert’s premises and reasoning process, as well as whether the expert is really purporting to address the issue or point on which his opinion has been sought. As said in The H156 [1999] 3 SLR 756 by G P Selvam J (at [27]):

  60. [24] In the present case, the Judge accepted Stearman’s opinion without any reservation because, in his view, it was “not … ‘obviously lacking in defensibility’” (see the GD at [110]). Stearman’s opinion (as the Judge saw it) was that the 2001 California Judgment was “a fresh judgment which imposed an obligation on the [Appellant] to pay the sums specified in that … [j]udgment independent and irrespective of … any judgments obtained [previously]” (id at [104]), and that the judgment “was enforceable in Singapore by way of a fresh action upon that … [j]udgment by the [Respondent]” (ibid). It is trite law that an appellate court will ordinarily respect a trial judge’s findings on expert evidence, especially where these findings are based on an assessment of oral testimony. However, where the trial judge’s findings are based on inferences drawn from expert evidence, the appellate court is in as good a position as the trial judge to make a determination itself. In such circumstances, the appellate court is entitled to undertake its own evaluation to determine whether the trial judge’s inferential findings are justified by the facts. In an appropriate case, the appellate court is also entitled to examine the underlying facts to see whether there is any evidence to support the expert testimony in question. As Rajah JA stated in Sakthivel Punithavathi (at [74]):

  61. Our decision on the nature of the 2001 California Judgment

  62. [25] At the outset, we should observe that the Judge appeared to have let his guard down in accepting Stearman’s evidence merely because he did not find it lacking in defensibility (see the GD at [110]). With respect, an examination of the CV 789130 court papers and the orders made by the Santa Clara Superior Court shows that Stearman’s opinion was wholly lacking in defensibility. It could be that the Judge was suitably impressed by the candour displayed by Stearman in disclosing in his affidavit filed on 20 May 2008 his close professional relationship with the Respondent. At paras 11–12 of that affidavit, Stearman admitted that he had acted as the attorney of the Respondent in obtaining the 1999 California Judgment and the 2001 California Judgment, and had also acted for the Respondent in 280 other unrelated legal actions but had never acted against it. In this connection, we should draw attention to the statement of Selvam J in Gunapathy Muniandy v Khoo James [2001] SGHC 165 that, unless unavoidable, “[an] expert should avoid being the witness of a party with whom he has a special relationship” (at [12.16]). It could be that the candour displayed by Stearman in disclosing in the above-mentioned affidavit his close professional ties with the Respondent led the Judge to believe that his (Stearman’s) carefully crafted opinion in that affidavit was equally objective in its analysis of the nature of the 2001 California Judgment.

  63. [26] There is no reason for any court to doubt Stearman’s opinion that the 2001 California Judgment was an independent judgment in itself (see sub-para (a) of [20] above). All judgments which are final and conclusive, as the 2001 California Judgment obviously was, are independent in themselves. But, was the 2001 California Judgment a foreign money judgment as defined at [14] above? In this regard, if the Judge had perused the CV 789130 court papers and the orders made by the Santa Clara Superior Court in the 2001 California Judgment (all of which documents were exhibited by Stearman in his affidavit filed on 20 May 2008), he would have seen that those documents did not actually support Stearman’s opinion.

  64. [27] In our view, the 2001 California Judgment was not a foreign money judgment. It was, instead, clearly a judgment setting aside the fraudulent transfer by the Appellant of his interest in the Property (with certain consequential orders made as well). This is apparent from the affidavit filed by Stearman on 25 January 2008, in which he described the action that led to the 2001 California Judgment (ie, Case No CV 789130) as a “fraudulent conveyance lawsuit” (at para 7.3). Similarly, in an affidavit filed on 8 January 2008 in support of the Respondent’s summary judgment application (ie, SUM 72/2008), Vernon Albert Nelson Jr, the associate general counsel of the Respondent’s parent company, stated (at para 9):

  65. [28] That the 2001 California Judgment was not a foreign money judgment is also confirmed by the complaint which Stearman signed and filed in the Santa Clara Superior Court for Case No CV 789130 (“the Complaint”), which was exhibited in his affidavit filed on 20 May 2008. The Complaint was as follows:

  66. [29] As would be expected from the specific reliefs sought in the Complaint, the orders granted by the Santa Clara Superior Court were framed in terms of those reliefs. The orders read as follows:

  67. [30] It can be seen from the terms of the Santa Clara Superior Court’s orders that the Appellant was not ordered to pay a definite sum of money to the Respondent and Sheraton. There was no need for the court to make such an order as both the Respondent and Sheraton already had valid and enforceable judgments against the Appellant.

  68. [31] The only basis on which the Respondent could have argued that the Santa Clara Superior Court had ordered the Appellant to pay the balance of the judgment debt due under the 1999 California Judgment would be the following phrase in the 2001 California Judgment, viz:

  69. The Respondent submitted that the italicised words meant that the Appellant was ordered to pay the balance owed to it under the 1999 California Judgment, which amount could be easily calculated; therefore, the 2001 California Judgment was a foreign money judgment.

  70. [32] In our view, this argument puts the cart before the horse as it assumes that the italicised words in the quotation at [31] above created, or were intended to create, a fresh obligation on the Appellant to pay the balance of the judgment debt due under the 1999 California Judgment. In our view, there is nothing in the language of the 2001 California Judgment to support such a strained interpretation. In the context of Case No CV 789130, which was an action to set aside the fraudulent transfer by the Appellant of his interest in the Property, this would be an inappropriate interpretation. Indeed, the words “shall remain liable” are clearly mere surplusage as, even without these words, the Appellant would have remained liable to pay any outstanding sum due under (inter alia) the 1999 California Judgment if the proceeds from the sale of his interest in the Property were insufficient to discharge the entire judgment debt (which turned out to be the case). In short, there was no conceivable reason for the Santa Clara Superior Court to grant a relief which the Respondent had not sought and which was, in any event, not necessary.

