Taka Jewellery Pte Ltd v Tan Choon Sim

Choo Han Teck J:

[1] The trial of this matter originally commenced on 8 March 2012 before another court but was adjourned for the plaintiff to amend its statement of claim. The plaintiff is a company carrying on the business of a retail jewellery shop with branches across the country. The statement of claim filed on 2 December 2010 pleaded that the defendant was a customer and the cause of action was encapsulated in the paragraph stating:

The cheque for $300,000 was presented for payment on 2 November 2010 but was dishonoured and marked “Refer to Drawer” on 3 November 2010.

[2] On 7 February 2011 the plaintiff amended its statement of claim by pleading an alternative claim as follows:

The defendant requested for particulars of this allegation and on 13 May 2011 the plaintiff provided the following particulars. It alleged that “[t]he Defendant drew up the cheque for the sum of $300,000 in the name of the Plaintiff and [gave it] to Tammy Wong”. It was alleged that the cheque was given “for a colourable purpose” and “given to Tammy Wong as security to assist her to receive cash from her customer rather than to pay the Plaintiff”. It asserted that “[t]here was no intention to pay the Plaintiff at all times”. It went on to say that the defendant ought to know that the cheque was not meant to be used as security but “to deceive the Plaintiff since there was no reason for the Defendant to give a cheque as security”. The plaintiff then pleaded that:

It was difficult to make sense of the particulars set out above and there should be little wonder the plaintiff felt compelled (or was compelled) to again amend its claim to one that could make sense. The result was the amendment to the statement of claim filed on 20 March 2012.

[3] Paragraph 7 was amended to carry the thrust of the plaintiff’s case as follows:

The plaintiff thus claimed payment of the sum of $300,000 and damages to be assessed.

[4] The only witness called by the plaintiff was Julia Tan Sim Hui, their general manager. She had no personal knowledge of what had transpired between the defendant and Tammy Wong and was only able to produce the records as they were found in the plaintiff’s possession. The substance of her affidavit of evidence-in-chief was that the plaintiff received two cheques from the defendant — one for $300,000 and the other for $10,000. Crucially, she said:

[5] The defendant testified that she did not know what Tammy Wong was doing and was only told that she had problems with her customers. To that end Tammy Wong asked if the defendant would help by drawing up a cheque for $300,000 for her (Tammy Wong) to show her customer and that she would return the cheque to the defendant after that. The defendant testified that she had specifically told Tammy Wong not to present the cheque for payment. Tammy Wong, who was still serving a prison sentence at the time of the trial, was called to testify on behalf of the defence. She corroborated the defendant’s story. Without extrinsic evidence and having failed to break either testimony, Mr Han Wah Teng, counsel for the plaintiff, was unable to persuade me that the defendant was involved in a fraud against the plaintiff. Indeed, in spite of the amendments, the pleadings did not set out how the fraud was perpetuated. The evidence from both the plaintiff and defendant showed that it was a straightforward case of theft by an employee, namely, Tammy Wong. Whatever purpose the defendant’s cheque of $300,000 was for, it seemed to me that it was not be part of a fraud carried out by the defendant with Tammy Wong against the plaintiff. Neither was it a purported payment for a sale of jewellery. This brings up the curious way the plaintiff pleaded its case in its statement of claim.

[6] It is not uncommon for plaintiffs to sue in the alternative, but that is usually viable only if the alternatives as well as the evidence are not incompatible. In this case, the court was asked to find that the evidence showed that the conduct of the defendant was fraudulent. And that was the thrust of the plaintiff’s case. However, when no viable case of fraud had been made out against the defendant but instead showed fraud on the part of the plaintiff’s servant, how could the plaintiff then maintain that the transaction between that agent and the defendant was a commercial sale and purchase transaction? It was clear that the plaintiff did not know that a cheque for $300,000 was given to Tammy Wong until they confronted her with the loss of jewellery from the store where she worked. The plaintiff did not and still do not know why the cheque was given by the defendant to Tammy Wong. It was also critical that the evidence showed that there was no sale of jewellery relating to the cheque for $300,000. The original cause of action based on a sale and purchase was all but abandoned at trial. For the reasons above, the plaintiff failed to prove its case as claimed and its action is hereby dismissed.

[7] The defendant claimed that she left two diamond broaches with Tammy Wong for “setting” and that the diamonds had not been set and neither had they been returned to her. Tammy Wong admitted taking the diamonds from the defendant, but she could not recall if they were part of the items she had stolen from the plaintiff’s shop. The defendant’s counterclaim did not allege that the diamonds were handed to Tammy Wong as servant or agent of the plaintiff. The claim was based on a sale and purchase which the evidence did not support. What those diamonds were and where they are now will probably remain a mystery since Tammy Wong could not recall what happened to them and neither does the plaintiff nor the defendant. In the circumstances, the counterclaim also fails and is dismissed.