  71. [33] For the above reasons, we are of the view that the Judge was wrong in holding that the 2001 California Judgment was a foreign money judgment enforceable by a common law action. The Judge merely accepted Stearman’s evidence without examining the underlying facts. We might also add that, given the nature of the 2001 California Judgment, once it was fully executed, it would have exhausted itself and there would be nothing left to execute or enforce in respect of that judgment.

  72. [34] For these reasons, this appeal must succeed. The Singapore Action should have been struck out or dismissed on the ground that the 2001 California Judgment was not a foreign money judgment and was therefore not enforceable under Singapore law.

  73. Other issues raised in this appeal

  74. [35] In view of our decision at [34] above, it is not strictly necessary for us to address the other issues canvassed in this appeal (as outlined at [11] above), viz:

  75. (a) the limitation period applicable to a common law action on a foreign judgment (“the Limitation Issue”) and, specifically, whether (applying the relevant limitation period) the Singapore Action was time-barred; and

  76. (b) the applicability of s 5(2) of the CLA to a common law action on a foreign judgment whose underlying cause of action is a gambling debt (“the Section 5(2) CLA Issue”).

  77. However, having regard to the invitation by the Judge to this court to revisit the Limitation Issue and (apropos the Section 5(2) CLA Issue) his decision that s 5(2) of the CLA was not applicable to a common law action on a foreign judgment which was founded on a gambling debt, we shall examine these two issues in order to clarify what we consider to be the applicable law. We should also point out that our analysis will be confined to foreign money judgments as defined at [14] above since a foreign judgment must be in the form of a foreign money judgment before it can be sued on in Singapore (see [13]–[14] above). The expression “foreign judgment” (or “foreign judgments”) in the rest of this judgment should therefore be taken to mean, specifically, a foreign money judgment (or foreign money judgments, as the case may be).

  78. The Limitation Issue

  79. Sections 6(1)(a) and 6(3) of the LA

  80. [36] Turning, first, to the Limitation Issue (ie, the limitation period applicable to a common law action on a foreign judgment), as mentioned earlier (see [10] above as well as the GD at [82]), the Judge was of the view that the limitation period for such an action should be 12 years under s 6(3) of the LA rather than (as decided by this court in Murakami Takako ([17] supra)) six years under s 6(1)(a) of the LA. These two provisions state as follows:

  81. The reasoning of the Judge

  82. [37] The Judge gave the following reasons for his view that an action on a foreign judgment should fall within the purview of s 6(3) of the LA and not s 6(1)(a) thereof:

  83. (a) Paragraph 184 of the Law Reform Committee, Singapore Academy of Law, Report of the Law Reform Committee on the Review of the Limitation Act (Cap 163) (February 2007) (Chairman: Charles Lim Aeng Cheng) (“the Report”) appeared to indicate that (see the GD at [70]):

  84. (b) As the word “judgment” in the LA was “not defined … to be restricted only to domestic judgments” (id at [71]), it was possible to interpret that word as a reference to any judgment, whether foreign or domestic. According to the Judge (ibid):

  85. (c) An examination of s 6 of the LA would show that (see the GD at [72]):

  86. Also, the structure of the LA “appear[ed] not to make any distinction or division between foreign causes of action (… which the Singapore court [had] jurisdiction to try) and domestic causes of action” (id at [73]). These considerations would indicate that “there [was] … no good reason to construe the word ‘judgment’ in s 6(3) restrictively and limit it only to domestic judgments” (ibid). Such an approach would be “inconsistent when seen from the perspective of the overall structure of the LA” (ibid).

  87. (d) A domestic judgment could give rise to an independent cause of action “in the nature of an implied contract” (see the GD at [74]), but such an action would be governed by the limitation period set out in s 6(3) of the LA and not the limitation period set out in s 6(1)(a) (ibid). Similarly, an action upon a foreign judgment would give rise to “an independent cause of action, in the ‘nature of a claim for a debt’, which arises at the time the original judgment is made” [emphasis in bold italics in original] (ibid). Accordingly, it would be (ibid):

  88. (e) In the Judge’s view (ibid):

  89. In truth, a foreign judgment debt was (ibid):

  90. (f) Canadian case law would support the proposition that s 6(3) of the LA should apply to common law actions on foreign judgments. In this regard, the Judge noted that the Supreme Court of Canada had in Morguard Investments Ltd v De Savoye (1990) 76 DLR (4th) 256 (“Morguard Investments”) advocated “international comity whereby decisions of foreign courts [would be] afforded appropriate levels of deference and respect” (see the GD at [77]). The Judge also cited (at [78] of the GD) the Ontario Supreme Court case of Girsberger v Kresz (2000) 47 OR (3d) 145 (“Girsberger”), where Cumming J argued (at [46]) that, in the light of Morguard Investments, there was no reason why foreign judgments should not be recognised for what they truly were, ie, as judgments and not simple contractual debts. Cumming J further opined that the characterisation of a foreign judgment as a simple contractual debt was “an outmoded conception which emphasize[d] sovereignty and independence at a substantial cost of unfairness to the party wishing to have its foreign judgment enforced in Canada” (id at [47]). He was also of the view that the longer limitation period of 20 years that would apply following his re-characterisation of foreign judgments as judgments (cf the limitation period of six years under Ontario law vis-à-vis actions based on contracts or debts) was “appropriate and fair” (id at [49]) in this era of globalisation.

  91. (g) English case law would also indicate that the limitation period for common law actions on foreign judgments was governed by s 6(3) of the LA. In Owens Bank Ltd v Bracco [1992] 2 AC 443 (which was cited at [79] of the GD), Lord Bridge of Harwich stated (at 484):

  92. In Tasarruf Mevduati Sigorta Fonu v Demirel [2007] 1 WLR 2508 (“TMSF v Demirel”), Sir Anthony Clarke MR, who delivered the judgment of the English Court of Appeal, observed (at [41]) that s 24 of the Limitation Act 1980 (c 58) (UK) (“the 1980 UK Limitation Act”) – ie, the English equivalent of s 6(3) of the LA, although it should be noted that the limitation period in s 24 of the 1980 UK Limitation Act is six years rather than 12 years as per s 6(3) of the LA – was applicable to an action to enforce a Turkish judgment in England.

  93. [38] The Judge concluded (see the GD at [81]–[82]):

  94. The submissions of the parties

  95. [39] The Appellant submitted that s 6(3) of the LA was never intended to apply to a common law action on a foreign judgment (referring to the historical review of the equivalent English provision, viz, s 24 of the 1980 UK Limitation Act, in Lowsley v Forbes (trading as L E Design Services) [1999] 1 AC 329). The Appellant also referred to Westacre Investments ([8] supra), Murakami Takako ([17] supra), the English High Court case of Berliner Industriebank Aktiengesellschaft v Jost [1971] 1 QB 278 (“Berliner Industriebank”) and the Nova Scotia Supreme Court case of Jean Pollier v Peter A Laushway [2006] NSSC 165 (“Jean Pollier”) as authorities in support of his contention that s 6(1)(a) of the LA, and not s 6(3) thereof, applied to common law actions on foreign judgments.

  96. [40] The Respondent’s submissions in reply consisted basically of a reiteration of the Judge’s reasoning. In addition, the Respondent also contended – in direct opposition to the Appellant’s argument – that the genesis of s 6(3) of the LA showed that this provision was meant to apply to common law actions on foreign judgments.

  97. Preliminary observations on the Judge’s propositions

  98. [41] In our view, the Judge, in holding that the limitation period applicable to a common law action on a foreign judgment should be 12 years (pursuant to s 6(3) of the LA) and not six years (pursuant to s 6(1)(a) of that Act), relied on a number of propositions that are questionable. The first of these propositions is that there is no difference between the legal status of a foreign judgment and that of a domestic judgment. We beg to differ. A judgment is a formal act of the court in the exercise of the judicial power of a sovereign State. A foreign judgment is not any act of a domestic court, and, therefore, for a Singapore court to treat a foreign judgment as being the same as a Singapore judgment would be to allow a foreign State to exercise sovereign power in Singapore. This is contrary to the established legal order. In our view, a foreign judgment has no standing in a domestic court unless it is recognised as having some legal effect at common law or by virtue of express legislation (see, eg, the RECJA and the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (“the REFJA”)).

  99. [42] At common law, a foreign judgment is treated as an implied obligation to pay a debt (ie, the sum awarded by the foreign court) which may be enforced by a common law action (see, inter alia, the quotation from Berliner Industriebank set out at [51] below). The Judge relied on the words “an action on the judgment” in Lord Bridge’s statement in Owens Bank Ltd v Bracco ([37] supra) at 484 to support his conclusion that a foreign judgment had the same legal effect as a domestic judgment. With respect, these words were taken out of the context of the entire statement by Lord Bridge, which was that a foreign judgment merely created an implied obligation to pay the sum specified in the judgment (see Lord Bridge’s full statement as reproduced at sub-para (g) of [37] above). In Re Cheah Theam Swee [1996] 2 SLR 76, Warren L H Khoo J stated the principle clearly as follows (at 82, [14]):

  100. [43] The Judge was of the view that, because both an action brought in a Singapore court on a domestic judgment and an action brought in a Singapore court on a foreign judgment would produce a fresh judgment that was immediately enforceable, the two judgments – ie, the domestic judgment sued upon and the foreign judgment sued upon – should have the same legal status in domestic law for the purposes of enforcement. With respect, this view is based on fallacious reasoning. It relies on the apparent similarity between the legal outcome of an action on a domestic judgment and that of an action on a foreign judgment to imply that these two outcomes have the same cause (viz, a court judgment) and, therefore, that cause (viz, the court judgment in question) should have the same standing in law regardless of whether it emanates from a domestic or a foreign court. Such reasoning is fallacious because an action on a foreign judgment will produce the same effect or outcome as an action on a domestic judgment only after the foreign judgment in question has actually been sued on in a domestic court. Before that, the foreign judgment is still merely a foreign judgment. For a foreign judgment to acquire the status of a domestic judgment with its attendant right of immediate execution, the judgment creditor must first sue on the foreign judgment as an implied debt. The difference between an action on a domestic judgment and an action on a foreign judgment is also apparent from the legal defences available to the defendant in each case. In the case of the former, only the defence of abuse of process applies (as the Judge himself recognised (see the GD at [105])), whereas, in the case of the latter, other defences such as fraud, breach of natural justice and public policy are relevant (see [14] above).

  101. [44] Further, when considered in the context of the regime for registering foreign judgments under the RECJA (vis-à-vis Commonwealth judgments) and the REFJA (vis-à-vis non-Commonwealth foreign judgments), the Judge’s opinion that a foreign judgment is or should be the same as a domestic judgment is inconsistent with the underlying legal basis upon which these two statutes were enacted. If a foreign judgment (whether emanating from a Commonwealth court or a non-Commonwealth foreign court) is legally the same as a domestic judgment, no legislative purpose would be advanced by those Acts. Furthermore, in respect of non-Commonwealth foreign judgments, s 4(1)(a) of the REFJA provides that such a foreign judgment may be registered “within 6 years after the date of the judgment”, and s 7(1) states that no proceedings for the recovery of a sum payable under such a foreign judgment will be entertained by a Singapore court other than “proceedings by way of registration of the judgment”. Thus, if, for example, the REFJA were applicable to California, the Respondent would not be able to register the 1999 California Judgment after six years of its issue. On the other hand, if the REFJA were not applicable to California (as is presently the case), the Respondent would, on the Judge’s view that s 6(3) of the LA is applicable, have 12 years to commence a common law action on that judgment. In the face of such a result, there would be no reason for any foreign State to enter into an arrangement with Singapore for the reciprocal enforcement of its judgments under the REFJA as to do so would merely be to shorten the period during which its judgments can be enforced in Singapore.

  102. [45] Finally, the LA is a domestic statute. The established principle of construction of domestic legislation is that it is meant to deal with domestic matters, unless expressly provided otherwise. An example would be s 5(1) of the CLA, which has been construed as being inapplicable to foreign gaming and wagering contracts (see the High Court’s decision in Star City Pty Ltd v Tan Hong Woon [2001] 3 SLR 206 at [11]; it appears that this particular aspect of the High Court’s decision was not challenged in Star City (CA) ([17] supra)). Accordingly, the word “judgment” in s 6(3) of the LA prima facie means a domestic judgment and not a foreign judgment.

  103. Canadian views on the status of foreign judgments

  104. [46] Turning to the Canadian cases which the Judge relied on to support his opinion that a foreign judgment should have effect as a domestic judgment on the basis that a judgment is a judgment (and every court should accord due deference to the judgment of another court, even if that court is a foreign court), we do not agree that those cases reflect the established conflict of laws principles. What was stated in Morguard Investments ([37] supra) should be read and understood in the context of Canada as a federal State.

  105. [47] In Canada, each province has its own legal system independent of the legal systems of other provinces, and a judgment given in one province is a foreign judgment in another province. Politically, it would make sense for each province to recognise the judgment of another province as though that judgment were a domestic judgment for the purposes of enforcement, but this was not how the law developed before Canada became a federal State. It is therefore not surprising that some judges in other Canadian provinces have rejected Cumming J’s view in Girsberger ([37] supra) that all provincial court judgments should be treated as domestic judgments. This view was rejected, for example, by the Ontario Court of Appeal in Lax v Lax (2004) 70 OR (3d) 520. In that case, Feldman JA, after reviewing the history of the enforcement of domestic judgments and foreign judgments, said:

  106. [48] Other Canadian decisions that have rejected Cumming J’s view in Girsberger include Yugraneft Corp v Rexx Management Corp [2007] 10 WWR 559, where P Chrumka J of the Alberta High Court said that any change in the law should be effected by legislation. Also, in Jean Pollier ([39] supra), the Supreme Court of Nova Scotia said:

  107. Our view on the applicable limitation period

  108. [49] In our view, the law in Singapore is the same as that stated in the above passage from Jean Pollier. The law may also be said to be generally the same in all Commonwealth jurisdictions. Since a common law action on a foreign judgment is an action on an implied debt, it is subject to the limitation period in s 6(1)(a) of the LA. Support for this proposition can be found in Berliner Industriebank ([39] supra). Before turning to that case, the background to the LA should be explained in brief.

  109. [50] The earliest version of the LA – namely, the Limitation Ordinance 1959 (Ord No 57 of 1959) (“the 1959 Limitation Ordinance”) – was enacted to repeal the then existing legislation relating to limitation of actions and to adopt the English regime set out in the Limitation Act 1939 (c 21) (UK) (“the 1939 UK Limitation Act”) (see the Explanatory Statement to the Limitation Bill 1959 (Bill 18 of 1959)). As the then Minister for Labour and Law, Mr K M Byrne, said in his speech at the second reading of this Bill (see Colony State of Singapore, Legislative Assembly Debates, Official Report (2 September 1959) vol 11 at col 587):

  110. [51] The equivalent of ss 6(1)(a) and 6(3) of the 1959 Limitation Ordinance (which correspond to, respectively, ss 6(1)(a) and 6(3) of the LA) in the 1939 UK Limitation Act would be ss 2(1)(a) and 2(4) respectively. In Berliner Industriebank, Brandon J held (at 285–286) with regard to the ambit of ss 2(1)(a) and 2(4) of the 1939 UK Limitation Act:

  111. [52] As is apparent from the above quotation, Brandon J accepted that, as far as the 1939 UK Limitation Act was concerned, the correct construction was that s 2(1)(a) of that Act, and not s 2(4), applied to common law actions on foreign judgments, and counsel for the parties were ad idem on this point. An appeal against Brandon J’s decision was dismissed (see the decision of the English Court of Appeal in Berliner Industriebank Aktiengesellschaft v Jost [1971] 2 QB 463). A similar statement of the law can be found in David W Oughton, John P Lowry & Robert M Merkin, Limitation of Actions (LLP, 1998), where it is stated (at p 138):

  112. [53] In our view, since the LA can be traced back to the 1939 UK Limitation Act, Brandon J’s decision in Berliner Industriebank is authoritative on the ambit of ss 6(1)(a) and 6(3) of the LA. As regards the opinion of Sir Clarke MR in TMSF v Demirel ([37] supra) (see sub-para (g) of [37] above), the issue of limitation did not arise in that case, and the Master of the Rolls appeared to have assumed that s 24 of the 1980 UK Limitation Act (ie, the equivalent of s 2(4) of the 1939 UK Limitation Act and, in our local context, s 6(3) of the LA) was the applicable provision.

  113. [54] For the above reasons, our view apropos the Limitation Issue is that the limitation period applicable to a common law action on a foreign judgment is six years pursuant to s 6(1)(a) of the LA.

  114. The Section 5(2) CLA Issue

  115. [55] Turning now to the Section 5(2) CLA Issue, the question in this regard is whether the Judge was correct in deciding that a common law action on a foreign judgment based on a gambling debt could be brought in Singapore in spite of s 5(2) of the CLA. In analysing this issue, it is necessary that we examine what this court decided in Burswood Nominees ([10] supra) and whether that decision can support the Judge’s decision on the Section 5(2) CLA Issue. The reason is that the Judge relied on, inter alia, this court’s decision in Burswood Nominees as being supportive of his decision that “s 5(2) of the CLA did not bar a common law action in Singapore upon a foreign judgment based on a foreign gambling debt” (see the GD at [42]). Indeed, Burswood Nominees appears to have been the linchpin of the Judge’s ruling on the Section 5(2) CLA Issue as the Judge expressly acknowledged that that case was “instrumental in guiding [him] to the determination of this question in favour of the [Respondent]” (ibid).

  116. Methods of enforcing foreign judgments in Singapore

  117. [56] Before we proceed with our analysis of Burswood Nominees, it is helpful for us to first set out the two existing regimes for enforcing foreign judgments in Singapore as the Judge’s reasoning straddles both regimes. Under the first regime, the judgment creditor sues on the foreign judgment by way of a common law action in Singapore. This is what the Respondent has done in the present case in relation to the 2001 California Judgment. We have at [13]–[14] above set out the legal conditions that have to be satisfied before such a common law action can be brought.

  118. [57] Under the second regime, the judgment creditor registers the foreign judgment in the High Court. Here, there are two systems of registration, one for Commonwealth judgments (ie, the RECJA) and one for non-Commonwealth foreign judgments (ie, the REFJA). Once the foreign judgment in question is registered, it has the same force and effect, and may be enforced in the same way as a Singapore judgment (see s 3(3)(a) of the RECJA vis-à-vis Commonwealth judgments and s 4(4) of the REFJA vis-à-vis non-Commonwealth foreign judgments).

  119. [58] Under the RECJA, a Commonwealth judgment may be registered (provided none of the restrictions on registration in s 3 of the Act apply) for the purposes of enforcement in Singapore if it falls within the statutory definition of “judgment”, ie, if it is (per s 2(1) of the RECJA):

  120. [59] Under the REFJA, a non-Commonwealth foreign judgment may be registered (provided none of the restrictions on registration in s 4 of the Act apply) for the purposes of enforcement in Singapore if it is (per s 2(1) of the REFJA):

  121. It should be noted that the restrictions on registration under the RECJA are different from the restrictions under the REFJA. In particular, there is no equivalent of s 3(2)(f) of the RECJA (a provision which we shall discuss in greater detail below) in the REFJA. However, the REFJA is not relevant in the present case as it has not been extended to either Nevada or California and, therefore, none of the foreign judgments obtained in the US by the Respondent against the Appellant (ie, the 1999 Nevada Judgment, the 1999 California Judgment and the 2001 California Judgment) can be registered under the REFJA. It should also be noted that, in any event, the 2001 California Judgment, upon which the Singapore Action is based, is not a registrable foreign judgment since it is not a judgment for the payment of a sum of money (see [27] above; see also the definition of “judgment” in s 2(1) of the REFJA as set out above). The inapplicability of the REFJA to all the judgments obtained by the Respondent against the Appellant could account for the commencement of the present common law action on the 2001 California Judgment (ie, the Singapore Action).

  122. The decision in Burswood Nominees

  123. [60] In Burswood Nominees ([10] supra), the plaintiff, Burswood Nominees Ltd (“Burswood”), was the operator of a licensed casino in Western Australia. The defendant, Liao Eng Kiat (“Liao”), issued a personal cheque to Burswood in exchange for a chip purchase voucher, which he then exchanged for A$50,000 worth of gambling chips to gamble at Burswood’s casino. Liao lost the whole sum at the gambling tables and failed to honour the cheque. Burswood sued Liao on the dishonoured cheque and obtained default judgment in a Western Australian court (“the WA Judgment”). Burswood then applied (ex parte) to the High Court and obtained leave to register the WA Judgment in Singapore pursuant to the RECJA. Liao subsequently applied to set aside the registration of the WA Judgment on the ground that the High Court was precluded from registering it under s 3(2)(f) of the RECJA.

  124. [61] Section 3(2)(f) of the RECJA expressly prohibits the registration of a Commonwealth judgment if it was obtained “in respect of a cause of action which for reasons of public policy … could not have been entertained by [a Singapore] court”. As the cause of action on which the WA Judgment rested was undoubtedly a gambling debt, the question arose as to whether that cause of action was one which, for public policy reasons, could not be entertained in Singapore. The High Court held in Burswood Nominees Ltd v Liao Eng Kiat [2004] 2 SLR 436 that Liao’s cheque had been given in exchange for a genuine loan and that the sum awarded by the Western Australian court was not a gambling debt; accordingly, s 5(2) of the CLA had no application. The court also held that the doctrine of comity of nations required the Singapore courts to recognise the WA Judgment, which was a foreign money judgment (as defined at [14] above).

  125. [62] Liao appealed against the decision of the High Court on, inter alia, the ground that Burswood’s claim on his dishonoured cheque was a claim based on a gambling debt and not a claim based on a genuine loan. This court accepted this particular submission and, applying the re-characterisation process set out in Star City (CA) ([17] supra), held that Burswood’s claim was “for money won upon a wager” (see Burswood Nominees at [21]). The court also held that, if Burswood had commenced an action in Singapore on the dishonoured cheque, that action would have been barred by s 5(2) of the CLA (id at [22]). However, the court went on to hold that s 5(2) of the CLA was not applicable to the WA Judgment; instead, s 3(2)(f) of the RECJA was applicable and was decisive of the issue before the court.

  126. [63] In order to better illustrate the unusual approach of this court in Burswood Nominees in holding that s 3(2)(f) of the RECJA ousted the application of s 5(2) of the CLA in relation to the WA Judgment, we shall first set out below the relevant provisions of the CLA and the RECJA, and then state the existing legal position on these provisions as a backdrop to our analysis of Burswood Nominees.

  127. [64] Sections 5(1) and 5(2) of the CLA provide as follows:

  128. [65] Section 3(2)(f) of the RECJA provides as follows:

  129. [66] In Burswood Nominees, Liao’s argument on the applicability of s 5(2) of the CLA to the WA Judgment was summarised and rejected by this court as follows:

  130. [67] It should be noted that, although this court held that an action in Singapore on Liao’s dishonoured cheque would have been barred by s 5(2) of the CLA (id at [22]), it did not (at [24] of its judgment) decide whether an action in Singapore based on the WA Judgment would have been similarly barred. Instead, it decided, curiously, that Liao was not entitled to make that argument (viz, that an action in Singapore on the WA Judgment would have been barred by s 5(2) of the CLA) because Burswood’s application was for the WA Judgment to be registered and was thus to be determined on the basis of s 3(2)(f) of the RECJA.

  131. [68] At [25] of Burswood Nominees, the court said:

  132. The court duly examined (id at [26]–[31]) the approaches of foreign courts, including the approach of the Ontario Court of Appeal in Boardwalk Regency Corp v Maalouf (1992) 88 DLR (4th) 612 (“Boardwalk Regency”). It concluded (at [32] of Burswood Nominees) as follows:

  133. [69] It would appear that, in the mind of the court, “a higher standard of public policy in operation [with regard to] … a foreign judgment” (ibid) actually meant the opposite, for the court said (see Burswood Nominees at [41]):

  134. [70] At [46], the court concluded as follows:

  135. [71] As much of what this court said in the passages quoted at [68]–[70] above is merely a restatement of what the Ontario Court of Appeal said in Boardwalk Regency ([68] supra), it is useful to know what was actually decided in that case. We should also point out that, in Burswood Nominees, this court appeared to rely as well on the Malaysian High Court case of The Aspinall Curzon Ltd v Khoo Teng Hock [1991] 2 MLJ 484 (“The Aspinall Curzon”), which we shall now discuss.

  136. [72] The Aspinall Curzon concerned a judgment debtor’s application to set aside the registration of an English judgment based on a gambling debt, which judgment had been registered under s 4 of the Reciprocal Enforcement of Judgments Act 1958 (Act 99 of 1958) (1972 Rev Ed) (M’sia) (“the 1958 Malaysian Act”), the then Malaysian equivalent of s 4 of the REFJA (it should, be noted, however, that the 1958 Malaysian Act applied to both Commonwealth judgments and non-Commonwealth foreign judgments whereas the REFJA applies only to non-Commonwealth foreign judgments). The judgment debtor sought to rely on s 26 of the Civil Law Act 1956 (Act 67 of 1956) (1972 Rev Ed) (M’sia) (“Malaysia’s Civil Law Act”), the then Malaysian equivalent of s 5 of the CLA, to argue, vis-à-vis s 5(1)(a)(v) of the 1958 Malaysian Act (the then Malaysian equivalent of s 5(1)(a)(v) of the REFJA), that it would be contrary to public policy in Malaysia to enforce the English judgment. Eusoff Chin J rejected that argument on the ground that s 26 of Malaysia’s Civil Law Act “[was] not meant to apply to gaming or wagering in any premises run by a company licensed by the Finance Minister under s 27A of the Common Gaming Houses Act 1953 [(Act 289 of 1953) (1983 Rev Ed) (M’sia)]” (id at 486).

  137. [73] With respect, in coming to the above conclusion, the Malaysian High Court did not take into account the fact that the plaintiff in The Aspinall Curzon did not actually have the requisite licence. More importantly, that case concerned s 5(1)(a)(v) of the 1958 Malaysian Act, which, as we have just mentioned, corresponded to s 5(1)(a)(v) of the REFJA. The public policy objection set out in s 5(1)(a)(v) of the REFJA is different from the public policy objection contained in s 3(2)(f) of the RECJA – the objection in the former is that “the enforcement of the judgment would be contrary to public policy in [Singapore]” [emphasis added] (see s 5(1)(a)(v) of the REFJA), whereas the objection in the latter is that “the judgment was in respect of a cause of action which for reasons of public policy … could not have been entertained by [a Singapore] court” [emphasis added] (see s 3(2)(f) of the RECJA; see also the analysis of the difference between this provision and s 5(1)(a)(v) of the REFJA in Yeo Tiong Min, “Statute and Public Policy in Private International Law: Gambling Contracts and Foreign Judgments” (2005) 9 SYBIL 133 (“Statute and Public Policy in Private International Law”) at 133–134 and 136–137). The decision in The Aspinall Curzon therefore does not, in our view, show that the WA Judgment in Burswood Nominees was not “in respect of a cause of action which for reasons of public policy … could not have been entertained by [a Singapore] court” for the purposes of s 3(2)(f) of the RECJA. For these reasons, we do not consider The Aspinall Curzon to be a relevant authority.

  138. The decision in Boardwalk Regency

  139. [74] Turning now to Boardwalk Regency, this court discussed the case in the following terms at [31] of Burswood Nominees:

  140. [75] In our view, a closer examination of the legal matrix in Boardwalk Regency shows that the Ontario Court of Appeal’s statement (at 616) that public policy in conflict of laws cases represented national public policy operating at the international level was enunciated against the backdrop of the Gaming Act, RSO 1980, c 183 (Ontario) (“the 1980 Ontario Gaming Act”), which was construed by the Ontario Court of Appeal as having an effect quite different from that of s 5(2) of the CLA. In Boardwalk Regency, Lacourcière JA said (at 614):

  141. [76] In a similar vein, Carthy JA stated (id at 620–622):

  142. [77] It is clear from these passages that the reason why both Lacourcière JA and Carthy JA could not find a public policy ground for refusing to enforce the New Jersey judgment in Ontario was that the 1980 Ontario Gaming Act had no extraterritorial effect and “[did] not express public policy so as to preclude the enforcement in Ontario of [the] judgment obtained in the State of New Jersey, where the debt was legally incurred originally” (id at 614 per Lacourcière JA). Both judges then applied the conflict of laws principle (which is a common law principle) that a domestic court should give effect to a foreign judgment unless it was contrary to public policy to do so.

  143. [78] Arbour JA dissented on a ground which was not relevant to the appeal before this court in Burswood Nominees ([10] supra), but he also made it clear that, as s 4 of the 1980 Ontario Gaming Act did not have extraterritorial effect, whether there was a public policy against giving effect to the New Jersey judgment depended on the position at common law. Arbour JA stated (see Boardwalk Regency at 627–628 and 631–632):

  144. [79] In this connection, we should point out that the decision of the House of Lords in Hill v William Hill (Park Lane) Ld [1949] AC 530 (“Hill”) on the construction of s 18 of the Gaming Act 1845 (c 109) (UK) (“the 1845 UK Gaming Act”), which corresponds to s 4 of the 1980 Ontario Gaming Act as well as ss 5(1) and 5(2) of the CLA, was not considered by the Ontario Court of Appeal in Boardwalk Regency. In Hill, the House of Lords decided (by a majority), overruling all previous authorities, that s 18 of the 1845 UK Gaming Act had two limbs, each of which was to be given effect to separately. The second limb of this section (which corresponds to s 5(2) of the CLA and the second limb of s 4 of the 1980 Ontario Gaming Act) had the effect of preventing the recovery of money alleged to be won upon any gaming or wagering contract, wherever that contract was entered into. In the words of Lord Normand, the second limb of s 18 of the 1845 UK Gaming Act was meant “to strike at any suit for recovering money or valuables won by wagering” [emphasis added] (see Hill at 565). In a separate judgment, Lord MacDermott said that “the court must look to the reality of the transaction and come to a finding as to what the true intention was” (id at 574). He also suggested that the court must not allow evasion and circumvention of s 18 of the 1845 UK Gaming Act (id at 577). These two statements by Lord MacDermott were cited with approval by Selvam J in Star Cruise Services Ltd v Overseas Union Bank Ltd [1999] 3 SLR 412 (“Star Cruise”) at [42].

  145. [80] The legal position in Ontario as stated in Boardwalk Regency was the same as that which existed in England before the decision of the majority of the House of Lords in Hill, when the English courts mistakenly construed the second limb of s 18 of the 1845 UK Gaming Act as merely a consequence of the first limb, and not as an independent limb which was to be given effect to separately. If the Ontario Court of Appeal in Boardwalk Regency had understood s 4 of the 1980 Ontario Gaming Act to have the same effect as its English equivalent (viz, s 18 of the 1845 UK Gaming Act) as interpreted by the majority in Hill, the court might, on this interpretation of s 4 of the 1980 Ontario Gaming Act, have dismissed the action brought in Ontario on the New Jersey judgment, in which case there would have been no necessity for the court to determine the appeal on the basis of whether there was a public policy in Ontario which precluded the enforcement of foreign judgments based on gambling debts. Further, if the 1980 Ontario Gaming Act had been construed in Boardwalk Regency in the way that s 18 of the 1845 UK Gaming Act was construed by the majority in Hill, the Ontario Court of Appeal might well have arrived at the conclusion that the Ontario statute did encapsulate a public policy against the recovery of gambling debts, wherever incurred (which public policy does, in our view, feature in s 5(2) of the CLA (see [112] and [114] below)). On that basis, the trial judge in Boardwalk Regency would then have been correct in ruling that the 1980 Ontario Gaming Act “declared a public policy saying, in effect: ‘We do not like gambling and do not like to encourage persons to lend money for that purpose …’” (id at 620).

  146. Is gambling contrary to Singapore’s public policy?

  147. The historical context

  148. (1) The 1845 UK Gaming Act: Its effect and policy considerations

  149. [81] Turning to the position in Singapore, in analysing whether s 5(2) of the CLA reflects a public policy against gambling, it is helpful to have regard to the stance adopted in the UK and India as their gaming statutes influenced the shape which ss 5(1) and 5(2) of the CLA currently takes today. In Star Cruise, Selvam J very helpfully reviewed the history and public policy of gaming legislation in the UK leading to the enactment of the 1845 UK Gaming Act. In his discussion, he referred to (id at [22]–[28]):

  150. (a) the Unlawful Games Act 1541 (c 9) (UK), which was considered to be “the origin of our Common Gaming Houses Act (Cap 49[, 1985 Rev Ed])” (id at [22]);

  151. (b) the Gaming Act 1664 (c 7) (UK), which sought to control “gaming and betting on credit” [emphasis added] (ibid) by providing, inter alia, that a person who lost at gaming activities could not be compelled to pay any losses in excess of £100; and

  152. (c) the Gaming Act 1710 (c 19) (UK).

  153. He noted that even the last-mentioned statute failed to abate the evil of gambling (see Star Cruise at [25]), whereupon the UK legislature took the “bold step” (ibid) of enacting the 1845 UK Gaming Act, with the result that (ibid):

  154. [82] Selvam J summarised his discussion of the UK’s gaming legislation as follows (see Star Cruise at [28]):

  155. [83] In essence, Selvam J emphasised in the above quotation that the public policy underlying the UK’s gaming legislation leading to (and including) the 1845 UK Gaming Act was twofold: first, to suppress gambling on credit (and not gambling per se) and protect property from capture by gamblers; and, second, to declare that the courts of justice were closed to gamblers and that the courts would not help to settle or collect gambling debts. In particular, Selvam J noted that the public policy of clamping down on gambling on credit (as opposed to gambling per se) had subsisted in England for “some 450 years” (id at [68]).

  156. [84] Selvam J’s view in Star Cruise echoes what Viscount Simon said in Hill ([79] supra) at 548–549 apropos the policy of the 1845 UK Gaming Act, which was as follows:

  157. [85] A clearer picture of the events leading up to the enactment of the 1845 UK Gaming Act can be found in Smith & Monkcom: The Law of Gambling (Stephen Monkcom ed) (Tottel Publishing, 3rd Ed, 2009), where it is stated (at para 0.27):

  158. (2) Policy considerations underlying India’s Act No 21 of 1848

  159. [86] India enacted Act No 21 of 1848 (“the 1848 Indian Act”) with similar objectives as those underlying the 1845 UK Gaming Act. The 1848 Indian Act was based on and had the same substantive effect as s 18 of the 1845 UK Gaming Act (per Sproule J in Ralli v Angullia (1917) 15 SSLR 33 at 87). It was enacted to abrogate the decision of the Privy Council in Ramloll Thackoorseydass v Soojumnull Dhondmull and Mootlan Ohund Cuppoorchund (1848) 4 Moore’s Ind App 212, where it was held that wagering contracts were not illegal or contrary to public policy as the 1845 UK Gaming Act had no application in India (see also the Privy Council’s decision in Kong Yee Lone & Co v Lowjee Nanjee (1901) 28 Ind App 239). The public policy encapsulated in the 1848 Indian Act was therefore identical to the public policy of the 1845 UK Gaming Act (per Selvam J in Star Cruise).

  160. (3) Gaming legislation in Singapore: A brief overview

  161. [87] The 1848 Indian Act applied to the Straits Settlements as well (see G W Bartholomew, Elizabeth Srinivasagam & Pascal Baylon Netto, Sesquicentennial Chronological Tables of the Written Laws of the Republic of Singapore 1834–1984 (Malayan Law Journal Pte Ltd, 1987) at pp x1ii and 30). It was later replaced by s 7(1) of the Civil Law Ordinance 1909 (SS Ord No 8 of 1909) (“the CLO”) in 1909 (see the decision of the Straits Settlement Court of Appeal (“the SSCA”) in Ralli v Angullia at 60, 87 and 89). Section 7(1) of the CLO stated as follows:

  162. [88] The current ss 5(1) and 5(2) of the CLA are, collectively, a re-enactment of s 7(1) of the CLO, which, as noted in Ralli v Angullia, was itself “a combination of the [1848] Indian Act … with part of Section 18 of [the 1845 UK Gaming Act]” (at 60 per Woodward J; see also id at 87 per Sproule J). (And, as we have just mentioned at [86] above, s 18 of the 1845 UK Gaming Act had the same substantive effect as the 1848 Indian Act (per Sproule J in Ralli v Angullia at 87).) The public policy encapsulated in s 5(2) of the CLA has subsisted for more than 160 years (from the time of the 1848 Indian Act) and still subsists today, as is evident from the continued existence of s 5(2) itself. This public policy is as follows (per Selvam J in Star Cruise at [68] apropos s 6 of the Civil Law Act (Cap 43, 1994 Rev Ed), the then equivalent of s 5 of the CLA):

  163. However, in Star City (CA) ([17] supra) and Burswood Nominees ([10] supra), this court took a diametrically different view on gambling.

  164. The view on gambling taken in Star City (CA) and Burswood Nominees

  165. (1) The court’s stance

  166. [89] In Burswood Nominees, this court stated:

  167. [90] It may be noted that, at [44] of Burswood Nominees (reproduced in the above quotation), this court did not quote the entire passage at [30] of Star City (CA). The full version of that paragraph (ie, [30] of Star City (CA)) reads:

  168. [91] The italicised portions of the quotations at [89] and [90] above set out the court’s reasons for taking the view, in Burswood Nominees and Star City (CA) respectively, that gambling was no longer contrary to Singapore’s public policy. With respect, we do not think this view was justified by either the evidence before the court in those two cases or the policy considerations encapsulated in s 5(2) of the CLA, as we shall show below.

  169. (2) Our views on the court’s stance

  170. [92] In our view, it seems counter-intuitive to assert that “[g]ambling per se is no longer considered to be contrary to the public interest [of Singapore]” (see [30] of Star City (CA), which was quoted in Burswood Nominees at [44]). The 1848 Indian Act was extended to Singapore because gambling was regarded as being contrary to the public interest of Singapore. As mentioned at [88] above, this policy stance has subsisted ever since, as can be seen from the presence of s 5(2) of the CLA (and its predecessor provisions) as well as the various other laws in the statute book criminalising gambling, especially the Common Gaming Houses Act (Cap 49, 1985 Rev Ed), whose earliest predecessor appears to have been India’s Act No 13 of 1856 (see Choor Singh, Gaming in Malaya: A Commentary on the Common Gaming Houses Ordinance, 1953 of the Federation of Malaya and the Common Gaming Houses Ordinance (Cap. 114) of the State of Singapore (Malayan Law Journal Ltd, 1960) at p 9 and Roland Braddell, Common Gaming Houses: A Commentary on Ordinance No 45 (Common Gaming Houses) (Kelly and Walsh Limited, 1932) at p 1).

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